The United States District Court for the District of Maryland held that employees do not engage in protected activity by refusing to comment about the work of a co-worker and/or that a conversation transpired between a supervisor and employees. Kearns v. Northrop Grumman Systems Corp., No. ELH-11-1736 (D. Md., May 23, 2014).
Michael Kearns alleged that his former employer, Northrup Grumman Systems Corporation, violated Title VII and the ADEA by subjecting him to adverse employment actions and a hostile work environment in retaliation for his opposition to workplace discrimination against a co-worker, and for filing an EEOC charge. Kearns, who was 66 years old during all relevant times, also alleged violation of the ADEA when his supervisor and another employee inquired about his retirement plans.
Kearns’ claims stemmed primarily from two events in 2010. First was Kearns’ refusal to join his supervisor in alleged unlawful gender discrimination and retaliation against a fellow female co-worker via email. He claimed that his email response that, “[I] cannot speak for Jeanette and do not feel comfortable commenting about her role on things” constituted protected activity under Title VII. The next event consisted of Kearns filing an EEOC charge alleging that the same supervisor had retaliated against him because of the e-mail incident and age discrimination stemming from his supervisor’s and co-workers’ inquiry about his retirement plans.
The court’s analysis focused mainly on the retaliation claim. Retaliation requires: (1) employee engagement in a “protected activity”; (2) “adverse employment action”; and (3) a causal link between the two. A “protected activity” is action taken by an employee opposing an employment practice on the grounds that it violates Title VII. Generally, filing an EEOC charge constitutes a protected activity, but the action is only protected if it responds to an employment practice that the employee reasonably believed to be unlawful under Title VII. The watermark for “adverse employment action” is a showing of an act that is “materially adverse” or that significantly changes employment status such as hiring or firing.
Kearns could not satisfy the first two elements of retaliation. First, it was unreasonable for him to believe that either the email or his EEOC charge constituted a “protected activity.” His refusal, via e-mail, to join in the workplace discrimination and retaliation against a co-worker was in response to an e-mail from a supervisor, which did not qualify as an act that violates Title VII. The supervisor’s e-mail was “innocuous” and merely “request[ed] confirmation that a conversation had taken place.”
Similarly, the EEOC charge did not amount to protected action because it also failed to respond to an employment practice that Kearns reasonably believed violated Title VII. The court considered the charge “entirely frivolous.”
Kearns also failed to prove “adverse employment action.” His supervisor’s criticism of his work, threats of probation or changing his shift, expressed displeasure with his work, and regular reprimands were actions that do not qualify as “adverse employment action.” The only other actions of which Kearns complained were remedied and, therefore, caused no harm.
The court finally touched on the other claims. First, the hostile work environment claim failed because it required “protected conduct,” which did not exist. Kearns’ ADEA claim failed because he provided no evidence that the alleged harassment stemmed solely from his age.