the morning your honour's in line you're on this is our appeal from a decision by the trial court would respect to my client's claim for discrimination the trial court granted summary judgment in favor of the defendants pallies and base it its reason primarily on their conclusion or its conclusion that there was no showing of an adverse employment action the reason behind dot's court decision was that the argument we put forward about the effects of the new job the courts conclusion was it was not material because both job descriptions talked about or advised that the person would be subjected to these fumes however we put forth to discourse and to that court that they were substantial differences in the actual environment and therefore the court should not have considered the theoretical possibility of exposure as opposed to the actual exposure but what about the would it seems an oddity to me about thinking that when you apply for a job you get a job that the getting the job is an adverse employment action that seems like an unusual concept it's not something i've ever seen i mean i don't think you've cited a case where that's happened we haven't found one except there's a there's a distinct difference your honor and mitch in six circuit case law supports our position namely that when mr de leon applied for the job a year earlier before he was constructively transferred to the position he had a predicate demand in effect he said i would take the predicate demand yes and we provided his letter when he submitted his resume he said i will take this position and i will expose myself to these conditions but i want a ten thousand dollar salary increase in addition he requested an additional men or an additional person to work in that area those the men's were rejected out of hand so it wasn't as willingly went to this job his position was i would take this job if i was given a ten toes dollars demand and an additional person and i think there is michigan there is a six when you apply or you agree to move to a lateral position for advancement purposes used that would apply he did apply yes and he was rejected he was he was rejected as any applied again no he applied once he applied in august of two thousand and eight and he was rejected as unqualified their position was he did not have the requisite computer literacy background to function in this job and so that he disagreed right to me persisted wanting the jobs not getting at no you're on a he did not actually he applied he was granted a first interview he did not make the sec the cut for the second interviews and that was it he kept working as an area superintendent and after day tried five persons in that position and decided that while no one wanted that position it's then a year later that they constructively transferred him to that position by then when you say constructive transferred what do you mean by that you're saying unwillingly was sent there yes and he said at that point i know i applied for this job but i don't want any that is correct errors that in the record where he said i know i applied for this of the best conversation for years i think where he says why are you putting me in this job when you know i'm not qualified for his job and that's his words to mr barr column you is direct supervisor who by the way during the initial interview process a year earlier actually ranked or rated my client with a score of fourteen out of thirty he read him marginal or below below minimum standards and every single category of the interview sheet and this conversation are for him to that's a conversation that occurs at the time of transfer slash promotion or that conversation occurs after he's already in a job that occurs at the time of transfer and then they are director and he complained to a fellow employee but getting back to the issue of the adverse employment action your honor in this new position as equipment and facilities superintendent he is in and close facilit garage and their trucks and their doors on our equipment and they are running constantly because they have to work on with that now before he applied for that yes but remember they were there is a distinction he wanted a ten thousand on a raise and i think that's a distinct difference between just want in the position and want the want in the position with a predicate demand i will expose myself to these conditions but only if you pay me an additional ten thousand dollars and you give me an additional person becomes an adverse employment action when you see promotion you get the promotion but it doesn't come with the extra salary you thought you should get subject to unwillingly because remember the court must take into consideration that he was rejected as unqualified for the position he resigned himself of that decision or that conclusion and he continued to function in his o position he no longer wanted the position but then he was forced to move to that position the adverse employment action if you don't have a constructive discharge claim either from this job or the earlier job right and that's not part of this case a constructive discharge claim is it i don't know if there's necessarily a constructive discharge claim but what happens is after he goes on f e m a leave he's ready to come back to work they they eliminate the position and they terminate but getting back to the adverse impact employment action our position your honor is in this new position that he was forced to assume mr de leon is subject to constant daily exposure of diesel f s it's circulated in the in the the the circulation system into the offices he testified on orders have testified that every week he's got to wipe suck off  the computer screens off of the office equipment he is now suffering from run kike this he has your theory of the case if he'd been given the ten thousand dollars and additional salary then you would agree this was not an adverse employment action to seek this job and get it as long as he got the ten thousand dollars extra i would agree and the diesel fumes go away the fact that he's not qualified goes away that goes out the window as long as he gets ten thousand dollars extra in terms of being adverse and plan an action well that's hazard pay yes i mean if you agree if you grease willingly to take this position to to to expose himself to those conditions forty additional pay i would agree are i would concur that he wouldn't have an argument with respect to adverse action if you have a case for that a case that says well if you apply for jobs but you apply with this as you said predicate fact continue contingency that whole i want this job but only if it gives us extra salary that if they promote you if you go into that job and they don't give you the exercise that makes it have or simply action that would be helpful there were a case like there is no case like i am but i think it comes to common sense because then the individual can't argue adverse action because they have willingly assumed the position and they know what they're going to get into because they have demanded extra compensation for the hazards of the job it's no different than any other job that citizens of this country engage in there are some positions that you know it's called hazard pay because you're exposed to certain conditions you you demand or the job demands extra pay and it's no different here that was mr de leon's position i w take this job because it looks as though no one wants it but i can maybe work here advance my career this is a chance for me to earn extra money so i will do it for the extra money they interview him they say he's not qualified they they move on they spent a year looking for people for this position to hired one person who stayed for eighteen days and resigned they offered a job to a second person who they were right when they said he wasn't qualified they were absolutely right and i have laid out isn't it strange that his theory of the case is that he applied for a job for which he was not qualified he wants the job but only on the condition he gets ten thousand dollars extra  why should he get and thousand dollars extra for a job for which he's not qualified there are that's not unusual sometimes people try to but they're half a little higher than they can reach and that's not an unusual position or situation but clearly he was not qualified with respect to the second argument where he's now you know has tissue extensive technical responsibilities and it all is predicated on knowledge of computer skills he has none when he applied for the job they told him you don't qualify for the job because you don't have computer skills a year later nothing has changed so but they meant that its position is obviously set him up to fail he doesn't have any of the computer skills and that's born out he gets into the position your honor and within months he's in trouble it's the first time he's get a negative performance reviews he doesn't know how to work the computers he doesn't know anything about any house i just can't figure this out why is that ten thousand dollars on port if you agree he wasn't qualified and if you think they were setting him up to fail because they're setting him up to fail he's going to leave us and he  ten thousand dollars and much good because you don't get paid unless you're working but that goes away that's not a factor anymore detent i was not the only distinguishes the fact that he had been willing to assume the job for a ten thousand dollar increase he didn't get the job so now the court has to focus on what happens subsequent to that position they rejected him as unqualified and they just move them into the position that ten thousand dollars is no longer a factor because he never got it and he never got the job based on that demand see red lights on you get your full rebuttal thank you right from the other side dear dairy and is that how it's pronounced ok in his argument i wish to talk about him initially first he claims that his client made a predicate demand that was his accepting the job was conditional upon him getting a ten thousand dollar salary increase and an assistant that's untrue he made those demands according to his testimony and the on disputed facts in this case a meeting was held on november eighteenth between mr bartholomew mr johnson and the plaintiff and he made those demands this point yet that at the time he was still applying for the job he was no longer insisting that the application comes with ten thousand dollars he was told quite in fedak leave before six days before the interview and as in a meeting he requested he talked about his ideas for the job this is according to his testimony and he was told flat out he never contrary to what counsel is saying ever at any time indicated that he did not want the job he never protested the transfer to the job he was in the job for ten months and he never at any time at any way made any claim to anyone that he wanted to go back to his old job that he didn't like the job councils claims that he protested to carl he went and talked to her he talked to several individuals but all his discussions were about his problems in dealing with his supervisor mr bartholomew the record is completely evident his judgment loney quite accurately wrote in his opinion the record is completely absent of any claim at any time that the plaintiff ever made any claim whatsoever that he wanted to go back to the old job he would not accept the job in his position as equipment and facilities superintendent fiction there is nothing in the record we have never ever claimed he was not qualified to enter johnson was hired as a new manager of the road commission in two thousand and seven i believe michigan's the only state in the country that has road commissions it's a separate independent government employer from the county it is run by five commissioners that in this case are appointed and a couple new commissioners came in when the vacancy occurred in the equipment and facility superintendent who in the row commission's initial approach was to seek outside the rowe commission to fill the vacancy they sought out external applicants and they interviewed mr dooley own he applied for the job as an internal applicant they never told him he wasn't qualified we have never ever in this case taken the position he was not qualified we did hire an outside applicant mr vanderveen whom i didn't even make it to the second round of interviews there were no second round of interviews he makes this up there were no second roun interviews never happened happened he scores again we have been claim that we gave him poor employment evaluations again scores in the interviews he did he did very well in the interviews according to travis bartholomew again after this was done in a job he didn't want that he was forced into he sought out management a meeting with management why didn't i get the job and he was told according to him he said your computer skills are weak and there he was not at the top of the list in his computer skills right we'd computer skills for this job he served as the assistant equipment supervisor from one nine hundred eighty  five he pretty much did the job for seven years the row commission was exploring a new computer system to do with it's him and tory it is brand new and looking for external candidates to fill the job we realized when we were unsuccessful that because the road commissions application is so unique there are no a quibble an experience is an alternate employment outside of commission so anyone that we hired whether external or internal we were go vanderveen who we hired for the job again who was older than mr de lay on didn't want the job and left after nineteen days we went and looked offered the job to another external candidate who didn't take  it his claim that we offered it to five people that mr manuals claimed is not true when he turned it down we decided this isn't working let's look at internal candidates now we had a choice to make mr dealing on was viewed as the best internal candidate we had opposing counsel is suggesting in fact claiming that we should have not given the job to mr de leon but instead given it to mr de young so we were supposed to turn down and over fifty hispanic male who applied and actively sought a job who we felt was qualified and instead give it to a white male under forty who never even applied for the job can you imagine the age and race discrimination case we have now all this claim about the dirty environmental conditions in the garage is candidly fiction first of all mr dealing on newegg that there is no the garage there are fumes in the garage the garage meets all environmental standards is inspected it mr de leon worked in nec arise for again seven years other employees work in the garage including all the mechanics it certainly as there are that is your theory there were no there were no difficult facts conditions working conditions or your theory they existed but he knew about my theory is both but more importantly where is the record citation they knew about conditions not only did he know about the conditions from actual working in the garage for years he held out in the interview i will read the depth transcript if you like of his testimony in his interview for the job one of the reasons he sought the job is because he had ideas about how to research relate to year in the garage to improve the ventilation this was an idea he was bringing it was something he was selling in the interview is why he was the best candidate furthermore he worked in that job for ten months after he was transferred to the position the record is completely absent that he ever at any time protested the environmental conditions complained about them in any request for improvement assistance ever there is nothing in the record that he ever said any of this in fact he wanted the job because compared to the job he had his area superintendent instead of subject to the road hazards of being out in the middle of winter in february of two o'clock in the morning when it's twenty below i'm in a warm heated garage he wanted to be in there if we had given the job to mr de young opposing counsel be arguing now we turned him down gave mr de young the cushy inside job and we forced mr dealing on to the outside in dangerous conditions biting snow and ice i don't think there's a lot of record evidence for what you're saying right now the record is clear sir that there is absolutely no evidence that he complained about this in any way or any other employee did there is no evidence there's anything about the environmental conditions in that garage that are not appropriate and up to all environmental standards and the evidence is overwhelmingly clear if the trial court ruled that he knew exactly what he was getting into when he sought the job which he held himself out for is highly qualified he'd worked in that garage for seven years he  other no sir it's all one garage the offices one little space with the walls blocked off he worked in that garage he was the equipment he was the assistant equipment supervisor which basically did everything that the equipment facility superintendent did except for the him and tori situation with the computer all the parked purchasing all the equipment maintenance all the coordination with the mechanics over the scheduling of the maintenance of the fleet he did that for seven years he submitted a resume outlining his experience he was by far the most unqualified internal candidate this concept that we set him up to fail is candidly illogical and ludicrous first of all the trial court ruled and pla counsel concedes season at will employee in needs that i'm up to terminating you could just terminated and candidly we never really terminate him he went off on leave he refused to come back to work he claims that his doctor said that he shouldn't come back to work that's not true his treating doctor every doctor that was deposed in this case told him to come back to work he's treating psychiatrist in this case testified the only reason he didn't come back to work is because players council said it would not help his lawsuit if he did i brought her deposition transcript i'll be happy to read that everybody recommended to go back to work under the roe commission's policies if you stay off work and you don't perform any services for over a year then your employment is terminated we waited for a year for him to come back to work he refused to come back to work there was no medical in this case saying he was unable to come back to work in fact all the medical in this case including is treating psychiatry said they recommended  come back to work and say that the real thrust of your argument is that if you apply for a job and you automatically get transferred to that job it can't be an adverse employment action if it was that first why didn't he say something he knows he worked for us for twenty six years he was a valued member of the management staff he knows the road commissioners personally one of the road commissioners he asked one of the road commissioners came to his house in his home to meet with him and his wife because he was talking about problems he was having in the workplace he never once said a thing to the commissioner that he wanted to go back to his old job that he wasn't happy in the new position he didn't want to go back to be an area superintendent he just didn't get along with travis perth amil is their place and this marquees you know he's asked did you ever complain about this job yes getting a promotion yes and he says never he says i don't recall and then he goes on to testify that he's taking three medications and he doesn't recall anything he said death through his hold up fifty testified that he doesn't recall having a discussion with the doctors about whether or not it would affect his memory i will read the deputy i asked him did you ever protest the job i don't remember everyone in this case know if you'd asked if you'd gone to join a johnson or travis bartholomew or the commissioners and says look i want to go back to be an area superintendent we would have had that discussion the record is  ent of that he didn't want to do that this is all created after the fact there is absolutely no basis whatsoever to claim that he was forced into anything and i do where's the record citation that he was the best internal can the johnson the person that made the decision testified that she felt she was the best candidate for the job travis barthelemy testified that he recommended mr de leon for the job i thought when he first interviewed for the position he was given a score of fourteen out of thirty its ability was rated as marginal he didn't didn't receive a second interview that you all got fifty one resumes interviewed thirteen candidates brought three back that's not true we certainly did not i don't know how many candidates we interviewed if we interviewed thirteen that might be accurate i don't think it was quite that many but you could be correct i don't remember to be honest with you there were no second round of interview makes just to make sure i'm getting this is this he was the best person for the job point is that a point it is out of time reference point best person for the job at the time of the initial interviewing versus best person for the job at the time he was hired there was no separate round of interviews a year later when he was given the job we interest transferred he was transferred what we did is we hired mr vanderveen mr vanderveen left after i believe nineteen days but that's the point i'm trying to make this frame of reference point at the time he's offered the job he's the best but that's partly because the better candidates had been tried it had worked out or whatever they'd laugh we were going to go outside the road commission we were which we don't usually do historically we hire from within and in this case we would initially just cited take a different approach and see if there was an external candidate a more might fit our needs and we were unsuccessful in finding them so what's your answer to judge black's question he was the best person for the job you mean that from beginning to end i mean that is a little bit implausible given what he how you responded when the time made when he was given the job we were down to two choices whether we give the job to mr de leon or whether we give the job to mr d those are the two people he was the best person for the job he was the best at those two he was the best available that we had internally and we decided to use him as an ally of to be defensive he was the best out of those two that you decided to go internally now maybe that was a flawed decision or was he simply the last standing second the last the man had done the job for many years there was no call there was no question that the job is a little misleading i guess i would say don't you think he was the best person for the job is a little misleading when you're down to two and the other one didn't apply no when we decided when i say best person for the job we realized that we were going to have to train anyone that we hired in this new software whether it was external or internal and maybe we should have come to that realization earlier so be it and we decided that well then fine we will work with mr giuliani and we will give him the training and we will invest in him and we will make him successful there is nothing in this record whatsoever that indicates we ever claimed he was not being successful he was not disciplined for his poor performance i see your red light is on that thank you very much for your argument  voiced i don't cite the exact words but he voiced his concerns to johnson about his inability to perform his new duties and then i cited a transcript would respect to that specific complaint would respect every single argument i made i have cited to direct court they were second interviews they were fifty one resumes they would thirteen interviews he did get a fourteen score out of a thirty and he got a nineteen by jarana johnson he was not the best person for the job even with respect to the internal candidates between him and mr d young mr d young had actually been doing the job for more than a year mr the young was actually the only person person and respected internal candidates mr b young was the most qualified he had been doing the job competently for more than a year but i cited a record again miss of the young complained about the job the company makes two people unhappy the person that wants it doesn't and and vice versa because that would be inefficient or you're here you're entering a very dangerous ter