# Keith Hill v. R. Nicholson

> Court of Appeals for the Sixth Circuit · June 24, 2010 · 383 F. App'x 503

URL: https://www.frixlaw.com/law-library/cases/9435808

## Case

- **Full name:** Keith D. HILL, Plaintiff-Appellant, v. R. James NICHOLSON, Secretary, U.S. Department of Veterans Affairs, Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 24, 2010
- **Citations:** 383 F. App'x 503
- **Precedential status:** Unpublished
- **Opinion:** Concurring in part by Siler
- **Judges:** Martin, Siler, Moore
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9435808

## How later opinions describe it (automated extraction)

- holding that a written counseling was not an adverse employment action because it did not have “any long-term impact on the terms or conditions of [the plaintiffs] employment”
- noting that “exhaustion is not a jurisdictional perquisite” in the Title VII context and that a court may decline to address exhaustion and dispose of the claims on the merits
- discussing Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) and Allen v. Highlands Hosp. Corp., 545 F.3d 387, 401-02 (6th Cir.2008)

## Opinion text

SILER, Circuit Judge,
concurring in part and dissenting in part.
I concur in the majority opinion except for the retaliation discussion in Part II. E. I also concur with the majority that Hill does not have a retaliation claim for the loss of his office. However, I part with the majority on its finding that the changing of performance standards for Hill amounted to an adverse employment action.
The district court ruled against Hill on this issue, not for failure to make out a prima facie case, but because the VA articulated legitimate, non-discriminatory reasons for changing the performance standards and Hill failed to rebut that evidence by showing pretext. Nevertheless, I would affirm on the failure to make out a prima facie case because Hill did not suffer an adverse employment action as required by law.
The majority indicates that Hill must show that he suffered “ ‘an injury or harm,’ ” citing Garner v. Cuyahoga County Juvenile Court, 554 F.3d 624, 639 (6th Cir.2009) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67 , 126 S.Ct. 2405 , 165 L.Ed.2d 345 (2006)). I fail to find that Hill has shown that he has been injured or harmed by the change of performance standards. There is no evidence that Hill’s new performance standards were used as a means to intimidate, de *516 mote, fire, or otherwise sanction him. I concede that the changing of performance standards in Hill’s case sounds similar to the 90-day performance plan in Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir.2007). However, the retaliatory actions alleged in Michael included both the 90-day performance plan and the sanction of a brief placement on paid administrative leave. Id. Because this case does not include a similar sanction, I fail to find an adverse employment action. Exposing an employee to the risk of an adverse employment action does not of itself constitute an adverse employment action, even under the “relatively low bar” for retaliation claims.
Therefore, I would affirm the decision of the district court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9435808. Public record. Not legal advice.