Burden of Showing Materially Adverse Action in Title VII Retaliation Claim Less Onerous Than Required to Show Adverse Employment Action for Purposes in Title VII Discrimination Claim

In its recent decision in Laster v. City of Kalamazoo, et al., No. 13-1640 (March 13, 2014), the Sixth Circuit Court of Appeals reminded us that the type of adverse action required to support a retaliation claim under Title VII is very different than that necessary to support a claim for discrimination under Title VII. In Laster, the Sixth Circuit reversed the district court’s summary judgment ruling as it pertained to the plaintiff’s Title VII retaliation claim on the grounds that the plaintiff had sufficiently stated a claim for retaliation in violation of Title VII when he had identified a number of ways in which a reasonable worker could have been dissuaded from making or supporting a charge of discrimination.

The plaintiff in Laster was an African American male employed for the Kalamazoo Department of Public Safety as a public safety officer/emergency officer for twenty-three years. Laster claimed that he was treated less favorably than similarly situated co-workers and ultimately claimed that he was constructively discharged in violation of Title VII. Laster claimed that he was treated less favorably in a number of ways during his employment.

Laster first complained of harassment to the Department of Human Resources related to the downgrade of an evaluation that was ultimately changed back after he grieved it. Later, he filed another complaint alleging harassment and discrimination based on the denial of his request to attend an outside training program and the denial of his request to use a meeting room at the fire station for personal reasons, despite the fact that others had used it for similar reasons. Shortly thereafter, he filed another complaint alleging harassment and discrimination based on race and retaliation for filing complaints against superior officers regarding their use of racial epithets when he was reprimanded for violating a firearm policy that he claimed was only selectively enforced. When he did not receive sufficient relief,

Laster filed a charge with the EEOC claiming disparate treatment and identifying five instances of discrimination and retaliation: the denial of his request to attend an outside training program, the denial of his request to use the meeting room, the written reprimand for his conduct in a meeting, despite the fact another individual who had engaged in the same and even more disruptive conduct was not disciplined, the assertion that he had violated policy by storing his a playset for his children at the station, despite the fact that another employee stored his personal freezer at the station, and the failure to be invited to a meeting seeking input from personnel related to the purchase of a new fire truck. Ultimately, the City of Kalamazoo did not agree to the terms of the conciliation proposed by the EEOC.

Laster filed a second charge with the EEOC not long after, alleging that he was retaliated against and further subjected to harassment and intimidation within his department. In the same time period, an incident occurred in which Laster alleged that he was subjected to a frivolous and malicious investigation. President Obama was speaking at a graduation ceremony for a local high school. Laster attended without incident, yet according to his employer, he crashed his car into a police vehicle and left the scene, had some sort of negative interaction with supervisory officers and tried to make unauthorized entry into the area where the President was seated. There was an internal investigation, but there were no conclusive findings. Based on Laster’s collective bargaining agreement, he was entitled to a pre-determination hearing. Laster was told before this hearing that if he was terminated, he and his pregnant wife and two children would not be eligible for health insurance benefits. Ultimately, Laster ended up resigning so as to preserve his benefits. Laster subsequently filed a lawsuit alleging that he was constructively discharged in violation of Title VII and retaliated against in violation of Title VII and the First Amendment. The district court granted the defendants’ motion for summary judgment as to all the claims.

The Sixth Circuit reversed as to the claim of retaliation in violation of Title VII. The court agreed that Laster’s resignation did not amount to a constructive discharge, but that did not mean he had not established a claim for retaliation under Title VII. The Sixth Circuit found that the district court had only addressed Laster’s retaliation claim in the First Amendment context. In fact, the Sixth Circuit found, Laster had raised a genuine issue of material fact as to whether the defendants retaliated against him in violation of Title VII. The court pointed out that “the elements of a retaliation claim are similar but distinct from those of a discrimination claim” and that “[p]laintiff’s burden of establishing a materially adverse employment action is ‘less onerous in the retaliation context than in the anti-discrimination context.’” Laster, pp. 18-19. (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 589 (6th Cir. 2007)). “Unlike a Title VII discrimination claim, ‘the antiretaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.’” Id. at 19 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). A plaintiff must show that a reasonable employee would have found the action adverse, meaning it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Id. The Sixth Circuit further quoted from its option in Michael: ‘“This more liberal definition permits actions not materially adverse for purposes of an anti-discrimination claim to qualify as such in the retaliation context.”’ Id., p. 20 (quoting Michael, 496 F.3d at 596)).

Here, the Sixth Circuit explained, the plaintiff had presented evidence that he “was denied training opportunities, singled out for violating at least two department policies that were selectively enforced against him, and disciplined more harshly than his peers for identical violations.” Id. Additionally, the evidence viewed in the light most favorable to Laster supported his allegation that there had been a “frivolous and malicious investigation” of him and Laster had alleged that he complained about harassing, discriminatory, and retaliatory conduct by his coworkers and no corrective action was taken. Thus, the Sixth Circuit concluded, he had established a prima facie Title VII retaliation claim sufficient to survive summary judgment. Id., p. 21.