Supreme Court Rejects Requirement of Materially Adverse or Significant Changes in Terms and Conditions of Employment to Prove Discriminatory Lateral Transfers

This morning, in a long-awaited decision without any dissents, the Supreme Court reversed the summary judgment dismissal of a sex discrimination lawsuit on the grounds that the plaintiff is not required to prove that an involuntary lateral transfer significantly affected the terms and conditions of her employment.   Muldrow v. City of St. Louis, MO, No. 22-193 (4/17/24).  In particular, the plaintiff alleged that, even though her pay and title remained the same after the transfer, she was denied the use of an unmarked vehicle to use after her shift, was required to sometimes work weekends and no longer worked with higher ranking officers.   “Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.”  Nonetheless, the Court observed that the significance of the changed working conditions may be considered in assessing whether the employer intentionally discriminated.  “[A] court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination.”

According to the Court’s opinion, when a new commander took over, the plaintiff was involuntarily transferred from a plainclothes officer position in the Intelligence Division (where she had worked for almost 10 years) to a uniformed officer position in another department supervising patrol officers.  The new commander allegedly called her “Mrs.” instead of “Sergeant” and indicated that a male officer was better suited for the Division’s dangerous work.   Her pay and rank remained the same following the transfer.  However, she “no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division” and “also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts.”   She lost a “prestigious” role for an “administrative” role.  She alleged that she was transferred because of her sex in violation of Title VII.  However, the trial and appellate courts granted judgment to the city employer on the grounds that she had not suffered any materially significant adverse affects from the transfer and she only suffered minor changes in her working conditions.   The  Supreme Court reversed.

The plaintiff’s involuntary “transfer  . . .  implicated “terms” and “conditions” of [her] employment, changing nothing less than the what, where, and when of her police work.”

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1).

This “language requires [the plaintiff] to show that the transfer brought about some ‘disadvantageous’ change in an employment term or condition.  . . . . The words ‘discriminate against,’ we have explained, refer to ‘differences in treatment that injure’ employees.”  Title VII “targets practices that “treat[] a person worse” because of sex or other protected trait.”  The Court has clarified in the past that the “terms [or] conditions” statutory language  “is not used ‘in the narrow contractual sense’; it covers more than the ‘economic or tangible.’”  Nonetheless, it limits that kinds of harm that is actionable.  “To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.”

What the transferee does not have to show, according to the relevant text, is that the harm incurred was “significant.”  . . . . Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar . . . “Discriminate against” means treat worse, here based on sex.  . . . But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand “significance” is to add words—and significant words, as it were—to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written. And that difference can make a real difference for complaining transferees. Many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.) But now add another question— whether the harm is significant. As appellate decisions reveal, the answers can lie in the eye of the beholder—and can disregard varied kinds of disadvantage.

The Court rejected the employer’s policy argument that removing the significance factor will open the litigation floodgates and discovery issues:

In the City’s view, a significant-injury requirement is needed to prevent transferred employees from “swamp[ing] courts and employers” with insubstantial lawsuits requiring “burdensome discovery and trials.”  . . . . As we have explained, the anti-discrimination provision at issue requires that the employee show some injury.  . . . It requires that the injury asserted concern the terms or conditions of her employment. . . . Perhaps most notably, it requires that the employer have acted for discriminatory reasons—“because of ” sex or race or other protected trait. §2000e–2(a)(1). And in addressing that issue, a court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination. So courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions. But even supposing the City’s worst predictions come true, that would be the result of the statute Congress drafted.  As we noted in another Title VII decision, we will not “add words to the law” to achieve what some employers might think “a desirable result.” . . . Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so.

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: Reassigning Shifts to Achieve Racial Diversity Can Constitute Actionable Race Discrimination.

Last July, the Sixth Circuit reversed an employer’s summary judgment, finding that considering race when making shift assignments in order to ensure a diverse management team could constitute actionable race discrimination and was not a de minimis matter.  Threat v. City of Cleveland, 6 F.4^th 672 (6^th Cir. 2021).  “When an employee’s race is a basis for a shift change that denies the privileges of that employee’s seniority, the employer has discriminated on the basis of race in the terms and privileges of employment.”  It rejected the argument that a shift assignment was never a material adverse employment action. “The point of our cases is to convey that an employer’s alteration of the ‘terms’ or ‘privileges’ of an employee’s work is actionable only when it is ‘adverse’ and ‘material’ to the work.” Moreover, “to give the de minimis rule too broad a reach would contradict congressional intent by denying proper effect to a statute.” The Court also dismissed the argument that Title VII only reaches employment decisions which cause economic harm when the statute reaches not only discrimination in compensation but also discrimination in other terms, conditions and privileges of employment.

According to the Court’s opinion, EMS captains were permitted by the bargaining agreement to choose their shifts according to their respective seniority, but the City could change up to four of them for any reason even if it conflicted with the captain’s first choice.  After the shift bid process, it turned out that the day shifts were staffed with all black captains.  In order to ensure racial diversity on the shift, the EMS Commissioner moved one to the night shift and replaced him with a white captain (even though it interfered with that captain’s child visitation schedule).  Discrimination and unfair labor practice charges, public accusations and litigation ensued.

There is little room for debate that the city discriminated against the plaintiffs—that it treated them differently.  . . . .

There also is little room for debate that the city treated the black captains differently “because of” their “race.” [The EMS Commissioner] admitted that she switched out a black captain for a white one to adjust the shift’s racial makeup. That counts as direct evidence of discrimination based on race. . . .

The main debate in this case turns on the meaning of “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Do the city’s shift schedules amount to “terms” of employment? Does getting priority because of seniority in choosing shifts amount to a “privilege” of employment?

At one level, that seems easy. If the words of Title VII are our compass, it is straightforward to say that a shift schedule—whether, for example, the employee works the night shift or the day shift—counts as a term of employment. It’s not even clear that we need dictionaries to confirm what fluent speakers of English know. A shift schedule is a term of employment . . .

 . . .

Pulling the meaning of these key terms together, the city decided when Anderson had to work based on his race—and in the process discriminated against him based on race with respect to his terms and privileges of employment. The race-based shift change controlled when and with whom he worked, prohibited him from exercising his seniority rights, and diminished his supervisory responsibilities when the city imposed the night shift on him. All told, the action amounted to discrimination with respect to his terms and privileges of employment under § 703(a)(1).

The City argued that the shift assignments were not materially adverse employment actions that could be litigated under Title VII.  However, the Court found that the City underestimated the importance of a shift assignment.

We do not see the same gap between the words of Title VII and our liquidation of those words. The point of our cases is to convey that an employer’s alteration of the “terms” or “privileges” of an employee’s work is actionable only when it is “adverse” and “material” to the work. To “discriminate” reasonably sweeps in some form of an adversity and a materiality threshold. It prevents “the undefined word ‘discrimination’” from “command[ing] judges to supervise the minutiae of personnel management.” . . . It ensures that a discrimination claim involves a meaningful difference in the terms of employment and one that injures the affected employee. And it ensures that any claim under Title VII involves an Article III injury—and not, for example, differential treatment that helps the employee or perhaps even was requested by the employee. . . .. Surely those are reasonable assumptions.

At the same time, our approach honors a de minimis exception that forms the backdrop of all laws. The “doctrine de minimis non curat lex (the law does not take account of trifles)” has “roots [that] stretch to ancient soil.” . . . So ancient, the “old law maxim” was already venerable at the founding. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 268 (1796). From the beginning, the de minimis canon has been “part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.” . . . .

When Congress enacted Title VII, the National Legislature provided no indication that it sought to disregard these considerations or to use the word “discriminate” to cover any difference in personnel matters. Yes, “hundreds if not thousands of decisions say that an ‘adverse employment action’ is essential to the plaintiff’s prima facie case” even though “that term does not appear in any employment-discrimination statute.”. . . . And, yes, the same could be said about a “materiality” requirement. But we take these innovations to be shorthand for the operative words in the statute and otherwise to incorporate a de minimis exception to Title VII.

But de minimis means de minimis, and shorthand characterizations of laws should not stray. Else, like “the children’s game of telephone,” we risk “converting the ultimate message into something quite different from the original message—indeed sometimes into the opposite message.” . . . “[T]o give the de minimis rule too broad a reach would contradict congressional intent by denying proper effect to a statute.” . . . That concern, however, must be balanced against the reality that “we cannot just toss the de minimis rule aside.” Id.

In this instance, employer-required shift changes from a preferred day to another day or from day shifts to night shifts exceed any de minimis exception, any fair construction of the anchoring words of Title VII, and for that matter any Article III injury requirement. Whether we refer to claims of discrimination based on race in “terms” or “privileges” of employment or to claims of discrimination based on race in “materially adverse” terms of employment, the conclusion is the same: They state a cognizable claim under Title VII when they refer to shift changes of this sort and under these circumstances.

While acknowledging that some prior Sixth Circuit cases have dismissed challenges to shift assignments as not implicating a material adverse employment action, the Court concluded:

Not all shift changes are the same. And some shift changes and reassignments may constitute, say, race-based discrimination in “terms,” “privileges,” and other aspects of employment.

The Court also dismissed the argument that Title VII only reaches employment decisions that cause economic harm when the statute reaches not only discrimination in compensation but also discrimination in other terms, conditions and privileges of employment.

Cabining the provision to pocketbook harms would render meaningless many of the words in the statutory phrase “compensation, terms, conditions, or privileges of employment.” As the words after “compensation” suggest, Title VII indeed extends beyond “economic” discrimination.

The Court also remanded the claims of the other captains who were not reassigned so that the trial court could consider whether the reassignments controlled with whom they could work.   The Court affirmed dismissal of the retaliation claim based on the unfair labor practice charge filed against their union.

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.

Ohio Appeals Court Reverses Employer’s Summary Judgment on Retaliation Claim Based on Workplace Investigation

 

Earlier this week, a unanimous Franklin County Court of Appeals affirmed summary judgment on a discrimination claim, but reversed summary judgment on a retaliation claim, finding sufficient evidence for a trial on whether the plaintiff was subjected to a workplace investigation and potential termination in retaliation for a Charge of Discrimination he had filed two months earlier.   Moody v. Ohio Dept. of Mental Health & Addiction Servs., 2021-Ohio-4578. The plaintiff alleged that he was subjected to discrimination when he was given a paid three-day suspension for being hours late to work due to a misunderstanding about the work schedule.   During a later, unrelated investigation, the plaintiff alleged that co-workers had mistreated patients, but he had never filed formal incident reports about any of those incidents.  He was then investigated for failing to file incident reports and threatened with a five-day suspension or termination.  He resigned and filed suit.  The Court found that a paid three-day disciplinary suspension which did not affect the plaintiff’s compensation, status, or other terms and conditions of employment could not constitute a material adverse employment action for purposes of employment discrimination.   However, subjecting the plaintiff to a workplace investigation two months later could constitute an actionable retaliatory action and was sufficiently close in time to his protected conduct of filing a Charge of Discrimination.  The Court also found sufficient evidence of pretext when the employer’s explanation was challenged by an independent witness who agreed with the plaintiff that there was no mandatory duty to file a formal incident report for relatively minor infractions which could be adequately resolved by reporting them to the Charge Nurse.

According to the Court’s opinion, the plaintiff received disciplinary action after engaging in horseplay at work.  He was directed to read some materials and prepare a performance improvement plan within a week, which he failed to do.  He was then given a written reprimand for failing to complete the assignment.    A few months later, he was given a one-day paid suspension for creating a workplace disturbance.  He then transferred to a new supervisor and had no further issues for almost three years.  However, he was then more than two hours late to work after relying on an earlier draft of the work schedule.  The next step in the progressive disciplinary policy was a paid three-day suspension.  Incorrectly believing that the bargaining agreement provided that his prior disciplinary actions dropped off after two years (instead of three years), he filed a Charge of Discrimination with the Ohio Civil Rights Commission, which was dismissed for lack of probable cause.  Two months later, he was interviewed as part of unrelated investigations of two co-workers.  He alleged during those investigations that the co-workers had been abusive towards patients.  Because he had never filed incident reports concerning any of those situations, he was then investigated and subjected to disciplinary action, including termination.  He resigned and filed suit.  The Court of Claims granted summary judgment to the employer.

A unanimous Court of Appeals affirmed in part and reversed in part.   The plaintiff failed to produce evidence of different treatment concerning most of the challenged employment actions.  His bare assertions that other employees, for instance, engaged in horseplay without disciplinary action was insufficient to create a material dispute of fact necessary to avoid summary judgment.   However, he did produce documentary evidence and a witness affidavit that a few other co-workers were late to work under similar circumstances and only received informal counseling, instead of formal disciplinary action.  Nonetheless, the Court concluded that the plaintiff could not prevail on a discriminatory treatment claim because his paid suspension had not altered his compensation, employment status or other terms or conditions of his employment.

"[A]n adverse employment action 'is a materially adverse change in the terms and conditions of the plaintiff's employment.' . . . . Whether a particular action constitutes an adverse employment action is determined on a case-by-case basis.  . . . "Factors to consider in determining whether an employment action was materially adverse include termination, demotion evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices unique to a particular situation."  . . . By contrast, " 'actions that result in mere inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions.' “  . . . .  [citations omitted]

While terminations, failure to renew a contract, and unpaid suspensions can constate material adverse employment actions, “the Sixth Circuit has held that a paid suspension generally does not constitute an adverse employment action.”

We have held that where an employer is not required to use progressive discipline prior to terminating an employee, the failure to use progressive discipline does not necessarily establish a pretext for discrimination. . . . .Conversely, in this case, [the employer’s] application of its progressive discipline system when disciplining [the plaintiff] for being late to work does not, in itself, constitute an adverse employment action. . .

In this case, [he] did not lose pay during the three-day working suspension. Moreover, his hourly wage and seniority were not affected by the three-day working suspension. Unlike the plaintiff in Arnold, [he] has not demonstrated any "diminished material responsibilities" resulting from the suspension. Arnold. at 532. Thus, like the plaintiff in Presley, [he] has failed to demonstrate the three-day working suspension had any long-term impact on the terms or conditions of his employment. See Presley at 514. Even construing the evidence most favorably to [plaintiff], we conclude he fails to demonstrate the three-day working suspension imposed in August 2018 was an adverse employment action purposes of his race and national origin discrimination claims. Therefore, [he] has failed to establish a prima facie case of race and national origin discrimination.

However, the Court found sufficient evidence to support the plaintiff’s claim of retaliation.

In the context of a retaliation claim, a plaintiff must show an alleged adverse employment action "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . see also Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007- Ohio-6442, ¶ 13, fn. 2 (noting that under R.C. 4112.02(I) "the adverse action need not be employment-related, so the filing of a lawsuit or a counterclaim can constitute an adverse employment action in circumstances such as those in this case"); Arnold at 536-37, quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) ("Demonstrating the third prima facie element in a Title VII retaliation case, an adverse employment action, is less onerous than in the discrimination context in that it 'is not limited to discriminatory actions that affect the terms and conditions of employment.' ").

We have held that denial of consideration for promotion, exclusion from meetings, and being singled out for discipline were sufficient to demonstrate adverse employment action for a retaliation claim. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 728 (10th Dist.1999). The Sixth Circuit has held that an investigation of alleged research misconduct by a university professor could constitute an adverse employment action for purposes of a Title VII retaliation claim.  . . . Similarly, the Sixth Circuit has noted that internal investigations, loss of remote parking privileges, a requirement to complete time sheets, and a suspension and transfer could constitute adverse employment actions to demonstrate a prima facie case of retaliation. . . .

[The plaintiff] claims the December 2018 investigations were an adverse employment action for purposes of his retaliation claim. During the investigations, [he] was subjected to multiple police interviews. Based on the December 2018 investigations, [he] was charged with failing to report violations and, after a pre-disciplinary meeting, a human relations officer found there was just cause to discipline [him]. Under ODMHAS's progressive discipline system, [he] potentially faced a five-day working suspension or termination. Construing this evidence most favorably to [him], an investigation and potential discipline could have a chilling effect on an employee's willingness to oppose workplace discipline and "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."  . . . Therefore, [he] has demonstrated that he was subjected to an adverse employment action for purposes of his retaliation claim.

The Court found that the plaintiff also presented sufficient evidence to show that his protected conduct (in filing the Charge) was the cause of the workplace investigation because the investigation was conducted less than three months after his protected activity. 

We have held that "close temporal proximity between the employer's knowledge of the protected activity and the adverse employment action may constitute evidence of a causal connection for purposes of satisfying a prima facie case of retaliation."  . . .  Although we have noted that proximity alone does not necessarily imply causation, we have held that an adverse employment action occurring two months after a protected activity was sufficient to establish a prima facie case of retaliation.  . . . Similarly, the Sixth Circuit has held that a gap of three months between an employer learning of a protected activity and an adverse employment action may permit inference of a causal connection.  . . . As noted above, in this case the record does not establish exactly when [the employer] learned of the OCRC/EEOC complaint, but it should have been advised of the EEOC complaint by October 2018. The December 2018 investigations began in early December 2018, little more than two months later. Thus, consistent with our decision in Hartman and construing the evidence most favorably to [the plaintiff], the approximately two-month gap between the protected activity and the adverse employment action in this case would permit a finding of causation.

While the employer articulated a legitimate and non-discriminatory reason for investigating the plaintiff, the Court also found that he had presented sufficient evidence to question whether that explanation was pretextual for retaliation.   The plaintiff contended that filing incident reports was not mandatory for minor infractions and was able to cite to a statement made by a Registered Nurse during the investigation confirming his understanding.

[The plaintiff] effectively argues [the employer’s] proffered reason was insufficient to explain the December 2018 investigations. He asserts [his co-workers] had some discretion regarding when to file incident reports because not every infraction merited a formal incident report. [He] claims incident reports were an elevated form of reporting that automatically triggered a police investigation, whereas reporting matters to the charge nurse allowed them to be resolved informally. [He] asserted he "generally reported workplace problems to the Charge Nurse, rather than automatically escalate all issues into Incident Reports and police investigations" and that he "only filed Incident Reports for the most egregious conduct." . . . [He] further claimed this "was the way most such incidents were handled by my fellow TPWs."  . . . In addition to his personal understanding of appropriate reporting practices, [he] cites a statement made by a registered nurse during the December 2018 investigations. The nurse told the investigator that if a TPW witnessed a patient violation she would advise the TPW to tell the registered nurse on duty about it. Construing this evidence most favorably to [the plaintiff], it creates a genuine issue of material fact regarding the incident reporting practices  . . . and, by extension, whether [the employer’s] justification for the December 2018 investigation (i.e., that it was necessary because [he] violated policy by failing to report workplace incidents) was merely a pretext for retaliation.

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.

EEOC Finalizes Its Anti-Retaliation Enforcement Guidelines

At the end of August, the EEOC issued its final enforcement guidelines on retaliation claims just a few months after publishing its draft guidelines previously discussed here in February.  The final guidelines contain some additional discussion not previously included, including on the burdens of proof and causal connections required to show retaliation.  As most people know by now, the anti-retaliation provisions of the federal employment discrimination statutes encompass a broader range of employment actions than arise under regular discrimination statutes.   The final guidelines also contain a new section about claims alleging interference with ADA rights, which the EEOC interprets to provide broader protection than even the anti-retaliation clauses.

Protected Activities.  As previously mentioned, the EEOC contends that the “participation” clause in the anti-retaliation provision of Title VII (and other employment discrimination statutes) protects employees from any form of disciplinary action or adverse employment action regardless of the honesty or reasonable belief of the employee during the process.  Further, the EEOC contends that protected “participation” includes not only participation in agency or government proceedings, investigations and lawsuits, but also to internal employer complaint policies and investigations.  The EEOC defends its position because the Supreme Court left the issue open in Crawford v. Metropolitan Government of Nashville whether an employee’s participation as a witness in an internal workplace investigation was “participation” or merely “opposition.”  In contrast to “participation,” an employee’s “opposition” to potentially unlawful conduct must both reasonable and be based on a reasonable belief in order to be protected.   

Opposition can include the following:

·        participating in an internal workplace investigation,

·        refusing to obey an illegal order to discriminate against a subordinate or co-worker,

·        complaining to a union, lawyer, or customer,

·        picketing,

·        stating an intention to file a charge of discrimination

·        complaining after one incident of harassing conduct even though the conduct has not yet risen (i.e., become severe or pervasive enough) to the level of illegal (or actionable) workplace harassment,

·        requesting a reasonable accommodation for a religious belief or disability, and

·        discussing information about co-workers’ compensation to support or determine whether the rates are discriminatory,

The opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination. The communication itself may be informal and need not include the words "harassment," "discrimination," or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation. Individuals may make broad or ambiguous complaints of unfair treatment, in some instances because they may not know the specific requirements of the anti-discrimination laws. Such communication is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

The opposition clause also protects all employees, regardless of their position or responsibility for enforcing EEO laws, so that HR managers are protected to the same extent as any other employee for opposing unlawful conduct. 

The opposition clause does not permit an employee to neglect job duties, make numerous specious complaints, badger co-workers to become witnesses, or coerce a co-worker to change his or her story, etc.

Retaliatory Actions.  While the retaliatory act must constitute a materially adverse job action, this encompasses any action that might deter a reasonable person from engaging in protected activity.   This is also a broader range of activities than can constitute actionable discrimination and can include actions that did not, in fact, deter the victim.  It can, for instance, include warnings, transfers, performance evaluations, reprimands, activities outside of work, disparaging the person to the media, more closely scrutinizing work, and retaliating against a family member, etc.  Trivial actions that would not deter a reasonable person from engaging in protected activity will not be considered as materially adverse.  Harassing acts that might not be severe or pervasive enough to constitute actionable harassment could constitute actionable retaliation.

Causal Connection.  Evidence must show that the employee would not have suffered the retaliatory action but for his or her protected conduct.   This is not a “sole cause” standard because there can be multiple “but for” causes.   Sometimes, an employer denies knowledge of the protected conduct and other times offers a legitimate and non-retaliatory reason for its actions.    A causal connection can be established, for instance, by suspicious timing, comments, comparative treatment, selective enforcement, and inconsistent or shifting explanations for the employer’s action, etc.

ADA Interference.  The ADA’s prohibition against interfering with ADA rights is interpreted by the EEOC as being broader than the anti-retaliation provisions.

Because the "interference" provision is broader, however, it will reach even those instances when conduct does not meet the "materially adverse" standard required for retaliation. Examples of conduct by an employer prohibited under the ADA as interference would include:

·        coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;

·        intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;

·        threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;

·        issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");

·        interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and

·        subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

The interference provision does not apply to any and all conduct or statements that an individual finds intimidating. In the Commission's view, it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights. . . .

 . . .A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

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

Sixth Circuit Reversed Columbus Employer’s Summary Judgment on Employment Discrimination Claim, But Affirmed Dismissal of Constructive Discharge Claim.

Earlier this month, the Sixth Circuit reversed a Columbus employer’s summary judgment on an employment discrimination claim, but affirmed dismissal of the plaintiff’s constructive discharge claim.   Henry v. Abbott Laboratories, No. 15-4165 (6^th Cir. 6-10-16). The plaintiff alleged that she had been denied the opportunity for promotion and was retaliated against when she protested and ultimately filed an OCRC Charge.  The Court concluded that she could rely on similarly situated employees (who had similar qualifications and much less tenure) who reported to different supervisors to show both discrimination and pretext.   The Court also agreed that she could prove that she suffered increased scrutiny and adverse employment actions (through negative performance evaluations and performance plans) after she filed her Charge which could be attributed to her protected activity, but denied that her subjective belief that she was being forced to resign was sufficient to show constructive discharge without evidence that the employer deliberately created intolerable working conditions with the intention of forcing her to quit. 

The plaintiff had worked as a customer service representative since 1999 and in 2008 and 2009, she received “achieved expectations” evaluations.  To be promoted, she needed that level of annual evaluation, one year of experience and a favorable “readiness” rating by the quality assurance staff.  The last time she had been evaluated by the QA staff was in 2006 and it had not been favorable.  However, her supervisor did not survey the QA staff after her performance evaluations improved or refer her for additional training to make her eligible for promotion.  When the plaintiff inquired about her being overlooked for promotion, her supervisor told her that tenure was not important.   The plaintiff complained to HR in April 2010 when other new employees were then promoted instead of her.  When HR did not respond within the week, she filed an OCRC Charge in May, alleging employment discrimination.

HR questioned about her promotability and competence surveys were sent to the QA staff outside the regular schedule a month after the OCRC Charge had been received.  They were not favorable and were shared with the plaintiff.   The plaintiff rejected the feedback, so a quality coordinator was assigned to sit with her more frequently than normal in June.  Her scores plummeted and she complained to HR that she was being harassed.   Later that year, she had trouble acclimating to the adoption of SalesForce and made a significant security error in November, which resulted in her being placed on a two week disciplinary suspension.  There was a discussion about putting her on a performance improvement plan, but her managers were concerned that this would appear retaliatory.  Instead, they gave her a poor performance evaluation (which made her ineligible for promotion) in early 2011 and gave her scores which were depressed considering her objective statistics (because the latter months had been given greater weight than her earlier months).

The OCRC found probable cause of discrimination in April 2011 because she had been passed over for promotion in favor of co-workers outside her protected class with similar performance evaluations who had much less experience and tenure.   The next day, a manager said that he wanted to take the next step with her, but felt paralyzed.  Instead, two months later she was placed on a 60-day performance improvement plan.  The plaintiff took a two month stress leave of absence and announced her retirement upon her return because she felt that she was being forced to resign.  She then filed suit.  The district court ruled against her on all claims.  The Sixth Circuit reversed on the discrimination and retaliation claims, but affirmed denial of the constructive discharge claims.

While she had not received a favorable survey result from the QA staff (which was a requirement for being promoted),  no survey had been sought when she started receiving favorable performance evaluations.  This meant that the survey could not be a disqualifying reason.  Moreover, not every employee who had been promoted had been the subject of the survey.    When a survey was finally sought on her performance, it was done outside of cycle, which made it suspicious to the staff and was ignored by some of them.   The Court also concluded that she was permitted to compare herself to employees with different supervisors because they were similar in relevant respects and their supervisors reported to the same manager.

The Court also found sufficient evidence of pretext without slurs or other negative comments about her protected class.   She pointed out that no one in her protected class had been promoted since 2002.  Also, the explanations about her performance seemed pretextual because they directly contradicted the favorable comments written in her performance evaluations.   She clearly met the objective criteria to be promoted and management could not identify any employees who had met the objective criteria (i.e., performance scores) and had NOT been promoted (even though some of them had not worked there for even a year).    The employees who had been promoted did not have markedly supervisor qualifications which could also have explained the discrepancy.   A jury need not accept a subjective evaluation of the plaintiff’s performance to find pretext.

As for her retaliation claim, the Court found that the increased scrutiny of her performance within a month of receiving her OCRC Charge, poor performance evaluation eight months later (which rendered her ineligible for promotion), a performance improvement plan two months after a probable cause finding from the OCRC and being kept on the training line would dissuade a reasonable person from exercising her protected rights.  Multiple incidents over a year’s period can combine to form a materially adverse employment action. “A reasonable jury could also find that the other actions, although occurring later in time, also would not have occurred in the absence of Henry’s protected activity.”   It did not help the employer that the HR notes indicate that several managers were advocating for poor performance evaluations and concern about the OCRC Charge. Indeed, the day after the OCRC finding was received, a “note in an employee relations file” stated that they planned to wait “a reasonable amount of time” before “plac[ing] her on a formal coaching plan.”  This could reflect a pre-determined scheme to discipline her regardless of her actual job performance.  While the employer argued that her falling performance scores justified her rating, the jury could also attribute her falling scores to the increased scrutiny as a result of the OCRC Charge.   Indeed, her 2010 evaluation was markedly below her evaluations from 2003 through 2009, which, again, could be inferred was the result of retaliation instead of her actual job performance.

 

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.

EEOC Releases Updated Employment Retaliation Enforcement Guidance

Last month, the EEOC issued a draft of updated enforcement guidelines covering its investigations of retaliation allegations.   These were last updated in 1998.   As discussed below, the Guidelines take a few positions worth noting by employers. For instance, the EEOC explains that employees who make false allegations during an internal EEO investigation are protected from disciplinary actions.  Similarly, internal or formal complaints about incidents which are not yet severe or pervasive enough to constitute actionable harassment are also protected. However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”  The EEOC also specifically finds that HR employees and managers are protected from retaliation and notes that disciplinary action against employees for violating pay confidentiality policies may be unlawfully retaliatory if the employee was also complaining about pay discrimination.

The first section discusses the types of “participation” and “opposition” that could constitute protected activity.  The obvious areas including filing a Charge, threatening to file a Charge, pursuing an internal EEO complaint, participating in an internal or EEOC investigation, rejecting sexual advances, refusing to discriminate against subordinates, and requesting a reasonable accommodation for a disability or religious practice.   However, the EEOC also included in this reporting a sexual assault to the police, reporting alleged discrimination to the news media or the employer’s customers, picketing, and passively refusing to comply with an unlawful direction to discriminate.  Even though an employee engages in protected activity, however, does not mean that he or she is immune from disciplinary action for also engaging in improper conduct or poor job performance.   Accordingly, employees cannot attempt to prevent disciplinary action simply by engaging in protected activity.

Even if the employee is incorrect about whether discrimination or harassment occurred, the employee need only have a reasonable good faith belief that the underlying employment action is illegal to be covered by the opposition clause.   For instance, an employee may protest workplace conduct before it becomes serious and pervasive enough to constitute harassment. (However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”).  The EEOC will consider the employee’s opposition conduct to be protected unless his or her complaint is patently specious.  As an example, the EEOC described an employee who complained about an unfair pay raise, but did not make any comparison to anyone outside his protected class.   Similarly, an employee who complains about not receiving a promotion even though she admittedly did not possess the required degree or license would not have a reasonable belief about possible discrimination. 

That being said, the EEOC does not require a reasonable belief about the legality of the underlying activity when the employee is covered by the participation clause (i.e., filing a charge or participating in an EEOC investigation).  This is true even if the underlying alleged discriminatory action was legal or the Charge was untimely.  It even notes that the employee’s allegations may be malicious, defamatory and wrong, but still be protected.  Even though it recognizes that many federal courts – including the Sixth Circuit which has jurisdiction over Ohio and the Eleventh Circuit with jurisdiction over Georgia – do not consider internal EEO and harassment complaints to be covered by the participation clause unless the employee also filed a Charge with the EEOC, the EEOC explicitly states that it views internal EEO complaints to be protected “participation” which does not require the employee to have a reasonable belief about the validity of the allegations or to even tell the truth.  (Nonetheless, the EEOC continues to discuss situations involving internal EEO complaints under the opposition standard throughout the Guidance).  Accordingly, this would prevent an employer from taking disciplinary action against an employee who provided incorrect (and possibly false and fabricated information) during an internal EEO or harassment investigation:

Thus, the application of the participation clause cannot depend on the substance of testimony because, “[i]f a witness in [an EEO] proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth-coming.” These protections ensure that employers cannot intimidate their employees into forgoing the complaint process and that those investigating can obtain witnesses’ unchilled testimony. 

Encompasses Internal Complaints. The Commission also views “participation” as encompassing internal EEO complaints to company management, human resources, or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency.  The text of Title VII prohibits retaliation against those who “participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

There were a few areas of protected activity that the EEOC discussed more extensively than others.  First, it emphasized that the actions of HR employees, managers and supervisors would be constitute protected activity even if their job duties involved remedying harassment and discrimination and granting reasonable accommodations, etc.  The EEOC also suggested that an employee’s violation of pay confidentiality policies could constitute protected conduct and notes that the NLRA and certain Executive Orders governing federal contractors and subcontractors cover the confidentiality of compensation information.  However, all of the examples provided in the Guidance involved employees who were protesting pay discrimination based on specific information, which would constitute protected opposition discussed earlier in the Guidance.

Employment and other actions can be retaliatory even if they do not constitute actionable discrimination because the retaliation standard is broader than the discrimination standard.   An action can constitute retaliation if it would deter a reasonable person from engaging in protected conduct, even if it does not actually deter the plaintiff.  The standard obviously includes various employment actions, but can also include non-employment actions, such as retaliation against someone associated with the protected employee, defamation, bad-mouthing the employee to the media, poor job references, surveillance, closer scrutiny of performance, disclosing confidential information about the employee, etc.   That being said, minor and trivial actions are still not actionable.

An employee’s opposition activity can lose statutory protection when the employee’s opposition manifests itself in an unreasonable manner. As examples, the EEOC discusses employees who make an unreasonable number of specious complaints, badgers a co-worker to provide or change a witness statement, or involves illegal conduct (such as threat of violence).  “Opposition to perceived discrimination does not serve as license for the employee to neglect job duties. If an employee’s protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”   

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

  

Sixth Circuit Finds Employee Was Denied Reasonable Accommodation, but Not Constructively Discharged

Last month, the Sixth Circuit reversed summary judgment for an employer on an ADA claim, but affirmed summary judgment on sex discrimination and constructive discharge claims.   Gleed v. AT&T Mobility Services, No. 14-2088 (6^th Cir. 6-4-15).   After the employer denied the plaintiff a reasonable accommodation that it provided for a pregnant employee and denied him a schedule adjustment for necessary medical care, the employee quit and sued.   The Court found that permitting the employee to sit when necessary was a reasonable accommodation, particularly when the employer permitted other employees to do so and it would allow him to work without pain.  Also, the employer could not insist on the employee utilizing its particular ADA process without proof that the employee was informed about it.   The employee’s request for a schedule change was likely reasonable as well, but the employee was at fault for the failure of the interactive process when he quit after his schedule request was denied instead of informing the employer that its suggestion – that he take unpaid leave and then apply for backpay – was unacceptable.   The Court also held that the denial of reasonable accommodations did not render his working conditions intolerable so as to render his resignation a constructive discharge.  Finally, the Court affirmed dismissal of the sex discrimination claim on the basis that he suffered no adverse employment action since his working conditions never changed.

According to the Court’s opinion, the employee suffered from a chronic skin infection which became worse when he stood for prolonged periods.   After he was transferred to a new store without desks, he was required to stand for long periods during his shift.  He brought a medical note to his manager requesting him to sit as needed, as a pregnant co-worker was permitted.  His request was refused because he was not pregnant. Seven months later, he developed a life-threatening infection which required daily IV antibiotic treatments.  He requested to change his work schedule so that he would not miss work for his medical treatment, but his manager denied his request.  He then called Human Resources to ask about his options, but was told that his only option was to take unpaid leave and then seek back pay.  He never specifically suggested adjusting his schedule.  When his doctor told him that he could die without the medical treatments, he resigned the next day and brought suit.

On appeal, the Court found that letting the plaintiff sit on a stool during his shift seemed reasonable since it would alleviate his pain and decrease his risk of another skin infection. The only argument which the employer raised was that the accommodation was not necessary because the plaintiff was physically capable of performing his job, even if he was in pain and risked his health.  In short, it argued that if the plaintiff “was physically capable of doing his job—no matter the pain or risk to his health—then it had no obligation to provide him with any accommodation, reasonable or not.”   The Court concluded that the ADA requires employers to provide disabled employees with similar benefits as non-disabled employees – i.e., the ability to work without pain.  “29 C.F.R. § 1630.2(o)(1)(iii). Here, taking the evidence in the light most favorable to [the plaintiff], he needed a chair to work—as other employees do—without great pain and a heightened risk of infection.” 

The employer then argued that the plaintiff never properly requested an accommodation.  Under it policy, employees are first to submit requests to their supervisors and then to call the HR Service Center.   However, the plaintiff only asked his supervisor about the stool and not HR or the  Service Center.  The Court rejected this argument because the plaintiff testified that he never saw this policy and the employer could not prove otherwise.  

The Court rejected the plaintiff’s claim concerning the denial of his schedule adjustment to receive necessary medical care because he quit the ADA interactive process too soon.  The ADA requires both parties to participate in good faith to resolve the ADA issues. “If the process “fails to lead to [a] reasonable accommodation,” then “responsibility will lie with the party that caused the breakdown.”  In this case, the plaintiff never informed the employer that its proposal – to take unpaid leave and apply for backpay – was unacceptable.  Instead, he resigned the next day.  Because the plaintiff caused the ADA process to break down over this request, his claim was denied.  

The Court next denied his sex discrimination claim, which challenged the denial of his stool request when it was provided to a pregnant employee.  The Court found that only materially adverse employment actions were actionable and the plaintiff had failed to identify any material adverse changes in his employment.   The employer’s denial of his request to sit on a stool did not change his working conditions and, therefore, was not actionable.   (I have to wonder how this argument works when an employee is denied a promotion or a raise or a transfer . . . . . ).  

Finally, the Court rejected the constructive discharge claim because the denial of his accommodation requests did not render his working conditions objectively intolerable.  

But the denial of an accommodation, by itself, is not sufficient to prove that an employer constructively discharged an employee. . . . . And [the plaintiff] points to nothing else in the record that suggests [his supervisor’s] real purpose in denying [the plaintiff’s] requests was to force [him] to resign  . . . Thus, no reasonable jury could find that [the employer] intended to force him to quit, and summary judgment was therefore proper on this claim too.

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

Sixth Circuit: 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.