Sixth Circuit Finds Female Plaintiff Similarly Situated to Male Co-Workers Who Were Not Fired

Last month, the Sixth Circuit reversed an employer’s summary judgment decision on a sex discrimination lawsuit.  In that case, the plaintiff was the only female Mental Health Technician (out of fourteen) in the defendant psychiatric hospital.  Jackson v. VHS Detroit Receiving Hospital, No. 15-1802 (6^th Cir. 2-23-16).   She was terminated after only outstanding performance evaluations following her first violation of a major disciplinary offense even though two male MHTs were not discharged even though they had violated the same rule and/or a similar major disciplinary offense, and had prior disciplinary records and/or were on last chance agreements.  The Court found that the plaintiff was similarly-situated to both male MHTs despite slight differences in the circumstances and consequences in their violations.  It also rejected the employer’s proffered non-discriminatory reasons that her offense could have resulted in more harm to the patient and that she had that morning received training about the rule that she violated.  The Court also rejected that it was relevant that the decisionmaker was female.

According to the Court’s decision, the plaintiff and other MHTs had received training in the morning about the importance of the nurse and the MHT both checking a patient’s identification band before discharging the patient.   That same afternoon, the plaintiff was instructed by a nurse to discharge a particular patient and she did so without checking the patient’s wrist band because she relied on the nurse and had been busy that morning.  The wrong patient was discharged, having just admitted himself the night before because of suicidal thoughts.  Luckily, the patient readmitted himself a few hours later.   The plaintiff was fired for committing a major infraction that jeopardized the safety of patients or staff even though she had only received positive performance evaluations and no record of disciplinary violations.  She filed suit that she was treated more harshly than male MHTs who committed the same or similar offenses.

One of the comparator MHTs had committed several major disciplinary offenses, been given a final warning and placed on a last chance agreement (whereby he could be terminated for even minor offenses).  Nonetheless, he was not discharged after walking out the wrong patient without first checking the patient’s identification band on the direction of a nurse even though the patient required crutches and he did not give those crutches to the patient upon discharging him.   The manager determined that he had been entitled to rely on the direction of the nurse because he had been busy at the time tending to other patients.  The other comparator had been disciplined for discharging a patient on the instructions of a social worker (instead of a nurse) and admitting a patient without first searching him (and confiscating three knives he had been carrying).  Even though these were similarly serious violations, he has only suspended and placed on a final warning.

The Court found these comparators to be similarly situated to the plaintiff despite slight differences in their infractions.  The Court also rejected the employer’s explanation that the plaintiff’s violation was more egregious because the potential consequences of incorrectly discharging a suicidal patient were not necessarily much more severe than discharging the incorrect patient without his necessary crutches or admitting a patient who was carrying lethal weapons.  Speculation about the potential, likelihood and comparative severity of the various infractions should be left to the jury.   The Court also rejected the employer’s argument that the plaintiff’s infraction was more severe because she had just been trained on that standard the same morning because the same standard had been in place when the comparators also violated the rule.   While the jury could reasonably conclude that the plaintiff had been terminated in order to make an example of her, it could also conclude that she should have been treated more leniently in light of her lengthy tenure and spotless performance record in comparison to the male comparators.

The Court also rejected the employer’s argument that different discipline was warranted for the slightly different offense of failing to search a newly admitted patient because the rule was identically severe in its treatment in the employer’s policies.

Several facts in the record can be used to draw the inference that DRH considered Jackson’s and Little’s infractions substantially identical in terms of severity of potential consequences. That their mistakes were cited as violating the same two major infractions indicates that those mistakes were substantially identical in terms of potential disciplinary consequences: DRH’s discipline policy defines major infractions by the potential for immediate termination. Similarly, that Jackson’s and Little’s mistakes were cited as violations of major infraction “k,” which is defined as “[a]ny action or conduct that endangers or may be detrimental to the well being of a patient, co-worker, physician, contractor or visitor” . . . suggests that DRH considered the potential harm resulting from those mistakes to be similar. Indeed, Leorea Heard provided “[t]he patient getting an improper search” as an example of an “incident that might have put the unit in danger.”

The Court was also influenced by the fact that “[i]n a majority female workplace, the fact that Jackson was the only female out of fourteen MHTs supports her contention that DRH preferred males for that particular position.”  Nonetheless, the Court rejected the employer’s argument that this factor was outweighed by the fact that the decisionmaker was also female and the plaintiff had always received positive performance evaluations because the evaluations might have warranted more leniency and the Supreme Court's decision in 

Oncale does not prohibit any consideration of the fact that the decision-maker was the same sex as the plaintiff. See id. But that case makes clear that a mere conclusory assertion to that effect does not, on its own, render unreasonable an inference of discriminatory intent. We find this maxim especially true here, where the primary inference Jackson attempts to draw from the record is that Crisis Center management preferred males for the position of MHT, perhaps “because they thought females could not physically handle unruly patients.” (Pl.’s Br. At 1.) Jackson’s case is thus largely unaffected by the fact that her managers were female.

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 be changed or 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.

Sixth Circuit Reverses Employer’s Summary Judgment Where Plaintiff Was Fired Following Altercation But White Co-Worker Was Not Fired Until After Charge of Discrimination Was Filed

Earlier this month, the Sixth Circuit reversed an employer’s summary judgment on a race discrimination claim where the plaintiff had been fired for his role in an altercation but his white co-worker was not (until after the discrimination charge was filed).  Wheat v. Fifth Third Bank, No.13-4199 (6^th Cir. 5-4-15).  The Court found that the plaintiff had stated a prima facie case of discrimination and produced enough evidence of pretext to put the case to a jury.  In particular, the Court found the plaintiff could show that he was similarly situated to the white co-worker in relevant respects even though they had slightly different job duties and behaved differently in the investigatory interview.  What was relevant for comparative purposes was their behavior during the argument.  In addition, the Court found that a reasonable jury could conclude that the Bank’s decision to terminate the plaintiff had no basis in fact, did not motivate its termination decision, or was insufficient to warrant termination.   In so holding, the Court emphasized the different manner in which the Employee Relations employee conducted the interviews of the white and black participants and the conclusions she reached from ambiguous comments by the plaintiff.

According to the Court’s opinion, the plaintiff got into a brief and unprofessional confrontation with a white co-worker.   After the plaintiff returned to his work area, the co-worker then proceeded to the plaintiff’s desk and resumed the disagreement, which was then taken into the hallway at the suggestion of another co-worker. Their physical contact was limited to a swat by the white employee.  A supervisor separated them and Human Resources was brought in to take action.  The plaintiff was still angry, was unprofessional during the interview and refused to answer certain questions.  He felt that no one asked his side of the story and asked him only questions to confirm that he was guilty of initiating the altercation.  At one point, he threw his employee badge on the table, but took it back and denied he was resigning because he felt that he had not done anything wrong.  After he indicated without further elaboration that “Monday would be a big day,” he was directed to go home and not return until called.  The white employee was then called to the conference room, asked his side of the story, told to go home only for the rest of the day and was requested to return to work the following Monday.  He explained that they were just having a bad day.    The HR employee explained that the plaintiff posed a threat of workplace violence, but the white employee did not. That Monday, the plaintiff was terminated for violating the workplace violence and harassment policies.  The white employee was given only a written disciplinary action, being deemed the non-aggressor, which stated that he “did nothing wrong and the next time just go straight to management.”  His supervisor told him that he was “absolutely fine.”    

The Bank conducted a second investigation of the incident after receiving the plaintiff’s Charge of Discrimination.   The white employee claims that he provided the same version of events as during the first interview and again reiterated that he was the one that had reinitiated the argument after the plaintiff had left and that he was the one who had swatted the plaintiff in the hallway.   The Human Resources employee found his second version to be materially different and then fired him for violating the workplace violence policy and being dishonest in the first interview.  Following its investigation, the EEOC found probable cause of discrimination, but could not settle the plaintiff’s Charge.    This lawsuit followed.

The district court had concluded that the plaintiff could not show that a similarly situated employee who was treated differently from his white co-worker.   The Bank argued that the plaintiff had a different job, was the aggressor during the altercation and was rude and inappropriate in the post-altercation interview.   Based on the testimony of the plaintiff and his supervisor, however, the Court concluded that the plaintiff and the white co-worker were performing different aspects of the same job and, thus, were similar enough for comparison.  For evidentiary purposes, a ““plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment” to be considered “similarly situated.” Instead, a plaintiff need show only that he and his comparator were “similar in all of the relevant aspects.””

 

More fundamentally, the identity of job responsibilities is not truly relevant here to the question of whether Wheat and Hatfield were similarly situated for Title VII purposes. Rather, because Wheat’s termination was spurred by a verbal, and potentially physical, altercation, the relevant comparison between Wheat and Hatfield should involve only the two men’s roles and actions in the contretemps.

Similarly, the Court rejected the Bank’s argument about plaintiff being the aggressor because there were disputed issues of fact as to who was responsible for prolonging the altercation and initiating any physical contact. “Such divergent explanations of the unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant of summary judgment to the defendant at the prima-facie-case stage of the litigation.”

 

The Court also rejected the argument that they were different in how they behaved during the interview because there was a factual dispute about how the HR employee conducted the interviews, which may have created some justification for the plaintiff to refuse to answer certain questions.  Moreover, his comments -- which the HR employee found to be threatening -- were ambiguous and were not found to be threatening by his supervisor (who was present during the interview).  

The Court also found that the plaintiff had produced evidence to cast doubt on the Bank’s explanation for his termination sufficient to rebut its explanation as a mere pretext for discrimination.  

“Pretext can be shown by offering evidence that (1) the employer’s stated reason had no basis in fact, (2) the stated reason did not actually motivate the employer, or (3) the stated reason was insufficient to warrant the adverse employment action.”

The Court addressed each of the Bank’s termination explanations.  It found there was sufficient evidence to question whether the plaintiff’s behavior in the investigatory interview was sufficient to warrant his termination.  The plaintiff claimed that the HR employee’s questions were irrelevant and she never asked for his version of events, although she did so of the white employee.  Similarly, his vague statements about Monday being a “big day” and him “taking care” of himself were too ambiguous to warrant termination, particularly when the plaintiff denied making any threats.

The Court also rejected the Bank’s concern that the plaintiff would initiate more violence upon return to work because evidence had been produced that the white employee had been the aggressor, not the plaintiff.  In light of the fact that the white employee maintains that he had always told the Bank the truth about what happened, the HR employee’s credibility was in question as to whether she could genuinely have believed that the plaintiff was the aggressor before he was fired.

A jury could reasonably conclude that each of the rationales proposed by the defendant for its decision to fire Wheat either had no basis in fact, did not actually motivate the defendant’s decision, or was insufficient to warrant the challenged conduct.

Interestingly, there was no discussion in the opinion about the honest belief rule where the defendant acts based on mistaken assumptions after a good faith investigation.

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 be changed or 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.

Unanimous Supreme Court Approves Limited Review of EEOC Conciliation Efforts

Yesterday, a unanimous Supreme Court held that the mandatory conciliation efforts required by Title VII before the EEOC files any lawsuit is subject to narrow federal court review.  Mach Mining v. EEOC, No. 13-1019 (U.S. 4-29-15).   However, because the discussions held during conciliation process are confidential and the EEOC has “extensive discretion to determine the kind and amount of communication with an employer is appropriate in any given case,” the court’s review is very limited and typically can be satisfied by an affidavit that the EEOC has described to the employer in the reasonable cause determination letter the alleged discrimination it has perpetuated and who has been harmed and that the employer had been given an opportunity to remedy the alleged discriminatory practice before the suit was filed.   Nonetheless, if the employer disputes that it had been sufficiently informed or given an opportunity to conciliate, the court may engage in limited factfinding.  In any event, the remedy for inadequate conciliation is only to order the EEOC to engage in conciliation.

According to the Court’s opinion, a woman filed a Charge alleging that the defendant employer had not hired her on account of her sex.  The EEOC conducted an investigation and concluded that reasonable cause existed that the employer had discriminated against her and a class of other female applicants.   In announcing its decision, the EEOC invited the parties to engage in informal dispute resolution and promised that an EEOC employee would soon contact them to begin the conciliation process. About a year later, the employer received a letter announcing that conciliation had failed and further efforts would be futile. The EEOC then filed suit.  In response, the employer asserted in its Answer that the EEOC had failed to satisfy the requirement that it first attempt to conciliate the dispute in good faith before filing suit.  When the EEOC moved for summary judgment, it argued that the court could only inspect the two letters sent to the employer, but the employer prevailed in arguing that the court should consider whether the EEOC engaged in sincere and reasonable efforts to conciliate.  On appeal, the Seventh Circuit reversed, finding no review or only cursory review was permitted. The Supreme Court reversed again.

Under Title VII, if during the EEOC’s investigation of a Charge of Discrimination, it determines that reasonable cause exists that unlawful discrimination occurred, it may file suit to eliminate and remedy the discriminatory practice.  However,

 it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b). To ensure candor in those discussions, the statute limits the disclosure and use of the participants’ statements: “Noth­ing said or done during and as a part of such informal endeavors” may be publicized by the Commission or “used as evidence in a subsequent proceeding without the writ­ten consent of the persons concerned.” Ibid. The statute leaves to the EEOC the ultimate decision whether to accept a settlement or instead to bring a lawsuit. So longas “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission” itself, the EEOC may sue the employer. §2000e–5(f)(1). [underlining added for emphasis).

The Court rejected the EEOC’s argument that the conciliation process was not subject to any judicial review because there is a rebuttal presumption that all agency actions are subject to judicial review.   In stronger terms, judicial review “is the norm.”  While Title VII gives the EEOC “abundant” discretion, that discretion merely limits the scope of review, not the fact of review.   The mandatory conciliation actions

neces­sarily involve communication between parties, including the exchange of information and views. . . . That communication, moreover, concerns a particular thing: the “alleged unlawful employment practice.” So the EEOC, to meet the statutory condition, must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. See also infra, at 13. If the Commission does not take those specified ac­tions, it has not satisfied Title VII’s requirement to at­tempt conciliation.

As for the scope of the judicial review, the Court rejected the employer’s argument that the conciliation process should be similar to the good faith bargaining process in the  union context and rejected the EEOC’s argument that only certain documents – such as the two letters sent to the defendant employer – could be reviewed.

 . . . But review of that kind falls short of what Title VII demands because the EEOC’s bookend letters fail to prove what the Government claims. Contrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim; the later one expressly represents as much. But suppose an employer contests that statement. Let us say the employer files an affidavit alleging that although the EEOC promised to make contact, it in fact did not. In that circumstance, to treat the letters as sufficient—to take them at face value, as the Government wants—is simply to accept the EEOC’s say-so that it complied with the law. And as earlier ex­plained, the point of judicial review is instead to verify the EEOC’s say-so—that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge. should be examined.

   . . . .

To begin, however, we reject any analogy between the NLRA and Title VII. The NLRA is about process and process alone. It creates a sphere of bargaining—in which both sides have a mutual obligation to deal fairly—without expressing any preference as to the substantive agreements the parties should reach. See §§151, 158(d).By contrast, Title VII ultimately cares about substantive results, while eschewing any reciprocal duties of good-faith negotiation. Its conciliation provision explicitly serves a substantive mission: to “eliminate” unlawful discrimination from the workplace. 42 U. S. C. §2000e– 5(b). In discussing a claim with an employer, the EEOC must always insist upon legal compliance; and the em­ployer, for its part, has no duty at all to confer or exchange proposals, but only to refrain from any discrimination. Those differences make judicial review of the NLRA’s duty of good-faith bargaining a poor model for review of Title VII’s conciliation requirement.

In addition, Title VII gives the EEOC wide flexibility.  It need only “endeavor” to “informally” conciliate.  Moreover, a NLRB-type review would violate the confidentiality rules which govern conciliation.

In practice, the EEOC typically satisfies its obligation to give notice to the employer of the allegations in the reasonable cause determination letter. After that,

the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory prac­tice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct concil­iation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provi­sion, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what hap­pened (i.e., statements made or positions taken) during those discussions.

A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. . . . If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.  . . . Should the court find in favor of the employer, the appro­priate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

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 be changed or 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.

Sixth Circuit Affirms $1.5M Verdict for Sexual Harassment of and Retaliation Against Temporary Employees

Last week, a unanimous Sixth Circuit affirmed a $1.5M jury verdict against a logistics employer which fired three women and one male employee who protested sexual harassment by a supervisor who also played significant roles in having each of them fired.  EEOC v. New Breed Logistics, No. 13-6250 (6^th Cir. 4-22-15).  The Court rejected the employer’s argument that opposing and protesting a supervisor’s sexual harassment to his face is not protected “opposition” under Title VII and specifically noted that the statute does not require the employee to protest to anyone in particular.  The Court also found the employer could be held liable for punitive damages based solely on the harassing supervisor’s knowledge and conduct and because the employer did not distribute the anti-harassment policy to temporary employees, did not conduct a good faith workplace investigation of the anonymous harassment complaint about the supervisor, and terminated three of the four plaintiffs during the workplace investigation.

According to the Court’s opinion, the defendant employer operated with mostly temporary employees assigned from staffing companies.  It only provided employee handbooks to its regular employees.  One of its supervisors had the authority to terminate temporary employees and was regularly harassing female subordinates with lewd comments and physical contact.   Not only did the employees object to his conduct, a male co-worker also requested that he stop it.  Only one of the employees ever complained to management and only did so anonymously.  The subsequent investigation was initially limited to interviewing the harassing supervisor.  All of the plaintiffs were ultimately fired shortly after the anonymous complaint was made.  Two of them were fired for purported attendance issues and two for making a mistake.   The harassing manager was found to have been the decisionmaker or to have played a role in all of their terminations.  The employees denied having attendance issues and evidence was presented that other employees had made mistakes without being fired.

The employer had argued that the plaintiffs could not prove retaliation because they could not show that they engaged in any protected conduct before their termination.  Only one of them had made an anonymous complaint to management prior to her termination.  The employer contended that the employees’ protest to the harassing supervisor himself and resistance to his harassment was not protected conduct.  Surprisingly, two other court decisions agreed with this argument, with one of them noting that resistance to harassment could not be protected conduct or every harassment claim would automatically constitute a retaliation claim as well.  The Sixth Circuit rejected this argument because Title VII’s opposition clause in the anti-retaliation provision prohibits retaliation against any employee because the employee opposed an unlawful employment practice.   The Supreme Court has previously noted that “oppose” means to resist.  Therefore, the Sixth Circuit has found protected opposition with informal complaints of discrimination:

[A] demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful  harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed.

Because the supervisor knew of their protests of his behavior and played a role in their terminations, the Court had no difficulty finding sufficient evidence of but-for causation in their retaliation claims.   Where he merely played a role in two plaintiffs’ termination, the decisionmaker relied upon his evaluation of their work and gave inconsistent explanations about why she held them to a higher standard than other employees.   There was also a strong temporal proximity between the time of the protected conduct and the retaliatory terminations.  In addition, the EEOC was able to provide evidence that the reasons given for the terminations were pretextual because the harassing supervisor had told one of the employees that he would disguise her tardiness (instead of discharging her), one of the employees had never been accused of attendance issues before he was fired shortly after being interviewed during the harassment investigation, and two of the employees could show that other employees had make similar mistakes and not been fired.

The Court also refused to consider the employer’s Ellerth affirmative defense because each of the plaintiffs suffered a tangible employment action when they were fired.

The Court found that the employer could be held liable for punitive damages.  The Court rejected the employer’s argument that it could not be liable since sexual harassment was outside the scope of the supervisor’s employment because the tangible employment action -- firing the employees -- was within the supervisor’s authority.  The Court also rejected the employer’s defense that management could not have acted with deliberate disregard of federal law since management did not previously know about the harassment because the supervisor clearly knew about the harassment. “The EEOC only had to show that the “individual[] perpetrating the discrimination [or, here, retaliation]” acted with malice or reckless disregard for federally protected rights.”   

Further, the Court rejected the employer’s good faith defense because it did not undertake efforts to prevent and remedy the harassment by, for instance, providing an employee handbook or harassment policy to the temporary employees.  It also had initially only interviewed the supervisor after the anonymous complaint was made and did not interview all of the potential witnesses identified. “In assessing whether an employer engaged in good-faith efforts to comply with Title VII, we focus “both on whether the defendant employer had a written sexual harassment policy and whether the employer effectively publicized and enforced its policy.’”  Finally, the jury was entitled to infer a lack of good faith from the fact that three of the plaintiffs were terminated during the employer’s investigation of the anonymous complaint.  

The jury instruction on punitive damages omitted language about the employer’s good faith defense.  The Court found that the employer had waived its objection to this omission by failing to argue about the missing language during the charge conference even though the employer had submitted a proposed jury instruction with the missing language.   The Court also rejected the employer’s argument that it constituted plain error for the jury instruction to omit the employer’s good faith defense because the employer did not make an argument about its good faith during its closing arguments to the jury. 

The Court also rejected challenges to the jury instruction use of “because of” instead of “but for” in the retaliation instruction.  

The EEOC press release about its victory mentions that the lawsuit was first filed in September 2010 and the jury reached its verdict in May 2013.

 

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 be changed or 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.

Sixth Circuit Dismisses Title VII and §1983 Claims Brought by Volunteer Nuns

On Friday, the Sixth Circuit Court of Appeals dismissed for lack of subject matter jurisdiction Title VII religious discrimination and retaliation claims brought by two nuns who volunteered with the Red Cross and the Ross County Emergency Management Agency.   Sister Michael Marie v. American Red Cross, No. 13-4052 (6^th Cir. 11-14-14).  Similar constitutional and first amendment claims against the agency were likewise dismissed. The plaintiffs both volunteered with the Red Cross and county agency.  They alleged that the Red Cross denied them promotions to volunteer positions with higher authority and responsibility on account of their religion and terminated them in retaliation for complaining.  They allege that they were later terminated by the county agency for similar reasons and that the Red Cross Executive Director served on the Board of the agency.  They filed with the OCRC and EEOC Charges of Discrimination, which were dismissed for lack of jurisdiction since the nuns volunteered with the respondents and were not employees.  Neither plaintiff received or expected any monetary compensation for their services and did not receive any employment benefits, but were eligible for workers compensation, life insurance and travel reimbursement.  They filed suit in federal court, which dismissed the claims and was affirmed on appeal.

The Court of Appeals determined that coverage under Title VII is limited to common law employees, which depends on a number of factors, such as:

[1] the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

While this test is most frequently utilized to determine whether an individual is an employee or independent contractor, it can also be applied to determine whether a volunteer is a covered employee.  Unlike other circuits, the Sixth Circuit considers compensation to be just one of the relevant factors, instead of categorically more important.  The Court rejected the plaintiff’s argument that it should be of lesser importance. After noting that the plaintiffs received no compensation or employment benefits, it also noted that they largely controlled when they volunteered and how they performed.  The plaintiffs were in no way economically dependent on the defendants.  The only factors in their favor was that the plaintiffs had worked for the defendants for several years and performed services in the defendants’ core business. Nonetheless, it was debatable whether the nature of their services was like that typically performed by employees or independent contractors.

The Court also found that the plaintiffs did not show that they were retaliated against on the basis of their religious beliefs.  The agency’s executive director had been initially friendly with them, which meant that another factor must have arisen when his behavior allegedly changed years later.  The Court also concluded that they could not show denial of equal protection because they failed to identify any other volunteers who were treated differently in that they were the only two volunteers who criticized the agency’s management.

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.

Sixth Circuit: Pro Se Plaintiff Gets Another Chance to Prove Unlawful Retaliation

Earlier this month, the Sixth Circuit Court of Appeals in Cincinnati reversed summary judgment for an employer on a retaliation claim brought by a pro se plaintiff while affirming dismissal of the underlying discrimination claim based on the same factual allegations.  Lasterv. City of Kalamazoo, No. 13-1640 (6^th Cir. 3-13-14).   The Court affirmed dismissal of the underlying discrimination claim because many of the alleged events had been remedied when grieved and had not been implemented with the intent of forcing the plaintiff to retire.   Without a constructive discharge, the Court concluded that the plaintiff could not show that he suffered a "materially adverse employment action" as necessary in a Title VII discrimination claim.  However, the Court concluded that the district court erred by analyzing the Title VII retaliation claim under the same analysis applied to the First Amendment retaliation claims and the Title VII discrimination claims.  Title VII retaliation claims have a lower burden of showing a “materially adverse action” and could survive summary judgment based on the same alleged facts that were just found insufficient to support a discrimination claim.

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.

Sixth Circuit: No Summary Judgment for Employer in Sex-Plus Race Title VII Case Or Honest Belief Defense Based on Cursory Investigation

Last week, the Sixth Circuit Court of Appeals reversed summary judgment for the employer in a Title VII case.  Shazor v. Professional Transportation Management, Ltd., No. 13-3253 (6^th Cir. 2-19-14).  Among other things, the Court held that the plaintiff could survive summary judgment even though she was replaced by a female because her replacement was not an African-American female.  In other words, the Court employed a sex-plus analysis and decided to not separate her sex from her race. The Court also found that the plaintiff could show that the employer’s explanation for her termination – that she had been dishonest – was pretextual simply by creating an issue of fact as to whether her challenged statements were false.  The Court also rejected the employer’s honest belief defense because it only interviewed one witness about whether the plaintiff had lied during a board meeting and never questioned her about her motive for the misstatements.   While the sole interview might have been sufficient to discharge her for “overt misconduct,” it was insufficient to determine the truth or motive behind her statements.

According to the Court’s opinion, the defendant employer provided management services to a transit authority and, among other things, assigned plaintiff to be the transit authority’s CEO even though she had worked in public transit only two years.  When the plaintiff refused to participate in educational seminars that her employer provided, some of its management began questioning  her loyalty and whether she was attempting to be hired directly by the transit authority.  She was referred to in some emails as a “prima donna” and in one email as a “bi*ch.”  In her positive performance evaluation, she was criticized for poor teamwork.

Almost a year later, a dispute arose about two representations that the plaintiff made to the board of the transit authority about her employer’s willingness to provide training and consulting services concerning a labor-relations issue.  She had recommended the retention of a competing firm (which had a reputation of being anti-union) to provide training services and testified this had been the recommendation of the HR Director and General Counsel.  (The General Counsel later told her supervisor that the decision had been the plaintiff’s).  When questioned by the Board, she claimed that her new supervisor was too busy to handle union negotiations.  Some board members requested to meet specially with her supervisor to confirm this. There was some suspicion that she was not being honest because her supervisor had been active consulting with the authority in the past and she had a reputation of keeping her employer at arm’s length.   Plaintiff produced an email where her supervisor said he had another appointment on the date when the union wanted to meet and which showed that she had requested him to submit a proposal to provide union relations training.   When the meeting was held with the Board and her supervisor, the supervisor said that the plaintiff had lied when she said he was not available.  He fired her a few days later for being dishonest with the Board about his availability and for denying her role in selecting a competing firm to provide the union relations training.   His investigation consisted of one conversation with the authority’s General Counsel.     A Hispanic woman was eventually selected to replace the plaintiff as CEO.

The Court questioned the plaintiff’s argument that the emails constituted direct evidence of discrimination by essentially referring to her as an “angry black woman” or “uppity black woman.”  The email authors were not her supervisors or decisionmakers.  “Viewed as a whole,” their emails “might only show “occasional[]” sexist and racist comments, which would not be enough to establish direct evidence of discriminatory intent.”  Moreover, the Court was unsure if the cat’s paw theory could be used where the email authors were never her supervisors, had never sent them to the supervisor who terminated her and had sent the emails more than a year before her termination.  However, the Court ultimately decided to not rule on that issue because it found that she had presented sufficient circumstantial evidence to survive summary judgment.

 

The Court held that the plaintiff had shown that she was replaced by someone outside her protected class.  First, plaintiff is African-American and her replacement is Hispanic.   As for her sex discrimination claim, the Court refused to separate her gender from her race for purposes of evaluating her prima facie case:

Moving to Plaintiff’s sex discrimination claim, we find that it cannot be untangled from her claim for race discrimination. Naturally, “where two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). The Supreme Court has acknowledged this truism and held that a plaintiff can maintain a claim for discrimination on the basis of a protected classification considered in combination with another factor. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam). In many of these so-called “sex-plus” cases, the plaintiff’s subclass combines a characteristic protected by Title VII with one that is not. See id. We have therefore required sex-plus plaintiffs to show unfavorable treatment as compared to a matching subcategory of the opposite sex. See Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 438–39 & n.8 (6th Cir. 2004).

In the case now before us, both classifications—race and sex—are protected by Title VII. These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure. Cf. Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994)(discussing sex-and-race Title VII claim brought by Asian woman). And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds. Thus in Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999), we held that a plaintiff could rely on evidence of religious harassment to buttress his claim for racial harassment, even though the religious harassment claim could not survive independently.

 . . . If a female African American plaintiff (for example) establishes a sufficient foundation of discrimination, a defendant cannot undermine her prima facie case by showing that white women and African American men received the same treatment. See id. at 1032–33; see also  Gorzynski, 596 F.3d at 109–10. The realities of the workplace, let alone the purpose of Title VII, will not allow such an artificial approach. . . . .

The Court rejected the employer’s argument that the question should be whether the plaintiff can identify anyone similarly situated outside her protected class who was treated better.

This method is especially useful in cases where the plaintiff is not terminated, is not replaced, or is not replaced with a single person.. . .  But the replacement method works especially well when a plaintiff is terminated and the employer hires a single replacement to do the same job. That is precisely what happened in this case.

The Court rejected the plaintiff’s argument that the white male temporary replacement should have been considered to be her replacement because he was temporary.  The Court also left open the employer’s ability to show at trial that it had put forth four candidates to replace the plaintiff and the transit authority chose to hire the Hispanic woman.

 As for pretext, the employer explained that it had terminated the plaintiff because she lied to the transit authority board.  The Court found that the plaintiff produced sufficient evidence to prove that this explanation was pretextual because it lacked basis in fact.  In short, she produced sufficient evidence to question whether her statements to the board “were clearly untrue.” 

A jury can consider Hock’s and Plaintiff’s credibility and weigh the evidence accordingly. We cannot.

As for her denial to the Board that she was involved in the decision to recommend her employer’s competitor, the Court found the employer could not prevail on summary judgment because it produced only hearsay evidence to show that the plaintiff had lied.  Instead of producing deposition testimony or an affidavit from the General Counsel refuting his role in the decision and putting that decision on the plaintiff, the employer produced only an affidavit from the plaintiff’s supervisor claiming that this is what he had been told by the General Counsel.  Moreover, “Plaintiff’s sworn testimony that she did not have a role in the retention of MPI is enough to create a genuine issue of fact.”  

Finally, the Court rejected the employer’s reliance on the honest belief doctrine and created a higher threshold for this doctrine when the employee’s misconduct is based on lying and the employer failed to question her about the motive for her misstatements: 

“If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual even if it was erroneous.” . . .  “The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained-of action.”

Hock’s investigation into Plaintiff’s two purported lies consisted of speaking with one person, Desmond, about the retention of MPI. Perhaps this single interview could satisfy the requirement that the investigation turn up particularized facts if Hock had fired Plaintiff for overt misconduct.  . . . .  But Hock fired Plaintiff for lying—not   just uttering a falsehood, but doing so “with intent to deceive.” Webster’s Third New Int’l Dictionary 1305 (1993). One conversation did not establish sufficient particularized facts about the truth behind Plaintiff’s statements, let alone her motive. Defendants have therefore failed to establish a foundation for the honest belief doctrine to apply.

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.

Sixth Circuit Affirms Summary Judgment for Employer Which Discovered Attempted Discrimination and Did the Right Thing

Last week, the Sixth Circuit Court of Appeals issued an opinion which demonstrated how an employer can avoid liability for blatantly unlawful discrimination when it discovers the problem soon enough to hit the re-start button.  Reeves v. Tenn. Farmer’s Mutual Ins. Co., No. 13-5824 (6^th Cir. 2-4-14).  The hiring manager told a female subordinate that he would never hire a woman for the claims adjuster position and then promptly hired a golf-pro to fill the open position.  When she complained, the Company quickly investigated, removed the hiring manager from the process, rescinded the job offer, re-started the hiring process and ultimately promoted a different female employee into the position.   The plaintiff filed suit, but the court granted summary judgment to the employer. The Sixth Circuit affirmed not only because the plaintiff could not identify a male who received better treatment, but also because when the employer discovered the hiring manager’s attempted discrimination, “it did exactly what it was supposed to do.”

According to the Court’s opinion, the plaintiff worked as a claims assistant. When a claims adjuster position became available, the employer failed to provide any training or parameters to the hiring manager.  When the plaintiff expressed interest in the position, the hiring manager told her that he would never hire a woman into the position because of “safety concerns.”  When the plaintiff called the female AVP of Claims, she was told there was nothing that could be done if the hiring manager did not want to hire her.  The hiring manager then interviewed 8 male candidates and the plaintiff.  Plaintiff was ranked second and a conditional job offer was made to a male golf pro.  When the plaintiff objected to the VP of Claims, an immediate call was placed to the hiring manager, who confirmed her allegations (because he obviously did not know any better).   The VP immediately put the hiring process on hold and brought in the employer’s legal department.   A more thorough investigation was conducted which confirmed that that hiring manager had made the alleged statement to the plaintiff, that he had disregarded the employer’s established practice of preferring internal candidates and that he had excluded potentially qualified candidates because they lacked college degrees.  Therefore, the employer rescinded the job offer, re-started the hiring process without the hiring manager’s participation, re-invited the plaintiff to apply and expanded the candidate pool to include two additional female applicants.

However, the plaintiff failed to impress the new hiring decisionmakers during her interview because she seemed anxious, rambled and criticized her co-workers.  She was not ranked among the top three candidates.  The golf pro, however, continued to impress and was ultimately ranked third. The top ranking candidate – another male – withdrew his application. The second ranked candidate was another female employee with greater tenure and experience than the plaintiff.  Therefore, she was offered the job.

The district court granted the employer summary judgment because the plaintiff could not identify a male who was treated better than her.  The Sixth Circuit affirmed.  The Court rejected the plaintiff’s argument that she suffered an adverse job action when the conditional job offer was initially made to the golf pro because it was ultimately rescinded.

But our inquiry is practical, not metaphysical. In response to Reeves’s complaint, Farmers immediately rescinded Martin’s offer and started the hiring process over. . . .

In summary, once Farmers found out about Delk’s (attempted as it turns out) discrimination, it did exactly what it was supposed to do. Reeves’s claims fail as a matter of law.

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.

Sixth Circuit: Vague Complaint To HR About Derogatory Comments Forms Basis for Next Week’s Retaliatory Discharge

Yesterday, a divided Sixth Circuit reversed summary judgment in favor of an employer on a retaliatory discharge claim brought under Title VII by a former executive who was fired for not being a “good fit”  shortly after “venting” to the Vice President of Human Resources on an overseas trip about repeated and inappropriate derogatory racial comments about other individuals made by another executive.  Trujillo v. Henniges Automotive Sealing Systems North America, Inc., No. 11-1148 (6^th Cir. 10-17-12).   The Court did not find the plaintiff’s vague expressions of discomfort to the offending speaker to constitute protected conduct because they were not complaints or expressions that he was in any way offended.  However, complaining to the VP about repeated derogatory statements about other races “can be construed as a complaint about a hostile work environment caused by racial and national origin discrimination.”

 It did not matter that the comments were not directed to him or about him.  It also did not matter that the individual incidents might not constitute actionable harassment, if collectively they could do so.   “We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation.”

 The district court had found the conversation with the VP was too informal to constitute protected conduct.  The Court conceded that in the past it has “found that some complaints to human resources personnel are not sufficiently specific to constitute opposition to employment discrimination.”  It has not extended protection to complaints about management style or vague comments of possible discrimination.   However, it concluded that a good faith complaint about a possible hostile work environment was sufficiently related to opposing unlawful employment practices to warrant protection in this case.

 The dissenting judge would have found the comments to be protected under Title VII only if the plaintiff had brought the issue to the attention of HR because it constituted discrimination against him or against other employees.  Instead, the plaintiff admitted that he had only been venting and had not intended for her to take any action. “Not every casual remonstrance against bad language equates to complaining of illegal discrimination.”

 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.