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In the case of Davis v. Metropolitan Government of Nashville and Davidson County, 2022 U.S. Dist. LEXIS 50820 (M.D. Tenn. 3/22/2022), Plaintiff claimed her supervisor had retaliated against her after she had filed a gender discrimination claim against him, thus creating a hostile work environment in violation of federal civil rights law.
Facts of the Case
From October 1978 to July 2017, Plaintiff was an employee at one of Defendant’s departments, the Metro Parks and Recreation Department (the Parks Department). During her tenure at the Parks Department, Plaintiff worked in the Community Recreation Division and the Revenue Producing Division. Plaintiff had no disputes at her workplace until 2011, when the Parks Department hired Tommy Lynch to be its director. According to Plaintiff, Lynch created a “good ol’ boys atmosphere,” which he formalized in 2013 by merging the application process for two assistant director positions in Special Services and Community Programs.
Plaintiff applied for the position of assistant director for Special Services, which was one level above her then-position as superintendent of Golf. After panel interviews for both assistant director positions (Special Services and Community Programs), the hiring committee ranked Plaintiff as number “one” in the process. However, a longtime male employee, John Holmes, received the Special Services position, while Plaintiff received the Community Programs position. In Plaintiff’s view, her experience in the Revenue division made her the most qualified candidate for the Special Services position. Believing that she had been a victim of gender discrimination, Plaintiff filed a complaint about the job promotion process with Defendant’s human resources (HR) department on June 27, 2013.
Plaintiff asserted that she began experiencing retaliation the following day when Lynch’s assistant refused to allow Plaintiff to access her own personnel file, to which Plaintiff previously had easy access. Immediately thereafter, Lynch threatened Plaintiff’s job, informing her that she might not last in the department for the remaining year and four months until her eligible retirement date.
Soon after, Lynch’s “open door” policy to speak with him, which he granted to everyone in the Parks Department, no longer applied to Plaintiff. Around the same time, Lynch made sure someone else always sat in on his biweekly meetings with Plaintiff. Lynch also spoke with Plaintiff’s peers about her complaint and questioned Plaintiff’s “loyalty” for accusing him of gender discrimination.
In July 2013, Lynch informed Plaintiff that her gender discrimination complaint had been turned over to HR to be investigated. A month later, Plaintiff met with two HR employees to discuss how to stop the retaliation and harassment Lynch was directing at her. At the meeting, Plaintiff explained that she was working in a hostile environment; in response, the HR employees said they would stop the retaliation and harassment against Plaintiff.
In October 2013, Lynch evaluated Plaintiff’s work performance. The scores Plaintiff received were the lowest scores Plaintiff had ever received in her career, as well as the lowest possible on the evaluation form. Plaintiff believed the evaluation was illegitimate and returned it to Lynch. Lynch then amended the evaluation to include higher scores, with the revised score being a 3.31 out of 4. Lynch evaluated Plaintiff again at the end of 2013. Plaintiff’s average score in this evaluation was 3.35 out of 4.
In June 2014, Lynch issued a written reprimand via email to Plaintiff for missing a work meeting. Approximately six months later, Lynch issued another written reprimand via email to Plaintiff, this time for missing a work deadline. Following this second reprimand, Plaintiff spoke with Lynch about the email, and she claims that he spoke to her like a child and dismissed her with a wave of his hand.
For his part, Lynch admitted to “being irate” and raising his voice at Plaintiff and other employees at times. Plaintiff further contends that Lynch did not reprimand other assistant directors for similar conduct, but Lynch claims that he verbally reprimanded other employees for being unprepared at meetings. In addition, Lynch testified that he had issued written reprimands to other employees for unrelated issues.
In July 2015, Lynch completed another work evaluation for Plaintiff. He gave Plaintiff’s performance a 2.88 rating on a scale where two was considered acceptable and three was considered commendable. In his rationale for the score, Lynch wrote:
Sally has done a credible job in Recreation but her relationship with peers in the department and her supervisor continues to deteriorate. She has been reprimanded within the past year; and yet seems to think she is entitled to not respond to her supervisor in certain situations.
Plaintiff, however, disputes that her relationships with peers had deteriorated. A few days after Lynch’s evaluation, Plaintiff requested another meeting with HR to discuss her complaints regarding Lynch.
In February 2016, Lynch appointed Monique Odom as deputy director of the Parks Department. As the deputy director, Odom held an equivalent rank and a functionally similar position in the department as the assistant directors, including Plaintiff.
In April 2016, Lynch informed Plaintiff that she would now be reporting to Odom, who would then report to Lynch. Around the same time, Lynch stopped speaking to Plaintiff except at group meetings, and Plaintiff began having biweekly meetings with Odom instead of Lynch. Plaintiff was the first assistant director supervised by Odom, but Odom eventually supervised all the assistant directors within the Parks Department. Plaintiff expressed to Odom, many times, her concern about the pattern of retaliation, harassment and hostile work environment she felt she was being forced to endure, including the fact that she had to report to Odom.
In early January 2017, Lynch transferred Plaintiff’s assistant of 14 years to another division without consulting or notifying Plaintiff beforehand. Neither Plaintiff nor her assistant was provided with an explanation for the move. Odom, however, said she supported the move and had planned to move this assistant once Lynch retired and she became director of the department.
Later that month, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), arguing that she had been subjected to harassment and intimidation after filing a sex discrimination complaint with HR. A little more than five months later, on July 2, 2017, Plaintiff voluntarily retired.
In April 2017, Plaintiff initiated her lawsuit in federal district court, alleging retaliation under Title VII of the Civil Rights Act. Defendant subsequently moved for summary judgment on all of Plaintiff’s claims.
Summary judgment for Defendant, effectively dismissing Plaintiff’s lawsuit, would be appropriate only if Defendant could show there was “no genuine dispute as to any material fact” and Defendant was, therefore, “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute about a material fact would exist when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” in this case, Plaintiff.
Initially, the federal district court ruled Plaintiff’s retaliation claims based on acts that occurred before March 31, 2016, were time-barred because Title VII required an EEOC complaint to be filed “within 300 days after the alleged employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1).
In addition, the court ruled each of the three discrete acts that occurred after March 31, 2016, were “not retaliatory,” including: the April 2016 placement of Plaintiff under Odom’s supervision, Lynch’s September 2016 written reprimand, and the January 2017 transfer of Plaintiff’s assistant.
The federal appeals court, however, reversed the summary judgment based on Plaintiff’s hostile workplace theory, which was characterized as a retaliatory harassment claim and remanded Plaintiff’s retaliatory harassment claim back to the federal district court. On remand, the federal district court would have to “determine whether the conduct of Plaintiff’s employer, in a cumulative assessment, would have dissuaded a reasonable employee from making a charge of discrimination.”
Four Factors for Retaliation
According to the federal district court, Plaintiff would have to demonstrate the following four factors cited in the Supreme Court’s “McDonnell Douglas framework” to establish a “prima facie” (i.e., legally sufficient) claim of retaliation:
(1) Plaintiff was engaged in a protected activity; (2) the exercise of protected rights was known to the employer; (3) the employer took an adverse employment action against Plaintiff; and (4) there was a causal connection between the adverse employment action and the protected activity.
On appeal, Defendant conceded the first two McDonnell Douglas factors are satisfied because “Plaintiff’s June 2013 gender discrimination complaint constitutes a protected activity about which it knew.” Defendant, however, argued “the third and fourth McDonnell Douglas factors are not met because Plaintiff has not shown a harassing environment that is causally related to her June 2013 gender discrimination complaint.”
Adverse Employment Action
As described by the federal district court, an adverse employment action in the retaliation context is conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Moreover, in determining whether Plaintiff was subjected to a hostile work environment, the court would assess “the cumulative effect of Defendant’s actions as if they constitute one unlawful employment practice.” In so doing, the court would consider more than just employment-related conduct because a charge under 42 U.S.C. § 2000e-3(a) “extends beyond workplace-related or employment-related retaliatory acts and harm”:
We evaluate all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
In addition, the court also would determine “whether Defendant’s conduct included repeated abusive discriminatory comments or treatment.”
In determining whether “Defendant’s conduct might have dissuaded a reasonable worker from making a charge of discrimination,” the federal district court acknowledged “a hostile work environment cannot be said to occur on any particular day.” On the contrary, the court would consider “the entire time period of the hostile environment” if “at least one act contributing to the hostile-work-environment claim occurred within the filing period.”
In this particular case, the court would, therefore, consider actions that took place before March 31, 2016, if those acts were “sufficiently related to those incidents occurring within the [300-day] statutory period as to form one continuous hostile work environment.”
Because the federal district court already had ruled certain acts were “not retaliatory,” Defendant claimed the court should not consider three actions that occurred after March 31, 2016: (1) Odom’s supervision of Plaintiff starting in April 2016; (2) Lynch’s September 2016 written reprimand; and (3) the January 2017 transfer of Benson, Plaintiff’s assistant. The federal district court rejected this argument.
In the opinion of the court, these non-retaliatory actions from June 2013 through January 2017 were still “relevant to determining whether Defendant’s conduct might have dissuaded a reasonable worker from pursuing a discrimination charge”:
Even where one employment action may not rise to the level of an adverse action, multiple incidents taken together might dissuade a reasonable worker from making or supporting a discrimination charge…. Furthermore, the existence of an extended period of time where few (or no) hostile acts take place does not prevent actions occurring before and after that time period from being part of the same hostile work environment.
As a result, the court would consider all acts predating March 31, 2016, as part of the alleged hostile work environment,” as long as those acts were:
Sufficiently related to those incidents occurring within the statutory period as to form one continuous hostile work environment and a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee would believe that the conduct complained of was unlawful.
In this particular instance, the court found Lynch had committed acts both inside and outside the statutory 300-day period that purportedly contributed to a hostile work environment, including: threatening Plaintiff’s job; no longer extending his open-door policy to Plaintiff; questioning Plaintiff’s loyalty in front of her peers; assigning Odom to supervise Plaintiff and transferring Plaintiff’s longtime assistant.
The specific issue before the federal district court was, therefore, “whether the cumulative effect of Defendant’s pre- and post-March 31, 2016 actions created a hostile work environment.” According to the court, there was a “relatively low bar” to satisfy the legal standard as to “what might dissuade a reasonable employee from making a charge of discrimination,” including the following circumstances in this particular case:
Transferring a long-time assistant without explanation, placing an employee under the supervision of a peer, placing an employee on paid administrative leave for a few days, or suggesting that an employee obtain other employment because things are not working out.
As noted by the court: “Even something as seemingly trivial as a supervisor’s failure to invite an employee to lunch could ‘deter a reasonable employee from complaining about discrimination’ in certain circumstances.”
As noted by the court, Plaintiff had filed her gender discrimination complaint in June 2013. Shortly thereafter, the court found “Lynch informed Plaintiff that she might not last in the department until she was eligible to retire.” Further, the court acknowledged that Lynch had:
Questioned Plaintiff’s loyalty for accusing him of discrimination; excluded Plaintiff (and only her) from his open-door policy; and stopped meeting with Plaintiff alone at their bi-weekly meetings.
Under such circumstances, the federal district court found: “A reasonable employee might think twice about pursuing a discrimination complaint if her supervisor, who also happens to be the target of the complaint, then informs the employee that she might not remain with the department.”
With regard to the alleged different treatment of Plaintiff in Lynch’s open-door policy, the court further found “a reasonable worker in Plaintiff’s position might construe this treatment as an attempt to isolate her in the workplace, which also could constitute an adverse action.”
In addition, the court found “Lynch’s decision to meet with Plaintiff only with somebody else present could be reasonably interpreted as an indictment of her honesty.” As characterized by the court, “such a ‘witness’ arguably would be necessary only if Plaintiff could not be trusted to accurately recount the proceedings of her meetings with Lynch.”
The court further noted, “a few months later, Lynch gave Plaintiff the lowest performance evaluation scores she had ever received in more than three decades.” In the opinion of the court: “Such an unexpected evaluation might make a reasonable worker wonder whether her discrimination complaint had something to do with the scores.” According to the court: “This is especially true because Lynch’s subsequent decision to give Plaintiff higher scores for the same evaluation could be seen as calling into question the legitimacy of the original scores.”
Accordingly, the court concluded that the cumulative effect of “Lynch’s actions in April 2016 and January 2017 also could be seen as contributing to an environment that might dissuade a reasonable worker from pursuing a discrimination claim.” In reaching this conclusion, the court further recognized that an “adverse employment action” was indicated by Plaintiff’s having to “report to Odom, a peer who held a functionally similar position within the department as Plaintiff.” According to the court, “this act alone could dissuade a reasonable worker from pursuing a discrimination claim.” In addition, the court found the January 2017 transfer of Plaintiff’s assistant also suggested “an adverse employment action intended to isolate Plaintiff in the workplace.”
Based upon these facts, the federal district court held: “a reasonable jury could conclude that the cumulative effect of all these actions subjected Plaintiff to a workplace environment that might dissuade a reasonable worker from pursuing a charge of discrimination.”
The federal district court then proceeded to consider “the fourth and final McDonnell Douglas factor, causation.” In determining causation of an adverse employment action, the federal district court would consider “the work environment created by the cumulative effect of several actions’’:
[T]he causation inquiry asks whether this work environment was caused by Plaintiff’s June 2013 gender discrimination complaint, not whether any discrete act carried out after March 31, 2016, was caused by the complaint….
A causal connection between an employer’s actions and a protected activity can be established if the adverse action was taken shortly after the plaintiff’s exercise of protected rights….
Where an adverse employment action occurs very close in time after an employer learns of a protected activity such temporal proximity between the events is significant enough to constitute evidence of a causal connection for purposes of satisfying a prima facie case of retaliation.
Under the circumstances of this particular case, the court concluded a reasonable jury could find Plaintiff was subjected to an adverse work environment after her June 2013 discrimination claim until January 2017, when Plaintiff’s longtime assistant was transferred without notice or explanation:
The allegedly hostile work environment here began shortly after Plaintiff filed her gender discrimination complaint, with Lynch threatening Plaintiff’s job, challenging Plaintiff’s loyalty in front of her peers, excluding Plaintiff from his open-door policy, and refusing to meet with Plaintiff alone.
As noted by the court, “these actions occurred within days or weeks after Lynch learned of the discrimination complaint.”
Having found sufficient evidence in the pretrial record to support Plaintiff’s retaliation claim, the federal district court rejected Defendant’s motion for summary judgment, which would allow Plaintiff’s retaliation claim to proceed to trial for consideration by a jury.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)