What if you request a lateral transfer from your employer, and actually get it nine months later. Can you still bring suit for a discrimination claim? According to a federal court decision handed down last week (Deleon, et. al. v. Kalamazoo County Road Commission, et.al 6th Cir, January 14, 2014), the answer, believe it or not, is yes.
The plaintiff, Robert Deleon, a 53 year old Hispanic man, worked as an "area superintendent" for the Kalamazoo County Road Commission, and had been employed for 28 years. He supervised road maintenance activities and road crews. He received good reviews throughout his time in that position, but he alleged that there was a pervasive atmosphere of racial insensitivity and that he was the subject of racially derogatory comments.
Deleon applied for a new position as Equipment and Facilities superintendent in November 2008, but was rejected, and the position was filled by another candidate, who left shortly thereafter. Another person was offered the job, but he declined. In 2009, Deleon was involuntarily transferred to the position had had applied for 9 months earlier. He was not given the option to remain in his old position, because, according to his employer, the transfer was part of a larger "reorganization".
Deleon requested a raise, mainly because of the hazardous conditions to which he was subjected, which included constant exposure to diesel fumes. He asserted that as a result he developed bronchitis, a cough, and sinus headaches. He claimed that the transfer was a deliberate attempt to set him up for failure. In 2011 he was hospitalized, and when he recovered, he was fired.
The employer filed a motion for the case to be thrown out since Deleon had been assigned to a position that he had initially requested for which there was no change in salary, benefits, title, or work hours. A lower court did throw out the case, but the Court of Appeals reversed. The latter court ruled that the key focus should not be whether the transfer was requested, but rather whether the conditions of the transfer would have been "objectively intolerable to a reasonable person".
Transfers made by employers, even if requested by the employee, can be made with ulterior motives that may be a result of discrimination. Be aware!