Harvey Gene CREGGETT, Plaintiff-Appellant, v. JEFFERSON COUNTY BOARD OF EDUCATION, Defendant-Appellee.
No. 11-6375
United States Court of Appeals, Sixth Circuit
Aug. 1, 2012
491 Fed. Appx. 561
I agree with the majority‘s conclusion that many of the plaintiffs’ claims amount to no more than allegations of uncomfortable living conditions, which do not rise to the level of an Eighth Amendment claim. Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The same is true for the plaintiffs’ due-process claims, which do not meet the standards for stating either a procedural or a substantive due-process violation. Given the more lenient pleading standard afforded pro se litigants, however, I believe that a few of the plaintiffs’ claims should have been permitted to move forward. In their fourth cause of action, for instance, the plaintiffs contend that prison officials cut off the hot water to the washing machines, thereby preventing inmates from washing their clothes in hot water in spite of numerous inmates having contracted staph infections. Compl. ¶¶ 10, 22. Similarly, the plaintiffs’ fifth cause of action alleges that an inadequate and unhealthy ventilation system has caused frequent respiratory infections in the prison population. Id. ¶¶ 11, 26. Both of these allegations raise the possibility of health or sanitation problems that, if treated with deliberate indifference by prison officials, could violate the prisoners’ Eighth Amendment rights. See Rhodes, 452 U.S. at 348, 101 S.Ct. 2392 (stating the Eighth Amendment‘s concern with “deprivations of essential food, medical care, or sanitation“); cf. Board v. Farnham, 394 F.3d 469, 475, 486 (7th Cir.2005) (noting that the plaintiffs’ claims based on the adverse health effects caused by an inadequate ventilation system had been permitted to proceed beyond the dismissal stage and holding that extremely poor ventilation could constitute an Eighth Amendment violation).
Although it is true that the plaintiffs’ allegations do not align with those identified in the Supreme Court‘s decision in Brown v. Plata, — U.S. —, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011), nothing in Brown suggests that only alleged violations as egregious as those occurring in the prisons involved in that case can avoid dismissal under the PLRA. Moreover, even conditions that create only a future risk of unreasonable health issues can raise Eighth Amendment concerns. Flanory, 604 F.3d at 255 (citing Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Accordingly, I would reverse the district court‘s order of dismissal of the plaintiffs’ fourth and fifth causes of action and remand for further proceedings.
BOGGS, Circuit Judge.
Harvey Creggett, a high-school social-studies teacher employed in Jefferson County, sued his employer for unlawful discrimination, retaliation, hostile work environment, and intentional infliction of
I
Creggett is an African-American male, and was 58 when he filed suit. Creggett complained that he was being subjected to excessive classroom observations; accused of lying by his principal, regarding a discipline report stating that a student had called him a racial slur; forced to resign from the Fairdale School-Based Decision-Making Committee; received a harsher punishment than two female teachers for a similar breach of the school‘s confidentiality policy; and denied professional training that other teachers were given.
In 2007, Creggett submitted an internal grievance letter to the Jefferson County Board of Education, which found his claims “unsubstantiated.” He also filed a charge of race and age discrimination and retaliation with the Kentucky Commission on Human Rights, which also sent the charge to the EEOC. The Commission found no probable cause to believe that Creggett‘s employer had engaged in any wrongful practice and dismissed the charge. The EEOC issued Creggett a right-to-sue letter on May 13, 2008, and dismissed the charge as failing to establish a violation.
On June 6, 2008, Creggett filed a complaint in federal district court alleging claims under Title VII and the Kentucky Civil Rights Act. He named as defendants the Jefferson County School District, its Director of Compliance and Investigations, and Fairdale High School‘s principal, Margaret Linda Brown. He filed an amended complaint on July 22, 2010, naming as a defendant only the Jefferson County School District (though he called it the Jefferson County Board of Education). On December 20, 2010, the school district moved for summary judgment. Creggett opposed the motion.
On October 19, 2011, the district court issued an opinion and separate order granting defendant‘s motion for summary judgment. The court stated that Creggett provided no direct evidence of discrimination; therefore, he was required to satisfy the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
The court determined that Creggett had failed to present a prima facie case under McDonnell Douglas because he did not show that he had suffered an adverse employment action. The district court also determined that Creggett had failed to rebut as pretextual defendant‘s proffered explanations for Creggett‘s harsher punishment for breaching the school‘s confidentiality policy and the denial of professional training opportunities.
Creggett filed this timely appeal.
II
A
We review the district court‘s grant of summary judgment de novo. Reviewing the evidence in the light most favorable to the non-moving party, summary judgment should only be granted if there is no genuine issue as to any material fact, making the moving party entitled to judgment as a matter of law.
Creggett does not dispute the district court‘s determination that he did not present direct evidence of discrimination. Indeed, a review of the record shows that Creggett did not provide evidence that would allow a reasonable jury to determine, on that evidence alone, that he was a victim of discrimination. The evidence provided by Creggett is, at best, indirect
Only if Creggett satisfies the four-part test will the burden shift to the defendant to proffer a legitimate, non-discriminatory explanation for the adverse employment action he suffered. Harris, 133 Fed.Appx. at 293. If the defendant does so, the burden shifts back to Creggett again to show that the defendant‘s legitimate, non-discriminatory explanation is merely a pretext for unlawful discrimination. Ibid.
We agree with the district court that Creggett has proved parts (1) and (2) of his prima facie case. However, we also agree with the district court that Creggett has failed to put forth sufficient evidence that he suffered an adverse employment action.
An adverse employment action is defined in this circuit as ““a materially adverse change in the terms of [one‘s] employment.“” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 797 (6th Cir.2004) (en banc) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996)). Such a materially adverse action includes “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.” Id. at 798 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (internal quotation marks removed)). The employment action must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Bowman v. Shawnee State Univ., 220 F.3d 456, 461 (6th Cir.2000) (internal quotation marks omitted); see also id. at 462 (“[D]e minimis employment actions are not materially adverse and, thus, not actionable.“).
Creggett has failed to show that he suffered a materially adverse change in the terms of his employment. First, he admits that he has never been fired, demoted, had his pay reduced, or had his benefits reduced. Creggett is still employed at Fairdale High School, and has not been demoted, suspended, lost any job responsibilities, or lost pay. Second, the arguments that he does make—he received a written reprimand for one incident; he was denied professional-training opportunities; he was forced to resign from the Fairdale School-Based Decision-Making Committee; he did not receive a promotion; and he was harassed with excessive classroom observations—do not, once examined, reveal more than de minimis employment actions, at best. We examine these claims in turn.
Creggett argues that he suffered an adverse employment action when he received a Form E-2 conference summary of a meeting he had with Brown, his principal. The meeting was about a “Behavior Log” Creggett had sent to faculty members that discussed behavior problems Creggett was having with certain students and the methods Creggett was using to improve behavior. The log used the students’ full names, phone numbers, and excerpts of confidential discussions between Creggett and the students’ parents, in violation of the Fami
After the meeting, Brown decided not to punish Creggett, but instead to issue him a Form E-2. The Form E-2 summarized the meeting Brown had with Creggett. Brown stated, in a letter to Cheryl Richards, Jefferson County School District‘s Director of Compliance and Investigations, that the Form E-2 “has several uses[:] as a pre and post evaluation conference summary or as a general summary of a due process meeting including the issuance of a directive making explicit the desired outcome or behavior.” Brown stated that Creggett would have had the option, per his union contract, to grieve the E-2 if he disagreed with what was written; however, she stated that the Form E-2 was “not a formal reprimand.” Brown stated, in her letter to Richards, that she initially thought she would issue Creggett a written reprimand regarding the referral, for which she stated she had ample grounds. However, she ultimately decided that the Form E-2 would be sufficient.
Creggett argues that the Form E-2 was an adverse employment action. Because the union contract provided for a grievance process, Creggett argues that the Form E-2 is a written reprimand and should be viewed as an adverse employment action.1 A Form E-2 and a written reprimand, Creggett argues, are “in essence ... the same.”
Viewing the evidence in the light most favorable to Creggett, we assume that the Form E-2 is a written reprimand. However, Creggett has still failed to show that it was an adverse employment action. A written reprimand, without evidence that it led to a materially adverse consequence such as lowered pay, demotion, suspension, or the like, is not a materially adverse employment action. Lahar v. Oakland Cnty., 304 Fed.Appx. 354, 357-58 (6th Cir.2008); Bhatti v. Trs. of Boston Univ., 659 F.3d 64, 73 (1st Cir.2011); Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir.2009); Semsroth v. City of Wichita, 304 Fed.Appx. 707, 719 (10th Cir.2008); Sebastian v. A Technical Advantage, Inc., No. 3:10-CV-00483-TBR, 2011 WL 3360657, at *3 (W.D.Ky. Aug. 4, 2011).
Finally, even assuming that Creggett did make out an adverse employment action with regard to the Form E-2, he has failed to show pretext. Creggett argues that Brown‘s decision to issue him the Form E-2 was discriminatory because two female teachers had also violated Fairdale‘s confidentiality policies and they did not receive a Form E-2. Instead, they received only verbal reprimands. Defendant argues, however, that Creggett‘s violation of confidentiality was significantly more severe. The female teachers only used a student name in emails to faculty; they did not include phone numbers, notes
Next, Creggett argues that he suffered an adverse employment action when he was denied professional-training opportunities. He cites two instances of such denial: first, Creggett mentioned a twoweek training in Germany that he asked to attend; however, Brown would not allow him to go because the school did not have the funds to pay for a substitute in his absence. Second, he was invited by a teacher at Fairdale, Frances Ramey, to take her spot at a conference in Salt Lake City, Utah. She could not attend for financial reasons, so she offered Creggett her spot. He accepted. However, according to Creggett‘s deposition, Brown decided to “cancel the slot” at the conference when she learned Ramey could not attend, and told Ramey, “[D]on‘t even worry about filling the slot with Mr. Creggett.” Fairdale made arrangements to pay for Ramey to go as originally planned, and she reclaimed the slot. Creggett was unsure about the number of teachers who went to the Salt Lake City conference or what the conference‘s subject was.
Creggett has failed to establish that either failure to provide training was an adverse employment action. Creggett has proffered no evidence to suggest that either training was required or that failure to attend the training would result, or has resulted, in any demotion, loss of pay, loss of responsibility, or other materially adverse effect. In fact, he testified to the contrary. Without evidence of this sort, mere denial of a supplemental training, even if other employees were allowed to attend the training, is not an adverse employment action. Lindsey v. Whirlpool Corp., 295 Fed.Appx. 758, 768 (6th Cir.2008) (“Defendant‘s failure to provide plaintiff with extra training does not constitute an adverse employment action.“).
Moreover, the defendant gave a legitimate, nondiscriminatory reason for denying Creggett the opportunity to go on these trainings. Brown stated in her supplemental affidavit that Ramey, an African-American woman, was chosen to go on the trip because she was a newer teacher. The trip was specifically targeted at new teachers within their first years of employment. Brown stated that Ramey was not authorized to ask other teachers if they would like to take her slot. Brown stated that she did not cancel Ramey‘s slot when she told Brown she could not afford to attend. She instead made arrangements so that Ramey could attend. Creggett has failed to offer evidence rebutting this reason as pretextual.
Creggett‘s third argument for an adverse employment action is that he was “forced” to resign from the Fairdale School-Based Decision-Making Committee. This argument also fails. Creggett clearly stated in his deposition that he independently decided to resign from the committee, and stated that no one ever asked him to resign or indicated that they wanted him to resign. A voluntary, uncoerced decision to resign a committee position cannot be considered an adverse employment action.
Creggett next argues that he was “snubbed” for a temporary promotion.
Creggett was not materially affected by not being asked to be an assistant principal for three weeks. He admitted that he did not lose pay, benefits, or rank. Moreover, he offered no evidence that he applied for or was qualified for the interim position. This is, at most, the type of “de minimis” employment action that this circuit has specifically stated is not actionable. Bowman, 220 F.3d at 461.
Finally, Creggett argues that he suffered an adverse employment action when department chair Joe Phelps engaged in “frequent and unnecessary classroom observations” of Creggett‘s class. Again, Creggett has failed to show any materially adverse effect from these observations: Phelps was entitled to observe his class, he only observed for brief periods of about ten minutes, the evaluations were not formal, he did not give feedback, and when Creggett asked Phelps to stop observing his class, Phelps stopped. Moreover, Creggett testified that Phelps “has the right” to observe his classroom. A brief, informal classroom observation by one entitled to observe, that results in no adverse consequences or penalties, is hardly an adverse employment action.
For these reasons, Creggett has failed to satisfy his burden of proving discrimination by the defendant.
B
Creggett also argues on appeal that the district court erred when it granted the defendant‘s motion to dismiss his hostile-work-environment and retaliation claims. However, Creggett has also failed to put forth a prima facie case for either claim. We examine each in turn.
A plaintiff may prove a violation of Title VII by proving that his employer‘s unlawful discrimination has created a hostile work environment. Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir.1999). A hostile work environment exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim‘s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citation omitted). To prove a hostile work environment, a plaintiff must show that “(1) [he] is a member of a protected class, (2) [he] was subject to unwelcomed harassment, (3) the harassment was based on the employee‘s protected status, (4) the harassment created a hostile work environment.” Williams, 187 F.3d at 560. The test has both a subjective an objective component. The plaintiff must show not only that he “subjectively perceive[d] the environment to be abusive,” but that a “reasonable person would find the environment objectively hostile.” Id. at 568.
Creggett has failed to show that he was subject to harassment or that any such harassment rose to the level of a hostile work environment. Harassment creates a hostile work environment only when both an objective and subjective test are met—the conduct must be “severe and pervasive enough to create an environment that a reasonable person would find hostile
C
Similarly, Creggett has failed to make out a claim of retaliation. To prove retaliation under Title VII, a plaintiff must show that “a reasonable employee would have found the challenged action materially adverse,” such that a reasonable person would be dissuaded from making a charge of discrimination. McNeill v. U.S. Dep‘t of Labor, 243 F. App‘x 93, 99 (6th Cir.2007). Creggett admits that all the conduct he deems to have been materially adverse occurred before he filed his complaint with the EEOC. The only “materially adverse” action Creggett suggests happened in retaliation for his engaging in the protected activity of filing a complaint was Brown “shunning and avoiding” him. Creggett‘s perception that Brown shunned and avoided him is not a materially adverse action. See, e.g., Sebastian, 2011 WL 3360657, at *3.
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.
BOGGS
CIRCUIT JUDGE