Retaliation Claims Survive Against Michigan Board of Regents

In Beny v. University of Michigan Board of Regents, No. 22-12021, 2023 WL 4409107 (E.D.Mich. July 7, 2023), the court, inter alia, denied the defendant’s motion to dismiss plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964 and the Elliot-Larsen Civil Rights Act (ELCRA).

The court summarized the well-settled elements of such a claim, namely: (1) an employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against her; and (3) there is a causal link between the protected activity and the adverse employment action.

It then proceeded to march through these elements:

First, the multiple complaints Beny submitted to the UM Equity and Civil Rights Office between November 2021 and August 2022 certainly qualify as protected activity, as does the written complaint she made to the interim provost in 2022. See Am. Compl., ¶¶ 64, 79-80, 104, ECF No. 34, PageID.487, 498, 510. “Under Title VII, there are two types of protected activity: participation in a proceeding with the Equal Employment Opportunity Commission (‘EEOC’) and opposition to an apparent Title VII violation…. [C]omplaining about allegedly unlawful conduct to company management is classic opposition activity.” Wasek v. Arrow Energy Services, Inc., 682 F.3d 463, 469 (6th Cir. 2012) (citations omitted). Moreover, the alleged discriminatory acts need not be actually illegal in order for the opposition clause to apply. Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 646 (6th Cir. 2015) (“[A]n employee is entitled to protection for opposition to employment practices that may not actually be unlawful under Title VII, [and the] employee who opposes a hostile work environment need not prove that the environment he complained of was actually hostile in order for the employee to receive protection from retaliation under Title VII.”). The plaintiff alleges that she repeatedly reported the discrimination and retaliation she experienced to upper management and the University’s civil rights office. That is sufficient to satisfy the first element of her retaliation claims.

Second, Beny adequately has alleged that the defendants knew about the protected activity, because Beny alleges that, on February 8, 2022, she informed Chief Operating Officer Wing that she had filed the civil rights complaints. See Am. Compl., ¶ 80, ECF No. 34, PageID.498-99.

Third, the suspension of Beny’s teaching and committee service duties, and suspension of her eligibility for other benefits, count as materially adverse actions against her. As noted above, the suspensions are sufficient to qualify as adverse actions even under the more demanding standard for discrimination claims, as they constituted significant changes in the conditions of the plaintiff’s employment that resulted in a significant loss of prestige and economic benefits. Such actions plainly would “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Rogers, 897 F.3d at 776 (quoting White, 548 U.S. at 68, 126 S.Ct. 2405).

Finally, that Beny’s teaching duties and salary benefits were suspended shortly after she made and reported the civil rights complaints is sufficient to support an inference of causation. See Rogers, 897 F.3d at 776-77 (6th Cir. 2018) (finding a six-week delay between protected conduct and adverse action sufficient to infer causation); Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283-84 (6th Cir. 2012) (collecting cases holding that a two-to three-month time lapse between protected activity and a materially adverse action is sufficient temporal proximity to constitute a prima facie case of retaliation). The defendants contend that the suspensions were motivated by the legitimate business concern of remedying the plaintiff’s poor performance, and discovery very well may reveal that to be the case.

The court concluded, to the contrary, that – accepting the allegations in the amended complaint as true (as it must do at this stage) – “and drawing from it the reasonable inference that the plaintiff’s sudden suspension was causally related to her protected complaints,” plaintiff has stated a plausible retaliation claim under Title VII and the ELCRA.

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