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 Finds Production of Irrelevant Confidential Documents During Discovery Is Not Protected Participation or Opposition Under Title VII

On Tuesday, the Sixth Circuit decided “the scope of protection that should be afforded to employees who disseminate confidential documents in violation of their employer’s privacy policy in the context of employment-related litigation.” In that case, the plaintiff had been fired after providing documents with confidential client information to the attorneys who were prosecuting a class action pay discrimination lawsuit on the behalf of her and other female employees. The Sixth Circuit held that her conduct was not protected by federal law and, therefore, the employer was permitted to discharge her for violating its confidentiality policy. Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08).

In Niswander, the plaintiff joined a class action pay discrimination lawsuit against her employer in 2003. She was a claims adjuster who worked from her home. She later came to believe that her employer retaliated against her for participating in that lawsuit, informed the human resources department in 2004 and filed an EEOC Charge the following year. She also informed the class action attorneys of her perceived retaliation and they indicated that they were interested in pursuing a claim on her behalf. When, in connection with the pre-trial discovery process, her attorneys asked her to provide copies of any documents “related to her employment” and “any documents you think might be even remotely helpful to our case,” she complied with their request so that they would not suffer sanctions from the court for failing to comply with the discovery process. Importantly, no lawsuit had been filed on her behalf allegation unlawful retaliation against her.

The plaintiff “admitted in her deposition that she had “no documents to support an equal pay [claim].” Instead, she sent documents that she believed were relevant to” the employer’s “alleged acts of retaliation against her. Some of the documents that Niswander sent were copies of e-mails back and forth with her supervisors related to her job performance. Other documents, however, were claim-file documents that allegedly would jog her memory regarding instances of retaliation, but that did not in and of themselves contain evidence of retaliation. In sending the documents to her lawyers, some of which included information about” her employer’s clients, the plaintiff “thought everything was confidential” and that “anything [she] produced was all between” her and the company’s attorneys. However, when her employer received copies of the confidential documents which she had given to her attorneys (to give back to her employer), it terminated her for violating its confidentiality policy.

Title VII prohibits employers from “discriminat[ing] against any of his employees . . .
because [the employee] has opposed any practice made an unlawful employment practice by [Title VII] [the so-called “opposition clause”], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII] [the so-called “participation clause”]. 42 U.S.C. § 2000e-3(a).” In order to state a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in protected activity (i.e., opposition or participation), (2) the employer knew of the employee’s protected activity, (3) the employee later suffered from an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000). In Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), the Supreme Court held that “the scope of Title VII’s retaliation provision is broader than that of Title VII’s discrimination provision.”

In Niswander, the court was required to decide whether the plaintiff’s provision of the confidential records to her attorneys constituted protected participation or opposition. “’The distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). With respect to the participation clause, we have recognized that the clause’s ‘exceptionally broad protections . . . extend[] to persons who have participated in any manner in Title VII proceedings. ‘Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) (citation and internal quotation marks omitted). “[O]nce the activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.”

“’The opposition clause, on the other hand, covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers.’ Johnson, 215 F.3d at 579. We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.”

The court then held that the production of the confidential documents to her attorneys did not constitute protected participation because the documents were admittedly not relevant in any way to the pay discrimination claims being asserted in the pending lawsuit. “An individual’s delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating ‘in any manner’ in a Title VII proceeding. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (explaining that the purpose of the participation clause ‘is to protect the employee who utilizes the tools provided by Congress to protect his rights’).” However, to find that the plaintiff’s actions in this case constituted protected participation in the pay discrimination lawsuit, “would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.”

Whether the plaintiff’s conduct constitutes protected opposition conduct depends upon a balancing of her interests with that of her employer. “A balance must be achieved between the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions. Allowing too much protection to employees for disclosing confidential information may perversely incentivize behavior that ought not be tolerated in the workplace—namely, the surreptitious theft of confidential documents as potential future ammunition should the employee eventually feel wronged by her employer. On the other hand, inadequate protection to employees might provide employers with a legally sanctioned reason to terminate an employee in retaliation for engaging in activity that Title VII and related statutes are designed to protect.”

Prior decisions had indicated that employees did not have the right to search their employer’s confidential personnel and other files in order to obtain documents in support of their discrimination claims. In another case, the court permitted an employee to provide his attorney with documents which he “innocently” obtained because they were on the hard drive of computer assigned to him by his employer.

“Based on the analysis applied by the courts in the cases discussed above, we believe that the following factors are relevant in determining whether Niswander’s delivery of the confidential documents in question was reasonable: (1) how the documents were obtained, (2) to whom the documents were produced, (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct, (4) why the documents were produced, including whether the production was in direct response to a discovery request, (5) the scope of the employer’s privacy policy, and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy. These factors are designed to take into account the employer’s ‘legitimate and substantial interest in keeping its personnel records and agency documents confidential’ and yet protect the employee’s alleged ‘need for surreptitious copying and dissemination of the documents.’”

In this case, the plaintiff “could have preserved the alleged evidence of retaliation in other ways; in particular, she could have taken notes of the incidents that she believed demonstrated retaliation instead of delivering documents that contained confidential policyholder information. Producing confidential documents for the sole purpose of jogging one’s memory, when there are readily available alternatives to accomplish the same goal, does not constitute the kind of reasonable opposition activity that justifies violating a company’s privacy policy.”

“Although employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices, including discrimination and retaliation, ‘we are loathe [sic] to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation.’ O’Day, 79 F.3d at 763. To hold in favor of Niswander would turn the opposition clause into ‘a license to flaunt [sic] company rules or an invitation to dishonest behavior.’ Id. at 764. So even after viewing the evidence in the light most favorable to Niswander, we conclude that her production of the documents was not reasonable under the six factor test set forth above.”

“The only factors that arguably weigh in Niswander’s favor are factors one and two, but even those do not weigh heavily in her favor. Although she had access to the documents through her employment, Niswander did not innocently acquire the documents in the same manner as the plaintiff in Kempcke, who came across evidence of potential age discrimination in a company computer that had been issued to him. See Kempcke, 132 F.3d at 445. Rather than innocently stumbling upon evidence of illegal employment practices, Niswander specifically searched through the CIC documents that she had at her home office for the purpose of uncovering evidence of retaliation. Such behavior cannot be classified as truly innocent acquisition.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0221p-06.pdf.

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: Employers Can Now Be Liable for Off-Duty, Off-Site Retaliation by Co-Workers.

Yesterday, in Hawkins v. Anheuser-Busch, Inc., No., 07-3235 (6th Cir. 2/19/08), a unanimous Sixth Circuit Court reinstated the co-worker retaliation claims of one plaintiff and affirmed the denial of a similar claims by a non-complaining witness to the harassment. This case is significant because it is the first time the Sixth Circuit has recognized an employer's liability for retaliation by a co-worker. In addition, even though the most significant retaliatory acts took place after working hours and off the company's property, the employer was faulted for not conducting a more thorough investigation.

In Hawkins, four women complained of sexual harassment by the same nefarious serial sexual harasser, who then allegedly retaliated against one of them and a witness by, among other things, slashing their tires at their home and in the company parking lot, scratching their cars, threatening to kill them, setting the car on fire of one of the women, and, burning down the home of the non-complaining witness. After the first sexual harassment complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that it would never be rid of the harasser following that arbitration, the employer failed to take significant action when they continued to receive complaints from female employees about the harasser’s lewd comments and touching. Rather, the employer generally responded by transferring the women to other production lines. After receiving additional complaints about more harassment and violent retaliation, the employer in July 2003 again fired the harasser, who lost his union grievance in arbitration. The following month, the harasser killed his girlfriend and committed suicide.

The Court noted that it had never previously recognized a claim for co-worker retaliation under Title VII. Indeed, the District Court had dismissed the retaliation claims on summary judgment on that basis. However, the Court recognized that a majority of the federal circuit courts to have addressed the issue determined that “Title VII protects against co-worker retaliatory harassment that is known to but not restrained by the employer.” Therefore, an employer can be liable for co-worker retaliation” if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known.”

In particular, the Sixth Circuit held that “an employer will be liable for the co-worker’s actions if:
(1) the co-worker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or support a charge of discrimination;
(2) supervisors or members of management have actual or constructive knowledge of the co-worker’s retaliatory behavior; AND
(3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances."

The Court had no difficulty in finding liability in one case. In that situation, the employer never conducted an investigation because the retaliation (i.e., torching the victim’s car in driveway of her home) took place off company property and after working hours, but the employer nonetheless suspected the allegation of violence was true. The woman’s manager even told the Licking County Prosecutor's Office during the police investigation that the harasser had insinuated to him that he started the fire and that he was personally afraid of him and would not participate in the investigation. Another senior member of management had heard rumors that the harasser set the fire and that the victim believed the fire was set by the harasser. More importantly, the harasser had admitted to three co-workers that he set the fire. Although the employer was unaware of the admissions, this evidence created an inference “that [the harasser’s] threatening behavior and violent acts of retaliation were common knowledge to both coworkers and supervisors . . . and might have been substantiated by a more complete investigation.” “The [employer] never bothered to investigate the incident, monitor [the harasser], or create a safe environment for harassment complaints. A jury could find that, given what management knew about the fire, the [employer] had an obligation to investigate the incident.” This is one of the only cases by a federal court to fault an employer for not conducting a more complete investigation.

The Court affirmed the dismissal of the retaliation claim by the non-complaining witness even though the harasser had poured gasoline down her basement and set fire to her house after he was fired. The Court found the employer’s response to her concerns of retaliation were sufficient: The employer fired the harasser, coordinated with law enforcement to have the harasser monitored, hired a security guard to follow him and offered the victim the protection of a security guard – which she refused.

Insomniacs may read the decision in full at: http://www.ca6.uscourts.gov/opinions.pdf/08a0081p-06.pdf.

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.