Approximately one year ago, the Sixth Circuit held that an employee suffered an adverse employment action in Deleon v. Kalamazoo Cnty. Rd. Comm'n. The case was a mix of Equal Protection Clause, Title VII, and ADEA claims. What was the adverse employment action? Well, the employer involuntarily transferred the employee to . . . (here's where things get weird) . . . a position that he had previously applied for just a few months earlier, which was a lateral transfer and the employee himself viewed as "possessing better potential for career advancement."
The lone dissenting judge had a different (and colorful) perspective:
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.We'll put you down as a "strong disagree" your honor. Maybe Ohio employment lawyer, Jon Hyman, saw it differently . . . . nope: "There is so much wrong with this opinion that I don’t know where to start."
That brings us to today. The Supreme Court (aka SCOTUS) issued an order denying certiorari in a bajillion cases (rough estimate). But alllll the way down at the bottom we have a surprise opinion from Justice Alito in Deleon:
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 employment 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 warranted. 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. I would grant review and correct the Sixth Circuit’s obvious error . . . .
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.Alas, Justice Alito was the only one.