Employees Must Do More Than Make Bare Allegations, Without Evidentiary Support, to Maintain an Employment Discrimination Claim

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By: Carrie S. Bryant

 

On August 7, 2015, the Sixth Circuit Court of Appeals decided Mensah v. Michigan Department of Corrections, et al., No. 14-1162 (6th Cir. Aug. 7, 2015) (unpublished).  The Mensah case, which originated in the United States District Court for the Eastern District of Michigan, provides a reminder that not every inconvenience in the workplace is actionable.  Employees must do more than make conclusory statements, without support in the record, to maintain an employment discrimination claim.

Vincent Mensah (“Mensah”), an African-American of Ghanaian descent, worked for the Michigan Department of Corrections (“MDOC”) as a Business Manager at the Macomb Correctional Facility (“MCF”).  During the last few years of his employment, Mensah filed several complaints with the EEOC, and internal grievances alleging retaliation, hostile work environment harassment and discrimination.  Mensah resigned from his position in 2009 and initiated an EEOC Charge of Discrimination alleging, amongst other claims, that he was constructively discharged because of his race and national origin, and in retaliation for having made a complaint.  The EEOC dismissed Mensah’s Charge, and he filed suit against multiple defendants, including the MDOC, as well as the Warden and Deputy Warden of the MCF.  Mensah alleged violations of various state and federal laws.

After the dismissal of at least one defendant and multiple claims, the remaining defendants sought summary judgment on the balance of Mensah’s claims, including his Title VII, 42 U.S.C. § 1983, and the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”) claims.  Mensah alleged that he was discriminated against and harassed in a variety of ways, including that he: 1) had to notify his boss when he arrived to work in the morning, and when he left MCF grounds, 2) had to carry his ID while working, 3) was asked to participate in a security drill that required checking vehicles outside in the winter, 4) was denied a request for annual leave, 5) was not allowed flex time, 6) received an unfavorable performance evaluation, resulting in a “needs improvement” rating, and 7) was disciplined by being suspended for five days, which was ultimately reduced to a written reprimand.

Defendants argued that Mensah did nothing more than set forth a series of de minimis employment actions that did not rise to the level of an adverse employment action.  The district court agreed that the majority of the conduct did not constitute adverse employment actions because it did not materially change Mensah’s employment conditions.  However, the district court did not reach the same conclusion concerning the unfavorable performance evaluation.  Instead, the court found that the evaluation could constitute an adverse employment action, but Mensah had produced no evidence that the performance evaluation in fact caused a change in his compensation, position or responsibilities.  Further, when considering the discipline that was issued, the district court noted that, even though the suspension was reduced to a reprimand, Mensah was never reimbursed for his lost pay, which definitely affected Mensah’s compensation.  However, the court did not decide whether the performance evaluation or discipline was an adverse action because it determined that Mensah’s claim failed on other grounds.

Mensah was unable to establish that he was treated differently than similarly-situated employees outside of his protected class, which was a required element of his discrimination claim.  Mensah claimed that he received the five-day suspension because he was not accounted for at a mobilization drill conducted by the MDOC.  According to Mensah, an American-born black male employee, Joe Wade, was also absent from the drill, but was not disciplined in the same manner.  The court determined that the two employees were not similarly-situated because, not only did they have different supervisors, but Mensah was a high-level administrative officer, and was held to a different standard than Wade.  Mensah’s discrimination claim failed.

Similarly, Mensah’s hostile work environment claim failed because he did not submit any evidence showing that any of defendants’ alleged conduct was related to or based on his race or national origin, and there was no evidence of discriminatory animus concerning Mensah’s national origin or race.  Mensah also admitted that his work performance did not suffer due to any harassment; so, he failed to establish that any conduct was so severe or pervasive that it unreasonably interfered with his performance.

Regarding his retaliation claim, Mensah alleged, in part, that he was denied a request for annual leave, made the subject of an investigation, and received a “needs improvement” evaluation, because he engaged in protected activity.  His retaliation claim suffered the same fate as his discrimination and harassment claims.  The district court found that none of the alleged actions were materially adverse employment actions because Mensah’s compensation, benefits, job responsibilities, or position was not negatively impacted.  He also did not produce any evidence showing that any protected activity on his part was the cause of defendants’ alleged conduct.   The district court granted summary judgment in favor of the defendants on all claims.

Mensah appealed to the Sixth Circuit Court of Appeals, challenging the grant of summary judgment.  Unlike the district court, in deciding the discrimination claim, the Sixth Circuit noted that performance reviews are generally not considered to be adverse employment actions if they are unaccompanied by a change in position or loss of pay, as was the case with Mensah.  So, the Court did not consider the negative performance evaluation in analyzing the discrimination claim.  Like the district court, the Sixth Circuit did not decide whether the discipline was in fact an adverse action.  Instead, the Court determined that Mensah’s discrimination claim failed because he was unable to present a similarly-situated employee.  Not only did Mensah’s position differ from Wade’s, but his conduct differed as well.  The Sixth Circuit found it important that, during the internal investigation into the employees’ conduct, Wade admitted that he was not on the premises during the drill.  However, Mensah refused to answer any questions about his whereabouts.  In other words, the Sixth Circuit did not just evaluate the underlying conduct (i.e. the failure to be accounted for during a drill) to determine similarity.  The Court evaluated the overall conduct of the employees.

The Sixth Circuit affirmed the dismissal of the hostile work environment claim, finding that, at most, the record suggested the presence of an interpersonal conflict between Mensah and his boss, and there was no evidence of any allegedly discriminatory or harassing behavior that was motivated by racial or national origin animus.  Likewise, the Sixth Circuit found that Mensah’s retaliation claim failed.  Mensah contended that he was not extended certain professional considerations or courtesies in the workplace, and that such amounted to retaliatory harassment.  However, he did not identify any evidence supporting his contention, and the Court refused to “mine [the] record” searching for support for Mensah’s arguments.  In the end, the Sixth Circuit affirmed the grant of summary judgment.

Unpublished opinions are not binding precedent; however, employers should take solace in the Mensah opinion.  It confirms that courts recognize that not every inconvenience in the workplace is an adverse employment action, or actionable in an employment discrimination case.  Also, it serves as an acknowledgement that employee conduct that appears to be similar, may not in fact be so.  Nonetheless, it is important for employers to have legitimate, non-discriminatory reasons for differences in treatment of employees who engage in seemingly similar infractions.

 

This article was written by Carrie S. Bryant who is a member of Detroit SHRM’s Legal Affairs Committee and an attorney of the law firm of Dykema Gossett PLLC, located in its Bloomfield Hills, MI office.  She can be reached at (248) 203-0728 or cbryant@dykema.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, are included in the re-post of the article.  August 2015.