STATEMENT OF INTEREST

Congress established the Equal Employment Opportunity Commission (“EEOC”) to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal antidiscrimination statutes. This appeal presents important issues concerning the proper standard for establishing a prima facie case of retaliation under Title VII. Specifically, this appeal raises the issue of whether the district court erred in applying the adverse employment action standard for a discrimination claim under 42 U.S.C. § 2000e-2(a) to the plaintiff’s retaliation claim under 42 U.S.C. § 2000e-3(a), given the Supreme Court’s holding in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that the standards are different and that the retaliation provision prohibits any action that would dissuade a reasonable worker from making or supporting a charge of discrimination. This appeal also implicates the standard for establishing causation for purposes of a prima facie case and for establishing a jury question as to pretext. Because of the importance of these issues, the EEOC offers its views to the Court. Fed.R.App.P. 29(a).

1. The Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), prohibits employer actions that would dissuade a reasonable employee or applicant from complaining of discrimination. Did the district court err by failing to apply Burlington Northern and instead holding that only those actions that impact the terms and conditions of a plaintiff’s employment are actionable?

2. Could a jury find that a reasonable employee would be dissuaded from complaining of discrimination by being suspended indefinitely with pay, referred to an Employee Assistance Program for a fitness-for-duty examination, escorted from the building and having her badge taken away, and/or being transferred to a less prestigious position with less responsibility?

3. Did the plaintiff adduce sufficient evidence of causation to establish a prima facie case of retaliation where she suffered retaliatory acts within three months of filing her EEOC charge, and could a reasonable jury find on this record that the employer’s stated reasons for the adverse actions were a pretext for retaliation?

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiff Monica Rogers, who is African-American, began working for Defendant Henry Ford Health System (HFHS) in 1981. She held several positions in the Human Resources Department. In 2007, she became a consultant in the Organizational Human Resources Development Department (“OHRD Consultant”). She conducted training and developmental needs analyses and developed and implemented training. Job Description, R.48-5, PageID#773. Although the position required a Bachelor’s Degree, which she lacked, Rogers was grandfathered in. Rogers-Depo.189-90, R.48-2, PageID#737. Rogers initially reported to Laurie Jensen, the OHRD Director. Jensen-Depo.60, R.48-2, PageID#726. In 2009, Rogers began reporting to Monica Jackson-Lewis, an OHRD manager; in February 2013, she began reporting to Barbara Bressack. Opinion, R.64, PageID#1940. Both Jackson-Lewis and Bressack reported to Jensen. Id. Between 2008 and 2012, Rogers earned positive performance reviews. Id.

Jensen and Rogers had a tumultuous relationship. According to Jensen, Rogers engaged in intimidating conduct from “day one,” such as demanding a specific office; according to Rogers, she requested, not demanded the office, which she had previously occupied. Jensen-Depo.140, R.48-7, PageID#782; Rogers-Decl. ¶140, R.55-7, PageID#1396. In May 2008, Jensen yelled at Rogers and others. Rogers later told Jensen, privately, that if she (Rogers) had acted like that, she would “be perceived as an angry black woman.” Rogers-Decl. ¶8, R.55-7, PageID#1370. Jensen said, “you girls always use that as a cop out.” Rogers-Decl.¶9, R.55-7, PageID#1371. According to Rogers, this incident launched a series of retaliatory actions by Jensen, including soliciting negative comments about her and influencing Jackson-Lewis to do the same. Id. ¶10.

During the next few years, Rogers continued to speak up about racial discrimination. She also continued to excel at work. For her 2010 review, Jackson-Lewis gave Rogers an overall score of “3.48” (with 3.0 “meets expectations” and 4.0 “exceeds expectations”), which included a “3.0” for “Displays a Positive Attitude” and a “4.0” for “Commit to Team Members.” 2010 review, R.55-13, PageID#1444. Despite the positive review, on July 20, 2010, Jackson-Lewis filled out an “Employee Assistance Program Formal Disciplinary Action Referral” for Rogers. In the document, which Jackson-Lewis never gave Rogers, Jackson-Lewis wrote that Rogers had a “victim mentality resulting in obvious anger” and mood swings. Referral, R.48-13, PageID#825; Rogers-Decl. ¶¶43-45, R.55-7, PageID#1379; Jackson-Lewis-Depo.72, R.48-10, PageID#803. The document also states that Rogers was given verbal and written warnings, but Rogers never received them. Rogers-Decl.¶54-55, R.55-7, PageID#1381.

In 2012, two Senior OHRD Consultants departed. Rogers took on their duties, which Jensen noted in her 2012 evaluation rating her “Outstanding.” Rogers-Decl. ¶¶74-78, R.55-7, PageID#1384-85; Jensen-Notes, R.48-20, PageID#899. In December 2012, Rogers consulted with Jan Harrington-Davis, the Director of Employee Relations and Diversity Office, about how she was doing the duties of a Senior OHRD Consultant but was not receiving the commensurate pay or title. Rogers-Decl. ¶82, R.55-7, PageID#1385-86. Rogers asked if this was due to her age. Harrington-Davis laughed and said it was because Rogers is black. Id. Harrington-Davis agreed that Rogers deserved to be a Senior OHRD Consultant. Id.

In January 2013, Rogers met with Jensen, who also agreed that Rogers was doing the job of a Senior OHRD consultant. Rogers-Decl. ¶83, R.55-7, PageID#1386. Jensen said the only issue was that Rogers lacked the Master’s Degree required for the position. Jensen suggested that they meet with Harrington-Davis to see what could be done. Id. The meeting was set up, but Harrington-Davis seemed to reverse course, saying Rogers could be promoted to Senior OHRD Consultant only if she obtained her Master’s Degree, or if the company revised the duties and requirements of the position. Rogers-Decl.¶85, R.55-7, PageID#1386; Opinion, R.64, PageID#1941.

Rogers submitted a complaint to Derick Adams, the Vice President of Human Resources, alleging, inter alia, race discrimination, pointing out that six Caucasian employees had been re-classified to higher positions, despite lacking the required qualifications. Complaint, R.48-16, PageID#833-35. Adams asked the Deputy General Counsel of Health Alliance Plan (“HAP”), a subsidiary company, to investigate. Adams-Depo.10-12, R.48-18, PageID#841. The investigation concluded that no discrimination occurred.

On July 3, Rogers filed an EEOC charge alleging race discrimination and retaliation. Charge, R.48-21, PageID#902. According to Jensen, on September 6, an employee named Patrick Payne came to her office stating he was upset that Rogers had named him in her EEOC proceedings. Notes, R.48-22, PageID#904. On September 9 Payne returned to Jensen’s office after talking with Rogers. Id. According to Jensen, Payne was “visibly shaken” and said Rogers was “crazy” and had done “crazy things like the time she took a baseball bat and smashed out the car windows of some woman she thought was having an affair with her husband.” Id. Jensen recalled that Payne also said that Rogers was the “type to go ‘postal’ and bring in a gun to work and start shooting,” and that he told Rogers to “stay the ‘f’ away from me.” Id. According to Payne, he “most likely” said “the whole situation is crazy” and that Rogers could go postal. Payne-Depo.93-95, R.48-23, PageID#911. But Payne denied saying he told Rogers to “stay the ‘f’ away,” that he was physically shaking or nervous when talking to Jensen, or that he feared for his safety. Payne-Depo.66, 98-99, R.55-3, PageID#1248,1256.

Other employees also voiced concerns. Bressack told Jensen that Rogers called Bressack and Jensen “liars” and said “justice will be served.” Jensen-Depo.177, R.48-7, PageID#786. An OHRD consultant named Karen Giovannini told Jensen that during a meeting Rogers was “very euphoric and very out of sorts,” laughing loudly, swaying back and forth, and touching another employee. Giovannini-Depo.7-8, R.48-24, PageID#915. Giovannini told Jensen that she was concerned, as she had never seen Rogers acting like that. Id. But Giovannini never suggested to Jensen that Rogers was capable of violence. Giovannini-Depo.11, R.48-24, PageID#916. An employee named Lamya Yelda, who has “always gotten along with Monica,” told Jensen that she kept to herself because she heard that Rogers engaged in strange behavior. Yelda-Depo.5-7, R.55-17, PageID#1474-75.

Rogers denies telling anyone at work that she used a baseball bat on any car belonging to anyone having an affair with her husband. Rogers-Decl. ¶145, R.55-7, PageID#1397. She also denies threatening anyone or suffering from mood swings. Rogers-Decl. ¶¶147, 149, R.55-7, PageID#1398. While she admits telling Bressack that Jensen tells lies, she said so in the context of Jensen’s misrepresentations about Rogers’s duties as an OHRD Consultant. Rogers-Decl. ¶141, R.55-7, PageID#1396-97. Rogers said “justice will be served” only within the context of her discrimination and retaliation charge. Rogers-Decl. ¶142, R.55-7, PageID#1397.

Jensen brought her concerns to her supervisor, Kathy Oswald, Senior Vice President and Chief Human Resources Officer. Jensen-Depo.169-171, R.48-7, PageID#785. According to Oswald, Jensen said people “were afraid of Monica and worried for their safety.” Oswald-Depo.13-14, R.48-26, PageID#928. Jensen mentioned Rogers’s “up and down” behavior, her comment that “someone was going to pay for the decisions that were made downstairs,” and that Rogers “took a baseball bat to her husband’s girlfriend’s” property. Oswald-Depo.14-15, R.48-26, PageID#928.

After talking to Oswald, Jensen spoke to Adams. According to Adams, Jensen said Rogers was erratic and confrontational and she feared for her safety. Adams-Depo.15-16, R.48-18, PageID#842. At his deposition, Adams equivocated about whether Jensen mentioned the “going postal” comment and said he does not recall if he knew about the baseball incident, but he said it played no role in his decision. Compare Adams-Depo.41-45, R.48-18, PageID#1273-74, with Adams-Depo.54, R.48-18, PageID#1276; see also Adams-Depo.25, R.48-18, PageID#1269. But Jensen did tell him that Payne, Jackson-Lewis, and Bressack had raised concerns. Adams-Depo.54, R.48-18, PageID#1276.

Adams asked several employees, including Payne, to fill out an “Impaired Healthcare Worker Behavioral Observation Checklist and Fitness for Duty Evaluation.” Payne completed the form indicating that Rogers’s demeanor was “cooperative,” “polite,” and “calm.” Form, R.55-4, PageID#1260-61. He did not check the boxes for any negative conduct, such as “erratic,” “temper outburst,” “hostile,” “argumentative,” or “threatening.” Id. In the comment box, he wrote that Rogers felt she was treated differently, subject to more restrictive rules than others, and held to a higher standard. Id. Adams testified that when he read Payne’s description of Rogers—as polite, calm and cooperative—he questioned Jensen’s credibility. Adams-Depo.29-30, R.48-29, PageID#1270 (adding that he saw Payne’s form before suspending Rogers).[2]

On September 11, Adams called Rogers into a meeting. He told her that they thought she might pose a threat and that she was therefore being referred to EAP for a fitness-for-duty exam and suspended with pay. Adams-Depo.65-66, R.55-5, PageID#1279. Adams could not provide any specific examples of Rogers’s allegedly threatening conduct, saying only that “people feel like you’re up and down.” Complaint, R.56-13, PageID#1605. Adams escorted Rogers out of the office and took her badge away. Adams-Depo.67, R.55-5, PageID#1279. She was also denied computer access, and emails sent to her received a reply message stating that she was no longer with HFHS. Rogers-Decl. ¶¶117-118, R.55-7, PageID#1392-93; email, R.56-12, PageID#1603.

On September 20, Rogers saw HFHS’s doctor, Dr. Bodnar, for the fitness-for duty exam. He cleared her to return to work, Bodnar-Report, R.48-29, PageID#951, saying, “I don’t know why they sent you down here,” and he apologized to her. Rogers-Depo.254, R.48-2, PageID#747. On September 24, Rogers filed a second charge of discrimination alleging that the removal from her position and paid leave were retaliatory. 9/24/13 charge, R.56-14, PageID#1607.

On October 2, Rogers met with Adams and Harrington-Davis. Despite having been cleared to return, Adams said her co-workers had “gone through enough” and Rogers could either transfer with the same pay to an HR “Business Partner position” at HAP or accept a severance package. Rogers-Depo.255-57, R.48-2, PageID#747-748. Adams said they offered Rogers the transfer because “we knew at that point that she had an outstanding EEOC complaint and we just thought that would give her kind of some space from all that.” Adams-Depo.76, R.48-18, PageID#845. According to Adams, he also told Rogers she could return to OHRD, Adams-Depo.77, R.48-18, PageID#846, but Rogers denies this.

Rogers accepted the HAP Business Partner position. In her declaration, Rogers stated that this position was not as rewarding as OHRD Consultant. She explained that as an OHRD Consultant, she had a “high-profile position” with exposure to the top executives; facilitated communications between upper management and staff; prepared the company’s top executives to present in videos and at meetings (including the CEO and senior vice presidents); and worked with HR colleagues at the company’s “nerve center” in Detroit. Rogers-Decl. ¶¶128-135, R.55-7, PageID#1394-95. In contrast, in her HAP Business Partner position, Rogers rarely works with the company’s executives; her exposure at the company is minimal; her role within the company is diminished and has devolved to doing employee relations and union work; she rarely deals with the company’s executives; she was assigned duties in Dearborn and Southfield; and her career has been impacted. Id. Rogers requested training in her new position, which was denied; she believes it was denied with the hope that she would fail in her new position. Rogers-Decl. ¶126, R.55-7, PageID#1394. Adams became Rogers’s supervisor and describes her as “very professional” and a good employee. Adams-Depo.37-38, R.55-5, PageID#1272.

The EEOC investigated Rogers’s second charge and found reasonable cause to believe that the paid administrative leave and reassignment were retaliatory. Determination, R.56-15, PageID#1610. Rogers filed a Title VII suit alleging, inter alia, retaliation. HFHS filed a summary judgment motion arguing that Rogers failed to establish a prima facie case because she could not show an adverse action or a causal connection. HFHS did not cite the Burlington Northern standard for a materially adverse action. Instead, it recited the standard for a discrimination case: that the employee show an “adverse employment action,” i.e., “‘a materially adverse change in the terms and conditions of [a] plaintiff’s employment.’” SJ-Brief, R.48, PageID#713 (quoting Crane v. Mary Free Bed Rehab. Hosp., 634 F. App’x 518, 523 (6th Cir. 2015)). HFHS also argued that Rogers failed to establish a jury question as to pretext. Rogers’s response cited Burlington Northern’s materially adverse action standard and argued it was satisfied. SJ-Response, R.55, PageID#1217. She also argued that she otherwise established a prima facie case and a factual question as to pretext.

B. District Court’s Decision

The district court granted HFHS’s summary judgment motion. Opinion, R.64, PageID#1939-55. Under the heading “Retaliation,” the district court purported to set out the prima facie requirements for a “retaliation claim” but then stated that to establish a “prima facie case of race discrimination” a plaintiff must show an “adverse employment action.” Opinion, R.64, PageID#1949 (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). Under a sub-heading labeled “Adverse Employment Action,” the court relied on an ADA discrimination case to define an adverse employment action as “‘a materially adverse change in the terms or conditions of employment.’” Opinion, R.64, PageID#1950 (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)). Quoting the tangible employment action standard from Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998), for determining liability for a supervisor’s harassment, the district court next stated that “[a]n adverse action ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,’ and . . . typically ‘inflicts direct economic harm.’” Opinion, R.64, PageID#1950.

The district court then held that an EAP referral for a fitness-for-duty exam is not an “adverse employment action.” Opinion, R.64, PageID#1951. Noting the close temporal proximity between Rogers’s charge and her suspension/fitness-for-duty referral, however, the court went on to consider pretext. Id. The court concluded that Rogers failed to show a factual question as to whether the reason given for the referral – that co-workers reported she was unstable and threatening – was a pretext for retaliation. Opinion, R.64, PageID#1951-53.

The court also held that Rogers’s transfer did not constitute an “adverse employment action” because it was not a demotion, did not result in a pay decrease, and did not involve a less significant title or function. Opinion, R.64, PageID#1953-54. In fact, the court noted, Rogers had received merit raises after her transfer. The district court’s only authority for its ruling was “Kauffman v. Kent State University, 21 F.3d 428 (6th Cir. 1994),” which is actually an unpublished, per curiam age discrimination case rejecting the plaintiff’s claim that her transfer constituted a constructive discharge. Opinion, R.64, PageID#1954.

Rogers filed a reconsideration motion, which the court denied. Reconsideration-Opinion, R.69, PageID#2241-44.

ARGUMENT

Summary judgment should be reversed because the district court applied an erroneous legal standard in evaluating Rogers’s Title VII retaliation claim.

Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), makes it unlawful “for an employer to discriminate against any of his employees or applicants” for opposing an unlawful practice or participating in an activity protected by Title VII. To establish a prima facie case of retaliation, a plaintiff must show: (1) she engaged in protected activity; (2) the employer knew of the protected activity; (3) she experienced an adverse action; and (4) a causal link. See Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). Once a plaintiff establishes the prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. Id. The plaintiff then bears the burden of showing that the proffered reason was not the true reason and that, instead, retaliation was the reason for the action. Id. at 730-731 (adding that under Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), retaliation claims are evaluated under the “but-for” standard of causation).

In this case, the district court granted summary judgment on the ground that Rogers failed to establish the third prong of the prima facie case, an adverse action. The court erred, as it applied the more stringent standard that applies to discrimination cases under 42 U.S.C. § 2000e-2(a), rather than the less stringent standard articulated by the Supreme Court in Burlington Northern for retaliation claims under 42 U.S.C. § 2000e-3(a). Viewed under Burlington Northern’s standard, summary judgment was inappropriate because a reasonable jury could find that Rogers’s EAP referral and indefinite paid suspension pending a fitness-for-duty exam, as well as her transfer, were materially adverse actions because they would have dissuaded a reasonable employee from complaining of discrimination. Contrary to HFHS’s arguments below, Rogers also adduced sufficient evidence of causation and pretext to overcome summary judgment.

A. Under Burlington Northern, the standard for an adverse action is whether a reasonable worker would have been dissuaded from complaining of discrimination.

The district court erred by applying Title VII’s discrimination standard for an adverse action rather than the retaliation standard. The standards are different. Title VII’s antidiscrimination provision, 42 U.S.C. § 2000e-2(a), forbids employers from refusing to hire, or discharging, an individual, or discriminating against any individual “with respect to his compensation, terms, conditions, or privileges of employment” based on a protected trait. In contrast, Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), forbids employers from “discriminat[ing] against” an individual who opposes an unlawful practice or has filed a charge, testified, assisted, or participated in a Title VII investigation or proceeding.

Prior to the Supreme Court’s decision in Burlington Northern, this circuit and others had held that the standard for establishing an adverse action under the antidiscrimination and antiretaliation provisions was the same: a plaintiff had to show that the challenged action had an adverse effect on the terms, conditions, or benefits of employment. See Burlington N., 548 U.S. at 60. In Burlington Northern, however, the Supreme Court rejected that interpretation. Focusing on the statute’s text, the Court stated that the antidiscrimination provision is limited to “actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the antiretaliation provision.” Id. at 62. After reviewing the objective of the antiretaliation provision, which is to ensure access to remedial mechanisms, the Court held that “purpose reinforces what language already indicates, namely, that the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 64. Thus, the Court concluded, the antidiscrimination and antiretaliation provisions “are not coterminous,” as “the antiretaliation provision extends beyond workplace-related or employment-related” harms. Id. at 67 (explicitly “reject[ing]” the Sixth Circuit’s view that the two provisions forbid “the same conduct”).

Having determined that the antiretaliation provision is not limited to actions affecting the terms and conditions of the workplace, the Court next addressed how harmful a retaliatory act must be in order to be actionable. The Court concluded that the antiretaliation provision broadly protects against actions that are “materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks and citations omitted). This “material adversity” standard screens out trivial harms, such as “petty slights” and “minor annoyances,” which are unlikely to deter victims of discrimination from complaining, from significant harms. Id. The standard focuses on the “reactions of a reasonable employee,” the Court said, because an objective standard is justiciable. Id. The Court stressed that “[c]ontext matters,” as the “significance of any given act of retaliation will often depend upon the particular circumstances.” Id. at 69 (relying on Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998)).

Applying its newly-articulated standard to the case before it, the Supreme Court held that the jury was entitled to find that the plaintiff’s reassignment from forklift operator to track laborer was materially adverse because the latter position was “more arduous and dirtier,” less prestigious, and objectively considered a worse job, even though the positions had the same pay grade and category. Id. at 71. Likewise, the Court held that the jury reasonably found that the plaintiff’s thirty-seven day suspension without pay constituted a materially adverse action, even though she was later reimbursed. See id. at 72-73. The Court stressed that the plaintiff, and her family, had to live for thirty-seven days without a pay check, not knowing “whether or when [plaintiff] could return to work.” Id. at 72.

The district court appeared entirely unaware of Burlington Northern although it was decided more than a decade ago and was cited in Rogers’s summary judgment response. The district court instead applied the adverse employment action standard governing antidiscrimination cases brought under 42 U.S.C. § 2000e-2(a). The district court thus erred, as Burlington Northern explicitly rejected the notion that the two provisions prohibit the same conduct.

We note that although the actions Rogers challenge concern her employment, the district court erred in stating that a prima facie case of retaliation requires an “adverse employment action,” since Burlington Northern held that challenged acts need not concern employment. This Court usually cites the standard correctly, but several post-Burlington Northern opinions mistakenly refer to an adverse “employment” action, even when otherwise applying Burlington Northern’s dissuade-a-reasonable-person standard. See, e.g., Laster, 746 F.3d at 731 (citing Burlington Northern, but referring to a plaintiff’s burden of establishing a “materially adverse employment action”); Lee v. Cleveland Clinic Found., 676 F. App’x 488, 499 (6th Cir. 2017) (“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.’”). This Court may therefore want to clarify that the antiretaliation provision does not require an adverse “employment” action.

The district court further erred in describing what kinds of harms are forbidden by the antiretaliation provision. Relying on discrimination cases, pre-Burlington Northern retaliation cases, and a Supreme Court case discussing the tangible employment action standard relevant to determining employer liability in supervisor harassment cases, the court held that “[a]n adverse action ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,’ and . . . typically ‘inflicts direct economic harm.’” Opinion, R.64, PageID#1950 (quoting Ellerth, 524 U.S. at 761-62)). This is not the standard for retaliation claims. Rather, Burlington Northern held that the antiretaliation provision prohibits any action that would dissuade a reasonable employee from complaining of discrimination. As this Court has recognized, under Burlington Northern the “burden of establishing a materially adverse . . . action” is thus “less onerous in the retaliation context than in the antidiscrimination context.” Laster, 746 F.3d at 731 (citation omitted). The district court’s failure to recognize this, and its application of the more “onerous” adverse action standard that applies to Title VII’s antidiscrimination provision, was error.

B. A jury could find that Rogers’s suspension and EAP referral for a fitness-for-duty exam and her transfer were materially adverse actions.

Viewed under the proper standard, a jury could find that Rogers suffered materially adverse actions. After filing a charge of racial discrimination, Rogers was called into a meeting and told she was being referred to EAP for a fitness-for-duty exam and was suspended with pay. She was then escorted out of the office, her badge was taken away, she was denied computer access, and emails sent to her received a reply message stating that she was no longer with HFHS. Under Burlington Northern, a reasonable jury could easily determine that these were non-trivial actions that would dissuade a reasonable worker from complaining of discrimination. 548 U.S. at 68; see generally Laster, 746 F.3d at 732 (holding that a jury could find that plaintiff suffered a materially adverse action where she faced heightened scrutiny, received “frequent reprimands for breaking selectively enforced policies,” was more harshly disciplined and was denied training, and was “forced to attend a pre-determination hearing based on unfounded allegations of wrongdoing”). Specifically, a jury could find that being escorted from the office and having one’s badge taken away would be humiliating. A jury could also find that a reasonable worker would be distressed to be suspended, even with pay, pending a fitness-for-duty examination, not knowing when, or if, she would ever return to work, especially where the company’s email system stated she was no longer employed by HFHS. See Burlington N., 548 U.S. at 72-73 (holding that “indefinite” unpaid suspension constituted a materially adverse action and noting that neither the plaintiff nor her family “kn[e]w during that time whether or when [she] could return to work”).

In reaching a contrary conclusion, the district court relied on two cases. First, the district court cited its own unpublished opinion in Choulagh v. Holder, No. 10-14279, 2012 WL 2891188 (E.D. Mich. July 16, 2012), aff’d, 528 F. App’x 432 (6th Cir. 2013). In Choulagh, this Court affirmed the district court’s holding in a retaliation case that an EAP referral was not an adverse action. However, neither the district court nor this Court cited Burlington Northern. Instead, both courts applied the adverse employment action standard for discrimination claims. See 2012 WL 2891188, at *8 (relying on Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996), a disability discrimination case, for the proposition that “an adverse employment action” requires a materially adverse change in the “terms of his employment”); 528 F. App’x at 438 (relying on Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999), a discrimination and retaliation case, for the proposition that an “adverse employment action” includes termination, demotion, a material loss of benefits, or significantly diminished material responsibilities). Thus, neither the district court nor this Court considered in Choulagh whether an EAP referral would dissuade a reasonable worker from filing a charge.

The district court also cited Stone v. Board of Directors of the Tennessee Valley Authority, 35 F. App’x 193 (6thCir. 2002). The court’s reliance on Stone was misplaced. Stone is a pre-Burlington Northern retaliation case holding that a fitness-for-duty exam did not constitute an adverse action because it did not affect “the terms and conditions of plaintiff’s employment.” Id. at 200. But, as stated, under Burlington Northern, an adverse action need not impact the terms and conditions of employment.

Choulagh and Stone are also inapposite because a jury could find that the “particular circumstances” surrounding Rogers’s EAP referral and fitness-for-duty exam – having her badge taken away, being escorted out of the office, being put on paid leave pending her exam, having all incoming e-mails receiving a reply message saying she had left the company – satisfy the materially adverse action standard. Burlington Northern, 548 U.S. at 69 (emphasizing that “context matters” and that “the significance of any given act of retaliation will often depend upon the particular circumstances”). Thus, even if the EAP referral or fitness-for-duty exam were not materially adverse actions standing alone, a jury could determine that “the incidents taken together” with all the circumstances “might dissuade a reasonable worker from making or supporting a discrimination charge.” Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App’x 587, 599 (6th Cir. 2009) (holding that jury could find that “write-ups” and termination recommendation taken together were materially adverse) (emphasis added); see also Hill v. Nicholson, 383 F. App’x 503, 513 (6th Cir. 2010) (holding that “nitpicking” and alteration of employee’s performance standards, taken collectively, were materially adverse).

A jury could also find that Rogers suffered a materially adverse action when she was given the choice between leaving her job and accepting a transfer to the HAP Business Partner position. Rogers stated that as an OHRD consultant she worked at the “nerve center” with other Human Resources employees and that her position was “high profile,” as she worked with senior vice-presidents and other executives. But as an HAP Business Partner, her role was “diminished,” she worked in smaller cities, she rarely dealt with executives, her career was negatively impacted, and she was denied training. Rogers’s testimony at least creates a jury question as to whether the transfer would dissuade a reasonable worker from complaining of discrimination. See Burlington Northern, 548 U.S. at 71 (holding that reassignment to a dirtier and more arduous position constituted a materially adverse action); Frazier v. Richland Pub. Health, 685 F. App’x 443, 445 (6th Cir. 2017) (jury could find that the plaintiff’s reassignment from mosquito control duties, which she had performed for nine years, to food inspections, which she had not done in ten years, would dissuade a reasonable worker from complaining of discrimination); Mys v. Mich. Dep’t of State Police, 590 F. App’x 471, 480-81 (6th Cir. 2014) (circumstances would allow a jury to find that the plaintiff’s involuntary transfer was a materially adverse action, even though the plaintiff came to view it positively). The district court held otherwise, noting that Rogers did not suffer a pay decrease and in fact received raises, but Burlington, Frazier, and Mys make clear that lateral transfers for the same salary can be materially adverse actions.

In holding that the transfer was not an adverse action, the district court cited a single case, “Kauffman v. Kent State University, 21 F.3d 428 (6th Cir. 1994).” Opinion, R.64-16, PageID#1954. The court’s reliance on Kauffman was misplaced. Contrary to the district court’s erroneous citation, Kauffman is an unpublished, per curiam decision. No. 93-3302, 1994 WL 112874 (6th Cir. April 1, 1994) (per curiam). Moreover, it is inapposite, as it is a discrimination case holding that the plaintiff’s lateral transfer did not constitute a constructive discharge because a reasonable person would not have found it intolerable. Id. at *3-4.

C. Rogers offered sufficient evidence of causation and pretext to overcome summary judgment.

Contrary to HFHS’s argument below, Rogers adduced sufficient evidence to allow a reasonable jury to find the fourth prong of the prima facie case, causation, and to find that the reasons HFHS gave for the adverse actions were a pretext for retaliation.

“This [C]ourt has held that the causal connection between the protected activity and the adverse . . . action necessary for a prima facie case of retaliation can be established solely on the basis of close temporal proximity.” Frazier, 685 F. App’x at 455 (holding that temporal proximity of six weeks established causation, and citing Sixth Circuit cases holding that temporal proximity of two to three months suffices). Here, the district court seemed to acknowledge that the close temporal proximity between Rogers’s July 3 EEOC complaint and her September 11 EAP referral (and suspension) established causation. Opinion, R.64, PageID#1951 (observing that “the timing of the referral to EAP [was] shortly after Plaintiff filed an EEOC complaint” and therefore considering whether Rogers established pretext). The district court was correct, as the seven weeks that elapsed between Rogers’s charge and her EAP referral and suspension pending her fitness-for-duty exam falls comfortably within the span of time this Court has held to be sufficient to establish causation for purposes of a prima facie case. See Frazier, 685 F. App’x at 455. Likewise, the close temporal proximity—about three months—between the July 3 charge and the October 2 meeting in which Rogers was told she could choose between a severance agreement and a transfer establishes causation. See id.; see also Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (in FMLA case, holding that three months between leave request and termination established causation at prima facie stage).

Contrary to the district court’s holding, the evidence also sufficed to establish a fact question as to whether HFHS’s stated reasons for the EAP referral and suspension pending the fitness-for-duty evaluation were a pretext for retaliation. A plaintiff can establish pretext by showing that the employer’s proffered reason lacked factual basis, did not actually motivate the employer, or was insufficient to warrant the challenged action. Lee, 676 F. App’x at 498. Here, HFHS asserted that it referred Rogers to EAP and suspended her pending the fitness-for-duty exam because it believed she was threatening. To be sure, HFHS submitted some record evidence supporting its proffered reason: that Jensen told Adams that she found Rogers threatening and that Payne, Bressack, Yelda, and Giovannini, had raised concerns about Rogers. However, there is also evidence in the record that would allow a jury to find that Jensen fabricated or exaggerated Rogers’s purported threatening behavior and that the company actually took these actions in retaliation for her complaints. See, e.g., Lee, 676 F. App’x at 500 (reversing summary judgment in retaliation case and stating, “it is for a jury to decide whether [the employer’s] reasons were not only honest, but also whether the proffered reasons were really the impetus for the decision to suspend Plaintiff”).

Specifically, a jury could rely on evidence that Rogers had worked for HFHS for thirty-two years without major incident and had received positive performance reviews before and after her suspension/fitness-for-duty evaluation. Also, there appears to be no documented evidence of complaints to Jensen prior to the September 11 meeting; although Jensen’s written notes summarizing her September 6 and September 9 meetings with Payne are in the record, they appear to have been prepared after the meeting. Further, Payne disputed that he felt threatened by Rogers; that he was “visibly shaken” or nervous when talking to Jensen; that he told Jensen the baseball bat/girlfriend rumor; and that he told Jensen that he had told Rogers to “stay the ‘f’ away.”

More significantly, Payne’s “Impaired Healthcare Worker” sheet described Rogers as cooperative, polite, and calm, undermining HFHS’s assertion that either the company, or Payne, truly believed that Rogers posed a threat. The district court discounted the probative nature of the form, stating that “the only alternative options” to “cooperative, polite and calm” “included: ‘sleepy,’ ‘crying,’ ‘talkative,’ sarcastic,’ ‘excited,’ and ‘no issue.’” Opinion, R.64, PageID#1952. But this conclusion overlooks that the form also had boxes for “erratic, temper outburst, hostile, threatening, and argumentative,” none of which Payne checked. Thus, a jury could find that Payne’s failure to check these boxes – and to instead check the boxes for “cooperative, polite, and calm” – contradicts HFHS’s assertion that it suspended Rogers and required a fitness-for-duty exam because she posed a threat to herself or others.

A jury could also find that Giovannini’s report to Jensen that Rogers was “euphoric,” laughing loudly, and touching another employee is hardly the sort of conduct that would cause a reasonable employer to fear an employee posed a threat, especially since Giovannini did not suggest to Jensen that Rogers was capable of violence. Likewise, a jury could doubt that Yelda’s report to Jensen that she kept to herself because she had heard that Rogers engaged in “strange behavior” is the kind of complaint that really could trigger a suspension and fitness-for-duty evaluation. A jury could also conclude that Jensen had no objective evidence for her claim of feeling threatened by Rogers, and a jury could find that Rogers’s statement that Jensen and/or Bressack were liars and the truth would be served were non-threatening statements expressing—as Rogers testified—her belief, in the context of her discrimination complaints, that the truth would come to light.

A reasonable jury could also determine on this record that the reason HFHS gave for transferring Rogers was a pretext for retaliation. Perhaps recognizing the weakness of its pretext argument, HFHS’s primary argument below was that it did not force Rogers to transfer. Rather, HFHS insisted, it offered her three options: stay in OHRD, transfer, or receive a severance agreement. But a jury could credit Rogers’s testimony that Adams gave her only two options upon being cleared to return to work—a severance package, or a transfer—and did not allow her to return to OHRD.

HFHS asserted below that, in any event, it was “reasonable” to transfer Rogers because she “had intimidated co-workers and supervisors.” SJ-Brief at 20, R.48, PageID#715. A jury, however, could find that this was not the true reason and that, instead, that HFHS transferred her in retaliation for filing her EEOC charge. See Lee, 676 F. App’x at 500 (jury should decide whether stated reasons were “honest” and actually motivated suspension decision). To reach this conclusion, a jury could rely on the undisputed evidence that Rogers passed the fitness-for-duty exam given by HFHS’s own doctor, who said he did not know why she was sent there. A jury could also conclude that Payne’s behavior checklist form made clear that Rogers did not pose any kind of threat, as he described her as “polite,” “calm,” and “cooperative.” A jury could also conclude that the vague concerns raised by Giovannini and Yelda did not suggest that Rogers was “intimidating” co-workers and supervisors. Thus, a jury could reject HFHS’s assertion that it transferred Rogers because it believed she had intimidated co-workers. Further, a jury could conclude based on Adams’s testimony that he wanted to give Rogers “space” from her “outstanding EEOC complaint” that the transfer was, on its face, retaliatory. Rogers’s testimony that Adams said her co-workers had “gone through enough” would support this conclusion.

CONCLUSION

Summary judgment should be reversed.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Senior Appellate Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Fl.

Washington, D.C. 20507

(202) 663-4724 (phone)

(202) 663-7090 (fax)

Annenoel.Occhialino@eeoc.gov

[1] We take no position with respect to any other issues.

[2] Adams’s testimony suggests, contradictorily, that he did not receive Payne’s undated form—or those of Jackson-Lewis, Jensen, or Bressack—until September 13, after suspending Rogers. Rogers-Depo.19-22, R.55-5, PageID#1267-68.