Causal Connection between Protected Activity and Adverse Action Supported By Good Deed

By:  Claudia D. Orr

My clients know what I am going to say when they want to “bend the rules” to do something nice for one of their employees: “No good deed goes unpunished.” This is just one issue that caused the employer trouble in Redlin v Grosse Pointe Public School System, a recent decision published by the U.S. Court of Appeals for the Sixth Circuit. Let’s look at what happened.

In September 2012, plaintiff Debra Redlin was hired as an Assistant Principal at the Grosse Pointe South High School. She and another Assistant Principal, Terry Flint, reported to Deputy Superintendent Jon Dean. In the summer of 2014, Moussa Hamka became the principal at the high school.

In 2014, Dean told Flint that he intended to conduct a “spot-check” on a social worker who was suspected of being intoxicated at work. Dean told Flint to keep it confidential, but Flint apparently warned the social worker. When Flint confessed, a letter of concern was placed in his personnel file.

In December 2014, Vice Principal Flint made statements to plaintiff about the media specialist’s evaluation that suggested he was going to try “to nail” the employee on his evaluation. Plaintiff warned the employee. That employee discussed the issue with Principal Hamka who told plaintiff she would be disciplined for disclosing the confidential information.

Plaintiff complained to Dean about the Principal Hamka’s comments and threat. Dean interpreted plaintiff’s complaint to be about sex discrimination and harassment. The complaint was resolved informally and both plaintiff and the principal committed to working together.

Following the resolution of plaintiff’s complaint, Dean met with Plaintiff to discuss her inappropriate disclosure of Flint’s evaluation of the media specialist and what her discipline would be for making the disclosure. Dean told her that he would hold plaintiff’s discipline in “abeyance” through the end of the school year since he knew she was looking for administrative positions in other school districts.

There it is; a good deed. Dean was trying not to tarnish plaintiff’s work record while she sought other jobs. Of course what follows the good is the punishment: Plaintiff testified that she interpreted this as a threat — that Dean wanted her gone and that if she did not leave the school district by the end of the school year, she would be disciplined.

In June 2015, Gary Niehaus became the new district’s superintendent. He decided to transfer plaintiff to a middle school because she had warned the employee about the performance review and “because of her gender complaint” against Hamka.  Good grief.  Seriously?  Wasn’t there anyone to advise him this was a really, really bad reason for the decision?  I know the school district’s attorney and I bet he about fell over with that testimony. While for two years plaintiff received the reduced wage rate paid to assistant principals at middle schools, Niehaus testified that this had been a mistake and he eventually paid her the difference in back pay.

I am going to skip a lot of the facts but in November 2015 plaintiff took a leave under the Family and Medical Leave Act (FMLA) for stress, filed a discrimination charge in December 2015 alleging sex discrimination and retaliation and, after she got a right to sue letter from the EEOC, plaintiff filed suit in the U.S. District Court for the Eastern District of Michigan. Plaintiff alleged, among other things, sex discrimination and retaliation for complaining about sex discrimination and for taking a FMLA leave. The court granted the school district’s motion for summary judgment and plaintiff appealed.

In short, the appellate court found plaintiff and Flint to be similarly situated and that, while both plaintiff and Flint disclosed confidential information, only Flint received a simple “letter of concern” which did not affect his performance review. By comparison, plaintiff received a “minimally effective” rating on her performance review which resulted in a contract limited to one year, no merit pay or increase and a performance improvement plan which carries with it a threat of termination.

It also found that the transfer to a middle school also satisfied the adverse action requirement for her sex discrimination and retaliation claims under Title VII and state civil rights law even though, in the end, she did not suffer a wage cut.  Her transfer outwardly appeared to be not only a loss of prestige but also a loss of salary.  The minimally effective rating on her performance review also had consequences.

Moreover, it was suggested to plaintiff that she should leave (Dean told plaintiff “he didn’t see [her] [belonging at the High School]”  and told her she would only be disciplined if she didn’t find another job before the end of the year) and Niehaus admitted transferring plaintiff, in part, because of the “gender complaint”.  These are not good facts.

There is a lot of analysis by the appellate court concerning the wrongdoing by plaintiff compared to Flint, the different decision makers involved in disciplining the two employees, the proximity in time between the sex discrimination complaint and adverse action, etc.  However, in the end, the discrimination and retaliation claims under the civil rights laws were reinstated.

This case demonstrates several things.  First, as I said above, no good deed goes unpunished.  Second, before taking action against an employee who has complained of discrimination (or in this case because the employee complained), it’s wise to seek legal advice.  And, third, just because an employee is not fired, that doesn’t mean the employer is not at risk for serious civil claims. Consulting with an employment attorney along the way may have saved the school system a lot of trouble, and expense.

 

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

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