Gay Employee’s Failure-to-Promote and Termination Claims Dismissed

By Maria Greco Danaher June 28, 2022

Takeaway: While the employer ultimately prevailed in this matter, this is an example of how insensitive comments can light the fuse for litigation that wended its way through one administrative agency and two levels of federal court, creating expenses in time, money and business disruptions.

Telling an individual to "act a little more masculine" or to remove a Facebook status indicating a sexual orientation is unlikely to relate to any legitimate business reason. Even if the remarks do not lead directly to a material adverse employment action, the statements themselves can be understood as disrespectful. Employers should recognize the need for inclusive leadership training and for supporting the use of thoughtful communication techniques by supervisors in order to avoid becoming involved in a lawsuit, whether those claims ultimately are successful or not.

​Conclusory allegations of gender discrimination are not sufficient to allow a plaintiff to survive summary judgment, according to the 6th U.S. Circuit Court of Appeals.

In order to overcome a motion for summary judgment in a gender discrimination lawsuit brought under Title VII of the Civil Rights Act of 1964, a plaintiff must present evidence sufficient for a rational jury to find that the plaintiff suffered an adverse employment action because of prohibited discrimination. In other words, the presence of prohibited discrimination without evidence of a material adverse employment action based upon that discrimination is insufficient to overcome dismissal of the case.

Facts of the Case 

In 2018, the plaintiff, an openly gay man, was hired as a restaurant server in eastern Michigan.

Within months, the plaintiff's supervisor spoke to him about taking a leadership position. The plaintiff alleges that the supervisor asked him to style his hair differently, remove his body piercings, "kind of act a little more masculine" and remove his Facebook relationship status, which indicated he was dating a man.

The plaintiff changed his hairstyle from spiky to a comb-over. He deleted his Facebook status but did not remove posts from his Instagram page that included photos of himself, his two children and his male partner, often using the hashtags "#gayselfie" and "#gaywithkids."

The plaintiff reported the supervisor's alleged comments to a company owner, who said that he would "make things right" with the plaintiff.

Then the plaintiff was promoted to an hourly manager position and subsequently promoted twice more in the following months.

He reposted his Facebook relationship status.

In spite of the initial issues, the plaintiff and his supervisor had a good working relationship. When the plaintiff received an offer from another restaurant, his supervisor persuaded him to remain at their restaurant.

However, in 2019, after his promotions, the plaintiff began to have performance issues, including communication problems with customers and others, and began deviating from his assigned job duties without permission. When the plaintiff missed a mandatory meeting without notifying management, he was fired.

The plaintiff then filed an administrative complaint with the Equal Employment Opportunity Commission (EEOC), alleging that his supervisor told him to hide his sexual orientation and that he was treated differently after that request.

After obtaining a right-to-sue letter from the EEOC, the plaintiff filed a lawsuit against the company, his supervisor and the company owner to whom he initially complained. The plaintiff alleged that his employer discriminated against him by delaying or denying promotion and then fired him in retaliation for complaining about it.

Procedural History

The company filed a motion for summary judgment, asserting that the plaintiff could not show evidence sufficient for a rational jury to find that he suffered an adverse employment action because of prohibited discrimination. The lower court agreed, and the plaintiff appealed the decision.

On appeal, the 6th Circuit upheld the lower court's ruling and dismissed both the discrimination claim and the retaliation claim.

How the 6th Circuit Reached Its Decision

The 6th Circuit first pointed to the fact that the employer, the supervisor and the owner did nothing to delay or deny a promotion for the plaintiff. It pointed to the evidence indicating that shortly after talking to his supervisor about a leadership position, the plaintiff was promoted not just once but three times. Based on that, the court held that the plaintiff's subjective belief that discrimination occurred was insufficient to defeat summary judgment. The court also pointed to the plaintiff's eventual open and obvious noncompliance with the supervisor's demands about his social media posts, which did nothing to delay or deny additional promotions.

Further, the court specifically held that even had the plaintiff produced direct evidence of discrimination, he "still needed to come forward with evidence that he suffered a material adverse employment action because of the unlawful discrimination." Because he did not do so, the plaintiff's allegations alone were insufficient.

The plaintiff's retaliation claim did not survive summary judgment because although he claimed that his performance was scrutinized, he provided little testimony or evidence of how his work conditions changed other than to point to how his supervisor reviewed his performance failures with him.

Ultimately, the court found that even if the plaintiff had shown some retaliatory reason for his termination, he could not show that the company's reasons for firing him were simply a pretext for sexual discrimination. The performance issues were fully documented.

Based on the entirety of the evidence, the court found that the plaintiff was unable to present sufficient evidence for a rational jury to find that he suffered any adverse action because of unlawful discrimination or that his termination was retaliatory.

Boshaw v. Midland Brewing Co., 6th Cir., No. 21-1365 (April 26, 2022), petition for en banc rehearing denied (May 31, 2022).

Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.



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