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January 27, 2014
Employee-requested transfer may constitute adverse employment action for purposes of discrimination claims
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Many employers assume that an employee requested transfer could not possibly qualify as an adverse employment action for purposes of a discrimination lawsuit.  However, as Deleon v. Kalamazoo Cnty. Rd. Comm'n, 12-2377, 2014 WL 114016 (6th Cir. Jan. 14, 2014) demonstrates, employers should tread carefully when transferring employees who have raised discrimination concerns, even when the employee is the one who initially requested the transfer. 

In Daleon, a minority plaintiff  filed a lawsuit claiming that he was subjected to discrimination and adverse employment action after his employer transferred him to a lateral position that he had applied for.  The plaintiff was a supervisor of road maintenance crews who had received positive evaluations throughout his 28 years with the employer.  Nevertheless, the plaintiff also contended that his work environment was permeated with racial insensitivity and insult during his employment.  Perhaps coincidentally, the plaintiff had applied for a lateral transfer position, of which the job description described the working conditions as “primarily in office … and in garage where there is exposure to loud noises and diesel fumes.”

The plaintiff interviewed for the transfer position and was initially denied by the employer, largely because the plaintiff did not possess the computer skills necessary to perform the job’s function.  However, when the employer was unsuccessful in its attempts to fill the position, it transferred the plaintiff into the job.  When the plaintiff filed suit for discrimination, he claimed that the transfer was an adverse employment action under federal discrimination laws because he was exposed to intolerable working conditions which included exposure to diesel fumes resulting in bronchitis, as well as work related stress and anxiety.  Moreover, the plaintiff claimed that the employer had “set him up to fail” in the position.

The 6th Circuit of the United States Court of Appeals held that the plaintiff had indeed stated a prima facie case for discrimination.  In reversing the trail court’s summary judgment dismissal of the plaintiff’s claims, the Court observed:

…“[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case,” and “should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.’ ” Burlington N., 548 U.S. at 71, 126 S.Ct. 2405. We have held that a transfer may classify as an adverse employment action where it constitutes a “constructive discharge.” Policastro v. Nw. Airlines, Inc., 297 F.3d 535, 539 (6th Cir.2002). In order for an employee to be constructively discharged, the working conditions “must be objectively intolerable to a reasonable person.” Id. (quoting Kocsis, 97 F.3d at 886) (emphasis added).

Deleon (6th Cir. Jan. 14, 2014). The Court went on to note, “[T]he case law thus indicates that an employee's transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability.” Deleon (6th Cir. Jan. 14, 2014).

The Daleon case underscores the need for employers to exercise caution when considering employee transfers; particularly when allegations of unlawful discrimination, on any basis, are present.  Should employers have questions regarding any transfer involving an employee who has raised concerns about unlawful discrimination, they are encouraged to contact an attorney. 

NOTE:  These materials are for educational and informational purposes only.  They are not intended as and do not constitute legal advice.

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This advisory is a publication of Eisenhower Carlson PLLC. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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