739 F.3d 914 (6th Cir. 2014), 12-2377, Deleon v. Kalamazoo County Road Com'n

Docket Nº:12-2377.
Citation:739 F.3d 914
Opinion Judge:DAMON J. KEITH, Circuit Judge.
Party Name:Robert DELEON and Mae Deleon, Plaintiffs-Appellants, v. KALAMAZOO COUNTY ROAD COMMISSION; Travis Bartholomew and Joanna Johnson, in their official and individual capacities, Defendants-Appellees.
Attorney:Lennox Emanuel, The National Law Group, P.C., Detroit, Michigan, for Appellants. Thomas H. Derderian, Michael R. Kluck & Assoc., Okemos, Michigan, for Appellees. Lennox Emanuel, The National Law Group, P.C., Detroit, Michigan, for Appellants. Thomas H. Derderian, Michael R. Kluck & Assoc., Okemos...
Judge Panel:Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge. [*] KEITH, J., delivered the opinion of the court, in which BLACK, D.J., joined. SUTTON, J. (pp. 11-14), delivered a separate dissenting opinion. SUTTON, Circuit Judge, dissenting.
Case Date:January 14, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 914

739 F.3d 914 (6th Cir. 2014)

Robert DELEON and Mae Deleon, Plaintiffs-Appellants,

v.

KALAMAZOO COUNTY ROAD COMMISSION; Travis Bartholomew and Joanna Johnson, in their official and individual capacities, Defendants-Appellees.

No. 12-2377.

United States Court of Appeals, Sixth Circuit.

January 14, 2014

Argued: Oct. 8, 2013.

Page 915

ARGUED:

Lennox Emanuel, The National Law Group, P.C., Detroit, Michigan, for Appellants.

Thomas H. Derderian, Michael R. Kluck & Assoc., Okemos, Michigan, for Appellees.

ON BRIEF:

Lennox Emanuel, The National Law Group, P.C., Detroit, Michigan, for Appellants.

Thomas H. Derderian, Michael R. Kluck & Assoc., Okemos, Michigan, for Appellees.

Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge. [*]

KEITH, J., delivered the opinion of the court, in which BLACK, D.J., joined. SUTTON, J. (pp. 11-14), delivered a separate dissenting opinion.

OPINION

DAMON J. KEITH, Circuit Judge.

Robert Deleon (" Deleon" ) appeals the dismissal of certain of his claims from the

Page 916

district court's grant of summary judgment in Defendants' favor. The district court granted Defendants' motion on the basis that Deleon did not suffer an " adverse employment action." Deleon was laterally transferred from one department to another, which he alleges constituted an action giving rise to sustainable claims of discrimination. On appeal, the principal issues before this Court are: (1) whether the conditions were sufficiently intolerable to maintain actionable discrimination claims; and (2) whether the fact that Deleon applied for and interviewed for the position to which he was eventually transferred disqualifies him from showing that the employment action was truly " adverse." For the reasons that follow, we answer in Deleon's favor on both issues. Accordingly, we REVERSE the grant of summary judgment and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

Deleon, a fifty-three year old Hispanic male of Mexican descent, was employed by the Kalamazoo County Road Commission (" the Commission" ) for twenty eight years. Beginning in 1995, Deleon served as an " Area Superintendent" for the Commission. In that capacity, Deleon supervised road maintenance activities, road crews, and oversaw repairs. Deleon generally received positive reviews throughout his time in this position. Deleon alleges a pervasive atmosphere of racial insensitivity and derogatory comments throughout the course of his employment.

While serving as Area Superintendent, Deleon was supervised by Defendants Travis Bartholomew (" Bartholomew" ) and Joanna Johnson (" Johnson" ). In 2008, a vacancy arose for the position of " Equipment and Facilities Superintendent." The job description described the working conditions as " primarily in office [ ] and in garage where there is exposure to loud noises and diesel fumes." R. 55-4, Ex. 5. Deleon applied for this position on November 13, 2008. Had he been offered the position, Deleon attested that he would have demanded a $10,000 salary increase. He also viewed the position as possessing better potential for career advancement.

After an interview, Deleon was informed that he did not receive the position. He admits that his computer skills, which were a substantive qualification for the position, were insufficient. Consequently, the commission hired another candidate who left the position shortly thereafter. The Commission then offered the position to an external candidate; this candidate eventually declined. In 2009, Deleon was involuntarily transferred to the position. 1

According to the Commission, this was part of a larger " reorganization." R. 55-3, Ex. 4. Bartholomew admitted that he and Johnson decided to transfer Deleon. Deleon voiced numerous objections to the hazards posed by the new position. Deleon testified that, in applying for the position, he demanded a raise because of the " hazard posed by diesel fumes and poor ventilation in the equipment and facilities area." Deleon did not receive his requested raise. Another employee corroborated the description of the conditions: " It's a stinky environment. It's like sticking your head in an exhaust pipe. Have you ever sat in traffic behind a city bus? That's

Page 917

what it was like in the maintenance facility ... diesel fumes all the time." R. 64, Ex. 8, p. 31. Deleon stated that it was " an office and enclosed garage facility with running trucks and equipment that resulted in constant exposure to diesel fumes." R. 64, Ex. 1, pp. 230-231. According to this employee, this was the only Area Superintendent position subject to these conditions. Deleon asserts that he developed bronchitis— as well as a cough and sinus headaches due to the diesel fumes— and would blow black soot from his nostrils as a result.

Thereafter, Deleon's first evaluation indicated that his performance was " acceptable in most critical areas but [was] not sufficiently above minimum satisfactory level in all areas." R. 55-5, Ex. 8. Bartholomew thanked Deleon for his hard work, but identified technology as an area in which he could improve. Deleon, who was unhappy in his new position, inquired as to why he " had been involuntarily moved from a position where he was performing well to one that was more hazardous." R.64 Ex. 1, p. 61. Bartholomew stated that Deleon had no choice but to accept the transfer. R. 64-1 at 110-11. Deleon asserts that the transfer was a deliberate attempt to set him up to fail.

Bartholomew asked Deleon to write a memorandum about the redesign of a truck. However, Deleon disagreed in principle with the strategy, and was summoned into Bartholomew's office. Deleon testified as to having a fractious meeting with Bartholomew. Four days after the meeting, Deleon was hospitalized for five days. He attributes the hospitalization to a work-induced, stress-related mental breakdown, for which he took eight months' leave under the FMLA. In August 2011, Deleon's psychiatrist cleared him to return to work, but, at that point, the Commission had terminated him. According to the Commission, Deleon had exhausted all of his available leave.

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. City Management Corp. v. United States Chem. Co., 43 F.3d 244 (6th Cir.1994). Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(A); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.2008). The burden is on the moving party to show that no genuine issue of material fact exists. FED.R.CIV.P. 56(C)(1); Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.2005). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The question is " whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law" . Id. at 251-52, 106 S.Ct. 2505.

III. ANALYSIS

A. Qualitative Intolerability

Deleon brings claims of: (1) a violation of the Equal Protection Clause of the Fourteenth...

To continue reading

FREE SIGN UP