Sara Davis v. Metro Parks & Recreation Dep't ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0234n.06
Case No. 20-5526
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SARA DAVIS, FILED
May 10, 2021
Plaintiff-Appellant,
DEBORAH S. HUNT, Clerk
v.
ON APPEAL FROM THE
METRO PARKS AND RECREATION UNITED STATES DISTRICT
DEPARTMENT and THE METROPOLITIAN COURT FOR THE MIDDLE
GOVERNMENT OF NASHVILLE AND DISTRICT OF TENNESSEE
DAVIDSON COUNTY, TENNESSEE,
Defendants-Appellees.
BEFORE: CLAY, GILMAN, and THAPAR, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Sara Davis appeals the district court’s decision to grant
summary judgment to her former employer, the Metropolitan Parks and Recreation Department,
in the Nashville, Tennessee area. Plaintiff claims that her former employer retaliated against her
in violation of 42 U.S.C. § 2000e-3(a) and Tenn. Code Ann. § 4-21-311(d). For the reasons set
forth below, we affirm in part and reverse in part.
I. BACKGROUND
A. Factual History
Plaintiff Sara Davis was an employee at the Metropolitan Parks and Recreation Department
in the Nashville, Tennessee area for over 38 years, from October 1978 to July 2017. During her
tenure at the department, she worked in two divisions: the Community Recreation Division, where
she spent 15 years, and the Revenue Producing Division, where she spent the rest of her time until
her retirement. Plaintiff had no disputes at her workplace until 2011, when the department hired
Case No. 20-5526, Davis v. Metro Parks & Recreation Dep’t, et al.
Tommy Lynch to be the Director of the Parks department. After Director Lynch’s appointment,
Plaintiff claims that Director Lynch created a “good ole’ boys atmosphere,” [Appellant’s Br. 12],
which he formalized in 2013 by merging the application process for two Assistant Director
positions in Special Services and Community Programs. For the Special Services Director position
in particular, Director Lynch held the position open for two years before the application process
began in 2013. Plaintiff then applied for the position of Assistant Director for Special Services;
her position as Superintendent of Golf was one level below that position. After panel interviews
for both positions, the hiring committee ranked Plaintiff as number “1” in the process.
After completing the application process, Plaintiff ultimately received the Community
Programs position, while long-time male employee John Holmes received the Special Services
position. Davis believed that her experience in the Revenue division made her the most qualified
candidate for the Special Services position. Plaintiff, noticeably upset, spoke to Director Lynch
about what she claims was an unusual hiring process to fill both positions at the same time. Director
Lynch informed her that her new opportunity would give her the experience to eventually become
the director of the department. In a later deposition, Director Lynch also said that he did not believe
that John Holmes could successfully perform the job in Community Programs.
Following the job process, believing that she had been a victim of sex discrimination,
Plaintiff filed a complaint with the Human Resources department of the Metropolitan Government
in June of 2013. The Human Resources department reviewed Plaintiff’s complaint and determined
that the application process had not violated any of the government’s civil service rules or policies.
But Plaintiff alleges that the day after her complaint, she began to experience retaliation. First,
Director Lynch’s assistant refused Plaintiff access to her own personnel file, to which Plaintiff
previously had easy access. Immediately thereafter, Plaintiff alleges that Director Lynch
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threatened her job, informing her that she might not last in the department for the remaining year
and four months until her eligible retirement date. Soon after, an “open door” policy to speak with
Mr. Lynch, which the Director granted to everyone in the department, no longer applied to
Plaintiff. In bi-weekly meetings, Director Lynch made sure someone else always sat in on his
interactions with Plaintiff. After Mr. Lynch heard that Plaintiff had made a complaint, a co-worker
stated that Director Lynch’s feelings were hurt, and that he questioned Plaintiff’s “loyalty” for
accusing him of sex discrimination. (ECF No. 47-7 at PageID # 543-549.)
Four months later, Plaintiff received a performance evaluation. In sum, Plaintiff received
scores that were the lowest of her career to date and the lowest possible on the evaluation form.
Plaintiff, believing the evaluation to be illegitimate, returned it back to Mr. Lynch, who
subsequently amended the evaluation with higher scores.
In June 2014, almost a year after Plaintiff’s initial sex discrimination complaint, Director
Lynch issued a written reprimand against her for missing a work meeting. In an email titled
“Employee Warning,” Mr. Lynch wrote the following:
You missed the leadership team meeting yesterday. I want to document to you that
this is not acceptable. When you failed to attend the Park Board meeting this spring
you were the first division head in my memory to have done so and I failed to
counsel you at that time. I cannot allow this to become a habit. Put meetings in your
schedule and discipline yourself to be in attendance on time from this point forward.
(ECF No. 40-7 at PageID # 227.)
In January 2015, a year and a half after Plaintiff’s initial sex discrimination complaint,
Director Lynch issued another written reprimand against Plaintiff. This time, Mr. Lynch chastised
Plaintiff for missing a work deadline. In his email to Plaintiff titled “failure to meet deadlines and
inefficient performance of duties,” Mr. Lynch stated as follows:
It is disappointing when another Department is working with our Department to
adjust a job description for a position we request and not only do we fail to meet
the deadline to provide information, we fail to respond to the proper job
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classification discussed in the meeting with Human Resources. In the meeting with
Jason Lusk it was discussed to utilize most of the job description from “Recreation
Center Supervisor” and make minor adjustments to it. The deadline was set and on
Monday of this week after failing to meet the agreed upon deadline, you submitted
something referencing the “Recreation Leader” job description. This has caused
confusion from both our Department’s standpoint as well as theirs. I received your
e-mail providing an excuse for Sherry Hipps not meeting the deadline, but had the
assignment been handled properly by you, the excuse provided would not have
entered into the situation.
Consider this as a written reprimand on both issues.
Furthermore, I understand there is a deadline of Monday to follow up on this
project. I do not wish to call you in on Monday, a day you requested off, so make
every effort to have the deadline met and submitted in time. I have directed both
Pam Crenshaw and Jason Lusk to proceed on adjustments to the Recreation Center
Supervisor job description as discussed in the meeting last week. (ECF No. 40-8 at
PageID # 228.)
Following this reprimand, Plaintiff went to speak with Mr. Lynch about the email, and she
claims that he spoke to her like a child and dismissed her with a wave of his hand. Director Lynch
admitted to, at times, “being irate” and raising his voice at Plaintiff and other employees. (ECF
No. 50 at PageID # 606.) Plaintiff claims that Mr. Lynch did not reprimand other Assistant
Directors for similar conduct, but Director Lynch claims that he verbally reprimanded other
employees for being unprepared at meetings. In his deposition, Mr. Lynch testified that he had
also issued written reprimands to other employees for unrelated issues. For instance, Mr. Lynch
reprimanded a separate employee, Jim Hester, for improperly cutting trees without his permission.
In another instance, Director Lynch reprimanded another employee for not installing air-
conditioning in a recreation center in a predominately black neighborhood.
In July 2015, two years after Plaintiff’s initial sex discrimination complaint, Director
Lynch wrote another work evaluation, where he gave Plaintiff’s performance a 2.88 rating. On the
performance scale, two was considered acceptable and three was considered commendable. In
Mr. Lynch’s rationale for the score, he wrote:
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Sally has done a credible job in Recreation but her relationship with peers in the
department and her supervisor continues to deteriorate. She has been reprimanded
within the past year: and yet seems to think she is entitled to not respond to her
supervisor in certain situations. (ECF No. 63 at PageID # 661.)
Plaintiff disputes that her relationships with peers had deteriorated. And despite a feeling
that Mr. Lynch was retaliating against her, in January 2016, Plaintiff received a pay raise alongside
all other Assistant Directors.
In April 2016, almost three years after Plaintiff’s initial sex discrimination complaint,
Director Lynch informed Plaintiff that she would now be reporting to Monique Odom, who held
an equivalent rank as Plaintiff in the department. Around the same time, Plaintiff also alleges
Director Lynch ceased speaking with her except at group meetings. In an email to Plaintiff, Mr.
Lynch stated as follows:
The emotional cloud that interferes with a truly productive supervisor/subordinate
relationship compels me to make the decision for you to be totally supervised by
Monique Odom, effective immediately. I know by removing me from personally
supervising you will help details get handled appropriately. As of today, I am
concerned that decisions were made pertaining to the summer enrichment program
and not relayed to me in a timely fashion. Decisions that directly contradict
statements that I had made to the Mayor in our budget hearing (based on
information I had received from you) that now have changed. Additionally, I had
never received a report from you pertaining to the meeting held at TSU. I expect a
detailed written report by you no later than noon Monday, May 2. I feel had you
been dealing directly with Monique, that information may have been more readily
distributed. Copy me on all correspondence between the two of you that are related
to community recreation employees, programs, and facilities. This in no way
removes you from meeting my expectations as a division head. It simply resolves
the issue of friction created by misperceptions and unresolved past circumstances.
The issues within the Recreation Division which you relayed in our meeting,
Tuesday, pertaining to fees being collected and long term Recreation employees
being reluctant to enforce the application of said fees, further solidify my decision
to place you as the leader of that division. You have the background as well as the
education and the tools needed to address all of these work issues. By reporting to
Monique, you will be the first division head to do so. Everyone will be following
down this path, shortly. (ECF No. 47-1 at PageID # 413.)
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In September 2016, more than three years after Plaintiff made her initial discrimination
complaint, Director Lynch reprimanded Plaintiff once again. In an email titled “Old Hickory –
failure to follow instructions – inefficient performance of duties,” Mr. Lynch wrote:
Below is an e-mail I sent last week with detailed instructions. I had received
assurances from Monique [Odom] on Tuesday that the two of you discussed the
situation and Monique had your attention and your loyalty. That is not the case. As
of this morning in a conversation with Jackie I found out you had ignored both my
e-mail and Monique’s reminder. This is totally unacceptable for a division head to
ignore the Director of the Department’s instructions. The next incident of any
failure on your part to follow my instructions or any failure on your part to fulfill
my written instructions will be considered a willful act of insubordination and will
be dealt with accordingly. (ECF No. 47-1 at PageID # 407.)
In January 2017, three and a half years after Plaintiff’s initial complaint, Director Lynch
moved Plaintiff’s longtime assistant Robert Benson to another division. Neither Mr. Benson, nor
Ms. Davis, was provided with any explanation. Monique Odom, who was now Plaintiff’s
supervisor, said she supported the move and had planned to move Mr. Benson once Mr. Lynch
retired and she became director of the department. A few weeks later, on January 25, 2017, Plaintiff
filed a complaint with the Equal Employment Opportunity Commission (EEOC), arguing that she
had been subjected to harassment and intimidation after filing a sex discrimination complaint with
Human Resources. Six months after her EEOC filing, on July 2, 2017, Plaintiff voluntarily retired.
B. Procedural History
On April 28, 2017, Plaintiff filed a complaint in the district court, alleging that Defendant
Metro Parks retaliated against her in violation of Title VII of the Civil Rights Act and the
Tennessee Human Rights Act. Plaintiff requested a permanent injunction against Metro Parks,
prohibiting it from future discrimination or retaliation, ordering it to conduct anti-discrimination
trainings, and requiring it to provide $300,000 in back pay, lost benefits, and compensatory
damages. In response, Metro Parks claimed that no tangible employment retaliation took place
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against Plaintiff, that the department took prompt action to address any alleged misconduct upon
notice, and that there was no policy, custom, or practice of discrimination by Metro Parks. On May
1, 2019, Metro Parks subsequently filed a motion for summary judgment, arguing that all of
Plaintiff’s retaliation claims were time barred; that neither any evaluation or reprimand against
Plaintiff impacted her career; that Plaintiff could not show causation because there was no temporal
proximity; that Director Lynch’s behavior consisted of ordinary trials of the work place; and that
Plaintiff could not establish a causal link between Director Lynch’s behavior and her original sex
discrimination complaint. Plaintiff then filed a response which, in summary, argued that Director
Lynch’s behavior was part of ongoing retaliatory harassment, and that there was sufficient
evidence to prove a causal link between Director Lynch’s behavior and Plaintiff’s original
complaint in 2013. After further litigation, on April 20, 2020, the district court granted Metro
Park’s motion for summary judgment, ruling that the majority of Plaintiff’s claims were time-
barred; that her remaining claims failed as a matter of law; and that her claims, under a hostile
workplace theory, did not constitute a violation of law. Plaintiff now appeals.
II. DISCUSSION
A. Plaintiff’s Retaliation Claims under Title VII and the Tennessee Human Rights Act
1. Standard of Review
We review a district court’s determination that a complaint was filed outside of the statute
of limitations de novo. Bonner v. Perry, 564 F.3d 424, 430 (6th Cir. 2009) (citing Wolfe v. Perry,
412 F.3d 707, 713 (6th Cir. 2005)).
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2. Relevant Legal Principles
Under Title VII of the Civil Rights Act of 1964, a plaintiff must file a discrimination
complaint within 300 days of an alleged unlawful employment practice covered by the statute.1
42 U.S.C. § 2000e–5(e)(1). The statute’s filing provision “specifies with precision” the
prerequisites that a plaintiff must satisfy before filing suit. Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 109 (2002). A claim will be “time barred if it is not filed within these limits.” Id. An
alleged unlawful employment practice involves a “discrete retaliatory act or discriminatory act.”
Id. at 110. Each discriminatory act constitutes a “single occurrence even when it has a connection
to other acts.” Id. at 111. This can mean that “discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.” Id. at 113. Each and
every discriminatory act “starts a new clock for filing charges alleging that act.” Id. For example,
in Morgan, the court held that “[w]hile Morgan alleged that he suffered from numerous
discriminatory and retaliatory acts from the date that he was hired through . . . the date he was
fired, only incidents that took place within the timely filing period are actionable.” Id. at 114.
Similarly, in Delaware State College v. Ricks, the court ruled that a plaintiff “could not use a
termination that fell within the limitations period to pull in [a] time barred discriminatory act.”
Morgan, 536 U.S. at 113 (citing Delaware State College v. Ricks, 449 U.S. 250, 253 (1980)).
Under the Tennessee Human Rights Act, Plaintiffs must file retaliation claims within one
year of the alleged unlawful employment practice. Tenn. Code Ann. § 4-21-311(d). Although the
“language of Title VII and the THRA differ slightly, Tennessee courts have concluded that the
1
According to 42 U.S.C. § 2000e–5(e)(1), Plaintiffs typically receive 180 days to file a
claim. If they have previously initiated proceedings with a state or local agency, they will be
granted 300 days to file suit in federal court. In this case, Plaintiff initiated proceedings with the
Human Resources department of the Metropolitan Government in 2013, and then filed with the
EEOC in 2017. Accordingly, Plaintiff is granted the extended statute of limitations of 300 days.
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legislature intended the THRA to be coextensive with federal law and have indicated that they will
look to federal case law interpreting Title VII for guidance in enforcing the THRA.” Thompson v.
City of Memphis, 86 F. App'x 96, 103 (6th Cir. 2004). Therefore, the court may “subsume the
analysis of [Plaintiff’s] claims under the THRA within its analysis under Title VII.” Id.On rare occasions, the statute of limitations “may be subject to equitable tolling.” Austion
v. City of Clarksville, 244 F. App'x 639, 647 (6th Cir. 2007). But the statute of limitations is not to
be “disregarded by courts out of a vague sympathy for particular litigants.” Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984).
3. Application to the Matter at Hand
The district court correctly decided that the majority of Plaintiff’s Title VII claims were
time barred. Title VII required Plaintiff to file her retaliation claim within 300 days “after the
alleged employment practice occurred.” 42 U.S.C. § 2000e–5(e)(1). Plaintiff filed a claim with the
EEOC on January 25, 2017, which meant any occurrences prior to March 31, 2016 were untimely.
Additionally, under the THRA, Plaintiff needed to file her claim within one year of the alleged
retaliation, which meant acts of retaliation prior to January 25, 2016 were time barred under this
statute. Tenn. Code Ann. § 4-21-311(d).
Before this court, Plaintiff alleges several discriminatory acts occurred: 1) Director Lynch
removed her from his open-door policy on June 28, 2013; 2) he required others to sit-in on their
weekly meetings soon thereafter; 3) he threatened her job on June 28, 2013; 4) he gave Plaintiff
negative work evaluations on October 31, 2013 and July 8, 2015; 5) he issued three written
reprimands on June 17, 2014, January 30, 2015, and September 16, 2016; 6) he talked down to her
“like a child” on January 30, 2015; 7) he placed Plaintiff under the supervision of a peer in the
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department on April 28, 2016; and 8) he transferred Plaintiff’s assistant to another division on
January 3, 2017.
Because most of these events occurred prior to March 31, 2016 for Title VII relief, and
January 25, 2016 for relief under the THRA, only three incidents are timely here: 1) a written
reprimand issued on September 16, 2016; 2) Director Lynch placing Plaintiff under the direct
supervision of her peer Monique Odom on April 28, 2016; and 3) Director Lynch transferring
Plaintiff’s assistant to a different division on January 3, 2017.
Plaintiff argues that none of her claims are time-barred because, under Green v. Brennan,
136 S. Ct. 1769 (2016), retaliatory harassment claims are not barred by the 300-day mark.
[Appellant’s Br. 24.] In Green, the court held “a limitations period commences when the plaintiff
has a complete and present cause of action” for a constructive-discharge claim, i.e., when the
plaintiff resigns. Id. at 1776. But Plaintiff does not argue she was constructively discharged from
her job; rather, she argues that her Director retaliated against her for her sex discrimination
complaint and then created a hostile work environment. Before this court, Plaintiff has brought
claims of retaliation and a hostile work environment. For her retaliation claims, her employer’s
actions are considered “discrete retaliatory or discriminatory act[s].” Morgan, 536 U.S. at 110.
And each act constitutes a “single occurrence even when it has a connection to other acts.” Id. at
111. Those discrete acts must be judged individually. Accordingly, the district court correctly
decided that Plaintiff’s claims prior to March 2016 were time-barred “even [though] they are
related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113.
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B. Plaintiff’s Remaining Retaliation Claims
1. Standard of Review
“[T]his court reviews a district court’s grant of summary judgment de novo.” Rd. Sprinkler
Fitters Local Union No. 669 v. Dorn Sprinkler Co., 669 F.3d 790, 793 (6th Cir. 2012). Summary
judgment may be granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is a
dispute as to a material fact when “the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Smith v. Perkins Bd. Of Educ., 708 F.3d 821, 825 (6th Cir. 2013). The
court must evaluate the evidence in a motion for summary judgment “in the light most favorable
to the party opposing the motion.” Nickels v. Grand Trunk W. R.R., 560 F.3d 426, 429 (6th Cir.
2009).
2. Relevant Legal Principles
“The antiretaliation provision protects an individual not from all retaliation, but from
retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 67 (2006). Title VII does not create “a general civility code for the American workplace” and
“it is important to separate significant from trivial harms.” Id. at 68. A plaintiff proves “unlawful
retaliation by presenting direct evidence of such retaliation or by establishing a prima facie case
under the McDonnell Douglas framework.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th
Cir. 2003). Direct evidence is “evidence, which if believed, requires the conclusion that unlawful
retaliation was a motivating factor in the employer’s action.” Id. (emphasis in original). Direct
evidence “proves the existence of a fact without any inferences or presumptions.” Norbuta v.
Loctite Corp., 181 F.3d 102 (6th Cir. 1999) (table decision).
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Without direct evidence, Plaintiff must prove her claim through the McDonnell Douglas
framework, where a prima facie case is shown after four factors are met: 1) Plaintiff was engaged
in a protected activity; 2) the exercise of protected rights was known to the employer; 3) the
employer took an adverse employment action against Plaintiff; and 4) there was a causal
connection between the adverse employment action and the protected activity. See Taylor v.
Geithner, 703 F.3d 328, 336 (6th Cir. 2013). An adverse employment action occurs when 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.” Garner v. Cuyahoga Cnty. Juvenile Ct., 554 F.3d 624, 639 (6th Cir.
2009). How a reasonable worker reacts is an “objective standard.” Burlington Northern, 548 U.S.
at 68-69. And an employee’s decision to report discriminatory behavior does not “immunize that
employee from petty slights or minor annoyances that often take place at work and that all
employees experience.” Id. at 68.
A causal connection between an employer’s actions and a protected activity is established
when the protected activity was the “but-for” cause of the alleged adverse action by the employer.
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). But-for causation can be
established by proving that the employer treated the plaintiff differently from similarly situated
employees or that the adverse action was taken shortly after the plaintiff's exercise of protected
rights. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Temporal proximity alone
will not support an inference of retaliatory discrimination when there is no other compelling
evidence. Parnell v. West, 114 F.3d 1188 (6th Cir. 1997) (citing Cooper v. City of North Olmsted,
795 F.2d 1265, 1272 (6th Cir. 1986)) (table decision). But Plaintiff may still establish causality if
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she can “couple temporal proximity with other evidence of retaliatory conduct.” Mickey v. Zeidler
Tool and Die Co., 516 F.3d 516, 525 (6th Cir. 2008).
3. Plaintiff’s Remaining Retaliation Claims Fail as a Matter of Law
As stated earlier, Plaintiff has brought three timely claims of retaliation: Director Lynch
1) placing Plaintiff under the direct supervision of Monique Odom on April 28, 2016; 2) issuing a
written reprimand to Plaintiff on September 16, 2016; and 3) transferring Plaintiff’s assistant to a
different division on January 3, 2017.
None of Plaintiffs’ timely retaliation claims present direct evidence of retaliation because
none of Director Lynch’s actions “require the conclusion that unlawful retaliation was a
motivating factor in [his] action[s].” Abbott, 348 F.3d at 542. Rather, because they require us to
make “inferences or presumptions” to conclude that Director Lynch intended to retaliate against
Plaintiff for her sex discrimination complaint three years earlier, we must turn to the McDonnell
Douglas framework. Norbuta, 181 F.3d at *1.
Defendant does not dispute that the first two factors of the McDonnell Douglas framework
are satisfied. Plaintiff filed a sex discrimination complaint with Human Resources, and the
department informed Director Lynch of that action. See Taylor, 703 F.3d at 336 (citing the
McDonnell Douglas framework, which included establishing that 1) Plaintiff was engaged in a
protected activity and 2) the exercise of protected rights was known to the employer). Instead, the
question before us is whether Defendant took an adverse employment action against Plaintiff and
whether there was a causal connection between the employment action and her sex discrimination
complaint. See id.
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i. Director Lynch placed Plaintiff under direct supervision of Ms. Odom
On April 28, 2016, Director Lynch placed Plaintiff under the direct supervision of her peer
Monique Odom at the department. This was the first time that this had been done at the department,
even though Mr. Lynch informed Plaintiff that it would be a more common occurrence moving
forward. In his same email explaining why he placed her under the supervision of Ms. Odom, Mr.
Lynch stated that there was an “emotional cloud that interferes with a truly productive
supervisor/subordinate” between them. (ECF No. 47-1 at PageID # 413.) In the district court,
Defendant admitted that the action could be “construed as [a] materially adverse employment
action.” (ECF No. 63 at PageID # 671.) Before this court, Defendant has not conceded as such,
but Plaintiff argues that the action could be construed as a demotion. After the change, Ms. Davis
became Ms. Odom’s subordinate even though they held functionally similar positions within the
department. A demotion could “dissuad[e] a reasonable worker from making or supporting a
charge of discrimination” and, as a result, could evidence a genuine issue of material fact that
would preclude summary judgment. Garner, 554 F.3d at 639.
But equally important to the McDonnell Douglas framework is causality, where Plaintiff
is required to link the adverse action to her sex discrimination complaint. In his email to Plaintiff,
Director Lynch wrote that, “[b]y reporting to Monique, you will be the first division head to do
so.” (ECF No. 47-1 at PageID # 413.) To establish causation, Plaintiff argues that Director Lynch
treated her “differently than similarly situated employees.” Nguyen, 229 F.3d at 563. However,
although Plaintiff was the first, Director Lynch made the change for other division heads, which
included a request for approval from the Civil Service Commission. In that request, Director Lynch
petitioned for Ms. Odom “to have the leadership, supervisory and oversight of the other division
heads, in order to get business done properly.” (ECF No. 40-11 at PageID # 248.) Eventually, Ms.
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Odom supervised all other assistant directors within the department, thus suggesting that Plaintiff
was not “treated . . . differently from similarly situated employees.” Nguyen, 229 F.3d at 563.
Second, two years and ten months passed between Plaintiff’s original sex discrimination
complaint and the adverse employment action. Prior to this decision, we have ruled that, in
retaliation cases, the “proximity of time have all been short periods, usually less than six months.”
Parnell, 114 F.3d at *3. In other instances, we have ruled that “where some time elapses between
when the employer learns of a protected activity and the subsequent adverse employment action,
the employee must couple temporal proximity with other evidence of retaliatory conduct to
establish causality.” Mickey, 516 F.3d at 525. Under these precedents, we find no causal link
between Plaintiff’s complaint and Director Lynch’s directive. After two years and ten months
passed, Plaintiff would be unable to prove that “but-for” her discrimination complaint in June
2013, Director Lynch would not have transferred her to Ms. Odom’s supervision in April 2016.
Nassar, 570 U.S. at 360. With no temporal proximity shown, Plaintiff has offered no other
evidence other than her own belief that Director Lynch treated her differently than male
employees. Under an “objective standard,” we reject Plaintiff’s claim based solely on her personal
beliefs. Burlington Northern, 548 U.S. at 68-69. Therefore, we conclude that the district court
properly granted summary judgment to Defendant on this issue.
ii. Lynch’s Written Reprimand of Plaintiff
On September 16, 2016, Director Lynch issued a written reprimand to Plaintiff for ignoring
his instructions. He then sent her an email stating:
Below is an e-mail I sent last week with detailed instructions. I had received
assurances from Monique [Odom] on Tuesday that the two of you discussed the
situation and Monique had your attention and your loyalty. That is not the case. As
of this morning in a conversation with Jackie I found out you had ignored both my
e-mail and Monique’s reminder. This is totally unacceptable for a division head to
ignore the Director of the Department’s instructions. The next incident of any
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failure on your part to follow my instructions or any failure on your part to fulfill
my written instructions will be considered a willful act of insubordination and will
be dealt with accordingly. (ECF No. 47-1 at PageID # 407.)
Plaintiff argues that the email above represented an unfair reprimand for not following a
“minor directive.” [Appellant’s Br. 22]. She contends that she was singled out for a reprimand
when male peers were not reprimanded for workplace errors. Director Lynch’s email could not be
reasonably construed as a materially adverse employment action against Plaintiff. Under the
objective standard provided in Burlington, a reasonable person would not be dissuaded from
making a charge of discrimination because the email, at worst, is one of many “petty slights or
minor annoyances that often take place at work.” Burlington Northern, 548 U.S. at 67-69. The
written reprimand would be considered a “trivial harm,” and particularly, one “that all employees
experience” in the workplace. Id. at 68. In a separate retaliation case, we have held that a “written
reprimand without evidence that it led to a materially adverse consequence such as lowered pay,
demotion, suspension, or the like, is not a materially adverse employment action.” Creggett v.
Jefferson Cnty. Bd. of Educ., 491 F. App'x 561, 566 (6th Cir. 2012). In the present case, Plaintiff
was never punished as a result of the written reprimand and, in fact, received a raise during her
tenure. Since Plaintiff has been unable to show any “material adverse consequences” resulting
from the written reprimand, we find that no materially adverse employment action occurred here.
See Creggett, 491 F. App'x at 566.
Second, to prove causation, Plaintiff argues that the email reflects that Director Lynch
treated her differently from male employees. But the record reflects that Director Lynch had also
chastened male employees. On multiple occasions, Mr. Lynch issued written reprimands to male
employees for not completing their tasks effectively, including for poorly cutting trees in a
recreation area and not installing air conditioning for a facility located in a black neighborhood.
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Plaintiff has failed to establish “but-for” causation because she was not “treated differently than
similarly situated employees.” Nguyen, 229 F.3d at 563. Nor was an “adverse action . . . taken
shortly after the plaintiff's exercise of protected rights” inasmuch as Director Lynch’s reprimand
came three years after her sex discrimination complaint. Id. Therefore, the district court correctly
entered summary judgment in Defendant’s favor on this issue.
iii. Director Lynch’s transferral of Plaintiff’s assistant
On January 3, 2017, Director Lynch transferred Plaintiff’s long-term assistant of 14 years,
Robert Benson, to another division within the department. Neither Benson nor Plaintiff were
provided a reason for the transfer. Plaintiff argues that “having one’s loyal assistant being
reassigned might dissuade someone from filing a discrimination complaint.” [Appellant Br. 34]
The district court reached the same conclusion. Director Lynch’s decision to remove Plaintiff’s
assistant without notice “might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Garner, 554 F.3d at 639 (6th Cir. 2009). A move to isolate Plaintiff in
the workplace could constitute an adverse employment action under Garner.
In tandem, however, Plaintiff must establish a causal connection between the adverse
action and her original sex discrimination complaint. Several actions run counter to establishing
such a connection. Mr. Benson had previously worked in the division to which he was transferred.
In his deposition, Director Lynch stated that Mr. Benson was assigned to help Plaintiff in her new
role as Assistant Director of Community Programs, but the move was always meant to be
temporary. In addition, Monique Odom, who was now Plaintiff’s supervisor, supported the move
and had planned to move Mr. Benson once Mr. Lynch retired and Ms. Odom became director of
the department. Further, Director Lynch moved Plaintiff’s assistant to another division three and
a half years after the filing of Plaintiff’s sex discrimination complaint. It does not appear that “but
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for” Plaintiff’s sex discrimination complaint in 2013, Mr. Benson would not have been transferred
in 2017. See Nassar, 570 U.S. at 360. Plaintiff’s claim fails as a result of the lack of temporal
proximity coupled with the other reasons for Mr. Benson’s transfer.
C. Plaintiff’s Claims Under a Hostile Workplace Theory
1. Relevant Legal Principles
Alongside her discrete retaliation claims, Plaintiff argues that she was subjected to
retaliatory harassment. Stated differently, she has brought her retaliation claims under a hostile
workplace theory. Retaliation claims, brought under a hostile workplace theory, are statutorily
distinct from hostile work environment claims. While both arise from Title VII, the “provision[s]
are not coterminous.” Burlington Northern, 548 U.S. at 67. Hostile workplace claims are derived
from Title VII’s anti-discrimination provision. See Morgan, 536 U.S. at 116; 42 U.S.C. § 2000e-
2(a)(1). As a result, charges brought under “Title VII’s anti-discrimination provision protects an
individual only from employment-related discrimination,” or in other words, discrimination with
respect to an employee’s “compensation, terms, conditions, or privileges of employment.”
Burlington Northern, 548 U.S. at 61. By contrast, Title VII’s anti-retaliation provision does not
have such limits. A charge under 42 U.S.C. § 2000e-3(a) “extends beyond workplace-related or
employment related retaliatory acts and harm.” Burlington Northern, 548 U.S. at 67. Therefore, in
bringing a claim of retaliatory harassment, we assess solely whether the conduct of Plaintiff’s
employer “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68 (internal quotation marks omitted).
As part of that review, we look into “all the circumstances . . . includ[ing] the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
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performance.” Harris, 510 U.S. at 23. Further, we look to whether the conduct of Plaintiff’s
employer included “repeated abusive discriminatory comments or treatment.” Yazdian v. ConMed
Endoscopic Techs., Inc., 793 F.3d 634, 646 (6th Cir. 2015). Retaliatory harassment claims by
“their very nature [involve] repeated conduct.” Morgan, 536 U.S. at 115. In contrast to discrete
acts of discrimination, a hostile workplace environment occurs over “a series of days or perhaps
years” and “therefore cannot be said to occur on any particular day.” Id. Accordingly, we may
review “some of the component acts of the hostile work environment [that] fall outside the
statutory time period.” Id. at 117. But in reviewing allegations that fall outside the statutory period,
Plaintiff must still show that a “reasonable person in the same factual circumstances with the same
training and experience as the aggrieved employee would believe that the conduct complained of
was unlawful.” Yazdian, 793 F.3d at 646 (internal quotation marks omitted). That reflects the
purposes of the antiretaliation provision, which “protects an individual not from all retaliation, but
from retaliation that produces an injury or harm.” Burlington Northern, 548 U.S. at 67.
2. The Nature of Plaintiff’s Work Environment
The district court granted summary judgment to Defendants after describing certain events
in Plaintiff’s workplace that did not reflect retaliatory harassment. In its view, Plaintiff’s retaliation
claims, brought under a hostile workplace theory, failed as a matter of law because her employer’s
conduct was not severe or pervasive enough to create a hostile work environment. For instance,
the district court noted that Plaintiff “maintained employment until retirement and even had her
salary increased” and “was still able to meet productively with [her supervisor,]” despite being
removed from his open-door policy. (ECF No. 63 at PageID # 674.) All of the events the district
court described related solely to the terms and conditions of Plaintiff’s employment despite the
fact that Title VII’s anti-retaliation provision does not limit its purview to only employment-related
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conduct. See Burlington Northern, 548 U.S. at 67. When Plaintiff argued she was subjected to
retaliatory harassment, in violation of 42 U.S.C. § 2000e-3(a), the law required the district court
to look beyond the terms and conditions of her employment, and assess whether a jury could find
the cumulative actions of her employer could “dissuad[e] a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68. But upon review, the district court employed a
standard too stringent to be in alignment with the statutory language of 42 U.S.C. § 2000e-3(a).
Further, by solely describing individual events in Plaintiff’s workplace as not indicative of
a hostile workplace environment, the district court did not assess “the cumulative effect of [these]
individual acts” to reflect that a hostile work environment “cannot be said to occur on any
particular day.” Morgan, 536 U.S. at 115. In essence, plaintiff’s allegations must be assessed as if
they “constitute one unlawful employment practice.” Id. at 117. Because the district court failed
to apply the proper standard to Plaintiff’s retaliatory harassment claim, we reverse its decision to
grant summary judgment to Defendants. We remand for the district court to determine whether the
conduct of Plaintiff’s employer, in a cumulative assessment, would have dissuaded a reasonable
employee from making a charge of discrimination.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s decision, except as to Plaintiff’s
retaliatory harassment claim. As to that claim, we reverse the district court’s decision to grant
summary judgment in favor of Defendants and remand for proceedings consistent with this
opinion.
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