throbber
1
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` Cite as: 574 U. S. ____ (2015)
`
`ALITO, J., dissenting
`
`SUPREME COURT OF THE UNITED STATES
`
` KALAMAZOO COUNTY ROAD COMMISSION, ET AL.,
`
`PETITIONERS v. ROBERT DELEON, ET UX.
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
`
`
` No. 13–1516 Decided January 12, 2015
`
`The petition for a writ of certiorari is denied.
`JUSTICE ALITO, dissenting from denial of certiorari.
`
`
`Certiorari is appropriate when “a United States court of
`appeals . . . has so far departed from the accepted and
`usual course of judicial proceedings . . . as to call for an
`exercise of this Court’s supervisory power.” Supreme
`Court Rule 10(a). The decision of the Sixth Circuit in this
`case—holding that respondent suffered an adverse em-
`ployment action when his employer transferred him to a
`position for which he had applied—qualifies for review
`under that standard.
`Indeed, the holding of the court
`below is so clearly wrong that summary reversal is war-
`ranted. The strangeness of the Court of Appeals’ holding
`may lead this Court to believe that the holding is unlikely
`to figure in future cases, but the decision, if left undis-
`turbed, will stand as a binding precedent within the Sixth
`Circuit. I would grant review and correct the Sixth Cir-
`cuit’s obvious error.
`
`An old maxim warns: Be careful what you wish for; you
`
`might receive it. In the Sixth Circuit, however, employees
`
`need not be careful what they ask for because, if their
`
`request is granted and they encounter buyer’s regret, they
`can sue.
`
`After working at the Kalamazoo County Road Commis-
`sion (Commission) for 25 years, respondent Robert Deleon
`applied for a position as an equipment and facilities super-
`intendent. The job posting specified that the position
`
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`

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` KALAMAZOO COUNTY ROAD COMM’N v. DELEON
`
`ALITO, J., dissenting
`
`required work “primarily in office conditions and in a
`
`garage where there is exposure to loud noises and diesel
`fumes.” Record 465. Respondent discussed the position
`with his supervisors and decided to interview for the job.
`When the Commission selected another candidate, re-
`spondent evinced displeasure and questioned a supervisor
`about the reasons why he was not selected.
`
`A few weeks later, the candidate who was initially
`selected told supervisors that he was no longer interested
`in the job, and the supervisors then transferred respond-
`ent to the position.
`
`Respondent worked in the new position from August
`2009 until May 2010, when he had a conflict with his
`
`supervisor. Shortly thereafter, he took a medical leave
`
`and never returned to work.
`
`Respondent filed this lawsuit and alleged, as relevant
`
`here, that the Commission had discriminated against him
`on account of his race, national origin, and age, in viola-
`tion of the Equal Protection Clause, Title VII of the Civil
`Rights Act of 1964, and the Age Discrimination in Em-
`ployment Act of 1967.1 The District Court, however,
`granted the Commission’s motion for summary judgment
`because respondent could not show that he had suffered
`an adverse employment action. Respondent’s transfer was
`a lateral move that resulted in no diminution of salary,
`benefits, prestige, or responsibility, and he had applied for
`the position with full knowledge of what it entailed, in-
`cluding exposure to diesel fumes. Furthermore, the Dis-
`trict Court explained that “[t]he record contains no evi-
`dence that [respondent] ever declined, or attempted to
`decline, the transfer . . . [or] ever protested or complained
`about [it].” No. 1:11–cv–539 (WD Mich., Sept. 18, 2012),
`pp. 15–16. The Sixth Circuit reversed, holding that a
`——————
`1His wife, Mae Deleon, sued for lack of consortium and is also a re-
`spondent here.
`
`
`
`
`
`
`
`2
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`
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`

`
`3
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`Cite as: 574 U. S. ____ (2015)
`
`
`ALITO, J., dissenting
`
`“plaintiff ’s initial request” for a transfer does not “pre-
`clud[e] him from a finding that he suffered a materially
`adverse employment action” when he later receives that
`transfer. 739 F. 3d 914, 921 (2014).
`
`Judge Sutton dissented. The dissent noted that re-
`spondent applied for the transfer with full knowledge of
`what it involved, including the presence of diesel fumes in
`the workplace, ibid., and that respondent persisted in
`seeking the job after he initially did not receive it, id., at
`
`922. The dissent rejected the majority’s suggestion that
`
`the transfer was “‘involuntary’” because respondent ad-
`mitted that no one told him that he had to take the trans-
`
`
`fer and neither did he tell anyone that he did not want it.
`Ibid. Because respondent gave the Commission “no rea-
`son to believe that he did not want the transfer and every
`reason to believe that he did,” the dissent concluded that
`the Commission did not subject respondent to an adverse
`employment action. Ibid.
`
`The dissent’s commonsense conclusion was correct.
`Under all of the antidiscrimination provisions upon which
`
`respondent relies, he was required to show that he suf-
`
`fered an adverse employment action. That concept means,
`
`at a minimum, “an injury or harm” that “a reasonable
`employee would have found . . . materially adverse,” see
`Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 67–68
`
`(2006), and respondent did not meet that standard here.2
`
`Respondent gave every indication that he wanted the
`position to which he was transferred. He applied for it.
`He spoke to his supervisors about it, and even when they
`told him that some of his preferences would not be met—
`he would not receive an assistant, and he would continue
`——————
` 2Burlington concerned the standard under Title VII’s antiretaliation
`
`
`provision, 42 U. S. C. §2000e–3, and that standard is broader than the
`ordinary discrimination standard, 548 U. S., at 64–65. But since
`respondent cannot satisfy the antiretaliation standard, it follows a
`fortiori that he cannot satisfy the discrimination standard as well.
`
`
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`

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`
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` KALAMAZOO COUNTY ROAD COMM’N v. DELEON
`
`ALITO, J., dissenting
`
`to be part of the on-call duty rotation—he continued to
`
`pursue his application. He interviewed for the position.
`And then, when he initially did not receive the transfer he
`sought, he followed up with his supervisors to ask why
`they had not chosen him. It is of course conceivable that
`respondent had changed his mind and no longer wanted
`the job, but if by the time of his transfer that was so, he
`
`gave no objective indication of that fact. Respondent’s
`
`supervisors did not violate federal law by granting him
`
`the transfer that he sought and that they had no reason to
`
`believe he did not want.
`
`Despite the fact that respondent willingly applied for
`
`and never objected to the transfer, the Sixth Circuit held
`that receiving it was an adverse employment action. The
`court gave three reasons for this surprising conclusion.
`
`The court first relied on the fact that respondent “ap-
`plied for the position with the intention of commanding a
`substantial raise and under the impression that employ-
`ment benefits would inure to the benefit of his career.”
`739 F. 3d, at 920; see also id., at 916. But if respondent
`was unwilling to accept the position without a raise, no
`one knew it. In fact, when asked why he did not withdraw
`his application when he learned that he would not receive
`a higher salary, respondent replied that he “figured [he]
`could make some changes over there.” Record 521. In
`other words, respondent voluntarily applied for the job
`knowing full well what it did—and did not—involve.
`
`Second, the court stressed that respondent “was exposed
`to toxic and hazardous diesel fumes on a daily basis,” and
`the court deemed this to be a “sufficient indication that
`
`the work environment was objectively intolerable” and
`therefore “materially adverse to a reasonable person.” 739
`F. 3d, at 919–920. But again, respondent applied for the
`position even though he knew that the job required work-
`ing “‘in [a] garage where there is exposure to loud noises
`and diesel fumes.’” Id., at 916. By applying for the posi-
`
`4
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`

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` Cite as: 574 U. S. ____ (2015)
`
`
`ALITO, J., dissenting
`tion, respondent gave every indication that he was willing
`to work in those conditions, and respondent’s supervisors
`should not be faulted for taking him at his word. It is
`important to keep in mind that respondent does not claim
`that he suffered an adverse employment action based on
`the denial of a request to be transferred back out of the
`garage, and there is no evidence that he made such a
`request. And although the Sixth Circuit characterized the
`fumes in the garage as “toxic,” respondent is not asserting
`a claim under a provision governing workplace safety.
`
`
`
`Third, the court below said that respondent’s transfer
`was “involuntary” because once he was transferred he had
`to take the position. Id., at 916, n. 1. That fact does not
`make the transfer adverse. Respondent applied for the
`
`job, and he maintained his interest months into the hiring
`process, when another candidate received the initial offer.
`
`It is telling that respondent “never withdrew his request”
`to be transferred “and did not complain at the time he
`
`received the transfer.” Id., at 920.
`
`The decision of the court below is unprecedented and
`clearly contrary to the statutes on which respondent’s
`claims are based. I would grant the petition for certiorari
`and summarily reverse.
`
`
`
`
`
`5

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