Brain Teaser: When Is Granting A Request For Transfer Also An Adverse Employment Action?
By David S. Fried
Here's an easy one for you HR folks: if an employee requestsa transfer to a new position, and then is transferred to that position, can the employee later complain that the transfer constituted an "adverse employment action"? If you answered "no" . . . then you're wrong. Or so the Sixth Circuit recently held in DeLeon v. Kalamazoo County Road Commission.
Okay, in fairness, the question omitted some details. In DeLeon, the employee applied for the transfer one year before he actually received it. He alleged that the employer, which originally denied his transfer application for lack of qualifications, later granted the transfer only to "set him up for failure." The transfer, when made, was involuntarily; it was undisputed that the employee "had no choice but to accept the transfer."And the new position was, umm, less than desirable in certain respects. As the Sixth Circuit described it:
[The employee] provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis. He testified further that he had to wipe soot out of his office on a weekly basis. As a result, [he] claims that he contracted bronchitis, had frequent sinus headaches, and would occasionally blow black soot out of his nostrils. The work conditions were corroborated by another employee . . . who compared the air quality in the position to "sticking your head in an exhaust pipe," and sitting "behind a city bus."
Faced with these facts, the Sixth Circuit declined to create a bright line rule barring claims based on previously-requested transfers. It held that "the request of a transfer, and accession to the new position, does not categorically bar a finding of an adverse employment action." Rather, the court held, "under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action." Such circumstances include, apparently, transfer to a position that involves working conditions akin to "sticking your head in an exhaust pipe," and sitting "behind a city bus." What else qualifies remains to be seen…
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