Can transferring an employee into a position for which he had applied nine months earlier be viewed as an “adverse employment action” sufficient to support a claim of discrimination? (HINT: Don’t bet your paycheck on this one.)

Robert Deleon, a 53 year old Hispanic male, was employed by the Kalamazoo County Road Commission for twenty-eight years. Deleon successfully held the position of Area Superintendent – in which he supervised road maintenance activities, road crews, and repairs – for over ten years. In 2008, Deleon applied for the position of Equipment and Facilities Superintendent, viewing that job as one with potential for career advancement.

Although the Superintendent position was primarily an office job, the job description included a statement that the position included “exposure to loud noises and diesel fumes.” Based on that fact, Deleon had planned to ask for a salary increase, had he been a finalist for the position. Deleon did not get that job, based largely on the fact that his computer skills were insufficient for the work.

The individual hired for the Superintendent position left shortly after starting the job; the position then was offered to an external candidate, who declined it. In 2009, nine months after his original unsuccessful application, Deleon was directed into the position, without the choice to decline and without the requested raise. According to the Commission, the move was part of a larger reorganization.

Deleon moved into the position which, according to another employee, was a “stinky environment,” akin to “sticking your head in an exhaust pipe.” The job also was described as much like sitting “in traffic behind a city bus . . . diesel fumes all the time.” After a short time on the job, Deleon developed bronchitis and other respiratory ailments.

In the Superintendent position, Deleon had several disagreements with his own supervisor who, Deleon believed, was setting him up to fail. After one fractious meeting, Deleon was hospitalized for five days for stress; Deleon followed that absence with eight months of leave, ostensibly under the FMLA. Deleon’s psychiatrist ultimately cleared Deleon to return to work in August 2011, but the Commission already had terminated him, stating that Deleon had exhausted all available leave.

Deleon sued the Commission for age, race, and national origin discrimination under various federal statutes. Under all of the relevant laws, Deleon had to show, as part of his prima facie case, that he had suffered an “adverse employment action.” An adverse employment action typically is defined as a “materially adverse change in the terms and conditions of a plaintiff’s employment.”

The lower court granted summary judgment in favor of the Commission, finding that Deleon’s lateral transfer was not an adverse action. Upon review, the 6th U.S. Circuit Court of Appeals disagreed and remanded the case for trial, finding that a factual question exists as to whether transferring Deleon to a job for which he initially applied would preclude him from arguing that the transfer was an adverse action. Deleon v. Kalamazoo County Road Commission, 6th Cir., No. 12-2377, January 14, 2014.

The Sixth Circuit held that a lateral transfer may constitute an adverse action, even in the absence of a demotion or other negative consequence, “so long as the particular circumstances present give rise to some level of objective intolerability.” Having so stated, the Court then pointed out what it believed to be sufficient evidence upon which a jury could find that Deleon’s work environment was objectively intolerable, including the regular exposure to diesel fumes.

The Court did not make a final determination that Deleon’s transfer to the position for which he initially applied was an adverse action – it simply said that a jury ultimately would have to make that decision. The Sixth Circuit, however, did categorically refuse to state that a plaintiff’s initial request to obtain a position precludes that individual from subsequently alleging that he suffered a materially adverse employment action when ultimately placed into that same position. This is an issue worth watching for new – and possibly conflicting – decisions from other circuits.