Employers beware: An employee does not have to use “magic words” to complain about discrimination for it to lay the basis for a retaliation claim. The Sixth Circuit made this point in a unanimous opinion in the case of Mumm v. Charter Township of Superior.
Susan Mumm complained to her employer, the Township, about being disciplined for performance-related reasons (she was an accountant, among other duties). After the Township addressed her complaint, Mumm’s supervisor, Ken Schwartz, asked her to withdraw the complaint.
During a subsequent meeting, Mumm stated she would withdraw her complaint only if the Township granted her an immediate pay raise of $10,000 because she was “tired of being underpaid for all these years in relation to Keith Lockie.” Lockie (male) was another Township accountant. Mumm also claims she informed her supervisor that she had consulted a labor attorney, and she intended to file a lawsuit if the Township did not address “the pay discrimination between Keith and me.”
The Township subsequently fired Mumm because it had “lost trust” in her after the meeting, which the Township considered to be the “last straw” in a number of inappropriate actions. True to her word, Mumm filed a lawsuit alleging multiple claims, including a retaliation claim under Title VII. Under Title VII, it is unlawful for an employer to retaliate against an employee for engaging in Title VII-protected activity. The district court granted summary judgment to the Township on all of Mumm’s claims, holding Mumm’s complaint did not constitute Title VII-protected activity. Mumm appealed to the Sixth Circuit.
What the Sixth Circuit Said on Appeal
The Sixth Circuit reversed the trial court. The court held that Mumm’s threat to sue was clear enough to be protected activity and the Township “should have known Mumm was charging the Township with sex discrimination.” The Sixth Circuit sent the case back to the district court for a jury trial.
In reversing summary judgment, the Sixth Circuit found that even though Mumm did not say “sex discrimination” or make clear she believed gender explained the pay difference between her and Lockie, the Township officials knew Lockie was male, knew he occupied a similar position, and knew that he (like Mumm) was an at-will, non-unionized employee.
“Mumm pointed to a specific practice she believed to be unlawful (the pay disparity between her and Lockie) and threatened to sue if the Township did not correct it. . . .It makes no difference that Mumm did not utter the magic words ‘sex discrimination.’”
The Sixth Circuit also held that a reasonable jury could find the Township’s reasons for Mumm’s discharge were pretextual.
This case is a good lesson for employers dealing with employees who raise complaints.
- Don’t be picky when determining whether an employee has complained about discrimination. As the Sixth Circuit found, an employee does not have to use certain “magic words” to engage in protected activity. If it is a close call, treat it like a discrimination complaint.
- If an employee complains about something you think could be about discrimination (even if the employee did not expressly say it), treat it accordingly. Investigate that complaint.
- Don’t retaliate against an employee for bringing it up. You can address issues, discipline if necessary, etc., but don’t base a decision on the fact that the employee complained. Otherwise, you may have to be explaining yourself to a jury.