And we have an early contender for worst employment-law decision of 2014


That may be sugar coating it a bit.

A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.

That’s right. An employee may have a discrimination claim for receiving the specific transfer he requested.

Here’s what the two-judge majority wrote in this opinion:

[W]e conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action…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.”

Let me stop there for a second to add that the plaintiff in this case testified that he viewed the transfer as improving his potential for career advancement. Still, that didn’t appear to matter much to the Sixth Circuit Court of Appeals:

Indeed, an employee’s opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as “adverse.”

For what it’s worth, one judge did dissent. I’m on board with his reasoning:

Deleon voluntarily applied for the job with full 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.” 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.

And, thankfully, I practice in the Third Circuit Court of Appeals, where the employers I represent are not bound by the majority’s decision here.

For more on this decision, check out Jon Hyman’s post at the Ohio Employer’s Law Blog.

  • Janette Levey Frisch

    Sounds like the court may have been overly concerned with making sure the plaintiff had every opportunity to present his case. For what it’s worth though, the appellate panel held that there was enough to allow him to go forward and ultimately try to prove his discrimination claim. It did not rule that the transfer was in fact discriminatory. If after remand the case goes to trial, it will be interesting to see what a jury does with it.

    • I agree with Janette, the majority does appear to be stretching to ensure the plaintiff gets an opportunity to have a jury hear this case. It will certainly be interesting to see what the jury concludes after “plumbing the depths of logic…and common sense.” (I love that that line! Can’t wait to use it on my teenage daughter!!)

  • Harold Goldner

    I think you have this one wrong, my friend. First of all, what we don’t explain to the non lawyers is that this case went up on Summary Judgment, not after a verdict. The issue isn’t whether he PROVED that the transfer was an adverse employment action, it was whether there was enough evidence to make that a jury question.

    Secondly, the time period between the requested transfer and the actual transfer was several months, during which the employee certainly could have changed his mind (you left out all the negative information about the new position, stacking the deck there a bit).

    Finally, with all such cases, remember the lesson of Burlington Northern v. White (in which the Plaintiff had actually already been reinstated when she sued), which is “we need to consider ALL the circumstances,” not just the ones that make for good headlines.

    • Hi Harold,

      I understand your point on the MSJ. But, I don’t see a dispute of material fact here.

      Unless the position into which the employee was transferred materially changed between the time he requested it, and the time he got the transfer, the time lag between request and transfer is a red herring.

      So that leaves us with a transfer position to which the employee specifically requested. The dissent’s point that the employee knew the pros and cons when he applied for the transfer is spot on. Heck, even the majority recognized that the employee viewed the transfer as improving his potential for career advancement!

      To prevail, the plaintiff has to show that the transfer is objectively intolerable. Based on these facts, I can’t fathom how this transfer — at worst, a lateral move — is an adverse employment action, either objectively or subjectively.

      The Sixth Circuit blew this!


  • Not to gang up on you Eric, but I have to agree with Harold and Janette. I read the 6th Cir. ruling. I’d like to point out that the supervisors who were accused of discrimination in this lawsuit were the one to transfer DeLeon, over his objections about the hazardous conditions of the new position. The new position was described as an office and enclosed garage
    facility with running trucks and equipment that resulted in constant exposure to diesel fumes. This position, which came with “hazard” pay, is hardly considered a plum job assignment. The 6th Cir ruled correctly when they ruled that the fact issue of whether or not the new position was so undesirable as to form the basis for discrimination is a determination best reserved for the jury.