Last summer, the Sixth Circuit reversed summary judgments given to two employers on claims brought by human resources employees. In Briggs v. UC, 11 F.4th 498 (6th Cir. 2021), the Court ruled that a jury should evaluate a compensation analyst’s claim of wage discrimination within a college human resources department based on race and gender. In Jackson v. Genesee County Road Commission, 999 F.3d 333 (6th Cir. 2021), the Court ruled in favor of a fired HR Director who had advocated on behalf of employees alleging unlawful discrimination and asserted that her termination had been in retaliation for her opposing unlawful discrimination and engaging in those protected activities. More interestingly, the Court found that Title VII – governing employment discrimination -- protected her role as the EEO Officer in ensuring EEO compliance by the employer’s vendors: as EEO Officer, her “actions could reasonably be viewed as steps to ensure there was no discrimination in hiring both within GCRC and among its vendors, and, thus, were protected activity under Title VII.”
According to the Court's analysis of the plaintiff's allegations in Briggs, the HR department hired a new compensation
analyst in 2015 who possessed a college degree but no compensation
experience. She was paid significantly
more than the incumbent-plaintiff, who had significant compensation experience
but no college degree. Part of the
reason for the disparity was a policy requiring a 5% raise for any promotion
and part was to entice her to leave her current position. Although the manager advocated for an equity
adjustment for the plaintiff (who was paid both less than the new peer and also
below market) in 2015, the new VP allegedly refused because of his “inconsistent” 2016 performance
evaluation (which apparently did not explain objectively the basis for the
lower evaluation). It was implied that
the plaintiff had performed only his basic expectations before understanding
that advancement came with exceeding expectations. Ultimately, the manager claimed that he suffered
retaliation for advocating on behalf of the plaintiff’s equity adjustment. The new employee exceeded expectations, was
promoted again and ultimately left. When
the plaintiff applied for her former position, the VP apparently revised the
job description in an alleged attempt to render him unqualified. There was also an implication that the VP
contended that the plaintiff was not even qualified for his own position. The VP gave the plaintiff the lowest possible
performance bonus.
The Court rejected the employer’s argument that the
compensation difference was based on a factor other than sex or race:
no authority supports the concept that an employee’s prior salary or demand for a specific salary is sufficient in isolation to justify a wage differential. Such a rule would simply perpetuate existing sex-based pay disparities and undercut the purpose of the Act—to require that those doing the same work receive the same pay. . . .
Though a defendant need not offer contemporaneously produced evidence of its rationale, there must be evidence in the record proving that the employer’s proffered justification was the reason for the wage differential’s existence. . .
. . .
The record does not show beyond dispute that Wittwer’s bachelor’s degree and higher performance ratings than Briggs, or any other specified factors, were the reason for the salary disparity between her and Briggs. [The employer] has therefore failed to meet its burden of proving that these distinctions were “the reason for the pay disparity.”
The Court also rejected the employer’s argument regarding the
new employee’s higher education and better attitude towards self-improvement
and working outside the job description because of the lack of documentary
evidence regarding the plaintiff’s purported performance issues until after
he requested an equity adjustment and because of the lack of evidence that
these issues actually motivated the pay disparity. The Court explained that an employer is
required to submit evidence “beyond dispute” from which “a factfinder could
conclude that the proffered reasons “in fact” explain the wage disparity—not
just that the reasons could explain it.” The Court also found sufficient
evidence of pretext in that the employer’s explanation was not credible:
The record contains no contemporaneous evidence that the cited distinctions between Wittwer and Briggs actually motivated their salary disparity, and it contains disputes of fact among [the employer’s] own witnesses as to whether performance is, in practice, a consideration for employees’ base pay. The post-hoc nature of the justifications contained in Stidham’s affidavit further support an inference of pretext, particularly given that several of the statements contradict statements made by Stidham in Briggs’s performance reviews and cannot be squared with the undisputed fact that Stidham recognized Briggs’s pay was below market and requested an equity adjustment for him. “An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”
The Court also rejected the employer’s honest belief defense
on the retaliation claim because the VP could not show a factual basis for her
mistaken belief about the incumbent’s qualifications and his experience before
being hired by the college and the fact that she pulled the job posting soon
after he made his discrimination complaint.
a reasonable jury could conclude that [the VP’s] alteration of the posting was retaliatory rather than innocent. Contemporaneous e-mails and other evidence suggest that [her] decision-making about Briggs’s complaint and the job posting were linked. Briggs made his complaint on November 8. . . .
Then, on November 13, [she] e-mailed [the manager] directing him to pull the senior compensation analyst job posting. Although in retaliation cases “temporal proximity cannot be the sole basis for finding pretext,” it can be “a strong indicator of pretext when accompanied by some other, independent evidence.”
According to the Court's evaluation of the plaintiff's allegations in Jackson, the employer had fired its HR Director
without any explanation or investigation following a number of complaints about
her communication skills, including some from individuals who had been
investigated and/or counselled by her. The
employer had previously supported all of the actions she had taken. One of the complaints was from a vendor which
incorrectly claimed that she had frozen its payments based on a discrimination
complaint it had received from one of its own employees. The employer’s outside counsel had also
complained about her insistence that all communications go through her when he
was attempting to meet with witnesses and prepare for hearings, etc. The employer did not investigate any of the
complaints or give her any explanation for why she was being terminated. Without being able to identify that it had
relied only on accurate complaints or on complaints that did not implicate her
investigating and remedying unlawful discrimination, the Court found that a
jury should determine whether she had been terminated in retaliation for
engaging in protected activities.
The opposition clause of Title VII makes it “unlawful . . . for an employer to discriminate against any of his employees . . . because he has opposed any practice made . . . unlawful . . . by this [title.]” 42 U.S.C. § 2000e-3(a). The Supreme Court has held that the term “oppose” should be interpreted based on its ordinary meaning: “[t]o resist or antagonize . . . ; to contend against; to confront; resist; withstand.” . . .
This court and the Supreme Court have imposed limited restrictions on what activity constitutes opposition activity. While the plaintiff’s allegations of protected activity do not need to “be lodged with absolute formality, clarity, or precision,” the plaintiff must allege more than a “vague charge of discrimination.” . . . The plaintiff also must express her opposition in a reasonable manner. Johnson, 215 F.3d at 580. For example, “[a]n employee is not protected when he violates legitimate rules and orders of his employer, disrupts the employment environment, or interferes with the attainment of his employer’s goals.”. . .
. . .the district court held that the opposition clause is limited to conduct that goes beyond the plaintiff’s regular job duties. However, the district court’s assertion is contrary to both the text of the opposition clause and this court’s interpretation of Title VII for two reasons. First, the text of § 2000e-3(a) states that it “shall be an unlawful employment practice for an employer to discriminate against any of his employees,” which suggests that all employees are subject to the same standard. 42 U.S.C. § 2000e-3(a) (emphasis added). The statute also does not state that the employee’s conduct must fall outside of her regular job duties. . . .
. . . this court has previously allowed plaintiffs to bring a retaliation claim for conduct related to their job responsibilities. . . . In Johnson, the vice president of human resources brought a Title VII claim . . . for allegedly firing him in part because of his advocacy on behalf of minorities related to his management of the university’s affirmative action program. . . . The Johnson court found that “the fact that Plaintiff may have had a contractual duty to voice [his concerns about the affirmative action program] is of no consequence to his claim.” . . . Excluding the vice president from the protection of Title VII would “run[] counter to the broad approach used when considering a claim for retaliation under this clause, as well the spirit and purpose behind Title VII as a broad remedial measure.” . . . The court worried that narrowing the scope of Title VII could create perverse incentives for employers and leave the employees specifically hired to do the often difficult work of combating discrimination with fewer protections than general employees. . . . In sum, both the text of Title VII and our precedent reject the district court’s additional restriction that the opposition clause does not extend to an employee’s regular job duties.
That being said, the Court did not find that all of the
plaintiff’s investigations amounted to protected activity because she had not
concluded that some of the alleged misconduct was the result of unlawful race discrimination. Where
she had concluded that unlawful race discrimination had occurred, her conduct
in that investigation, informing management and negotiating a severance
agreement for the offending manager constituted protected conduct.
Interestingly, the Court also found her role as EEO officer
in working with vendors (not employees) was similarly protected conduct. “Jackson’s
actions could reasonably be viewed as steps to ensure there was no
discrimination in hiring both within GCRC and among its vendors, and, thus,
were protected activity under Title VII.”
The Court also found sufficient evidence of causation from
the temporal proximity of her protected activities (i.e., 2.5 months) and her
termination.
The temporal proximity between Jackson’s protected activities and her termination is strong circumstantial evidence. In addition, many of the same people who complained to Daly about Jackson’s communication style were involved either in the negotiations with Bennett, such as Derderian, or communication about EEOPs, such as Plamondon, Peivandi, and two outside vendors. A reasonable juror could infer that these individuals described Jackson’s communication style as offensive and abrasive because they took issue with her handling of the investigation into Bennett’s or Jackson’s efforts to ensure EEOP compliance. Thus, Jackson has met the relatively light burden of demonstrating causation at the prima facie stage.
While there was some evidence supporting the employer’s
explanation for her termination, she was also able to produce sufficient
evidence of pretext to go to a jury. Some employees, vendors and Board members
contended that they had an excellent relationship with her. “This evidence contradicts GCRC’s claim that
Jackson’s communication style was inflexible and abrasive and could lead a
juror to conclude Jackson’s communication style was not the true reason she was
fired.”
Furthermore, several of the GCRC employees who complained about Jackson’s communication style also complained about Jackson’s protected activities, so a reasonable juror could conclude that their complaints about Jackson’s style were motivated to some degree by their opposition to her protected activities. . . . Although it is true that some of the employees who complained about Jackson’s communication style were not directly involved in her protected activities, there is enough overlap between the employees who complained to Daly and the individuals objecting to Jackson’s protected activities to call into question the strength of GCRC’s nondiscriminatory proffered reason.
