holding that allegations, which included defendant’s singling out plaintiff for “intense supervision and criticism” did not rise to adverse employment action, because plaintiff “ha[d] not been terminated or demoted, or had his pay reduced, benefits lessened, or responsibilities diminished[]”
How later courts described this case
- holding that allegations, which included defendant’s singling out plaintiff for “intense supervision and criticism” did not rise to adverse employment action, because plaintiff “ha[d] not been terminated or demoted, or had his pay reduced, benefits lessened, or responsibilities diminished[]”
- finding purported retaliatory harassment not sufficiently severe or pervasive where employee claimed that supervisors continually monitored him and subjected his work to criticism
- holding that a warning letter and singling an employee out for criticism did not constitute adverse employment action
- holding no adverse action where plaintiff “put forth virtually no evidence on the overtime issue”
Written by the judges who cited it.
The opinion
GIBBONS, Circuit Judge.
I concur in the result in this case, but I write separately to point out my disagreement with my fellow panelists’ conclusions concerning which issues were raised in the *271 district court and are properly before us on appeal.
With regard to Broska’s claim of severe or pervasive retaliatory harassment, I cannot agree that the district court applied an incorrect legal standard or erred in any way in its grant of summary judgment to defendants. My reading of the record is that Broska never raised a claim of severe or pervasive harassment in the district court.
My interpretation of the record rests on two facts. First, while the recitation of facts in Broska’s complaint uses the word “harassment,” Broska fails mention harassment in the part of his complaint stating his theory of recovery. The only theory of recovery alleged is retaliation based on an adverse employment action; nowhere in his complaint does Broska allege that he seeks recovery for severe or pervasive harassment. Second, in the briefing on the summary judgment motion in the district court, neither party addressed whether Broska had produced sufficient evidence of retaliatory harassment to survive summary judgment. Specifically, Broska does not mention severe or pervasive harassment as a theory of recovery in his memorandum opposing defendants’ motion for summary judgment. Given this record, it is hardly surprising that the district court opinion does not address retaliatory harassment. The simple use of the word “harassment” is insufficient to place a district court on notice that a plaintiff is claiming he was subjected to severe or pervasive retaliatory harassment. The district court is not required to address theories of recovery not asserted by a plaintiff.
Contrary to the statement in footnote one of Judge Moore’s opinion, my point is not that Broska was under an obligation to explain Morris. He was, however, required to identify his theories of recovery. If Broska wished to seek recovery for severe or pervasive retaliatory harassment, he should have sought permission to amend his complaint to assert such a claim, or, at a minimum, he should have alerted the district court through his summary judgment briefing that he was relying on a theory of severe or pervasive harassment to establish his claim of retaliation. Had the theory of severe or retaliatory harassment been asserted, then the district court’s obligation would have been to apply the appropriate legal standard, even if Broska did not cite Morris.
I am mindful that defendants do not argue on appeal that Broska failed to raise the retaliatory harassment issue in the district court. Moreover, I agree with the lead opinion that Broska has not presented evidence of severe or pervasive retaliatory harassment. I cannot, however, characterize the district court’s ruling as error, as do both of my colleagues.
I disagree also with Judge Moore’s conclusion that Broska properly raised a claim that denial of overtime pay was an adverse employment action. No such claim is mentioned in Broska’s complaint. Overtime is mentioned very briefly in Broska’s memorandum opposing summary judgment and in his affidavit. My reading of these cursory references indicates that the lost overtime pay is argued to be an element of relief, not an adverse employment action on which liability can be based.
Although I disagree that an issue of denial of overtime pay as an adverse employment action is properly before us, I do not disagree with the conclusions that denial of overtime pay can constitute an adverse employment action and that Broska has presented insufficient evidence with respect to any alleged denial to create a fact issue.
*272 This case presents a situation in which an appellant seeks on appeal to recharacterize the claims he presented in the district court. Our obligation, however, is to resist such recharacterization and decide the issues raised in the district court. See In re Hood, 319 F.3d 755, 760 (6th Cir.2003) (“It is well-settled that this court will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice.” (quotations omitted)); Paccar Inc. v. TeleScan Technologies, L.L.C., 319 F.3d 243, 258 (6th Cir.2003) (“Arguments that were not raised below may not be asserted on appeal.”); White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir.1990) (“This court will not decide issues or claims not litigated before the district court.”).
AVERN COHN, Senior District Judge, dissenting.