NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0419n.06
Filed: June 20, 2007
No. 04-5874
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Maralyn S. James, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
)
Metropolitan Government of Nashville )
and Davidson County Nashville Public )
Library, )
) OPINION
Defendant-Appellants. )
________________________________ )
Before: GILMAN and COOK, Circuit Judges, and MILLS, District Judge.*
RICHARD MILLS, District Judge.
I. PROCEDURAL HISTORY
The Metropolitan Government of Nashville and Davidson County operates
the Nashville Public Library (collectively “the Government”). Maralyn James
began working for the Library in 1971 as a “Librarian I.” James sued the
*
The Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
1
Government on April 30, 2003, alleging claims under the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12111, et seq., the Age Discrimination
in Employment Act (the “ADEA”), 29 U.S.C. § 621, et seq., and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The district court dismissed
the ADA and ADEA claims on summary judgment and James proceeded to trial on
her Title VII hostile work environment and retaliation claims. On May 14, 2003,
the jury found the Government liable for retaliation and awarded James $42,000 in
compensatory damages.
The Government moved to have the verdict set aside under Federal Rule of
Civil Procedure 50(a), claiming that the evidence did not show that James suffered
an adverse employment action. The district court denied the Government’s
motion.
We reversed the district court and remanded. See James v. Metropolitan
Government of Nashville, 159 F.App’x 186 (6th Cir. 2005). Subsequent to our
decision, the Supreme Court decided Burlington Northern & Santa Fe Railway
Co. v. White, — U.S. —, 126 S.Ct. 2405 (2006), addressing whether Title VII
retaliation must be employment or workplace related and how harmful an action
must be to constitute retaliation. Id. at 2416. James appealed our decision, and the
Supreme Court reversed and remanded in light of Burlington Northern. See James
2
v. Metropolitan Government of Nashville, — U.S. —, 127 S.Ct. 336, 166 L.Ed.2d
7 (2006). Applying Burlington Northern, we consider whether the district court
should have granted the Government’s Rule 50(a) motion.
II. FACTS
As recounted in our previous decision, James acquired records, raised funds,
catalogued materials, and performed other tasks as a Librarian 1. From 1971 to
1994, she received performance ratings primarily of “outstanding” and “above
average.” In 1994, the Library transferred James to its main branch and promoted
her to “Librarian I-and-a-half.” In 1996, James received a negative performance
evaluation with respect to the speed of her work. She knew that she was not
cataloguing materials as quickly as her coworkers.
In July 1999, James became a “Librarian II” via a reclassification of library
job titles. Her responsibilities remained unchanged and the speed of her work
remained unsatisfactory. Performance evaluations from 1996 through 2001
consistently criticized James’ output. For instance, James’ 1999 performance
evaluation noted that she was cataloguing “just over 2 titles per hour (as opposed
to the 7-8 expected) . . . Continued low output in her primary job responsibility is
not acceptable and will have serious consequences if the situation is not
corrected.”
3
On October 1, 2001, James’ supervisor, Linda Neff, gave James a deadline
to catalogue a collection of books. James considered the deadline unfair and the
resulting stress led her to seek medical attention for headaches and high blood
pressure. James’ doctor, Michael Callaway, M.D., advised her to take several days
off work. He also sent the Library a letter notifying it that James was “to limit
stress at work, specifically no overtime and working at a pace consistent with her
abilities due to her medical condition.” Dr. Callaway later diagnosed James as
having “mild cognitive dysfunction relating to stress at work.”
On October 3, James wrote a letter complaining that she was being
subjected to “harassment” and a “hostile work environment.” James requested a
transfer because the hostility was detrimental to her health. One of the letter’s
recipients, Library Director Donna Nicely, called James into her office on October
9 to discuss James’ complaint. Supervisors Suliang Feng and Chase Adams were
present at the meeting. Adams told James “if you will just volunteer to take a
demotion, this will all be over with.” James did not volunteer to take a demotion
and the Library did not approve her transfer. The Library investigated her
complaint and on October 31, 2001, concluded it had no merit.
By the end of 2001, James’ poor productivity caused her to fail an annual
evaluation. The Library advised James that she would be fired if her productivity
4
did not improve. On January 29, 2002, James filed an EEOC charge against the
Government alleging age discrimination, disability discrimination, and retaliation.
She received a “right to sue letter” on January 31, 2002. That same day, James
submitted a letter seeking a lateral transfer to “Librarian II-audio visual.” Despite
being ranked first on the list of applicants, James did not receive an interview.
The Library scheduled a performance re-evaluation for James on March 1,
2002, but the re-evaluation was postponed for a month at James’ request. By April
1, James was unable to catalogue an average of 6 items per hour, a goal the
Library had given her. The Library did not discipline James. Instead, it gave her
time to improve her productivity and offered to assist her in that regard. To that
end, the Library accommodated James’ request to adjust lights around her
computer and provide her with special computer glasses. The Library also offered
techniques for James to improve her output.
James filed a second retaliation claim with the EEOC and received a “right
to sue” letter on April 16, 2002. She sued the Library and the Metropolitan
Government of Nashville and Davidson County on April 30, 2002.
The Library gave James until May 16, 2002, to increase her catalogue
average to 6 items per hour. By May 9, James was averaging 5.75 items per hour.
However, on May 13, 2002, James’ neurologist, Dr. Alan Bachrach, informed the
5
Library that James could not return to her job because she could not keep up with
the quotas. That same day, James wrote the Government’s benefits department to
say that if the Library did not accommodate her with a position at her current level
of Librarian II, she would apply for a disability pension.
In June 2002, the Library offered to transfer James to a Librarian I position.
James refused the demotion and applied for a disability pension. On November
19, 2002, the Library informed James that if she did not accept a demotion she
would be charged as absent without leave and subject to disciplinary action.
The Library informed the Benefits Board that it “offered to accommodate
[James] at a lesser position with current salary.” However, the Library did not
disclose that the salary for the lesser position would, after three months, be
reduced to a level that was less than James’ Librarian II salary. Because the
Library said it could accommodate James, the Benefits Board rejected her claim
for a disability pension on April 2, 2003. James sought reconsideration, which
was also denied.
James received her last paycheck in March 2003. When she noticed that her
family health insurance premium had not been deducted, she immediately notified
the Government. James took a $209.20 personal check to the Government’s
payroll department to pay her premium. She continued to make payments each
6
month her disability pension appeal was pending. In late July 2003, James
received a letter from CIGNA cancelling her family health insurance due to non-
payment of premiums. However, the letter was a mistake and the insurance was
never cancelled. She took an early service pension and terminated her
employment on or about March 1, 2003.
James sued the Government, and the jury decided in her favor on a Title VII
retaliation claim. The Government moved for judgment under Rule 50(a). The
district court denied the motion, but we reversed. See James, 159 F.App’x 186.
The Supreme Court reversed and remanded our decision pursuant to Burlington
Northern. See James, 127 S.Ct. 336. Upon remand, we again conclude that the
Government is entitled to judgment under Rule50(a).
III. STANDARD OF REVIEW
This court reviews a district court’s denial of a motion for judgment as a
matter of law de novo. Estate of Riddle ex rel. Riddle v. Southern Farm Bureau
Life Ins. Co., 421 F.3d 400, 408 (6th Cir. 2005). The court views the evidence in
the light most favorable to the nonmoving party. Gray v. Toshiba Am. Consumer
Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001). It will affirm the jury’s verdict
unless there was “no legally sufficient evidentiary basis for a reasonable jury to
find for [the prevailing] party.” See Fed.R.Civ.P. 50(a).
7
IV. ANALYSIS
“In an action under Title VII, the plaintiff may prove unlawful retaliation by
presenting direct evidence of such retaliation or by establishing a prima facie case
under the McDonnell Douglas framework.” Abbott v. Crown Motor Co., 348 F.3d
537, 542 (6th Cir. 2003) (referring to McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Absent direct evidence of
retaliation, as is the case here, retaliation claims are subject to the same
McDonnell Douglas burden-shifting framework as discrimination claims.
Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563-64 (6th Cir. 2004). To
establish a prima facie case of retaliation, James had to show (1) she engaged in
activity protected by Title VII, (2) the Government knew she engaged in this
activity, (3) the Government subjected her to an adverse employment action, and
(4) a causal connection exists between the protected activity and the adverse
employment action. Singfield, 389 F.3d at 563.
“If and when a plaintiff has established a prima facie case, the burden of
production of evidence shifts to the employer to ‘articulate some legitimate,
nondiscriminatory reason’ for its actions.” Id. (quoting McDonnell Douglas, 411
U.S. at 802). The plaintiff must then demonstrate “that the proffered reason was
not the true reason for the employment decision.” Id. (quoting Texas Dept. of
8
Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981)). The employer may also prove an affirmative defense to retaliatory
harassment by a supervisor by demonstrating: “(a) that the employer exercised
reasonable care to prevent and correct promptly any . . . harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer to avoid harm
otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257,
2270, 141 L.Ed.2d 633 (1998).
A. Adverse Employment Actions
In Burlington Northern, the Supreme Court considered just how harmful an
action must be to constitute retaliation. 126 S.Ct. at 2415. The Court explained
that for conduct to become actionable retaliation “[a] plaintiff must 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.” Id. at 2415 (citations and
quotation marks omitted).
At trial, James produced evidence of various harms the Government
allegedly caused her (i.e., denial of lateral transfers, bad employment evaluations,
and the imposition of cataloguing quotas.). Prior to Burlington Northern, those
9
harms were not adverse employment actions. See Sherman v. Chrysler Corp., 47
F.App’x 716, 721-22 (6th Cir. 2002) (unpublished)(denial of lateral transfer is not
an adverse employment action under the ADEA); Primes v. Reno, 190 F.3d 765,
767 (6th Cir. 1999) (an unfavorable evaluation without an accompanying adverse
employment action, such as a lower wage, is not actionable as a Title VII
retaliation claim); Agnew v. BASF Corp., 286 F.3d 307, 10 (6th Cir. 2002)
(requiring an employee to comply with a reasonable performance plan or be
subject to discipline does not constitute an adverse employment action under the
ADEA). After Burlington Northern, excluding an employee from a weekly
training lunch that contributes significantly to the employee’s professional
advancement is materially adverse conduct. Id. at 2415-16. Markedly worse
performance evaluations that significantly impact an employee’s wages or
professional advancement are also materially adverse. See Halfacre v. Home
Depot, U.S.A., Inc., 2007 WL 1028860, *9 (6th Cir. 2007).
Many of the adverse actions James complains about preceded her 2002 Title
VII charges. Nevertheless, it is true that the Government denied James’s request
for a lateral transfer, gave her bad employment evaluations, and imposed
cataloguing quotas after she filed her charges with the EEOC. However, it is also
true that none of these things James complained about significantly affected her
10
professional advancement. James continued to work and she received the same
pay despite her Title VII claims. She also continued to receive the bad
evaluations, but those were not markedly worse than earlier ones and the
evaluations did not affect her earnings. Her employment conditions were
essentially unchanged after she filed with the EEOC. James’s allegations are not
actionable because they failed to significantly impact her professional
advancement and would not have dissuaded a reasonable person from filing a Title
VII claim.
James also contended that the Government’s opposition to her disability
application, the “cancellation” of her family’s health insurance, its
“misrepresentation” about paying her the same salary to work a lesser position,
and the reduced service pension it paid her are adverse employment actions.1
James’s contentions are incorrect.
James was not entitled to disability benefits because she was able to perform
work as a Librarian I. The position was comparable to her cataloguing position
and the Government offered her the Librarian I job as a reasonable
1
Although these events occurred after James left the workplace, post-employment
injuries can be actionable under Title VII. See Robinson v. Shell Oil Co., 519 U.S. 337, 339, 346,
117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (holding that the term “employees,” as used in Title VII’s
anti-retaliation provision, includes former employees bringing suit for retaliatory, post-
employment actions, such as a negative reference to a potential employer).
11
accommodation. Since James was not entitled to disability benefits, the
Government could not support her disability application. While James claimed
that the Government misrepresented the fact that the Librarian I position paid less
than her current salary, the record shows that James informed the Benefits Board
that her salary would be slightly lower if she accepted the lesser position. The
Board’s decision to deny James a disability pension despite the discrepancy shows
that the Government’s “misrepresentation” did not affect the Board’s decision.
Thus, James suffered no adverse employment action via the alleged
misrepresentation or cancellation.
James also failed to show that her family’s insurance was cancelled. The
testimony showed that an insurance company (not the Government) sent James a
letter cancelling her family’s health insurance. However, the letter was a mistake
and the insurance was never cancelled.
The closest James came to establishing an adverse employment action was
when she alleged that the Government reduced her service pension. Prior to
James’ retirement, John Kennedy, the Government’s Assistant Director of Human
Resources, provided James a chart showing that her pension would be $1,803.66
per month if she ended her service on March 1, 2003, at age 55 and a half. James
ended her service at that time, but her monthly pension turned out to be $1,506.06.
12
Although James contended that the smaller pension was evidence of retaliation,
the chart plainly explained that any person who retired before reaching age 60
would have his or her pension reduced by 4% per year. Thus, James’ pension was
reduced to $1,506.06 per month because she retired early. It was not reduced due
to retaliation. Even if the chart was somehow unclear or wrongly explained, James
never contended that the Government used the chart to fraudulently induce her
retirement and she never argued that she detrimentally relied on the chart.
B. Severe or Pervasive Retaliatory Harassment by a Supervisor
Alternatively, James argues that the jury could have returned a verdict in her
favor based on severe or pervasive retaliatory conduct. Evidence of severe or
pervasive supervisor harassment following a discrimination complaint can
constitute retaliation for purposes of Title VII. See Akers v. Alvey, 338 F.3d 491,
498 (6th Cir. 2003) (citation and quotation marks omitted). The harassment must
be “sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Id. (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
“[T]his test has both an objective and a subjective component: the conduct must be
severe or pervasive enough to create an environment that a reasonable person
would find hostile or abusive, and the victim must subjectively regard that
13
environment as hostile or abusive.” Id. (citation omitted).
The only evidence James offers to show “severe or pervasive harassment” is
the Government’s opposition to her disability benefits application and
“cancellation” of her health insurance. Because the Government was not
responsible for the mistaken cancellation letter James received, the only action
James can complain about is the Government’s opposition to her disability
benefits application. As explained earlier, James was not entitled to benefits. The
Government’s failure to support an undeserving application is not harassment.
V. CONCLUSION
Upon reconsideration in light of Burlington Northern, we find James did not
present evidence sufficient for a jury to find in favor of her retaliation claim. We
therefore REVERSE the district court’s decision to deny the Government’s Rule
50 motion and remand for proceedings consistent with this opinion.
14