January 29, 2014

Proving the adage “no good deed goes unpunished,” the Sixth Circuit recently held that a voluntary transfer can be an adverse employment action.
In Deleon v. Kalamazoo County Road Commission, et al., No. 12-2377 (6^th Cir. Jan. 14, 2014), a superintendent of road maintenance with twenty-eight years of experience, applied for a vacant office position.  Although not initially selected for the position, the Commission laterally transferred the Plaintiff into the job the next time that it became available.

After the transfer, Plaintiff took medical leave claiming that the diesel fumes from an adjacent garage made him ill.  The Commission eventually terminated his employment after he exhausted all his available leave.  Plaintiff brought suit for national origin and age discrimination – citing a pervasive atmosphere of racial insensitivity and derogatory comments.  The district court found in favor of the Commission as Plaintiff had failed to show that the transfer was an adverse employment action.

The Sixth Circuit Court of Appeals, however, reversed.  It held that the transfer of an employee can constitute an adverse employment action, even when it does not involve a demotion or reduction in pay, and regardless of whether the employee had requested the transfer, if the work environment was “objectively intolerable.”  The Court found the transfer was involuntary even though Plaintiff had previously applied for it.

This decision underscores that employers are not insulated from litigation risks simply because they granted an employee’s request for a transfer.  It is also a stark reminder that some courts may be sympathetic to employees, such as this one, with substantial tenure and may be more likely to allow them their “day-in-court.”