Labor & Employment Law Daily Sixth Circuit revives bias, reprisal claims of female assistant principal disciplined more severely than male comparator
Friday, April 19, 2019

Sixth Circuit revives bias, reprisal claims of female assistant principal disciplined more severely than male comparator

By Harold S. Berman J.D.

The appeals court reversed in part summary judgment in the employer’s favor on claims brought by a female assistant principal who was disciplined more harshly than her male counterpart for similar infractions.

A female assistant principal who received a poor evaluation, was transferred from a high school to a middle school, and was threatened with discharge after she warned a coworker of an impending negative evaluation and withheld information about the principal’s possible affair will have another chance to prove her Title VII and state-law gender discrimination and retaliation claims, ruled the Sixth Circuit. The appeals court partially reversed a district court’s grant of summary judgment in the school district’s favor, finding that a male comparator who committed similar offenses was disciplined far less harshly, and that the adverse actions occurred shortly after she complained of gender harassment by the principal (Redlin v. Grosse Pointe Public School System, April 16, 2019, Clay, E.).

Tipped off coworker. The employee worked as an assistant principal at a Michigan public high school. In December 2014, another assistant principal told her about his evaluation of the high school’s media specialist. She understood that he intended to be harsh on the media specialist, and told the media specialist to be vigilant. The media specialist discussed the matter with the principal, who told the employee she would be disciplined for telling a staff member about an ongoing evaluation by another administrator.

Gender discrimination complaint. The employee then complained to the deputy superintendent about the principal’s comments, which he understood to be a complaint concerning gender discrimination and harassment. Following an informal investigation, the principal apologized to the employee, but did not admit to harassment.

The deputy superintendent then met with the employee to discuss her wrongful sharing of information with the media specialist, but decided to hold her discipline in abeyance because she was applying for positions in other districts. The employee took his statement that she ultimately would be disciplined unless she found another position by the end of the year as a threat suggesting he wanted her to leave.

Rumor of an affair. In March 2015, the employee and the other assistant principal discussed a rumor circulating that the principal had been together with a teacher in his office after school hours. The deputy superintendent also heard of the rumor, and investigated. When he learned that both the employee and other assistant principal knew of the rumor but said nothing, he told them they acted inappropriately, but did not punish either of them immediately.

However, the employee received a “minimally effective” year-end evaluation rating, but an “effective” rating was sent to the State of Michigan as a “placeholder” pending her job search. The other assistant principal, who was male, simply received an “effective” rating.

Because of the negative evaluation, the employee received only a one-year contract rather than two years, and was subject to termination at the end of the following school year if she did not receive an “effective” evaluation rating. She also was ineligible for pay increases, and was placed on a performance improvement plan.

In June 2015, the superintendent decided to transfer the employee to a middle school because of her gender complaint against the principal and her warning to the media specialist. During the summer, the deputy superintendent asked the employee to resign, but she refused, and so was transferred to the middle school where she received a reduced salary. She ultimately received backpay.

FMLA leave. From November 2015 to March 2016, the employee took FMLA leave due to stress. Because she missed a significant portion of the school year, she was to be given an “interim evaluation” rather than a standard year-end evaluation. However, she ultimately was given a full evaluation with an “effective” rating, which enabled her to receive a two-year contract and be taken off her performance improvement plan.

The employee sued the district, alleging gender discrimination and retaliation in violation of Title VII and Michigan’s Elliott-Larsen Civil Rights Act, and FMLA retaliation. The district moved for summary judgment, which the district court granted. The employee appealed.

Gender discrimination. The Sixth Circuit reversed the district court’s dismissal of the employee’s gender discrimination claims. Although the employee received backpay, she was transferred to a less prestigious middle school position with a lower pay grade, and so suffered an adverse employment action. Additionally, her “minimally effective” performance evaluation constituted an adverse employment action because it resulted in a shorter contract, ineligibility for pay increases, placement on a performance improvement plan, and being threatened with termination absent an improved rating.

The employee also showed she was treated differently from the male assistant principal, whom the court found to be a similarly situated comparator. Although the male assistant principal also was questioned as to why he did not reveal information concerning the principal’s possible relationship, he was never disciplined, was not transferred, and received an “effective” evaluation rating.

Like the employee, he also had previously warned a coworker about a potentially negative consequence, even though the assistant superintendent warned him not to communicate with the coworker. However, even though he lied to the deputy superintendent about warning the coworker, he merely received a letter of concern in his file. In contrast, after the employee warned the media specialist, she was required to write a statement about the incident, and told she would be disciplined unless she obtained another job. She also was asked to resign, and was transferred.

The appeals court also found it disputed whether the school district’s stated reasons for her transfer and negative evaluation were pretextual. The school district claimed it transferred the employee because of her gender complaint and warning to the media specialist, and disciplined her more harshly than the male assistant principal because she engaged in more incidents of unethical behavior.

However, the deputy superintendent admitted the male assistant principal both tipped off a coworker and lied to him about it. In contrast, the employee did not disobey a direct order, and confessed when confronted. The deputy superintendent testified that the employee was competent and hard-working, so it was unclear why she received a “minimally effective” rating, while her male counterpart received an “effective” rating.

Retaliation. The appeals court also reversed the district court’s dismissal of the employee’s Title VII and state law retaliation claims. The employee’s complaint to the deputy superintendent was effectively a complaint to HR regarding Title VII violations. She was subsequently asked to resign, given a poor evaluation, and transferred. The school district did not conclusively show that these actions were justified by her warning the media specialist, or withholding information about the principal’s possible relationship. Additionally, the superintendent testified he transferred her in part because of her “gender complaint.”

There also was temporal proximity between her complaints and the adverse actions. The deputy superintendent’s threat of discipline unless she found another position occurred shortly after she complained, and her poor review occurred only eight months later.

FMLA retaliation. Finally, the appeal court affirmed the district court’s dismissal of the employee’s FMLA retaliation claim. The employee could not show the school district took any adverse action against her for taking FMLA leave. She took FMLA leave after she received her poor review, was asked her to resign, and was transferred.

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