Noting that an “intervening cause” between the protected activity and the adverse employment action can dispel any inference of causation, the court found “at least two intervening causes: the complaints filed against Kenney and the documented instances of Aspen employees leave due to her management style.” The court concluded that Kenney also could not show that Aspen’s legitimate reason for firing her was a pretext for unlawful retaliation.
The court noted that “enerally speaking, heightened scrutiny is reflected by a similar three-step pattern: an employee engages in conduct that, while technically objectionable, is blessed, or at least tolerated, by the employer the employee engages in protected activity the employer then takes an adverse action against the employee for conduct the employer had previously allowed.” The Sixth Circuit, however, found that Kenney could not make such a showing.įirst, given the seven-year gap between Kenney’s two stints with Aspen, “it is difficult to believe she is comparing apples to apples.” Further, Kenney failed to show that her conduct during her first stint was similar to her conduct during her second stint. In particular, she claimed that she was not disciplined for engaging in similar behavior during her first stint with Aspen seven years earlier and that Aspen didn’t have a problem with her demeanor and management style until after she engaged in protected activity. Kenney argued that Aspen increased its scrutiny of her after she complained. First, the court found that the timing between her alleged protected activity and her discharge “is not, standing alone, a convincing case for proving causation,” and therefore, Kenney needed more proof.
#Heightened scrutiny trial
The Sixth Circuit affirmed the trial court’s summary judgment dismissal of Kenney’s claims, finding that, even assuming that Kenney engaged in protected activity, she didn’t have enough evidence to prove her case. Kenney claimed that voiced objections to Aspen practices that supposedly were discriminatory against black persons-a claim that Aspen denied. Kenney filed suit, alleging that she was fired in retaliation for complaints about racially discriminatory hiring practices that she voiced 2½ months before her discharge. Consequently, Aspen chose to fire Kenney. Further, two employees formally complained that Kenney was targeting and/or harassing them and damaging employee morale. Within three months of her re-hire, Aspen’s attrition rate doubled and dozens of employees quit, citing Kenney as the reason. Kenney’s re-hire quickly proved to be a disaster. Several years earlier, Kenney had worked for Aspen and had a record of causing workplace friction. Aspen, a Michigan auto parts manufacturer, hired Karen Kenney to serve as its productions manager. Aspen Technologies, Inc.-provides more guidance on the circumstances in which increased scrutiny may be evidence of retaliation. In other cases, the Sixth Circuit has found evidence of retaliation where an employee was fired for tardiness the same day she complained of harassment but yet had never previously been disciplined for multiple incidents of tardiness and where a bank employee was fired due to a wire transfer shortly after engaging in protected activity even though the transfer was approved before the protected activity.Ī recent Sixth Circuit case issued on July 6, 2020- Kenney v. In other words, the fact that the employer let slide pre-protected activity behavior that was much more egregious and yet fired him for having a panic attack could convince a reasonable jury that the employer suddenly decided to change its tolerance level after he complained to the EEOC. The court found that this increased scrutiny of the plaintiff’s behavior after filing an EEOC complaint provided evidence of retaliation. Soon after pursuing an EEOC complaint for disability discrimination, the plaintiff was fired for having a panic attack while watching a work video.
Nissan North Am., Inc.-a case decided by the United States Court of Appeals for the Sixth Circuit in 2005-the employer tolerated the plaintiff’s disruptive behavior for many years, including threats to co-workers, sexually inappropriate remarks, and harassment. Courts have recognized that such post-protected activity nit-picking can be evidence of retaliation.įor instance, in Cantrell v.
One way that many employees seek to demonstrate retaliation is by showing that the employer heightened the scrutiny of their behavior after they lodged a complaint. Federal law (as well as many states’ law) forbids an employer from retaliating against an employee who engages in protected activity, such as complaining of unlawful discrimination.
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