Patricia Lahar v. Oakland County , 304 F. App'x 354 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0744n.06
Filed: December 4, 2008
No. 07-2258
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PATRICIA LAHAR, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
OAKLAND COUNTY, a corporate body, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
Before: BATCHELDER, CLAY and SUTTON, Circuit Judges.
PER CURIAM. Patricia Lahar challenges the district court’s grant of summary judgment in
favor of Oakland County on her Age Discrimination in Employment Act (ADEA) retaliation claim
and her parallel state-law retaliation claim. Judge Clay believes Lahar has failed to demonstrate a
genuine issue of fact with respect to both a materially adverse action and causation, whereas Judges
Batchelder and Sutton would not reach the issue of whether a materially adverse action occurred and
thus do not join Part II.B.1. Because we all find an absence of causation, we affirm.
I.
Since 1986, Lahar has worked as a senior administrator for Oakland County Children’s
Village, a residence for delinquent youths, victims of abuse or neglect and those without family
members who can care for them. In January 2003, Lahar, then 54, applied for the vacant position
of Manager, the highest position at the facility. Joanna Overall, a Children’s Village employee, then
roughly 44, received the position instead.
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Lahar v. Oakland County
In response, Lahar filed an age-discrimination lawsuit in state court against Oakland County
in April 2003. The state trial court granted the county’s motion for summary disposition, and the
court of appeals affirmed.
Five months after she filed that lawsuit, Lahar claims that Overall subjected her to
“unwarranted scrutiny and discipline,” including one oral and two written reprimands. Br. at 7. She
also claims that Overall reduced her job responsibilities and lowered her performance evaluations
during the next three years. In 2005, Lahar filed a second lawsuit against Oakland County, this time
in federal court, alleging that the conduct amounted to unlawful retaliation under the ADEA, 29
U.S.C. § 623(d), and under Michigan’s Elliott-Larsen Civil Rights Act, Mich. Comp. L.
§ 37.2701(a). The district court granted the county’s motion for summary judgment on both claims,
concluding that Lahar failed as a matter of law to establish an adverse employment action caused by
her protected conduct. Lahar v. Oakland County, No. 05-72920, 2007 WL 2752350, at *11–12
(E.D. Mich. Sept. 21, 2007). Lahar appeals.
II.
A.
The district court, as an initial matter, did not err when it refused to consider new factual
allegations and legal arguments that Lahar raised in an eleventh-hour affidavit. Lahar submitted the
affidavit “without the permission of the Court, long after briefing was complete, and without
allowing Defendant adequate opportunity to respond or even review it prior to the [summary-
judgment] hearing.” Lahar, 2007 WL 2752350, at *2. As a result, the court declined to consider
new allegations and legal theories that “could have been timely raised in Plaintiff’s Response brief.”
Id.
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The district court permissibly exercised its discretion in declining to consider Lahar’s new
contentions. See Miller v. Lorain County Bd. of Elections, 141 F.3d 252, 259 (6th Cir. 1998). Lahar
“failed to offer a reasonable explanation for her tardiness,” Lahar, 2007 WL 2752350, at *2, and
trial-level litigation would come to a standstill, or at least become exceedingly inefficient, if parties
could raise new arguments at that stage in the case. Because a litigant generally forfeits an argument
that she fails to raise in a timely manner, see Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir.
1998), and because Lahar did not offer good cause for the late filing, the district court permissibly
rejected the new legal arguments raised in the affidavit.
B.
Lahar next challenges the district court’s conclusion that her retaliation claims fail as a matter
of law. Under the ADEA, it is “unlawful for an employer to discriminate against any of his
employees . . . because [the employee] has . . . participated in . . . litigation under this chapter.” 29
U.S.C. § 623(d). In the absence of “direct evidence” of retaliation, the claim proceeds under the
McDonnell Douglas framework. The plaintiff initially must present “a prima facie case of retaliation
by showing that (1) he engaged in protected activity, (2) [which] was known to the defendant, (3)
[who] thereafter took an employment action adverse to the plaintiff” (4) because of the protected
activity. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008). If the employee
makes this showing, the employer must offer “evidence of a legitimate, nondiscriminatory reason
for its actions,” and if the employer does so, the burden shifts back to the plaintiff, who must show
that “the legitimate reason offered by the defendant was . . . a pretext designed to mask retaliation.”
Id. Michigan law applies this same approach to claims filed under the Elliott-Larsen Civil Rights
Act. See Garg v. Macomb County Cmty. Mental Health Servs., 696 N.W.2d 646, 653, 656 (Mich.
2005).
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The district court rejected Lahar’s claims on two independent grounds: (1) that she failed
to show that the county had taken a materially adverse action against her and (2) that the employer’s
conduct, even if it amounted to an adverse action, was not caused by her age-discrimination suit.
Lahar, 2007 WL 2752350, at *11–12. We give fresh review to these determinations and in doing
so must “view the evidence and draw all reasonable inferences in favor of . . . the non-moving
party”—here Lahar. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008).
1.
An action is “materially adverse,” the Supreme Court has explained, when it would
“dissuade[] a reasonable worker from making or supporting a charge of discrimination.” See
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted).
“[N]ormally petty slights, minor annoyances, and simple lack of good manners will not create such
deterrence.” Id. The standard is the “reactions of a reasonable employee,” not the plaintiff herself,
in view of “the uncertainties and unfair discrepancies that can plague a judicial effort to determine
a plaintiff’s unusual subjective feelings.” Id. at 68–69.
In attempting to satisfy this requirement, Lahar points to lowered performance evaluations
that followed the filing of her state-court lawsuit. Compare JA 618 (December 2002 evaluation,
marked “outstanding” in all categories) with JA 623 (April 2004 evaluation with one “outstanding,”
four “above average,” one “average” and one “below average” marks); see also JA 624–25 (2005
and 2006 evaluations were similar to 2004 evaluation). She also relies on three reprimands for
misconduct: (1) in September 2003 for “fail[ing] to involve [Overall] in a decision involving
another department” after repeated instructions to do so, JA 131; (2) in February 2005 for failing “to
follow the chain of command,” failing “to include supervisory staff in business that involves their
staff” and failing “to inform [Overall]” before working uncompensated overtime, JA 135; and (3)
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in May 2005 for engaging in insubordination by again working unpaid overtime without prior
approval.
We have previously held that lowered evaluations “could . . . dissuade[] a reasonable worker
from making . . . a charge of discrimination” if they “significantly impact an employee’s wages or
professional advancement.” Halfacre v. Home Depot, USA, Inc., 221 F. App’x 424, 432, 433 (6th
Cir. 2007) (internal quotation marks omitted) (alteration in original). And we can assume that the
same would be true for reprimands, at least for purposes of resolving this case. The problem for
Lahar is that she has failed to show that her lowered evaluations or reprimands affected her wages
or prospects for advancement. Before she filed her state-court lawsuit, Lahar occupied the second-
highest rung on the Children’s Village employment ladder, she was at the top step of her salary
grade, and her compensation ranked in the top 2.2% of all county employees. Her state-court lawsuit
stemmed from her failure to get the one job within Children’s Village that would have allowed her
to advance and to make more money. Whatever else the county did in alleged response to this
lawsuit, it did not reduce her pay or her title. Under these circumstances, it is not surprising that
Lahar has failed to show that these reprimands and lowered evaluations failed to reduce, or are likely
to reduce, her compensation or further advancement. She, indeed, offers no evidence to support any
such possibility.
Lahar next points to decreased job responsibilities, all allegedly prompted by the filing of her
state-court lawsuit and all occurring during the three years after she filed the lawsuit. They include
the following: Overall did not ask her to serve as a representative for Children’s Village at various
conferences; Overall prevented her from contacting the State’s licensing consultant without prior
permission; Overall prohibited her from observing the entire employee arbitration process in cases
involving her subordinates; someone (probably Overall) excluded her from the hiring process;
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Overall required her to seek permission before working unpaid overtime; Overall would not allow
her “to assess and adjust the programming within the intake section as [she] deem[ed] necessary,”
to transfer residents between buildings as she wished, to implement special needs programming, to
direct clinical supervisors or to investigate staff wrongdoing, JA 595; and Overall prevented her from
meeting with staff members outside the presence of their supervisors.
All considered, these slights do not rise to the level of a materially adverse employment
action because they would not have influenced a reasonable employee’s decisionmaking process.
No doubt, a change in job duties—even one with no effect on pay—may be a materially adverse
action if the altered job duties would be considered “less desirable” by a reasonable employee. See
Burlington N., 548 U.S. at 70–71. Transferring an employee from forklift-operator duties to track
laborer duties, for example, amounted to a materially adverse action in Burlington Northern because
the evidence showed that the former job was more “prestig[ious]” than the latter, because the latter
job was “by all accounts more arduous and dirtier” and because there was “considerable evidence”
that the forklift position “was objectively considered a better job and [that] the male employees
resented [the plaintiff] for occupying it.” Id. (internal quotation marks omitted). Lahar offers no
similar evidence. She was not reassigned after she filed the lawsuit, and she was not asked to do
more work, or for that matter “more arduous” work, within the county. If anything material changed
after the lawsuit was filed, it is that the company asked less rather than more of her. In maintaining
that she suffered “deep psychological harm” from this series of administrative slights, see Br. at 26
n.13, she answers the wrong question. The issue is not whether she was subjectively hurt by this
treatment; it is whether evidence indicates that a reasonable employee in her position would react
similarly if treated the same way.
Michael v. Caterpillar Financial Services Corp., 496 F.3d 584 (6th Cir. 2007), does not fill
this gap in her case. There, management ordered an employee to take two days of paid
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administrative leave, followed by a “90-day performance plan,” during which managers scrutinized
her actions. Id. at 591. The plan included weekly reviews of her progress, as well as requirements
that she “notify[] management if she would not be in the office, improv[e] her timely attendance at
business meetings, refrain[] from treating her staff as personal assistants, and refrain[] from
contacting her staff outside of normal business hours.” Id. at 592. Overall’s minor restrictions on
Lahar’s administrative duties did not rise to this level.
Even if all of these actions—the administrative slights, the reprimands, the lowered
evaluations—do not rise to the level of an adverse-employment action when considered individually,
Lahar maintains that they suffice when considered together. The county concedes that a claimant
may aggregate claims of mistreatment in deciding whether retaliation occurred, and thus for purposes
of resolving this case we will assume she may. Resp. Br. at 45; see Howard v. Bd. of Educ. of
Memphis City Schs., 70 F. App’x 272, 283 (6th Cir. 2003) (“While many of these incidents do not
rise to the level of an adverse employment action, the incidents, in toto, might arguably give rise to
actionable retaliatory harassment.”); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th
Cir. 1998) (considering the “totality of the alleged reprisals” in deciding whether an adverse-
employment action occurred).
Even when considered in the aggregate, however, Lahar’s claims still come up short. Keep
in mind that these actions did not occur all at once; they were spread out over three years. A
“reasonable employee” is far less likely to be deterred by these kinds of actions when spread out over
several years rather than condensed in the days or months following the protected activity. Cf.
Wideman, 141 F.3d at 1455–56 (concluding that numerous small actions, all occurring within a two-
month period, constituted materially adverse action).
2.
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In addition to this defect in her claim, Lahar has failed to establish a material dispute of fact
that the county took these actions because of her state-court lawsuit. In attempting to show
otherwise, she argues that the temporal proximity between her state-court lawsuit and these adverse
actions by itself establishes causation. But temporal proximity by itself rarely will establish
sufficient evidence to create a triable issue of fact over causation. Stone v. City of Indianapolis Pub.
Util. Div., 281 F.3d 640, 644 (7th Cir. 2002) (collecting cases); see Mickey, 516 F.3d at 525. Even
in the rare case where it does suffice, the gap in time between the protected activity and the alleged
retaliation must be brief. See Mickey, 516 F.3d at 525 (“In those limited number of cases—like the
one at bar—where an employer fires an employee immediately after learning of a protected activity,
we can infer a causal connection between the two actions, even if Mickey had not presented other
evidence of retaliation.”) (emphasis added).
Here, the first of the alleged retaliatory actions against Lahar was the oral reprimand in
September 2003 for “fail[ing] to involve [Overall] in a decision involving another department.” JA
131. Although the memorandum documenting the reprimand noted that Overall had “discussed the
need for [Lahar] to inform [her] of non-routine issues as they arise” on several occasions in May
2003, the actual reprimand did not occur until September 2003, shortly after Lahar “again . . .
contact[ed] an Administrator of the Circuit Court, Family Division” without prior approval. Id. This
was five months after Lahar filed the lawsuit in April 2003. As the district court correctly held, a
five-month gap in time does not by itself suffice to get to a jury on causation. See Cooper v. City
of N. Olmstead, 795 F.2d 1265, 1272–73 (6th Cir. 1986) (holding that a four-month gap between
protected conduct and alleged retaliation could not sustain a causation inference, absent other
evidence of retaliation).
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It is no answer to say that the county based the September 2003 reprimand in part on events
that occurred in May of the same year. For one, the employer’s restraint in not disciplining the
employee closer in time to the protected conduct creates an inference of non-retaliation, not one of
retaliation. An employer bent on retaliating against an employee is more likely to act as soon as the
employee gives it the chance, not wait until a second or third problem arises—as happened in this
case. For another, disciplinary actions based on all but the most egregious conduct generally will
turn on incidents that occurred over a period of time, not just on the date on which the discipline is
imposed. In Cooper, for instance, the plaintiff’s termination was preceded by a number of citations
for poor performance, including two within a month of the protected conduct, but the court
nevertheless considered the lapse in time between the protected conduct and the adverse action to
be the entire four months. 795 F.2d at 1266–67, 1272–73. It bears adding that Lahar does not
maintain that the May events were themselves an adverse employment action or even a component
of one.
Lahar adds that more than temporal proximity supports her causation argument, pointing to
alleged “disparate treatment” between her and other employees. Br. at 33. She notes that another
supervisor, Peter Balzerini, was not excluded from the hiring process, prevented from meeting with
the State licensing consultant or denied the authority to transfer residents. But because Lahar failed
to present this theory of causation to the district court in her summary-judgment papers, she has
forfeited it, Enertech Elec., Inc. v. Mahoning County Comm’rs, 85 F.3d 257, 261 (6th Cir. 1996),
as the district court properly found, Lahar, 2007 WL 2752350, at *2 (finding that arguments not
made in initial summary judgment response were forfeited).
Lahar further argues that, because Overall complained about her from time to time, that itself
establishes causation. But here, too, she failed to raise this theory below and so has forfeited it.
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III.
For these reasons, we affirm.
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