In today’s orders, Justice Alito dissents from the denial of certiorari from a 6th Circuit 1983 decision by Judge Keith, over a dissent from Judge Sutton. Judge Sutton’s dissent aptly summarizes the issue:
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.
The majority seeing it differently, I must respectfully dissent.
Justice Alito put agreed the issue was terribly wrongly decided.
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.
Alito also praised Judge Sutton’s opinion:
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.
He even calls the decision “unprecedented”:
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
As an aside, I think the Alito clerks added this unnecessary footnote to get the phrase “lack of consortium” into the U.S. Reports.
His wife, Mae Deleon, sued for lack of consortium and is also a re- spondent here.