RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0012p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiffs-Appellants, -
ROBERT DELEON and MAE DELEON,
-
-
-
No. 12-2377
v.
,
>
-
-
KALAMAZOO COUNTY ROAD COMMISSION;
-
TRAVIS BARTHOLOMEW and JOANNA
-
JOHNSON, in their official and individual
-
Defendants-Appellees. N
capacities,
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:11-cv-00539—Paul Lewis Maloney, Chief District Judge.
Argued: October 8, 2013
Decided and Filed: January 14, 2014
Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge*
_________________
COUNSEL
ARGUED: Lennox Emanuel, THE NATIONAL LAW GROUP, P.C., Detroit,
Michigan, for Appellants. Thomas H. Derderian, MICHAEL R. KLUCK & ASSOC.,
Okemos, Michigan, for Appellees. ON BRIEF: Lennox Emanuel, THE NATIONAL
LAW GROUP, P.C., Detroit, Michigan, for Appellants. Thomas H. Derderian,
MICHAEL R. KLUCK & ASSOC., Okemos, Michigan, for Appellees.
KEITH, J., delivered the opinion of the court, in which BLACK, D.J., joined.
SUTTON, J. (pp. 11–14), delivered a separate dissenting opinion.
*
The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio,
sitting by designation.
1
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 2
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. Robert Deleon (“Deleon”) appeals the
dismissal of certain of his claims from the district court’s grant of summary judgment
in Defendants’ favor. The district court granted Defendants’ motion on the basis that
Deleon did not suffer an “adverse employment action.” Deleon was laterally transferred
from one department to another, which he alleges constituted an action giving rise to
sustainable claims of discrimination. On appeal, the principal issues before this Court
are: (1) whether the conditions were sufficiently intolerable to maintain actionable
discrimination claims; and (2) whether the fact that Deleon applied for and interviewed
for the position to which he was eventually transferred disqualifies him from showing
that the employment action was truly “adverse.” For the reasons that follow, we answer
in Deleon’s favor on both issues. Accordingly, we REVERSE the grant of summary
judgment and REMAND for proceedings consistent with this opinion.
I. BACKGROUND
Deleon, a fifty-three year old Hispanic male of Mexican descent, was employed
by the Kalamazoo County Road Commission (“the Commission”) for twenty eight years.
Beginning in 1995, Deleon served as an “Area Superintendent” for the Commission. In
that capacity, Deleon supervised road maintenance activities, road crews, and oversaw
repairs. Deleon generally received positive reviews throughout his time in this position.
Deleon alleges a pervasive atmosphere of racial insensitivity and derogatory comments
throughout the course of his employment.
While serving as Area Superintendent, Deleon was supervised by Defendants
Travis Bartholomew (“Bartholomew”) and Joanna Johnson (“Johnson”). In 2008, a
vacancy arose for the position of “Equipment and Facilities Superintendent.” The job
description described the working conditions as “primarily in office [ ] and in garage
where there is exposure to loud noises and diesel fumes.” R. 55-4, Ex. 5. Deleon
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 3
applied for this position on November 13, 2008. Had he been offered the position,
Deleon attested that he would have demanded a $10,000 salary increase. He also viewed
the position as possessing better potential for career advancement.
After an interview, Deleon was informed that he did not receive the position. He
admits that his computer skills, which were a substantive qualification for the position,
were insufficient. Consequently, the commission hired another candidate who left the
position shortly thereafter. The Commission then offered the position to an external
candidate; this candidate eventually declined. In 2009, Deleon was involuntarily
transferred to the position.1
According to the Commission, this was part of a larger “reorganization.” R. 55-
3, Ex. 4. Bartholomew admitted that he and Johnson decided to transfer Deleon. Deleon
voiced numerous objections to the hazards posed by the new position. Deleon testified
that, in applying for the position, he demanded a raise because of the “hazard posed by
diesel fumes and poor ventilation in the equipment and facilities area.” Deleon did not
receive his requested raise. Another employee corroborated the description of the
conditions: “It’s a stinky environment. It’s like sticking your head in an exhaust pipe.
Have you ever sat in traffic behind a city bus? That’s what it was like in the
maintenance facility . . . diesel fumes all the time.” R. 64, Ex. 8, p. 31. Deleon stated
that it was “an office and enclosed garage facility with running trucks and equipment that
resulted in constant exposure to diesel fumes.” R. 64, Ex.1, pp. 230-231. According
to this employee, this was the only Area Superintendent position subject to these
conditions. Deleon asserts that he developed bronchitis— as well as a cough and sinus
headaches due to the diesel fumes—and would blow black soot from his nostrils as a
result.
1
Although Deleon originally applied for the position, his application was denied. Nine months
later, Deleon was involuntarily transferred to the position. R. 64 at 110-11 (Deposition of [employer]
Bartholomew: “Q. This wasn’t something that he had a choice in terms of moving from area
superintendent to equipment and facilities superintendent. Correct? A. Correct. Q. He had to do
whatever he was told to do in terms of the transfer. Correct? A. Correct.”). The dissent notwithstanding,
the facts here do not present a “voluntary application,” but rather an involuntary transfer.
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 4
Thereafter, Deleon’s first evaluation indicated that his performance was
“acceptable in most critical areas but [was] not sufficiently above minimum satisfactory
level in all areas.” R. 55-5, Ex. 8. Bartholomew thanked Deleon for his hard work, but
identified technology as an area in which he could improve. Deleon, who was unhappy
in his new position, inquired as to why he “had been involuntarily moved from a position
where he was performing well to one that was more hazardous.” R.64 Ex.1, p. 61.
Bartholomew stated that Deleon had no choice but to accept the transfer. R. 64-1 at
110-11. Deleon asserts that the transfer was a deliberate attempt to set him up to fail.
Bartholomew asked Deleon to write a memorandum about the redesign of a
truck. However, Deleon disagreed in principle with the strategy, and was summoned
into Bartholomew’s office. Deleon testified as to having a fractious meeting with
Bartholomew. Four days after the meeting, Deleon was hospitalized for five days. He
attributes the hospitalization to a work-induced, stress-related mental breakdown, for
which he took eight months’ leave under the FMLA. In August 2011, Deleon’s
psychiatrist cleared him to return to work, but, at that point, the Commission had
terminated him. According to the Commission, Deleon had exhausted all of his
available leave.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo. City
Management Corp. v. United States Chem. Co., 43 F.3d 244 (6th Cir. 1994). Summary
judgment is appropriate only if the pleadings, depositions, answers to interrogatories and
admissions, together with the affidavits, show there is no genuine issue of material fact
and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P.
56(A); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008). The burden is on the
moving party to show that no genuine issue of material fact exists. FED. R. CIV. P.
56(C)(1); Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005). The facts,
and the inferences drawn from them, must be viewed in the light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The
question is “whether the evidence presents a sufficient disagreement to require
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 5
submission to the jury or whether it is so one-sided that one party must prevail as a
matter of law. Id. at 251-52.
III. ANALYSIS
A. Qualitative Intolerability
Deleon brings claims of: (1) a violation of the Equal Protection Clause of the
Fourteenth Amendment, predicated under 42 U.S.C. §1983; (2) race discrimination in
violation of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.; (3) national origin
discrimination in violation of the same; and (4) age discrimination in violation of the
Age Discrimination in Employment Act (“ADEA”). The elements for establishing an
Equal Protection claim under § 1983 and the elements for establishing a violation of
Title VII disparate treatment claim are the same. Lautermilch v. Findlay City Schs., 314
F. 3d 271, 275 (6th Cir. 2003); Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988).
Similarly, “[t]o state a claim under the Equal Protection Clause, a § 1983 plaintiff must
allege that a state actor intentionally discriminated against the plaintiff because of
membership in a protected class.” Henry v. Metro. Sewer Dist., 922 F.2d 332, 241 (6th
Cir. 1990) (internal quotations omitted). Title VII prohibits employers from
discriminating against individuals on the basis of both race and national origin. 42
U.S.C. §2000e-2(a)(1); Davis v. Cintas Corp., 717 F.3d 476 495 (6th Cir. 2013). To
establish a prima facie case of intentional discrimination, a plaintiff must show that (1)
he was a member of a protected class, (2) he suffered an adverse employment action, (3)
he was otherwise qualified for the position, and (4) he was replaced by someone outside
the protected class or treated differently than a similarly situated, non-protected
employee. Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006) (citation
omitted).
The ADEA generally prohibits employers from discriminating by failing or
refusing to hire, discharging, or discriminating against an individual “with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011)
(quoting 29 U.S.C. § 623 (a)(1)). Generally, discrimination claims brought under Title
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 6
VII and the ADEA are analyzed under the same framework. See Policastro v. Northwest
Airlines, Inc., 297 F.3d 535, 538 (6th Cir. 2002). To establish a prima facie case for age
discrimination under the ADEA, a plaintiff must show that (1) he was a member of the
projected class, i.e., 40 years old or older, (2) he suffered an adverse employment action,
(3) he was otherwise qualified for the position, and (4) he was replaced by a substantially
younger employee, or additional evidence shows that the employer was motivated by
age. Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998).
Importantly, all three causes of action require that the aggrieved plaintiff show
that he suffered an adverse employment action. An adverse employment action has been
defined as a “materially adverse change in the terms and conditions of a plaintiff’s
employment.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir.
2004) (en banc) (citation omitted). A “mere inconvenience or an alteration of job
responsibilities” is not enough to constitute an adverse employment action. Id. at 797
(citing Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 885-87). The Commission, and
indeed the district court, relied on the proposition that “[r]eassignments without changes
in salary, benefits, title, or work hours usually do not constitute adverse employment
actions.” Kocsis, 97 F.3d at 885. Nevertheless, a reassignment without salary or work
hour changes, however, may be an adverse employment action if it constitutes a
demotion evidenced by a “less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices that might be unique
to a particular situation.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795
(6th Cir. 2004), aff’d sub nom. Burlington N. & Santa Fe Ry. Co., 548 U.S. 53 (2006)
(emphasis added).
The Supreme Court addressed the issue at length in Burlington Northern.
548 U.S. 53 (2006). As in the instant case, the matter involved a transfer from one
employment unit to another without a change in “salary benefits, title, or work hours.”
Burlington N., 364 F.3d at 797. The Court held that “[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,
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 7
considering ‘all the circumstances.’” Burlington N., 548 U.S. at 71. 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).
Even still, our Circuit has not foreclosed the possibility that a transfer not rising
to the level of a constructive discharge might nonetheless constitute a tangible
employment action. See, e.g., Keeton v. Flying J, Inc., 429, F.3d 259, 265 (6th Cir.
2005); Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999). In those cases, the focus
narrows to whether there are “other indices that might be unique to the particular
situation” which could turn what would ordinarily not be an adverse employment action
into one. Id. At a minimum, the employee must be able to show a quantitative or
qualitative change in the terms of the conditions of employment. See Patt v. Family
Health Sys., Inc., 280 F.3d 749, 753 (7th Cir. 2002).
The 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. Again, Burlington Northern is instructive. There, the Supreme
Court granted a writ of certiorari after we issued an en banc opinion. The plaintiff-
respondent was the only woman working at the Burlington Northern & Santa Fe Railway
Company. Burlington N., 548 U.S. at 58. Though she was initially staffed as a “track
laborer,” she was later transferred to operate a forklift. Id. She was subsequently
removed from forklift duty and was reassigned to perform track laborer tasks. Id. A
supervisor opined that, “in fairness, a more senior man should have the less arduous and
cleaner job of forklift operator.” Id. (quotations omitted). The plaintiff filed a complaint
with the EEOC, and later federal court, contending that the reassignment of her duties
amounted to unlawful gender-based discrimination. Id. In determining whether the
plaintiff had suffered a materially adverse employment action, the Supreme Court relied
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 8
on the “considerable evidence” that the new position was “more arduous and dirtier,”
id. at 71, despite the lack of a diminution in salary, benefits, or title. On this basis, the
Supreme Court held that a “jury could reasonably conclude that the reassignment would
have been materially adverse to a reasonable employee.” Id. In the same vein, this
Court has also held that, where an employee is transferred to “some wretched
backwater,” a showing of adverse action is supplied on the basis of intolerability. Mattei
v. Mattei, 126 F.3d 794, 808 (6th Cir. 1997).
Accordingly, insofar as we assess the level of intolerability, we conclude that
Deleon has met his threshold at the summary judgment stage. Reminded that we must
view the evidence in the light most favorable to the plaintiff, we conclude that Deleon
has alleged an actionable claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Deleon provided evidence that he was exposed to toxic and hazardous diesel
fumes on a daily basis. R. 64, Ex.1, pp. 230-233. He testified further that he had to wipe
soot out of his office on a weekly basis. Id. at 231. As a result, Deleon claims that he
contracted bronchitis, had frequent sinus headaches, and would occasionally blow black
soot out of his nostrils. Id. at 231. The work conditions were corroborated by another
employee, Timothy Landrum, who compared the air quality in the position to “sticking
your head in an exhaust pipe,” and sitting “behind a city bus.” R. 64, Ex. 8, p. 31.
Deleon avers that his previous position never exposed him to the level of hazard
presented by the new position. R. 64, Ex. 1, p. 230. The testimony presents sufficient
indication that the work environment was objectively intolerable. Kocsis, 97 F.3d at
886. Accordingly, we conclude that “the evidence presents a sufficient disagreement,”
Anderson, 477 U.S. at 251-52, as to whether the transfer was materially adverse to a
reasonable person, especially in light of the factual similarities between the instant case
and Burlington Northern. Here too there is evidence for the jury to consider that the new
position was “more arduous and dirtier.” Burlington N., 548 U.S. at 71.
B. Application for the Position
We must also address the issue that Deleon applied for the position before being
“involuntarily” transferred. Semantically, the argument follows that an action cannot be
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 9
truly “adverse” if coveted by its actor. No case within this circuit has ruled on this
precise issue. Nevertheless, our sister circuits have held that the request of a transfer,
and accession to the new position, does not categorically bar a finding of an adverse
employment action. See, e.g., Richardson v. New York State Dep't of Correctional
Services, 180 F.3d 426, 444 n.4 (2d Cir. 1999) (finding sufficient evidence to support a
conclusion that a transfer requested by plaintiff constituted an adverse employment
action where there was evidence that another, more desirable, lateral job opening for
which plaintiff was qualified may have existed but was not offered to the plaintiff);
Sharp v. City of Houston, 164 F.3d 923, 934 (5th Cir. 1999) (reversing grant of summary
judgment where “[t]he jury could have found that the transfer, albeit at Sharp’s request,
was a constructive demotion, the involuntary result of conditions so intolerable that a
reasonable person would feel compelled to leave”); see also Huck v. Belknap, 2:06-CV-
1088, 2008 WL 2247069 at *6 (S.D. Ohio May 29, 2008) (“The fact that Huck once
applied for the job to which she was transferred does not as a matter of law mean that she
wanted it at the time of her involuntary transfer and that it cannot be a materially adverse
action”); cf. Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876-78 (7th Cir. 1999)
(holding that voluntary transfer was not an adverse employment action where the work
environment was not intolerable and assessing voluntariness under “constructive
discharge” analysis). Accordingly, we conclude that under certain circumstances, a
voluntary or requested transfer may still give rise to an adverse employment action.2
The record reflects that Deleon applied for the position with the intention of
commanding a substantial raise and under the impression that employment benefits
would inure to the benefit of his career. Such a request for “hazard pay,” which was
never provided, tilts the issue as to whether Deleon really requested or wanted the
position in his favor. Nor are we persuaded by the fact that Deleon technically never
withdrew his request, and did not complain at the time he received the transfer.
Although Deleon did not testify that he specifically told a superior that he did not “like”
his new job, he did testify that he approached his supervisors and asked them “why they
2
See note 1, supra.
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 10
took me out of a job [where] I was doing a good job and put me in a more hazardous
job.” R. 64, p. 61. This supports Deleon’s argument that he was “set up to fail.”3 We
are leery of a holding that would require that an involuntarily transferred employee,
alleging a discriminatory work environment, must demand a transfer from the very
superiors engaging in the discrimination.
We emphasize that the key focus of the inquiry should not be whether the lateral
transfer was requested or not requested, or whether the aggrieved plaintiff must ex
tempore voice dissatisfaction, but whether the “conditions of the transfer” would have
been “objectively intolerable to a reasonable person.” Strouss v. Michigan Dep’t of
Corr., 250 F.3d 336, 343 (6th Cir. 2001) (citation omitted). Indeed, an employee’s
opinion of the transfer, whether positive or negative, has no dispositive bearing on an
employment actions classification as “adverse.” See Sanchez v. Denver Pub. Sch., 164
F.3d 527, 532 n.6 (10th Cir. 1998); Doe v. Dekalb County Sch. Dist., 145 F.3d 1441,
1449–50 (11th Cir. 1998). Removing the issue of material fact on the grounds that, as
a matter of law, the plaintiff’s initial request to obtain the position precludes him from
a finding that he suffered a materially adverse employment action would, in our
judgment, be improper. On that basis, and for the other foregoing reasons, we
REVERSE the order of the District Court, and REMAND for further proceedings.
3
Deleon’s assertion that he was “set up to fail” finds support in the case law as well. See Ford
v. Gen. Motors Corp., 305 F.3d 545, 554 (6th Cir. 2002); accord DiIenno v. Goodwill Indus. of Mid-
Eastern Pennsylvania, 162 F.3d 235 (3d Cir. 1998) (court erred in granting summary judgment where an
employee alleged that she was transferred to a job that her employer knew she could not perform).
Considering the volume of testimony at Deleon’s deposition detailing the nature and extent of the racially-
charged atmosphere at the Commission, in passing, we observe that it is plausible that Deleon was “set up
to fail.”
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 11
__________________
DISSENT
__________________
SUTTON, Circuit Judge, dissenting. When an employee voluntarily applies for,
and obtains, a job transfer, his employer has not subjected him to an adverse employment
action.
Robert Deleon applied for a transfer to the equipment and facilities
superintendent position, no strings attached. When the Road Commission posted the
position, Deleon (then an area superintendent) saw an opportunity for advancement and
applied. R.55-4 at 1–3, 5–6; R.64 at 19 (Tr. at 75). He applied with full knowledge of
the transfer’s potential downside. As to diesel fumes: The job description warned that
the position involved “exposure to loud noises and diesel fumes,” R.55-4 at 1–3,
something he had seen firsthand and had ideas for mitigating. R.64 at 19 (Tr. at 75–76).
As to the additional responsibilities: Deleon understood he would need to learn new
skills on the job. R.64 at 13, 17, 30 (Tr. at 46, 62, 138, 140). Yes, his application
included a request for a higher salary and an additional employee. But he kept his
application active and interviewed for the position after his supervisors told him that the
job would not come with a raise or another employee. R.55-3 at 6–8; R.64 at 30 (Tr. at
138–39). After the Commission offered the job to an external candidate, Deleon
complained to his supervisors about not getting the job. R.55-1 at 8–9 (Tr. at 42,
44–49); R.64 at 36 (Tr. at 224). When the initial hire resigned for personal reasons and
a second external candidate turned down the job, the Commission gave Deleon the job.
R.55-3 at 11–13; R.64 at 37 (Tr. at 229). In recounting the facts, the majority offers
hints to the contrary—that Deleon somehow did not seek out the job, Maj. at 2, 3 and
10—but they all turn on citations to Deleon’s appellate brief, not the summary judgment
record.
The Commission’s decision to give Deleon what he wanted, what he persisted
in seeking when at first he did not succeed, did not amount to an adverse employment
action, much less a retaliatory one. Deleon voluntarily applied for the job with full
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 12
knowledge of its pros and cons, making it difficult to fathom how he could premise a
claim of retaliation on the transfer alone. A retaliation claim requires the employer to
do something bad to the employee—something that might “have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). That concept cannot be bent and stretched
to cover an employer’s decision to grant an employee’s request for a transfer. No
reasonable employee in Deleon’s position would have interpreted the transfer as an act
designed to prevent him from exercising his rights against anti-discrimination.
In this setting, it adds nothing to the claim that the soot and diesel fumes in
Deleon’s new office were unpleasant or difficult to deal with. Deleon applied for the job
with full knowledge of the conditions—and indeed complained when he did not initially
get the job. An adverse employment action requires conduct by the employer that would
hinder a reasonable employee from complaining about discrimination. How could a
reasonable employee interpret the granting of a sought-after transfer as a warning not to
complain about this or that conduct of the employer? The answer escapes me.
The same goes for the description of the transfer by one of Deleon’s supervisors
as a situation where Deleon “had to do whatever he was told.” R.64-1 at 18 (Tr. at
110–11). Relying on this description—one Deleon references indirectly for the first time
in his reply brief on appeal and never referenced below in his summary judgment
briefs—the majority alternatively calls Deleon’s transfer an “involuntary” one in a
footnote. Maj. at 3 n.1. But why? The record makes clear that Deleon never
complained about the transfer—he sought it out—and his supervisors never told him that
he had no choice in the matter. As Deleon admits, he “didn’t tell anybody” that he did
not want the transfer. R.64 at 16 (Tr. at 61); R.64-1 at 18 (Tr. at 110); R.64-2 at 11 (Tr.
at 89). That the Commission might have transferred Deleon even if he had objected to
it does not change, cannot change, the outcome of a retaliation lawsuit. No reasonable
employee could interpret a transfer as an attempt to punish him for exercising his anti-
discrimination rights when he gave his employer no reason to believe that he did not
want the transfer and every reason to believe that he did. To repeat: When an employee
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 13
voluntarily applies for, and obtains, a job transfer, his employer has not subjected him
to an adverse employment action.
The majority worries that, by focusing on Deleon’s circumstances, the court will
transform an objective test into a subjective one. No need to worry. The materially
adverse inquiry asks whether a “reasonable person in the plaintiff’s position” would
forgo filing a complaint of discrimination because of the employment action. Id. at
69–70 (emphasis added). The inquiry remains objective. The answer to the question
simply must concern the facts at hand.
No case to my knowledge holds that granting a sought-after transfer by itself
amounts to an adverse employment action. The majority’s case citations say nothing to
the contrary. They instead stand for these uncontroversial propositions. An employee
may recover for a requested transfer when the employee “believed the change was
necessary in order to keep her job.” Spees v. James Marine, Inc., 617 F.3d 380, 387 (6th
Cir. 2010); see Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1312
(11th Cir. 2007). That of course is not a voluntary request for a transfer. The same goes
for an employee who applies for a transfer seeking refuge from discriminatory conditions
in his current position. Compare Sharp v. City of Houston, 164 F.3d 923, 934 (5th Cir.
1999) (holding that a requested transfer could be an adverse employment action because
the plaintiff’s co-workers “caused her reasonably to fear for her safety if she stayed”),
with Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876 (7th Cir. 1999) (reaching
the opposite conclusion where plaintiff voluntarily “sought her downgrade”).
Whatever the correct interpretation of the employment retaliation laws may be,
they surely stop at this line: imposing liability on employers whether they grant or deny
an employee’s request for a transfer. All would agree that today’s case is the harder
one—where the employee got what he wanted—and yet, according to the majority, he
still has a cognizable claim. It follows under the majority’s analysis that, when the
employer denies what the employee wants, he also has a cognizable claim. See Taylor
v. Geithner, 703 F.3d 328, 338 (6th Cir. 2013) (finding that a plaintiff’s allegation that
“she applied for and was rejected” from a position was “plainly an adverse employment
No. 12-2377 Deleon, et al. v. Kalamazoo Cnty. Road Comm’n, et al. Page 14
action”). 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. Even after plumbing the depths of logic, experience, case law and common
sense, I must return to this surface point: When an employee voluntarily applies for, and
obtains, a job transfer, his employer has not subjected him to an adverse employment
action.
The majority seeing it differently, I must respectfully dissent.