In June, the Sixth Circuit affirmed an employer’s summary judgment on workplace harassment and retaliation claims where the plaintiff had alleged that the employer’s investigation and response to the harassment claims were inadequate and denied her a promotion in retaliation for her complaints. Doe v. City of Detroit, 3 F.4th 294 (6th Cir. 2021). The plaintiff had been subjected to anonymous threats by a co-worker. Although the employer interviewed a suspect following the second incident, it did not interview him following any of the death threats. The Court affirmed dismissal of the hostile work environment claims because the employer’s response to each incident was reasonable and the final action – in inadvertently suspending and relocating the suspect – was apparently effective, and thus reasonable, in ending the anonymous harassment. The Court also found no evidence that the plaintiff had been denied a promotion on account of her prior harassment complaints.
According to the Court’s decision, the plaintiff began
transitioning about six months after being hired. Following the plaintiff’s first series of
medical procedures, a co-worker submitted complaints that the plaintiff had
violated the employer’s dress code.
Although the plaintiff was informed about only the existence of the
complaints, she was reassured that her attire was appropriate. Following the plaintiff’s second series of
medical procedures, her office name plate was defaced, which the City
immediately rectified. A few days later,
the plaintiff received an anonymous gift bag with sex toys and a handwritten Bible
verse about men wearing women’s clothing.
The employer conducted an immediate investigation, interviewed all nearby
employees and required handwriting samples from each of them. The perpetrator was never identified. The investigation report recommended a few
months later that a lock be installed on the plaintiff’s office door, but did
not approve the plaintiff’s request for a security camera.
Five months later, the plaintiff received a typed anonymous death
threat. The employer reported the incident
to the police (which refused to investigate) and finally requested a lock for her office door, but refused the
security camera, permission to keep her door shut during office hours or to
permit her to work from home. A few employees were questioned, but not the
individual who had previously filed the dress code complaints. A few weeks later, another anonymous death threat
was made. The City temporarily relocated the plaintiff’s office, installed
locks and a security camera and again questioned a few employees, but not the
employee who had previously made the dress code complaints. At that point, the plaintiff suggested that
the perpetrator might be that employee. A few weeks after that, the employer learned
that employee had inappropriately accessed the plaintiff’s Facebook page and
discussed it with subordinates. He was
given a three-day suspension and his office was relocated onto a different
floor from the plaintiff. There were no
further harassing incidents or threats made against the plaintiff.
The plaintiff then complained that her work was being
subjected to more criticism, etc. Her
supervisor resigned and suggested someone else to be promoted instead of
plaintiff. The supervisor’s suggestion
was not taken, but the decisionmaker promoted a different employee other than the
plaintiff.
The trial court and Sixth Circuit ruled in favor of the
employer on the harassment and retaliation claims. It
addressed the City’s response to each incident, rather than evaluating whether
the initial response was adequate for the escalation. While
the plaintiff and the alleged perpetrator were both supervisors, neither had authority
over the other; they were essentially co-workers. Thus, the Court evaluated the matter as co-worker
harassment. When workplace harassment is
committed by a coworker, the employer is liable only “if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action . . . To find liability, the employer’s response to a coworker’s harassment must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.” . . . An employer’s response is generally adequate “if it is ‘reasonably calculated to end the harassment.’” . . . . “The appropriate corrective response will vary according to the severity and persistence of the alleged harassment.” . . . “Steps that would ‘establish a base level of reasonably appropriate corrective action’ may include promptly initiating an investigation[,] . . . ‘speaking with the specific individuals identified’” in the complaint, “following up with the complainant,” and “reporting the harassment to others in management.”
The employer immediately rectified the graffiti and
conducted an immediate and thorough investigation following the gift bag
incident. The Court rejected the plaintiff’s argument
that the employer’s response was unreasonable (in that no perpetrator was ever
identified) because in another case the employer had unreasonably delayed 10
days in conducting an investigation, already knew the identity of the alleged perpetrator
and had failed to separate the perpetrator from the victim with an
administrative suspension.
“The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” . . . “By doing so, ‘the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.’”
The Court also rejected the plaintiff’s argument that the
employer’s actions were unreasonable in delaying the installation of door locks
or security cameras following the first two incidents:
“a harassment victim may not dictate an employer’s action against a co-worker.” . . . . While taking these measures would have been reasonable, failing to do so does not render the city “so indifferent to [Doe’s] concerns that it essentially permitted the harassment to continue.”
The employer’s response to the first death threat was also found
to be reasonable as the police were contacted within three days and a request
was made to install locks on the plaintiff’s office door. While the plaintiff argued that it was
unreasonable to not have then interviewed the employee who had previously
complained about her attire, she admits that she never suspected him at this
time either and there was no evidence tying him to any of the incidents.
Further, on this record, it was not unreasonable for the city to require Doe to return to the office. Nothing in the record indicates that Doe’s job was capable of remote performance. And the city took steps to address the harassment. Although these steps were ultimately unsuccessful in preventing the final act of harassment—the note on May 22—the city did not “exhibit[] indifference rising to an attitude of permissiveness that amounted to discrimination.”
Finally, the Court found that the City’s response to the
final threat was reasonable even though by then the plaintiff had identified a
possible suspect and neither the employer nor the police ever interviewed him
about any of the death threats. Rather,
it was after this final threat that the City learned about the Facebook
incident, suspended the suspect and relocated his office. After that, the plaintiff suffered no more
harassment. The Court agreed that even inadvertent
action by an employer can be effective in ending workplace harassment.
An inadequate investigation may render an employer’s response unreasonable. . . . But the city also temporarily relocated Doe at her request to a different floor until locks and security cameras could be installed. And the city moved Allen to another floor shortly thereafter, which both Doe and Allen assumed had something to do with the Facebook incident. See Harris v. Sodders, No. 07-4398, 2009 WL 331633, at *2 (6th Cir. Feb. 11, 2009) (employer’s actions appropriate in part because “[e]ven though [employer] was unaware of the alleged harassment, his decision to transfer [the harasser] had the inadvertent effect of stopping the harassment”). Doe agrees that there have been no further incidents since May 22, 2017. If Allen was indeed responsible for these incidents, it appears that moving him, disciplining him, and installing locks and cameras effectively ended the harassment. . . . These efforts did not “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known,” so “we cannot say that the employer has itself committed an act of discrimination.”
Finally, the Court affirmed dismissal of the retaliation claim
because there was no evidence that the decisionmaker based his decision in any
way on the plaintiff’s protected conduct.
More than five months had passed since her last complaint and the
promotion decision. Her suspicions do
no constitute evidence that the promotion decision was tainted or that her
supervisor's criticisms were retaliatory.
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.
