In DeLeon v. Kalamazoo County Road Commission, Case No. 1:11-cv-539, Plaintiffs brought a variety of discrimination claims, including race, national origin, and age discrimination claims under federal law, against the Kalamazoo County Road Commission.  By order dated September 18, 2012, Chief Judge Paul L. Maloney granted summary judgment in favor of the defendants on all claims.

The most interesting portion of the opinion related to the plaintiffs' theory of discrimination.  The plaintiff was transferred from his position as Area Superintendent to Equipment and Facilities Superintendent.  The plaintiff argued that the transfer constituted an "adverse employment action" because the plaintiff was not qualified for the Equipment and Facilities Superintendent position to which he was transferred.  In other words, the plaintiff's theory was that "the transfer merely set him up to fail."

The district court rejected the plaintiff's argument for legal and factual reasons.  The court noted that "Plaintiffs offer no legal authority in support of their novel theory" and did not cite any authorities suggesting that a lateral transfer to a position for which the employee was not qualified can constitute an "adverse employment action."  Second, the court also noted that there was no evidence that the plaintiff ever declined, or attempted to decline, the transfer, that the plaintiff ever protested or complained about the transfer, or that the plaintiff ever asked to be transferred back to his prior position.  Finally, the court noted that the transfer did not result in lower pay or lower benefits, was not less prestigious, and did not result in diminished responsibilities and therefore was not "adverse."