Sanford v. Main St Baptist , 327 F. App'x 587 ( 2009 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 09a0352n.06
    Nos. 07-5869 and 07-5905                           FILED
    May 20, 2009
    UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
    FOR THE SIXTH CIRCUIT
    WILLIAM SANFORD,                                         )
    )        ON APPEAL FROM THE
    Plaintiff-Appellant/Cross-Appellee,           )        UNITED STATES DISTRICT
    )        COURT FOR THE EASTERN
    v.                            )        DISTRICT OF KENTUCKY
    )        (LEXINGTON DIVISION)
    MAIN STREET BAPTIST CHURCH MANOR,                        )
    INC. and SOUTHEASTERN MANAGEMENT                         )                 OPINION
    CENTER, INC.,                                            )
    )
    Defendants-Appellees/Cross-Appellant.         )
    )
    )
    BEFORE: CLAY and KETHLEDGE, Circuit Judges; and OLIVER, District Judge.*
    SOLOMON OLIVER, JR., District Judge.                  Plaintiff/Appellant William Sanford
    (“Sanford”) appeals the order of the district court granting summary judgment to
    Defendants/Appellees Main Street Baptist Church Manor (“Manor”) and Southeastern Management
    Center, Inc. (“Southeastern”) (collectively, “Defendants”) on Sanford’s claims of hostile
    environment sexual harassment, quid pro quo sexual harassment, and retaliation, pursuant to Title
    VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Kentucky Civil
    Rights Act (“Kentucky Act”), Ky. Rev. Stat. § 344.040. The Manor cross-appeals the order of the
    district court denying its Motion to Dismiss, arguing that the Manor does not have sufficient
    employees to fulfill the employee-numerosity requirement under federal or state law.
    *
    The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District
    of Ohio, sitting by designation.
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    For the following reasons, we REVERSE the district court’s order denying the Manor’s
    Motion to Dismiss based on this court’s finding that the district court incorrectly applied the joint
    employer doctrine to conclude that the Manor had the requisite number of employees to be liable
    under Title VII and the Kentucky Act and REMAND the case to the district court for re-
    determination of the issue consistent with this court’s opinion. We also REVERSE the district
    court’s order granting summary judgment to the Manor and Southeastern on Sanford’s hostile
    environment sexual harassment and retaliation claims, but we AFFIRM the district court’s order
    granting summary judgment to the Manor and Southeastern on the quid pro quo sexual harassment
    claim.
    I. BACKGROUND AND PROCEDURAL HISTORY
    A.     Motion to Dismiss
    The Manor is a nonprofit organization that operates a 64-unit apartment building in
    Lexington, Kentucky. The Manor receives federal financial assistance from the Department of
    Housing and Urban Development (“HUD”) as a designated Section 8 housing facility. During the
    2003 and 2004 calendar year, the Manor employed no more than six employees for twenty weeks
    or more, and during the 2005 calendar year, the Manor employed no more than four employees for
    twenty weeks or more. (Manor Employee List, J.A. at 91-93.) The Manor has eleven members on
    its Board of Directors, all of whom are unpaid volunteers with paid occupations separate from their
    volunteer duties on the Manor Board. Sanford was employed by the Manor as a part-time summer
    maintenance worker in 1999. He assumed a full-time maintenance worker position at the Manor
    2
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    in August 2000 and also provided courtesy (or security) services.
    Southeastern is a property management company that provides management assistance and
    performs other functions for facilities at the Manor. Southeastern provides assistance to the Manor’s
    Board of Directors in its operation of the Manor, with a particular emphasis on making sure the
    Manor complies with HUD regulations. The district court noted that the Management Plan between
    the Manor and Southeastern provides that Southeastern is the “exclusive agent for the management
    of the property” and determines the “number, qualifications, and duties of the personnel to be
    regularly employed in the management of the project, including a Resident Manager and
    maintenance, bookkeeping, clerical, and other managerial employees.” The Plan sets forth
    Southeastern’s duties with respect to the project, including: (1) assumption of “prime responsibility
    for all facets of operation”; (2) providing accounting services; (3) hiring, paying, and supervising
    employees; (3) maintaining the property; (4) advertising and helping ensure that vacant apartments
    are filled; and (5) ensuring compliance with HUD regulations. (Order, J.A. at 41-42.) Southeastern
    denies that it ever maintained an employment relationship with Sanford.
    The Manor and Southeastern moved to dismiss Sanford’s Complaint, pursuant to Federal
    Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted,
    arguing that the Manor could not establish the fifteen-employee numerosity requirement of Title VII
    or the eight-employee numerosity requirement of the Kentucky Act. The district court treated both
    motions as summary judgment motions because they were filed long after discovery had
    commenced, and both parties relied on materials outside the pleadings to support their position.
    The district court noted that there is apparently no dispute that the Manor did not, at any time,
    3
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    have the requisite number of employees to satisfy the numerosity requirements. (Id.) However,
    Sanford attempted to overcome the employee-numerosity requirement by relying on the doctrines
    of single employer and joint employer, whereby a defendant that does not directly employ a plaintiff
    may still be considered an employer for Title VII purposes in certain circumstances. (J.A. at 37-38.)
    Specifically, Sanford argued before the district court that the Manor and Main Street Baptist
    Church,2 who is not a party to this action, are so interrelated as to constitute a “single employer” with
    a sufficient number of employees to satisfy Title VII’s employee-numerosity requirement. (J.A. at
    37.) Second, Sanford argued that Southeastern maintains sufficient control over the Manor’s
    employees such that it is a “joint employer” for purposes of Title VII. (J.A. at 38.) However, upon
    review of the parties’ briefing, the district court granted Sanford’s motion for a ruling that
    Southeastern and the Manor are joint employers. The district court denied Defendants’ Motion to
    Dismiss as moot. Having determined that the Manor satisfied Title VII’s employee-numerosity
    requirement based on the application of the joint employer doctrine, the court did not address the
    single employer doctrine. (Order, J.A. at 44.)
    B.      Summary Judgment
    Sanford alleges that he was sexually harassed by his supervisor, Marla Carter (“Carter”), who
    was also a Manor employee, while he worked as a Manor maintenance worker from 2000 until he
    2
    In his Response to the Motion to Dismiss filed with the district court, Sanford alleged that
    the Main Street Baptist Church (“Church”) controls the Main Street Baptist Manor (“Manor”). The
    precise nature of the relationship between the Manor and the Church is unclear from the parties’
    briefing before this court, though it is undisputed that the pastor of the Church, Dennis Ward
    (“Ward”), serves as chairman of the Manor’s Board of Directors. (See Manor’s Fourth Final Br. at
    13.)
    4
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    quit in March 2005. Sanford subsequently asserted hostile environment sexual harassment, quid pro
    quo sexual harassment, and retaliation claims against the Manor and Southeastern, pursuant to Title
    VII and the Kentucky Civil Rights Act. The district court summarized the following relevant facts
    in support of these claims:
    Sanford began working at the Manor as a part-time summer maintenance worker in
    1999. In August 2000, Sanford assumed a full-time maintenance worker position at
    the Manor and also provided courtesy (or security) services. Sanford was hired based
    on the recommendation of his stepfather, Greg Bolton, who was the Manor’s property
    manager at the time. Sanford performed both maintenance and courtesy services for
    the Manor. Because the Manor is a designated Section 8 housing facility which
    receives federal assistance from [HUD], it is required by law to comply with HUD
    regulations and is subject to HUD inspections. As a result of an October 2003 HUD
    inspection of the Manor, Sanford’s work performance came under scrutiny.
    In January 2004, Carter was hired to replace Bolton as property manager of the
    Manor. In February 2004, Carter prepared several memoranda which requested that
    Sanford: (1) perform some maintenance; (2) move his car; (3) alter his work schedule
    (and informed him of the Manor’s overtime policy); and (4) provide Carter with
    access to all property keys. According to Sanford, the memos were simple written
    requests, although the defendants contend that the memos constitute write-ups for
    misbehavior and insubordination.
    Sanford alleges that in March 2004, Carter began to flirt with him. According to
    Sanford, the flirtation escalated over time and continued through April 2004. On one
    occasion, Carter asked to smell Sanford’s cologne, and instead kissed him on the
    neck. On another occasion, Carter pinched Sanford on the bottom. She also tapped
    him on the bottom between 15 and 20 times. Carter made repeated sexual innuendos
    and suggestive statements toward Sanford, including describing her sexual abilities.
    Carter suggested they go out of town together, offered to purchase him a new suit,
    and ensured him that she would see that his shift at the Manor was covered. Carter
    showed up uninvited at his Manor apartment at night on several occasions to check
    on him and bring him food. On one occasion in April 2004, Sanford did volunteer
    to drive Carter to her uncle’s funeral on the assumption that his mother would also
    ride with them. However, Sanford’s mother was unable to go, and during the ride
    Sanford alleges that Carter engaged in sexual conversation and groped him in the
    groin. As a result, Sanford arranged for Carter to ride home with someone else.
    5
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    As a result of Carter’s alleged harassment, Sanford contends that he attempted to
    avoid Carter, which inevitably disrupted his work progress. At some point after the
    trip to the funeral, Sanford orally reported the alleged harassment to Jean Peyton,
    Southeastern’s director of retirement housing, who allegedly took no action. In June
    or July 2004, Sanford orally reported the alleged harassment to Elder Cornelius, who
    instructed him to contact Elder Ward. Both Elder Cornelius and Elder Ward are
    members of the Manor’s board of directors. When he contacted Elder Ward, Sanford
    was instructed to report to Elder Ward’s home, where he orally repeated his claims
    of sexual harassment, yet he contends that no action was taken.
    After making these oral reports of sexual harassment, Sanford claims that his job at
    the Manor took a downward spiral. He cites the following events as evidence of the
    defendants’ retaliation. First, Sanford claims that Carter began to write him up,
    accusing him of laziness, not doing his work, and of being vulgar and verbally
    abusive to the residents. Second, Sanford points to the timing and outcome of his
    August 2004 job evaluation as evidence of retaliation. Sanford claims that although
    the evaluation was to be completed by August 1, 2004, Carter did not complete the
    evaluation until August 9, 2004. He also complains that he received a score of only
    66 (a score of 80-95 was required for the full 5.5% pay raise), and although the
    evaluation recommended a pay raise, Sanford contends that he did not receive a pay
    raise. Third, Sanford claims that Carter and Peyton recommended to the Manor’s
    board that he be placed on probation or terminated. Fourth, Sanford claims that in
    October 2004, Carter and Peyton accused him of stealing a resident’s pills to a police
    officer investigating the theft of medication from a resident. Fifth, Sanford contends
    that the defendants removed his pager and forced him to move out of his apartment
    in two weeks instead of four. Sixth, Sanford was also informed that his courtesy
    services would no longer be needed. Because Sanford depended upon both his
    maintenance and courtesy paycheck, he resigned from his position at the Manor in
    2005 because he could no longer sustain himself on his maintenance paycheck alone.
    Finally, Sanford claims that despite assuring him that his unemployment would not
    be contested when he applied for unemployment benefits, the defendants challenged
    his application.
    The district court judge granted summary judgment in Defendants’ favor on Sanford’s hostile
    environment sexual harassment, quid pro quo sexual harassment, and retaliation claims. The district
    court concluded that the Manor and Southeastern were not vicariously liable for Carter’s harassment
    because Defendants established the affirmative defense set forth in Faragher v. Boca Raton, 524
    6
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    U.S. 775, 808 (1998). The district court also found that Sanford failed to establish a prima facie
    retaliation case and, in the alternative, failed to show that the Manor and Southeastern’s legitimate,
    non-discriminatory reason for removing all of Sanford’s courtesy duties was pretext for retaliation.
    II. STANDARD OF REVIEW
    As stated above, the district court treated the Manor and Southeastern’s Motion to Dismiss
    and Sanford’s Motion for a ruling that Southeastern and the Manor are joint employers as summary
    judgment motions. A district court’s decision to grant a motion for summary judgment is subject
    to de novo review. Little v. BP Exploration & Oil Co., 
    265 F.3d 357
    , 361 (6th Cir. 2001). Summary
    judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file,
    together with any affidavits show there is no genuine issue of material fact, and the moving party is
    entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); LaPointe v. UAW, Local 600, 
    8 F.3d 376
    , 378 (6th Cir. 1993).
    III. LAW AND ANALYSIS
    A.      Motion to Dismiss
    As stated above, an employee must show that an employer has at least fifteen employees to
    meet the employee-numerosity requirement of Title VII, § 2000e(b), and at least eight employees
    to meet the employee-numerosity requirement of the Kentucky Act. The Manor does not challenge
    the district court’s conclusion that the Manor and Southeastern are joint employers. Rather, the
    Manor argues that the district court’s finding that Southeastern and the Manor are joint employers
    does not add to the Manor’s employee count for numerosity purposes under Title VII or the
    Kentucky Act because: (1) the Manor included all of those individuals employed by the Manor; and
    7
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    (2) the Manor did not exercise any employment authority over any Southeastern-specific employees
    such that the Manor’s employee count would increase. Conversely, Sanford argues that the
    Southeastern employees that performed the work set forth in the Plan between the Manor and
    Southeastern should be aggregated with the Manor’s employees for purposes of determining whether
    the Manor has the requisite number of employees to be liable under Title VII. Sanford maintains
    that, “the Manor has given full contractual authority to Southeastern to run the Manor, and it should
    not be permitted to avoid liability through convenient ambiguity about who works for whom.”
    (Appellant’s Third Br. at 56, n.22.) For the following reasons, the court finds that the Manor’s
    position is well-taken.
    While the Sixth Circuit in Swallows v. Barnes & Noble Book Stores, 
    128 F.3d 990
    , 993 n.4
    (6th Cir. 1997), recognized that the single employer and joint employer doctrines were analytically
    distinct, the Swallow plaintiffs never argued that the defendant employers acted as joint employers,
    and the Sixth Circuit therefore did not address the merits of such a claim. Thus, the issue of whether
    and how different employees of joint employers may be aggregated for purposes of satisfying the
    numerosity requirement is an issue of first impression in the Sixth Circuit. The Second Circuit, in
    Arculeo v. On-Site Sales & Mktg., L.L.C., 
    425 F.3d 193
    , 198 (2d Cir. 2005), explained when two
    employers may be considered “joint employers”:
    A conclusion that employers are “joint” assumes that they are separate legal entities,
    but that they . . . handle certain aspects of their employer-employee relationship
    jointly. Where this doctrine is operative, an employee, formally employed by one
    entity, who has been assigned to work in circumstances that justify the conclusion
    that the employee is at the same time constructively employed by another entity, may
    impose liability for violations of employment law on the constructive employer, on
    the theory that this other entity is the employee's joint employer.
    8
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    
    Id. at 198.
    The Arculeo court stated that the Second Circuit “has never discussed the somewhat
    different, but related, question whether employees of different entities may be aggregated under ...
    [a] joint employer doctrine to satisfy Title VII’s fifteen-employee threshold.” 
    Id. As a
    preliminary
    matter, Arculeo explained that aggregation of employees under the joint employer doctrine functions
    differently than aggregation under the single employer doctrine. 
    Id. at 200.
    Specifically, all of the
    employees of the single employer entities are aggregated for numerosity purposes. 
    Id. Conversely, not
    all of the employees of joint employers are automatically aggregated:
    When the circumstances of one employee’s employment justify the conclusion that
    she is being employed jointly by two distinct employers, it does not follow that all
    the employees of both employers are part of an integrated entity encompassing both.
    A joint undertaking by two entities with respect to employment may furnish
    justification for adding to the employees of one employer those employees of another
    who are jointly employed by the first, but such joint undertaking does not furnish
    logical justification for adding together all the employees of both employers, unless
    the circumstances justify the conclusion that all the employees of one are jointly
    employed by the other.
    
    Id. Arculeo points
    to the EEOC Compliance Manual as guidance for determining when aggregation
    of the employees of joint employers is appropriate. 
    Id. The Manual
    explains, “To determine
    whether a respondent is covered, count the number of individuals employed by the respondent alone
    and the employees jointly employed by the respondent and other entities.” 
    Id. (citing EEOC
    Compliance Manual Section 2-III(B)(1)(a)(iii)(b)). As an illustrative example, the Manual provides:
    “CP files a charge against ABC Corp. alleging that she was subjected to religious harassment. ABC
    Corp. has 13 regular employees and five employees assigned by a temporary agency. ABC is
    covered under Title VII because it has 18 employees.” 
    Id. Significantly, Arculeo
    recognized that
    9
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    “the analysis is not affected by the number of other persons employed by the temporary agency who
    are not assigned to work at ABC.” 
    Id. Applying this
    analysis to the facts presented in the case before
    it, the Arculeo court concluded that “the plaintiff has not shown circumstances that would justify
    a finding that either [joint employer] should be deemed to have fifteen employees.” 
    Id. at 199-200.
    In considering the parameters of the joint employer doctrine as it applies to numerosity, the
    district court in United States EEOC v. Custom Companies, Case Nos. 02 C 3768, 03 C 2293, 
    2007 U.S. Dist. LEXIS 16691
    at *15-24 (N.D. Ill. March 8, 2007), also recognized that several other
    jurisdictions have allowed aggregation in certain circumstances. 
    Id. at *17-18
    (citing Arculeo;
    Trainor v. Apollo Metal Specialties, Inc., 
    318 F.3d 976
    (10th Cir. 2002) (considering whether
    temporary workers were sufficiently controlled as to be aggregated); Burdett v. Abrasive Eng’g &
    Tech., Inc., 
    989 F. Supp. 1107
    (D. Kan. 1997) (plaintiff could aggregate employees of staffing
    agency, as long as those employees were staffed with the employer and employer exercised sufficient
    control over the employees); Stone v. Ind. Postal & Fed. Employees Credit Union, No. 1:05-CV-115,
    
    2005 U.S. Dist. LEXIS 21493
    , at *2-4 (N.D. Ind. Sept. 25, 2005) (plaintiff attempts to aggregate
    committee members based on argument that they are like temporary employees, but fails because
    committee members are not employees at all).
    The Custom Companies court emphasized that, in aggregating employees, “only those
    employees over whom the employer has a certain amount of control should be counted.” 
    Id. at *19.
    The Custom Companies court applied the following test to determine when aggregation is
    appropriate:
    (1) the extent of the employer's control and supervision over the worker, including
    10
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    directions on scheduling and performance of work; (2) the kind of occupation and
    nature of skill required, including whether skills are obtained in the work place; (3)
    responsibility for the costs of operation, such as equipment, supplies, fees, licenses,
    workplace, and maintenance of operations; (4) method and form of payment and
    benefits; and (5) length of job commitment and/or expectations.
    
    Id. at *20
    (quoting Piano v. SBC/Ameritech, No. 02 C 3237, 
    2003 U.S. Dist. LEXIS 1696
    at *5
    (N.D. Ill. Feb. 3, 2003)). The Custom Companies court stated that “the first factor is the most
    significant consideration.” 
    Id. Similarly, in
    Arculeo, 425 F.3d at 202
    , the court noted that, “at least
    in the NLRB context, we have identified a variety of factors, such as exercise of authority to hire,
    fire, and discipline, control over pay and insurance, and supervision, which can bear on whether an
    entity, which is not the formal employer, may be considered a joint employer.”
    We find the reasoning in the cases discussed above to be persuasive and therefore hold that
    aggregation of joint employees for the purposes of establishing the Title VII numerosity requirement
    is permissible when one joint employer exercises control over the employees of the other joint
    employer. In this case, however, the district court failed to conduct the necessary aggregation
    analysis set forth in Arculeo and the EEOC Compliance Manual, i.e., it did not “count the number
    of individuals employed by [the Manor] alone and the employees jointly employed by [the Manor]
    and [Southeastern]” in determining whether the Manor had the requisite number of employees. The
    district court merely noted provisions of the Agreement and Plan between Southeastern and the
    Manor providing that Southeastern is the Manor’s exclusive agent for managing the property.3 The
    3
    The Agreement provides that Southeastern is the “exclusive agent for the management of
    the property” and determines the “number, qualifications, and duties of the personnel to be regularly
    employed in the management of the project, including a Resident Manager and maintenance,
    bookkeeping, clerical, and other managerial employees.” The Plan sets forth Southeastern’s duties
    11
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    opinion on this issue is completely devoid of any analysis regarding the number of employees from
    Southeastern that were arguably attributed to the Manor as joint employees or any discussion of the
    nature and control of the extent to which the Manor exercised control over the Southeastern
    employees.
    We therefore REVERSE the district court’s finding that the Manor satisfies the numerosity
    element of Title VII and the Kentucky Act and REMAND the case to the district court for re-
    determination of the issue. On remand, the district court should consider, with respect to every
    Southeastern employee working at the Manor, whether: (1) the Manor had the authority to hire, fire,
    and discipline the Southeastern employee; (2) the Manor could affect the Southeastern employee’s
    compensation or employment benefits; and (3) the degree to which the Manor’s management
    supervised the Southeastern employee, including directing the employee’s schedule and daily
    assignments, and any other pertinent factors. The district court may assign weight to each factor
    according to the circumstances of each employee.
    B.      Summary Judgment against the Manor and Southeastern
    1. Hostile Environment Sexual Harassment Claim
    Sanford argues that Carter’s conduct created a hostile work environment in violation of Title
    VII. To establish a prima facie case of sexual harassment based on a hostile work environment, a
    with respect to the project, including: (1) assumption of “prime responsibility for all facets of
    operation”; (2) providing accounting services; (3) hiring, paying, and supervising employees; (3)
    maintaining the property; (4) advertising and helping ensure that vacant apartments are filled; and
    (5) ensuring compliance with HUD regulations.
    12
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    plaintiff must show that:
    (1) he is a member of a protected class; (2) he was subjected to unwelcome sexual
    harassment; (3) the harassment was based on his sex; (4) the harassment created a
    hostile work environment; and (5) the employer is vicariously liable.
    Clark v. UPS, 
    400 F.3d 341
    , 347 (6th Cir. 2005.) The Defendants only disputed the fourth and fifth
    elements of the hostile environment claim before the district court. (J.A. at 50.) The district court
    concluded that Sanford met the objective and subjective components of the fourth element, and this
    court finds that the district court did not err in making this determination. (Id.) The court then
    applied the affirmative defense outlined in Faragher v. City of Boca Raton, 
    524 U.S. 775
    , 807-08
    (1998). (Order, J.A. at 51-52.) The court held that Defendants could prevail on the Faragher
    affirmative defense because: (a) they exercised reasonable care to prevent and correct promptly any
    sexually harassing behavior; and (b) Sanford failed to take advantage of any preventative or
    corrective opportunities provided by the employer or to avoid harm otherwise. (J.A. at 51-53.) For
    the following reasons, we hold that the district court erred.
    To prevail on the Faragher defense, Southeastern must show that:
    (a) the employer exercised reasonable care to prevent and correct promptly any
    sexually harassing behavior; and (b) the plaintiff employee unreasonably failed to
    take advantage of any preventative or corrective opportunities provided by the
    employer or to avoid harm otherwise.
    
    Faragher, 524 U.S. at 807-08
    .
    First, Sanford argues that the district court erred in finding that Southeastern had exercised
    reasonable care to prevent and correct any sexually harassing behavior by the existence of a policy
    in the Southeastern Handbook (“Handbook”). Specifically, Sanford points out that the Handbook
    13
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    does not satisfy the requirements of an effective sexual harassment policy set forth in Clark v. United
    Parcel Service, Inc., 
    400 F.3d 341
    , 350-51 (6th Cir. 2005), wherein the Sixth Circuit concluded that:
    While there is no exact formula for what constitutes a "reasonable" sexual
    harassment policy, an effective policy should at least: (1) require supervisors to
    report incidents of sexual harassment; (2) permit both informal and formal
    complaints of harassment to be made; (3) provide a mechanism for bypassing a
    harassing supervisor when making a complaint; and (4) provide for training regarding
    the policy.
    (Citation omitted.)
    Here, Sanford has raised a genuine issue of material fact regarding whether the Manor and
    Southeastern can satisfy the Faragher affirmative defense. As a preliminary matter, the portion of
    the Handbook referenced by the district court is a four-paragraph section addressing generic
    “Grievance Procedures.” No mention is made of discrimination or harassment.
    Yet, even if the Handbook specifically addressed harassment, it does not comply with the
    standards set forth in Clark. First, the Handbook lists no requirement that the supervisor report
    incidents of sexual harassment. (Handbook, J.A. at 486.) Second, the Handbook’s procedures do
    not provide for an informal or non-written complaint but instead mandate that if an employee “feels
    aggrieved in anyway regarding his employment, it is his responsibility to express the grievance in
    writing to his immediate supervisor.” (Id.) Third, a harassing supervisor cannot be avoided: “If the
    supervisor is part of the grievance, then the employee and the supervisor should request a meeting
    with the property manager to mediate the grievance.” (Id.) Finally, while Sanford attended several
    meetings where the discrimination policy was discussed, Carter testified that she had never spoken
    to anyone about the sexual harassment policy, or even about sexual harassment generally, and had
    14
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    never attended a meeting about sexual harassment. (Carter Dep., J.A. at 397.) Based on this court’s
    finding that Sanford has raised a genuine issue of material fact regarding whether the Manor and
    Southeastern can establish the first prong of the Faragher defense in light of Clark, the court
    reverses the district court’s order granting summary judgment in favor of the Manor and
    Southeastern on Sanford’s hostile environment sexual harassment claim.
    2. Quid Pro Quo Sexual Harassment Claim
    Sanford’s claim for quid pro quo sexual harassment is based on Carter’s promise that she
    would ensure Sanford’s courtesy shift was covered if he would travel out of town with her. (Order,
    J.A. at 53-54.) However, when he did not report to work on August 14, after refusing her alleged
    advances and reporting her conduct to superiors, Sanford alleges that Carter recommended he be
    fired and took other adverse actions against him. To succeed on a quid pro quo sexual harassment
    claim, Sanford must show:
    (1) he is a member of a protected class; (2) he was subjected to unwelcome sexual
    harassment; (3) the harassment was based on his sex; (4) his refusal to submit to the
    unwelcome demands resulted in an adverse employment action4; and (5) liability may
    be imputed to the employer.
    The court noted that the Defendants conceded the first three elements of the claim. (J.A. at 54.)
    However, the district court concluded that Sanford failed to meet the fourth element because he did
    not show an adverse employment action as a result of his failure to submit to Carter’s unwelcome
    sexual advances. (Id.)
    4
    The Sixth Circuit noted in Bowman v. Shawnee State University, 
    220 F.3d 456
    , 462 (6th
    Cir. 2000), that “courts use the term ‘material adverse employment action’ and ‘tangible job
    detriment’ interchangeably.”
    15
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    To satisfy the fourth element Sanford must establish: (1) a tangible employment action or
    detriment; and (2) a causal relationship between the tangible employment action and Carter’s alleged
    actions. See Howington v. Quality Rest. Concepts, LLC, 
    2008 U.S. App. LEXIS 22003
    at *16-19
    (6th Cir. Oct. 20, 2008). Tangible employment actions “are the means by which the supervisor
    brings the official power of the enterprise to bear on subordinates.” 
    Ellerth, 524 U.S. at 762
    .
    Tangible employment actions are significant changes in employment status, “such as hiring, firing,
    failing to promote, reassignment with significantly different responsibilities, a change in benefits,
    or other factors unique to [his] particular situation.” Akers v. Alvey, 
    338 F.3d 491
    , 497-98 (6th Cir.
    2003). The Sixth Circuit has also recognized that a “loss of pay” can constitute a tangible job
    detriment. See Thornton v. Fed. Express Corp., 
    530 F.3d 451
    , 454-55 (6th Cir. 2008). In general,
    a change in employment conditions “must be more disruptive than a mere inconvenience or an
    alteration of job responsibilities.” Crady v. Liberty Nat’l Bank and Trust Co., 
    993 F.2d 132
    , 136 (7th
    Cir. 1993). For the following reasons, we find that Sanford failed to present evidence to establish
    a prima facie quid pro quo sexual harassment claim.
    The district court correctly determined that the following actions did not constitute tangible
    employment actions for the following reasons: (1) Carter’s “write-ups” of Sanford did not amount
    to a significant change of job status sufficient to constitute a materially adverse employment action;
    (2) Carter’s eight-day delay in evaluating Sanford and not giving him a score that would provide him
    with a pay raise do not constitute materially adverse employment actions because the Manor Board
    promptly ordered that Sanford receive a positive job evaluation and full raise retroactive to August 1,
    2004; (3) Carter’s recommendation to the Board that Sanford be placed on probation was not acted
    16
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    upon by the Board and therefore did not result in a materially adverse employment action; (4) the
    alleged statements by Peyton and Carter to a police officer that Sanford stole medications from a
    resident did not constitute a materially adverse employment action because it did not result in a
    significant change in his job status; (5) the removal of Sanford’s pager in August 2004 did not rise
    to the level of a significant change in employment status because it was merely an inconvenience and
    therefore was not a materially adverse employment action; (6) the Manor Board’s decision to give
    Sanford only two weeks to move out of his apartment rather than four weeks does not amount to a
    significant change in job benefits under the circumstances, and is therefore not a materially adverse
    employment action; and (7) the Manor’s post-employment decision to challenge Sanford’s
    unemployment benefits does not constitute an adverse employment action sufficient to confer Title
    VII liability upon the Manor. (Order, J.A. at 56-57.)
    Additionally, the court notes that the district court’s opinion failed to consider two arguments
    Sanford presented to satisfy the fourth prong of his quid pro quo sexual harassment claim. (See Pl.’s
    Opp’n to Defs.’ Summ. J. Mot. at 35.) First, Sanford points to the Board’s decision to take away
    Sanford’s courtesy duties as an example of a tangible employment action that he suffered as a result
    of Carter’s alleged harassment. Since the loss of courtesy duties resulted in a significant loss in pay,
    this action does constitute a tangible employment action. 
    Thornton, 530 F.3d at 454-55
    . However,
    Sanford fails to show evidence of a causal relationship between the tangible job detriment and
    Carter’s alleged actions. Sanford asserts that the Board “was tainted by Carter’s campaign of
    complaints about Sanford’s work performance and so-called ‘insubordination.’” (J.A. at 22-23,
    citing Shager v. Upjohn, 
    913 F.2d 398
    , 400 (7th Cir. 1990)). Yet, Sanford concedes that this
    17
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    tangible employment action was the Board’s decision and not Carter’s decision, as Carter had been
    terminated by the Board a month before. Shager, which involved an age discrimination claim, is
    inapposite because, unlike the supervisor in Shager, whose influence “may well have been decisive”
    in the committee's decision to fire the employee, there is no evidence that Carter exerted such
    influence over the Board. Moreover, Carter was terminated by the Board a month before the Board
    decided to take the courtesy position away from Sanford. In light of the Sixth Circuit’s finding in
    Idusuyi v. State of Tennesee Department of Children's Services, 
    30 F. App'x 398
    , 401 (6th Cir.
    2002), that a causal relationship between refusal of sexual advances and an adverse employment
    action was not established when the alleged former harasser had no formal role in making the
    materially adverse employment decision, Sanford fails to demonstrate the necessary causal
    relationship required by the fourth prong. That is, Sanford did not produce evidence that the loss of
    his courtesy position occurred because of Carter’s alleged harassment.
    Second, Sanford argues that he experienced a tangible employment action because he was
    “reduced to picking up trash.” Specifically, Sanford argues that outside contractors were called in
    for a few weeks to rectify urgent maintenance issues identified by HUD. However, assuming the
    truth of Sanford’s assertion, it does not constitute a tangible employment action because it is merely
    an alteration of job responsibilities for only a few weeks. Accordingly, since Sanford cannot show
    that he experienced a tangible employment action as a result of Carter’s alleged actions, the court
    affirms the district court’s order granting summary judgment to Defendants on Sanford’s quid pro
    quo hostile environment claim.
    3. Retaliation Claim
    18
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    Sanford advanced a retaliation claim based on his contention that, due to his complaints of
    Carter’s sexual harassment to Peyton, Manor Board members Ward and Cornelius, and the full
    Manor Board, the Defendants retaliated against him. (J.A. at 58.) To establish a prima face case of
    retaliation, a plaintiff must establish:
    (1) that [he] engaged in a protected activity; (2) that the defendant had knowledge of
    [his] protected conduct; (3) that the defendant took an adverse employment action
    towards [him]; and (4) that there was a causal connection between the protected
    activity and the adverse employment action.
    Weigel v. Baptist Hosp. of E. Tennessee, 
    302 F.3d 367
    , 381 (6th Cir. 2002). A plaintiff’s “burden
    of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” DiCarlo
    v. Potter, 
    358 F.3d 408
    , 420 (6th Cir. 2004). Once a prima facie case is established, the burden of
    producing some legitimate, non-discriminatory reason falls upon the defendant. 
    Id. If the
    defendant
    produces such a reason, the burden then shifts back to the plaintiff to show that the defendant’s
    proffered reasons are pretext for retaliation. 
    Id. To show
    pretext, a plaintiff must demonstrate that
    “the proffered reason: (1) has no basis in fact; (2) did not actually motivate [the defendant’s]
    challenged conduct; or (3) was insufficient to warrant the challenged conduct.” Wexler v. White’s
    Fine Furniture, 
    317 F.3d 564
    , 576 (6th Cir. 2003).
    a. Prima Facie Claim
    The district court correctly determined that Sanford satisfied the first two elements of a prima
    facie retaliation claim. With respect to the “adverse employment action” prong of a prima facie
    retaliation claim, the Sixth Circuit has recognized:
    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
    19
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    affect the terms, conditions, or status of employment, or those acts that occur in the
    workplace. The retaliation provision instead protects employees from conduct that
    would have “dissuaded a reasonable worker from making or supporting a charge of
    discrimination.”
    Niswander v. Cincinnati Ins. Co., 
    529 F.3d 714
    , 720 (6th Cir. 2008) (citing Burlington N. & Santa
    Fe Ry. v. White, 
    548 U.S. 53
    , 68 (2006)). A materially adverse action does not include trivial harms,
    such as “petty slights or minor annoyances that often take place at work and that all employees
    experience.” 
    Burlington, 548 U.S. at 68
    .
    We hold that the district court correctly found the loss of all of Sanford’s courtesy duties,
    which resulted in a 75% decrease in Sanford’s pay, constituted an adverse employment action under
    Burlington because it would have dissuaded a reasonable worker from making or supporting a charge
    of discrimination. However, we find that the district court erred in determining that other actions
    Sanford argues are materially adverse and which occurred within a relatively short period of time
    after Sanford’s complaints to Ward or Cornelius of Carter’s sexual advances were not in fact
    materially adverse, e.g., Carter’s write-ups and the recommendation of Carter and Peyton to the
    Board that Sanford be terminated. Cf. Jones v. Johanns, 264 F. App’x 463, 469 (6th Cir. 2007)
    (holding that three letters from an employer to an employee over the course of three and a half years
    that did not contain any threats or reprimands would not dissuade a reasonable employee from
    making or supporting a charge of discrimination.) As the court noted in 
    Burlington, 548 U.S. at 69
    ,
    the adverse employment action standard is phrased in general terms because “the significance of any
    given act of retaliation will often depend upon the particular circumstances.” The Burlington court
    emphasized that “[c]ontext matters.” 
    Id. Here, while
    some of the incidents alone may not rise to
    20
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    the level of an adverse employment action, the incidents taken together might dissuade a reasonable
    worker from making or supporting a discrimination charge.
    Finally, with respect to the fourth prong of a retaliation claim, the district court held that
    Sanford failed to make a prima facie claim because “temporal proximity between the protected
    activity and the alleged discriminatory act is alone not sufficient to establish causation.” (Order,
    J.A. at 59, citing Randolph v. Ohio Dep’t of Youth Services, 
    453 F.3d 724
    , 737 (6th Cir. 2000)).
    In the alternative, the district court held that, even if Sanford could show a prima facie retaliation
    claim, Sanford’s claim would still fail because he did not show that Defendant’s legitimate, non-
    discriminatory reason for removing Sanford’s courtesy duties was mere pretext for retaliation. (Id.
    at A-60.) For the following reasons, we hold that the district court erred.
    The Sixth Circuit in Mickey v. Zeidler Tool & Die Company, 
    516 F.3d 516
    , 524-25 (6th Cir.
    2008), rejected the notion that temporal proximity, standing alone, can never establish causation:
    Where an adverse employment action occurs very close in time after an employer
    learns of a protected activity, such temporal proximity between the events is
    significant enough to constitute evidence of a causal connection for the purposes of
    satisfying a prima facie case of retaliation. But where some time elapses between
    when the employer learns of a protected activity and the subsequent adverse
    employment action, the employee must couple temporal proximity with other
    evidence of retaliatory conduct to establish causality.
    
    Id. at 525.
    However, the Sixth Circuit has not established a black letter rule regarding the role of
    temporal proximity in establishing the causation prong of a prima facie retaliation case. This is
    demonstrated by 
    Mickey, 516 F.3d at 524
    , wherein the court indicated its holding in a prior case,
    Cooper v. City of North Olmsted, 
    795 F.2d 1265
    , 1272 (6th Cir. 1986), that a temporal proximity of
    four months was insufficient to establish an inference of retaliation, “does not preclude plaintiffs
    21
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    from ever using a temporal proximity closer than four months to establish an inference of
    retaliation.” See also Singfield v. Akron Metro. Hous. Auth., 
    389 F.3d 555
    , 556 (6th Cir. 2004)
    (concluding that temporal proximity alone of three months “is significant enough to constitute
    sufficient evidence of a causal connection for the purpose of satisfying [the plaintiff’s] burden of
    demonstrating a prima facie [retaliation] case.”); Goller v. Ohio Dep't of Rehab. & Corr., 285 F.
    App’x 250, 257 (6th Cir. 2008) (citing Mickey and Singfield to hold that a two-month temporal
    period between the protected activity and employee's termination is sufficient to establish a causal
    connection for the purposes of establishing a prima facie retaliation case); Vaughn v. Louisville
    Water Co., No. 07-6234, 
    2008 U.S. App. LEXIS 24224
    at *31-32 (6th Cir. Nov. 24, 2008) (assuming
    without deciding that the four-month temporal proximity between the protected activity and the
    materially adverse action is sufficient to create a causal connection, but affirming the granting of
    summary judgment to the defendant because it established a legitimate, non-discriminatory reason
    for the materially adverse action, and the plaintiff failed to show the defendant’s proffered reason
    was pretextual).
    Here, Sanford alleges that he complained to Manor Board members Ward and Cornelius
    about Carter’s actions in June or July 2004, and again to the entire Board on or near August 16,
    2004. Moreover, Sanford told Ward in October 2004 that he wanted to file a complaint based on
    Carter’s actions, and Ward explicitly directed Sanford not to make a formal complaint. Sanford’s
    October 2004 complaint to Ward constitutes a protected activity. See Johnson v. Univ. of Cincinnati,
    
    215 F.3d 561
    , 579 (6th Cir. 2000) (“complaining to anyone ... about allegedly unlawful practices”
    is a protected activity.) Ward notified Sanford in December 2004 of the removal of all of Sanford’s
    22
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    courtesy duties, which resulted in a 75% loss in Sanford’s pay and constituted an adverse
    employment action. Therefore, in light of Johnson, Mickey, and Springfield, we hold this two-month
    temporal proximity, along with the other incidents discussed above, taken together, are significant
    enough under the circumstances of this case to constitute a genuine issue of material fact as to the
    element of causation.
    b. Legitimate, Non-Discriminatory Reason for Adverse Employment Action
    Defendants asserted that its decision to eliminate Sanford’s courtesy duties was based on the
    fact that the overnight courtesy work was tied to occupancy of the apartment and went to the new
    property manager, Mark Anthony.
    c. Pretext
    Sanford maintains that Defendants’ proffered explanation regarding the loss of the courtesy
    job is actually pretext for retaliation because Defendants mischaracterize Sanford’s testimony.
    Specifically, Sanford maintains that Defendants failed to provide an explanation for the loss of all
    of his courtesy duties (not just the apartment) in their summary judgment motion before the district
    court. Sanford notes that Defendants did proffer an explanation regarding the loss of courtesy hours,
    though not in regard to all of such duties. Nevertheless, Sanford points out that the district court
    accepted Defendants’ explanation. The district court ruled that:
    [T]he evidence reveals that the defendants’ decision to eliminate Sanford’s position
    in courtesy was based on the fact that this responsibility would lie with the new
    property manager who intended to live in the Manor apartment. Sanford has
    acknowledged that his work in courtesy was tied to the fact that he was living in the
    apartment at the time. Having proffered a legitimate non-retaliatory reason, the
    burden of production shifts back to Sanford to prove by a preponderance of the
    evidence that the legitimate reason offered was a mere pretext for retaliation.
    23
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    
    Burdine, 450 U.S. at 256
    ; Manzer v. Diamond Shamrock Chem. Co., 
    29 F.3d 1078
    ,
    1082 (6th Cir. 1994). Sanford has come forward with no evidence that the reason
    offered by the defendants was somehow a pretext for retaliation. Therefore, absent
    evidence that the defendant’s explanation for the job elimination is mere pretext,
    Sanford’s claim cannot be sustained.
    (Order, J.A. at 60.)
    However, Sanford argues that he did not admit that living in the apartment was tied to his
    courtesy job. Rather, he points to his deposition testimony wherein he stated that he was performing
    courtesy work before he moved into the apartment, and that when he moved into the Manor
    apartment he received additional courtesy hours. Sanford maintains that the additional courtesy
    hours - not the courtesy job - were tied to living in the apartment. Thus, Sanford argues that he
    satisfied his burden of presenting evidence that the Board’s decision to remove all his courtesy duties
    was pretext for retaliation. Sanford asserts that the question before the court is not whether
    Defendants “proffered legitimate, non-discriminatory reason was in fact pretextual, but whether a
    factual dispute exists with respect to this question.” Vincent v. Brewer Co., 
    514 F.3d 489
    , 498 (6th
    Cir. 2007).
    This court finds Sanford’s argument that he has presented evidence of pretext to be well-
    taken. As the Sixth Circuit has recognized, “pretext may be shown either directly by persuading [the
    trier of fact] that a discriminatory reason more likely motivated the employer or indirectly by
    showing that the employer’s proffered explanation is unworthy of credence.” 
    Manzer, 29 F.3d at 1082
    . As stated above, a plaintiff may show pretext by showing “the proffered reason: (1) has no
    basis in fact; (2) did not actually motivate [Defendant’s] challenged conduct; or (3) was insufficient
    24
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    to warrant the challenged conduct.” 
    Wexler, 317 F.3d at 576
    . Here, Sanford has put forth evidence
    from which a trier of fact might conclude that Defendants’ explanation that all of the courtesy hours
    were tied to living in the apartment had no basis in fact. Accordingly, we reverse the district court’s
    order granting summary judgment to the Manor and Southeastern on Sanford’s retaliation claim.
    IV. CONCLUSION
    For the reasons stated above, we REVERSE the district court’s order denying the Manor’s
    Motion to Dismiss based on this court’s finding that the district court incorrectly applied the joint
    employer doctrine to conclude that the Manor had the requisite number of employees to be liable
    under Title VII and the Kentucky Act and REMAND the case to the district court for re-
    determination of the issue consistent with this court’s opinion. We also REVERSE the district
    court’s order granting summary judgment to the Manor and Southeastern on Sanford’s hostile
    environment sexual harassment and retaliation claims, but we AFFIRM the district court’s order
    granting summary judgment to the Manor and Southeastern on Sanford’s quid pro quo sexual
    harassment claim.
    25
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    CLAY, Circuit Judge, concurring in part and dissenting in part. The majority opinion
    reverses the district court with respect to William Sanford’s hostile work environment and retaliation
    claims. I concur with those holdings. However, I dissent from the majority’s holding that the district
    court properly granted summary judgment with respect to Sanford’s quid pro quo claim, and would
    reverse with respect to that claim as well.
    As the majority opinion correctly states, a plaintiff bringing a quid pro quo claim must
    provide evidence that, inter alia, his refusal to submit to unwelcome sexual demands resulted in a
    tangible job detriment and liability may be imputed to the employer. Bowman v. Shawnee State
    Univ., 
    220 F.3d 456
    , 461 (6th Cir. 2000). “If the sexual harassment did result in a tangible
    employment action, the employer will be strictly liable for the supervisor’s sexual harassment.”
    Keeton v. Flying J, Inc., 
    429 F.3d 259
    (6th Cir. 2005). Thus, if there are issues of fact with respect
    to whether Sanford suffered a tangible job detriment caused by refusing Carter’s advances, his quid
    pro quo claim should survive summary judgment. Such issues of fact exist here.
    In the quid pro quo context, tangible, or adverse, employment actions include “a termination
    of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a
    material loss of benefits, significantly diminished material responsibilities, or other indices that
    might be unique to a particular situation.” 
    Bowman, 220 F.3d at 461-62
    . The majority concludes
    that Sanford’s quid pro quo claim fails because, out of all of the alleged actions taken against him,
    only the loss of his courtesy duties constituted a tangible employment action. The majority further
    concludes that because Marla Carter had already been terminated when Sanford lost his courtesy
    duties, Sanford could not have lost those duties as a result of his rejection of Carter’s sexual
    26
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    advances. In finding that only the loss of courtesy duties could constitute a tangible employment
    action, the majority states in conclusory fashion that the litany of actions Carter took against
    Sanford–including her “write-ups” of his alleged misconduct, her below-average evaluation of him,
    and her allegation to a police officer that Sanford had stolen medication from a Manor resident–were
    not, in and of themselves, tangible employment actions. In so finding, the majority wrongly
    disaggregates Carter’s actions and ignores the causal connection between those actions and Sanford’s
    loss of courtesy duties.
    Sanford has put forward evidence indicating that following his refusal of Carter’s sexual
    advances, Carter engaged in a course of conduct aimed at reducing Sanford’s responsibilities and
    his role at the Manor. The Manor asserts that Sanford lost his courtesy hours because Sanford was
    no longer on site to perform the courtesy duties at night after the property manager who replaced
    Carter moved into Sanford’s apartment. However, the decision to force Sanford out as a resident
    of the Manor could have been made partly because of a calculation on the part of the Manor that
    retaining Sanford as a resident was no longer desirable, a decision no doubt influenced by the various
    infractions Carter claimed Sanford had committed in recent months. The fact that Carter did not
    personally terminate Sanford’s courtesy duties does not mean that there was no causal connection
    between her actions and the Board’s decision to remove those duties. See Wilson v. Stroh Cos., Inc.,
    
    952 F.2d 942
    (6th Cir. 1992) (“[Rather than] whether the discriminatory motives of a supervisor can,
    as a matter of law, be imputed to an upper-level manager who makes the decision to terminate the
    employee[,] . . . [t]he determinative question is whether [the plaintiff] has submitted evidence that
    [a supervisor’s] . . . animus was a cause of the termination.”); see also Madden v. Chattanooga City
    27
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    Wide Serv. Dep’t, 
    549 F.3d 666
    , 677 (6th Cir. 2008) (employer’s decision to terminate plaintiff based
    on information supplied by supervisor out of discriminatory animus satisfies causal connection
    requirement). Thus, issues of fact exist with respect to whether Carter’s conduct caused Sanford’s
    loss of courtesy duties, a loss which the majority acknowledged would amount to a tangible
    employment detriment.
    Sanford also argues that even prior to his loss of courtesy duties, he suffered a tangible
    detriment as a result of the negative performance evaluation given him by Carter in August 2004–
    the detriment of not receiving full back pay for the raise he was due. The majority wrongly
    concludes that the failure to provide in full the back pay he was owed does not constitute an adverse
    employment action. Under our precedent, the deprivation of increased compensation which results
    when an employee receives a lower salary increase because of a negative evaluation constitutes an
    adverse employment action. White v. Baxter Healthcare Corp., 
    533 F.3d 381
    , 404 (6th Cir. 2008)
    (collecting cases).   Moreover, even if the deprivation is subsequently cured, the temporary
    deprivation could still be an adverse employment action. See White v. Burlington Northern & Santa
    Fe Ry. Co., 
    364 F.3d 789
    , 803 (6th Cir. 2004) (employee’s thirty-seven day suspension without pay,
    followed by reinstatement with back pay, constituted adverse employment action).1
    1
    Although the plaintiff in White brought a retaliation claim, retaliation claims at the time of
    the decision required a similar “adverse employment action” that quid pro quo claims require today.
    
    See 364 F.3d at 797-98
    . Thus, while the Supreme Court granted certiorari and in its decision
    announced the current, broader standard for retaliation claims, see Burlington Northern & Santa Fe
    Ry. Co. v. White, 
    548 U.S. 53
    , 68-70 (2006), this Court’s decision in White remains a valid precedent
    for finding that a suspension without pay, followed by a reinstatement with back pay, could
    constitute an adverse employment action.
    28
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    On a performance evaluation dated August 9, 2004, Carter gave Sanford a performance
    rating that entitled him to a partial, rather than full, pay raise. On August 16, 2004, the Manor’s
    Board of Directors determined that Sanford was entitled to a full raise, which was to be retroactively
    applied. Sanford’s pay increase, however, did not take effect until the pay period beginning on
    August 31, 2004, rather than August 16, 2004 as scheduled. Sanford asserts that Carter gave him
    a negative performance evaluation that resulted in a score that did not qualify him for a full raise.
    Although the Board of Directors reversed Carter’s decision and applied a full raise retroactively,
    Sanford asserts that he did not receive the full raise until August 31, 2004 for his maintenance pay
    and September 15, 2004 for his courtesy pay. Given the economic consequences of the failure to
    institute a full and timely raise, Sanford has created a genuine issue of material fact regarding
    whether the failure to provide full back pay constituted an adverse employment decision. See
    Kauffman v. Allied Signal, Inc., Autolite Div., 
    970 F.2d 178
    , 187 (6th Cir. 1992) (recognizing that
    there may be de minimis exception for temporary job detriments where no economic loss occurred).
    Moreover, Sanford asserts that this detriment was directly caused by Carter’s negative evaluation.
    This aspect of Sanford’s quid pro quo claim should therefore be left for trial as well.
    Thus, not only are there issues of fact with respect to whether Carter caused Sanford to lose
    pay and courtesy duties, but the various actions Carter took to undermine Sanford’s role and
    reputation at the Manor while she was still his supervisor are part and parcel of his quid pro quo
    claim. I would therefore reverse the district court’s decision to grant summary judgment with respect
    to the entirety of Sanford quid pro quo claim. I would allow a jury to decide the extent to which
    Sanford suffered tangible job detriments, and the extent to which Carter was responsible for them.
    29
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    More generally, in cases such as this one, where the plaintiff brings three separate Title VII claims
    that are tangled up in one series of events, it simply does not make sense to disaggregate the claims
    and the subclaims as the majority opinion attempts to do. The jury should be given all of Sanford’s
    claims, and should be allowed to decide for itself which of those claims have merit.
    In this vein, it is worth noting that regardless of the majority’s holding that several of Carter’s
    actions against Sanford were not tangible employment actions for the purpose of his quid pro quo
    claim, evidence of those actions will constitute an essential part of Sanford’s case at trial, when he
    will present his hostile work environment and retaliation claims to the jury. For example, the
    removal of Sanford’s pager, the negative write-ups and the decision to have Sanford move out of his
    apartment in just two weeks are all relevant to his retaliation claim. The majority opinion properly
    recognizes this by reversing the district court with respect to the entirety of Sanford’s retaliation
    claim. It should be reiterated that on remand, the district court should not look to this Court’s
    rejection of Sanford’s quid pro quo claim as a basis for rejecting evidence of the actions underlying
    that claim. In reality, all of Sanford’s claims revolve around the same narrative, in which he was
    harassed, he resisted his harasser, he complained about the harassment, and he subsequently lost pay
    and his main job responsibilities. Evidence which supports that narrative will be relevant and
    admissible at trial, unless excludable for some other reason. See Old Chief v. United States, 
    519 U.S. 172
    , 187 (1997) (“Unlike an abstract premise, whose force depends on going precisely to a particular
    step in a course of reasoning, a piece of evidence may address any number of separate elements,
    striking hard just because it shows so much at once[.] . . . [As [the] pieces [of evidence] come
    together a narrative gains momentum, with power not only to support conclusions but to sustain the
    30
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest
    verdict.”).
    In sum, I concur in the majority opinion except for Part III.B.2, from which I dissent.
    31
    Nos. 07-5869, 07-5905
    Sanford v. Main Street Baptist Church Manor, Inc.
    KETHLEDGE, Circuit Judge, concurring in part and dissenting in part. I join Parts
    I through III.B.2, but respectfully dissent from the Court’s reversal of the district court’s judgment
    as to Plaintiff’s retaliation claim. The protected activity giving rise to that claim was first made
    approximately five months before the allegedly adverse employment action at issue. For this reason,
    among others, I do not think that mere temporal proximity is sufficient to establish a genuine issue
    of material fact as to the element of causation for that claim.
    32
    

Document Info

Docket Number: 07-5905

Citation Numbers: 327 F. App'x 587

Filed Date: 5/20/2009

Precedential Status: Non-Precedential

Modified Date: 1/12/2023

Authorities (29)

Jennifer Arculeo v. On-Site Sales & Marketing, LLC and ... , 425 F.3d 193 ( 2005 )

Donald G. Wexler v. White's Fine Furniture, Inc. , 317 F.3d 564 ( 2003 )

Kyle Keeton v. Flying J, Inc. , 429 F.3d 259 ( 2005 )

Betty Weigel v. Baptist Hospital of East Tennessee , 302 F.3d 367 ( 2002 )

William Singfield v. Akron Metropolitan Housing Authority , 389 F.3d 555 ( 2004 )

Thornton v. Federal Express Corp. , 530 F.3d 451 ( 2008 )

Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH ... , 795 F.2d 1265 ( 1986 )

Leo LaPOINTE, Plaintiff-Appellant, v. UNITED AUTOWORKERS ... , 8 F.3d 376 ( 1993 )

Sheila White, Plaintiff-Appellee/cross-Appellant v. ... , 364 F.3d 789 ( 2004 )

Mickey v. Zeidler Tool and Die Co. , 516 F.3d 516 ( 2008 )

Lucille R. Kauffman v. Allied Signal, Inc., Autolite ... , 970 F.2d 178 ( 1992 )

edwin-c-manzer-v-diamond-shamrock-chemicals-company-formerly-diamond , 29 F.3d 1078 ( 1994 )

57-fair-emplpraccas-bna-1155-57-empl-prac-dec-p-41190-gary-wilson , 952 F.2d 942 ( 1992 )

Charles Swallows, Teresia Walker, and Vickie Heidel v. ... , 128 F.3d 990 ( 1997 )

Henry Dicarlo v. John E. Potter, Postmaster General , 358 F.3d 408 ( 2004 )

Madden v. Chattanooga City Wide Service Department , 549 F.3d 666 ( 2008 )

Sandra M. Clark Rhonda R. Knoop v. United Parcel Service, ... , 400 F.3d 341 ( 2005 )

John B. Johnson v. University of Cincinnati, Joseph A. ... , 215 F.3d 561 ( 2000 )

Thomas E. Bowman v. Shawnee State University Jessica J. ... , 220 F.3d 456 ( 2000 )

Cindy Akers v. Donald Alvey and Kentucky Cabinet for ... , 338 F.3d 491 ( 2003 )

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