On Monday, a unanimous Sixth Circuit Court of Appeals
reversed a jury verdict finding a hostile work environment based on race and
national origin and retaliatory discharge.
Khalaf
v. Ford Motor Co., No. 19-1435
(6th Cir. 8-31-20). The plaintiff
had complained that the disrespect of his subordinate employees created a
hostile work environment as did his own supervisor’s criticism of his English
skills, the Court found that the plaintiff failed to show that the disrespect
was motivated by discriminatory animus.
Further, criticism of his communication skills was about his managerial job
performance and not his accent. In addition, his attempt to compare his
treatment by only two of his subordinates with how they interacted with his
predecessor were insufficient to show discriminatory animus. The alleged incidents were not nearly severe
or pervasive enough to constitute harassment. His complaints about his subordinates were too
vague to constitute protected conduct.
Further, his complaints about his manager and supervisor took place
after the decision to place him on a performance plan. Finally, his rejection of a transfer
following a lengthy medical leave of absence constituted a resignation and not
a termination.
Following years of average performance, the plaintiff had
been promoted to a supervisory position.
However, his leadership skills were apparently very poor and lead to him
being reassigned and receiving mediocre performance evaluations. He was also given a quality assurance team to
lead and his manager was unhappy with the performance of his team, who blamed
his lack of leadership. Despite several
warnings and opportunities to improve, when he was placed on a performance
improvement plan, he claimed national origin and race discrimination and
retaliation. When his second performance
improvement plan was about to expire, he began a year-long medical leave of
absence, during which he began teaching at a local college while collecting
LTD. After filling his prior job, he was offered a
demotion but with the same pay and without having to report to his prior
supervisor or manager. He rejected the
position and accepted a higher paying position with another company. He then filed a lawsuit and the jury ruled in
his favor on his harassment, retaliation and discharge claims. The Sixth Circuit reversed.
Title VII does “not prohibit all verbal or physical harassment in the work place; it is directed only at ‘discriminat[ion] . . . because of’” protected characteristics under the statutes. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Mere disrespect or antipathy will not be actionable under the statute unless a plaintiff can prove that such was motivated by discriminatory animus. See id. The “conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s [protected status].”
. . . “the bulk of the evidence presented demonstrated disrespect by [Dr. Khalaf’s] subordinates.” . . . . Such disrespect, standing alone, is not enough to show unlawful discrimination.
An anonymous comment -- that he had difficulty understanding
English or writing – was not directed at his accent. Although
discrimination based on accent “can be national origin discrimination.” . . . this is a fine line, and each factual scenario must be evaluated contextually, considering that “[u]nlawful discrimination does not occur . . . when a Plaintiff’s accent affects his ability to perform the job effectively.” Id. (citation omitted). For example, in Igwe v. Salvation Army, we concluded that there was no evidence of national-origin discrimination towards the plaintiff-employee, given that a single comment by another company employee regarding the plaintiff’s “broken speech” related to concern about the plaintiff’s “communication skills,” as opposed to being motivated by discriminatory animus towards his national origin. 790 F. App’x 28, 36 (6th Cir. 2019). Similarly here, the comments about Dr. Khalaf’s English skills (which did not reference Dr. Khalaf’s accent) related to frustration expressed by Dr. Khalaf’s subordinates about their manager’s ability to manage and communicate clearly with them in preparation for the weekly BPR meetings—a critical activity performed by the group. Because clear communication skills are a fundamental skillset required of managerial positions across the United States, and such ability was a necessary part of Dr. Khalaf’s specific role as QS&PP Department Manager, there is simply no basis, without more evidence, to infer that the comments were motivated by discriminatory animus.
The Court also rejected the plaintiff’s attempt to show
discriminatory animus by a few isolated instances of when only two of his
subordinates demonstrated a preference for his white predecessor. “This court
has held that a comparison between one member of a protected class and one
employee outside of that protected class is not “comparative evidence about how
the alleged harasser[s] treated members of both races in a mixed-race
workplace.” That there is different
treatment of two individuals is not indicative of treatment of a class of
individuals based on their protected traits.
The Court also found that the evidence of the isolated
incidents of disrespect and comments about his communication skills were not
nearly severe or pervasive enough to create a hostile work environment.
“A hostile work environment occurs ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” . . .
Alleged harassment in the context of a hostile-work environment-claim must be sufficiently “pervasive” or “severe” to alter the conditions of employment. . . . . This standard sets a high bar for plaintiffs in order to distinguish meaningful instances of discrimination from instances of simple disrespect. In this court’s determination of whether conduct clears that bar, we consider various factors, including “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id. at 512–13 (citing Harris, 510 U.S. at 21). “Isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of [a plaintiff’s] employment.’” Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). “Occasional offensive utterances do not rise to the level required to create a hostile work environment.” Grace v. USCAR, 521 F.3d 655, 679 (6th Cir. 2008). “To hold otherwise would risk changing Title VII into a code of workplace civility, a result we have previously rejected.” Id. (citation omitted).
Despite his testimony of extremely disrespectful behavior by
his manager in criticizing his English skills, the Court ultimately decided the
criticism were motivated by his poor communication skills and not his accent or
national origin. Although “discrimination
based on manner of speaking can be national origin discrimination,” the
plaintiff failed to produce any evidence that criticism of his English skills
was based on his accent, rather than his ability to understand and be
comprehended.
Our court recognizes the difference between discriminatory animus motivating accent-based comments directed at an employee, . . . and situations “when a [p]laintiff’s accent affects his ability to perform the job effectively,” when criticism of English skills does not constitute unlawful discrimination. Ang, 932 F.2d at 549; see also Igwe, 790 F. App’x at 36 (determining that in certain contexts where a job requires a specific skillset, it is not unlawful to complain of an employee’s “communication skills–– whether related to his national origin or not”).
Dr. Khalaf presents no evidence that Fowler’s statements included any criticism of Dr. Khalaf’s accent. Dr. Khalaf also fails to provide any relevant context regarding the referenced statements by Fowler that would allow a reasonable jury to find discriminatory animus. There is no proof that could help a jury and this court assess what motivated the comments. Undoubtedly, Dr. Khalaf’s role as QS&PP Department Manager required that he communicate clearly with the team he managed, as well as with Fowler.
And, while Dr. Khalaf was offended by Fowler’s comments, a plaintiff’s mere subjective offense does not rise to the situations we deemed “discriminatory” . . .. Based on those cases, Dr. Khalaf needed to present proof to allow a reasonable inference that Fowler’s remarks about Dr. Khalaf’s English were really about Dr. Khalaf’s accent. Then, Dr. Khalaf would have to offer evidence to allow a reasonable inference that criticism of his accent was related or motivated by Fowler’s animus towards Dr. Khalaf’s Lebanese national origin. This, Dr. Khalaf did not do.
Fowler’s derogatory statements, though abusive, were not enough to establish a hostile work environment based on Fowler’s national origin. Rude, yes; discriminatory, no. Therefore, we hold that there was insufficient evidence to conclude that Fowler’s criticism of Dr. Khalaf’s English skills and other comments constituted national-origin discrimination.
The Court also rejected the plaintiff’s various retaliation
claims. His first claim of a demotion
(and replacement with a higher level employee) was based on his recommendation
to a subordinate that she file a claim with HR about a sexist statement made to
her by a co-worker. However, when he
mentioned his recommendation to HR, he never mentioned that the comment was
sexist. “For a plaintiff to demonstrate a qualifying 'protected activity,' he
must show that he took an 'overt stand against suspected illegal discriminatory
action.' . . . In other words, an
employee ‘may not invoke the protections of the Act by making a vague charge of
discrimination.’”
As for the HR complaint that he filed against his manager
and supervisor in early April 2014, his complaints were made after the March 2014 decision was made
to place him on a performance improvement plan in later April based on his poor
performance. In fact, he made his
complaint the day that he was supposed to receive the performance improvement
plan and it was only postponed because he called off work. Further, as previously discussed, his prior complaints
about the disrespect of his subordinates failed to indicate any connection to
his national origin or race. Accordingly, any such complaints were too vague to
constitute protected activity. In addition,
those complaints were made two months before his supervisor was appointed and
10 months before the performance improvement plan and were made to HR, not his
supervisor.
The Court also rejected the argument that the plaintiff had
been terminated when he rejected the offered transfer and resigned to accept
another position with a different employer.
The plaintiff conceded that he was offered the only available comparable
position at the time he finally agreed to return to work. Because he had been gone more than a year, his
prior position had long since been filled. That he viewed the new position subjectively
as a demotion -- based on an incorrectly perceived effect on his pension plan when
his salary remained unchanged – did not constitute a termination. “Any
reduction in grade or benefits, or perception of 'self-demotion' related to a
job, does not indicate that Dr. Khalaf was actually terminated.” Importantly, he never alleged or pursued a
constructive discharge theory. “An actual discharge . . . occurs when the
employer uses language or engages in conduct that would logically lead a
prudent person to believe his tenure has been terminated.”
The Court rejected the argument that the employer’s offer of
severance benefits indicated that he had been terminated instead of voluntarily
resigning. “Namely, as was the case with Dr. Khalaf upon
his return from disability leave, when a Ford employee’s position 'goes away' or is no longer available, and the only replacement position “available” to
that employee requires a reduction in level, then Ford’s personnel system
classifies the situation 'as an involuntary separation,' which thereby
qualifies that employee for severance benefits.”
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.
