Last month, the Court of Appeals for the Sixth Circuit, which is the federal appeals court for Kentucky, Ohio, Michigan, and Tennessee, issued a very important decision which quite unfavorably defines what an “adverse action” is under several federal employment laws.

In most employment cases, the “adverse action” occurs when an employee is terminated from employment or is demoted to an inferior position.  However, in Deleon v. Kalamazoo County Road Comm’n, No. 12-2377 (6th Cir. 2014), the Sixth Circuit considered whether less obvious situations – such as a transfer to another position that the plaintiff had previously requested – could constitute an adverse action.

The plaintiff in the case, a fifty-three year old Hispanic male, worked for the Kalamazoo County Road Commission for 28 years.  In 1995, he began working as the Area Superintendent, and generally received positive reviews while working in that position.  In 2008, a vacancy arose for the Equipment and Facilities Superintendent position.  Even though the position description for that job noted that working conditions would include exposure to loud noises and diesel fumes, the plaintiff nonetheless applied for the position.  Initially, another candidate was hired for the job, but when that employee subsequently left the position in 2009, the plaintiff was transferred into the role.

Following the transfer, the plaintiff complained about the working conditions, including having to work in the presence of diesel fumes as had been described in the position description.  He also demanded a raise, and said he would have requested it previously had he been put into the position when he first applied for it.  No raise was provided.  Thereafter, the plaintiff received a negative evaluation from his supervisor.  Then, shortly after a fractious meeting with a supervisor during which the plaintiff disagreed with his supervisor’s strategy, the plaintiff was hospitalized for a work-induced, stress-related mental breakdown.  He took eight months leave as a result, but was terminated before he was released to return to work because he had exhausted his available leave.

The plaintiff filed suit, alleging that he had been discriminated against on account of his race and national origin in violation of Title VII the Civil Rights Act of 1964 and discriminated against on account of his age in violation of the Age Discrimination in Employment Act (ADEA).  As a public employee, he also brought a claim under the Equal Protection Clause of the Fourteenth Amendment.  Rather than focus on his termination, each of the claims in his lawsuit turned on whether the plaintiff had been subjected to an adverse employment action when he was transferred to the position of Equipment and Facilities Superintendent.

Typically, a change in responsibilities without a change in salary, benefits, titles, or work hours is not sufficient for the change to be materially adverse.  However, the Sixth Circuit Court of Appeals concluded in this case that the plaintiff met his burden of showing an adverse action because in the new post he was exposed to toxic and hazardous diesel fumes on a daily basis.

In doing so, the court rejected the employer’s argument that the transfer could not be adverse because the plaintiff himself had requested the transfer.  Oddly enough, the court concluded that the fact that the plaintiff had requested the transfer was irrelevant.  The court also stressed that the plaintiff had intended to request a substantial raise if he had been transferred into the position previously.

If you are having trouble making sense of this decision, you are not alone.  One of the judges on the three-judge panel issued a strong dissent.  He explained that the majority had misconstrued the evidence, pointing out that the plaintiff was told when he first applied for the position that no raise would be given; yet, he kept his application active and still interviewed for the position after being so informed.  The dissent also stressed that the plaintiff’s exposure to diesel fumes could not amount to an adverse action because he was fully aware of these working conditions when he applied.  This is probably the most difficult-to-swallow aspect of the majority’s decision for most employers.

Looking at the bigger picture, it’s easy to see how this decision places employers in a no-win situation.  On the one hand, if the plaintiff had not been transferred to the position he requested, he could have argued that the failure to transfer him was based on his race or national origin (or in a different case, with a different plaintiff, some other protected class or classes), since the failure to transfer could certainly constitute an “adverse action.”  On the other hand, actually giving a plaintiff the transfer he/she requests now potentially subjects the employer to potential liability for retaliation.

Because head-shaking is where most employers will end up no matter how many ways they try to dissect this case, we’ll conclude this piece simply as the dissent warned: “An interpretation of the retaliation laws that subjects employers to liability coming and going – whether after granting employee requests or denying them – will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace.”

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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