‘Strange’ Employment Case Sets Off Sam Alito

     WASHINGTON (CN) – The 6th Circuit got an employment-discrimination claim so “clearly wrong” that the Supreme Court should have intervened, Justice Samuel Alito wrote in a stinging dissent Monday.
     “An old maxim warns: Be careful what you wish for; you might receive it,” the Alito dissent states. “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.”
     The case involves an opening with the Kalamazoo County, Mich., Road Commission in late 2008 for an equipment and facilities superintendent.
     Robert Deleon, a 25-year veteran employee for the commission, submitted an application and was disappointed when he was not picked. When the man given the job backed out in 2009, however, Deleon claimed he was involuntarily transferred to the position.
     Deleon allegedly complained about job hazards in the new position and then fought with his supervisor in May 2010.
     He took medical leave four days after this confrontation, and claimed that he was medically cleared to return to work in August 2011.
     The commission had already fired Deleon at this point, however, so he sued it for discrimination.
     A federal judge in Grand Rapids granted the commission summary judgment after concluding that the position transfer did not constitute an adverse employment action.
     The 6th Circuit reversed last year, and, much to Alito’s chagrin, the Supreme Court quietly refused to grant the commission a writ of certiorari Monday.
     “Under all of the antidiscrimination provisions upon which respondent [Deleon] relies, he was required to show that he suffered an adverse employment action,” Alito wrote. “That concept means, at a minimum, ‘an injury or harm’ that ‘a reasonable employee would have found . . . materially adverse,’ and respondent did not meet that standard here.
     “Respondent gave every indication that he wanted the position to which he was transferred,” the dissent continues. “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 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.”
     None of the three issues the 6th Circuit pointed to, in support of its “surprising conclusion” that the commission treated Deleon adversely, hold up, according to the Alito dissent.
     First, Deleon admits that the lack of a raise with the new position was not a deal-breaker.
     Second, Deleon knew about the supposedly toxic-gas exposure that came along with the new position when he applied. Third, Deleon did not complain when he was transferred in 2009 that he was no longer interested in the job.
     “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 undisturbed, will stand as a binding precedent within the Sixth Circuit,” Alito warned.
     Per its custom, the Supreme Court did not comment on why it rejected the commission’s petition for certiorari.

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