Supreme Court Denies Review of Job Transfer Appeal Despite Strong Alito Dissent
Diana Uhimov, January 14, 2015.
On Monday, the U.S. Supreme Court denied review of the Sixth Circuit’s holding in Kalamazoo County Road Commission v. Deleon, permitting employees to bring an action for workplace discrimination after being given a position that the employee had actually pursued. The suit was brought by Robert Deleon, a 53-year-old Mexican-American man who had worked for the Kalamazoo County Road Commission for 25 years. Deleon applied for a vacant position that involved working in an office located in a garage with diesel fumes, but the job was offered to another candidate. After that candidate left the position, Deleon was transferred to the job without the $10,000 salary bump he requested to compensate for the hazards, but the requested raise was denied. Deleon complained about the hazards when in his new position, and then took medical leave for issues caused by exposure to the fumes, as well as a work stress related mental breakdown. When he was ready to return to work, Deleon was terminated for exhausting all of his time off. The Supreme Court’s decision not to grant certiorari elicited a harsh dissent from Justice Samuel Alito—it is rare to dissent from a denial of review—that was not joined by another other justices.
In declining the Commission’s appeal, the high court upheld a January 2014 Sixth Circuit ruling, which found that a job transfer can constitute an adverse employment action, even where the employee had requested the transfer, as long as the work environment was “objectively intolerable.” An adverse action is retaliation against an employee or job applicant who opposes discriminatory practices, or participates in an employment discrimination proceeding. For an action to be deemed adverse, there must be “an injury or harm” that “a reasonable employee would have found . . . materially adverse.” Examples of adverse actions include, inter alia, termination, refusal to promote, threats, unjustified negative reviews, and assault.
Deleon claimed that the transfer was a deliberate attempt to thwart his employment and that he raised concerns about the hazards of the new position. His suit alleged that there was a hostile work environment characterized by racial insensitivity and derogatory comments throughout the course of his employment, and brought claims under the Equal Protection Clause, Title VII and the Age Discrimination in Employment Act. A plaintiff must show that he suffered an adverse employment action in order to establish all three causes of action.
Initially, a Michigan district court granted summary judgment in favor of the employer. However, the Sixth Circuit reversed in a 2-1 decision. The court reasoned that Deleon’s ultimately rejected request for ‘hazard pay’ suggest that Deleon may not have really requested or wanted the position. Opposing Judge Jeffrey S. Sustton dissented on the basis that an employer’s decision to grant a transfer requested by the worker himself cannot be an adverse employment action. Justice Alito’s dissent issued on Monday referred to Sutton’s assessment as a “common-sense conclusion.”
Alito’s strong five-page dissent referred to the Sixth Circuit’s holding as “clearly wrong” and urged the Court to overturn it. “The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based. I would grant the petition for certiorari and summarily reverse,” Justice Alito wrote. “An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.”
Notably, Alito pointed out that Deleon had apparently not given any indication of his purported change of heart about wanting the transfer, and that Deleon continued to seek the transfer after finding out it wouldn’t be accompanied by a salary increase. He also said Deleon knew the position would involve exposure to diesel fumes when he applied for it. Although the Sixth Circuit held Deleon’s assignment was “involuntary,” Alito maintained that didn’t make the transfer adverse, since Deleon demonstrated interest in the job for months.
While the Supreme Court declined to comment on why it rejected the petition for certiorari, it can be interpreted to indicate that the case was not worth expenditure of the court’s resources, or that a majority of Justices want to evaluate the issue following a trial on the merits. The Commission will have an opportunity to file another petition to appeal should a trial be decided in Deleon’s favor. Alito cautioned that although the strangeness of this decision may reveal that the holding will not appear in future cases, if not reversed, it will be binding law in the Sixth Circuit. Accordingly, employers should keep detailed records of all employee complaints and requests.