# Cindy Akers v. Donald Alvey and Kentucky Cabinet for Families and Children

> Court of Appeals for the Sixth Circuit · October 2, 2003 · 338 F.3d 491

URL: https://www.frixlaw.com/law-library/cases/9496279

## Case

- **Full name:** Cindy AKERS, Plaintiff-Appellant, v. Donald ALVEY and Kentucky Cabinet for Families and Children, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 2, 2003
- **Citations:** 338 F.3d 491
- **Precedential status:** Published
- **Opinion:** Concurrence by Dowd
- **Judges:** Boggs, Gilman, Dowd
- **Cited by:** 68 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/9496279

## How later opinions describe it (automated extraction)

- recognizing Wathen v. General Electric as controlling authority for the principle that Title VII does not create individual liability for individuals in supervisory positions
- holding that “the standard for severe or pervasive harassment is the same in the retaliation context as in the sexual and racial discrimination contexts”
- holding bare-bones statement of “no just reason for delay” questionable but sufficient to confer jurisdiction
- noting that “a partial grant of summary judgment is not ordinarily appealable” absent Rule 54(b) certification

## Opinion text

DOWD, District Judge,
concurring in the judgment.
Although I reluctantly conclude that the majority has rightly decided this case in the face of current binding Sixth Circuit precedent, I write separately to respectfully voice my view that Morris v. Oldham County Fiscal Court, 201 F.3d 784 (6th Cir.2000), relied upon to reject Akers’s retaliation claim, was wrongly decided.
Morris does not, in my view, adequately recognize that Title VII identifies and prohibits two discrete wrongs: discrimination and retaliation. In the former category, when it comes to discrimination based on sex, the Supreme Court has distinguished between quid pro quo claims and hostile environment claims, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 , 106 S.Ct. 2399 , 91 L.Ed.2d 49 (1986), and has clarified that, to be actionable, hostile environment claims require harassment that is “severe and pervasive.” Id. Under the guise of statutory construction, and applying the two relatively recent Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257 , 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (1998), Morris has incorporated that “severe and pervasive” standard into retaliation claims. I believe this is wrong.
While it is a reasonable interpretation of the statute, in light of people’s varying sensitivities, to require harassment to be severe or pervasive, that concept is inconsistent with the concept of retaliation.
With respect to harassment: some people are highly offended by even the slightest off-color behavior in the workplace; others have a much higher tolerance for the very same behavior. In other words, there is significant gradation in the area of harassment and, often, whether there is or is not harassment has to do with personal perception. Courts would be clogged with lawsuits if every single off-color joke told in the presence of a highly sensitive person were actionable under Title VTI or, as is more often the case, if behavior that has actually been tolerated or even welcomed and/or participated in by an individual suddenly becomes a weapon against the employer when something in the workplace *501 does not go that individuars way. The “severe and pervasive” standard helps to assure at least a little consistency of interpretation and protects against this kind of abusive application of the statute.
On the other hand, retaliation is not a matter of perception or gradation. It is, rather, much like an electric light, which is either “on” or “off.” One either is or is not retaliating. Typically, this would be, and should be, a fact call for a jury. Of course, in the wake of Monis, now, by definition, one “is retaliating” only if one’s behavior against the Title VII complainant is “severe and pervasive.” I can perceive no reason for this interpretation of Title VII. I can see a reason to require severity and pervasiveness before a working environment can be found to be truly “hostile;” I cannot see a reason for applying that standard to retaliation. Nonetheless, that is, unfortunately, the law in this circuit.
Therefore, I am constrained to concur in the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496279. Public record. Not legal advice.