As the Equal Employment Opportunity Commission regularly reminds us, retaliation is the most frequently alleged form of discrimination. A recent decision from the United States District Court for the District of Maryland, Stennis v. Bowie State University, provides an instructive interpretation of the law by addressing an alleged case of retaliation under Title VII.
Stennis, a former professor at Bowie State University, filed a complaint alleging that the University unlawfully retaliated against her after she voiced concerns that her supervisor was discriminating against certain students on the basis of their gender and sexual orientation. After raising her concerns, she alleged that her supervisor sent her “threatening and intimidating” emails and reduced her teaching duties and departmental roles. The supervisor was also part of the department’s faculty review committee, which voted against recommending Stennis for tenure.
Despite the non-recommendation, Stennis received tenure on June 1, 2014. She alleged that the hostilities from her supervisor continued, and she resigned on August 15, 2014. Stennis then filed a charge of discrimination on August 20, 2014, five days after she resigned, alleging retaliation and constructive discharge.
After Stennis filed her complaint in federal court, Bowie State filed a motion to dismiss her claim. As the court noted in addressing the motion to dismiss, an employee bringing a charge of retaliation must allege that: “(1) he engaged in a protected activity; (2) the employer took an adverse employment action against him; and (3) a causal connection existed between the protected activity and the asserted adverse action.”
As to the first element, the court reviewed the two types of protected activity: participation activities and opposition activities. Participation activities are those activities which arise from participating in an EEOC complaint, such as making a charge of discrimination or participating in the investigatory process. However, the EEOC process must have commenced in order for an employee to be protected under the participation clause. Since Stennis did not file her charge until after she resigned, she could not claim that Bowie State was “retaliating” against her, because the complaint process had not yet begun.
Opposition activities, generally, are activities which oppose an employer’s illegal discriminatory Franklin & Prokopik 3 A Professional Corporation employment practice. Among other things, opposition activities may include refusing to obey an order because of a reasonable belief that it is discriminatory, or complaining or protesting about an employer’s alleged employment discrimination. In this case, however, the activity that Stennis opposed was discrimination against students, not employees. Since Equal Employment Opportunity laws do not protect non-employee students, Stennis’ activities were not opposition activities and were not protected under Title VII.
As to the second element, the court noted that adverse employment actions are only those which cause significant injury or harm. Stennis alleged that her supervisor acted with hostility toward her and erected barriers to her tenure application. As the court noted, Stennis’ complaints included vague references to threatening and intimidating emails, allegedly unwarranted criticisms of her tenure dossier, and a non-recommendation for tenure. Under the circumstances, the court found that these allegations amounted to no more than unactionable “personal slights.”
While Stennis’ complaints of a reduction in duties and responsibilities could be actionable, she failed to show that these reductions caused her significant harm. Stennis alleged that her supervisor’s actions had the combined effect of reducing her professional standing and hindering her tenure capacity. However, she ultimately received tenure regardless, and remained in high enough professional standing to obtain another teaching position at Coppin State University. Likewise, the granting of tenure showed that the allegations did not rise to the level of constructive discharge, which “occurs when an employer deliberately makes an employee’s working conditions intolerable and thereby forces him to quit.”
As this case demonstrates, the line between an actionable claim and a non-actionable claim for discriminatory retaliation is not always clear, and in some cases may even depend on the stage of the complaint at the time of the alleged discrimination. As a practical matter, this case is an excellent reminder for employers that participation activities and opposition activities are protected under the law, and a reminder to recognize such activities when they arise and refrain from retaliation.
For more information about this article, please contact Matthew G. Kuspa at 410.230.3051 or firstname.lastname@example.org.