A recent decision by the Sixth Circuit Court of Appeals illustrates the practical impact of the U.S. Supreme Court’s decision in White v. Burlington Northern & Santa Fe Ry. Co., which established a more lenient standard for demonstrating an adverse employment action in retaliation claims than in discrimination claims. See Michael v. Caterpillar Financial Services (6th Cir. 2007). In Michael, the court applied the Burlington Northern standard and held that conduct that was not sufficient to establish a materially adverse employment action in the employee’s discrimination claim was sufficient to establish such an action in her retaliation claim.
In this case, Michael, an African-American female, was placed on administrative leave for four days because of complaints made about her by her subordinates and because she engaged in an angry confrontation with her manager. Subsequently, the employer gave her a choice between going on a 90-day performance plan or accepting a lateral move without loss of pay or benefits. Michael chose the 90-day performance plan. The plan identified seven areas in which Michael needed to improve over the following 90 days, including notifying management if she would not be in the office, improving her timely attendance at business meetings, refraining from treating her staff as personal assistants, and refraining from contacting her staff outside of normal business hours. Michael successfully completed the performance plan and subsequently transferred to another location where she received pay increases and promotions.
The day after she was placed on administrative leave, Michael filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming a hostile work environment existed at Caterpillar for black employees, and that she was treated less favorably than white managers who had complaints lodged against them by subordinates. The EEOC issued Michael a Notice of Determination and a “right-to-sue” letter.
Michael then sued the employer in federal court, alleging that Caterpillar discriminated against her because of her race, retaliated against her because of the complaints that she had filed, and created a hostile work environment for black employees, all in violation of Title VII and the state civil rights law. The lower court ruled in favor of Caterpillar on all of Michael’s claims, and she appealed. The Sixth Circuit affirmed the lower court’s decision.
In addressing Michael’s race discrimination claim, the court noted that Michael had to show that: she (1) is a member of a protected group, (2) suffered an adverse employment action, (3) was qualified for the position, and (4) was treated differently from similarly situated members of the unprotected class. The Sixth Circuit held that, in the context of a Title VII discrimination claim, most of Caterpillar’s alleged actions against Michael, including the performance plan, did not constitute a materially adverse employment action.
Under relevant Sixth Circuit case law, a materially adverse employment action in a discrimination claim might be demonstrated by “a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss in benefits, [or] significantly diminished material responsibilities.” Here the court noted that the performance plan mostly called for Michael to refrain from her own unreasonable practices. The plan did not otherwise significantly alter Michael’s responsibilities, pay, or work hours, although it did entail monitoring her compliance. Thus, the court found it doubtful that Michael could establish all the elements of a prima facie case of racial discrimination.
However, even if the performance plan was a materially adverse employment action, the court found that Michael failed to show that Caterpillar’s proffered legitimate reasons for the various disciplinary actions taken against her were a pretext to mask either unlawful discrimination or retaliation.
With regard to Michael’s retaliation claim, the Sixth Circuit noted that in Burlington Northern, the U.S. Supreme Court held that a plaintiff’s burden of establishing a materially adverse employment action is less onerous in the retaliation context than in the discrimination context. A materially adverse employment action in the retaliation context consists of any action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Michael court noted that the more liberal definition permits actions that were not materially adverse for purposes of a discrimination claim to qualify as such for a retaliation claim. Thus, according to the court, the retaliatory actions Michael alleged, including her brief placement on paid administrative leave and the 90-day performance plan, appeared to meet the lower bar set by Burlington Northern.
However, the court concluded that while Michael established a prima facie case of retaliation, she failed to rebut Caterpillar’s legitimate, nonretaliatory reasons for its actions (as was the case with her discrimination claim). Therefore, the Sixth Circuit affirmed judgment in favor of the employer on Michael’s retaliation claim.
The court also affirmed judgment in favor of the employer on Michael’s racial harassment claim.
While the employer ultimately prevailed on all the claims, this case illustrates the significant challenge to employers created by the U.S. Supreme Court in Burlington Northern when it expanded the definition of a “materially adverse employment action” for retaliation claims. At present, the same employment action that may not be “materially adverse” in a discrimination context may be “adverse” in a retaliation context. Employers should proceed cautiously when taking any action against employees who have filed a discrimination claim, or made an internal complaint about discrimination. Documentation of the reasons for an employment action taken against an employee, made at the time of such actions, will be key when defending the action against charges of discrimination or retaliation.
If you have any questions regarding this decision or other labor or employment related issues, please contact the Ford & Harrison attorney with whom you usually work or the author of this article, Bill Singleton, an attorney in our Memphis office, at firstname.lastname@example.org or