Applying a cat’s paw analysis, the Sixth Circuit concluded that ample evidence supported the jury’s finding that the Michigan Department of State Police was liable for the retaliatory acts of a female police sergeant’s supervisor, who responded to her second complaint of sexual harassment by asking his superior and the HR department to transfer her because her complaints were creating a hostile work environment. Affirming the $350,000 award, the appeals court noted that the supervisor also had a hand in the hearing that determined where her new assignment would be, which was 180 miles from her home (Mys v. Michigan Department of State Police, March 28, 2018, Gilman, R.).
The employee joined the Michigan State Police as a trooper in 1987, and she began working at the Newaygo post in 1999 upon promotion to sergeant. She bought a home that was 15 miles from the Newaygo post and her permanently disabled mother moved nearby so the employee could care for her. Meanwhile, she received excellent reviews and was again promoted.
Sexual harassment complaints. Things changed after 2005, when the employee allegedly became the object of unwanted sexual advances by a fellow sergeant. At one point, he allegedly showed up at her home uninvited and sexually assaulted her. An internal investigation deemed her allegations “unsustained.” She filed a second complaint in 2007 alleging continued sexual harassment, but these again were considered unfounded. Thereafter she allegedly experienced a campaign of retaliation that is fully detailed in a prior Sixth Circuit decision.
Employee transferred 180 miles away. Relevant here, the highest-ranking officer in the district encompassing the Newaygo post participated and recommended the outcome of both internal investigations into the harassment complaints. Before the second investigation was finalized, he emailed his supervisor asking that the employee be assigned to a different post. Transferring the alleged harasser was never considered. The employee was temporarily assigned to Rockford, a post in the same district, until a final determination on the requested transfer could be reached.
Although the employee initially opposed the transfer, she found that she liked her new post, she got along with her new colleagues, and her stress was greatly relieved away from her harasser. The collective bargaining agreement empowers a transfer review board (TRB) to select transfers from six posts requested by the employee and four requested by the department. The employee asked for nearby posts in the same district and the department requested posts outside the district. At the TRB hearing, the employee described her positive experience at Rockford and desire to stay there. She also explained that further locations would create stress due to her caretaking responsibilities. Nonetheless, after a department representative spent the bulk of his statement addressing her “culpability” and complaints of a hostile environment, he urged the TRB to discount her requests. The TRB then rejected the employee’s preferred posts on the ground that she needed a “fresh start,” and sent her to Detroit, 180 miles from home.
Retired early, filed suit. The employee worked in Detroit for over two years, keeping her prior home to see to her mother’s needs. She traveled home whenever she could to see her mother but eventually the burdensome arrangement led her to have her pension vest so she could retire 12 years earlier than planned (she had hoped to become the longest-tenured female officer in the department). The employee filed suit under Title VII, alleging sexual harassment and retaliation.
Second trial nets employee $350,000 award. Only the retaliation claim went to trial and the first jury returned a verdict for the department. That was vacated in a prior appeal because the trial court erred in excluding evidence of retaliatory acts taken before the transfer to Detroit. In the second trial, at the close of the case-in-chief, the department moved for judgment as a matter of law, arguing the employee lacked evidence her complaints were the but-for cause of her transfer as required to prove retaliation under Title VII, but the district court simply took that under advisement. The jury returned a verdict in the employee’s favor and awarded her $350,000 in compensatory damages. The department then renewed its motion and also sought in the alternative to have the award reduced. The court denied both motions and this appeal followed.
Ample evidence supported verdict. Affirming, the Sixth Circuit explained that the fact that the TRB, and not the employee’s supervisor, made the final transfer decision did not defeat the retaliation claim. Under the cat’s paw theory, an employer can be vicariously liable for retaliation that a supervisor initiates against an employee by causing another actor that might lack retaliatory animus—here, the TRB—to take an adverse action against the employee. Because the employee’s supervisor initiated her transfer and there was evidence of retaliatory animus, this case provided an example of the “cat’s paw” in action.
Supervisor justified transfer by pointing to her sexual harassment complaints. The appeals court noted that the only issue contested by the department on appeal was causation. And in the court’s view, a jury need only have taken the employee’s supervisor at his word to find a “but-for” causal connection because he explicitly referred to her complaints when he initiated her transfer process. Indeed, he explained to both his superior and the HR department that her sexual harassment complaints had created a hostile work environment at the Newaygo post and undermined her “credibility” and the continued operation of the post.
Indeed, the court continued, the employee’s status as a repeat complainer so strongly justified her transfer in her supervisor’s eyes that he initiated the transfer process before the second internal investigation had even concluded. And while the TRB made the decision as to where to send the employee, her supervisor’s desire to have her far away was hardly “remote” from the TRB’s proceedings because he and the department’s representative discussed the latter’s testimony before the hearing and the department rep barely mentioned the employee’s seniority (usually a “primary factor” in determining location) and said her “culpability” necessitated the transfer. Given that the TRB hearing was largely devoid of any discussion of the employee’s seniority, a reasonable jury could infer the TRB made its decision based exclusively on her alleged culpability, which included her acts that were protected by Title VII.
Based on all the foregoing, the jury’s finding was neither unreasonable nor “clearly against the weight of the evidence.” Furthermore, the record evidence supported each part of the jury’s award so the district court did not abuse its discretion in denying the department’s motion for a remittitur of the award.
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