​A transgender woman could not establish employer liability for a co-worker’s threatening statements and conduct that the employer investigated but could not immediately stop, or for retaliation, the 6th U.S. Circuit Court of Appeals ruled.The plaintiff lived and presented as a man when starting to work for the city of Detroit in January 2016. About five months after starting the job, the plaintiff decided to undergo surgery to transition to a woman and asked for time off. The city supported the transition and the need for time off.The plaintiff returned to work after the first of a series of medical procedures. The plaintiff’s supervisor revealed that someone filed a complaint alleging that the plaintiff had violated the dress code, but the supervisor stated that the plaintiff’s attire was appropriate. In July, the supervisor again told the plaintiff that another dress-code complaint was filed.The plaintiff took medical leave at the end of October 2016 for an additional surgery and returned in December. On Dec. 14, the plaintiff’s office nameplate was defaced with the word “Mr.” scrawled on it. The plaintiff complained and, in response, the plaintiff’s supervisor and an administrative assistant removed, cleaned and replaced the nameplate. The plaintiff also complained of harassment to several HR professionals but allegedly received no response.Two days later, someone delivered to the plaintiff’s desk a gift bag that contained a phallic sex toy and a handwritten note quoting a Bible verse against cross-dressing. The note also said, “We don’t wont (sic) people like you working here.” The plaintiff reported the gift bag and note and asked the city to install a lock on the office door and a camera to help identify the harasser.That same day, the city asked employees to provide a handwriting sample and told employees the city had a zero-tolerance harassment policy that could result in termination. An HR professional examined the handwriting samples but was unable to conclude whether any matched the note. The city interviewed employees but no one admitted to involvement.At the end of February, the city sent the plaintiff its report concluding it could not identify who had defaced the nameplate and left the gift bag. The report recommended that a lock and camera be installed but neither were installed despite the plaintiff’s requests.On May 8, 2017, the plaintiff received a typed note quoting a Bible verse commanding execution of homosexuals and reported it as a death threat. The plaintiff learned that a nearby co-worker in accounting made the earlier dress-code complaints. The plaintiff suspected that the co-worker might be the harasser but did not tell HR or the city.The plaintiff asked to stay home, but the request was denied. Less than two weeks later, a threatening typed note was placed on the plaintiff’s office door. The plaintiff again complained to HR and to federal and state equal employment opportunity agencies and told HR that the co-worker in accounting was likely to blame. The city did not interview the co-worker, and the plaintiff was moved to a new office so that locks and cameras could be installed in the plaintiff’s office.Later that year, an HR professional discovered that the co-worker had previously viewed the plaintiff’s Facebook page in the office and made disparaging comments. The city suspended the co-worker for three days and moved him away from the plaintiff. The harassment finally stopped.During the course of the harassment, the plaintiff’s supervisor complained of the plaintiff’s attendance and would not allow the plaintiff to have the office door closed during work hours. The plaintiff complained to HR, and the complaint was shared with the supervisor. The supervisor left the city’s employment five months later, and the plaintiff applied for the position. The city selected someone else for the position. The plaintiff claimed this new supervisor gave poor reviews and engaged in other acts of retaliation.The plaintiff filed a federal lawsuit against the city, claiming sexual harassment and retaliation. The city moved for summary judgment, which the district court granted. On appeal, the 6th Circuit determined that the city had fulfilled its duty to investigate the acts of harassment, even though it did not find the perpetrator. It further found that the plaintiff could not establish retaliation by the city because the decision not to promote her occurred months after the complaints were made and the plaintiff presented no other evidence of causation.Doe v. City of Detroit, 6th Cir., No. 20-2029 (June 10, 2021), petition for en banc rehearing denied (July 28, 2021).Professional Pointer: While the law governing harassment generally requires employers to make good-faith efforts to end harassment, it will not penalize an employer when it does not discover the identity of an unknown harasser.Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

​In a case alleging age bias, a statement by a university employee that the university was looking for someone younger for a different position was relevant and should have stopped the trial court from dismissing the claim before trial, a California appeals court ruled.The trial court found the comment irrelevant because it was made by someone who was not directly involved in the promotion decision at issue, in relation to a different job at the university. However, the California Supreme Court has said that an age-based remark may be relevant, circumstantial evidence of discrimination even if it is not made directly in the context of an employment decision or said by a decision-maker (Reid v. Google Inc., 50 Cal.4th 512, 2010). Based on Reid, the appeals court sent the employee’s claim back to the lower court for further proceedings.  BackgroundThe plaintiff had worked at the university since 1994. She alleged that in 2014, the dean discriminated on the basis of age when he promoted a younger employee with less experience instead of the plaintiff to an assistant dean position. She sued in 2018 and resigned in 2019.The university claimed that the plaintiff was a problem employee and that the person who received the promotion was effective and hard-working. To support her bias claim, the plaintiff presented a declaration from a former school employee who said that when someone else asked about a different open position, an employee who had influence over the dean wanted someone younger to be hired for that other open position.The university claimed this evidence was irrelevant and should not factor into the court’s decision as to whether the case could proceed to trial because it involved a different position and a different decision-maker. The trial court agreed, refused to admit the evidence and granted the university’s motion to dismiss the case before trial.The plaintiff appealed. The appellate court cited the Reid decision and reversed the ruling. In Reid, the state high court noted that the value of a stray comment depends on the precise character of the remark. The relevance increases when the declarant might influence the decision.  Under Reid, the appellate court said, the remark made here was relevant because one could infer that the speaker could influence the dean (the school’s top decision-maker) on all issues, including hiring and promotion.Evidence showed that the dean placed a great deal of trust in the opinion of the person who allegedly made the comment about hiring someone younger, and she definitely had the potential to affect the dean’s decisions.Therefore, the appeals court said, the trial court erroneously excluded evidence.However, this alone does not mean the trial court acted improperly in dismissing the case before trial, the court added. A stray remark alone may not create a triable issue. Rather, the court said, the usual three-part burden-shifting test still applies.First, the plaintiff must raise a presumption of discrimination. Second, the employer may rebut the presumption by showing it acted for legitimate and nondiscriminatory reasons. Finally, the plaintiff may attack the employer’s stated reasons or may offer other evidence of improper motives.The trial court ruled that the university offered legitimate reasons for its actions and the plaintiff failed to show pretext.However, the appeals court said, the remark that the trial court refused to admit into evidence changed the pretext analysis. The remark was not ambiguous and the evidence that the dean had high regard for the advice of the speaker of the remark was clear, the court said. This strengthened the plaintiff’s evidence that the university’s asserted reasons for failing to promote her were not its true reasons.Jorgensen v. Loyola Marymount University, Calif. Ct. App., No. B305594 (Sept. 10, 2021).Professional Pointer: This decision illustrates the dangers of making any comments related to an employee’s age or other protected characteristic, even comments made by non-decision-makers.Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.