Sheila White, Plaintiff-Appellee/cross-Appellant v. Burlington Northern & Santa Fe Railway Company, Defendant-Appellant/cross-Appellee

CLAY, Circuit Judge,

dissenting.

The majority has determined that in light of Dobbs-Weinstein v. Vanderbilt University, 185 F.3d 542 (6th Cir.1999), Defendant did not take materially adverse employment action by removing Plaintiff from her position, assigning her more arduous work, and suspending her without pay for thirty-seven days before the suspension was later reversed with back pay. Because the majority’s opinion is not supported by our precedent or the record below, I respectfully dissent.

Plaintiff began working for Defendant on June 23, 1997 as a track laborer, but Roadmaster Brown testified that he decided to offer her a position operating a forklift. As a forklift operator, Plaintiff performed other duties, but this was because her primary duty of operating the forklift did not take all day. Plaintiff subsequently submitted an internal complaint about the sexual harassment of her by Foreman *456 Bill Joiner. On the very day that Plaintiff was notified of Joiner’s suspension for the sexual harassment, Brown transferred Plaintiff from her forklift operator job to other track laborer duties full-time, despite a lack of complaints about her performance on the forklift. The transfer was allegedly due to complaints from other workers that Plaintiff was not sufficiently senior for the forklift position. Yet Brown replaced Plaintiff with Ralph Ellis, the man who earlier had voluntarily given up the forklift, and who did not complain about Plaintiff being given the job. No other qualified workers senior to Plaintiff were available to run the forklift.

After Plaintiff was removed from the forklift position, she filed two EEOC complaints, alleging, among other things, that the removal was in retaliation for the sexual harassment complaint she had filed. Only three days after a copy of the second complaint was sent to Roadmaster Brown, Foreman Sharkey suspended Plaintiff for insubordination, and even after Brown determined that Sharkey had overreacted and even though Brown could have reversed Sharkey’s decision, he declined to do so. Instead, Plaintiff filed a grievance with the union, a full internal investigation ensued, and a hearing officer determined what Roadmaster Brown knew all along-that Sharkey had overreacted and that Plaintiff did not commit insubordination. Meanwhile, Plaintiffs co-worker, Greg Nelson, who arguably was the most disobedient in the entire incident, was not suspended or disciplined in any manner for failing to follow Sharkey’s orders.

1. Adverse Employment Action

Like the majority, I recognize that this Court requires a materially adverse employment action for a plaintiff to state a prima facie case of Title VII retaliation. Unlike the majority, however, I believe that Plaintiff satisfied her requirement in that regal'd. In view of the facts and circumstances, Plaintiffs effective demotion and subsequent suspension, even with reinstatement with back pay, together constituted the requisite materially adverse employment action.

a. Removal from the Forklift Position

With regard to Roadmaster Brown’s removal of Plaintiff from the forklift job, I disagree with the majority’s acceptance of Defendant’s slant on the facts. Although it is true that Plaintiff was initially hired as a track laborer, and she sometimes performed other duties because operating the forklift, in the words of Defendant, “was not a fulltime job” (Defendant’s Br. at 5), Defendant has mischaracterized the forklift job as a happenstance duty to be farmed out to employees in a random fashion. In fact, the forklift job was not merely an occasional task; it was an actual job which, according to Roadmaster Brown’s own testimony, was advertised to the railroad employees. When Roadmaster Brown took Plaintiff off the forklift, he did not merely reshuffle her responsibilities; he took away her job. Plaintiff, in effect, experienced not a mere “lateral transfer,” as the majority states, but a demotion, because, for the same pay, her work became much more strenuous. As Plaintiff testified, track labor required more physical exertion and was “much dirtier” than the forklift job. (J.A. at 201.) Some of the dirty aspects of the job include “picking up tools, oiling them from down on the ground where sometimes it require[d] you to get on your knees and hands.” (J.A. at 202.) Adverse aspects also included prolonged sun exposure.

The majority asserts that under Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886-87 (6th Cir.1996), job reassign *457 ments that include some increased physical labor are not sufficient to constitute an adverse employment action. Kocsis , however, is distinguishable from the matter at hand inasmuch as unlike in Kocsis , where the duties of the plaintiff nurse increased only with respect to the “frequency [of] lifting and maneuvering residents,” id. at 879-80 , Plaintiffs reassignment to the track laborer position involved an increase in the frequency of objects lifted as well as an increase in the weight of the objects lifted. Furthermore, Plaintiffs work as a track laborer required that she be exposed to the sun more often than before, and involved much dirtier work than her previous position as a forklift operator. Therefore, the increased physical demands brought about by the reassignment of Plaintiff to the track laborer position went well beyond that of the increased physical demands experienced by the plaintiff in Kocsis , and went well beyond a “mere inconvenience” as described in Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir.1999). Similarly, Plaintiffs reassignment to the track laborer position did not constitute an ordinary lateral job transfer, thus taking this case out of the reach of those cases finding that a lateral transfer does not constitute an adverse employment action. See Policastro v. Northwest Airlines, 297 F.3d 535, 540 (6th Cir.2002); Darnell v. Campbell County Fiscal Court, 731 F.Supp. 1309, 1313-14 (E.D.Ky.1990); see also Bradford v. Norfolk S. Corp., 54 F.3d 1412 , 1420 (8th Cir.1995); Flaherty v. Gas Res. Inst., 31 F.3d 451, 457 (7th Cir.1994); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). Simply stated, Plaintiffs reassignment from a forklift operator to a track laborer involved material alterations of Plaintiffs job responsibilities thus constituting an adverse employment action for purposes of establishing a prima facie case of retaliation under Title VII. See Hollins, 188 F.3d at 662 .

b. Thirty-seven Day Suspension

Plaintiffs thirty-seven day suspension constituted an adverse employment action as well. First of all, there is authority in this Circuit that a temporary suspension can amount to an adverse employment action. In Gribcheck v. Runyon, 245 F.3d 547, 551 (6th Cir.2001), this Court held that the plaintiff suffered an adverse employment action when he was suspended without pay for fourteen days and did not receive back pay. On the other hand, as the majority notes, a temporary suspension with pay is not an adverse employment action. See Jackson v. City of Columbus, 194 F.3d 737, 752 (6th Cir.1999). The unresolved question for purposes of this case is whether a suspension without pay, coupled with a subsequent reinstatement and back pay, should be classified as an adverse employment action.

The majority claims this question was answered by the reasoning of Dobbs-Weinstein , because the plaintiff in that case received all back pay during the time she was not working for the university, and therefore was “made whole.” However, it is apparent that key to this Court’s decision in finding no adverse employment action was that the situation involved a denial of tenure. Dobbs-Weinstein, 185 F.3d at 545-46 . Indeed, the Court relied primarily on tenure decisions in making its determination. 1 Id. at 546 (citing several district courts that had reached similar conclusions in discrimination cases based on delayed grant of tenure). The Court also noted that “tenure decisions in an *458 academic setting involve a combination of factors which tend to set them apart from employment decisions generally.” Id. at 545 (citing Zahorik v. Cornell Univ., 729 F.2d 85, 92-93 (2d Cir.1984)). Such considerations included the following:

the lifetime nature of the contract, the fact that the decisions are often noncompetitive, the decentralized nature of the decision-making process, the multiplicity of facts in the decision, the fact that tenure decisions are often quite contentious, and the reluctancy of courts to review the merits of a tenure decision.

Id. (citing Zahorik, 729 F.2d at 92-93 ). The Court further explained, “Because tenure decisions are so complex and potentially contentious, universities are well-served to have a grievance procedure for individuals wishing to appeal any of the many intermediate decisions or evaluations made during the tenure review process.” Id. 2

The majority’s opinion implies that Dobbs-Weinstein stands for the proposition that subsequent reinstatement with back pay vitiates any earlier wrong a plaintiff may have suffered. If this is what Dobbs-Weinstein intended to hold, it could have done so simply enough. Instead, it explained that tenure decisions present a complex set of challenges that justify a mechanism designed to reverse earlier erroneous tenure decisions. Therefore, the initial decision of the dean not to concur in recommending the plaintiff for tenure was not a final decision upon which the plaintiff could base an adverse employment action, even though her contract terminated and she was out of work during part of the review process. Despite the lack of authority from this Court equating a denial of tenure -with a suspension, the majority ignores the Dobbs-Weinstein court’s underlying reasoning and mistakenly equates the situations based on similar outcomes: reinstatement with back pay.

The majority’s use of the dissent in Dobbs-Weinstein is misplaced. See 185 F.3d at 548 . The dissent was speaking mainly in the context of tenure decisions, which as explained earlier, constitute a unique area in Title VII cases because of the nature of those decisions. Therefore, a “timely fashion” in the tenure context differs from that in the more conventional employment context. In other words, an immediate thirty-seven-day suspension for a blue collar worker, who may be living from paycheck to paycheck, can actually have a more severe impact on the worker than a sixty-day lapse for a university professor who had been warned well ahead of time that she would not receive tenure and that her employment contract would expire. The majority, however, again mistakenly equates the tenure denial scenario with that of employment suspensions in non-academic contexts. 3

*459 Even if one finds the situations appropriate for comparison, there are material differences between Dobbs-Weinstein and the present case. The plaintiff in Dobbs-Weinstein was on notice that her job contract would not be renewed. Although there was an interim period where she was not working and received no pay, this was because the relevant contractual period had lapsed, and she was aware of this possibility several months ahead of time. In the present case, Roadmaster Brown, a senior level employee at the railroad, decided to sustain Foreman Sharkey’s suspension, despite his belief that the suspension was not warranted. The suspension was immediate, and Plaintiffs pay and benefits were immediately terminated without warning, pending an investigation. Suddenly, Plaintiff had no income with which to pay her bills, and was left in limbo to await a determination as to her future at the railroad. The adverse nature of the suspension was not reversed simply because she subsequently received retroactive pay. While the fact that Plaintiff was reinstated might have mitigated her damages, it was not dispositive of whether an adverse employment action occurred. Dobbs-Weinstein is properly distinguishable, because that case involved not a suspension in an ordinary employment context, but a denial of tenure in an academic setting, which was integral in the Court’s holding.

At any rate, even if these employer actions individually were not sufficiently adverse, the conduct in the aggregate created a situation that constituted a materially adverse employment action. Although the majority considered the two actions individually, several employer actions, taken together, may also constitute an adverse employment action. See Ford v. Gen. Motors Corp., 305 F.3d 545, 554 (6th Cir.2002) (holding that plaintiffs increased workload, heightened scrutiny, and constructive discharge, taken together, constituted materially adverse employment action); Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 50 (1st Cir.1999) (holding that several employment actions, “viewed in the aggregate, could be considered ‘materially adverse’ ”). Certainly this Court does not recognize de minimus actions to be materially adverse. See Bowman v. Shaumee State Univ., 220 F.3d 456, 462 (6th Cir.2000). However, the suspension and job change, taken together, were more than de minimus; they were materially adverse within the meaning of Title VII.

2. Other Elements in a Title VII Claim

Although not addressed by the majority, the remaining relevant element necessary for a plaintiff to establish a prima fade case of retaliation is a causal connection between the Title VII-protected activity taken by the employee and the adverse employment action taken by the employer. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000). This Court has held that such a causal connection may be shown through circumstantial evidence, such as a proximity of time between the two events. See, e.g., Fenton v. HiSAN, 174 F.3d 827, 832 (6th Cir.1999) (citing Moon v. Transp. Drivers, Inc., 836 F.2d 226, 229 (6th Cir.1987)). Most notably, Plaintiff was removed from the forklift job almost immediately after her complaints about Foreman Joiner’s sexual harassment and discrimination resulted in his suspension. Then, when Plaintiff filed an EEOC complaint about this retaliatory move, Roadmaster Brown allowed Foreman Sharkey to suspend her, knowing the suspension was unwarranted, only three days after a copy of the EEOC complaint *460 was sent to Brown. Moreover, testimony at trial indicated that Sharkey told Plaintiff that Brown considered her a troublemaker, and Sharkey even admitted that he was not “crazy” about women working at the railroad. Therefore, more than sufficient evidence existed to support a causal connection between Plaintiffs complaints and Defendant’s subsequent adverse actions.

After the employee establishes a prima facie case of retaliation, the burden shifts to the employer to assert a non-discriminatory reason for the adverse action. Ford, 305 F.3d at 553 . Once the employer has done so, the burden shifts back to the employee to demonstrate that the asserted reason is a pretext for retaliation. Defendant contends that there was a complete absence of proof as to whether its reasons for the employment decisions were pretex-tual because Plaintiff failed to rebut the fact that Defendant moved a more senior person to the forklift duties, and that it had received complaints from other senior employees regarding Plaintiff being allowed to operate the forklift as a junior employee.

Defendant’s argument is without merit. Numerous inconsistencies surfaced among Defendant’s witnesses at trial from which the jury could infer that the reasons proffered by Defendant were pretextual. First of all, Roadmaster Brown testified on direct examination that there had been “a lot of complaints” from senior employees in the maintenance of way department pertaining to Plaintiff, a junior employee, being allowed to work on the forklift, a comparatively light and easy job. (J.A. at 105.) However,, on cross-examination, Brown’s story changed. He claimed that “one, possibly two senior employees” complained about Plaintiff working on the forklift. (J.A. at 115.) He named these employees as Ellis, Gary Augustus and Daryl Knight. However, Augustus was actually junior to Plaintiff, not senior; Knight, although technically senior to Plaintiff, was hired on the same day .as Plaintiff; and Ellis testified that he never made any complaints about Plaintiff operating the forklift and that Brown requested that Ellis return to that duty.

Roadmaster Brown’s testimony was also inconsistent with Defendant’s interrogatory answer as to why Plaintiff had been removed from her forklift operator duties. According to the interrogatory, a track laborer with more experience than Plaintiff had claimed the job pursuant to a collective bargaining agreement (CBA). Brown admitted at trial, however, that the “job” was not governed by the seniority provisions of the CBA and that Brown could have assigned anyone he ■ wanted, including Plaintiff, to the “forklift job.” (J.A. at 123-24.) Brown had also earlier stated that Richard Spears, general chairman of the union, called to complain about Plaintiff performing forklift duties. However, Spears testified at trial that he could not recall making any such complaint to Brown and had no record of such a complaint. Foreman Joiner’s testimony was also inconsistent. Although he testified at his deposition that he had not heard complaints from co-workers about Plaintiff driving the forklift, he changed his story at trial, testifying to some complaints.

Given these inconsistencies, the jury was entitled to believe that Defendant’s proffered explanations were pretextual and that the real reason for Defendant’s action was unlawful retaliation. This is particularly so when ruling on a Rule 50 motion because a court “must disregard all evidence favorable to, the moving party that the jury is not required to believe.” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 867 (6th Cir.2001) (quoting Reeves v. Sanderson Plumbing Prods., *461 Inc., 530 U.S. 133, 151 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000)). Under the applicable standard of review, Plaintiff adduced sufficient evidence to survive Defendant’s motion, and the district court correctly rejected Defendant’s arguments.

Conclusion

This Court requires that a materially adverse action “be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Hollins, 188 F.3d at 662 . Plaintiffs thirty-seven-day suspension and her removal from the forklift position was more than a “mere inconvenience” or otherwise de minimus action. In addition, there were sufficient inconsistencies with respect to the reasons provided by Defendant to explain the actions taken against Plaintiff for the jury to infer that the reasons were pretextual. I would therefore affirm the district court’s denial of Defendant’s motion for judgment as a matter of law.

. Contrary to the majority's assertion, the dissent does not claim that Dobbs-Weinstein relied exclusively on tenure decisions, but that it relied primarily on them.

. Other circuits also have acknowledged the unique nature of tenure decisions. See Tanik v. S. Methodist Univ., 116 F.3d 775, 776 (5th Cir.1997); Brousard-Norcross v. Augustana Coll. Ass’n, 935 F.2d 974 , 976 (8th Cir.1991); Kumar v. Bd. of Trs., Univ. of Mass., 774 F.2d 1, 11 (1st Cir.1985); Zahorik, 729 F.2d at 92-93 (2d Cir.1984).

. The majority has mischaracterized the dissent as saying that a blue-collar worker's suspension results in a more severe impact than a denial of tenure for a university professor. To be clear, the dissent makes no such categorical statement. The majority had suggested that the Dobbs-Weinstein dissent supported its contention that Plaintiff’s thirty-seven-day wait for reinstatement and back pay paled in comparison to the delay experienced by the Dobbs-Weinstein plaintiff, who had to wait over sixty days and was still denied Title VII relief. To the contrary, the point of the dissent is that a delay in the tenure denial context, or the uncertainty experienced by a professor as a result of the non-renewal of an employment contract, should not be equated with the situation of an em *459 ployee who receives an immediate suspension in a non-academic setting.