DAMON J. KEITH, Circuit Judge.
In 1999, Plaintiff-Appellant Geraldine Fuhr filed a successful lawsuit to be instated as varsity boys basketball coach at Hazel Park High School, where she had been employed as varsity girls basketball coach. For five years she coached both the girls and boys varsity basketball teams. In 2006, she was removed from her position coaching varsity girls basketball. In this action, she claims that her dismissal as the varsity girls basketball coach and other acts of harassment are a result of her 1999 suit. The district court granted Defendant-Appellee Hazel Park School District's motion for summary judgment, finding that Fuhr had failed to state a prima facie case for her claims. In this appeal, Fuhr is only pursuing her retaliation claim and has abandoned her claims for gender discrimination and hostile work environment. For the following reasons, we
Multiple cases are involved in the background of this case. Although the parties dispute some of the facts, they are presented as characterized by Plaintiff Geraldine Fuhr because at the summary judgment phase the court views all of the facts and draws all reasonable inferences in favor of the non-moving party. Tysinger v. Police Dep't of City of Zanesville, 463 F.3d 569, 572 (6th Cir.2006).
Since 1989 Fuhr has been employed as a teacher and athletic coach by Defendant Hazel Park School District ("Hazel Park") at Hazel Park High. In October 1999, Plaintiff, then varsity girls basketball coach, sued Defendant in federal court. See Fuhr v. Sch. Dist. of the City of Hazel Park, 131 F.Supp.2d 947 (E.D.Mich.2001) ("Fuhr I"). In that case, Fuhr alleged that Defendant had discriminated against her because of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), and Michigan's Title VII parallel, the Elliott-Larsen Civil Rights Act, Michigan Compiled Laws § 37.2101 ("ELCRA"), by failing to hire her as the head coach of the high school boys varsity basketball team. In August 2001, a jury found in favor of Plaintiff. In October 2001, in response to Fuhr's post-trial
Per the district court's order, Hazel Park installed Fuhr as head coach for the boys varsity basketball team. Hazel Park also allowed her to remain coach for the girls varsity basketball team. However, Hazel Park appealed the district court's judgment, and it was not made final until it was affirmed by this Court in 2004. See Fuhr v. Sch. Dist. of Hazel Park, 364 F.3d 753 (6th Cir.2004). Fuhr served in both positions from 2001 to 2006.
As Fuhr I continued through the courts, an unrelated case was filed in 2001 by Michigan parents against the Michigan High School Athletic Association ("MHSAA") alleging in part that it violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, because the girls basketball season was not held at the same time as the boys season. A federal district court ordered that the girls and boys seasons be realigned so that the boys and girls played at the same time. See Cmtys. for Equity v. Michigan High Sch. Athletic Ass'n, 178 F.Supp.2d 805 (W.D.Mich.2001), vacated in part, 544 U.S. 1012, 125 S.Ct. 1973, 161 L.Ed.2d 845 (2005). This order was affirmed, vacated, reheard, and affirmed again up and down the federal courts; in April 2007 the order to realign the girls and boys seasons was made final. See Cmtys. for Equity v. Michigan High Sch. Athletic Ass'n, 459 F.3d 676 (6th Cir.2006), cert. denied, 549 U.S. 1322, 127 S.Ct. 1912, 167 L.Ed.2d 566 (2007).
As both Fuhr I and the MHSAA case made their way through the courts, the atmosphere at Fuhr's workplace, Hazel Park High, was quite contentious. Fuhr had a rocky relationship with a number of her colleagues, superiors, and the parents of team members. The following acts occurred:
In one November 2005 conversation Don Vogt, the principal of Hazel Park High, spoke with Fuhr, saying "this is a good old boys network. They are doing this to you to get even, you know ... They are doing this to you to get even because you stood up for your rights. They are doing this to you to get back at you for winning the lawsuit." R. 96-4 at 417.
After Fuhr I became final in 2004, but before the MHSAA case became final in 2007, Defendant removed Plaintiff as the coach of the girls varsity basketball team on June 1, 2006. Plaintiff remained varsity boys basketball coach. Given the ongoing litigation in the MHSAA case at the time, Hazel Park defended Plaintiff's removal as an effort to be proactive should the boys and girls seasons need to be realigned pursuant to a court order. Hazel Park reasoned that one coach would have difficulty overseeing two teams that played simultaneously.
In February 2007 Fuhr filed a charge of discrimination with the Michigan Department of Civil Rights ("MDCR"), alleging "[s]ince I won a gender-based lawsuit against the employer, I have been harassed, a varsity girls' basketball job has been taken away from me, my authority has been undermined, and I have not been supported." R. 96-8. Plaintiff indicated she was alleging discrimination based on sex and in retaliation for Fuhr I. She reported that the earliest instance of retaliation occurred on April 27, 2006. Plaintiff went on to file two more charges with the MDCR for sex discrimination and retaliation in December 2008 and July 2009. The Equal Employment Opportunity Commission ("EEOC") attempted to mediate the lawsuit. After mediation between the parties failed, the EEOC issued Fuhr a right to sue letter.
On April 18, 2008, Fuhr filed the present action in district court. In her amended complaint, filed in August 2009, Plaintiff alleged that ever since she prevailed at the first trial, Defendant has discriminated and retaliated against her in various ways. Specifically, she argued that Defendant dismissed her as the girls varsity coach in retaliation for winning the first trial. She also alleged that "because of her sex," or "because of her complaints" regarding her unfair treatment, Defendant conducted a biased internal investigation, has treated her differently than male coaches, and has demeaned and belittled her by, among other things, unfairly disciplining her team members, failing to provide her with "all resources she needs and accusing her of failing to comply with departmental regulations." R. 41 ¶ 11(A)-(H).
Based on these allegations, Plaintiff asserted discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and ELCRA. On October 15, 2010, Hazel Park filed a motion for summary judgment. The essence of Plaintiff's retaliation claims was that Defendant's mistreatment of her is in retaliation for her current and prior lawsuits, her complaints with the EEOC and MDCR, and her "internal complaint against discrimination."
We review an order granting summary judgment de novo. Tysinger, 463 F.3d at 572. Under Federal Rule of Civil Procedure 56(a), summary judgment is proper 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). This requires us to view the evidence and draw all reasonable inferences in favor of the non-moving party. Tysinger, 463 F.3d at 572. A genuine dispute concerns evidence "upon which a reasonable jury could return a verdict in favor of the non-moving party." Id. A factual dispute is material only if it could affect the outcome of the suit under the governing law. Id.
Fuhr argues that Hazel Park removed her as the girls varsity basketball coach and subjected her to various forms of harassment in retaliation for prevailing in Fuhr I. A de novo review shows that the district court properly granted summary judgment in favor of Hazel Park because Fuhr has not established a prima facie case under Title VII.
Plaintiff brings anti-retaliation claims under Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and ELCRA. The same legal framework applies to all three claims. Thus, the standards articulated by Title VII cases are sufficient to establish the applicable legal framework here.
Title VII of the Civil Rights Act of 1964 contains a potent anti-retaliation provision. The statute provides in relevant part: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). A retaliation claim can be established either through direct evidence of retaliation or circumstantial evidence that would support an inference of retaliation. Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir.2010).
Direct evidence "requires no inferences to conclude that unlawful retaliation was a motivating factor in the employer's action." Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir.2008). It also "requires the conclusion that unlawful retaliation was a motivating factor in the employer's action." Abbott v. Crown Motor
Fuhr submits the following statement by the principal of Hazel Park High, Don Vogt, from a November 2005 conversation in which she recalls him telling her: "this is a good old boys network. They are doing this to you to get even, you know... They are doing this to you to get even because you stood up for your rights. They are doing this to you to get back at you for winning the lawsuit."
Fuhr argues that this statement unambiguously reveals that the school district took specific actions against her with retaliatory intent because:
Appellant Br. at 47 (emphasis in original).
Contrary to Fuhr's argument, inferences are needed to conclude that she has been unlawfully retaliated against. Though the statement clearly refers to a good old boys network, it is unclear who is a part of that network. Nor is it clear what acts Vogt refers to as retaliatory. He could be referring to all of the collective acts that occurred prior to her removal as the varsity girls coach or only some of those acts or only her removal as varsity girls coach or her removal and some combination of the other acts. These ambiguities do not require a conclusion that these unspecified acts by unspecified people were based on unlawfully retaliatory motives. See Minadeo v. ICI Paints, 398 F.3d 751, 764 (6th Cir.2005) (holding that plaintiff failed to offer direct evidence where "[w]e could not possibly conclude that the comments and circumstances pointed to by [plaintiff] show a discriminatory motive on the part of [defendant] without drawing undue inferences").
Accordingly, Fuhr cannot prevail unless she presents circumstantial evidence of unlawful retaliation.
Retaliation claims supported by circumstantial evidence are examined using the burden-shifting framework established 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). Spengler, 615 F.3d at 491.
Under the McDonnell Douglas/Burdine framework, a plaintiff has the initial burden to establish a prima facie case of retaliation. The prima facie case consists of four elements: (1) the plaintiff engaged in activity protected under Title VII; (2) plaintiff's exercise of her protected rights was known to defendant; (3) an adverse employment action was subsequently taken against the employee or the employee was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 639 (6th Cir.2009).
Should the plaintiff establish a prima facie case, a presumption of unlawful retaliation arises and the burden of production shifts to the defendant to rebut the presumption by "articulat[ing] some legitimate, nondiscriminatory reason for its action." Spengler, 615 F.3d at 492 (quoting
If a defendant successfully produces such a legitimate reason, then the burden of production returns to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was a mere pretext for discrimination. Abbott, 348 F.3d at 542. While the burden of production shifts throughout the McDonnell Douglas/Burdine framework, the burden of persuasion always remains with the plaintiff. Id.
The parties do not dispute that the first two prongs of Fuhr's prima facie case have been met: Fuhr's 1999 discrimination suit was protected activity under Title VII and Defendant knew that Fuhr engaged in this protected activity. Therefore, the crux of this case rests on whether Fuhr can establish: (1) that a causal connection exists between her suit and the retaliatory acts and (2) that the retaliatory acts constitute an adverse employment action.
Fuhr argues that the district court erred in its analysis of whether there was a causal connection between the district court's judgment in 2001 and her removal as girls varsity coach in 2006. She claims that the relevant timeline is between her installation as boys varsity coach and various retaliatory actions taken against her prior to her 2006 removal as the varsity girls coach. Yet even with this shortened timeline, Fuhr is unable to establish that there was a causal connection between her instatement as varsity boys coach and the actions taken prior to her removal as varsity girls coach.
A causal connection is established when a plaintiff proffers "evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action." Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir.2009) (quoting EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997)). Temporal proximity alone cannot establish a causal connection. Spengler, 615 F.3d at 494. However, temporal proximity always plays a role in establishing a causal connection; its significance depends on the context.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.2008) (citation omitted).
Fuhr brought her discrimination case in 1999. It was not until 2001, however, that the district court ordered Defendant to make Plaintiff the varsity boys coach; and it was March 2004 by the time the district court's 2001 judgment was affirmed on appeal. See Fuhr I, 364 F.3d 753 (6th Cir.2004). The earliest date on which Fuhr asserts a retaliatory act took place is April 27, 2006. Even when taking March 2004 as the date in which Fuhr engaged in protected activity [i.e. fully litigating the discriminatory denial of the boys varsity coach position] and April 2006 as the date of the earliest act of retaliation, this leaves a gap of two years between her protected activity and the first reported retaliatory act.
This multi-year gap proves fatal to Fuhr's assertion that there is a causal
Because the prima facie case for retaliation requires that all four elements be satisfied, the failure to find one element all but resolves this case. Nevertheless, even if Fuhr could establish a causal connection, she would be unable to establish that Defendant took an adverse employment action against her.
Fuhr argues that the district court was incomplete in its analysis of her prima facie case. One element of the prima facie case can be met by establishing that either: (1) an adverse employment action was taken against the employee subsequent to engaging in protected activity or (2) the employee was subjected to severe or pervasive retaliatory harassment by a supervisor. Garner, 554 F.3d at 639. Fuhr claims that the district court only analyzed whether she was subjected to severe or pervasive retaliatory harassment and failed to address whether Defendant took an adverse employment action against her.
Indeed, the district court only addressed whether Fuhr was subjected to severe or pervasive retaliatory harassment by her supervisor, Hazel Park High's athletic director, Tom Pratt. The district court did this because, even though Fuhr correctly identified both ways of establishing the element, she only argued that she was subjected to severe and pervasive retaliatory harassment. Fuhr argued that "Defendants created a hostile work environment" through retaliatory acts and that "her supervisor, Tom Pratt, did engage in pervasive retaliatory harassment"; she concluded "that the retaliation was severe and pervasive and at the hands of her superiors." R. 98 at 34-35. Because Fuhr failed to argue to the district court that Defendant took an adverse employment action against her, she is precluded from raising such an argument on appeal. "This court will not decide issues or claims not litigated before the district court.... `[W]e review the case presented to the district court rather than a better case fashioned after the district court's order.'" White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir.1990) (citations omitted).
Even if we were to assume that Fuhr met her initial burden of establishing her prima facie case so that unlawful retaliation would be presumed, Defendant would successfully rebut the presumption of unlawful retaliation. Defendant has articulated legitimate nondiscriminatory
Defendant submits that Fuhr's removal as varsity girls basketball coach in June 2006 was in response to the ongoing litigation in the MHSAA case. Defendant sought to proactively make sure coaches were in place should the seasons need to be realigned. Fuhr argues that because the judgment in MHSAA did not become final until the Supreme Court's final denial of certiorari in 2007, Defendant had no legitimate reason to remove her as coach of both teams in 2006. Defendant's action was legitimate, however, because it would have been impractical for one coach to head both teams simultaneously if both the girls and boys seasons would indeed be played in the winter.
Fuhr's complaints regarding the placement of the ice machine in the football coach's office and the denial of permission to allow the varsity boys basketball team access to the football locker room are complaints about decisions that affected all non-football sports teams equally.
Fuhr's complaints that Defendant refused to pay for an athletic trainer to attend basketball practice and the denial of access to the gym at a specific time are acts that affected all of Hazel Park High's sports teams equally — Defendant provides trainers only at games for budgetary reasons and all teams were denied access to the gym at Plaintiff's desired time because the City Recreation Center had already reserved the gym for that time.
Fuhr asserts Defendant inappropriately disciplined her best players. However, Defendant submitted evidence supporting the reasons behind the disciplinary actions.
Tom Pratt's lackadaisical completion of his duties — the untimely submission of the the order for the varsity boys basketball uniforms and irregular job evaluations — has affected all of Hazel Park High's teams and coaches. Defendant submits that Pratt has ordered uniforms late for other teams as well, such as the wrestling team. Defendant also concedes that although Pratt is supposed to evaluate all coaches under his supervision annually, he has been sporadic in his evaluation of all coaches, not just Fuhr. Therefore, these problems are not unique to Fuhr.
Finally, Fuhr grieves that Clint Adkins, the school board president, set up a room for community members to complain about her at the city's community center and that Tom Pratt did not inform her about a petition circulated by parents which called for her removal as varsity boys basketball coach. These complaints are meritless because Defendant could not suppress community members' free speech without raising First Amendment concerns with respect to impermissible viewpoint discrimination.
Because Plaintiff is unable to meet her initial burden, we decline to address whether she would successfully shoulder her ultimate burden of proving pretext. The district court judgment is