Sixth Circuit Reverses Employer's Summary Judgment on Racial Harassment and Retaliation Claims Based On "Seemingly Neutral" Actions.

Last week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a racial harassment and retaliation claim.  Jones v. Fluor Facility & Plant Services, No. 24-5249 (6^th Cir. 3/5/25).   The Court found that the plaintiff had produced enough evidence that "seemingly neutral" conduct was race related, severe and pervasive.   The plaintiff had also complained to his manager and supervisor, who took some remedial action, but his co-workers then began ostracizing him and hiding his equipment.  HR referred to his as “horseplay” that was unrelated to his race even though he was often referred to as “boy” and a ‘rapper” and “basket ball player.”

According to the Court’s opinion, the plaintiff had been hired for the day shift, when he was harassed by a white co-worker for two weeks.  That co-worker was fired and the plaintiff was transferred to the nigh shift, where there were only five employees.  He was again racially harassed, including the n-word.  His supervisor took action within two weeks without him having to complain.  Thereafter, he was subjected to less obvious harassment, including hiding his equipment, ostracizing him, and stereotypical comments about how he must be good at basketball or be a rapper.  After he was counselled for working without his safety harness, which he alleged had been hidden from him by his racist co-workers, HR conducted an investigation which found the “horseplay” was unrelated to his race.   However, the investigation seemed to stall for several months, so he filed an EEOC Charge.  The district court also agreed that the alleged harassment, although daily, was not severe or pervasive enough to constitute actionable harassment and seemed unrelated to his race.   The Sixth Circuit reversed.

We conclude that [the plaintiff] has established, at the very least, a factual dispute as to whether this seemingly neutral conduct was race-related. We have said that “[c]onduct that is not explicitly race-based may be illegally race-based and properly considered in a hostile-work-environment analysis when it can be shown that but for the employee’s race, [he] would not have been the object of harassment.”

  . . . .

[The Plaintiff] presents evidence of two categories of incidents fairly tied to his race. The first set of incidents are verbal harassment directly linked to Jones’ race, the second set of incidents may facially present as race-neutral, but a factfinder could nevertheless infer that they were race-based.  . . .

As to the first category, Jones established three uses of the n-word by his coworkers: One direct usage, when [one co-worker] referred to [the plaintiff] as a “nigger,” and two indirect usages, when [another co-worker] used the term during the November 9 meeting to argue that it should be okay to continue to refer to [him] that way. The n-word is indubitably racist, “highly offensive and demeaning,” . . .

As the district court acknowledged, [the plaintiff] also submitted evidence that [a co-worker] goaded him to make racist jokes, and [that co-worker] told racist jokes himself. Whether [his] evidence of the “content or frequency” of these occurrences was insufficient, or whether they were “mere offensive utterances,” as the district court concluded,  . . .  goes to whether the harassment Jones faced was severe or pervasive, but not to whether the harassment was race-based. A factfinder could readily conclude that “but for” [his] race, he would not have been the subject of [that] goading.  . . .  The same is true for [that co-worker’s] comment that another white coworker,  . . . , was [his] “boy” after [that person] spilled oil on himself. [He] fairly understood this comment to be racial in nature, as it allows the inference that [the co-worker] was implying a familial relationship between [the person] and [the plaintiff] after [the person’s] skin was presumably rendered black because of the oil.

. . . “facially neutral abusive conduct can support a finding of animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly discriminatory conduct.” . . .

For the same reasons, we can attribute racial motivation to the night crew’s ostracization of [the plaintiff]. There were “multiple instances in which [he] was ostracized” as the only African American on the night crew. . .  As [his supervisor] testified, efforts to exclude [him] were led by [two coworkers], who had previously made racist comments or used racial epithets. Further, the ostracization coincided with racist verbal harassment. This provides sufficient evidence for a reasonable factfinder to conclude that Jones’ complained-of ostracization was based on race. . . .

A rational factfinder could also find that other incidents cited by [the plaintiff] that may lack explicit racial animus may nevertheless constitute racial harassment under Title VII. For one, [he] presented evidence that his white coworkers referred to him as “boy.” We have said that although not explicitly racial, a white colleague “referring to an adult African American colleague as ‘boy,’ without ‘modifiers or qualifications’ can qualify as evidence of impermissible racial bias.” . . . . Likewise, white coworkers’ comments referencing [him] being a rapper or a basketball player may not be explicitly racial out of context. But these comments undoubtedly reflected African American stereotypes such that a rational factfinder could find that they would not have been made but for Jones’ race, as Jones recognized.  . . . . Therefore, the comments may be “properly considered in a hostile-work environment analysis.” . . .

  . . .

In the present case, the district court erred in granting summary judgment to [the employer] on the severe or pervasive prong of [his] claims because there is sufficient evidence in the record that he subjectively regarded his work environment as abusive, and that his coworkers’ racial harassment was severe or pervasive enough for a reasonable person to find his work environment hostile. The district court did not separately evaluate the subjective and objective prongs of the severe or pervasive test and appeared to proceed solely on the objective prong. Nevertheless, [the employer] argues that [he] did not subjectively perceive a hostile work environment because he stated that [a co-worker’s] use of the n-word was a “term of endearment,” and he only complained of racial harassment in March 2021, “‘saving’ his complaint” for when he faced discipline for failing to use his harness.   . . .  We reject [its] arguments inasmuch as Jones has provided sufficient evidence that he subjectively regarded his work environment as hostile.

As an initial matter, “the intent of the alleged harasser is irrelevant in the court’s subjective prong analysis.”  . . .  That [the plaintiff] perceived that [a particular co-worker] meant his use of the n-word as a term of endearment does not mean that [he] perceived the slur to be inoffensive. And [the co-worker’s] intent “is not a defense under the subjective test if the conduct was unwelcome.”  . . .  [He] provided sufficient evidence that he regarded [the co-worker’s] use of the n-word to be offensive and unwelcome. [He] characterized [that] use of the slur as a “term of endearment” because [it] “said it to [him] as if we say it to each other all the time,” as though the two were friends.  . . .  But he clarified that he was not excusing [the] utterance of the slur as harmless.  . . .  [He] further described the possibility of [his co-worker] calling him the n-word again as a “problem” that was solved when [he] was moved to another work location and was “no longer in [his] face every day.”  . . . . [He] also made clear that he perceived his coworkers’ use of racial epithets to be offensive, and he perceived their conduct to be abusive.  . . . Indeed, by March 2022, [he] felt so abused by his coworkers that he expressed suicidal and homicidal ideation because of stress at work.  . . .

“In addition, the subjective component of the prima facie case does not require that a plaintiff report a hostile work environment.”  . . . So, contrary to [the employer’s] argument, [his] failure to report racial harassment to its human resources before March 2021 does not cut against our conclusion that he provided sufficient evidence that he perceived his work environment as abusive. “A plaintiff can be subjected to [racial] harassment sufficiently severe or pervasive as to constitute a hostile environment and yet, for a number of valid reasons, not report the harassment.”  . . .  For example, [he] testified that he did not immediately report [the] statement because he was afraid his coworkers would retaliate if he reported. He also questioned whether it would be “right” to report the incident, given that it would affect [his co-worker’s] career when [that person] was new to the workforce and, from [his] perspective, possibly unaware of the “mistake” he made in using the n-word.  . . .  Nevertheless, the record shows that [he] did report racial harassment multiple times before March 2021, albeit not directly to [its] human resources. [He] reported the incident with [day shift], on the day shift, to [his manager], presumably resulting in [the] firing. [He] also participated in the [his supervisor’s] November 9, 2020 meeting addressing the instances of harassment against [him] in November 2020. And, after [a co-worker] threw grease on his car, [he] immediately showed [his supervisor] evidence of [that] conduct. So, rather than “‘sav[e]’ his complaint of harassment for the proverbial ‘rainy day,’”  . . . . the record contains evidence that [he] brought his coworkers’ continual racial harassment to his superiors’ attention. At present, [he] has provided evidence, sufficient to preclude summary judgment, that he subjectively regarded his work environment as abusive.

 . . .

 . . . Viewing [his] evidence in the light most favorable to him, [he] experienced a weeks-long period of verbal hostility, . . . The verbal hostility “directly affected the day-to-day conditions of [his] work environment,” . . . so much so that his supervisor,  . . , “had enough” of the harassment and held a meeting to stop it.  . .  The verbal harassment did not stop after the meeting but continued. And, as in Schlosser, the verbal hostility escalated into a physical threat when [a co-worker] threw grease on [his] windshield.  . . .  In addition, [his] coworkers ostracized him for months, subjected him to stereotyping, and called him “boy.” This is clearly enough evidence of severe or pervasive harassment for Jones to submit his racially hostile work environment claim to a jury. Contrary to the district court’s conclusion, [he] does not allege instances of “offensive utterances and social avoidance . . . alone,”  . . .. Rather, he presents evidence of persistent racial harassment that took various forms, from overt verbal harassment, to physical conduct, to persistent stereotyping, to ostracization.

The district court came to its erroneous conclusion because it failed to consider all of [his] evidence of racial harassment, and failed to consider [his] evidence holistically. It erroneously discounted [his] evidence, other than “the use of racial epithets and the incident where [the co-worker] poured grease on his windshield,” id., for two reasons. First, it concluded that [his] evidence paralleled that in Reed v. Procter & Gamble Manufacturing Co., in which we found that a plaintiff’s allegations of an isolated racist gesture and racist remarks did not amount to severe or pervasive harassment when the plaintiff failed to tie his other allegations of harassment, including that he was the “subject of unfriendly treatment from some colleagues,” to his race.  . . .  Second, it concluded that “the majority of [his] claims [we]re simply too vague to support the notion that his coworkers’ conduct was sufficiently severe or pervasive.”

But [his] evidence of ostracization, as well as his evidence that he was subjected to pervasive racial comments, stereotyping, and called “boy,” are fairly considered as contributing to the totality of severe or pervasive racial harassment. The cases on which [the employer] and the district court rely for the proposition that [his] complained-of workplace exclusion did not contribute to a pattern of severe or pervasive racial harassment, particularly Reed, are distinguishable.

The Reed plaintiff complained only of social isolation, not the ostracization that affected his work like in this case.

The district court also erred in removing many of [his] allegations of harassment from the severe or pervasive calculus on the grounds that the evidence was too vague. The court characterized [his] evidence of ostracization, stereotyping, and being called “boy” as insufficiently specific to contribute to the totality of the circumstances of severe or pervasive racial harassment. But we have “noted that when a victim makes allegations of ongoing harassment, the ‘inability to recount any more specific instances goes to the weight of her testimony, a matter for the finder of facts.’”

The Court also found that the plaintiff produced sufficient evidence of retaliation by his co-workers to survive summary judgment.

However, the Court remanded the harassment claim for the court to consider whether the employer had sufficient knowledge of the alleged racial harassment to impose vicarious liability because the trial court had not addressed that issue in its opinion.

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.

Winning the Battle, But Losing the War: Sixth Circuit Affirms Jury Verdict Finding Harassment but No Discrimination or Retaliation.

Last month, the Sixth Circuit affirmed a jury verdict finding that the employer had not discriminated or retaliated against the plaintiff, but had subjected her to a hostile work environment on account of her gender.  Schlosser v. VRHabilis, LLS, No. 23-6019 (6^th Cir. Aug 26, 2024).  The Court rejected the employer’s attempt to restrict to the harassment claim to verbal abuse and concluded that the discrete acts of discrimination – upon which the jury had refused to impose liability – could also be considered to support the harassment verdict. 

According to the Court’s opinion, the plaintiff was hired as the only female diver to retrieve unexploded ordinance from the sea bed.  There was evidence that her first supervisor repeatedly denigrated her, subjected her to different conditions of employment and held her to a higher performance standard than her male co-workers.   She was verbally coached by the COO after her first week, but did not see the formal document until litigation commenced which contained a number of issues which she disputed.  She was restricted from diving and driving by her first supervisor.  When she made a formal complaint to their site manager, he did nothing about any of it.  She then complained to HR, which was investigated by the COO and Project Manager.  This investigation confirmed that she was been singled out and treated differently on account of her gender.  She was then transferred to a different dive team, although it was disputed if this was because of the investigation or because her first supervisor demanded that she be removed from his team.  In any event, her first supervisor was never disciplined or trained regarding sexual and gender-based harassment.

Although HR had attempted to follow up on the plaintiff’s formal complaint, the plaintiff never responded.  Instead, after her transfer, she emailed HR that all of her issues had been promptly resolved and exceeded her expectations.  The plaintiff’s performance improved following her transfer and she outperformed several male colleagues.  Nonetheless, the Project Manager instructed that she again be prevented from diving based her performance evaluation from her first – discriminatory – supervisor as the least productive diver.  However, at trial, they acknowledged that she was not the least productive diver, who was never prevented from diving as she was.

On her new team, one of her co-workers routinely denigrated her, often calling her the B***h word.  Three times this was done within earshot of her second supervisor, who did nothing about it.  When the co-worker complained about her and an investigation commenced, the plaintiff refused to cooperate with it, even to describe his offensive behavior.  Instead, she resigned, complaining about the rampant sexual harassment she experienced on almost a daily basis in the 10 weeks she worked there.  Instead of investigating her new allegations, the company was relieved that she had left.  Shortly thereafter, she filed a Charge of Discrimination and filed suit.  While the jury found that she had not been discriminated or retaliated against, it found in her favor on her sexual harassment claim and awarded her almost $60K in back pay.  The company appealed.

The Court refused to confine the harassment claim to the verbal abuse the plaintiff suffered.  Instead, it agreed that the supervisor’s overall treatment of her could be considered, including the restrictions on diving and driving, etc. “Although discrete acts of discrimination are not independently actionable as a hostile work environment claim, the jury may certainly consider such acts in its evaluation of the overall working environment.”

While there was evidence of mere personality conflicts, the Court found that the plaintiff produced sufficient evidence to support the jury verdict that the harassment was related to her gender and not just her personality or job performance.  First, she was subjected to different terms, conditions and performance expectations than her male co-workers.  Second, her first supervisor and a later co-worker repeated referred to her as “B***h”.  “Such a term is indubitably sexually degrading and gender specific.”    This was also corroborated by her male co-workers during the COO’s investigation of her initial harassment complaint.

Overall, the multiple instances in which [the plaintiff] was ostracized while her male counterparts were not, coupled with the gender-specific epithets used, provide sufficient evidence for a reasonable jury to find that the complained of harassment was based on [her] gender or sex. Of course, the evidence could also support the conclusion that the harassment was tied to personal conflict, rather than gender; however, this Court may not reweigh the evidence to override the jury’s reasonable determination.

The Court also found sufficient evidence of severe and pervasive harassment: “not a day of her ten weeks at [the employer] passed without some type of sexual harassment or ostracization. Accordingly, the totality of the circumstances could reasonably indicate that [she] suffered pervasive harassment that altered her job environment, conditions, and performance.”

                  The jury fairly concluded that [she] did not endure “simple teasing” or “isolated incidents.”  . . .  Instead, as the lone female diver, [she] faced daily threats to her employment, derogatory comments, verbal harassment, foul language, and constant changes to her pay and position “to which members of the opposite sex were not exposed.” . . . . And this harassment occurred daily throughout a compressed period of ten weeks. For these reasons, a reasonable juror could find that a hostile work environment existed.

The Court also found that the employer could be held liable for the harassment because some of it was by her first supervisor and the rest was by a co-worker with knowledge of her second supervisor.  The first supervisor’s restriction on her diving resulted in a reduction in her compensation – a tangible employment action.

[The employer] attempts to skirt liability for [the co-worker’s] actions by arguing that [the plaintiff] refused to report the harassment or provide a written statement regarding the second incident in which [he] screamed profanities at [her], including calling [her] a “slimy bitch.” This may be true, but it is not dispositive for the employer-notice inquiry, which asks whether [the employer] knew about the harassment.  . . . . . . Throughout each described incident of sexual harassment, [the second supervisor] knew of the charged sexual harassment but failed to take any corrective action at all. . . .\

                   . . . [The second supervisor] heard [the co-worker] berating [her] on multiple occasions, calling her a “bitch,” and being aggressive towards her. Yet [the supervisor] never reprimanded [the co-worker] or took any action to correct this pattern of behavior. . . . . . A reasonable jury could find that [the supervisor] knew of the harassment and made no attempt to correct the problem of the sexually harassing behavior, thus establishing the required negligence on [the employer’s] part. Because [it] does not dispute that [he] may properly be considered a supervisor, this inaction may be reasonably imputed to [the employer].

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 Significantly Alters Burden of Proof for Hostile Work Environment Claims

Yesterday, the Sixth Circuit affirmed the summary judgment dismissal of an age discrimination claim, but reversed dismissal of the companion hostile work environment claim brought by a former police officer.    McNeal v. City of Blue Ash, No. 23-3180 (6^th Cir. 9/23/2024).  The Court agreed that the plaintiff officer could not show that his termination – or the underlying disciplinary actions – were discriminatory or pretextual.  However, he could possibly show a hostile work environment based on the cumulative effect of closer scrutiny and supervision than his younger co-workers received, a denigrating assignment that could be designed for him to fail and his supervisor’s “glee” in imposing disciplinary actions against him.   The Court’s opinion suggests that hostile work environments need not be severe or subjectively hostile when discriminatory employment actions need not be significant in order to be actionable: “Because hostile-work- environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show “significant” harm applies to both types of claims. . . Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.”

According to the Court’s opinion, the plaintiff worked for 33 years as a police officer and was the oldest officer in the department.  After his supervisor was promoted to his role, the plaintiff claimed that he was subjected to closer scrutiny.  For instance, after he challenged his 2015 performance evaluation, he was assigned to conduct a traffic study which had never been assigned to a patrol officer before and which he lacked qualifications to conduct.  He alleged that it was both retaliatory for his performance evaluation challenge and based on his age.   He then received progressive disciplinary actions over the next two years for infractions, such in April 2016 for failing to turn on his microphone during traffic stops (after he had first been informally counselled when he had been identified as a primary offender of that policy).   In June 2018, the plaintiff and another officer violated a number of policies when responding to a medical emergency, including failing to use lights and sires, failing to notify that they were not using lights and sirens, and speeding without lights and sires, etc.  

When the individual died from the medical emergency, an investigation was conducted into the police response.  The investigation revealed that the plaintiff had previously violated the same policies.  When the investigators checked his prior traffic stops, they discovered that he had not used his audio (which he had received formal disciplinary action for in 2016).  As they checked his prior traffic stops, they discovered that he only turned on his audio in 8 stops that year (out of 38) and that he had never checked his video equipment in his109 shifts so far that year as required by departmental policy.  When he claimed that he generally turned on his audio and checked his equipment, they concluded that he was being intentionally dishonest, which by itself, is a terminable offense.   He was given the option of retiring or submitting to a pre-disciplinary hearing.  He rejected both offers and was terminated.  His grievance was rejected in arbitration.    He then filed suit.    The trial court granted the City and individual defendants summary judgment on all claims. 

The Court agreed that the plaintiff could not show that he was terminated on account of age discrimination.   The ADEA requires that age be the determinative factor in his termination:  that he would not have been fired but for his age.  In this case, assuming that he could show a prima facie case of discrimination, he could not show that his employer lacked a legitimate basis for his termination based on his misconduct and prior disciplinary history.  The plaintiff conceded that he could not disprove the factual basis of any of his prior disciplinary actions or his termination.

The Court rejected his argument that his termination was pretextual because it did not actually motivate the decision to terminate his employment: 

Even if it is true that the Department generally scrutinized the performance of older officers to a greater degree than younger officers, [the plaintiff] has not presented sufficient evidence that the reasons given for his termination—an extensive list of disciplinary infractions that included untruthfulness—were not the true reasons. [He] does not contest, for example, that the Department would be required to disclose his untruthfulness to defendants at trial, rendering him unable to perform an essential job duty. Nor does [he] dispute that the Department was legitimately concerned that his pervasive failure to follow the recording policies jeopardized the Department’s ability to gather evidence and limit its exposure to liability. Because the ADEA requires plaintiffs to show that age is the “but-for” cause of the disciplinary action—not simply a motivating factor—[he] cannot proceed if his termination was at least partly caused by Defendants’ non-discriminatory reasons.  . . .  He does not meet this burden on the second prong.

The Court also rejected the argument that his conduct was insufficient to warrant his termination, mostly because the other responding officer was treated similarly to him and given the same option to voluntary retire or submit to a pre-disciplinary hearing.  For that matter, the plaintiff did not address the dishonesty issue at all in his briefs.

That being said, the standard for proving a hostile work environment is much less than proving discrimination.  However, “allegations of discrete discriminatory acts otherwise actionable as independent disparate-treatment claims do not by themselves constitute harassment supporting a hostile-work-environment claim.” (italics added for emphasis).  Thus, it was conceded that his suspensions and termination could not be considered as evidence of a hostile work environment.   Rather, a hostile-work-environment claim is “based on the cumulative effect of individual acts,” many of which are not actionable on their own.”

an adverse employment action can affect employment terms or conditions on two registers. By definition, an adverse action can cause a change in the terms or conditions of employment. But an adverse action deployed strategically as harassment can also add to a climate of hostility that represents a different change in the terms or conditions of the job. To use the Supreme Court’s words, a discrete discriminatory act may have “occurred” on one day and thus be actionable, but it also may be part of a separate harm that “occurs over a series of days or perhaps years.”  . . . . In the hostile-work-environment context, we exclude adverse actions that operate only on the first register, but consider the ones that operate on the second. (emphasis added). 

In this case, the plaintiff “cited testimony that older officers were regularly subjected to greater scrutiny, and highlighted examples showing that younger officers did not face discipline for their policy violations.”    He also alleged that he was the only officer whose performance was investigated over an entire year (when the investigators reviewed each of his traffic stops).   “We focus on the harassing effect of these incidents to assess whether the ongoing monitoring created a climate of hostility in the aggregate (and combined with other actions), not whether each incident alone changed [his] employment status. Therefore, [his] evidence of higher and disproportionate scrutiny may be used to support his hostile-work-environment claim.”  In addition, a number of officers provided evidence that he was disciplined for infractions that other officers violated with impunity. 

He also cited the traffic study that he had been assigned:

Thus, the evidence supporting a hostile-work-environment claim is not the unfavorable assignment itself but the fact that the Department allegedly engaged in conduct designed to (1) frustrate, demean, and embarrass him in front of his coworkers; (2) justify more disciplinary action against him when he inevitably fell short of the unreasonable expectations; and (3) force him further under the microscope by requiring him to report to two supervisors on his progress weekly. The significance of the traffic study for hostile-work-environment purposes is that the Department allegedly used the assignment strategically in a broader effort to discredit [the plaintiff].

                   . . .

                  The [Supreme] Court has held that a hostile-work-environment claim is “based on the cumulative effect of individual acts” occurring over the span of weeks, months, or years.  . . .  An individual act within a hostile-work-environment claim “may not be actionable on its own,”  . . . —but there is no requirement that the act not be independently actionable. As the Court recently explained, a hostile-work-environment claim “includes every act composing that claim, whether those acts are independently actionable or not.”  . . .  Thus, “even if a claim of discrimination based on a single discriminatory act is time barred, that same act could still be used as part of the basis for a hostile-work-environment claim.”  . . . That conclusion makes good sense. Whether a given act contributes to a hostile work environment does not turn on whether that act might support a separate claim.

To reconcile Ogbonna-McGruder with Morgan and Green, we read Ogbonna-McGruder to bar a plaintiff from including in a hostile-work-environment claim only those discrete acts that result in a separate discriminatory harm to the terms and conditions of employment that does not “contribut[e]” to the alleged environment of harassment. (emphasis added).

The plaintiff also claimed that most of his prior disciplinary actions were part of this campaign of harassment against him:

even if some of these disciplinary incidents were separately actionable, we would still consider whether the incidents were also weaponized as tools of harassment in the “same actionable hostile work environment practice.”  . . .  Here, there is evidence indicating that the Department imposed discipline as a vehicle to target and belittle [the plaintiff]. Notably, [he] points to testimony that [the Chief] was “grinning from ear to ear,” “smiling,” and “giggling” when discipline was meted out to [him]. . . . .  [The Chief] reportedly asked about [his] reaction to some discipline with excitement and enthusiasm, as though “he [was] getting off, he [was] enjoying the fact that an employee of his [was] being messed with.”

At any rate, these disciplinary incidents would not be independently actionable. Only discipline causing “some harm respecting an identifiable term or condition of employment” is actionable on its own.  . . .  For example, this court previously held that “[a] written reprimand, without evidence that it led to a materially adverse consequence such as lowered pay, demotion, suspension, or the like, is not a materially adverse employment action.”  . . .  Here, [the plaintiff] was disciplined in several ways that likely do not meet the definition of an “adverse employment action,”  . . . , including “documented counseling,” an “oral reprimand,” and a “written reprimand.”  . . .  When considering the facts in the light most favorable to [him], none of these incidents is actionable on its own in a disparate-treatment claim.

The Court also lowered the evidentiary bar on proving “severe” harassment:

Because hostile-work-environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show “significant” harm applies to both types of claims.  . . .  Instead, the employer’s discriminatory action—or, as is the case here, the work environment—needs to produce “some harm respecting an identifiable term or condition of employment.”  . . . .  Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.” . . .

                   . . . [The plaintiff] is not required to show that the harassment “seriously affect[ed] [his] psychological well being” or caused him to “suffe[r] injury”—only that the environment “would reasonably be perceived . . . as hostile or abusive.”  . . .  Importantly, [he] does not need to show that “each incident of harassment standing alone is sufficient to sustain the cause of action,” but that the incidents, taken together, make out such a case.  . . . . Because the facts here present a close call regarding severity, we decline to do the jury’s job for it: [he] cites enough evidence for a reasonable juror to conclude he was subjected to a hostile work environment.

                   . . . .

Here, a jury could reasonably conclude that McNeal’s conditions of employment were altered. For example, if a jury agrees that McNeal was uniquely targeted for minor policy violations and subject to significant surveillance, he would have had a different level of discretion than other officers.

(emphasis added)

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.

Co-worker Harassment Leads to $150K Jury Verdict and $69K in Attorney Fees Despite Only $3K Wage Loss.

 Last month, the Loraine County Court of Appeals affirmed a jury verdict of over $150K in compensatory and punitive damages for co-worker sexual harassment, constructive discharge and negligent supervision claims as well as almost $69K in attorney fees.  Morgan v. Consun Food Industies, Inc., 2024-Ohio-2300.   The plaintiff proved that she was treated differently when her complaints were ignored and when she was disciplined for misconduct while male employee misconduct on the same evening was ignored.  “[H]arassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment if it is directed at the plaintiff because of his or her sex.” Further, management’s indifference to her complaint and failure to address incidents with the harassing employee destroyed its affirmative defense.

According to the Court’s opinion, the plaintiff was hired in September 2011 and was subjected to harassment by a male co-worker.  She complained to management and resigned in May 2012 when insufficient action was taken.  During the nine-day jury trial, she testified how this male co-worker terrorized her, other female employees and female guests.  For example, she became extremely upset after an incident when she looked over at him, and he responded: ““what the fuck are you looking at, you fucking bitch[.]” She complained to the supervisor and he said it was just how he was.  He also elbowed her, followed her around making mocking comments, and threw hot food at her, burning her hands.  He also “made comments about “breasts,” “cow udder tits,” and aborting babies, which were all comments directed toward women and not men.”  The store manager told her that he did not have time to discuss her complaint about the co-worker.  In April, shortly after the co-worker had left for the day, she found a large knife stabbed into the box of cleaning gloves that she used.  The shift leader was unconcerned, but she called the police and reported the incident.  The next morning, she was written up and put on a performance plan for failing to refrigerate hot food the prior evening, which the store manager noticed when he reviewed surveillance film.  He said nothing about the knife incident, which should also have been on the film.  The following month, the co-worker continued to follow her in the store and she resigned without first having found another job.  Two female co-workers corroborated her accounts and added that the store manager laughed at the co-worker’s behavior.

                  The Court held that the two-year limitations period for torts would not be applied to the negligent supervision claim because the underlying facts were closer to the discrimination and harassment claims, which were then subject to a six year limitations period.

                  The Court also agreed that the plaintiff had shown discriminatory treatment when she was disciplined for failing to refrigerate hot food on the same night that her male co-worker had stabbed her box of cleaning gloves, prompting her to call the police and report it.  (The employer did not refute any of her allegations or put on any witnesses to dispute testimony of the plaintiff or her witnesses).   The Court found additional evidence of disparate treatment when the store manager addressed a male employee’s complaint about that employee, but accepted his denial at face value without any other investigation when female employees complained about him and failed to take any corrective action. 

The plaintiff showed that his harassment was unwelcome:

Not only did [the plaintiff] testify that [her co-worker’s] behavior was unwelcomed, she also demonstrated it was unwelcomed by avoiding  [him], complaining to her co-workers, complaining to [the store manager], contacting  . . .  the corporate office, and calling the police.

She proved that it was harassment based on sex through various comments that he made which were directed only at women and the fact that his harassment was directed only at female employees and guests.   For instance, “one elderly woman asked her where the restroom was [and he] overheard the exchange and told the elderly woman she could “piss outside by the dumpsters.”” 

Another witness testified that he

 “would say things like women are meant to be in the back and guys are in the front, and women are only good for sex[.]” She also testified Mr. Wise “would always talk about our breasts, or our butts. Anything sexual, he said[,]” and added the comments were “[t]hings that typically you shouldn’t say to women * * * [but were] laughed at by [assistant store manager] Mark and [store manager] Rich.” Ms. Green added that “the guys were allowed to say whatever they wanted. * * * There were no consequences for derogatory statements with any of my managers to my knowledge.”

The plaintiff also proved that the harassment was sufficiently severe and pervasive to affect her ability to work:

[The plaintiff] testified to the toll that [his] daily harassment and abuse took on her and how Consun’s management’s failure to take any action to stop or acknowledge her complaint made the situation worse for her. [She] testified to three separate incidents where [his] harassing conduct was directed at specifically her, the incidents were reported to her shift lead or management, and no further action was taken by store management. [She] testified to the incident where [he] called her a ”fucking bitch” and she was “shaking” and “frightened[.]” After the incident, [her] friend brought her medication to the store to help calm her down. [She] also testified [he] threw a five-pound bag of steaming hot mashed potatoes at her, causing burns to her skin. Additionally, [she] testified to finding the long knife stabbed into her box of gloves during an evening where [he] was only one of two other employees left in the store.

Finally, the Court rejected the employer’s defense that it did not know about the harassment when she only complained one time to the store manager.  At that time, the manager said he did not have time to deal with her and refused her request to be scheduled away from the hostile male employee.   She had also complained to her shift supervisors and to the corporate office.

                  The Court also agreed that it was proper to admit an expert to testify as to the standard of care that an employer should take when an employee complains about harassment and the type of anti-harassment training and policies employers should utilize.

                  The Court also found no abuse of discretion when the trial court rejected the plaintiff’s attorney fee request from over $248K in hourly fees to $69K based on the 45% contingency fee agreement with the plaintiff and the fact that the attorney took five years to try a case that could and should have been tried in 2016.

                  The Court also affirmed the denial of prejudgment interest on the grounds that the employer engaged in good faith discovery and was not required to offer more than $15K in settlement if that is how it reasonably evaluated its potential liability.    For instance, the plaintiff only lost less than $3,000 in wages after immediately finding a new job.

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 Rejects Conclusory Allegations in Complaint of Racial and Retaliation Discrimination and Harassment

 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 (6^th 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.

Franklin County Court of Appeals Rejects Discrimination and Hostile Work Environment Claims Despite a Toxic Work Culture

At the end of last year, the unanimous Franklin County Court of Appeals found that the existence of a “toxic work culture” (as described by a concurring opinion) does not necessarily mean a legally hostile work environment or unlawful discrimination.  Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-4783.  The plaintiffs were assigned by one state agency to work alongside the employees of another state agency, which had its own rules and disciplinary procedures.  Even though all of the employees (including the plaintiffs) reported to the same supervisor, the Court concluded that the plaintiffs could not compare themselves to the other agency’s employees without evidence that they had been subject to and violated similar rules or evidence that such rules had been violated by anyone outside their protected class.  They also could not show pretext when they admitted violated DYS rules.  Finally, they could not base hostile work environment claims on overhearing a relatively few number of vague conversations about politically charged and potentially race-based issues (like gun control, police shootings, abortion, unidentified movies, lynching, homophobia, etc.) which were not directed at them personally, and were not physically threatening or humiliating.  The plaintiffs’ subjective reaction to the alleged conduct could show that it interfered with their work, but it could not prove that the workplace was objectively hostile or abusive to a reasonable person. The Court also rejected the retaliation claim for being filed outside the two-year statute of limitations under the Court of Claims Act. 

According to the Court’s opinion, the plaintiffs worked at an IT Help Desk staffed by both ODRC and DYS employees, which were subject to the rules of their respective agencies.  All of the ODRC employees were white and the DYS employees were black.  There was one mixed race contractor.   The plaintiffs admittedly violated rules of their employing agency and apparently were unaware of the rules governing the employees of the other agency, merely assuming that they were the same, and whether the other employees had obtained prior authorization for their actions.  One plaintiff worked a tiny amount of unauthorized overtime.   One plaintiff corrected his own timesheet on the computer without prior authorization.  They both learned from the contractor that the ODRC employees had been called into a meeting with their supervisor and told if they had complaints about the plaintiffs, they had to complete written incident reports.  The plaintiffs similarly submitted written complaints about the ODRC employees, became upset by the situation, eventually visited EAP and then left work for mental health reasons before filing their lawsuit, which was dismissed on summary judgment.

The appeals court found that they could not prevail on discrimination claims for a number of reasons.  First, they could not show that the ODRC employees had violated similar rules because the ODRC employees were subject to ODRC rules, not DYS rules, and there was apparently no evidence what those rules were or whether their conduct had been previously authorized.  Second, the plaintiffs admittedly violated DYS rules and could not show that their disciplinary action and coaching was pretextual for discrimination.   The Court also found that it was speculative that the meeting held with the ODRC employees was racially motivated merely because the employees were all white because it is a legitimate business reason to meet with employees to explain the complaint procedures and the contractor was not at her desk when the meeting was called. 

The Court also rejected the hostile work environment claims.  First, the plaintiffs could not rely on the alleged discriminatory conduct which had already been rejected.  Second, it found that the relatively few overheard conversations – i.e., no more than six in a four-to-six month period – were too infrequent to be “pervasive” or support a hostile work environment claim.    They were also not severe enough: 

Considering all the circumstances, we agree with the Court of Claims that appellants have not demonstrated circumstances severe enough to constitute harassment within the meaning of a hostile work environment claim. The conversations appellants overheard, while offensive utterances and in poor taste, were infrequent and did not occur regularly. [Plaintiffs] alleged they overheard these conversations only a few times and could not provide specific details about when they occurred or the contents of the conversations beyond their general topics. Additionally, the conversations were not directed at appellants, and the "second-hand" nature of the comments is relevant to determination of their severity.

While the plaintiffs could show that the alleged conduct subjectively affected them and forced them to leave their jobs, a subjective feeling or belief is not evidence of an objectively hostile or abusive work environment:

Though appellants alleged the working conditions were so hostile as to force them to separate from their employment, this argument only reflects appellants' subjective perceptions of the conduct. However, in order for the conduct to be actionable under a hostile work environment claim, appellants must also demonstrate the conduct is severe and/or pervasive enough to create an objectively hostile or abusive work environment. . . . The work environment is objectively hostile or abusive where it is "an environment that a reasonable person would find hostile or abusive." (Internal quotations and citations omitted.) Id. "Mere utterance of an * * * epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment" to create a hostile work environment. (Internal quotations and citations omitted.)

Here, appellants put forth evidence that they did not get along with their ODRC counterparts at the help desk. However, mindful of the stringent standard applicable to hostile work environment claims, appellants simply do not allege sufficient harassment based on race such that there is a genuine issue of material fact on this claim. Based on the Civ.R. 56 evidence presented, the conversations [Plaintiffs] overheard were infrequent, isolated incidents, and the conversations were not directed at appellants. The comments were not physically threatening or sufficiently humiliating to create a hostile work environment claim. Appellants failed to demonstrate a genuine issue of fact that the alleged conduct was so severe or pervasive as to create an objectively hostile work environment. . . . Accordingly, we agree with the Court of Claims that appellees are entitled to summary judgment on the hostile work environment claim.

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 Rejects Title VII Discrimination and Retaliation Claim Where Plaintiff Received Three Promotions in Year before Termination

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on a Title VII sexual orientation and retaliation claim where the plaintiff had been fired for misconduct a year after being hired and receiving several promotions and raises.  Boshaw v. Midland Brewing Co., No. 21-1365 (6^th Cir. 4/26/22).  The Court found it speculative that his sexual orientation was held against him when he received three promotions within 8 months of being hired when he never hid his sexual orientation on his Instagram account and reposted it on his Facebook account after his first promotion.  It is not illegal to discriminate against or request an employee to change their “spiky” hairstyle or hide visible body piercings.   Further, the passage of three months between his protected activity and his termination was “a firm indicator of a lack of a causal link.”  Finally, he could not plead or prove a hostile work environment based on a few isolated and discrete discriminatory actions.

According to the Court’s opinion, the plaintiff had been initially hired as a server.  His manager told him that he would be considered for promotion if he would “act a little more masculine,” change his spiky hair style and remove his visible body piercings.  While the plaintiff deleted his Facebook status, combed over his hair and removed the piercings, he did not change his Instagram page which pictured his male partner, children or gay hashtags.  Within a couple of months, he received three promotions to the second highest position in the restaurant.   In the meantime, he re-posted his Facebook relationship status.   The plaintiff had a positive relationship with his manager, calling her “the best boss ever” and thanking her for his career.  When he was almost lured away by a competing restaurant, he was given a raise.  When he told the owner about his manager’s prior comments about his needing to act more masculine, the owner promised to “make it right” with him and between him and his manager.

However, the plaintiff’s employment was not without problems.  One of the employees – with blue hair – was receiving customer complaints about blue hair in their food and plaintiff did not handle the complaints well.  He also sometimes overstepped his authority and failed to communicate problems with management.   The final straw came when he refused to attend a mandatory meeting, telling a subordinate that he was going to get out of it because he was not going to pay for childcare for the meeting, which was a waste of time.   He then failed to show up for his shift that same evening.   He had confirmed his schedule the day before and with an employee that same day.   He also failed to return a call from his manager.  He was fired the next day.

While his manager’s comments about his masculinity might have constituted evidence of animus, there was no evidence that the comments resulted in a delay or denial of any promotions or any adverse employment action.  The plaintiff never disguised his sexual orientation on his Instagram account and reposted his gay status on his Facebook page after his first promotion and before his second and third promotions.  The plaintiff’s subjective belief that his manager possessed discriminatory animus was insufficient to survive summary judgment.

In other words, [the plaintiff] was promoted despite his open and obvious noncompliance with the supposed condition on his social media postings. To the extent [he] argues that the fact he was promoted only after he changed his hairstyle from “spiky” to “combed over” is evidence of gender stereotyping, we know of no such stereotype, and [he] fails to identify one.

In all, [he] secured three promotions in eight months, rising from an entry-level server to front-of-house operations manager. All things considered, [his] rapid rise shows that Midland did not delay or deny his promotions because of sex discrimination. No rational trier of fact could find otherwise.

The Court also rejected the plaintiff’s retaliation claim where he alleged that his manager subjected him to “hyper scrutiny” after he informed the owner about her prior comments concerning his sexual orientation.  Each of the instances he identified were grounds for legitimate criticism:  his handling of the blue hair in customer food, exceeding his authority with vendors and employees, bringing the wrong resume to a job interview, etc.   Moreover, more than three months had passed between when he reported her comments and when he was fired, weakening any possible temporal proximity.  The Court described this as “a firm indicator of a lack of a causal link” between his protected activity and the adverse employment action.  Finally, he failed to produce evidence that any employees were similarly situated to his position or misconduct.

In any event, there was no evidence that the employer’s explanation for his termination was pretextual.   The plaintiff admitted that he believed the owner “honestly believed” he missed a mandatory meeting and shift.  His manager did not learn until after the termination that the plaintiff may have believed that his absence had been excused.  “This evidence satisfies the “honest belief rule,” which precludes a finding of pretext when an employer’s nondiscriminatory reason for terminating an employee is later proven false, so long as the employer can show that it honestly believed the reason was true when making the termination decision.”

Finally, the Court agreed that the plaintiff failed to plead or prove a hostile work environment claim with a few discrete and isolated acts of possible discrimination.  This was insufficient when  “a hostile work environment claim requires a plaintiff to demonstrate a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

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. 

Employer's Inadvertent Actions Effectively Ended Workplace Harassment, and Thus, Were Reasonable.

In June, the Sixth Circuit affirmed an employer’s summary judgment on workplace harassment and retaliation claims where the plaintiff had alleged that the employer’s investigation and response to the harassment claims were inadequate and denied her a promotion in retaliation for her complaints.  Doe v. City of Detroit, 3 F.4^th 294 (6^th Cir. 2021).   The plaintiff had been subjected to anonymous threats by a co-worker.  Although the employer interviewed a suspect following the second incident, it did not interview him following any of the death threats.  The Court affirmed dismissal of the hostile work environment claims because the employer’s response to each incident was reasonable and the final action – in inadvertently suspending and relocating the suspect – was apparently effective, and thus reasonable, in ending the anonymous harassment.  The Court also found no evidence that the plaintiff had been denied a promotion on account of her prior harassment complaints.

According to the Court’s decision, the plaintiff began transitioning about six months after being hired.  Following the plaintiff’s first series of medical procedures, a co-worker submitted complaints that the plaintiff had violated the employer’s dress code.  Although the plaintiff was informed about only the existence of the complaints, she was reassured that her attire was appropriate.  Following the plaintiff’s second series of medical procedures, her office name plate was defaced, which the City immediately rectified.  A few days later, the plaintiff received an anonymous gift bag with sex toys and a handwritten Bible verse about men wearing women’s clothing.  The employer conducted an immediate investigation, interviewed all nearby employees and required handwriting samples from each of them.  The perpetrator was never identified.  The investigation report recommended a few months later that a lock be installed on the plaintiff’s office door, but did not approve the plaintiff’s request for a security camera. 

Five months later, the plaintiff received a typed anonymous death threat.  The employer reported the incident to the police (which refused to investigate) and finally requested a lock for her office door, but refused the security camera, permission to keep her door shut during office hours or to permit her to work from home. A few employees were questioned, but not the individual who had previously filed the dress code complaints.  A few weeks later, another anonymous death threat was made. The City temporarily relocated the plaintiff’s office, installed locks and a security camera and again questioned a few employees, but not the employee who had previously made the dress code complaints.  At that point, the plaintiff suggested that the perpetrator might be that employee.  A few weeks after that, the employer learned that employee had inappropriately accessed the plaintiff’s Facebook page and discussed it with subordinates.  He was given a three-day suspension and his office was relocated onto a different floor from the plaintiff.  There were no further harassing incidents or threats made against the plaintiff.

The plaintiff then complained that her work was being subjected to more criticism, etc.  Her supervisor resigned and suggested someone else to be promoted instead of plaintiff.   The supervisor’s suggestion was not taken, but the decisionmaker promoted a different employee other than the plaintiff. 

The trial court and Sixth Circuit ruled in favor of the employer on the harassment and retaliation claims.   It addressed the City’s response to each incident, rather than evaluating whether the initial response was adequate for the escalation.   While the plaintiff and the alleged perpetrator were both supervisors, neither had authority over the other; they were essentially co-workers.  Thus, the Court evaluated the matter as co-worker harassment.  When workplace harassment is

committed by a coworker, the employer is liable only “if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action . . . To find liability, the employer’s response to a coworker’s harassment must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.” . . .  An employer’s response is generally adequate “if it is ‘reasonably calculated to end the harassment.’” . . . . “The appropriate corrective response will vary according to the severity and persistence of the alleged harassment.” . . . “Steps that would ‘establish a base level of reasonably appropriate corrective action’ may include promptly initiating an investigation[,] . . . ‘speaking with the specific individuals identified’” in the complaint, “following up with the complainant,” and “reporting the harassment to others in management.”

The employer immediately rectified the graffiti and conducted an immediate and thorough investigation following the gift bag incident.   The Court rejected the plaintiff’s argument that the employer’s response was unreasonable (in that no perpetrator was ever identified) because in another case the employer had unreasonably delayed 10 days in conducting an investigation, already knew the identity of the alleged perpetrator and had failed to separate the perpetrator from the victim with an administrative suspension.

“The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” . . . “By doing so, ‘the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.’”

The Court also rejected the plaintiff’s argument that the employer’s actions were unreasonable in delaying the installation of door locks or security cameras following the first two incidents:

“a harassment victim may not dictate an employer’s action against a co-worker.” . . . . While taking these measures would have been reasonable, failing to do so does not render the city “so indifferent to [Doe’s] concerns that it essentially permitted the harassment to continue.”

The employer’s response to the first death threat was also found to be reasonable as the police were contacted within three days and a request was made to install locks on the plaintiff’s office door.  While the plaintiff argued that it was unreasonable to not have then interviewed the employee who had previously complained about her attire, she admits that she never suspected him at this time either and there was no evidence tying him to any of the incidents.

Further, on this record, it was not unreasonable for the city to require Doe to return to the office. Nothing in the record indicates that Doe’s job was capable of remote performance. And the city took steps to address the harassment. Although these steps were ultimately unsuccessful in preventing the final act of harassment—the note on May 22—the city did not “exhibit[] indifference rising to an attitude of permissiveness that amounted to discrimination.”

Finally, the Court found that the City’s response to the final threat was reasonable even though by then the plaintiff had identified a possible suspect and neither the employer nor the police ever interviewed him about any of the death threats.  Rather, it was after this final threat that the City learned about the Facebook incident, suspended the suspect and relocated his office.  After that, the plaintiff suffered no more harassment.  The Court agreed that even inadvertent action by an employer can be effective in ending workplace harassment.

An inadequate investigation may render an employer’s response unreasonable. . . . But the city also temporarily relocated Doe at her request to a different floor until locks and security cameras could be installed. And the city moved Allen to another floor shortly thereafter, which both Doe and Allen assumed had something to do with the Facebook incident. See Harris v. Sodders, No. 07-4398, 2009 WL 331633, at *2 (6th Cir. Feb. 11, 2009) (employer’s actions appropriate in part because “[e]ven though [employer] was unaware of the alleged harassment, his decision to transfer [the harasser] had the inadvertent effect of stopping the harassment”). Doe agrees that there have been no further incidents since May 22, 2017. If Allen was indeed responsible for these incidents, it appears that moving him, disciplining him, and installing locks and cameras effectively ended the harassment. . . . These efforts did not “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known,” so “we cannot say that the employer has itself committed an act of discrimination.”

Finally, the Court affirmed dismissal of the retaliation claim because there was no evidence that the decisionmaker based his decision in any way on the plaintiff’s protected conduct.  More than five months had passed since her last complaint and the promotion decision.   Her suspicions do no constitute evidence that the promotion decision was tainted or that her supervisor's criticisms were retaliatory.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Revives Hostile Work Environment Claim Against Local Judge

In August, the federal Court of Appeals affirmed in most part the dismissal of an employment retaliation and harassment complaint filed against five local municipal court judges and a court employee on the grounds that the allegations were too vague to support an actionable claim, but reversed the dismissal of the hostile work environment allegations made against one of the judges because sufficiently specific allegations had been made against him.  Boxill v. O’Grady, No. 18-3385 (6^th Cir. Aug 16, 2019).  To survive dismissal at this early stage, the complaint must state more than conclusory allegations against the defendant as a group and must allege that any alleged retaliation was based on personal knowledge of the protected conduct.


According to the Court’s opinion, the plaintiff alleged that the defendants formed a conspiracy in 2007 to intimidate complaining female employees, but that she did not suffer any abusive treatment until one of the judges made hostile comments to her in 2011 which she indicated were racist and sexist.  She claimed to have reported his “harassment” to several of the defendants through 2013, but no action was taken and in 2013 one of her male subordinates was given a substantial raise (that impliedly she did not similarly receive).  


In 2014, the plaintiff alleged that another judge took up her cause and drafted a letter expressing concerns with the behavior of the judge who she claimed was behaving inappropriately to her.   Her supervisor revised the letter, which indicated that the judge’s behavior could result in litigation and lead to potential liability for hostile work environment.  Importantly, there was no allegation that the allegedly hostile judge knew about the letter or that the plaintiff was the source of the allegations.  Nonetheless, a week later, she was demoted and she alleged that the allegedly hostile judge recruited other judges to monitor her and her staff and they began bypassing her to go directly to her staff.  She resigned in 2014.  She filed suit seeking relief under §§ 1981 and 1983 for hostile work environment and retaliation, but not Title VII or state law.


With respect to her retaliation claims (under the First Amendment and §1981/1983), the Court found that her complaints of discrimination were matters of public concern, although it did not address the issue that her complaints were about her own personal situation.  It also found that her demotion and reduction in responsibilities would deter a reasonable person from exercising their protected rights.  However, her claims against four of the defendants failed because she failed to make any allegations that they were aware of her complaints or individually took any adverse action against her.  “Summary reference to a single, five-headed “Defendants” does not support a reasonable inference that each Defendant is liable for retaliation.”  While her allegations against the fifth judge were more detailed about his adverse actions against her, she never alleged that he was aware of her complaints against him.  Accordingly, the retaliation claims were properly dismissed.


With respect to her §1983 civil conspiracy claims, she similarly failed to make any individual allegations against four of the defendants that they participated in the alleged conspiracy, shared a conspiratorial objective, or committed any specific acts to further the alleged conspiracy.  Her reliance on the awareness of two of the defendants of the draft letter and revising the letter was misplaced because “letter’s open recognition of concerns about” the allegedly hostile judge  “undercut the claim that [they]  worked to conceal complaints against him.” While her complaints against the allegedly hostile judge were specific, she failed to allege that he knew about any of her complaints against him. He “could not have conspired to retaliate against [her] on the basis of complaints he knew nothing about.”


With respect to her hostile work environment claim, she again failed to allege that four of the defendants knew anything about her complaints and failed to take action.  On the contrary, the fact that the letter about the fifth judge’s behavior was being circulated and discussed, show that they were taking proactive steps to address the situation.  Nonetheless, her “vague reference to the Defendants’ “facilitati[on]” of “a continuing hostile work environment”  . . .  is not enough to state a plausible claim against any of these Defendants.  Nor is [her] conclusory allegation that [the fifth judge] was “hostile and intimidating to [her] personally.”  Accordingly, those allegations against four of the defendants were similarly dismissed.


The Court reversed dismissal of the hostile work environment claim against the fifth judge because the allegations against him were sufficient to proceed to the discovery phase of the litigation.  The plaintiff alleged “that shortly after his election to the bench in 2011, ‘[he] began making hostile comments’ that ‘mirrored sexist and racist allusions [he] had directed at [her] when he had been Bailiff’ at the same courthouse in the past.”  She had complained that he was interfering with her ability to work and the other judges recognized that his behavior had become enough of a problem that they felt the need to document their concerns.

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.