                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0882n.06

                                            No. 11-3002

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                          FILED
                                                                                     Aug 10, 2012
SHERYL L. SZEINBACH,                                   )
                                                       )                       LEONARD GREEN, Clerk
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR THE
OHIO STATE UNIVERSITY,                                 )   SOUTHERN DISTRICT OF OHIO
                                                       )
       Defendant-Appellee.                             )


BEFORE: WHITE, STRANCH, and FARRIS*, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Sheryl Szeinbach appeals from the order granting

summary judgment, dismissing her Title VII retaliation and retaliation-by-association claims against

her employer, Defendant Ohio State University (OSU).1 The magistrate judge2 granted summary

judgment on the sole ground that Szeinbach failed to establish a prima facie case, specifically an

adverse employment action. We affirm in part and reverse and remand in part.

                                                   I




       *
       The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
       1
        Szeinbach does not challenge the magistrate judge’s determination that her arguments in
response to OSU’s summary-judgment motion were limited to her retaliation claims. R. 182 at 15
n.6. Szeinbach thus appears to have abandoned her sex-discrimination claim.
       2
           The parties consented to disposition of this case by a magistrate judge. PID# 227.
No. 11-3002
Szeinbach v. Ohio State University

       OSU hired Dr. Szeinbach in 1999 as a full professor with tenure in the College of Pharmacy

(COP), and later hired Dr. Enrique Seoane-Vasquez (Seoane) as an Assistant Professor in the COP

in 2002. Seoane, who is from Spain and of Spanish origin, filed a discrimination suit against OSU

in August 2007, after having filed several internal complaints and a discrimination charge with the

EEOC. Szeinbach filed the instant suit in August 2008, also after filing several internal complaints

of retaliation and several charges with the EEOC. Szeinbach’s second amended complaint alleged

that OSU retaliated against her for supporting Seoane’s discrimination charges against OSU, and for

associating with Seoane, in violation of Title VII.

       Szeinbach alleged that various COP faculty participated in the retaliation, including COP

Professor Dr. Rajesh Balkrishnan and Dr. Milap Nahata, Chair of the COP’s Division of Pharmacy

Practice (PPD), both of whom are of Indian origin. Szeinbach alleged that she and Seoane opposed

OSU’s hiring of Balkrishnan in 2004; that Nahata and Balkrishnan favored faculty and students of

Indian origin and treated faculty of Spanish origin less favorably, and that COP Dean Robert

Brueggemier, Nahata and Balkrishnan retaliated against Szeinbach for supporting Seoane.

       The same magistrate judge (MJ) presided over Seoane and Szeinbach’s cases. During

protracted and acrimonious discovery it became apparent that some emails of OSU faculty whom

Seoane and Szeinbach alleged retaliated against them had been deleted. Both Seoane and Szeinbach

moved for spoliation sanctions, but Seoane dismissed his suit in October 2009, before the MJ ruled.

Szeinbach’s amended motion for spoliation sanctions sought entry of judgment in her favor on

liability, or alternatively, an adverse-inference jury instruction. The MJ denied Szeinbach’s motion,

but left open “the possibility that the jury should be informed of OSU’s failure to timely implement

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Szeinbach v. Ohio State University

a plan to preserve documents relevant to this dispute” and noted that OSU advanced no reasonable

explanation for its failure to issue an effective preservation directive no later than August 2007,

when Seoane filed suit. Subsequently, however, the MJ granted OSU’s motion for summary

judgment, concluding that Szeinbach failed to establish a prima facie case of retaliation because she

failed to demonstrate that she had been subjected to any adverse employment action.

                                                 II

       This court reviews de novo the magistrate judge’s grant of summary judgment. Hawkins v.

Anheuser Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008). The district court must construe the

evidence and draw all reasonable inferences therefrom in the nonmoving party’s favor. The issue

is “whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

       We conclude that summary judgment was proper as to the attempted actions by Balkrishnan

and OSU that were not implemented, and OSU’s alleged attempted termination of Szeinbach’s

employment, but that granting summary judgment on the basis that there were no adverse

employment actions was improper with respect to Szeinbach’s differential-salary-increases claim

and research- misconduct-investigation claim.

                                                 III

       The burden of establishing a prima facie Title VII retaliation case is not onerous. DiCarlo

v. Potter, 358 F.3d 408, 420 (6th Cir. 2004), Miller v. City of Canton, 319 F. App’x 411, 420 (6th

Cir. 2009) (observing that Title VII’s anti-retaliation provision is broader than Title VII’s

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Szeinbach v. Ohio State University

discrimination provision, and that “[a] plaintiff easily makes out a prima facie case of retaliation.”)

A plaintiff must demonstrate that: 1) she engaged in protected activity; 2) the defendant knew of this

exercise of protected rights; 3) the defendant thereafter took adverse employment action against her;

and 4) there was a causal connection between the protected activity and the adverse employment

action. Spengler v. Worthington Cylinders, 615 F.3d 481, 491-92 (6th Cir. 2010). If the plaintiff

establishes a prima facie case, then the burden of production shifts to the defendant to “articulate

some legitimate, nondiscriminatory reason for its action.” Id. at 492 (brackets omitted) (quoting

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the defendant succeeds in doing

so, then the burden shifts back to the plaintiff to demonstrate that the defendant’s “proffered reason

was not the true reason for the employment decision.” Id. (internal quotation marks omitted).

       The sole issue here, whether Szeinbach presented sufficient evidence to raise a genuine issue

of material fact regarding whether she suffered an adverse employment action, is governed by

Burlington Northern & Santa Fe Railway Company v. White, 548 U.S. 53 (2006):

              The antiretaliation provision protects an individual not from all retaliation,
       but from retaliation that produces an injury or harm. . . . [A] plaintiff must show that
       a reasonable employee would have found the challenged action materially adverse,
       which in this context means it well might have dissuaded a reasonable worker from
       making or supporting a charge of discrimination.

               We speak of material adversity because we believe it is important to separate
       significant from trivial harms. Title VII, we have said, does not set forth a general
       civility code for the American workplace. An employee’s decision to report
       discriminatory behavior cannot immunize that employee from those petty slights or
       minor annoyances that often take place at work and that all employees experience.
       The antiretaliation provision seeks to prevent employer interference with unfettered
       access to Title VII’s remedial mechanisms. It does so by prohibiting employer
       actions that are likely to deter victims of discrimination from complaining to the


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           EEOC, the courts, and their employers. And normally petty slights, minor
           annoyances, and simple lack of good manners will not create such deterrence.

                   We refer to reactions of a reasonable employee because we believe that the
           provision’s standard for judging harm must be objective. An objective standard is
           judicially administrable. It avoids the uncertainties and unfair discrepancies that can
           plague a judicial effort to determine a plaintiff’s unusual subjective feelings . . . .

                   We phrase the standard in general terms because the significance of any given
           act of retaliation will often depend upon the particular circumstances. Context
           matters. The real social impact of workplace behavior often depends on a
           constellation of surrounding circumstances, expectations, and relationships which are
           not fully captured by a simple recitation of the words used or the physical acts
           performed. A schedule change in an employee’s work schedule may make little
           difference to many workers, but may matter enormously to a young mother with
           school-age children. A supervisor’s refusal to invite an employee to lunch is
           normally trivial, a nonactionable petty slight. But to retaliate by excluding an
           employee from a weekly training lunch that contributes significantly to the
           employee’s professional advancement might well deter a reasonable employee from
           complaining about discrimination. Hence, a legal standard that speaks in general
           terms rather than specific prohibited acts is preferable, for an act that would be
           immaterial in some situations is material in others.

Burlington Northern, 548 U.S. at 67-69 (internal citations and quotations omitted); see also,

Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868 (2011) (reiterating that Burlington Northern

prohibits any employer action that might have dissuaded a reasonable worker from making or

supporting a charge of discrimination, and observing that “[w]e think it obvious that a reasonable

worker might be dissuaded from engaging in protected activity if she knew that her fiance would be

fired.”)

                                    1 - Differential Salary Increases

           Szeinbach alleged that OSU retaliated against her by awarding her lesser pay increases than

it would have absent her protected activities. The MJ concluded that the lesser pay increases were


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Szeinbach v. Ohio State University

not adverse employment actions because Szeinbach and similarly-situated faculty received pay

increases that differed by de minimis amounts – approximately 1% of her salary.3

        The MJ determined that because Szeinbach’s salary was not decreased, and because

similarly-situated faculty received raises that were greater than Szeinbach’s by de minimis amounts,

she had not established that her lesser merit-pay salary increases amounted to an adverse

employment action.

        In White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008), a Title VII discrimination

case, this court held that the plaintiff employee’s allegedly downgraded performance evaluation

constituted an adverse employment action where the employee testified that he would have received

a higher pay increase had he received a higher performance evaluation. This court observed that the

plaintiff produced enough evidence to create a genuine issue of material fact regarding whether the



        3
        In this regard, the MJ erroneously determined that he was bound to follow Mitchell v.
Vanderbilt Univ., 389 F.3d 177 (6th Cir. 2004), a pre-Burlington Northern case that applied the now-
disclaimed standard for adverse employment actions. This court has published no authority holding
that Mitchell applies to Title VII retaliation claims post-Burlington Northern.

         The MJ also erroneously relied on Freeman v. Potter, 200 F. App’x 439 (6th Cir. 2006), to
support that Mitchell is still good law. Freeman is unpublished and did not involve Title VII
retaliation, but rather age discrimination (ADEA) and Title VII gender discrimination. A Tenth
Circuit case OSU relied on in addition to Freeman to support that Mitchell is still good law, Somoza
v. University of Denver, 513 F.3d 1206, 1215-16 (10th Cir. 2008), is neither binding nor persuasive
– it cited Mitchell to support that “subjective injuries, like a bruised ego, . . . do not rise to the level
of dissuading a reasonable worker from making or supporting a charge of discrimination,” and
remarked in a footnote, without explanation, that “this pre-Burlington Northern precedent appears
to retain its vitality.” Id. at 1216 n.3. The remaining cases OSU relied on are not binding because
they are unpublished or are not Sixth Circuit decisions. R. 182 at 20 n.10. OSU cites no published
Sixth Circuit decisions to support that Mitchell properly applies to Title VII retaliation cases post-
Burlington Northern.

                                                    -6-
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Szeinbach v. Ohio State University

downgraded performance evaluation had an adverse impact on his receipt of wages or salary. Had

the plaintiff received a higher performance evaluation, his salary increase would have been 3% –

whereas with the downgraded performance evaluation he received at most a 2% salary increase.

White, 533 F.3d at 402-03.

       Given that the 1% salary-increase differential in White was held to “constitute[] a significant

change in employment status . . . or a decision causing a significant change in benefits,” the district

court should not have granted summary judgment to OSU on Szeinbach’s salary-differential claim

as to 2007 and 20084 on the grounds that OSU did not take an adverse employment action. On

remand, the district court can consider the other arguments that OSU advanced on summary

judgment on the salary-differential claim, such as the argument that there is no causal connection

between Szeinbach’s smaller raises and any protected activity in which she engaged.

              2 - Research-Misconduct Investigation of Szeinbach’s Publications

       OSU’s research-misconduct investigation of Szeinbach resulted from Balkrishnan submitting

an internal “whistleblower” complaint in 2007 alleging suspected wrongful conduct by Szeinbach

regarding two of her academic publications. The MJ properly observed that Balkrishnan’s

whistleblower complaint “activated an investigative procedure set forth in OSU’s Research

Committee Interim Policy and Procedures Concerning Misconduct in Research or Scholarly

Activities.” But this was no run-of-the-mill internal investigation. Before submitting his internal

whistleblower complaint, Balkrishnan emailed the editor of one of the journals that had published


       4
        Szeinbach conceded that she could recover only for retaliation that occurred after December
15, 2006.

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No. 11-3002
Szeinbach v. Ohio State University

an article of Szeinbach’s, and stated that her 2007 article had reported “exactly identical results just

analysing the data slightly differently” from a 2005 article Szeinbach had co-authored that was

published in a different journal, and that the 2007 article had failed to reference the 2005 article. On

the same day, Balkrishnan emailed Chair Nahata the same allegations, characterizing this email as

seeking Nahata’s advice given Nahata’s experience as an editor of an unrelated journal.

        Balkrishnan also forwarded to Nahata, Dean Brueggemeier, and many other OSU faculty the

email he had sent to the editor. In addition, Balkrishnan forwarded these emails to a group of

professors at other universities, adding an allegation that Szeinbach had presented this research in

2005 and planned to present it again at the upcoming ISPOR meeting.

        Szeinbach testified on deposition that a colleague at the University of Arkansas, Dr. Bradley

Martin, told her at a professional meeting of the International Society for Pharmacoeconomics and

Outcomes Research in 2006 that he was looking for somebody in Szeinbach’s area (psychometrics)

and invited her to visit his campus. Szeinbach testified that Martin ceased having employment

discussions with her after he, Martin, received Balkrishnan’s May 1, 2007 email.

        When coworker retaliation is at issue, an employer will be liable if the coworker’s retaliatory

conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a

charge of discrimination, supervisors or members of management have actual or constructive

knowledge of the coworker’s retaliatory behavior, and supervisors or members of management have

condoned, tolerated, or encouraged the acts of retaliation.” Hawkins v. Anheuser-Busch, Inc., 517

F.3d 321, 347 (6th Cir. 2008)



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       Szeinbach presented sufficient evidence to establish an adverse employment action based on

the conduct of Balkrishnan. Balkrishnan emailed faculty all over the country stating that Szeinbach

committed research misconduct (and planned to further that research misconduct at the 2007 ISPOR

conference) before OSU and the journal that published Szeinbach’s article even investigated her

alleged research misconduct. Szeinbach presented sufficient evidence to raise a genuine issue of

material fact whether the investigation, which spanned almost two years, had a significant negative

impact on her professional advancement, that is, constituted an adverse employment action.

       Having been copied on Balkrishnan’s emails, Nahata and Brueggemeier were aware of

Balkrishnan’s actions. Although OSU maintained that Brueggemeier disciplined Balkrishnan for

this conduct, Balkrishnan denied receiving any such discipline, and OSU produced no documentary

evidence of discipline; Brueggemeier’s performance reviews and merit pay letters are devoid of any

reference to discipline. Viewing the facts in a light most favorable to Szeinbach, a reasonable jury

could conclude that Dean Brueggemeier and Chair Nahata “condoned, tolerated, or encouraged

[Balkrishnan’s] acts of retaliation.” Hawkins, 517 F.3d at 347. The district court therefore should

not have granted OSU summary judgment on Szeinbach’s research-misconduct-investigation claim

on the grounds that there was no adverse employment action. On remand, the district court can

consider the other arguments that OSU advanced on this claim, such as (1) that there is no causal

connection between the research-misconduct investigation and any protected activity in which

Szeinbach engaged, and (2) that the relevant decision-makers during the research-misconduct

investigation had no knowledge of Szeinbach’s protected activity.



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                                       3 - Remaining Claims

        Szeinbach presented insufficient evidence to support that OSU’s reduction of her required

class from four to two hours and suspension of student enrollment in the PPAD graduate program

– structural changes in programs at the COP that were implemented based on recommendations of

a task force – qualify as adverse employment actions under Burlington Northern. The same is true

of her six claims of co-worker retaliation by Associate Professor Balkrishnan, five of which were

mere attempts on his part to interfere with or circumscribe Szeinbach’s teaching and advising of

students and her participation in promotion and tenure decisions, and the sixth, his internal complaint

against her, which resulted in no action against her. Finally, Szeinbach presented no evidence of

injury or harm resulting from OSU’s alleged attempted termination of her employment, thus that

claim fails as well.

                                                  IV

        Regarding spoliation sanctions, Szeinbach will be free to request an adverse-inference jury

instruction on remand, as the MJ’s Order left open “the possibility that the jury should be informed

of OSU’s failure to timely implement a plan to preserve documents relevant to this dispute,” and

noted that OSU advanced no reasonable explanation for its failure to issue an effective preservation

directive no later than August 2007, when Seoane filed suit. R. 80 at 10 n.33.

                                                  V

        For these reasons we affirm the dismissal of Szeinbach’s claims, with the exception of her

differential-salary-increases and research-misconduct investigation claims, which we reverse because

she presented sufficient evidence to raise a genuine issue of fact regarding whether she suffered

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Szeinbach v. Ohio State University

adverse employment actions. On remand, the district court may consider the other grounds that OSU

advanced in support of summary judgment on these claims including the remaining challenges to the

prima facie case and those to the last two steps of the McDonnell Douglas analysis.




                                              -11-
