Lawrence v. Metropolitan Government of Nashville & Davidson County
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 3/27/2024. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MAGGIE LAWRENCE,
Plaintiff,
v.
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE acting by and
through THE NASHVILLE FIRE
DEPARTMENT,
Defendant.
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NO. 3:22-cv-00680
JUDGE CAMPBELL
MAGISTRATE JUDGE HOLMES
MEMORANDUM
Pending before the Court is a motion for summary judgment filed by Defendant Metropolitan
Government of Nashville and Davidson County, Tennessee acting by and through the Nashville Fire
Department (“Metro”). (Doc. No. 23). Plaintiff Maggie Lawrence (“Lawrence”) filed a response in
opposition (Doc. No. 26) and Metro filed a reply (Doc. No. 28). For the reasons discussed below, the
motion will be DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Lawrence, a 66-year-old woman, started working at the Nashville Fire Department in 1992.
(Doc. No. 26-1 at 11:5-10). Lawrence holds bachelor’s and master’s degrees, and is a Certified Fire
Inspector, Certified Fire Investigator, Certified Fire and Public Educator, and Certified Fire and Bomb
Explosion Instructor. (Doc. No. 26 at 12). In 2016, Lawrence was promoted to Deputy Fire Marshal,
which is directly under the Fire Marsal position. (Id. at 11:14-15). After former Fire Marshal Al
Thomas (“Thomas”) was terminated, Lawrence oversaw the day-to-day operations of the Fire
Marshal’s office. (Id. at 14). Lawrence wanted to be Fire Marshal since she started working at the
Fire Marshal’s office in 1992. (Doc. No. 23-7 at PageID # 317).
Lawrence Hutchison (“Hutchison”), a 46-year-old man, started working in the Fire Marshal’s
office in October 2020. (Hutchison Deposition, Doc. No. 26-4 at PageID # 641). After Thomas was
terminated, Timothy Henderson (“Henderson”), Deputy Director Chief of the Nashville Fire
Department, recommended Hutchison for the Fire Marshal position. (Doc. No. 26 at 4). On January
27, 2021, William Swann (“Swann”), Director Chief of the Nashville Fire Department, informed
Lawrence that Hutchison was going to be the new Fire Marshal. (Doc. No. 27 ¶ 1; Hutchison
Deposition, Doc. No. 26-4 at PageID # 639). Lawrence contends that Metro was required to post
publicly the Fire Marshal position before appointing a new Fire Marshal. (Doc. No. 23-7 at PageID
# 304-305). The Fire Marshal position was not posted. (Id.).
Swann informed Lawrence that he chose Hutchison as the Fire Marshal instead of her because
he needed a Fire Marshal that would be there “for the next four to six years” and that it “would not
be smart” to appoint a Fire Marshal who would not be there “but for the next few years.” (Doc. No.
35 ¶¶ 3, 4). Lawrence recorded the meeting. (Doc. No. 23-7 at PageID # 304). During the meeting,
Swann instructed Lawrence to not speak out about his decision to promote Hutchison as Fire Marshal
and reminded Lawrence that the former Fire Marshal had been terminated for talking about the
department. (Id.). Specifically, Swann told Lawrence “if you go outside running your mouth, it’s
going to get back to me.” (Id.). Lawrence was subsequently interviewed by a local news network and
shared the recording. (Doc. No. 26-1 at PageID # 310). Swann learned about the recording and
suspended Lawrence. (Id. at PageID # 311).
Before October of 2020, Hutchison worked as a first level supervisor in a different department,
and Lawrence was instructed to train Hutchison on the Fire Marshal position. (Doc. No. 26 at 1; Doc.
2
No. 35 ¶ 8). Before Hutchison was appointed as Fire Marshal, Lawrence had never been written up
or received a negative performance review. (Doc. No. 35 ¶ 6). After Hutchison became Fire Marshal,
he placed Lawrence on a Performance Improvement Plan based, in part, on his understanding that
Lawrence had been on a previous Performance Improvement Plan and had not met expectations
outlined in that plan. (Doc. No. 23-9 at PageID # 334).
Lawrence filed this action against Metro on September 2, 2022, alleging claims of sex
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”)
and age discrimination and retaliation in violation of the Age Discrimination in Employment Act of
1967 (“ADEA”). (Doc. No. 1). On August 30, 2023, Metro filed the pending motion seeking summary
judgment.
II.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The summary judgment movant has the initial burden of informing the Court of the basis for its
motion and identifying portions of the record that demonstrate the absence of a genuine dispute over
material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy
this burden by presenting affirmative evidence that negates an element of the non-moving party's
claim or by demonstrating an absence of evidence to support the nonmoving party's case. Id.
In evaluating a motion for summary judgment, the court views the facts in the light most
favorable for the nonmoving party and draws all reasonable inferences in favor of the nonmoving
party. Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 242 (6th Cir. 2015); Wexler v. White’s
Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). The Court does not weigh the evidence,
judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 249 (1986). Rather, the Court determines whether sufficient evidence has been
presented to make the issue of material fact a proper jury question. Id. The mere scintilla of evidence
in support of the nonmoving party’s position is insufficient to survive summary judgment; instead,
there must be evidence of which the jury could reasonably find for the nonmoving party. Rodgers v.
Banks, 344 F.3d 587, 595 (6th Cir. 2003).
III.
ANALYSIS
A. Affirmative Defense – Statute of Limitations
Metro argues Lawrence’s discrimination claims fail as a matter of law because they are timebarred. The statute of limitations, like exhaustion of administrative remedies, is an affirmative
defense. Fed. R. Civ. P. 8(c); Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012). When a party
seeks judgment as a matter of law on a statute of limitations, the Court must decide two questions:
(1) whether the statute of limitations has run and (2) whether there exists a genuine issue of material
fact as to when the plaintiff's cause of action accrued. Campbell v. Grand Trunk W. R.R. Co., 238
F.3d 772, 775 (6th Cir. 2001). As the party invoking the statute of limitations as an affirmative
defense, Metro has the burden to prove that the statute of limitations bars Lawrence’s discrimination
claims and that no genuine issue of material fact exists as to when the claims accrued. Id.
Here, the parties appear to agree that the triggering date for filing a charge of discrimination
runs from when the plaintiff learned of the employment action at issue. Amini v. Oberlin Coll., 259
F.3d 493, 499 (6th Cir. 2001) (holding the limitations period “must run from time the employment
action at issue is communicated to the plaintiff”).1 However, Metro relies solely on Lawrence’s
allegations in the complaint to show that the alleged discriminatory action was communicated to
1
“Title VII requires that administrative charges be filed with 300 days of the discriminatory act in
deferral states like Tennessee.” McQuail v. Tennessee Tech. Univ., 69 F. Supp. 3d 701, 712 (M.D. Tenn. 2014)
(citing 42 U.S.C. § 2000e–5(e)).
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Lawrence on or about October 5, 2020. (Doc. No. 24 at 2-3 (citing Complaint, Doc. No. 1 ¶¶ 24-36);
Doc. No. 27 ¶¶ 1-3 (citing Complaint, Doc. No. 1 ¶¶ 24-36)). Allegations in the complaint are
insufficient to carry Metro’s burden of proof as the party moving for summary judgment. Fed. R. Civ.
P. 56; See also Hicks v. City of Millersville, No. 3:21-CV-00837, 2023 WL 322447, at *2 (M.D. Tenn.
Jan. 19, 2023) (internal citations omitted) (“[N]one of the materials on which the City relies is
competent evidence at summary judgment. Specifically, the City cites only Hicks's unverified
complaint…to support its statement of undisputed material facts… It is well established that unsworn
factual allegations are not evidence that can be considered at summary judgment.”).
Because Metro has failed to produce evidence demonstrating when the employment action at
issue was communicated to Lawrence and the absence of a material dispute as to that fact, summary
judgment will not be granted on Metro’s statute of limitations affirmative defense.
B. Sex and Age Discrimination – Failure to Promote
As noted above, Lawrence brings discrimination claims under Title VII and the ADEA. A
plaintiff may rely on either direct or circumstantial evidence to establish these claims. See Redlin v.
Grosse Pointe Pub. Sch. Sys., 921 F.3d 599 (6th Cir. 2019); Geiger v. Tower Auto., 579 F.3d 614,
620 (6th Cir. 2009). Here, Lawrence relies on circumstantial evidence to support her claims.
Accordingly, to determine whether summary judgment is appropriate, the court will “apply the threepart burden-shifting framework developed by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981)[.]” Jackson v. VHS Detroit
Receiving Hosp., Inc., 814 F.3d 769, 775–76 (6th Cir. 2016).
Under this familiar burden-shifting framework, “the plaintiff bears the initial burden of
establishing a prima facie case.” Id. at 776. If the plaintiff establishes a prima facie case, the burden
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shifts to the defendant to “clearly set forth, through the introduction of admissible evidence, the
reasons for the [adverse action].” Burdine, 450 U.S. at 255. “An articulation not admitted into
evidence will not suffice.” Id. at n.9. If the defendant meets its burden of production, the plaintiff
must demonstrate that the proffered reason was not the true reason for the employment decision by
persuading the court that a discriminatory reason more likely motivated the employer or by showing
that the employer's proffered explanation is unworthy of credence. See id. at 256 (citing McDonnell
Douglas, 411 U.S., at 804–805).
As noted above, Metro, as the party bringing the summary judgment motion, has the initial
burden of informing the Court of the basis for its motion and identifying portions of the record that
demonstrate the absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587,
595 (6th Cir. 2003). Metro may satisfy its burden by presenting affirmative evidence that negates an
element of the Lawrence’s claims or by demonstrating an absence of evidence to support her case.
See id. Here, Metro argues Lawrence cannot establish all of the essential elements of her prima facie
case or pretext. Metro attempts to satisfy its burden as the moving party by demonstrating an absence
of evidence. The Court will address Metro’s arguments in turn.
1. Prima Facie Case of Discrimination
To establish a prima facie case of discrimination under Title VII and the ADEA based on a
failure to promote, Lawrence must show: (1) she is a member of a protected class; (2) she applied and
was qualified for the promotion; (3) she was considered for and denied the promotion; and (4) another
employee with similar qualifications who was not a member of his protected class received the
promotion. White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005). “The burden
of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253. In
its motion for summary judgment, Metro argues Lawrence cannot satisfy the elements of her prima
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facie case because she cannot show that she had the qualifications for the Fire Marshal position or
that she possessed “similar qualifications” to Hutchison, the employee who was selected for the
position. (Doc. No. 24 at 3-8).2
i.
Qualified For the Position
Metro argues Lawrence cannot prove that she was qualified for the Fire Marshal position
because she was not meeting expectations in her role as Deputy Fire Marshal. Specifically, Metro
asserts that “Plaintiff’s performance made it clear that she was simply not capable of taking on such
an important role.” (Doc. No. 24 at 4-5). In support of this argument, Metro argues that before
Hutchison was appointed Fire Marshal, the Fire Marshal’s Department consistently underperformed
and the former Fire Marshal reported that he found it “difficult to find tasks which [Lawrence] could
competently complete” and “that he did not have any confidence in [Lawrence].” (Doc. No. 24 at 4).
Metro also contends that Hutchison “exhibited exceptional leadership abilities” and successfully
implemented programs. (Id. at 6). Metro’s foregoing argument relies on the same conduct it proffers
as its legitimate, nondiscriminatory reason for not promoting Lawrence. (See Doc. No. 24 at 6
(nondiscriminatory reasons for failing to promote Lawrence were her work performance and
Hutchison’s superior qualifications)). However, “a court may not consider the employer's alleged
2
Metro also challenges Lawrence’s ability to show that age was the reason for her non-selection. (Doc.
No. 24 at 8-9). Additionally, Metro argues Lawrence cannot establish causation for her age discrimination
claim because she has alleged multiple discriminatory motives for her failure to promote claims. (Doc. No. 24
at 8-9). This argument is premised on a misunderstanding of Sixth Circuit authority. Moat v. Metro. Gov't of
Nashville, No. 3:21-CV-00807, 2023 WL 4035909, at *8 (M.D. Tenn. June 15, 2023) (internal citation
omitted) (“Citing Pelcha, the defendant argues that the ‘mixed motive’ theory of recovery applicable to actions
under Title VII does not apply to ADEA claims and that, because the plaintiff purports to have direct evidence
of disability discrimination, he cannot also pursue his age discrimination claims. The defendant, however,
appears to be confusing ‘but-for’ causation with the ‘sole cause’ standard that applies to claims brought under
§ 504 of the Rehabilitation Act. The Sixth Circuit has stated that the ‘sole-cause standard in the end is a creature
of the Rehabilitation Act, and that is where we should leave it.’ Pelcha admittedly contains some confusing
language. Insofar as Pelcha might be construed as interpreting ‘but for’ causation to be equivalent to ‘sole
cause,’ the court declines to adopt such a reading, as Pelcha did not squarely reach that conclusion, and, if it
had, it would appear to be inconsistent with Sixth Circuit opinions both preceding and following Pelcha.”).
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nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie
case.” Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003); see also Provenzano
v. LCI Holdings, Inc., 663 F.3d 806, 814 (6th Cir. 2011) (“this careful distinction is especially
necessary in cases such as this one, where the employer asserts as its nondiscriminatory reason for
failing to promote the plaintiff that it chose to hire a candidate it considered more qualified.”).
Additionally, Lawrence points to evidence that she was qualified for the Fire Marshal position,
including that she was the Deputy Fire Marshal for nearly 6 years; oversaw the day-to-day operations
of the Fire Marshal’s office; and was instructed to train Hutchison on the Fire Marshal position. (Doc.
No. 26 at 11-12). Hutchison also testified that he believed Lawrence was qualified for the Fire
Marshal position. (Hutchison Deposition, Doc. No. 26-4 at PageID # 653). Thus, Metro’s challenge
of Lawrence’s proof as to this element fails.
ii.
Qualifications of Employee Selected for the Position
Metro also argues Lawrence cannot prove that she possessed “similar qualifications” to
Hutchison, as required for the fourth element of the indirect-evidence prima facie case. See
Provenzano, 663 F.3d at 814 (“[Plaintiff] is not required to establish that she and [the employee who
received the promotion/position] had the exact same qualifications.”). To show the absence of
evidence for this element, Metro points to Henderson’s deposition testimony explaining why he
recommended Hutchison for the Fire Marshal position: “his actions that he had demonstrated at the
fire training academy, his exceptional leadership abilities, his ability to develop and implement
programs at the academy.” (Doc. No. 24 at 6; Doc. No. 27 ¶¶ 15-16). However, the foregoing
testimony does not show that Lawrence lacked similar qualifications to Hutchison. Indeed, Henderson
testified as much: “You can be qualified just because you qualify from time of service or position you
may be holding or whatever it may be. But being able to lead, and manage, and drive the division in
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a new direction is based on capabilities.” (Hutchison Deposition, Doc. No. 26-2 at PageID # 532; id.
(“Well, you can be qualified for several things. Capabilities is a whole different issue.”)). Nor does
Henderson’s testimony show Lawrence cannot prove that she possessed “similar qualifications” to
Hutchison. Indeed, Lawrence points to evidence that she was qualified for the position of Fire Marshal
and was instructed to train Hutchison in his role as Fire Marshal after he was appointed. (Doc. No. 35
¶ 8; Doc. No. 26 at 11-12). Hutchison also testified that he believed Lawrence was qualified to be
Fire Marshal. (Hutchison Deposition, Doc. No. 26-4 at PageID # 653). Accordingly, Metro has failed
to demonstrate the absence of a genuine dispute as to whether Lawrence possessed similar
qualifications to Hutchison.
2. Legitimate, Non-discriminatory Reason
“Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant, who must ‘rebut the presumption of discrimination by producing evidence that the plaintiff
was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.’” Levine v.
DeJoy, 64 F.4th 789, 797 (6th Cir. 2023) (quoting Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981)). “In satisfying that burden, ‘[t]he defendant need not persuade the court
that it was actually motivated by the proffered reasons.’ Instead, ‘[i]t is sufficient if the defendant's
evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To
accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence,
the reasons for the plaintiff's rejection.” Levine v. DeJoy, 64 F.4th 789, 797 (6th Cir. 2023) (internal
citations omitted).
Here, Metro must set forth, through the introduction of admissible evidence, the reasons for
not promoting Lawrence. Metro argues that the “stark contrast between Plaintiff and Mr. Hutchison
in their work performance and the fact that Mr. Hutchison had shown excellent leadership capacity
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as well as an ability to implement successful programs” are legitimate, non-discriminatory reasons
for selecting Hutchison as the Fire Marshal. (Doc. No. 24 at 6). Metro also asserts that Lawrence
“needed to make more of an effort to review data from the State Fire Marshal and to report updates
to the Fire Marshal” and demonstrated “an inability to effectively lead and manage her staff” while
Hutchison “exhibited exceptional leadership abilities” and “an ability to develop and implement
successful programs.” (Doc. No. 24 at 6).
The Sixth Circuit has recognized that hiring a more qualified candidate is a legitimate, nondiscriminatory reason. Hammond v. Sysco Corp., No. 23-5385, 2023 WL 8847365, at *6 (6th Cir.
2023) (internal citation omitted). As Metro has set forth a legitimate, nondiscriminatory reason for
failing to promote Lawrence, the burden shifts back to Lawrence to demonstrate that this legitimate,
nondiscriminatory reason was pretext. See Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. at 248.
3. Pretext
An employee can show pretext “by offering evidence that (1) the employer’s stated reason
had no basis in fact, (2) the stated reason did not actually motivate the employer, or (3) the stated
reason was insufficient to warrant the adverse employment action.” Loyd v. Saint Joseph Mercy
Oakland, 766 F.3d 580, 590 (6th Cir. 2014) (internal citation omitted).
Here, Lawrence provides evidence that Henderson was aware that Thomas wanted Lawrence
to become the Fire Marshal and lobbied for her to receive the position. (Id.) Lawrence also points to
Henderson’s testimony that he did not recommend Lawrence for the Fire Marshal position because
she was under a Performance Improvement Plan initiated by former Fire Marshal Al Thomas and
based on Thomas’s purported concerns with Lawrence’s ability to lead. (Doc. No. 26 at 13).
However, Lawrence provides evidence that she was not under any Performance Improvement Plan
from Thomas. (Doc. No. 26 at 14-15).
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Lawrence also provides evidence that Swann informed her that Hutchison was selected over
her because he needed a Fire Marshal that would be there “for the next four to six years” and that it
“would not be smart” to appoint a Fire Marshal who would not be there “but for the next few years.”
(Doc. No. 35 ¶¶ 3, 4).
Additionally, Lawrence points to ample evidence showing that she is arguably more qualified
for the Fire Marshal position than Hutchison. “[W]hen qualifications evidence is all (or nearly all)
that a plaintiff proffers to show pretext, the evidence must be of sufficient significance itself to call
into question the honesty of the employer's explanation” for its hiring decision.” Levine, 64 F.4th at
798 (internal citation omitted). “If a factfinder can conclude that a reasonable employer would have
found the plaintiff to be significantly better qualified for the job, but this employer did not, the
factfinder can legitimately infer that the employer consciously selected a less-qualified candidate—
something employers do not usually do, unless some other strong consideration, such as
discrimination, enters into the picture.” Id. (internal citations omitted). Accordingly, “the question is
whether [Lawrence] has offered evidence sufficient for a reasonable juror to ‘conclude that a
reasonable employer would have found the plaintiff to be significantly better qualified for the job.’”
Id.
The Court finds that Lawrence has done so. Lawrence submitted evidence that she has worked
in the Fire Marshal’s office for over 30 years, holds bachelor’s and master’s degrees, is a Certified
Fire Inspector, Certified Fire Investigator, Certified Fire and Public Educator, and a Certified Fire
and Bomb Explosion Instructor. (Doc. No. 26 at 12). Lawrence also points to evidence showing that
after Swann terminated Thomas and appointed himself to be the acting Fire Marshal, he chose
Lawrence to oversee the day-to-day operations of the Fire Marshal’s office. (Id. at 14). Additionally,
Lawrence contends that she was instructed to train Hutchison for the Fire Marshal position. (Doc. No.
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26 at 11-12). The Court finds that Lawrence has produced evidence of her relative qualifications that
is of sufficient significance to call into question the honesty of Metro’s explanation. See Levine, 64
F.4th at 800 (6th Cir. 2023) (“The fact that USPS needed Levine to train Peare for the position
certainly raises questions about whether USPS's contention that Peare had more relevant experience
is ‘overblown.’”).
Viewing the facts in the light most favorable to Lawrence, the Court finds that a reasonable
juror could conclude that a reasonable employer would have found Lawrence to be significantly better
qualified for the Fire Marshal position. Accordingly, the Court finds that a genuine issue of material
fact exists as to the issue of pretext, and summary judgment will be denied as to Lawrence’s
discrimination claims.
C. Retaliation
To establish a prima facie case of retaliation Lawrence must show that: (1) she engaged in
protected activity; (2) Metro knew about it; (3) Metro took a materially adverse employment action
against her; and (4) the adverse action was causally related to the protected activity. Parker v.
Hankook Tire Mfg. Tenn., L.P., No. 23-5208, 2023 WL 10404971, at *3 (6th Cir. 2023).3 Metro
attempts to satisfy its burden as the moving party by demonstrating an absence of evidence for the
third and fourth elements of the prima facie case.
1. Materially Adverse Action
Lawrence contends that her suspension and the Performance Improvement Plan from
Hutchison constitute materially adverse actions which are sufficient to dissuade a reasonable person
from bringing claims of discrimination. “With respect to the third element, to meet the requirement
of demonstrating a materially adverse action, ‘a plaintiff must show that a reasonable employee would
3
“Retaliation claims under the ADEA employ the same framework used in Title VII retaliation claims.”
Kaminsky v. Wilkie, 856 F. App'x 602, 607 (6th Cir. 2021) (internal citation omitted).
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have found the challenged action materially adverse, ‘which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Redlin v.
Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 614 (6th Cir. 2019) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Here, Metro argues summary judgment is appropriate
because there is no evidence that Metro took an adverse employment action against Lawrence. (Doc.
No. 24 at 10). Specifically, Metro contends that the October 2021 performance plan that Lawrence
was put on occurred after Swann appointed Hutchison as Fire Marshal and did not have any impact
on Swann’s decision to promote Hutchison instead of Lawrence. (Doc. 24 at 11).
However, Metro argues that these actions were not materially adverse employment actions –
not that they could dissuade an employee from engaging in protected conduct. Accordingly, Metro
has failed to meet its initial burden as the movant for summary judgment as to this element because
an adverse employment action is not required to satisfy the third element of a prima facie retaliation
claim. Redlin, 921 F.3d at 614. Rather, in 2006, the United States Supreme Court held that “[t]he
scope of [Title VII's] antiretaliation provision extends beyond workplace-related or employmentrelated retaliatory acts and harm.” Burlington N., 548 U.S. at 67; see, e.g., Wyatt v. Nissan N. Am.,
Inc., 999 F.3d 400, 419 (6th Cir. 2021) (In the retaliation context, the term “adverse employment
action” encompasses more than just actions that affect “the terms, conditions or status of
employment.”); Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 569 (6th Cir. 2019) (“[T]he district
court erred in relying on our pre-2006 precedent regarding materially adverse employment actions.
…. the Supreme Court made clear in Burlington Northern that the requirements for a retaliation claim
are in fact considerably less stringent.”); Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775 (6th
Cir. 2018) (“In articulating the third element of a prima facie case of retaliation, the district court
erred and stated that Rogers needed to show that she suffered an adverse employment action”);
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Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345 (6th Cir. 2008) (“In contrast to Title VII's
discrimination provision, the ‘adverse employment action’ requirement in the retaliation context is
not limited to an employer's actions that solely affect the terms, conditions or status of employment,
or only those acts that occur at the workplace.”) (citing Burlington N., 548 U.S. at 62-66). As such,
the Court does not reach Lawrence’s response regarding this element. See Hunter v. Caliber Sys.,
Inc., 220 F.3d 702, 726 (6th Cir. 2000).
2. Causation
The fourth element of the indirect-evidence prima facie retaliation case requires Lawrence to
establish that her protected activity was the “but-for cause” of the materially adverse action. See
Kenney, 965 F.3d at 448. Metro contends that Lawrence failed to establish that there was a causal link
between her complaints about Hutchison’s promotion and any materially adverse action. Metro also
argues that Lawrence was suspended because she violated departmental policy by recording Swann
without permission. (Doc. No. 24 at 13). In response, Lawrence contends that she was suspended for
complaining about Hutchison’s promotion. (Doc. No. 26 at 17). Viewing the facts in the light most
favorable to Lawrence, the Court finds that Metro has failed to demonstrate an absence of a dispute
of material fact as to the retaliation claim. Accordingly, summary judgment will be denied on
Lawrence’s retaliation claim.
An appropriate Order shall enter.
________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE
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