Employment Law Daily Transfer to ease ‘tensions’ could be retaliatory; reprisal claim revived
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Thursday, August 2, 2018

Transfer to ease ‘tensions’ could be retaliatory; reprisal claim revived

By Lisa Milam, J.D.

An African-American employee who was denied several requests to be reclassified to a higher position, and was then placed on paid leave and forced to undergo a fitness-for-duty exam due to her erratic behavior, could not convince the Sixth Circuit that a district court had erroneously granted summary judgment to her employer of 30 years on her race and age discrimination claims. However, a divided appellate court panel did find she had a plausible retaliation claim, based on her forced transfer upon her return to work, ostensibly to avoid any tensions between the coworkers who had raised concerns, or the supervisors who were the subject of her EEOC complaint. The agency had weighed in as amicus in the case (Rogers v. Henry Ford Health System, July 31, 2018, Moore, K.).

Reclassification denied. Over her 30 years with the Henry Ford Health System, the employee held a number of positions, mostly HR roles. During the events that transpired here, she was a Consultant in the Organizational Human Resources Development (OHRD) Department, despite lacking the requisite college degree for the position. (The employer waived this requirement because she otherwise met the job requirements before the position had been retitled.) After five years, she sought reclassification to a Senior OHRD Consultant position but was denied. Meanwhile, her supervisors raised issues about her performance: She was prone to harmful gossip—spreading negativity among coworkers—and she was told she tended to worry more about other people’s job performance than her own. She reacted angrily to these assertions, and her supervisor, concerned for the employee’s “emotional and physical well-being,” as well as that of her coworkers, referred her to an Employee Assistance Program (EAP).

Two years later, when two Senior Consultants departed, the employee took on some of their duties during the staff shortage, and again sought reclassification since she was performing these more senior functions. Again, she was denied. She asked “the HR person for HR” if it was because of her age (she’s in her sixties). “[I]t has nothing to do with your age,” she allegedly was told, “it’s because you’re black.” (This account was disputed; the speaker insisted the “because you’re black” comment referenced an incidence of discrimination years earlier.) At any rate, the position required an M.A., M.B.A., or M.S., so she was told she could only be reclassified if she earned the degree, or if the employer removed the education requirement from the job description. The employee filed an internal complaint of race and age discrimination, which was deemed unfounded after an investigation. A month later, she filed an EEOC charge.

Coworker concerns. Subsequently, her coworkers began reporting her odd and erratic behavior, and their concerns of whether she might pose a threat. One coworker—a “pretty good work friend”—was upset; the employee had named him in her complaint as another African-American employee who faced race discrimination. Shaking, he told his supervisor he feared what she is capable of; he referenced an incident in which the employee had smashed in the car windows of her husband’s mistress with a baseball bat, and said she was the type that would “go postal” and show up to work with a gun.

Forced transfer. After further inquiries, the employer placed the employee on paid leave and required her to submit to a fitness-for-duty exam before returning. She was cleared to return to work, then she filed a subsequent EEOC charge alleging retaliation. A week after her return, she had been given several options: go back to her position (though the employee insisted this had not been one of the options on the table); transfer to another department, or take severance. She chose the transfer and remains in the position. She earns the same pay, but she contends it is an inferior position within the company structure.

The EEOC had found probable cause to support her retaliation complaint; the district court did not, granting summary judgment to the employer on all of her claims. The Sixth Circuit reversed as to her retaliation claims.

Discrimination. The employee’s race discrimination allegations were premised on the employer’s failure to reclassify her to the Senior Consultant title. It was undisputed she performed some of the work of the departed Senior Consultants, but the parties disagreed whether she performed all of the duties of the position. The employer argued she did not have the educational credentials for the job anyhow, but the employee balked, contending that the company waived the degree criteria so often that it was essentially a “sham requirement.”

The crux of the matter, as defined by the appeals court, was whether the employer also required other similarly situated individuals outside her protected class to meet minimum education requirements for their positions. The comparators were whittled down to two employees, both of whom were in jobs that ostensibly required bachelor’s degrees, which they lacked. Of course, the employee had also been in a job that required a bachelor’s degree despite lacking one, so there was no more favorable treatment there. Apparently, the appeals court surmised, the education requirement will be waived for one degree less than the stated qualifications (i.e. a high school diploma and no bachelor’s); but to waive two degrees was too far a jump for the employer. Because the employee couldn’t point to a comparator who leapt over two degree requirements, her discrimination claim was properly rejected by the court below.

Retaliation. As for her retaliation claims, though, the district court erred. It demanded that the employee show she suffered a “significant change in employment status” in order to establish an adverse job action. However, all that is needed to state a prima facie retaliation claim is a “materially adverse” action. And a reasonable factfinder could point to several: She was referred for a fitness-for-duty exam, placed on leave, escorted out of the office, and had her badge removed and her email set to send out an automated reply that she was no longer with the employer (albeit that was a mistake that was quickly corrected).

Further, upon returning, she was (arguably) given the choice of taking a severance package or an (arguably) inferior position. “The cumulative effect of these actions is sufficient such that a jury could find that they would have dissuaded a reasonable employee from making a charge of discrimination,” the appeals court found. Moreover, there was ample evidence of causation, based in part on temporal proximity (the adverse actions began to unfold just two months after she filed her complaint).

As for pretext, the appeals court found none in the employer’s decision to require the fitness-for-duty exam. There were numerous reports of her erratic behavior and a documented history of outbursts. But the forced transfer was more problematic. The official who gave her the “option” to transfer suggested he did so because, with the EEOC complaint still outstanding, he thought she might be uncomfortable working directly with the subjects of her complaint and the coworkers who registered concerns about her. This was sufficient evidence to suggest that the employer, in taking the adverse action, was motivated by her EEOC charge.

Partial dissent. Judge Kethledge dissented from the majority’s holding as to the retaliation claim. He argued that the employee presented no evidence that the person who offered her the transfer had any animus toward her, and he was confident that the stated motive was a benign one: to defuse the tension between the employee and the coworkers who had raised concerns about her. True, the employee had been cleared for duty so seemingly posed no threat, Judge Kethledge acknowledged, but he would not find the employer’s abundance of caution in offering the transfer to be actionable retaliation. The goal was not reprisal, in his view—it was “to keep the peace.”

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