On March 2nd, 2018, in Mumm v. Charter Township of Superior, the Sixth Circuit reversed and remanded a district court decision granting summary judgment to the defendant on a retaliation claim. The plaintiff, who worked as an accountant, human resources administrator, and an information technology administrator, told her employer that she was fed up with being paid less than her male coworker and threatened to sue her employer if they did not grant her a raise.
In February of 2014, the plaintiff filed a complaint with her employer, refuting discipline she received for errors she made with deposits and neglecting other job duties. The plaintiff subsequently met with her employer to discuss withdrawing her complaint. At this meeting, the plaintiff complained about mistreatment and stated that she would withdraw the complaint only if she was granted a raise because she was fed up with being paid less than her coworker. After the employer refused to agree to this proposal, the plaintiff informed her employer that she had consulted an attorney and intended to file a lawsuit.
Following this meeting, the plaintiff was suspended without pay and the employer began the process of her termination. Following her termination, the plaintiff brought multiple claims against her employer, one of which was retaliation. The plaintiff claimed that her employer retaliated against her by firing her after the complained about the alleged sex discrimination.
The Sixth Circuit found that the plaintiff’s threat to sue “was clear enough to qualify as protected activity.” The court held that even though the plaintiff did not say the “magic words”, “sex discrimination,” a reasonable jury could find that the employer should have known that the plaintiff was making a claim of sex discrimination. The court reversed and remanded the case for trial.
The important lesson for employers is that there is that there are no “magic words” an employee must use to establish that they are engaged in protected activity. It can be difficult to discern when an employee is asserting vague unfair treatment, compared to whether they are asserting illegal discrimination. Employers should consider the context of the complaint or seek legal counsel about whether a particular complaint is protected activity under the law.
Attorneys at FHKAD routinely advise and defend employer respect to discrimination, harassment and retaliation claims, both before the EEOC and OCRC, and in court. For more information, contact Stephanie Schoolcraft at (614) 221-1216 or sschoolcraft@fishelhass.com.