Deleon et al. v. Kalamazoo County Road Commission et al.

Decision: The Sixth Circuit Court of Appeals recently held that transferring an employee can constitute an adverse employment action, even if the transfer does not involve a demotion or pay decrease and regardless of whether the employee had requested the transfer, as long as the work environment was “objectively intolerable.” The plaintiff, Robert Deleon, was a Kalamazoo County Road Commission employee who, in 2008, applied for a transfer to the Equipment and Facilities Superintendent position. The job description for that position described the working conditions as “primarily in office … and in garage where there is exposure to loud noises and diesel fumes.” Deleon requested that, if he received the position, the Commission give him a $10,000 raise. Deleon did not receive the position initially, but, after two other candidates declined the employer’s offer to work in the position, the Commission involuntarily transferred Deleon into it as part of a larger restructuring but did not raise his pay.

Deleon claimed that he was exposed to toxic and hazardous diesel fumes on a daily basis in his new position, had to wipe soot out his office on a weekly basis, contracted bronchitis and had frequent sinus headaches. Due to these conditions, he was hospitalized for five days and then took an eight-month leave of absence. When he was cleared to return to work, the Commission had terminated his employment because he had exhausted all of his available leave.

Deleon alleged race and age discrimination, both of which required him to show that he suffered an adverse employment action. The Sixth Circuit found that the transfer was an adverse employment action, even though there was no demotion or pay decrease involved, because the particular circumstances gave rise to “some level of objective intolerability.” The court further held that Deleon’s initial request to be placed in the position did not preclude a finding that the transfer was an adverse employment action; rather, that the test was whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”

Impact: The Sixth Circuit’s holding unfortunately leaves employers in a situation where they could face liability not only when they refuse to transfer an employee but also when they do actually transfer an employee. Employers, at least in the Sixth Circuit (which covers Kentucky, Michigan, Ohio and Tennessee), should ensure that they objectively evaluate all employee transfer requests—voluntary and involuntary—and consult counsel in any situation where the particular circumstances might give rise to a claim that the employee was subjected to an adverse employment action.