Importantly, all three causes
of action [brought by the plaintiff] 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.”
In White v. Burlington Northern & Santa Fe
Railway Co., 548 U.S. 53, 71 (2006),
the Supreme Court had 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, considering ‘all the circumstances.’”
While the Sixth Circuit has previously recognized that a lateral
transfer could constitute an adverse employment action when the working conditions
became so objectively intolerable that it constituted a constructive discharge,
the Court “has not foreclosed the possibility that a transfer not rising to the
level of a constructive discharge might nonetheless constitute a tangible employment
action.” In particular, “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.”
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 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. . . . . . Accordingly, we conclude
that under certain circumstances, a voluntary or requested transfer may still
give rise to an adverse employment action.
The Court’s majority
was partially influenced by the fact that the plaintiff did not receive his requested
salary increase as “hazard pay.” They
also found irrelevant the fact that he did not initially object to the transfer
and never withdrew his request to transfer into the position. “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.” . . . Indeed, an employee’s opinion of the transfer,
whether positive or negative, has no dispositive bearing on an employment
actions classification as “adverse.”
The dissent noted simply that
“[w]hen an employee voluntarily applies for, and obtains, a job transfer, his
employer has not subjected him to an adverse employment action.”
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.
. . .
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.
. . .
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. . . . 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.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
