Fuhr v. Hazel Park School District, No. 2:08-cv-11652 (6th Cir. 2013), is the most recent decision from the Sixth Circuit Court of Appeals to address gender-based employment discrimination and retaliation. While this “to-be-published” decision did not break new ground on the topic, it did reaffirm several points of law.

The factual background of this case is relatively simple. In 1999, Geraldine Fuhr, who was the girls basketball coach at Hazel Park High School in Hazel Park, Michigan, filed a successful lawsuit alleging gender discrimination resulting from a failure to hire her as the boys basketball coach. The outcome of that suit was that Ms. Fuhr was instated as the boys basketball coach and served as both the boys and the girls basketball coach from 2001 until 2006. In 2006, Ms. Fuhr was removed from her position as the girls basketball coach and began to be subjected to a number of allegedly retaliatory acts which resulted in her filing a charge of discrimination with the Michigan Department of Civil Rights in early 2007. The second lawsuit, which is the subject of the Sixth Circuit’s opinion, was filed in 2008 alleging both gender discrimination and retaliation. The District Court granted summary judgment in 2011 on all claims. Ms. Fuhr appealed the District Court’s order as to the claim of retaliation only.  In upholding the District Court’s grant of summary judgment, the Court reaffirmed and clarified several points of law.

The Fuhr Court tells us that the bar for a “direct evidence” theory of discrimination/retaliation is high. So high, in fact, that Ms. Fuhr was unable to meet it despite presenting a statement from her supervisor that ““this is a good old boys network. They are doing this to you to get even … because you stood up for your rights … for winning the lawsuit.” Fuhr, slip op. at 4. The Court reaffirmed earlier precedent on this point holding that there must be no room for inference. Fuhr, slip op. at 8.

The Court also made it clear that a multiple year gap between a protected activity and an alleged retaliatory act is too much for a causal connection between the two to exist. In this case, the protected activity, winning the earlier lawsuit, and the retaliatory act, losing the job as girls basketball coach, were separated by nearly two years. The Court recognized that “temporal proximity alone cannot establish a causal connection,” but the “lack of temporal proximity alone can be fatal to an attempt to establish a causal connection.”  Fuhr, slip op. at 11.

And, finally, the Court clarified that when a plaintiff does not argue that they were subject to both (1) severe and pervasive harassment and (2) an adverse employment action, there is no duty incumbent upon the court to analyze both theories sua sponte. Here, Ms. Fuhr argued that the District Court erred in awarding summary judgment because it only analyzed whether she was subject to severe and pervasive harassment. The Court found this to be the proper analysis because Ms. Fuhr never argued that she had been subject to an adverse employment action. Instead, Ms. Fuhr limited her argument at the District Court to her allegation that she was subject to severe and pervasive harassment.

 Martha L. Alexander

Martha is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates her practice in the areas of employment law, education law and governmental law. She regularly works with employers, public entities and K-12 and higher education institutions defending them against claims of EEOC, sex, race and age discrimination, wrongful termination and Civil Rights violations.