Sixth Circuit Clarifies What Constitutes Adverse Employment Action for Title VII Claims

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By:  Karen L. Piper

The Sixth Circuit issued an instructive opinion discussing various employer actions in terms of whether they constituted adverse employment action as required for a Title VII claim. Lee v Cleveland Clinic Foundation, Case No. 16-3091 (unpublished) (6th Cir. January 20, 2017).

Plaintiff, who was born in India, is of Chinese descent.  She worked as a registered nurse at the Cleveland Clinic for 38 years.  She resigned her employment at age 61 following an indefinite suspension for misconduct.  During the 18 months prior to her suspension, plaintiff had reported various actions as discriminatory.  For example, she reported that her supervisor had made three comments to her about retirement.  Younger nurses called her “oldbie” and “old bitch.”  Co-workers made slurs about her Chinese descent, such as, “You Chinese people eat anything that crawls and walks.”  The plaintiff’s reports were not properly investigated.  Plaintiff was told she was “overreacting” and being “sensitive.”

During this same 18-month time period, plaintiff was disciplined and placed on two performance improvement plans (PIP).  When she received the second PIP, plaintiff complained of discrimination and said she was going to get a lawyer.  Plaintiff was suspended later that day for telling her patient about the PIP.

Plaintiff was suspended on a Friday for “at least three days.”  She was told not to contact work until instructed to do so.  On Sunday morning, just after midnight, plaintiff resigned her employment by email.

Plaintiff sued for age, race and national origin discrimination and retaliation.  The court ruled the supervisor’s questions about retirement and her co-workers comments were not direct evidence of discrimination.  Without direct evidence, plaintiff was required to establish discrimination by showing that: 1) she belonged to a protected group, 2) she suffered an adverse employment action, 3) she was otherwise qualified for her job, and 4) she was replaced by an individual outside her protected groups.  Plaintiff met her burden on these elements (older Chinese woman replaced by a 29 year old Caucasian male), except for adverse employment action.  The district court ruled she had not suffered an adverse employment action. 

Plaintiff had claimed four forms of adverse employment action: increased surveillance, termination, constructive discharge, and indefinite suspension.  The appeals court analyzed each of these actions. 

Increased Surveillance. The court ruled, warranted or not, increased surveillance and discipline are not considered adverse employment action because they are not a significant change in status.

Termination. Termination ordinarily is an adverse employment action.  Here, plaintiff claimed that when she was suspended, her employer told her never to return to her place of work and that it would mail her personal belongings to her.  This was sufficient evidence of a possible termination to create a question of fact for the jury to decide.

Constructive Discharge. A constructive discharge ordinarily is an adverse employment action.  Constructive discharge occurs when an employee resigns her employment in response to an employer’s deliberate creation of intolerable working conditions, as perceived by the employee, with the intention of forcing the employee to quit.  Intolerable working conditions include: reduction in pay, badgering, harassment, or humiliation calculated to encourage the employee to resign.  The court ruled that plaintiff’s reports of derogatory racial slurs, and multiple inquiries from her supervisor about retirement, which actions were not adequately investigated, were sufficient evidence of harassment to create a jury question whether plaintiff was constructively discharged. 

Indefinite Suspension Without Pay. An indefinite suspension without pay is an adverse employment action, if the employee serves the suspension.  Here, plaintiff was suspended on a Friday for at least three days and told not to contact work until instructed to do so.  She resigned via email on Sunday before serving her suspension, so her suspension was not an adverse employment action. 

Having presented sufficient evidence of adverse employment action, the divided court ruled (2 to 1) that plaintiff had satisfied all of the elements needed to show possible discrimination.  The court sent the case back to the trial court for further proceedings. 

This was a close case as demonstrated by the fact that the trial court judge and one appeals court judge ruled that plaintiff had not presented sufficient evidence of adverse employment action and two appeals court judges ruled she had.  If the employer had more thoroughly investigated the plaintiff’s claims of harassment or worded her suspension differently, a different result may have obtained.  In close cases, it is prudent to consult experienced employment counsel, such as the author, before imposing disciplinary action, especially on long-term employees.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law.  Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.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.  February 2017.