- change ups
Court clears path for discrimination claim
A road worker in the region who suffered from stress and exposure to soot and diesel fumes can sue his former employer — even though he had sought the job that gave him fits just months earlier.
Robert Deleon was passed over as equipment superintendent before the Kalamazoo County Road Commission put him in the job in 2009 when others bowed out.
He lasted less than a year due to tension with his superiors and health problems. Deleon went on a medical leave in 2010 and didn't return to work.
In a 2-1 decision, the 6th U.S. Circuit Court of Appeals said Deleon, who is Hispanic, can pursue a claim of discrimination.
Judge Damon Keith said it's plausible that Deleon was set up to fail, and it makes no difference that he had formerly applied for the job, which carried warnings about noise and fumes.
"No case within this circuit has ruled on this precise issue," Keith said last week in an opinion joined by Judge Timothy Black.
Deleon said he was repeatedly blowing black soot from his nostrils and regularly wiping it out of his garage office. He had bronchitis and headaches.
"The testimony presents sufficient indication that the work environment was objectively intolerable," the court said.
A message seeking comment was left with the road commission's attorney Monday.
In a dissent, Judge Jeffrey Sutton said the decision will cause confusion about workplace law in Michigan, Ohio, Tennessee and Kentucky, the states covered by the 6th Circuit.
"Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action," Sutton said.
The case now returns to a Kalamazoo federal judge who had ruled in favor of the road commission.
Deborah Gordon, a Detroit-area lawyer who specializes in workplace law, said the decision grants a "wider view" of what's an "adverse action" at work.
"The facts here are unusual,” said Gordon, who's not involved in the case. “Yes, he asked for the job, but he asked nine months earlier and didn't get it. This wasn't an easy, breezy move down the hall. It was a significant job change to a very, very unpleasant job."