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.

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.

Sixth Circuit: Not Religious Discrimination to Require Religious Objector to Union Dues to Pay Full Dues to Charity Instead of Merely Agency Fee.

Today, a divided panel of the Sixth Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a former union member against the UAW. Reed v. UAW, No. 07-2505 (6th Cir. 5/7/09). According to the Court’s opinion, the plaintiff “claims that UAW, in violation of Title VII of the Civil Rights Act of 1964, failed to provide a reasonable accommodation for his religious objection to financially supporting the union.” The Court affirmed dismissal of this claims on the grounds that the plaintiff could not show an actionable employment action merely from the fact that religious objectors were required to make a charitable donation in any amount of the full union membership dues instead of the lesser amount of the agency fee charged to non-union members (which was 22% less than regular union member dues).

According to the Court’s opinion, the UAW constitution, “grants both members and non-member agency fee payers ‘the right to object to the expenditure of a portion of his/her dues money for activities or causes primarily political in nature’ and to receive a rebate for that portion. UAW and AM General also are parties to a letter agreement that allows any employee with a bona fide religious objection to joining or supporting a labor union to satisfy his union security obligation by making a payment equal to full membership dues to one of three charities mutually designated by UAW and AM General.” After the plaintiff resigned his union members based on religious objections (which was supported by a letter from his pastor), the union began deducting the agency fee from his pay (which was less than the amount of full union dues he had been paying). When the plaintiff objected to paying even the agency fee, the union responded that it would refund the agency fees deducted from this paycheck if he paid an amount equal to the amount of full union dues to an approved charity. The plaintiff did so and then filed a Charge and lawsuit objecting to being required to pay to the charity an amount equal to full union dues instead of just the lesser amount of the agency fee charged to non-members. The plaintiff claimed that being required to pay the charity an amount equal to the regular union dues instead of the lesser agency fee amount was not a reasonable accommodation of his religion.

The majority agreed with affirming the dismissal of the claim, but for different reasons. In the lead opinion, the judge found that there was not a material adverse employment action in that the plaintiff was not disciplined or discharged. The judge did not believe that the plaintiff could prove a prima facie case by complaining about a minor difference in pay deductions (i.e., the 22% difference between the agency fee charge non-members and the amount of union dues charged to full members and to religious objectors). The concurring opinion, on the other hand, found that the union’s action was a sufficient accommodation of the plaintiff’s religious beliefs.

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0166p-06.pdf.

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