Last week, the Sixth Circuit affirmed the dismissal of a racial discrimination, harassment and retaliation claim against a university. Ogbonna-McGruder v. Austin Peay State University, No. 23-5557 (6th Cir. Jan. 30, 2024). First, the Court found that discrete acts of discrimination rarely constitute a hostile work environment claim. Second, it found that four acts over more than 30 months were not sufficiently severe or pervasive enough to constitute harassment. Third, her retaliatory harassment claims failed for the same reasons, even if the burden of proving retaliation is lower than discrimination. Fourth, her discrimination claims failed because she failed to allege that they were motivated by her race or that she was treated differently than anyone who was similarly situated from her. “[O]ur circuit has repeatedly held that a retaliatory hostile work environment claim must include evidence that the harassment was severe or pervasive.”
According to
the Court’s opinion, the plaintiff taught university classes for more than a
decade when the university decided to divide her department. She was unhappy with a number of decisions
made about her reassignment, including her classes, her performance evaluations
and the location of her office, etc.
When she appealed some of these decisions, she was told that a decision
had been wrong, but denied that they were not racially motivated. She filed an EEOC Charge and later filed suit
for discrimination, harassment and retaliation.
The trial court dismissed her complaint for failure to state an actionable
claim.
The Court
agreed that the plaintiff had failed to sufficiently allege severe or pervasive
harassment based on a number of employment actions taken against her over a 30
month period:
First, the district court correctly found that the allegations of discrete acts of discrimination could not be characterized as part of the hostile work environment claim. The Supreme Court has explained that under Title VII, a plaintiff may bring a claim alleging that either (1) an employer engaged in “discrete discriminatory acts” such as “termination, failure to promote, denial of transfer, or refusal to hire”; or (2) the employer’s “repeated conduct” created a hostile work environment. . . . Because the two claims are “different in kind,” we have consistently held that allegations of discrete acts may be alleged as separate claims, and as such “cannot properly be characterized as part of a continuing hostile work environment.” . . .
. . . . Her allegations that she was denied the opportunity to draft a grant proposal and teach summer courses, received low evaluations, was replaced by a white adjunct professor, and was reassigned to teach public management courses represent discrete acts that could perhaps support separate claims of discrimination or retaliation under Title VII.
. . .
But even viewing those allegations [of four incidents] as a whole, [Plalintiff] did not sufficiently allege facts from which we may infer that the harassment she experienced was severe or pervasive. Courts consider the totality of circumstances in determining the severity and pervasiveness of alleged harassment, including “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an employee’s performance.” . . . Notably, the alleged harassment must be both objectively and subjectively severe and pervasive to be actionable. Id. at 21–22. Allegations of “simple teasing, . . . offhand comments, and isolated incidents (unless extremely serious)” do not suffice. . ..
. . . As an initial matter, those events occurred over a period of approximately two and a half years—that is too infrequent to demonstrate that her workplace was “permeated with” ridicule and insult. . . . And defendants’ comments about her teaching abilities and qualifications, while undoubtedly offensive, are not sufficiently serious to constitute severe harassment. . . . Moreover, she did not allege that the harassment was physically threatening. Her conclusory assertions that defendants’ actions “unreasonably interfered with [her] work performance,” without alleging supporting factual allegations, is insufficient for purposes of a motion to dismiss. . . . Because she failed to plausibly allege severe or pervasive harassment, the district court did not err in dismissing her race-based hostile work environment claim.
While the
Court agreed that there was a lower standard of proving retaliation compared to
discrimination, this did not save her retaliatory harassment claim because, as
discussed above, she failed to allege sufficiently severe or pervasive behavior
necessary for the harassment part of her claim.
“[O]ur circuit has repeatedly held that a retaliatory hostile work
environment claim must include evidence that the harassment was severe or
pervasive.”
When the
employer argued that her discrimination claim was untimely -- because the
alleged acts took place more than 300 days before her EEOC charge was filed -- she
apparently did not make any legal argument to the contrary. Accordingly, her claim was deemed abandoned on
appeal. Nonetheless, the Court also
observed that she failed to allege that any of the discrete acts were motivated
by racial animus and to allege that she was treated worse than anyone similarly
situated to her. “]H]er conclusory
statement that [the employer] treated her poorly “because of her race” is
insufficient for purposes of a motion to dismiss.”
Similarly, when
the employer challenged her retaliation claim as untimely, she made no legal arguments
in opposition. Accordingly, her claim
was deemed abandoned.
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.
