According to the Court’s
opinion, the plaintiff alleged that during the 23 years he served as a public
safety officer,
he was treated less favorably
than similarly-situated co-workers. Specifically, Plaintiff alleges that KDPS
subjected Plaintiff to heightened scrutiny, selectively enforced policies
against Plaintiff, and was complicit when individual employees harassed and
discriminated against Plaintiff. Plaintiff alleges that such disparate
treatment was attributable, at least in part, to Plaintiff’s race or to his
complaints about discrimination.
As examples, he complained
about his sergeant downgrading a performance evaluation with the approval of
the captain, but the decision was reversed when he filed a union grievance. He
was initially denied permission to attend part of an out-of-state safety
conference and was only approved for half of the expenses involved after two
white employees were approved to attend for the full week with all of their
expenses covered. After a sergeant
complained that the plaintiff and a white co-worker were disruptive in the
meeting (with the white co-worker being particularly so, according to the
sergeant), the plaintiff was suspended without pay for two days while his white
co-worker suffered no disciplinary action.
When the plaintiff complained about the discriminatory treatment, his
suspension was rescinded. There was also
an incident about an anti-Obama screensaver which was used a week after the
plaintiff shared pictures of himself with the President. The opinion details 11 such incidents over the
few years before the litigation commenced.
The plaintiff also filed
several formal complaints of discrimination with the Human Resources
Department. When he felt that no one
treated his complaints seriously, he filed an EEOC Charge, which resulted in a
finding of probable cause of discrimination and request by the EEOC for the
city employer to take certain actions.
When the city refused to take the requested actions, the matter was
referred to the Department of Justice.
The plaintiff complained of additional harassment and retaliation to the
EEOC, which was also referred to the DOJ.
Ultimately, instead of bringing its own lawsuit, the DOJ issued the
plaintiff his own right-to-sue letter.
In the meantime, in June 2010,
President Barack Obama was the guest speaker at the Kalamazoo Central High
School commencement ceremony which was held at Western Michigan’s Field House.
To ensure the President’s safety, KDPS positioned police personnel at all
entrances. Plaintiff was not among those officers who were on duty that day.
Rather, Plaintiff had acquired four tickets to attend the commencement with his
family.
Plaintiff attended the
commencement along with his wife and two daughters on June 7, 2010. Plaintiff
contends that he had ascertained a permissible parking location in advance from
a Western Michigan Public Safety Officer. According to Plaintiff, he parked in
the indicated parking location without incident, and did not have any negative
interactions with KDPS personnel, Secret Service, or any other individuals or
law enforcement officers. According to Defendants, Plaintiff “crashed” his
vehicle into a police car and left the scene of the accident, “negatively
engaged with supervisory officers,” and tried to make an unauthorized entry
into the area where the President of the United States was seated. Defendants
contend that “Plaintiff entered the building and engaged in a series of acts
that may have constituted violations of either law or department policy and
rules.”
KDPS began an internal
investigation into possible wrongdoing by Plaintiff. During the investigation,
KDPS interviewed Plaintiff and various employees who either interacted with or observed
Plaintiff that day. Each witness submitted varying factual encounters of the
incident, but the investigation resulted in no conclusive findings that
Plaintiff had been drinking or was intoxicated.
. . .
In August 2010, when KDPS had
concluded its internal investigation into Plaintiff’s alleged wrongdoing,
Plaintiff and Union Representative Laura Misner were provided with notice that Plaintiff
would have a “pre-determination hearing” on September 2, 2010. . . .
Prior to the scheduled
pre-determination hearing, Plaintiff was advised that if he were terminated, he
would not be eligible for health insurance benefits for his
dependents––including his pregnant wife and two young children––and his
retirement package would be deferred. Plaintiff was extremely concerned about
losing health insurance benefits for his family.
This inaccurate COBRA advice
about his health benefits was confirmed in writing by the Human Resources
Department, although there was no evidence that the misstatements were
intentional or communicated with a discriminatory or retaliatory intent. Plaintiff was also informed that there were
rumors that he was to be terminated at the conclusion of the pre-determination
hearing, although he would be able to appeal his termination through the union
grievance process. He was, therefore,
encouraged by a number of people to retire in order to avoid termination and
the loss of his health benefits.
However, because he would be retiring after 23 years of service, he
would not be eligible for a full pension that employees with 25 years of
service receive. Following his
retirement, the city released a copy of its investigation report into the
graduation ceremony incident pursuant to a FOIA request by a reporter. The local newspaper reported the story and
included an internet link to his entire personnel file, which greatly embarrassed
the plaintiff and his family. He then filed suit.
No Materially Adverse Employment Action to Support
Title VII Discrimination Claim. With respect to the plaintiff’s Title VII race
discrimination claim, the Court concluded that the plaintiff could not show
that he had been constructively discharged and had failed to precisely identify
other discriminatory events, and thus, had not suffered a materially adverse employment
action.
In the context of a Title VII
discrimination claim, an adverse employment action is defined as a “materially
adverse change in the terms or conditions” of employment. Kocsis v.Multi-Care
Mgmt. Inc., 97 F.3d 876, 885 (6th
Cir. 1996). An adverse employment action “constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Adverse employment action
“requires an official act of the enterprise, a company act. The decision in most
cases is documented in official company records, and may be subject to review
by higher level supervisors.” Id. at 762. In addition, it typically “inflicts direct economic harm.” Id.
Most of the alleged events
(such as his unpaid suspension) which plaintiff identified had been rectified
through the union grievance process and, therefore, could not constitute a
basis for discrimination after they had been cured. The Court concluded that there was also
insufficient evidence of a constructive discharge. “A constructive discharge occurs when
the employer, rather than acting directly, ‘deliberately makes an employee’s
working conditions so intolerable that the employee is forced into an
involuntary resignation.’” It can also
occur “where, based on an employer’s actions, “the handwriting was on the wall
and the axe was about to fall.”
Although Plaintiff has
presented some evidence that he was subjected to heightened scrutiny and
treated differently than his non-minority peers, he has not presented any
evidence that this behavior was undertaken with the specific intention of
forcing Plaintiff to quit. Indeed, Plaintiff ultimately resigned not because of
the “intolerable” working conditions, but because he received bad information.
Upon review of the evidence, it appears that this informational error was
inadvertent and was not intended to force Plaintiff to quit. Simply put,
Plaintiff has not adduced sufficient evidence to show that Defendants deliberately
created intolerable working conditions with the intention of forcing Plaintiff
to quit.
The Court also found
insufficient evidence that the plaintiff was certain to be discharged if he did
not first resign. Although he heard
rumors that he was to be terminated at the conclusion of the pre-disciplinary
hearing, he had not heard these “rumors” from anyone with first-hand
knowledge. In other words, it was only
speculation.
Sufficiently Adverse Employment Actions to Support
Title VII Retaliation Claim. Title VII also protects an employee’s opposition to
discrimination. Unlike Title VII discrimination
claims which require evidence of materially adverse employment actions,
retaliation claims only require evidence of materially adverse actions (whether
employment related or not). Also unlike
Title VII discrimination claims, retaliation claims require evidence that the
plaintiff would not have suffered the adverse actions “but for” the unlawful retaliation.
Plaintiff's burden of
establishing a materially adverse employment action is “less onerous in the
retaliation context than in the anti-discrimination context.” Michael, 496 F.3d
at 595–96 (citing Burlington N., 548 U.S. at 67–71). Unlike a Title VII
discrimination claim, “the antiretaliation provision does not confine the
actions and harms it forbids to those that are related to employment or occur
at the workplace.” Burlington N., 548 U.S. at 57. To establish the third element
of the prima facie Title VII retaliation claim, “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id. at 68 (internal
quotation marks and citations omitted). In analyzing the significance of any
given act of retaliation, “[c]ontext matters. . . . “A supervisor’s refusal to
invite an employee to lunch is normally trivial, a nonactionable petty slight.
But to retaliate by excluding an employee from a weekly training lunch that
contributes significantly to the employee’s professional advancement might well
deter a reasonable employee from complaining about discrimination.” Id. at 82 (citing 2 EEOC 1998
Manual § 8, p. 8–14). “An act that would be immaterial in some situations is material
in others.” Id. (citation omitted). “This more liberal definition permits
actions not materially adverse for purposes of an anti-discrimination claim to
qualify as such in the retaliation context.”
The Court then found that the
plaintiff’s list of discriminatory events (which it found insufficient to
support a Title VII discrimination claim) were sufficient to create an issue of
fact as to whether he had been retaliated against for complaining about
discrimination and harassment by management and his co-workers.
Facing heightened scrutiny,
receiving frequent reprimands for breaking selectively enforced policies, being
disciplined more harshly than similarly situated peers, and forced to attend a
predetermination hearing based on unfounded allegations of wrongdoing might
well have dissuaded a reasonable worker from making or supporting a charge of
discrimination. There is a genuine issue of fact regarding whether or not
Plaintiff was subject to materially adverse action, and whether Plaintiff’s
protected activity (i.e., formal and
informal complaints to human resources and the EEOC) was the cause of such
action.
First Amendment
Claims. The Court agreed that the plaintiff could not
base a First Amendment retaliation claim on his filing his EEOC Charge. To the extent that the claim is based on a
complaint to the USDA about a co-worker’s activities, that could be protected
conduct. However, there was no evidence
about his complaint to the USDA, that the employer was aware of it or that the
employer retaliated against him because of it.
The concurring judge
questioned whether the trial judge had erred in mis-analyzing the Title VII
retaliation claim or had simply failed to notice the claim because the
defendant employer had only moved for summary judgment on the discrimination
and First Amendment claims. As a
result, she believed that the matter should have been remanded to the trial
judge to examine the retaliation claim instead of analyzing it for him.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
