A California appeals court has sided with the University of California at Berkeley and its athletic department, finding that a director did not suffer an “actionable adverse employment decision” when he was transferred and passed over for promotions.
Plaintiff Michael Sawyers is an African-American male, whose employment with the defendant university began in 1981. He began his career as the school’s Director of Intramural Sports before being promoted to Associate Director of Recreational Sports and later to Director of Recreational Sports.
In 1996, the University reorganized its athletic department, resulting in Sawyers being reassigned from Director of Recreational Sports to Assistant Athletic Director.
The next day, Sawyers filed a grievance with respondent, addressed to Vice Chancellor Horace Mitchell, claiming racial discrimination. Sawyers alleged that he was singled out for reassignment and complained that personnel actions taken by the Regents adversely affected him as well as other African-American, Latino and Asian-American employees. His accusations were levied specifically at then-Athletic Director John Kasser and Sawyers’ supervisor, Bill Manning. Among other allegations, he claimed that Manning made several comments about their strained relationship, such as “Life will be uncomfortable for you from now on,” “it is time for you to leave,” and “[you are] spending too much time dealing with the Black community.”
The University investigated Sawyers’ grievance and on November 17, 1997, Nina Robinson, Manager of Policy, Planning and Analysis, reported on the investigation. She concluded that the reorganization resulted in Sawyers having a considerably narrower position than before, because he and his supervisor, Manning, did not get along.
About four years later in July 2001, Steven Gladstone, the men’s rowing coach, was appointed Athletic Director. That same month, Sawyers applied for the position of Executive Associate Athletic Director (EAAD). The court noted that Sawyers was informed in August by a human resources employee that the interviews would take place in September and that he should take his scheduled vacation. He later learned that the position had been filled in his absence. The defendant claimed this was due to a miscommunication.
The court went on to identify a series of events, which led to the legal standoff. Among them:
On August or September of 2001, a group of student athletes met with Gladstone and complained that Sawyers was not doing his job, did not seem to care about them, showed little support for them at away track meets, and made female athletes uncomfortable with his close physical presence. Gladstone did not talk to Sawyers about these complaints.
Around October 2001, Coonan took away Sawyers’ responsibilities for the Golden Bear Classic and other Cal men’s basketball tournament events to another AAD. Coonan explained to Sawyers that Cal’s head basketball coach, Ben Braun, had expressed dissatisfaction in how the tournament was being managed.
In November 2001, Coonan replaced Sawyers as the community relations representative in the Athletic Department.
On September 3, 2002, Sawyers wrote a letter to Chancellor Berdahl regarding “Racial discriminatory practices in the workplace; Discriminatory hiring practices and salary determinations; Intent to file legal suit against the University of California, Berkeley and its Intercollegiate Athletic and Recreational Sports Department.”
A few days after submitting his discrimination complaint, Sawyers took a medical leave beginning September 9, 2002. He has not worked at the University since. At no time was Sawyers’ salary docked; nor was he ever suspended or demoted.
By letter dated April 2, 2003, Associate Chancellor Cummins wrote to Sawyers in response to his September 2002 discrimination complaint. Cummins advised: “The investigation team did not find sufficient evidence to support findings of illegal discrimination based on the specific allegations you presented in your letter. However, the investigation, including interviews with you, revealed issues in the area of workplace climate, personnel management, and retaliatory issues that need to be addressed with urgent attention.” Attached to Cummins’ April 2003 letter was an investigation report dated March 27, 2003, addressing each of the allegations contained in Sawyers’ September 2002 complaint.
The report made several conclusions and recommendations, including the following: “With regard to the status of the complainant [Sawyers], we recommend that he be given the option of returning to an equivalent position in another department on campus at the end of his voluntary medical leave.”
Instead of returning to the Athletic Department, Sawyers filed a complaint with the California Department of Fair Employment and Housing (DFEH) on July 7, 2003. He alleged that he had been retaliated against by AD Gladstone and EAAD Coonan for complaining about discrimination based on his race. The DFEH issued a right to sue letter on July 7, 2003.
After Sawyers sued, the regents moved for summary judgment. The court granted the defendant’s motion, finding “that Sawyers’ 1996 racial discrimination grievance was far too remote in time from the alleged adverse employment actions in August 2001 and thereafter to suggest any causal link indicative of retaliation. Even if Sawyers could produce admissible evidence that students’ sexual harassment complaints against him in 2002 were in retaliation for his 1996 grievance, the court ruled, an employer’s release of confidential information to non-decision makers, to be used by those non-decision makers for retaliatory purposes, could not support a FEHA retaliation claim. Furthermore, the court concluded that the students’ sexual harassment complaints did not lead to any adverse employment action.
“As to Sawyers’ 2002 discrimination complaint, the court observed that any employment actions occurring before the complaint could not have been caused by it. The only adverse employment actions allegedly occurring thereafter were the students’ September 2002 letters and the 2003 offer to transfer Sawyer to a new position outside the Athletic Department. As for the students’ letters, the court found no competent evidence that administrators encouraged the students to lodge complaints in retaliation for Sawyers’ protected activity; at most, the evidence suggested that administrators negligently allowed confidential information to be used by students, which would not support a retaliation claim, and the students’ complaints did not lead to an adverse employment action. As for the offer to transfer Sawyers to a new position outside the Athletic Department, the court ruled, the undisputed evidence demonstrated there was no adverse employment action.”
Sawyers appealed, asserting three adverse employment actions: “(1) reducing his job responsibilities in October 2001, November 2001, and July 2002; (2) instigating students to make false claims of sexual harassment and other misconduct in September 2002; and (3) refusing to allow him to return to the Athletic Department in June 2003, based in part on the students’ claims of sexual harassment.” Sawyers also argued that all three employment actions should be considered as a collective whole. The court addressed each in turn and concluded that Sawyers “has failed to demonstrate a triable issue of material fact and, for multiple reasons, the claimed adverse employment actions cannot form the basis of a FEHA retaliation claim as a matter of law.”
Specifically, the court disagreed with Sawyers’ first contention, “both on the ground that the changes to Sawyers’ job responsibilities do not constitute adverse employment actions, and on the ground that there was no showing of a causal nexus between them and Sawyers’ protected acts, the October 2001, November 2001, and July 2002 events cannot on their own support a claim for retaliation under FEHA.”
The court also sided with the defendant on the second issue, noting that the University’s “investigation (of the student complaints) did not result in any adverse findings, but instead exonerated Sawyers of the harassment charges. No disciplinary action was taken against Sawyers, and he failed to present competent evidence of any change in the terms of his employment or prospects for job advancement.”
On the third assertion, the court found that “there was no adverse employment action in offering Sawyers a transfer to an ‘equivalent’ position outside of the Athletic Department. This alternative position offered the same compensation, benefits and job classification that Sawyers had when he complained of discrimination in September 2002.”
Turning to the plaintiff’s collective actions assertion, the court wrote that “where a plaintiff alleges that an employer engaged in a retaliatory course of conduct, each employment decision need not constitute an adverse employment action, because all of the decisions are treated as a collective whole. (Yanowitz, supra, 36 Cal.4th at pp. 1055-1056.) Sawyers contends that the October 2001, November 2001, and July 2002 reduction in his job responsibilities should be considered as part of a [*49] course of conduct that would also include the alleged instigation of student sexual harassment complaints in September 2002 and respondent’s employment decisions in June 2003. This theory, however, does Sawyers no good. Whether the respondent’s actions are viewed individually or in the aggregate, Sawyers has provided no evidence of any substantial and detrimental employment consequence sufficient to constitute an actionable adverse employment decision.”
Michael Sawyers v. The Regents Of The University Of California; Ct.App. Cal. 1st Dist. D.5; A115221; 2007 Cal. App. Unpub. LEXIS 7078; 8/30/07
