NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0505n.06
Case No. 16-1034 FILED
Aug 29, 2017
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
SONYA BRADLEY, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR
STEVE ARWOOD, et al., ) THE EASTERN DISTRICT OF
) MICHIGAN
Defendants, )
SUSAN PRZEKOP-SHAW )
)
Defendant-Appellant. )
BEFORE: GRIFFIN, WHITE, and DONALD, Circuit Judges
BERNICE BOUIE DONALD, Circuit Judge
I.
This appeal arises out of a 42 U.S.C. § 1983 race-based hostile work environment claim
brought against current and former employees of the Michigan Department of the Attorney
General. The Plaintiff-Appellee, Sonya Bradley, who is African American, initially brought suit
against Steve Arwood, William Schuette, Susan Przekop-Shaw, Peter Kotula, and Frank Russell
on June 12, 2014, raising claims including the one currently before this Court. On Defendants’
Motion to Dismiss, the district court dismissed all of Bradley’s claims except her hostile-work-
environment claims against Przekop-Shaw and Kotula. Bradley thereafter filed an amended
complaint adding Debbie Taylor as an additional defendant. After discovery, the remaining
Case No. 16-1034, Bradley v. Arwood, et al.
defendants, including Przekop-Shaw, filed a Motion for Summary Judgment. The district court
granted the motion with respect to Kotula and Taylor, but denied the motion with respect to
Przekop-Shaw, finding that Bradley presented sufficient evidence to raise a genuine dispute of
material fact as to whether Przekop-Shaw had created a race-based hostile work environment.
Przekop-Shaw interlocutorily appeals the district court’s order denying her qualified immunity.
For the reasons set forth herein, we affirm.
II.
Viewing the record evidence in the light most favorable to Bradley, the facts of this case
are as follows. As of 2010, Plaintiff Bradley worked as a legal secretary at the Michigan
Department of the Attorney General in the unit handling revenue and collections issues in
Detroit. (R. 43-2, ID 465). In January 2011, she was hired as a division legal secretary
supervisor overseeing the Unemployment Unit of the Attorney General’s office. (R.43-2, 465-
66). Bradley technically worked for the Department of Licensing and Regulatory Affairs
(LARA), but was detailed back to the Attorney General’s Detroit office. (Id. at 665–66).
Bradley supervised five legal secretaries in the Detroit office, all African-American, and a sixth
secretary, who was white, in the Unemployment Unit in the Grand Rapids office. (R. 43-2, ID
466; R. 45-4, ID 666).
In February 2011, Bradley met with her then supervisor, Donna Welch, and Przekop-
Shaw, who was Welch’s supervisor at the time, in order to discuss Bradley’s annual objectives.
(R. 45-4, ID 666). During the meeting, Bradley’s first assignment was discussed—converting all
of the Detroit office Unemployment Insurance Agency (UIA) files, several thousand of them,
from a manual system to a computerized system. In response to Bradley’s request for additional
secretarial staffing to complete the task, Przekop-Shaw suggested bringing on Michael Lockman,
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a Caucasian male attorney, who had previously worked at the Michigan Attorney General’s
office, as had both Bradley and Przekop-Shaw. (R. 46-5 753). Lockman had allegedly racially
harassed Bradley in 2010. In fact, Bradley averred in her affidavit that she applied for the
position in the Unemployment Unit after Lockman yelled to her “bring your black ass back in
here” as she was leaving work one day. (R. 45-4, ID 665).1 Bradley asserts that Przekop-Shaw
knew of Lockman’s harassment and used the possibility of moving Lockman into the
Unemployment Unit to harass and intimidate her. Bradley alleges that Przekop-Shaw reissued
the threat to hire Lockman after Bradley reported to LARA officials in October 2011 that a
government-issued credit card assigned to her had been inappropriately used by an employee in
the Attorney General’s office. (R. 45-4, ID 666–67).
In June 2012, Przekop-Shaw replaced Welch as Bradley’s direct supervisor. (R. 43-6, ID
511-12). In September, Przekop-Shaw sent an email to human resources official Frank Russell
seeking advice on reclassifying Bradley’s position to a lower grade. (R. 45-6, ID 684–85.) It
does not appear from the record that any change was made. However, Bradley acknowledges the
job posting for the position at issue may have erroneously assigned a higher classification level
than the position was actually due. (R. 43-2, ID 466). Erroneously or not, the position conferred
a “level 11” classification, the same as Amy Gonea, a Caucasian woman who was the head
secretary of the Attorney General’s Labor Division office in Lansing. (Id.; R. 43-6, ID 517; R.
45-7, ID 687). Bradley claims that in spite of their equal classification, Przekop-Shaw treated
Gonea more favorably than Bradley, improperly allowing Gonea to supervise Bradley.
1
At oral argument, Bradley’s counsel stated that the employee who reviewed Lockman’s alleged racist
statement was a subordinate of Przekop-Shaw. There is nothing in the record to support this assertion. It is also
unclear whether Bradley’s EEOC charges included the Lockman incident. Although Bradley was questioned about
her EEOC charges at her deposition, (e.g., R. 43-2, ID 474), neither party submitted the EEOC charges to the district
court.
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This issue came to a head in the wake of a second incident related to Bradley’s
government-issued credit card. In November 2012, Gonea asked for Bradley’s card information
in order to set the card up for the entire Unemployment Unit to use for e-filing charges and
purchases. (R. 45-4, ID 668; R. 45-7, ID 689). Bradley contacted a LARA purchasing manager
and the Department of Technology, Management, and Budget, who advised her not to provide
the credit card information to Gonea and instead follow a LARA procurement policy. (R. 45-4,
ID 668; R. 45-7, ID 688–89.) This upset Przekop-Shaw, who in a strongly worded email,
admonished Bradley that Bradley’s actions were “unacceptable” and accused her of intentionally
circumventing and undermining her supervisors in the Attorney General’s office. (R. 45-4, ID
668; R. 45-7, ID 687–88.) Przekop-Shaw forwarded this email to Frank Russell, a human-
resources official, who stated that a Formal Counseling Memorandum would have been
appropriate in this situation. (R. 45-7, ID 687). But Russell went on to state that he believed that
Bradley acted in this manner because she was upset at “having to abide by a peer’s ([Gonea’s])
direction. Regardless of whether she is classified properly or not, ‘currently,’ she is the same
level (I think).” (Id.)
According to Bradley, Przekop-Shaw also made her “jump through hoops” to take leave,
and would “bombard” her with assignments if she requested time off. (R. 43-2, ID 472; R. 45-4,
ID 667.) Bradley testified that, on one occasion, she asked for a day off so that she could take
her mother to a medical appointment. (R. 43-2, ID 472, 478.) Przekop-Shaw reluctantly
approved the request. (Id. at 472, 478.) Then, despite Bradley’s leave having been scheduled
two weeks in advance, Gonea called Bradley at the very end of the workday prior to her
scheduled day off and ordered her to complete a “whole list” of tasks. (Id. at 478.) Bradley had
to stay several hours late to do so. (Id. at 474.) Further, when Bradley was on extended medical
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leave in 2013, Przekop-Shaw “harass[ed] [Bradley] via telephone and email requesting [her] to
perform [work] duties” from home. (R. 45-4, ID 668–69.) In accordance with medical advice,
Bradley refused to do so. (See id. at 669.)
Meanwhile, as early as February 2011, Bradley’s supervisors instituted regular meetings
and communications with Bradley related to her performance. (R. 43-6, ID 514-15). Przekop-
Shaw states that these were set up to improve Bradley’s performance, which had been noted as
problematic since her initial performance evaluation by Welch. (Id.) Bradley asserts that these
meetings were attempts to embarrass and ridicule her in front of her colleagues. (Appellee’s Br.
at 7.) Bradley also asserts that Przekop-Shaw imposed unreasonable demands and set unrealistic
deadlines all while refusing Bradley’s request for additional staffing just to ensure that Bradley
would not be successful. (Id.)
Bradley’s performance evaluations present a conflicting picture. During Bradley’s first
performance appraisal in March 2012, Welch, her initial supervisor, reported that Bradley “meets
expectations.” (R. 43-5, ID 502-07). However, in an email dated January 10, 2013, Welch noted
that Bradley had begun to engage in negative behavior as early as 2011. (R. 43-4, ID 501). Also
in January 2013, Przekop-Shaw reported in Bradley’s annual review that overall Bradley “meets
expectations,” but added that Bradley was having some negative performance issues. (R. 43-6,
ID 513; R. 43-7, ID 524-35). Bradley alleges that these comments were insulting and belittling,
and were further evidence of harassment (Appellee Br. 7-8); however, Przekop-Shaw asserts that
they were specifically related to Bradley’s performance problems. (Appellant Br. 9-10; R. 43-7,
ID 524-35). Bradley asserts that even as Przekop-Shaw criticized Bradley for not effectively
managing her time, prioritizing her tasks, or timely accomplishing tasks, Przekop-Shaw denied
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requests for additional staffing or assistance for the all-black Detroit secretarial staff. (Appellee
Br. 8).
In September 2013, after determining that Bradley failed to improve, Przekop-Shaw
provided her with additional performance objectives. (R. 43-2, ID 481). Bradley highlights this
as further harassment, pointing out that her weekly requests for assistance had been ignored.
(Appellee’s Br. at 8.) One month later, in October 2013, Bradley gave a presentation to the
entire Labor Division staff. (R. 43-6, ID 517-18). Although Bradley claims it was well-
received, (Appellee’s Br. at 9), Przekop-Shaw stated that the presentation, though intended to
foster team building, fostered division as it did not recognize the work of a secretary in the Grand
Rapids office or anyone outside of Detroit. (R. 43-8, ID 537-38). Bradley responds to this claim
by explaining that the secretaries on her team were the subject of her presentation and that the
Grand Rapids secretary no longer worked under her. (Appellee Br. 9-10). In a Notice of Formal
Counseling issued in response to the presentation, Przekop-Shaw also claimed that Bradley
inappropriately complained during the presentation about her workload and pressured others to
help her perform her tasks so that they would be considered team players. (Id.)
In February 2014, Bradley received a “needs improvement rating” during her annual
review, which noted that Bradley had failed to meet the performance objectives issued over the
past year. (R.43-6, ID 521; R. 43-9, ID 541). As a result, Bradley was placed on a Performance
Improvement Plan, overseen by Bradley’s new direct supervisor Peter Kotula, a white attorney
who was based in the Detroit office. (R. 43-6, ID 521; R. 43-11, ID 559-60; R. 43-12, ID 562-
63). In response to these actions, Bradley filed a grievance and an Equal Employment
Opportunity complaint based on racial discrimination and harassment. (Appellee Br. 10). In
April 2014, citing a lack of improvement, Kotula issued Bradley a second Notice of Formal
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Counseling. (R.43-11, ID 560; R. 43-13, ID 565-66). In September 2014, Kotula gave Bradley
an interim rating of “Unsatisfactory” and advised her that she would be terminated if her
performance did not improve in accordance with her Performance Improvement Plan. (R. 43-14,
ID 568-69). In November 2014, Bradley was also issued two written counseling memos, citing
her lack of improvement. (R. 43-15, ID 571-72; R. 43-16, ID 574-75). At the same time that she
received these counseling memos, Bradley also received an unsatisfactory interim rating in her
follow-up review, which noted that Bradley was still failing to meet performance objectives.
(R. 43-18, ID 583-86). Bradley received a third written counseling on December 4, 2014.
(R. 43-17, ID 577-81). As a result of continued lack of improvement, Kotula again rated
Bradley’s performance as “Unsatisfactory” and extended her review period through March 2015.
(R. 43-19, ID 588-90).
In February 2015, Bradley received her fourth and final written counseling memo as well
as another unsatisfactory progress review from Kotula. (R. 43-20, ID 592-94; R. 43-21, ID 596-
604). Bradley claims to have received the fourth counseling memo for seeking help from Kotula
to interpret a directive (Appellee Br. 12), but Kotula characterized Bradley’s conduct as
“accusatory” and “unprofessional.” (R. 43-20, ID 592-94). As a result of her failure to meet the
objectives established in her Performance Improvement Plan issued in spring 2014, Bradley’s
employment was terminated effective March 19, 2015. (R. 43-22, ID 606).
III.
Bradley filed this action in June 2014, alleging violations of the First and Fourteenth
Amendments, The Civil Rights Act of 1871, and Title VII, along with various state-law claims.
(R. 1, ID 1-35). In October 2014, the district court dismissed all but two of Bradley’s claims,
allowing her hostile-work-environment claims against Defendants Przekop-Shaw and Kotula to
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proceed. (R. 14, ID 229-34). In May 2015, Bradley added a claim of racial harassment against
Debbie Taylor. (R. 31, ID 326-48). In December 2015, the district court granted summary
judgment in favor of Defendants Kotula and Taylor, but denied summary judgment as to
Defendant Przekop-Shaw, finding that “Plaintiff has provided evidence to support the allegations
made in the complaint with regard to” her hostile-work-environment claim against Przekop-
Shaw. (R. 50, ID 821). Przekop-Shaw timely filed this interlocutory appeal, arguing that
because Bradley presented insufficient evidence to raise a genuine issue of material fact
supporting her claim that Przekop-Shaw engaged in race-based conduct that was severe and
pervasive, the district court improperly declined to extend qualified immunity.
IV.
28 U.S.C. § 1291 provides this Court with jurisdiction to hear appeals from “final
decisions” of the district courts. However, “a district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). A defendant “may not appeal a district court’s summary
judgment order insofar as that order determines whether or not the pretrial record sets forth a
‘genuine’ issue of fact for trial.” Kennedy v. City of Cincinnati, 595 F.3d 327, 333 (6th Cir.
2010) (quoting Johnson v. Jones, 515 U.S. 304, 319–20 (1995)). “[T]he defendant must be
prepared to overlook any factual dispute and to concede an interpretation of the facts in the light
most favorable to the plaintiff’s case.” Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998).
This Court has held that “[w]hen the legal arguments advanced rely entirely on a defendant’s
own disputed version of the facts, the appeal boils down to issues of fact and credibility
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determinations that we cannot make.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir. 2011)
(citing Berryman, 150 F.3d at 564).
However, “regardless of the district court’s reasons for denying qualified immunity, we
may exercise jurisdiction over the appeal to the extent it raises questions of law.” Williams v.
Mehra, 186 F.3d 685, 689–90 (6th Cir. 1999) (en banc) (ellipsis omitted) (emphasis in Williams)
(quoting Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996)). Further, a mixed issue
of law and fact, including an “ultimate fact,” such as whether a party’s conduct created a
racially-hostile work environment in light of the legal standard, is treated as an issue of law, not
an issue of fact. See id. at 690 (citing Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir. 1989)).
Even where the defendant inappropriately attempts to challenge the basic facts, this Court can
“ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal issue,
obviating the need to dismiss the entire appeal for lack of jurisdiction.” DiLuzio v. Vill. of
Yorkville, 796 F.3d 604, 611 (6th Cir. 2015) (quoting Estate of Carter v. City of Detroit,
408 F.3d 305, 310 (6th Cir. 2005)).
Bradley claims that Przekop-Shaw’s appeal “relies solely on her own disputed view” to
argue that the district court incorrectly interpreted the facts. (Appellee Br. 1). However,
Przekop-Shaw accepts the facts as established by Bradley, arguing that those facts “do not
establish a constitutional violation for the purposes of the qualified immunity inquiry.”
(Appellant’s Br. 1). In Williams v. Mehra, we noted that “questions concerning Defendants’
conduct—what actions they performed—are questions of subsidiary or basic fact [while] [t]he
question of the legal standard . . . is a question of law.” 186 F.3d at 690. We then identified a
third category, mixed questions of law and fact, over which this court has consistently exercised
jurisdiction. Id. As in that case, “[t]he question at issue in this case—whether the specifics of
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the [Defendant’s] conduct, as alleged by [the Plaintiff], could constitute [a constitutional
violation]—is a mixed question of law and fact.” Id. Przekop-Shaw raises a mixed question of
law and fact concerning whether the conduct alleged by Bradley satisfies the prima facie
requirements for a hostile-work-environment claim. Further, to the extent that Przekop-Shaw
challenges the facts as determined below, this Court “can separate an appellant’s reviewable
challenges from its unreviewable.” DiLuzio, 796, F.3d at 610 (citations omitted). Thus, we may
exercise jurisdiction over this appeal.
V.
“We review the denial of summary judgment on grounds of qualified immunity de novo
because application of this doctrine is a question of law.” Bletz v. Gribble, 641 F.3d 743, 750
(6th Cir. 2011) (citation omitted). As this is a review of a motion for summary judgment, we
“are required to view the facts and draw reasonable inferences ‘in the light most favorable to the
party opposing the [summary judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007)
(citation omitted) (alteration in Scott). However, this duty “does not require or permit the court
to accept mere allegations that are not supported by factual evidence.” Chappell v. City of
Cleveland, 585 F.3d 901, 906 (6th Cir. 2009) (citation omitted). “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts.” Scott, 550 U.S. at 380. In
light of this, this panel views the facts and any inferences to be drawn therefrom in the light most
favorable to Petitioner Bradley.
When considering whether to extend qualified immunity, this Court must consider
whether, when taken in the light most favorable to the plaintiff, the facts alleged demonstrate that
the defendants violated a constitutional right, and whether that constitutional right was clearly
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established. Pearson v. Callahan, 55 U.S. 223, 232 (2009). Przekop-Shaw’s position is that
Bradley’s claim fails on the first prong. Specifically she argues that Bradley has not
demonstrated a constitutional violation because Bradley has not met the prima facie requirements
for establishing a hostile work environment.
To establish a prima facie hostile-work-environment claim, Bradley must show that:
(1) she was a member of a protected class; (2) she was subjected to unwelcome harassment;
(3) the harassment was based on race; and (4) the harassment unreasonably interfered with her
work performance or created a hostile or offensive work environment that was severe and
pervasive. Fenton v. HiSAN, Inc., 174 F.3d 827, 829–30 (6th Cir. 1999).2 In proving hostility,
the plaintiff must meet an objective and subjective standard, showing that “the conduct [was] so
severe or pervasive as to constitute a hostile or abusive working environment both to the
reasonable person and the actual victim.” Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724,
733 (6th Cir. 2006). Przekop-Shaw challenges Bradley’s showing of a prima facie case on the
third and fourth prongs.
a. Bradley Has Made A Showing of Racially Motivated Harassment
First, Przekop-Shaw argues that Bradley has failed to establish a prima facie hostile-
work-environment claim because she failed to show that any harassment was racially motivated.
(Appellant’s Br. at 33-43). When considering whether the third prima facie element has been
met, this Court may only consider “harassment based on the plaintiff’s race.” Williams v. CSX
Transp. Co., Inc., 643 F.3d 502, 511 (6th Cir. 2011) (emphasis in original) (citation omitted).
“A plaintiff may prove that harassment was based on race by either (1) direct evidence of the use
2
A plaintiff must also typically show that her employer knew or should have known of the racial
harassment and failed unreasonably to take prompt and appropriate corrective action. Fenton, 174 F.3d at 830. That
element is irrelevant here because Bradley is suing Przekop-Shaw directly, see, e.g., Hickman v. Laskodi, 45 F.
App’x 451, 453 (6th Cir. 2002), and because Bradley’s employer, the State of Michigan, is not a “person” subject to
suit under 42 U.S.C. § 1983, see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989).
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of race-specific and derogatory terms or (2) comparative evidence about how the alleged
harasser treated members of both races in a mixed-race workplace.” Id. Thus, a finding of race-
based harassment does not require proof that racially derogatory comments were made, but
rather Bradley must present evidence that the challenged actions “would not have occurred but
for the fact that the plaintiff was African American.” Jackson v. Quanex Corp., 191 F.3d 647,
662 (6th Cir. 1999) (citation omitted). “An example of the latter approach could include
evidence that similarly situated individuals of a different race were not subject to harassment.”
Pusey v. United Parcel Service, Inc., 393 F. App’x 366, 369 (6th Cir. 2010) (citing Clay v.
United Parcel Serv., Inc., 501 F.3d 695, 706–07 (6th Cir. 2007)).
The district court determined that Bradley presented a material issue of fact as to whether
she was subject to race-based harassment relying on three interactions between Bradley and
Przekop-Shaw. (R. 50, ID 818-19). First, the district court found that Bradley had submitted
evidence that created a material issue of fact regarding whether Przekop-Shaw “spitefully
threatened” to make Bradley work with Lockman. (Id. at 818). Second, the district court found
evidence to support Bradley’s claim that Przekop-Shaw treated Gonea substantially differently
from Bradley, though they were classified in the same level and position. (Id. at 818-19).
Finally, the district court found that there was evidence to support the allegation that Przekop-
Shaw treated other African-American employees differently from their white counterparts, based
on Przekop-Shaw’s denial of a request from the Detroit office, where the secretaries were all
black, for a longer than normal lunch to host a holiday luncheon, even though Przekop-Shaw
hosted a similar longer than normal luncheon at her home for the Lansing office, which was all
white. (Id. at 819).
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Regarding the first assertion, Bradley claims that on two separate occasions, Przekop-
Shaw threatened to transfer Lockman into Bradley’s office. According to Bradley, Przekop-
Shaw made these statements first in response to Bradley’s request for additional secretarial staff
and then in retaliation against Bradley for circumventing her authority by reporting inappropriate
use of Bradley’s government issued credit card to LARA management. (R. 45-4, ID 666-67).
Although these incidents are not race-based on their face, Bradley contends that they may be
understood as such because Lockman had previously harassed Bradley based on her race.
Przekop-Shaw argues that even if she did propose transferring Lockman to Bradley’s
unit, which she denies, that should not be considered race-based treatment because there is no
evidence in the record that Przekop-Shaw’s alleged actions were racially motivated, and in
particular no direct evidence that Przekop-Shaw was aware of Bradley’s history with Lockman.3
3
Bradley’s affidavit states in pertinent part only:
2. . . . That in 2010, I was being verbally harassed by a member of the AG’s Office, Michael
Lockman (a white male) and decided to exit to another part of the work area, to which Mr.
Lockman shouted “bring your Black ass back in here”. I accepted this bullying and abuse for a
period of time but decided to transfer to LARA in the Unemployment Insurance Agency
(UIA) . . . .
...
5. That on or about February 2011, I met with Ms. Przekop-Shaw and Ms. Welch . . . My first
major assignment was to convert the entire Detroit UIA office from manual to the AG’s
computerized system.
6. That during the meeting, I mentioned my observation and assessment of the assignment
(converting several thousands [sic] files) and that it would be impossible to achieve by the end of
the year without “additional support staff”. Ms. Przekop-Shaw immediately demonstrated her
knowledge and authority by suggesting to bring Mr. Lockman on as “additional AG staff.”
...
10. [Sometime after October 1, 2011], at a meeting still upset with me for elevating the
fraudulent attempt to use my credit card, [Przekop-Shaw] spitefully threatened to again transfer
Mr. Lockman to the section in [sic] effort to intimidate me based on race if I did not stop
complaining of issues in the office and “disobeying her.”
(R. 46-5, PID 752–54.) At oral argument, Bradley’s counsel asserted that “the person who elevated” the issue of
Lockman’s alleged harassment was a subordinate of Przekop-Shaw, and that “senior leadership” at the Attorney
General’s office was aware of the allegations. Therefore, according to counsel, Przekop-Shaw “certainly” knew
about the allegations. But counsel could not point to evidence in the record supporting these claims, so we do not
rely on counsel’s factual assertions.
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However, the problem for Przekop-Shaw is that there is no other explanation for the threatened
transfer. As an attorney, Lockman was not in a position to alleviate the workload of the
secretarial staff, nor would transferring him into Bradley’s unit have been a legitimate response
to the misuse of Bradley’s government credit card. Although Przekop-Shaw denies threatening
to transfer Lockman, for summary judgment purposes we must credit Bradley’s testimony that
she did. Accepting that testimony as true, Przekop-Shaw has not offered any alternative
explanation, based on the evidence or common sense, for proposing to transfer Lockman. On
this record, a reasonable jury could infer that Przekop-Shaw knew of Lockman’s prior racial
harassment of Bradley and used that knowledge to intimidate Bradley by threatening to force her
to work with Lockman again, particularly in light of Bradley’s testimony that Przekop-Shaw was
“irate” and “upset” after the credit card incident, and that the subsequent threat to transfer
Lockman was delivered “spitefully.”4 (R. 46-5, PID 753-54). It is evident that on this point, this
Court has been presented with two contradictory versions by the opposing parties. Scott,
550 U.S. at 380. However, neither story “is blatantly contradicted by the record, so that no
reasonable jury could believe it.” Id.
The district court also concluded that Bradley “present[ed] evidence that [Przekop-Shaw]
gave her ‘substantially different’ treatment from another Division Legal Secretary Supervisor,
Amy Gonea, who is Caucasian.” (R. 50, ID 818). There is evidence in the record supporting
Bradley’s claims that she was classified on the same level as Gonea but that Bradley was
nevertheless treated as a subordinate to Gonea. In addition to her own testimony, Bradley
4
In concluding otherwise, the dissent loses sight of our obligation to credit Bradley’s testimony and draw
all reasonable inferences in her favor. Nothing in the record renders Bradley’s account unbelievable or forecloses
the inference that the threats to transfer Lockman were attempts at racial intimidation. A jury may ultimately
believe Przekop-Shaw’s version of events – that she did not know about Lockman’s racist remark and never
threatened to transfer him to Bradley’s office – but that is not for this court to decide at the summary judgment
stage.
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provided the affidavits of former co-workers who testified that they witnessed Przekop-Shaw’s
mistreatment of Bradley and that Prezkop-Shaw treated Bradley differently than Gonea even
though they had the same classification. (R. 45-8, ID 694; R. 46-11, ID 786). Such affidavits
have been accepted as evidence supporting the inference that race was a “but-for” condition of
the plaintiff’s treatment. See Clay, 501 F.3d at 706 (finding an inference of race-based
harassment where the affiant described with specificity interactions she actually witnessed).
Further, the record also includes the email from Frank Russell, a Human Resources
officer, in which Russell states that Bradley appears to be upset by “having to abide by a peer’s
(Amy’s) direction.” (R. 45-7, ID 687). He continues that “[r]egardless of whether [Bradley] is
classified properly or not, ‘currently’, she is the same level (I think).” Id. In explanation for the
apparent difference in treatment of the two women, Przekop-Shaw’s counsel explained that
Bradley was in fact a subordinate of Gonea’s and that the classification level advertised when
Bradley applied and accepted her position was an error. (See also R. 43-6, ID 511, 517, 519; R.
45-7, ID 687-88).
Russell’s email regarding this issue could reasonably be understood to support either
Bradley’s claim that she and Gonea shared the same classification or Przekop-Shaw’s position
on Bradley’s classification. In a review of a summary judgment decision, this Court is “required
to view the facts and draw reasonable inferences in the light most favorable to the party opposing
the [summary judgment] motion.” Scott, 550 U.S. at 378 (quotations and citation omitted).
A reasonable jury could conclude from Russell’s email that Gonea and Bradley were effectively
peers, that they should have been treated as peers, that Przekop-Shaw was aware of this, and that
she treated them differently in spite of this knowledge. Whether Przekop-Shaw’s differential
treatment was due to an error in Bradley’s classification level or to racial animus is a question of
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Case No. 16-1034, Bradley v. Arwood, et al.
fact for a jury to decide. Rather than being blatantly contradicted by the record, Bradley’s claim
that Przekop-Shaw treated Bradley less favorably than her white counterpart draws support from
evidence in the record. Because “comparative evidence” that an alleged harasser treated peers of
different races differently may be used to show that facially neutral treatment is actually race-
based, Williams v. CSX Transp. Co., 643 F.3d at 511, Przekop-Shaw’s more favorable treatment
of Bradley’s white peer may be considered evidence of race-based harassment.5
Finally, the district court found further evidence that Przekop-Shaw “treated other
African-American employees differently from their white counterparts” in the fact that Przekop-
Shaw denied the black Detroit secretaries’ request to have a holiday party that exceeded their
hour-long lunch break, when Przekop-Shaw herself had hosted a holiday party for the all-white
Lansing staff at her home. (R. 50, ID 819). Bradley supported her claim that the all-black
Detroit secretarial staff was treated differently from the all-white Lansing staff with testimony
from a former co-worker who testified about Przekop-Shaw’s decision to prohibit the Detroit
staff from having their Christmas party other than during their lunch hour. (R. 45-8, ID 693). As
with the comparative evidence relating to Przekop-Shaw’s treatment of Gonea, this comparative
evidence relating to the holiday parties may also be considered in support of Bradley’s claim that
she was harassed based on her race.
In addition, Bradley also contends that Przekop-Shaw harassed her by “attempting to
downgrade her position, . . . berat[ing] her work performance, arbitrarily plac[ing] her on
performance-improvement plans, [issuing] groundless counseling statements for asking for
assistance, failing to meet with her to discuss her work performance, requiring her to complete
5
In reaching the contrary conclusion, the dissent improperly draws inferences in Przekop-Shaw’s favor.
A jury might conclude from the record evidence that Gonea was Bradley’s supervisor based on their positions in the
division, even if their classification was the same. But a single email exchange and a few snippets of deposition
testimony is no more conclusive evidence of how Michigan’s civil service system operates than it is conclusive
evidence of racial animus. That is why summary judgment is inappropriate.
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Case No. 16-1034, Bradley v. Arwood, et al.
unrealistic work assignments before taking annual leave, and denying her comp-time.”
(Appellee Br. 16).6 Przekop-Shaw asserts that this conduct may not be considered in support of
Bradley’s race-based hostile work environment claim because “only harassment based on the
plaintiff’s race may be considered.” Williams v. CSX Transp. Co., 643 F.3d at 511. Because
none of this behavior is explicitly race-based, Bradley must show a but-for relationship—i.e.,
that but for the fact that she is African American, this conduct would not have occurred.
Jackson, 191 F.3d at 662.
However, to the extent that this conduct is an extension of Przekop-Shaw’s disparate
treatment of Bradley and Gonea, such a link may be permissibly inferred from the evidence.
This includes a number of Przekop-Shaw’s most consistent complaints about Bradley’s
performance, such as Bradley’s refusal to follow the proper chain of command and work within
the management structure, as well as her failure to meet performance objectives that required
Bradley to act as a subordinate to Gonea. (See e.g., R. 43-7, ID 524-35; 43-9, ID 545-51; R. 43-
10, ID 555; R. 43-12, ID 562-63). Further, because subsequent negative performance reviews
often cite a failure to improve on issues raised in prior reviews, the passage of time has a
compounding effect. (R. 43-14, ID 568; R. 43-16, ID 574-75; R. 43-18, ID 586) As a result,
Przekop-Shaw’s favorable treatment of Gonea at the expense of Bradley became a substantial
factor in the series of reviews that culminated in Bradley’s ultimate dismissal. While these
reviews are facially race-neutral, they are at least in part a reflection of Przekop-Shaw’s
allegedly favorable treatment of Bradley’s white counterpart. That Przekop-Shaw made it
difficult for Bradley to take leave and tried to force her to work while on medical leave could be
viewed by a jury in the same light. Thus, Bradley has presented evidence that “create[s] an
6
The dissent argues that this claim should not be credited because it does not involve a citation to the
record. However, the criticism of Bradley’s work performance, the performance improvement plans, and the
counseling statements are all well documented. The dissent itself references them in its recitation of the facts.
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Case No. 16-1034, Bradley v. Arwood, et al.
inference, sufficient to survive summary judgment, that her [race] was the motivating impulse
for [Przekop-Shaw’s] behavior.” Williams v. General Motors Corp., 187 F.3d 553, 565–66 (6th
Cir. 1999).
Przekop-Shaw also notes that Bradley testified to the fact that employees of different
races, including white employees, were subject to harsh treatment by Przekop-Shaw.
(Appellant’s Br. 33-34 (citing R. 43-2, ID 467-472)). That evidence may persuade a jury that
Przekop-Shaw’s actions were not race-based. But it does not moot the fact issue created by
Przekop-Shaw’s disparate treatment of Bradley and Gonea.
b. Bradley Has Made a Showing that the Racially-Motivated Actions Were
Sufficiently Severe or Pervasive
Next, Przekop-Shaw argues that Bradley was not subjected to a severe and pervasive
hostile work environment. The severe and pervasive requirement contains an objective and
subjective component. Gallagher v. C.H. Robinson Worldwide Inc., 567 F.3d 263, 273–74 (6th
Cir. 2009). To meet this requirement, Bradley must show that an objectively hostile
environment existed and that she subjectively experienced severe and pervasive harassment. Id.
(citing Williams v. General Motors, 187 F.3d at 568). “Although the question of whether
conduct is severe or pervasive is quintessentially a question of fact, [this Court] ha[s] earlier
affirmed grants of summary judgment, determining that as a matter of law, the conduct
complained of was not sufficiently severe or pervasive.” Clay, 501 F.3d at 707 (citations
omitted).
“[A] hostile work environment . . . typically comprises a succession of harassing acts,
each of which ‘may not be actionable on its own.’” Id. at 708 (ellipses and brackets in original)
(quoting Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 638 (2007)). A court
determines whether a hostile work environment has been created “by looking at all the
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Case No. 16-1034, Bradley v. Arwood, et al.
circumstances . . . includ[ing] 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.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993). Title VII “does not set forth a general civility code for the American
workplace,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998), and “conduct
must be extreme” to amount to a hostile work environment. Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998). However, a “work environment viewed as a whole may satisfy the
legal definition of an abusive work environment . . . even though no single episode crosses the
Title VII threshold.” Williams v. General Motors, 187 F.3d at 564. A negative performance
review, the imposition of a performance improvement plan, or similar actions do not, on their
own, show a hostile work environment. See, e.g. Smith v. Leggett Wire Co., 220 F.3d 752 (6th
Cir. 2000). However, when “seen as a part of the ‘constellation of surrounding circumstances,’
including [] threatening language” and racially disparate treatment by a supervisor, this conduct
“could well be viewed as work-sabotaging behavior that creates a hostile work environment.”
Williams v. General Motors, 187 F.3d at 563.
Considering the totality of the circumstances, Williams v. General Motors, 187 F.3d at
562, there is enough evidence to put the question whether Przekop-Shaw subjected Bradley to
severe and pervasive race-based harassment to a jury. There is evidence to support the inference
that the Lockman incidents, Przekop-Shaw’s treatment of Bradley in relation to her treatment of
Gonea, and the holiday party incident were racially-based. Threatening to force Bradley to work
with someone who had racially harassed her was more than a mere offensive utterance. In
addition, Bradley has provided evidence to suggest that the race-based harassment she suffered
included daily interactions, emails, and other communications, barriers to her use of leave,
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Case No. 16-1034, Bradley v. Arwood, et al.
demands that she work while on medical leave, and unfounded negative reviews and counselling
memos, all contributing to a “work-sabotaging” hostile work environment. A jury could
conclude that Przekop-Shaw’s alleged mistreatment of Bradley as compared to Gonea and the
interrelated communications, reviews, and counseling memos resulted in ongoing harassment.
That Bradley was ultimately terminated in no small part because she refused to subordinate
herself to Gonea demonstrates the severity of this harassment and that it unreasonably interfered
with Bradley’s work performance.
Bradley does more than present a series of isolated offensive events. Rather, she
describes “a succession of harassing acts,” and though “each of [them] may not be actionable on
its own,” as a whole they are severe and pervasive enough to comprise a hostile work
environment. Clay, 501 F.3d at 708. Taken together, the allegations, which Bradley has
supported with evidence in the record, portray an environment of almost daily harassment and
belittling subordination that persisted and even intensified over a period of years, ultimately
resulting in her termination. A reasonable person could, and Bradley did, find such consistent
conduct hostile and abusive so as to satisfy the fourth prima facie requirement.
VI.
Because Bradley has demonstrated a violation of her right to a work environment free of
racial harassment, we affirm the district court’s order denying defendant qualified immunity and
remand for trial.
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Case No. 16-1034, Bradley v. Arwood, et al.
GRIFFIN, Circuit Judge, dissenting.
There is no Constitutional right to civility in the workplace. A supervisor may issue her
subordinates performance-based critiques and at times even decline to invite them to parties at
the supervisor’s home. But “discourtesy or rudeness should not be confused with racial
harassment” any more than unsupported allegations should be confused with evidence. See
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citing B. Lindemann & P. Grossman,
Employment Discrimination Law 349, and nn. 36–37 (3d ed. 1996) (brackets omitted)). My
colleagues permit both substitutions in concluding Susan Przekop-Shaw subjected Sonya
Bradley to a racially-hostile work environment. I disagree and would reverse the district court’s
judgment. Accordingly, I respectfully dissent.
I.
The majority provides some factual background, but understanding the district court’s
errors requires further context. In particular, it requires a closer examination of Bradley’s poor
performance under both Przekop-Shaw and Peter Kotula—the individual who personally
supervised Bradley for her last year of employment and against whom Bradley failed to muster
any evidence of racial harassment. I supply those facts here.
Bradley supervised five legal secretaries in the Michigan Unemployment Insurance
Agency’s (UIA’s) Detroit office and a sixth in the Grand Rapids office. She also served as
personal secretary to her direct supervisor, Donna Welch (a Caucasian), the “First Assistant” in
the Detroit Unit. Przekop-Shaw sat just above Welch in the chain of command as Chief of the
Attorney General’s (AG’s) Labor Division. She supervised the attorneys and support staff
within the UIA, including Bradley, but spent most of her time in Lansing. Defendant visited the
Detroit office no more than once a week.
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Case No. 16-1034, Bradley v. Arwood, et al.
Shortly after beginning in the UIA, Bradley met with Welch and Przekop-Shaw to
discuss her first major assignment: converting “the entire Detroit UIA office” from a manual
system to the AG’s computerized system. Bradley surmised that she needed additional support
staff to complete the assignment by the end of the year. According to Bradley, Przekop-Shaw
“immediately demonstrated her knowledge and authority by suggesting to bring Mr. Lockman on
as ‘additional AG staff’” to assist with the conversion. Bradley did not inform Przekop-Shaw of
her previous encounter with Lockman, but nonetheless suspected defendant was attempting to
expose her to her former harasser.
Welch left the UIA in June 2012, making Przekop-Shaw Bradley’s direct supervisor,
although she still oversaw Bradley’s work from the Lansing office. Plaintiff asserts that upon
becoming her direct supervisor, Przekop-Shaw “[i]mmediately . . . attempted to reclassify [her]
position to a lower grade, but was unsuccessful.” Bradley is presumably referring to her
“classification level,” which was indeed the same as colleague and fellow head secretary Amy
Gonea (a Caucasian). As proof of defendant’s efforts to “lower” her grade, plaintiff points to an
email Przekop-Shaw sent to Frank Russell, an official in the Human Resources Division of the
Michigan Civil Service Commission. Przekop-Shaw does not mention Bradley in the email. She
asks Russell if he has time to “discuss certain issues involving the UIA staff,” including how to
“[r]esolve [a] misclassification” issue. Russell asks defendant if she is referring to Bradley and
to describe the issue in more detail. Defendant’s response to Russell, assuming she wrote one, is
not in the record.
Bradley’s testimony sheds additional light on the misclassification issue. She explained
that when she first started at the UIA, she “got a call from HR personnel . . . saying that they had
posted the position wrong, that it wasn’t supposed to be for division head secretary, that there
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Case No. 16-1034, Bradley v. Arwood, et al.
was an error.” Plaintiff therefore understood that whatever inquiry defendant made about her
classification was not based on race, but an error in the posting of her position.
Even so, she contends that throughout her time at the UIA, Przekop-Shaw treated Gonea
more favorably and improperly permitted her to supervise Bradley. Defendant responds that she
treated Gonea like plaintiff’s supervisor because Gonea was her supervisor.
The issue boiled over in November 2012, when Bradley discovered another “AG Office
staff inappropriately attempted to use [her] personally issued state credit card,” which UIA
employees used to pay the state’s filing fees in unemployment cases. After plaintiff noticed the
discrepancy, Gonea emailed her, asking Bradley for her card information so that Gonea could
“add [it] to the Attorney General account.” Plaintiff did not respond to the email. Instead, she
“elevated” the matter “to LARA and the AG[’s] Office.” “Elevated,” in this instance, means
Bradley contacted LARA procurement manager LeAnn Droste and the Department of
Technology Management and Budget to confirm her understanding that information concerning
state-issued cards should not be shared with coworkers. “Both Ms. Droste and [the] DTMB
confirmed Bradley’s interpretation.”
After the incident, plaintiff recalls that, “although in Lansing,” Przekop-Shaw “became
more irate and defensive” toward her. Bradley is presumably referring to the disciplinary email
Przekop-Shaw sent her for overstepping Gonea’s authority—an email Russell approved as “a
good first step in taking corrective action.” Bradley attests that in a subsequent meeting,
defendant was “still upset with [her] for elevating the fraudulent attempt to use [her] credit card,”
and again “spitefully threatened” to transfer Lockman to Bradley’s unit.
Plaintiff sought medical leave in early 2013, giving January 17 as her leave date.
However, she contends Przekop-Shaw “would make [her] jump through hoops” before leaving.
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Case No. 16-1034, Bradley v. Arwood, et al.
On the 17th, “during numerous emails and an inappropriate racist phone call from Ms. Gonea,
[Bradley] was ordered to complete a series of assignments before leaving for the day.” Bradley
considered the phone call and assignments racially motivated not because of Gonea’s remarks,
but because Gonea gave her additional work that prevented her from leaving at her usual time.
Bradley insists—without mention of a similarly-situated comparator—that defendant “wouldn’t
have” subjected other employees to the same treatment.
One of plaintiff’s additional assignments was to “certify” her 2012 performance review
by viewing it online. Przekop-Shaw rated plaintiff as “meet[ing] expectations” overall, but rated
her as “needs improvement” in the majority of individual categories assessed. Przekop-Shaw
also offered feedback and a list of specific performance objectives which Bradley described as
“insulting, malicious, and disparaging.” Defendant’s remarks did not include references to race,
but were critical of Bradley’s work performance.
For example, under team building, Przekop-Shaw lamented that Bradley’s working
relationship with Welch deteriorated early in 2012, “usually end[ing] in disputes, exchange of
disparaging remarks, and denial of responsibility for concerns being expressed.” Defendant also
recalled that in a meeting with UIA attorneys, “Ms. Bradley vocally became defensive and
physically launched herself over the conference table to criticize the attorney who asked her [a]
question.” Further, while Bradley successfully cleared the backlog of cases in 2011, her efforts
in 2012 “ha[d] diminished . . . and a major backlog exists in entering cases within the Unit[’]s
legal file system.” Plaintiff does not dispute these claims.
Bradley took a full eight months off, returning to work in September 2013. Upon her
return, Przekop-Shaw asked a number of supervisors to prepare presentations on certain topics
for the upcoming “Attorney General meeting” between the Detroit, Lansing, and Grand Rapids
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Case No. 16-1034, Bradley v. Arwood, et al.
offices. She assigned Bradley “trust building.” “In light of [plaintiff’s] recent efforts to discuss
trust building at [a UIA] staff meeting,” defendant considered her “an ideal person to present this
topic.” But Przekop-Shaw was displeased with Bradley’s performance.
During her presentation, Bradley acknowledged the work of her Detroit secretaries, but
“deliberate[ly] omitted” mention of the Grand Rapids secretary she supervised remotely. She
also “use[d] her alleged workload as an excuse for not completing [her] assigned projects on
time.” “It was inappropriate for you to reference your workload as the reason that support staff
‘volunteers’ to assist you,” defendant told Bradley. “[T]his reference inappropriately
telegraphed to other support staff . . . that they have an obligation to volunteer to assist you.”
Further, Bradley encouraged her staff to “be forth right” when they felt someone treated them
rudely “and advise the person why they’re being rude.” Finally, plaintiff asked Przekop-Shaw to
agree that the Unit’s support staff was performing well, which Przekop-Shaw felt inappropriate
given plaintiff’s awareness of management’s “ongoing concerns with the support staff’s
performance.” Defendant issued plaintiff a “formal counseling” memo for the presentation.
Bradley states that “[f]rom that date forward, Przekop-Shaw consistently criticized [her]
performance at staff meetings, in front of her staff, and in public.” Plaintiff offers no citation for
this claim. And the single instance of criticism the district court seized upon—a meeting in
which plaintiff was told to “Put [her] big girl panties on”—was leveled at Bradley by another
African-American employee from the Human Resources Division. Plaintiff does not allege
Przekop-Shaw took part in, or had any role in influencing, this meeting.
In December, each UIA office hosted its own holiday party. But Przekop-Shaw limited
festivities in the Detroit office. According to one of plaintiff’s coworkers, defendant informed
the mostly African-American Detroit unit that they “were not allowed to have a holiday luncheon
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Case No. 16-1034, Bradley v. Arwood, et al.
as we usually do.” “[I]f we did have one it could only be 1 hour which has to be our lunch hour.
Well we later found out that Ms. Przekop-Shaw gave a holiday luncheon at her home,” with only
“her Lansing staff (all white)” in attendance.
Defendant issued Bradley her 2013 performance review in February 2014. Przekop-
Shaw rated plaintiff as “needs improvement” overall. She noted that Bradley failed to complete
a draft of an “operational procedure manual” for UIA staff, a project Welch assigned to her in
2012. Plaintiff also submitted an incomplete draft of a secretarial procedures manual. Her
monthly reports included inaccuracies that inhibited the work of other staff members. And while
the AG had “substantial[ly] change[d]” the UIA’s procedures in April 2012, Bradley still
instructed her staff to follow its former procedures. Finally, Bradley sent “emails question[ing]
her supervisor’s directions or challeng[ing] the Section Head or the Division Head Secretary’s
role in assuring proper performance of the unit.” Again, Bradley does not contend these
criticisms are inaccurate.
Defendant recommended to the Human Resources Division that plaintiff’s performance
may improve under daily supervision. The AG’s office and the Human Resources Division
agreed and assigned Kotula as Bradley’s Detroit-based supervisor. Under Michigan’s Civil
Service rules, a “needs improvement” rating triggers a performance improvement plan (PIP), so
Kotula developed a PIP for plaintiff with input from Przekop-Shaw and Russell.
The March 2014 PIP required plaintiff to maintain a daily log of activity, develop and
finalize the procedural operations and secretarial procedure manuals, and meet her assignment
deadlines—or communicate with Kotula ahead of time if a task could not be completed within
the allotted time. It also called for overall “improvement in communication and leadership
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Case No. 16-1034, Bradley v. Arwood, et al.
skills,” including “following directives and communicating professionally to build positive
relationships with leadership, co-workers, and staff.”
Bradley did not satisfy these requirements. Within the same month Kotula placed her on
a PIP, plaintiff refused to follow instructions from the new “First Assistant” Debbie Taylor to
“have [her] staff sign in to their computers using their established user ID and log in”
information. Plaintiff told Taylor she would not comply with the direction “until [she] had
received those instructions in writing.” Kotula issued plaintiff a formal counseling memo for the
incident. Later, he placed plaintiff on an “Interim Employee Rating,” providing notice that she
had not complied with the terms of her PIP.
Kotula issued plaintiff two more formal counseling memos in November 2014. The first
focused on emails Bradley sent while she was out of the office, which Kotula considered “either
confusing,” or “completely inappropriate.” The second warned plaintiff of her “ongoing failure
to meet the performance expectations set forth” in her PIP. This counseling memo accompanied
plaintiff’s “Interim Rating Progress Review”—in which Kotula concluded that plaintiff’s overall
performance remained unsatisfactory. Detailing the reasons for the rating, Kotula stated: “You
have been disruptive and inappropriate at managerial staff meetings. . . . Additionally, you have
demonstrated an inability or unwillingness to meet established deadlines. You often fail to
respond to the members of your management team when they inquire about the status of an
assignment given to you or a missed deadline.” “Cases are not being opened timely, and
assigned tasks are not tracked or completed in a timely manner.” Moreover, “in response to
inquiries concerning the status of work assigned to [her],” plaintiff “forwarded numerous files to
the Lansing office so that staff there could complete tasks which are [her] responsibility.”
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Case No. 16-1034, Bradley v. Arwood, et al.
Kotula reviewed plaintiff’s performance again in December 2014. He concluded
Bradley’s work was still lacking and issued her a fifth formal counseling memo listing the
deficiencies. For example, Bradley understood, but was not using, the “Sections email
assignment system” to track her assignments, making it difficult for others who were using the
mandated system to find her work. Bradley also declined to instruct her staff regarding certain
“assignment protocols,” which “in her opinion, [were] not part of her printed directions and
procedures.” Her productivity issues also persisted—the Detroit office had to transfer a number
of Bradley’s case files to Lansing after plaintiff failed to open them in a timely manner. Of the
130 email assignments generated in the UIA between October 30 and November 14, Bradley’s
staff completed only 82. “Ms. Outwater accounted for 77 assignments; Ms. Jackson reported 5
completed assignments; and Ms. Bradley reported 0 completed assignments.” Kotula
subsequently extended plaintiff’s Interim Rating Period through March 2015.
By February, he issued Bradley two more formal counseling memos. Again, the first
involved plaintiff’s email communications, specifically, an email she sent Kotula concerning
Taylor. In it, Bradley explained that Taylor “seems to be creating new work protocols that are
just the opposite of past practices” and sought Kotula’s assistance in correcting her.
“Furthermore,” she added, “Ms. Taylor recently suggested that if I place documents in my work
area . . . that may be in her viewing sight, she will take or even destroy them.” Kotula deemed
the email “inappropriate,” “accusatory,” and “unprofessional.”
Kotula issued the second February counseling memo in conjunction with plaintiff’s
second unsatisfactory Interim Rating Progress Review. The memo spells out the occasions
wherein Bradley failed to complete her assignments, communicated in an inaccurate or
unprofessional manner, or did not follow instructions. After a final meeting to discuss her
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Case No. 16-1034, Bradley v. Arwood, et al.
performance in March 2015—which Przekop-Shaw did not attend—the UIA terminated
Bradley’s employment.
II.
I agree with the majority on a few basic points. First, we have jurisdiction to decide
whether, under the facts presented, Prezkop-Shaw violated plaintiff’s clearly established right to
be free of a racially-hostile work environment. Williams v. Mehra, 186 F.3d 685, 689–90 (6th
Cir. 1998) (en banc); see also Risinger v. Ohio Bureau of Workers’ Compensation, 883 F.2d 475,
479 (6th Cir. 1989); Poe v. Haydon, 853 F.2d 418, 428–29 (6th Cir. 1988). Second, I agree this
case turns primarily on the third and fourth elements of plaintiff’s claim—whether Przekop-
Shaw harassed Bradley based on race, and whether the harassment created an abusive work
environment. Williams v. CSX Transp. Co., Inc., 643 F.3d 502, 511 (6th Cir. 2011). I disagree,
however, with the majority’s application of the summary judgment and hostile work
environment standards.
Our “duty to view the facts in a light most favorable to the nonmovant does not require or
permit the court to accept mere allegations that are not supported by factual evidence.” Chappell
v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009). “To make out a genuine issue of
material fact, [the] plaintiff must present significant probative evidence tending to support her
version of the facts, evidence on which a reasonable jury could return a verdict for her.” Id. at
913. Qualified-immunity plaintiffs are no exception. Id. Bradley’s evidence must also be
specific. See Matsushita Elec. Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
She cannot defeat defendant’s motion by “replac[ing] conclusory allegations of the complaint . . .
with [the] conclusory allegations of an affidavit.” Lujan v. Nat’l Wildlife Fed., 497 U.S. 871,
888 (1990).
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Case No. 16-1034, Bradley v. Arwood, et al.
Further, to succeed on her substantive claim, the complained of conduct must be
objectively hostile. “Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment—an environment that a reasonable person would find
hostile or abusive—is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993).1 Title VII does not create a “general civility code” for the American workplace,
Faragher, 524 U.S. at 788 (citation omitted), and neither does § 1983 in its place, Arendale v.
City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008). As a result, we have said that “minor social
slights” like the failure to invite an employee to a holiday party—even if based on race—“must
[be] entirely discount[ed].” See Crawford v. Medina Gen. Hosp., 96 F.3d 830, 836 (6th Cir.
1996) (addressing failure to invite the plaintiff to office pizza parties in the age-discrimination
context).
Bradley has not made either showing. First, her claims of racial harassment are
unsupported and, at times, even contradicted by the record. Second, her allegations are
insufficient to establish a racially hostile work environment as a matter of law. The district court
therefore erred in denying Przekop-Shaw’s motion for summary judgment.
In reaching the opposite conclusion, the majority relies on three incidents the district
court cited in finding a genuine issue of material fact: (1) that defendant, on two occasions,
threatened to transfer Lockman to Bradley’s work area; (2) that defendant treated Bradley
“substantially different” than Gonea; and (3) that defendant treated the African-American staff in
the Detroit office less favorably than the mostly Caucasian Lansing staff because she neglected
to invite them to a party. Additionally, the majority credits plaintiff’s broad assertion that
Przekop-Shaw: (4) “attempt[ed] to downgrade her position[,] . . . berated her work performance,
1
“This Circuit has held that the required elements of prima facie proof necessary for a plaintiff charging a
racially hostile work environment under both Title VII and 42 U.S.C. § 1983 are the same.” Boutros v. Canton
Reg’l Transit Auth., 997 F.2d 198, 202 (6th Cir. 1993).
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Case No. 16-1034, Bradley v. Arwood, et al.
arbitrarily placed her on performance-improvement plans, [issued her] groundless counseling
statements for asking for assistance, fail[ed] to meet with her to discuss her work performance,
requir[ed] her to complete unrealistic work assignments before taking annual leave, and den[ied]
her comp-time”—a run-on claim which appears in plaintiff’s brief without citation to the record.
I address each in turn.
A.
Przekop-Shaw’s threats to transfer Lockman. Bradley attests that defendant twice
threatened to transfer Lockman, the attorney who made a racially-charged comment toward
Bradley, to Bradley’s unit. Yet these threats can be taken as proof of race-based mistreatment
only if Przekop-Shaw knew of Lockman’s harassing behavior. Plaintiff presents no evidence that
she did.
Defendant testified she “had no knowledge of any interaction between Mr. Lockman and
Ms. Bradley” before Bradley filed her complaint. Nothing in Bradley’s affidavit (from which the
majority takes most of its facts) suggests otherwise. Plaintiff did not attest, for instance, that she
told Przekop-Shaw about Lockman’s remark. In fact, she did not attest, testify, or claim in her
brief that she informed anyone of Lockman’s harassment at any time. Nor does her amended
complaint include facts permitting an inference that defendant knew of the harassment. Indeed,
this was one of the reasons the district court dismissed her disparate treatment claim against
defendant on the pleadings:
Plaintiff alleges that Defendant Przekop-Shaw “became enraged with Plaintiff and
spitefully threatened to transfer Mr. Lockman to the section in effort [sic] to
intimidate Plaintiff and allow him to continue to harass and bully Plaintiff if she
did not stop complaining of issues in the office and ‘disobeying her.’” This, also,
is a conclusory allegation, as Plaintiff does not indicate that Defendant Przekop-
Shaw even knew of the alleged racial statement made by Mr. Lockman.
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“Accordingly,” the district court could not “even draw the inference” that defendant’s reference
to Lockman “was a spiteful threat of intimidation and harassment.” Neither can I.
When asked at oral argument what evidence supports her assertion that defendant knew
of Lockman’s harassment, plaintiff’s counsel explained that another unnamed employee, who he
declined to depose, reported the incident to “the AG’s Office.” My colleagues agree he “could
not point to evidence in the record” demonstrating that Bradley, or anyone else, “elevated” the
harassment issue to “senior leadership” in the Attorney General’s office (whoever that may be).2
Still, Bradley implies defendant must have known about Lockman’s conduct because “Przekop-
Shaw and Mr. Lockman worked together in the Attorney General[’s] Office.” Bradley offers no
record citation for this claim because there is no evidence they did.
Taking plaintiff’s unproven allegations as evidence is a running theme for the majority.
It concludes Bradley can create a genuine issue of fact by questioning the validity of defendant’s
evidence, without presenting her own “affirmative evidence” “sufficient to allow a jury to return
a verdict in [her] favor.” Wimbush v. Wyeth, 619 F.3d 632, 638 n.4 (6th Cir. 2010). “[T]his is
precisely the argument” the Supreme Court “rejected in Celotex.” Harvey v. Campbell Cty.,
453 F. App’x 557, 560 (6th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)). “Of course, a party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying” the proofs “which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
2
Counsel also argued that we can infer defendant’s inappropriate intent because Lockman is an attorney
and, therefore, reasons the majority, “was not in a position to alleviate the workload of the secretarial staff, nor
would transferring him to Bradley’s unit have been a legitimate response” to Bradley’s credit card complaint. Such
an inference is supportable only if we assume plaintiff’s theory is true—that Przekop-Shaw knew Lockman had
harassed Bradley. We cannot make this assumption because, as even the majority agrees, there is no evidence she
did. Bradley’s characterization of Przekop-Shaw’s demeanor as “spiteful[]” and “upset” (made in an affidavit, not
in testimony, as the majority states) is not proof that Przekop-Shaw knew of the harassment. One does not “lose[]
sight of [one’s] obligation to credit Bradley’s testimony” when that testimony does not, in fact, support her claims of
defendant’s knowledge.
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But once the movant discharges this responsibility, the nonmovant bearing the burden of proof at
trial must respond. She must “go beyond the pleadings and by her own affidavits, or by [other
evidence] on file, designate specific facts showing there is a genuine issue for trial.” Id. at 324
(internal quotation marks omitted). Bradley has not designated any such facts.
Plaintiff may believe defendant was aware of the harassment at the time she “spitefully
threatened to transfer” Lockman, but her belief is based on suspicion alone; no record-supported
facts permit this inference. If we cannot reasonably infer that Przekop-Shaw knew of Lockman’s
harassment, we likewise cannot reasonably infer that she threatened to transfer him to plaintiff’s
unit on account of plaintiff’s race. See Williams, 643 F.3d at 511 (facially neutral conduct
qualifies as race-based harassment only if “it would not have occurred but for the plaintiff’s
race”). Accordingly, these threats do not carry any weight in the hostile work environment
inquiry.
Przekop-Shaw’s more favorable treatment of Gonea. The majority next concludes
“[t]here is evidence in the record” to support Bradley’s claim that Przekop-Shaw treated her less
favorably than Gonea—and there is, although it does not rebut defendant’s motion for summary
judgment.3
Przekop-Shaw testified that, despite their shared classification, Gonea and Bradley were
“[n]ot in the same department.” Whereas plaintiff served as the head secretary of the UIA, a unit
within the AG’s Labor Division, Gonea served as the head secretary of the Labor Division—
3
The majority points to two “affidavits of former co-workers” who claimed to witness defendant’s
mistreatment of Bradley. The first states, without context: “Ms. Przekop-Shaw with the help of [several
subordinates] totally stripped Ms. Bradley of all her authority, and Ms. Bradley was treated as if she was not a part
of management yet Ms. Gonea who is the same classification of Ms. Bradley was not stripped of any authority.”
The second states: “Ms. Bradley was treated differently than her white colleague Ms. Amy Gonea,” and “Amy
Gonea treated Ms. Bradley as a subordinate instead of a co-worker and was disrespectful.” Affidavits like these,
consisting of “vague, conclusory allegations” and subjective beliefs are insufficient to withstand a motion for
summary judgment. Hartsel v. Keys, 87 F.3d 795, 803–05 (6th Cir. 1996); see also Mitchell v. Toledo Hosp.,
964 F.2d 577, 584–85 (6th Cir. 1992).
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Case No. 16-1034, Bradley v. Arwood, et al.
“charged with overseeing all secretarial functions” within its units. In that sense, Gonea was part
of the secretarial management team and above Bradley in the chain of command. Defendant
explained this to Bradley, although Bradley was unhappy with the arrangement. Plaintiff’s
dislike of her employer’s governing structure is not proof of a hostile work environment.
Rather than engage with defendant’s testimony, the majority points to an email in which
Frank Russell observed that Bradley must have been upset at “having to abide by a peer’s
([Gonea’s]) direction.” But Russell’s statement taken as a whole does not create a question of
fact. The email in question is Russell’s response to the disciplinary email Przekop-Shaw sent
plaintiff after plaintiff ignored Gonea’s request for her government-issued credit card
information. Przekop-Shaw consulted with Russell before emailing Bradley because she had to
obtain his approval before issuing any discipline. While Russell identifies Gonea as Bradley’s
peer, he explicitly reiterates his approval of Przekop-Shaw’s decision to discipline Bradley for
ignoring Gonea’s directions—confirming defendant’s testimony that Gonea was, in fact,
Bradley’s supervisor. “This would have been a good first step in taking corrective action,” he
states. “The content of your email expressing your concerns would have been perfect for a
Formal Counseling Memorandum.” Thus, Russell agreed with defendant’s warning to plaintiff:
that Bradley, as “a section head secretary,” does not “trump the Division head secretary’s
authority.”
Unsatisfied with this evidence, the majority concludes that a jury should decide whether
Przekop-Shaw treated Bradley differently “due to an error in Bradley’s classification level or
[due] to racial animus.” I disagree. For one, my colleagues appear to assume that Gonea’s equal
classification precludes her from being plaintiff’s supervisor. Nothing in Russell’s email (or the
record) suggests that supervision of one employee by another of the same classification is
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Case No. 16-1034, Bradley v. Arwood, et al.
improper, or contrary to Michigan Civil Service protocol. If anything, Russell’s decision to
approve the discipline while knowing that Gonea and plaintiff have the same classification
suggests just the opposite—that classification is not indicative of supervisory status.
For another, to the extent my colleagues require proof that plaintiff should have been
classified at a lower level before Gonea could supervise her, they have it. Bradley testified that
when she was first hired, “HR personnel” informed her that they had “posted [her] position
wrong” with an incorrect classification level. Plaintiff’s admission is further proof that she did
not “trump” Gonea’s authority.
Ultimately, plaintiff’s only counter to defendant’s explanation is her assertion that “Ms.
Gonea was not in Bradley’s chain of command.” She gives no record citation for this claim, and
the evidence does not support it. Defendant’s treatment of plaintiff’s supervisor as her
supervisor is not race-based conduct. This claim does not weigh in the hostile work environment
analysis.
Przekop-Shaw’s mistreatment of the Detroit staff. This claim is based on one event:
Przekop-Shaw’s failure to invite the majority African-American staff from the Detroit office to a
party she hosted at her home for the majority Caucasian staff from the Lansing office. Because
employees in the Detroit office are predominantly African American, (and because plaintiff
submitted evidence to support this assertion), one can infer this was a race-based exclusion. This
event—and only this event—is therefore a part of the circumstances considered in the hostile
work environment inquiry.
“Isolated incidents, however, unless extremely serious will not amount to discriminatory
changes in the terms or conditions of employment.” Bowman v. Shawnee State Univ., 220 F.3d
456, 463 (6th Cir. 2000). Denying staff an invitation to a holiday party is rude. But “extremely
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Case No. 16-1034, Bradley v. Arwood, et al.
serious” it is not. See Crawford, 96 F.3d at 836 (describing exclusion from office parties as a
“minor social slight[]”). Plaintiff must therefore point to further race-based conduct to
demonstrate her workplace was the type “a reasonable person would find hostile or abusive.”
Bowman, 220 F.3d at 463. As explained, she has not.
Other claims against Przekop-Shaw. Plaintiff’s remaining list of grievances, that
Przekop-Shaw “attempt[ed] to downgrade her position[,] . . . berated her work performance,
arbitrarily placed her on performance-improvement plans, [issued her] groundless counseling
statements for asking for assistance, fail[ed] to meet with her to discuss her work performance,
requir[ed] her to complete unrealistic work assignments before taking annual leave, and den[ied]
her comp-time,” are alleged in her brief without citation to the record. This alone is reason
enough to reject them. But, on top of that, there are others.
First, plaintiff has not shown that Przekop-Shaw was even responsible for things like
“comp-time,”4 and it is undisputed that Kotula, not Przekop-Shaw, issued the majority of
plaintiff’s “performance-improvement plans” and “counseling statements.” In a constitutional
action against defendant in her individual capacity, see 42 U.S.C. § 1983, this is a dispositive
oversight. “When suing an individual actor, such as [Przekop-Shaw], for constitutional
violations under § 1983, a plaintiff must demonstrate that the actor ‘directly participated’ in the
alleged misconduct, at least by encouraging, implicitly authorizing, approving or knowingly
acquiescing in the misconduct, if not carrying it out h[er]self.” Flagg v. City of Detroit, 715 F.3d
165, 174 (6th Cir. 2013) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). That is,
a defendant accused of unconstitutional discrimination must be “personally involved in the
4
I note, moreover, plaintiff failed to demonstrate that she was denied comp-time based on race. When
asked whether she could name a comparable employee who was granted overtime or “comp-time” when defendant
denied it to her, Bradley identified another African-American employee, working under a different supervisor, in a
different department.
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Case No. 16-1034, Bradley v. Arwood, et al.
alleged misconduct” to be personally liable for it. Foster v. Michigan, 573 F. App’x 377, 394
(6th Cir. 2014) (quoting Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3 (6th Cir. 2005)).
Complicating this issue further, my colleagues imply that defendant can be held liable for
the negative reviews Bradley received from Kotula, because “subsequent negative performance
reviews often cite failure to improve on issues raised in prior reviews,” creating a “compounding
effect” over time. But insofar as there is a legal theory under which Przekop-Shaw can be held
responsible for Kotula’s decisions, § 1983 is not it. “Under § 1983, there is no respondeat
superior or vicarious liability,” which is precisely why Bradley must establish defendant’s
“direct[] participat[ion]” in order to win a judgment against her. Flagg, 715 F.3d at 174 (citation
omitted).5 For some of these conclusory allegations, plaintiff has failed to make this showing.
Second, a number of Bradley’s claims mischaracterize the record, starting with the
assertion that defendant “attempt[ed] to downgrade” her position. Plaintiff’s evidence does not
demonstrate this event actually happened. She points to the email exchange between Przekop-
Shaw and Russell in which defendant asks about employee “misclassification,” but does not
mention Bradley, much less ask that she be “downgrade[d].” The majority rightly notes “[i]t
does not appear from the record that any change was made,” but it is more accurate to say “it
does not appear from the record that any change” was even requested. Further, it is undisputed
that Przekop-Shaw’s inquiry to Russell was not racially motivated; Bradley acknowledged her
position classification had been posted in error.
5
The majority’s related claim—that “Przekop-Shaw’s favorable treatment of Gonea at the expense of
Bradley became a substantial factor in the series of reviews that culminated in Bradley’s dismissal”—is inaccurate.
Again, Kotula supervised Bradley, gave her assignments, assessed her performance, and recommended her
termination during her last year of employment. There is no evidence Przekop-Shaw was involved in the decision to
discharge Bradley. Termination, moreover, is a “[d]iscrete act,” which is a “separate actionable ‘unlawful
employment practice’” distinct from a hostile work environment claim. Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 114–15 (2002). And plaintiff lost on this claim. The district court dismissed her disparate treatment
action at the pleading stage because, again, Bradley offered only “conclusory assertions” with “no facts to support”
them. Plaintiff did not cross-appeal this ruling; resurrecting the claim on her behalf is improper and beyond the
scope of our jurisdiction.
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Case No. 16-1034, Bradley v. Arwood, et al.
The record also belies plaintiff’s suggestion that Przekop-Shaw prevented her from
taking leave. During her four years at the UIA, Bradley took approximately nine months of
leave—eight of which Przekop-Shaw approved while Bradley was under her immediate
supervision. While the majority omits this fact, I cannot. Determining whether a genuine issue
of fact exists requires “addressing all the facts in the record—including those that uniformly cut
against the plaintiff.” EEOC v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir. 2015) (en banc).
That Gonea, and not defendant, gave Bradley additional work to do before leaving for the day is
not proof of racial harassment absent evidence that defendant treated persons outside the
protected class differently, and Bradley offers none.
An even greater mischaracterization is the implication that Przekop-Shaw’s critiques of
Bradley’s work performance were unjustified. Plaintiff at no point disputes the factual accuracy
of the criticism she received from defendant or Kotula—and indeed, seems to concede that she
failed to complete assignments in a satisfactory or timely manner.6 “Without more,” negative
performance assessments—particularly those based on merit rather than protected status—
“cannot ‘create an environment that a reasonable person would find hostile or abusive.’” El-
Zabet v. Nissan N. Am., Inc., 211 F. App’x 460, 464 (6th Cir. 2006) (quoting Smith v. Leggett
Wire Co., 220 F.3d 752, 760 (6th Cir. 2000)).
The majority does not dispute that defendant carried her burden to “inform[] the court of
the basis for [her] motion” and identify evidence “which [she] believes demonstrates the absence
of a genuine issue of fact.” Celotex, 477 U.S. at 323. Nevertheless, it insists we must accept
6
Bradley instead argued defendant made her job impossible by assigning her an unreasonable number of
tasks and denying her the resources necessary to get the job done. However, this claim is inaccurate. Management
granted plaintiff’s request to hire an additional secretary, as well as a word processing assistant in 2011, not long
after Bradley started. By the time defendant became Bradley’s supervisor in 2012, it is not clear that she had
authority to grant Bradley’s request for additional staff. Plaintiff acknowledged the UIA could not hire temporary
assistants without approval from LARA and had reduced its budget and cut staff at the AG’s orders. And there is no
evidence defendant provided employees outside the protected class the assistance she allegedly denied to plaintiff.
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Case No. 16-1034, Bradley v. Arwood, et al.
Bradley’s facts as true unless they are “blatantly contradicted” or “utterly discredited by the
record.” (Maj. Opn. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007))). Some of them are.
But more to the point, before we can accept Bradley’s facts as true, plaintiff must step forward
with a record-supported version of the facts in the first instance. She has not.
“A plaintiff cannot simply sit back and highlight deficiencies in the defendant’s argument
without providing some affirmative support for [her] own position.” Newell Rubbermaid, Inc. v.
Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). Nor can she simply move the conclusory
allegations of her complaint into a conclusory affidavit. Lujan, 497 U.S. at 888. She must
“make good on the promise of the pleadings by laying out enough evidence that will be
admissible at trial to demonstrate that a genuine issue of material fact exists, and that a trial is
necessary.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009).
Here, a trial is not necessary. At most, plaintiff has shown that defendant neglected to
invite her and other African-American employees to a holiday party at her home. This is a
“minor social slight[]”; not a racially-hostile work environment. Crawford, 96 F.3d at 836.
“[Holiday] parties are simply not a term, condition, or privilege of employment of which
Congress has taken cognizance.” Id. The district court erred in concluding otherwise.
B.
Our court “has established a relatively high bar for what amounts to actionable
discriminatory conduct under a hostile work environment theory.” Phillips v. UAW Int’l, 854
F.3d 323, 328 (6th Cir. 2017). Bradley’s claims do not reach it.
The behaviors that typify a racially-hostile work environment are not subtle. Most cases
do not include “minor social slights” like denying an employee an invitation to a party.
Crawford, 96 F.3d at 836. They instead include supervisors’ routine use of the N-word and other
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Case No. 16-1034, Bradley v. Arwood, et al.
racist terms, graffiti referring to the “KKK” and depicting lynchings in common areas, the award
of stickers for firing minority workers, vandalism to personal property with racial epithets, denial
of promotions to and disproportionate discipline of African-American employees, display of a
swastika, and even physical assault. See Jackson v. Quanex Corp., 191 F.3d 647, 651–56 (6th
Cir. 1999); see also e.g., Jordan v. City of Cleveland, 464 F.3d 584, 597–98 (6th Cir. 2006) (a
reasonable jury could find a hostile work environment where, “for more than a decade,” the
plaintiff was subject to “confrontational and caustic behavior,” “various racial slurs, demeaning
jokes and inflammatory graffiti,” “isolation and segregation,” and “disparate discipline and
additional duties”). Hanging nooses, drawing offensive caricatures, and employee refusal to
respond to sensitivity training may also evince a workplace so “permeated with discriminatory
intimidation, ridicule and insult,” no reasonable person could tolerate it. Harris, 510 U.S. at 21;
see, e.g., Bailey v. USF Holland, Inc., 526 F.3d 880, 882–84, 887 (6th Cir. 2008) (detailing such
facts). While no list is exhaustive, the deeply offensive nature of the foregoing acts underscores
what the Supreme Court “made . . . clear” in Faragher: “conduct must be extreme to amount to
a change in the terms and conditions of employment.” 524 U.S. at 788.
Plaintiff’s events are not extreme. Even if she could prove them, the three incidents the
district court cited in finding an issue of fact—that defendant (1) twice threatened to transfer
Lockman to her work area; (2) treated Gonea more favorably; and (3) denied plaintiff and other
African-American staff an invitation to a party at her home—are well beneath the “relatively
high bar” the case law demands. Phillips, 854 F.3d at 328. Certainly, no reasonable actor in
Przekop-Shaw’s position would have known that her conduct was on par with those who
routinely use racial slurs, deface personal property with racial epithets, hang nooses, or
physically assault employees. See Chappell, 585 F.3d at 907 (“Qualified immunity ordinarily
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Case No. 16-1034, Bradley v. Arwood, et al.
applies unless it is obvious that no reasonably competent official would have concluded that the
actions taken were unlawful.”).
Nor are plaintiff’s events objectively severe or pervasive. Przekop-Shaw was plaintiff’s
immediate supervisor for approximately twenty-two months (eight of which plaintiff took off
with Przekop-Shaw’s approval). In that time, and throughout plaintiff’s four years at the UIA,
the parties agree that Przekop-Shaw generally visited the Detroit office no more than once a
week.7 A supervisor may be able to harass her subordinates from a remote location, but her
capacity to “permeate[]” the workplace with “discriminatory intimidation, ridicule, and insult”
severe and pervasive enough to alter the conditions of their employment is likely diminished by
such distance. Harris, 510 U.S. at 21. This is so because “the actionable wrong” in a hostile
work environment claim “is the environment, not the individual acts that, taken together, create
the environment.” See Clay v. United Parcel Service, 501 F.3d 695, 707–08 (6th Cir. 2007)
(citation omitted) (affirming the district court’s finding that “fifteen specific incidents spanning a
two-year period were isolated and were not pervasive”). An environment is fundamentally
holistic. It does not “occur on any particular day,” but is marked by repeated conduct occurring
“over a series of days or perhaps years.” Morgan, 536 U.S. at 115. A supervisor has less impact
on its character when she is not physically present there for “a series of days” at a time.
III.
Applying the appropriate standards, Bradley has not shown that defendant subjected her
to an environment so “permeated with discriminatory intimidation, ridicule, and insult” that a
reasonable person would find it intolerably hostile or abusive. Harris, 510 U.S. at 21. Nor has
she demonstrated that a reasonable officer in Przekop-Shaw’s position would have known that
7
The majority’s claim that defendant and plaintiff had “daily interactions” is incorrect. Bradley and
Przekop-Shaw were often not even in the same office. Even plaintiff agrees “[i]t should be noted that Przekop-Shaw
worked primarily in the Department’s Lansing office, visiting Detroit approximately one day per week.”
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Case No. 16-1034, Bradley v. Arwood, et al.
her conduct created such an environment. For these reasons, I would reverse the district court’s
denial of qualified immunity and remand for entry of summary judgment in favor of defendant.
I respectfully dissent.
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