*1 also Corps operation. mining entire approving its discretion
did not abuse requiring provisions mitigation plan streams, other local improvement rationally de- were provisions
since those a net is not that there to ensure
signed mine loca- function in the aquatic
loss of watershed.
tion’s AF- judgment court’s
The district
FIRMED. LASTER, Plaintiff-Appellant,
Mark KALAMAZOO, et al.
CITY OF
Defendants-Appellees.
No. 13-1640. Appeals,
United States Court
Sixth Circuit.
March 2, 2014.
Rehearing April Denied *4 BATCHELDER,
SILER, J., concurred. 733), separate delivered (pg. C.J. concurring opinion.
OPINION CLAY, Judge. Circuit the dis- appeals Mark Laster summary judg- granting order trict court’s Defendants, City in favor ment individuals, named Kalamazoo and several and retal- race discrimination on Plaintiffs Complaint, In his iation claims. alia, violat- that Defendants alleges, inter (“Title 2000e-3(a) seq. § et ed U.S.C. seq. Comp. VII”), § 37.2101 et Laws Mich. (“Elliot-Larsen Act”), Rights Civil alleg- § Specifically, U.S.C. discharged “constructively that he was es “other experienced his will” and *5 on racial dis- job actions” based adverse for his vari- retaliation crimination racial complaints ous discrimination. below, we reasons discussed For the conclusion the district agree with court’s that he has not established that Plaintiff and, conse- constructively discharged, not shown quently, that has pur- action” for employment “adverse Title VII discrimination poses of his race However, that the district we find claim. improper- analyzed improperly court —and retalia- ly Title dismissed—Plaintiffs tion claim. analyzed Plain
The district court of “Race only tiffs the context claims and “First Amendment Discrimination” Cherry, Kala- O. BRIEF: Richard ON Retaliation,” Complaint, but Plaintiffs Kalamazoo, Office, Attorney’s City mazoo experienced alleges that Plaintiff which Laster, Mark Michigan, Appellee. in “retaliation job actions” “adverse Kalamazoo, Michigan, pro se. and in complaints” prior [discrimination] 2000e-3(a), seq.,” et of 42 USC “violation BATCHELDER, Judge; Chief Before: claim. clearly a Title VII retaliation raises CLAY, Judges. Circuit SILER and Plaintiffs analysis of court’s The district claim Amendment retaliation First CLAY, J., opinion delivered 1983) § to 42 U.S.C. BATCHELDER, C.J., (brought pursuant court, in which analyze does not obviate the need to Plain- (“PSO/EO”) cer/Emergency Officer for the tiff’s Title VII retaliation claim because the Department Kalamazoo of Public Safety (“KDPS”) type activity protected by the First for more than twenty-three years. Amendment is than type different Plaintiff claims that throughout his activity protected by Moreover, employment, Title VII. he was treated less favorably the district analysis court’s than similarly-situated Spe- co-workers. Title VII race cifically, discrimination claim does Plaintiff alleges that KDPS sub- provide jected a sufficient basis for heightened dismiss- scrutiny, se- ing his Title lectively VII retaliation claim policies Plaintiff, because enforced against the two claims have different complicit elements. when individual employ- “materially adverse action” element of ees harassed and discriminated a Title VII retaliation claim substantially Plaintiff.1 alleges that such dispa- different from employment the “adverse rate attributable, treatment was at least in action” part, element of a Title VII race discrim- Plaintiffs race or to his complaints ination claim. Burlington See N. & Santa about discrimination. White, Ry.
Fe
v.Co.
548 U.S.
In his briefing
Court,
before this
Plain-
(2006);
S.Ct.
For the reasons forth set we formed Plaintiff that he was changing part, AFFIRM in in part, REVERSE and performance Plaintiffs 2006 evaluation REMAND for proceedings. further from to “satisfactory” improve- “needs ment.” complained Plaintiff to Coak-
BACKGROUND ley’s supervisor, direct Captain Uridge, Plaintiff an African American male but Uridge “complicit was in his re- who worked as a Safety Later, Public sponse.” Offi- Plaintiff went when to alleges generally 1. Plaintiff periors that he "suffered ... [who] [no] took action to correct demeaning racist slurs and epi- other racial disrespect- [the] behavior [and] allowed such (white) constantly thets from his co-workers ful conduct to continue.” despite complaints and from [P]laintiff to su- date, Plain- requested the occupied on re- office to KDPS Administration the has was denied. Plaintiff request that file, told tiffs was he his personnel view that the to show Coakley produced was affidavits and that missing, it was approved it. has been meeting to room access have had same to person last to employees KDPS grievance for filed a formal at other times After Plaintiff as evaluation such events improper host non-work-related contesting down- religious reversed contained downgrade, KDPS “seminars evaluation parties changed Plaintiffs “retirement speech,” grade and themes and “satisfactory.” and non- personnel to back KDPS that included for civilians,” Train- school tours Request to Attend Outside KDPS On December Denied. ing Program children. a written Plaintiff submitted July 1, Meeting on Invited to 4. Not Department the Fire to attend
request was not July 2009. On (“FDIC”) for Conference Instructor’s meeting department about informed Indiana. days Indianapolis, two to ob- by Sergeant VanDerWiere hosted from employee first was the regard- personnel KDPS input tain from training request to attend KDPS to of a new purchase prospective de- was request Plaintiffs program. only person fire truck. Plaintiff Approx- nied, given. and no reason to the not invited who was on the shift later, two Caucasian imately two weeks co-workers, Plaintiffs meeting. One of to permission granted were employees via cell LeRoy, called Plaintiff Richard days, with all FDIC five attend the inform in the meeting while phone in full. paid trip their of the costs progress. meeting Plaintiff of Caucasian that his two learning After shortly thereafter Plaintiff arrived five-day, for a approved were co-workers meeting. During in the participated pro- trip to attend all-expense-paid reprimanded meeting, VanDerWiere re-applied. gram, Plaintiff “being LeRoy both requesting application again second — they opined disruptive when rude” and two FDIC for attend the permission purchase unnecessary it was the condition with days approved —was updating instead of fire new truck own of his pay fifty percent that Plaintiff existing trucks. Plain- hundred dollars. four expenses: Counseling and 5. Memorandum re- were not co-workers tiffs Caucasian July After the Suspension. of their own any portion quired pay *7 a memo- wrote meeting, VanDerWiere Plain- five-day trip. for their expenses administrators, in KDPS randum to proffered that Defendants’ tiff asserts and that both Plaintiff he which stated treatment the difference reasons for (a were employee) LeRoy evidence to Caucasian and offers pretextual, are disruptive the meet- disrespectful reason. negate stated each memorandum, VanDerWi- In ing. the Meeting De- Request Room to Use 3. LeRoy the more that was ere “states 2009, 12, February or about nied. On in the person disruptive egregious request a Plaintiff written submitted 29, 2009, Plaintiff April meeting.” On fire at the meeting large use the room Counseling 22, received Memorandum February two hours on station for gener- two violating accusing Plaintiff birthday for his party to host July in the provisions al order Although the one-year-old daughter. suspended for was meeting. Plaintiff to be was not scheduled meeting room days pay. without LeRoy, two on the campaign sign with the caption “Good hand, other any was never disciplined Boy!” Plaintiff felt that this was a per- way. complained After Plaintiff sonal on him attack because Plaintiff treatment, disparate the two-day sus- proudly had displayed a photograph of pension was revoked. his family with President Barack Obama Regarding Play- E-mail 6. Children’s to approximately 150 personnel KDPS set. On June VanDerWiere during prior the week. Plaintiff report- Plaintiff told that Plaintiff had to remove incident, ed the but felt that it was never a collapsible play set that kept properly investigated. Plaintiff alleges in the station’s storage room for his that KDPS young children to use when they visited investigated matter, never the never him at work. VanDerWiere told Plain- inquired as to who utilized the com- tiff that it was a violation of General puter day, never conducted a fo- G-133 to store personal property Order rensic evaluation of computer the at the station. In response, Plaintiff see who using was the computer dur- if asked he could store play set in the time political the photo was storage Deikman, room Doug where ..., uploaded [and] a Caucasian never in- employee, even stored his large, quired personally-owned personnel freezer KDPS containing see meat from Deikman’s who privately-owned had [harassed Plaintiff and] vio- farm. replied VanDerWiere that Plain- lated policy KDPS that ... prohibits] tiff could not store the play any- set uploading of such ... materials. where the station. 9.Reprimand for Failure to Air Fill Reprimand Violating 7. Firearm Bottle. In May Plaintiff inadver- Policy. April On Sergeant tently failed to fill a Scott air bottle Mark Johncock directed Plaintiff during inspection of a fire truck. wear his firearm at all times while on operator who noticed Plaintiffs duty. Captain Uridge told had John- small reported offense, error coek to communicate this spe- directive reprimanded. Typically, cifically to Plaintiff. following when an equipment operator finds some- days, Johncock and spoke sev- thing needs (e.g., attention top off eral times regarding the policy, firearm bottle), an air customary practice which Plaintiff being believed was selec- “to simply perform duty missed/ne- tively enforced. The contact between glected by prior shift without the Johncock and Plaintiff way its found into necessity formally reporting said of- daily (“DAR”) activity report pre- superior However, fense to officials.” pared by Johncock April the employee who noticed er- Plaintiff was led to believe a copy ror reported the offense because had he DAR placed per- into Plaintiffs been file, “report anything instructed to he although sonnel that was later found doing saw wrong supervi- [Plaintiff] to be false. to a *8 immediately.” sor According to Union 8. Anti-Obama Screen Saver. On Misner, Representative Laura 26, 2010, “ap- March Plaintiff entered the peared being that was Report singled- [Plaintiff] Room to utilize a common com- Thereon, out puter. reprimand for formal he saw for failure to somebody that uploaded had and set a comply policy/procedure as saver a this screen with or for photo dog of a urinating on an any Obama may future incidents which be rou- requests denial of both serted by fellow customarily ignored tinely and Plaintiff is was, part, least because at employees.” ... KDPS 4, 2009, Plain- May On African American. Scrutiny. early In Heightened 10. human complaint with another yet filed tiff Jeffery Malcolm 2010, employee KDPS and dis- alleging harassment resources that he of Misner presence in the stated retaliation on race and based crimination immediately order to given direct a complaints filing the earlier for Plaintiff to by any wrongdoing report Plaintiffs officers. superior his of some Stan- of Professional Inspector KDPS repri- focused on complaint May 2009 other Coakley or dards Vernon 27, 2009 April on Plaintiff received mand In KDPS. within administrator superior policy. firearm violating for in- addition, personally Plaintiff was Hemmingway Defendant 2009, 11, formed with dissatisfied June On Plaintiff to be hard “pushing grievance proce- of internal outcome involving a “minor on issue” disciplined” with the Charge a dure, Plaintiff filed to service failure inadvertent Plaintiffs of racial discrimination complaining EEOC training exer- during a equipment employer, used by Plaintiffs and retaliation May cise on disparate complained Plaintiff KDPS. citing five of workplace, Training in the treatment in HR Session. 11. Threat instances of discrimi- mandatory human the aforementioned May 1) denial of and retaliation: discrimina- nation training session on resources train- to attend outside alleg- request Harris Plaintiffs tion, Samuel Chief Deputy 2) the denial of ing program; atten- the classroom toward edly turned 3) room; meeting Plaintiff, use the request and said: dees, included which suspen- Counseling and better Memorandum department this “No one from meeting; following the VanDerWiere without sion to the EEOC a report make 4) violation of Plaintiffs the accusation coming to me.” first storing personal order G-133 general aforemen- many of the reported 5) station; the failure to and at property harassment, perceived instances tioned meeting. July to the invite Plaintiff discrimination, On and retaliation. racial “sys- of “overt” and complained a harassment Plaintiff filed June racism, that he was explained and temic” City of Kalamazoo with the complaint form treatment, subjected disparate “being Resources, com- Human Department of retaliation, a hostile work environment and downgrade. the evaluation plaining about ... race.” upon based complaint that he in his expressed 5, 2010, issued the EEOC harassed, February “tormented, On believe[d felt conciliation proposed determination its personal were] named incidents The EEOC indicated agreement. destroy ca- attempt [his] professional to believe cause make “there reasonable reer, effect to intended with the are true.” allegations Party’s Charging April fired.” On quit get [him] di- agreement conciliation proposed hu- The complaint with another Plaintiff filed things: KDPS to five do and rected Defendant alleging harassment man resources 1) outside train- to the next send Plaintiff Specifically, on based race. discrimination 3) 2) $20,500; available; pay Plaintiff to attend request he cited denial items personal to store allow Plaintiff as the as well training program the outside 4) station; a Memo of remove the fire to use the request of his written denial file; Plaintiffs personnel from Counseling Plaintiff as- meeting room. unoccupied *9 5) city provide appropriate staff with “crashed” his vehicle into a police car and training with an emphasis on race. Defen- accident, left the scene of the “negatively agree dants did not to the terms of the engaged officers,” with supervisory conciliation, proposed and the matter was tried to make an entry unauthorized into Department referred to the of Justice the area where the President of the United (“DOJ”). States was seated. Defendants contend that “Plaintiff entered building 19, 2010, July On Plaintiff filed a second engaged in a series of acts that may have Charge with the EEOC. Plaintiff alleged constituted violations of either law or de- that he was “retaliated and further partment policy and rules.” subjected to harassment and intimidation department, within [his] to which he com- began KDPS an internal investigation plained management, to no avail.” In possible into wrongdoing by Plaintiff. particular, he described the incident of During the investigation, KDPS inter- 26, March in “subjected 2010 which he was viewed Plaintiff employees and various a display racist of a dog urinating on a who either interacted with or observed campaign President Obama sign found on day. Plaintiff that Each witness submit- city a computer.” The matter was re- varying ted factual encounters of the inci- DOJ, 28, ferred to the dent, and on October investigation but the resulted in no 2010, the DOJ a “right issued to sue within findings conclusive that Plaintiff had been days” letter for Case drinking 471-2010-02663. or was intoxicated. later, Two weeks on November Plaintiff has submitted various affida- “right DOJ issued Plaintiff a to sue within vits, own, including his suggesting that days” letter for Case 471-2009-02289. Defendants’ version of the events is “abso- meantime, In incredible,” June Presi- lutely and that Defendants ob- dent Barack Obama guest speaker false, was the tained accusatory reports because it at the Kalamazoo High Central School is the “culture” of KDPS for officers to ceremony commencement provide which was held style memoranda of a police Michigan’s Western Field House. To report when asked. Plaintiff submits that ensure safety, the President’s posi- KDPS simply possible on-duty Pub- police tioned personnel at all Safety entrances. lic Officers and Command would Plaintiff was not among those officers who have allowed Plaintiff to sit within 80-50 duty Rather, were on day. feet of President Barack Obama if Plaintiff acquired had four tickets to attend the noticeably intoxicated. Plaintiff fur- commencement family. with his ther Safety submits that a Public Officer arrested, detained, would have or investi- Plaintiff attended the commencement gated they Plaintiff if they believed that along with his wife and daughters two on had observed committing felony June 2010. Plaintiff contends that he presence. their Plaintiff was not inves- had ascertained a permissible parking lo- tigated, detained, or arrested on June cation in advance from Western Michi- permitted and was indeed entry into gan Safety Public Officer. According building, where he sat near President Plaintiff, he parked in the park- indicated Obama and took a photograph with him. incident, location without and did not any negative have interactions with August KDPS when KDPS had con- personnel, Service, Secret other investigation cluded its internal into Plain- individuals or law enforcement alleged officers. tiffs wrongdoing, Plaintiff and Un- According Defendants, ion Representative Laura Misner were *10 Plaintiff that he be- that he attests told Plaintiff would that with notice provided know) (but Plaintiff not that on did hearing” lieved “pre-determination have conclusion of at the to Plaintiffs be terminated Pursuant would 2010. September hearing Septem- on pre-de- agreement, pre-determination the bargaining collective (¿a, to opportunity hearing an termination ber before the conduct or defend explain if that Plaintiff also told Plaintiff McCaw as to what a determination makes KDPS terminated, challenge could Plaintiff were take) action, neces- any, if to is disciplinary grievance pro- through the termination gives conduct an officer’s sary whenever bargaining collective outlined in the cedure disciplinary ac- possibility to the rise collecting pension his while agreement tions. informed response, Plaintiff benefits. pre-determination Prior to the scheduled terminated, he that if he were McCaw if he Plaintiff was advised hearing, his for insurance would not receive health terminated, eligible not be he would
were specifically Plaintiff “was dependents. depen- his for health insurance benefits for his wife and [pregnant] that his concerned and pregnant wife including his dents— by covered health be daughters would not retirement children—and his young two Plain- if he were terminated.” insurance Plaintiff was be would deferred. package not to that he could tiff indicated McCaw losing health extremely concerned about children uninsured having his wife and risk family. benefits his insurance therefore, was, considering retiring and he morning September On the health insurance in order secure hearing, pre-determination skeptical about the McCaw was benefits. McCaw, a Michael spoke with about accuracy of the information previously who had employee KDPS benefits, encouraged insurance health deputy chief assistant chief as served information. Plaintiff to confirm that opin- sought McCaw’s KDPS. advice, Plaintiff Pursuant McCaw’s tenure as an ion, part on McCaw’s based Lau- Representative inquired with Union KDPS, what McCaw as to administrator it was true he ra whether Misner during him occur to would believed coverage if he insurance were would lose hearing scheduled pre-determination the infor- confirmed terminated. Misner undisputed It on that date. Department Human mation with the disciplinary what did not know McCaw Specialist. Plaintiff Benefits Resources oversee- action, if any, administrators sent from the presented an e-mail has hearing were pre-determination confirming Specialist to Misner Benefits take, did not McCaw planning employ- terminated Plaintiffs belief that disciplinary action. any input have for health insurance eligible are not ees However, Plaintiff that he had McCaw told undisputed that this It is coverage. now Deputy co-defendant rumors that heard inaccurate, and that information was conducting pre- Harris was Sam Chief insur- lost health Plaintiff would not have had hearing and that Harris determination if he were terminated. (but coverage ance personnel to KDPS statements made However, produced any Plaintiff has McCaw), Craig John- and to Officer not to was in- that this misinformation evidence that Harris particular, suggest son tentional, that the mi- allege and does not Plaintiff from terminating be would given with discrimi- sinformation at the conclusion employment with KDPS retaliatory intent. natory or hearing. McCaw pre-determination (mistaken) After confirming his belief pages released. Robinson at- *11 his that health insurance would be termi- tested that he to redact any intended men- fired, if he spoke nated were to be tion of address; however, Plaintiffs home again McCaw on the morning Sep- with of Robinson inadvertently failed to redact the 2, conversation, tember 2010. this address on two documents. Robinson also McCaw informed Plaintiff that he had spo- claims that he decided not to redact the Uridge. ken Assistant Chief McCaw names of Plaintiffs wife and mother after indicated that his belief that Plaintiff applied Robinson the balancing test set would be terminated at the conclusion of forth in the FOIA and concluded that the pre-determination hearing had not public interest disclosure outweighed changed, but that McCaw believed that the interest in nondisclosure. Plaintiffs retirement arranged, could be 16, 2011, On January avoiding hearing Kalamazoo and termination. Ga- published zette an article describing the Plaintiff did not pre-determi- attend alleged incident involving Plaintiff at the Instead, hearing. nation he submitted a graduation by Obama, attended President 2, letter of resignation September on and included a link to a PDF of the re- Because Plaintiff resigned twenty- after leased documents. Plaintiff claims that he years service, three of he was entitled to by humiliated by the article and only partial pension, and not his fall publication personnel file, of his for which pension, feels employees eligi- become that private after his twenty-five years ble of service. information was released in retaliation for filing Charges with 3, 2010, September Hall, On Rex a staff the EEOC with the intent to intimidate or for writer the Kalamazoo newspa- Gazette dissuade him filing from a federal com- per, City submitted to the a request pursu- plaint. ant the Freedom of Information Act Comp. (“FOIA”), Mich. Laws 15.2312 et seq., 4, 2011, On October Plaintiff timely filed relating to the investigation” “internal a five-count Complaint the United graduation. conduct at the City States District Court for the Western Dis-
Attorney Clyde Robinson that claims he trict Michigan alleging, among other Plaintiff a sent letter him advising of the things, that Defendants violated Plaintiffs request, FOIA but Plaintiff claims that he rights civil by under Title VII engaging in never received a letter. 5, On October discriminatory conduct that led to Plain- 2010, Hall submitted request another for tiffs discharge. constructive Plaintiff also copy “a Department Kalamazoo alleged that Defendants retaliated Public Safety personnel file of Officer him for exercising rights protected by Ti- Mark Laster.” Robinson claims he sent tle VII and the First Amendment. Plaintiff, another letter but Plaintiff claims he did not receive this letter On March Defendants filed a January 6, either. On Robinson re- summary motion for judgment and dis- requested leased the documents to the brief, missal. responsive Plaintiff filed a Kalamazoo Gazette. which contained a counter-statement of material facts as prior thirty-eight Defendants assert well as releasing exhib- (over Gazette, its pages) support documents to 500 posi- Robinson of his reviewed page each tion. possible granted withhold- The district court Defen- redactions, Robinson re- dants’ motion argument. without oral dacted information approximately from 100 timely appeal. filed notice of 726 credibility low, make determi- may we
DISCUSSION when de- weigh the evidence nations nor grant court’s the district review We of fact remains an issue termining whether See Ka de novo. summary judgment Inc., 259 F.3d Denny’s, Logan trial. v. LLC, Mobility, 679 F.3d T AT & lich v. Schebil, (6th Cir.2001); Ahlers v. 566 (6th Cir.2012); City DePiero 469 (6th Cir.1999). F.3d 369 (6th Cir. Macedonia, F.3d 1999). appropriate Summary judgment *12 record, light most viewed
when Claims I. Race Discrimination nonmoving party, reveals favorable it be shall provides Title any as to genuine is no issue that there discharge “to employer an unlawful for enti moving party is fact and material individual, to discriminate or otherwise a of law. as matter judgment tled to a respect to his any individual with against 56(c). of genuine A issue Fed.R.Civ.P. conditions, terms, or privi compensation, is suffi fact exists when “there material of such indi employment, because leges of nonmoving par favoring the evidence cient § 42 U.S.C. 2000e- for that race....” a vidual’s jury to return verdict ty for Inc., 2(a)(1). Lobby, Elliot-Larsen Civil Liberty Similarly, v. Anderson party.” 2505, 242, 249, 91 “discriminat[ing] 106 S.Ct. prohibits Act Rights 477 U.S. (1986). ques “The ultimate 202 to em respect with L.Ed.2d an individual presents a the evidence term, tion is ‘whether condi compensation, or a ployment, require submis disagreement to sufficient tion, employment, because privilege or of one-sided jury or whether sion to a so Comp. ... race.” Laws Mich. a matter of prevail must as party that one 37.2202(l)(a). prima require § The facie ” USA, Inc., 694 F.3d Back v. Nestle law.’ case a discrimination are ments for Cir.2012) Anderson, (6th 571, (quoting 575 and federal law. Michigan law same under 2505). 251-52,106 at S.Ct. 477 U.S. & Blue v. Blue Cross See Sniecinski 124, Mich., Mich. 666 469 N.W.2d summary judg- Shield moving for party theAs (2003). 186,193 ment, the burden Defendants bear issue of genuine of a showing the absence may establish a claim plaintiff A at essential fact as to least one
material
introducing
by
either
direct
discrimination
claim. See Celotex
of Plaintiffs
element
by presenting
Catrett,
106
of discrimination
477 U.S.
evidence
Corp. v.
(1986).
2548,
support
265
Once
evidence that would
91 L.Ed.2d
circumstantial
S.Ct.
v.
produc-
their burden of
Kline
Defendants meet
an inference of discrimination.
Plaintiff,
Auth.,
337,
tion,
nonmoving party,
as
128 F.3d
348
Valley
Tennessee
interroga-
Cir.1997).
here,
must—by deposition,
(6th
Where,
answers to
as
claim
affidavits,
tories,
admissions on file—
evidence,
and
we
circumstantial
is based on
a genuine
specific facts
reveal
show
burden-shifting framework set
employ
trial.
Id.
issue
Douglas. See McDon
forth in McDonnell
Green,
792,
411
v.
U.S.
Douglas Corp.
nell
Plaintiffs evidence as
accept
must
We
1817,
802-04,
727 Under McDonnell Douglas, Plain company act. decision in most cases tiff first carries the burden of establishing is documented in official company records, a prima case. 411 U.S. at may subject and be by facie review higher S.Ct. 1817. To establish a prima supervisors.” level Id. at 118 S.Ct. case of discrimination under both Title VII addition, 2257. In it typically “inflicts di- and the Act, Elliot-Larsen Civil Rights rect economic harm.” Id. 1) Plaintiff must show that he ais member Plaintiff alleges that he an suffered ad- 2) class; protected of a he qualified was employment verse action when he was job for the performed it satisfactorily; “constructively discharged” on 3) September qualifications despite perform Kocsis, (em- 2010. See ance, F.3d he suffered an employment adverse ployee 4) action; may establish an adverse replaced employ- he was by person ment by outside the action protected demonstrating class or treated that he favorably less similarly constructively than a in discharged). situated Plaintiff also dividual protected outside of his suggests class.2 he suffered “other adverse *13 567; See Logan, 259 F.3d at Mitchell v. employment actions,” but fails to specify (6th Hosp., 577, Toledo 964 F.2d 582 Cir. what, precisely, those other em- adverse 1992). parties agree that Plaintiff has ployment actions were. Plaintiffs two-day elements, the satisfied first two but dis suspension does not meet the standard pute whether Plaintiff has met the third an employment “adverse action” since it element. ultimately addition, revoked. In we agree with the district court’s conclusion In the context of a Title dis resignation did not amount claim, crimination an employment adverse to a discharge. constructive action is defined as a “materially adverse in change the terms or conditions” em “A constructive oc discharge
ployment. Kocsis v.
Mgmt.
Multi-Care
curs when the employer, rather than act
Inc.,
(6th Cir.1996).
876,
97 F.3d
885
An
ing directly, ‘deliberately makes an em
employment
adverse
action “constitutes a
ployee’s working conditions so intolerable
significant change
employment status,
in
employee
the
is forced into an invol
hiring,
such
firing, failing
as
promote,
’
untary
resignation.”
Lopez v.
reassignment
S.B.
with significantly different
Thomas, Inc.,
(2d
1184,
responsibilities,
831 F.2d
or a
causing
decision
a
1188
Cir.1987)
significant
in
Pena v.
change
(quoting
benefits.”
Brattleboro Re
Burling
Indus.,
treat,
(2d
Ellerth,
322,
Cir.1983)
742,
ton
702
Inc. v.
524
F.2d
325-26
U.S.
761,
2257,
118 S.Ct.
141
(quoting Young
L.Ed.2d
v.
633
Southwestern Sav. and
(1998).
Ass’n,
(5th
employment
Adverse
Loan
action “re
509 F.2d
144
Cir.
quires
1975))).
an official act
enterprise,
of the
a
To demonstrate a constructive
recognized
2. As
Burlington
we
in White v.
N.
plaintiff may
We also note that a
succeed
Co.,
Ry.
&
Fe
on a Title VII
Santa
364 F.3d
n. 1
discrimination claim
796
without
(6th Cir.2004),
showing the existence of an
employ-
adverse
Burlington
sub nom.
N.
aff'd
by showing
ment
White,
subject-
action
that he “was
Ry.
& Santa Fe
Co. v.
548 U.S.
126
pervasive
ed
[discriminatory]
or
...
severe
(2006),
S.Ct.
165 L.Ed.2d 345
"Al
by supervisor.”
harassment
Morris v. Old-
though this court and most
courts use
other
Court,
County
ham
Fiscal
201 F.3d
792
action,’
the
employment
'adverse
term
some
(6th Cir.2000). However, Plaintiff
does
courts,
Court,
including
Supreme
the
use the
allege
sug-
the facts of this case do not
—and
'tangible employment
term
action' or some
gest
pervasive
such
harassment existed
—that
other variation for the same concept.”
at KDPS.
working
intolerable
deliberately created
evidence
must adduce
discharge,
forcing
with the intention
1)
deliberately
conditions
employer
to show
conditions, as
quit.
Plaintiff to
working
intolerable
created
2)
person, and
by a reasonable
perceived
However,
Circuit
as
Seventh
intention of
so with
employer did
University Chi
v.
in E.E.O.C.
explained
quit. Saroli
employee to
forcing the
can
discharge
constructive
cago Hospitals,
Components,
Modular
Automation
forms:
two
take on
different
(6th Cir.2005); Logan,
Inc., 405
F.3d
a situa-
ordinarily faced with
areWe
F.3d at 568.
alleges
only
employee
tion which
formally adopted
Logan, we
of discrimi-
resigned because
that she
to determin
approach
Fifth Circuit’s
cases,
harassment,
in such
natory
con
prong
first
ing whether
to demonstrate
require
plaintiff
we
met,
has been
inquiry
discharge
structive
even
discriminatory work environment
counseling that:
high
than the
standard
egregious
more
person would
a reasonable
Whether
work environment.
for hostile
resign depends
compelled to
have [felt]
only method of
not the
But that
case, but we consid-
each
on the facts of
discharge.
constructive
demonstrating
relevant, singly
following factors
er
manner so
acts in a
employer
anWhen
(2)
(1) demotion;
re-
in combination:
a reason-
as to have communicated
(3)
job
salary;
reduction
duction
will be terminat-
employee that she
able
(4)
reassignment
responsibilities;
ed,
resigns,
plaintiff employee
and the
(5)
work;
reassign-
degrading
menial or
*14
to
may amount
employer’s conduct
younger supervi-
under a
ment to work
discharge.
constructive
harassment,
(6)
hu-
sor;
or
badgering,
Cir.2002) (inter-
(7th
276 F.3d
331-32
to
employer calculated
by the
miliation
(em-
omitted)
quotations
nal citations and
resignation;
employee’s
encourage
v. Okla-
added); see also Burks
phasis
(7)
or con-
early
retirement
or
offers
(10th
Co.,
978
Publ’g
81 F.3d
homa
on
less favor-
employment
tinued
terms
Cir.1996) (“An
a con-
prove
can
employee
former status.
employee’s
able than the
that
by showing
she
discharge
structive
Bunge
(quoting Brown
Because we conclude Plaintiff can- missal of this claim improper. prima, not establish a case of discrim- ination, Title proceed prohibits we need not discriminating to the re- maining steps against an employee Douglas McDonnell because that employ analysis, agree engaged and we ee has protected conduct by Title *15 2000e-3(a). VII discrimination Title 42 § claim and related VII. See state U.S.C. law claims properly were The opposition dismissed. of clause Title VII makes ... “unlawful for employer an to discrimi II. Title VII Retaliation Claim nate any ... employe[e] ... be In his cause he has Complaint, opposed any practice alleges Plaintiff also made that he was ... unlawful ... “constructively by this discharged subchapter.” 2000e-3(a). § against his will and experienced ‘oppose,’ other ad- term being “The job verse actions” in by statute, retaliation for left undefined the the carries its complaints discrimination ordinary that Plaintiff meaning, ‘to resist or antagonize with employer [...]; raised his and filed with confront; to contend against; to re ” EEOC, sist; and that this was a violation of withstand.’ v. Metro. Crawford mistakenly Because the district court Complaint ana- retaliation claim. his as well as lyzed Plaintiff's retaliation claim under the briefing before district court and this framework, First Amendment and because Court, argue continues that Defen- representing Plaintiff is pro ap- himself se on rights by dants violated his under Title VII peal, party correctly neither articulated the retaliating against complaining him about However, issue before appeal. this Court on workplace. discrimination in the certainly Plaintiff has waived his not Title VII 730 Plain Douglas, McDonnell Under Cnty., & Davidson Nashville
Gov’t of
a
to establish
initial
846, 172 tiff bears the
burden
276,
Tenn.,
129 S.Ct.
555 U.S.
If Plaintiff
case of retaliation.
(2009)
prima
New
(citing Webster’s
L.Ed.2d 650
facie
of a
(2d
the elements
making
out
succeeds
Dictionary
1710
International
case,
produc
“the
of
burden
prima
ed.1958)).
clause protects
opposition
employer to
to the
of evidence shifts
tion
formal discrimination
only
filing
non-discrimina
legitimate,
some
EEOC,
articulate
but
com
also
charges with the
If the defen
for its actions.
tory reason
less formal
plaints
management
production,
burden of
satisfies its
dant
discriminatory employment
protests
to demon
to Plaintiff
shifts back”
Auto.
burden
Henniges
v.
Trujillo
See
practices.
proffered reason
that Defendants’
Inc.,
strate
Am.,
Fed.Appx.
495
N.
Sealing Sys.
employ
(“We
for the
(6th Cir.2012)
not the true reason
re was
have
651, 655
Gonzales,
F.3d
v.
481
Dixon
to human ment decision.
complaints
held that
peatedly
Cir.2007)
(6th
marks
(quotation
333
vi
regarding potential
personnel
resources
omitted).
the bur
“Although
and citations
protected
constitute
of Title VII
olations
par
production shifts between
pri
a
den of
establishing
activity
purposes
per
retaliation.”)
ties,
burden
plaintiff
bears the
Mi
(citing
facie case of
ma
Id.
through
process.”
chael,
595);
Tran
suasion
Hill v.
496 F.3d at
Air
(6th
494, 498
Cir.
Fed.Appx.
416
Airways,
of a retaliation
The elements
72 Fed.
2011);
Uniboring,
v.
Shepard
those of
distinct from
similar but
claim are
Cir.2003). Thus,
(6th
333, 336
Appx.
pri-
claim.
establish
a discrimination
To
filed
Charges that Plaintiff
to the
addition
under Title
case of retaliation
ma facie
EEOC,
consider the
must also
with the
we
“(1)
VII,
that:
Plaintiff must demonstrate
that Plaintiff filed
complaints
harassment
by Title
activity protected
engaged
he
pro
to be
internally
resources
with human
(2)
VII;
protected
such
his exercise of
Title VII.4
activities under
tected
(3)
defendant;
by
known
activity was
thereafter,
an action
took
the defendant
with Title VII discrimination
As
plain
“materially
to the
can be
that was
adverse”
claim,
retaliation claim
a Title VII
(4)
existed
tiff;
a causal connection
by
direct
introducing
established “either
and the ma
activity
protected
by proffering
between
evidence
retaliation
v. Jo
terially adverse action.”
Jones
support
that would
evidence
circumstantial
(6th
hanns,
466
Cir.
Fed.Appx.
of retaliation.”
Imwalle
an inference
Co.,
2007)
Motor
Products, Inc.,
(citing Abbott v. Crown
515 F.3d
Reliance Medical
(6th Cir.2003),
Inc.,
(6th Cir.2008).
Here,
has
348 F.3d
67-68,126
N.,
S.Ct.
Therefore,
analyze
548 U.S. at
Burlington
latter.
we
done the
*16
to re
(modifying the third element
bur
2405
claim under the
Plaintiffs retaliation
rather
“materially
action”
quire a
adverse
den-shifting
McDonnell
framework
action”)).5
employment
than
“adverse
an
731
Title
retaliation claims “must be
“less onerous in the retaliation context
proved according
principles
to traditional
than in the anti-discrimination context.”
causation,”
Michael,
of but-for
which “requires
496 F.3d at
(citing
595-96
Bur-
proof
N.,
unlawful retaliation would lington
67-71,
Plaintiffs burden of establishing a be immaterial some situations is materi- materially (citation employment omitted). adverse action is al in Id. others.” “This *17 (6th Cir.2007) Court, Corp., (6th Cir.2000)).
Servs. 496 F.3d 595 201 F.3d 792 (quoting County v. Morris Oldham Fiscal 732 (2) discrimination; super- of charge a ing actions permits definition
more liberal have management members of or anti- visors of an purposes for materially adverse knowledge of the or constructive actual in as such qualify to claim discrimination (3) behavior; and retaliatory Michael, coworker’s 496 context.” the retaliation management of or members supervisors employee (holding placing F.3d at 596 tolerated, encouraged condoned, or have leave and 90- administrative paid on brief retaliation, responded have or acts of “relatively low the meet plan day performance inadequate- so complaints plaintiffs the pur for materially action adverse of bar” indifference response the manifests ly that claim); see also retaliation pose Halfa circum- under the Inc., unreasonableness U.S.A., 221 Fed. or Depot, cre v. Home at 347. Cir.2007) Id. (6th (remanding stances. 424, 432 Appx. Burlington reconsideration, light of for light in the most Viewing the evidence a
Northern, plaintiff assigning the whether Plaintiff, the as we must favorable consti score performance-evaluation poor has stage, Plaintiff judgment summary action for employment an adverse tuted Title retali- prima a established a retaliation setting forth purpose the scrutiny, Facing heightened claim. ation claim). for break- reprimands receiving frequent being policies, selectively enforced case, Plaintiff In the instant similarly harshly than more disciplined a filing that after evidence presented has a and forced attend peers, situated human resources complaint with un- hearing based on pre-determination racially a dis he felt was regarding what might wrongdoing allegations of founded action, Plaintiff denied criminatory was worker reasonable have dissuaded a well sin privileges, and opportunities training charge of making supporting or from depart two violating at least for gled out issue genuine is a There discrimination. selectively en that were policies ment or not fact whether regarding disciplined more him, and against forced action, materially subject to adverse viola for identical peers than his harshly activity protected Plaintiffs and whether addition, the viewed evidence tions. In (i.e., complaints informal formal sup to Plaintiff most favorable light EEOC) human resources ini that KDPS allegation Plaintiffs ports action. cause such investiga frivolous and malicious tiated a sum, in dis- district court erred following the June tion of Plaintiff Title VII pled missing properly that he alleges Plaintiff further incident. employee al- an claim. When retaliation harassing, discriminato complained about has both employer an discrimi- leges that by his co retaliatory conduct ry, and in viola- him against retaliated nated and take workers, did not KDPS VII, must district court ap tion Title “[i]n action. note that We corrective Title separately claims under analyze circumstances, these permits Title VII propriate standards) (and for VII, as elements coworker employer an for claims Moreover, not- are distinct. claim Anheuser- each retaliation.” Hawkins concern that both (6th withstanding the fact Inc., Cir. Busch, 517 F.3d activity protected for Circuit, retaliation and/or 2008). employer an In the Sixth Ti- analyzing a framework speech, if actions for the coworker’s liable will be from is distinct claim tle (1) conduct is VII retaliation retaliatory coworker’s First analyzing a rea framework as to dissuade sufficiently severe so claim. retaliation Amendment making support- from worker sonable *18 III. First Amendment Retaliation absolutely there is no in evidence the rec-
Claim ord to indicate that Plaintiff actually com- plained to the USDA about the unregulat- alleges Insofar as Plaintiff that he is also sales, ed meat that Defendants were aware entitled to protection First Amendment that complained USDA, Plaintiff to the or from retaliation for the that Charges he that complaint was the cause of EEOC, filed with the agree we with the any adverse action. There simply is no district court that Plaintiffs EEOC genuine issue of material fact as to Charges were not of entitled to First Amend- the elements However, alleged ment protection. Plaintiffs First as this Court Amendment briefs, reads the record and retaliation claim. According- basis ly, for the district Plaintiffs First Amendment court did not retaliation err dismiss- claim is not the Charges, EEOC but rath- Plaintiffs First Amendment retaliation complaint er the alleges claim. he
filed with regarding the USDA his co- Doug worker Deikman’s sale unregulat- of CONCLUSION ed meat. Because the district court did Therefore, we AFFIRM the district issue, briefly examine this we will ana- court’s dismissal of Plaintiffs state and lyze appeal. it on federal race discrimination claims and prima To establish a case First claim, Amendment retaliation RE- retaliation, of First Amendment a public VERSE the district court’s dismissal (1) employee must engaged show that he Plaintiffs Title VII retaliation claim, and in constitutionally protected speech or con REMAND the proceed- case for further (2) duct; employer took an adverse ings consistent with this judgment. against him action that would deter an ordinary person engaging from in that con BATCHELDER, ALICE M. Chief duct; (3) protected speech was a Judge, concurring. motivating substantial or factor the ad II Count of his first amended com- verse action. Scarbrough Morgan Cnty. plaint, the plaintiff pled a Title VII Educ., (6th retalia- Bd. 470 F.3d Cir. tion claim distinct from his Title 2006); Farhat v. Jopke, 370 F.3d (6th VII claim Cir.2004). discrimination and his First To determine whether retaliation Amendment claim. The met, defen- first element the Court undertakes (1) summary dants judgment moved on two-part inquiry, asking whether the the discrimination claim and the speech involved is a First public matter of con (2) claim, cern, Amendment which the district court and whether employee’s inter granted, challenge did not addressing est in but the Title public these matters outweighs VII retaliation claim. Consequently, concern interest his em district ployer “in court did not promoting efficiency address the Title public performs opinion services it retaliation claim in its through judg- its em ployees.” ment. Scarbrough, 470 F.3d I alleges agree opinion the lead complaint with that we concerning the USDA should Deikman’s remand this case to the Doug district
sale unregulated court protected proceedings meat further on the Title speech. element, As to this Plaintiff is VII claim. I agree retaliation But do not However, correct. prevail analyzed cannot that the court district this claim on his First Amendment claim improperly because as the district court —inasmuch *19 leery of I am all—and it at analyze did not America, STATES UNITED circumstances facts characterizing the Plaintiff-Appellee, district limit that would way in a summary of a examination plenary court’s on remand. this claim on motion
judgment Hunter, ADAMS, Christopher Tommy Bostic, Gill, Dana thoroughly Ladonta rather has opinion The lead Defendants-Appellants. burden- Douglas the McDonnell laid out all of accepting shifting framework 12-2759, 12-2125, 12-2379, 12-2975. and — Nos. true —essen- as accusations plaintiffs Appeals, Court United States has plaintiff tially determined Seventh Circuit. Precisely case. prima his out made facie Sept. Argued all must, stage, accept at this we because true, of fact as allegations 26, 2014. plaintiffs Decided Feb. has plaintiff only that may hold we genuine remain there
demonstrated claim that he fact material to
issues But action. material adverse
suffered has established hold that he may not
we also case, while particularly
prima facie re- of fact questions material
holding that issue. dispute as
main has framework Douglas
The McDonnell has Assuming plaintiff stages.
three and satisfied case prima aout
made that the defen- might be stage, first (and stage satisfy the second could
dants
third) judgment. summary obtain and still likelihood of opine on the not mean to
I do entirely to the
this, I would leave that as court on remand.
district entirety of summary, agree I with opinion.
the district court’s well-written court overlooked
The fact that district claim, which the
the Title retaliation attention, does bring its
parties failed to I because also my But change view. pled this properly
agree plaintiff that the to remand for
claim, judgment join I it now.
the district court address