In an order issued Monday (starting on page 27), the Supreme Court denied certiorari in the recent Sixth Circuit case of Kalamazoo County Road Commission v. Deleon. In so doing, the Court allowed the Sixth Circuit’s decision denying summary judgment for the defendant employer to stand. However, Justice Alito authored a strenuous dissent from the denial of certiorari, stating that he would have reviewed and reversed the Sixth Circuit’s decision as being “so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervisory power” under Supreme Court Rule 10(a).
In Deleon, an employment discrimination case, the district court granted summary judgment for the defendant Commission. The order was based in part on the grounds that the plaintiff’s prior application and interview for the position to which he was eventually transferred “disqualifie[d] him from showing that the employment action [the eventual transfer] was truly ‘adverse.’” In reversing, the Sixth Circuit instructed the district court to apply the standard of “whether the ‘conditions of the transfer’ would have been ‘objectively intolerable to a reasonable person.’” By declining to intervene, the Supreme Court allowed the Sixth Circuit’s discrimination standard in that case to stand.
Justice Alito, however, objected strongly to the denial of certiorari, stating that he would have not only granted review, but also would have summarily reversed the Sixth Circuit. For Justice Alito, it was crucial that the plaintiff had applied for the position to which he was eventually transferred, and that he knew fully what it entailed. Justice Alito was also concerned with, in his opinion, the potential “floodgate” of employment discrimination litigation this decision will allow in the Sixth Circuit. The actual impact of Deleon in the Circuit, however, remains to be seen.