746 F.3d 714 (6th Cir. 2014), 13-1640, Laster v. City of Kalamazoo
|Citation:||746 F.3d 714|
|Opinion Judge:||CLAY, Circuit Judge.|
|Party Name:||MARK LASTER, Plaintiff-Appellant, v. CITY OF KALAMAZOO, et al., Defendants-Appellees|
|Attorney:||Richard O. Cherry, KALAMAZOO CITY ATTORNEY'S OFFICE, Kalamazoo, Michigan, for Appellee. Mark Laster, Kalamazoo, Michigan, Pro se.|
|Judge Panel:||Before: BATCHELDER, Chief Judge; SILER and CLAY, Circuit Judges. CLAY, J., delivered the opinion of the court, in which BATCHELDER, C.J., and SILER, J., concurred. BATCHELDER, C.J., delivered a separate concurring opinion. ALICE M. BATCHELDER, Chief Judge, concurring.|
|Case Date:||March 13, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
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Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:11-cv-01061--Janet T. Neff, District Judge.
Plaintiff Mark Laster appeals the district court's order granting summary judgment in favor of Defendants, the City of Kalamazoo and several named individuals, on Plaintiff's race discrimination and retaliation claims. In his Complaint, Plaintiff alleges, inter alia, that Defendants violated 42 U.S.C. § 2000e-3(a) et seq . (" Title VII" ), Mich. Comp. Laws § 37.2101 et. seq . (" Elliot-Larsen Civil Rights Act" ), and 42 U.S.C. § 1983. Specifically, Plaintiff alleges that he was " constructively discharged against his will" and experienced " other adverse job actions" based on racial discrimination and in retaliation for his various complaints of racial discrimination.
For the reasons discussed below, we agree with the district court's conclusion that Plaintiff has not established that he was constructively discharged, and, consequently, that Plaintiff has not shown any " adverse employment action" for the purposes of his Title VII race discrimination claim. However, we find that the district court improperly analyzed--and improperly dismissed--Plaintiff's Title VII retaliation claim.
The district court analyzed Plaintiff's claims only in the context of " Race Discrimination" and " First Amendment Retaliation," but Plaintiff's Complaint, which alleges that Plaintiff experienced " adverse job actions" in " retaliation for prior [discrimination] complaints" and in " violation of 42 USC 2000e-3(a), et. seq .," clearly raises a Title VII retaliation claim. The district court's analysis of Plaintiff's First Amendment retaliation claim (brought pursuant to 42 U.S.C § 1983)
does not obviate the need to analyze Plaintiff's Title VII retaliation claim because the type of activity protected by the First Amendment is different than the type of activity protected by Title VII. Moreover, the district court's analysis of Plaintiff's Title VII race discrimination claim does not provide a sufficient basis for dismissing his Title VII retaliation claim because the two claims have different elements. The " materially adverse action" element of a Title VII retaliation claim is substantially different from the " adverse employment action" element of a Title VII race discrimination claim. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th Cir. 2007). Under the former, Plaintiff need only show " that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N., 548 U.S. at 57 (internal quotation marks and citations omitted). The fact that Plaintiff cannot show that he was constructively discharged is not dispositive of Plaintiff's Title VII retaliation claim where Plaintiff has provided evidence of other adverse actions which raise a genuine issue of fact as to whether or not they satisfy this standard.
For the reasons set forth below, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.
Plaintiff is an African American male who worked as a Public Safety Officer/Emergency Officer (" PSO/EO" ) for the Kalamazoo Department of Public Safety (" KDPS" ) for more than twenty-three years. Plaintiff claims that throughout his employment, he was treated less favorably than similarly-situated co-workers. Specifically, Plaintiff alleges that KDPS subjected Plaintiff to heightened scrutiny, selectively enforced policies against Plaintiff, and was complicit when individual employees harassed and discriminated against Plaintiff.1 Plaintiff alleges that such disparate treatment was attributable, at least in part, to Plaintiff's race or to his complaints about discrimination.
In his briefing before this Court, Plaintiff contends that the below enumerated instances of disparate treatment establish the fourth and final prong of his prima facie Title VII discrimination claim: that Plaintiff was treated less favorably than similarly situated individuals outside of the protected class. We note, however, insofar as Plaintiff alleges that the unfavorable treatment was retaliation for Plaintiff's filing discrimination complaints, some of these same alleged events also establish the " materially adverse action" element of Plaintiff's Title VII retaliation claim. Plaintiff alleges that each of the following was attributable, at least in part, to Plaintiff's race or to his complaints about discriminatory treatment:
1. Evaluation Downgrade. On May 1, 2007, Sergeant Vernon Coakley informed Plaintiff that he was changing Plaintiff's 2006 performance evaluation from " satisfactory" to " needs improvement." Plaintiff complained to Coakley's direct supervisor, Captain Uridge, but Uridge was " complicit in his response." Later, when Plaintiff went to
the KDPS Administration office to review his personnel file, he was told that it was missing, and that Coakley was the last person to have had access to it. After Plaintiff filed a formal grievance contesting the improper evaluation downgrade, KDPS reversed the downgrade and changed Plaintiff's evaluation back to " satisfactory."
2. Request to Attend Outside Training Program Denied. On December 19, 2008, Plaintiff submitted a written request to attend the Fire Department Instructor's Conference (" FDIC" ) for two days in Indianapolis, Indiana. Plaintiff was the first employee from KDPS to request to attend that training program. Plaintiff's request was denied, and no reason was given. Approximately two weeks later, two Caucasian employees were granted permission to attend the FDIC for five days, with all of the costs of their trip paid in full. After learning that his two Caucasian co-workers were approved for a five-day, all-expense-paid trip to attend the program, Plaintiff re-applied. Plaintiff's second application--again requesting permission to attend the FDIC for two days--was approved with the condition that Plaintiff pay fifty percent of his own expenses: four hundred dollars. Plaintiff's Caucasian co-workers were not required to pay any portion of their own expenses for their five-day trip. Plaintiff asserts that Defendants' proffered reasons for the difference in treatment are pretextual, and offers evidence to negate each stated reason. 3. Request to Use Meeting Room Denied. On or about February 12, 2009, Plaintiff submitted a written request to use the large meeting room at the fire station for two hours on February 22, 2009 to host a birthday party for his one-year-old daughter. Although the meeting room was not scheduled to be occupied on the requested date, Plaintiff's request was denied. Plaintiff has produced affidavits to show that the same meeting room has been approved at other times for KDPS employees to host non-work-related events such as " seminars that contained religious themes and speech," " retirement parties that included KDPS personnel and non-KDPS civilians," and school tours for children. 4. Not Invited to Meeting on July 1, 2009. On July 1, 2009, Plaintiff was not informed about a department meeting hosted by Sergeant VanDerWiere to obtain input from KDPS personnel regarding the prospective purchase of a new fire truck. Plaintiff was the only person on the shift who was not invited to the meeting. One of Plaintiff's co-workers, Richard LeRoy, called Plaintiff via cell phone while in the meeting to inform Plaintiff of the meeting in progress. Plaintiff arrived shortly thereafter and participated in the meeting. During the meeting, VanDerWiere reprimanded both Plaintiff and LeRoy for " being rude" and disruptive when they opined that it was unnecessary to purchase a new fire truck instead of updating the existing trucks. 5. Memorandum of Counseling and Suspension. After the July 1, 2009 meeting, VanDerWiere wrote a memorandum to KDPS administrators, in which he stated that both Plaintiff and LeRoy (a Caucasian employee) were disrespectful and disruptive at the meeting. In the memorandum, VanDerWiere " states that LeRoy was the more egregious and disruptive person in the meeting." On April 29, 2009, Plaintiff received a Memorandum of Counseling accusing Plaintiff of violating two general order provisions in the July 1, 2009 meeting. Plaintiff was suspended for Page 721
two days without pay. LeRoy, on the other hand, was never disciplined in any way. After Plaintiff complained of the disparate treatment, the two-day suspension was revoked.
6. E-mail Regarding Children's Playset. On June 22, 2009, VanDerWiere told Plaintiff that Plaintiff had to remove a collapsible play set that Plaintiff kept in the station's storage room for his young children to use when they visited him at work. VanDerWiere told Plaintiff that it was a violation of General Order G-133 to store personal property at the station. In response, Plaintiff asked if he...
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