Howard v. Board of Education of the Memphis City Schools

ROGERS, Circuit Judge.

I concur in the majority’s opinion, except that I respectfully dissent from the portion finding that Howard stated an actionable claim for retaliatory harassment.

The principal issues here are whether the Memphis City Schools (“Schools”). Howard’s employer, took adverse employment action against Howard after she filed her complaints, and whether Russell, her supervisor, subjected her to severe or pervasive retaliatory harassment because she had complained. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000). The majority finds that the evidence Howard adduced did not amount to a hostile work environment, but it finds differently regarding retaliatory harassment because Howard alleges additional evidence for this claim: the Schools presented her with a note commemorating her service as a “custodial helper”; the Schools transferred her to different schools on two occasions; the Schools sabotaged her efforts to obtain an administrative position; Russell transferred from her main building classroom into a portable classroom; and Russell scrutinized her activities and monitored her closely after she had made her complaints.

Regarding the Schools’ actions, it is clear that the “custodial helper” comment does not constitute a “materially” adverse employment action. See Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir.1999) (noting that “a materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience”). Similarly, it is well-established that transfers without anything more do not constitute adverse employment actions. In Kocsis v. Multi-Care Management Inc., 97 F.3d 876 (6th Cir.1996), for example, we noted that reassignments without changes in salary, benefits, title, or work hours usually do not constitute adverse employment actions. Id. at 885-86. In the present case, Howard was transferred twice, first from WSMS to Havenview Middle School, and then-two years later-to Manassas High School.1 It is undisputed that her salary, benefits, title, and work hours remained the same in both of these transfers, and she was able to keep teaching in her area of specialty, English. Howard concedes that she has *285no complaints about physical conditions at Havenview, which is a school reserved for advanced students, and though she testified that conditions at Manassas were not as good, she alleged no unusual hardship about the position.2 In my view the series of transfers was not a sufficient basis for a jury to find an adverse employment action.

There was also insufficient evidence that Howard was wrongly prevented from obtaining an assistant principal job. Such a step by defendants would indeed constitute an adverse employment action. See Allen v. Mich. Dep’t of Corr., 165 F.3d 405, 410 (6th Cir.1999) (“For purposes of Title VII, a failure to promote is an adverse employment action.”). But Howard failed to bring forward any evidence that the Schools had any part in her failure to obtain a position. The record indicates that the Schools’ responsibility is to receive resumes and circulate them to the various principals, and then it is up to individual principals to choose whether to interview or hire any given candidate. Howard introduced evidence that she was qualified for a position, that she sent out over 35 applications for positions within the Schools, that she was interviewed for three of the positions that she applied for, that she was hired for none of these positions, and that one of the schools she interviewed with never sent her a rejection letter. But in light of the Schools’ limited role in the hiring process, the only thing it could be held responsible for is not circulating Howard’s resume. That Howard was in fact interviewed is evidence that the Schools did in fact circulate her resume. Consequently, to find that the Schools saw to it that Howard was denied a position, the jury would have to speculate that either the Schools either sabotaged the other resumes she sent out, or the Schools somehow saw to it that the individual principals decided not to hire Howard. There is not sufficient evidence in the record to support such a conclusion.

Next, there are the incidents involving Russell. To establish that Russell’s conduct constituted severe or pervasive retaliatory harassment, Howard must show that “the workplace is permeated with discrimination, intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment[.]” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); see also Morris, 201 F.3d at 790. Relevant factors “include 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, 510 U.S. at 23, 114 S.Ct. 367; see also Morris, 201 F.3d at 790 (citing this passage). Russell transferred Howard from her main budding classroom into a portable classroom. Even assuming that Russell did this for purely retaliatory reasons, there was no evidence that the portable classrooms were anything more than distasteful, and anyway Russell-when Howard made it clear to him that a portable would for her be intolerable-gave Howard the option of staying in the main building by becoming a “floater.” Russell also was said to have scrutinized her activities and monitored her closely after she had made her complaints. Again, assuming that Russell did this in retaliation, the evidence Howard submitted was simply that Russell was unfriendly towards her *286and treated her with suspicion. Neither of these actions amounts to “severe or pervasive retaliatory harassment.”

For these reasons, I respectfully dissent from the majority’s finding that Howard stated an actionable claim for retaliatory harassment.

. The Schools also transferred her in 2000, when she requested-after the 2000-2001 school year had begun-to be taken off unpaid miscellaneous leave. But Howard presented no evidence of this transfer at trial, so I will not consider it here. Even if it were under consideration, it would not change the result.

. Additionally, the Schools had a good reason to transfer her from Havenview: she had taught ninth-grade English at Havenview, and when Havenview eliminated its ninth-grade class and sent the students to a different school, Howard and other ninth-grade teachers at Havenview were also sent elsewhere.