NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0108n.06
No. 16-2142
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

SUSAN MUMM, Plaintiff-Appellant,

v. CHARTER TOWNSHIP OF SUPERIOR, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: NORRIS, GIBBONS, and SUTTON, Circuit Judges. SUTTON, Circuit Judge. Afte r an unrelated dispute over a one-day suspension, Susan Mumm told her bosses at the Townsh ip of Superior that she was ti red of being paid less than a male coworker and threatened to sue if she didn’t get a raise. This ultimatum was the “last straw” for Mumm’s supervisors, who immediat ely suspended her and began the process of terminating her. The district court granted summar y judgment to the Township on Mumm’s retaliation claim because she did no t clearly allege that the pay discrepancy resulted from sex discrimination and could not show that the To wnship’s non-retaliatory reasons for firing her were pretexts. Because a reasonable jury could disagree on both counts, we reverse and remand for trial. Mumm worked for the Township in several capacities: as an accountant, a human resources administrator, and an information technology administrator. On February 14, 2014, she received a verbal and written reprimand and was suspended for one day without pay forCase No. 16-2142 Mumm v. Charter Township of Superior

2 making too many deposits into Township employ ees’ health savings acc ounts during a single calendar year and for neglecting her IT responsibilities. Mu mm filed a complaint with the Township disagreeing with the discipline and explaining that her mistake resulted from “inexperience” with health savings accounts a nd the “huge amount” of additional duties she had taken on. R. 23-3 at 15. On February 19, three Township officials—Supervisor Ken Schwartz, Clerk David Phillips, and Treasurer Brenda McKinney—met with Mu mm to discuss her complaint. They agreed to transfer Mumm’s health savings account duties and one of her IT responsibilities to other employees, without d ecreasing her pay. Schwartz proposed that Mumm withdraw her complaint and that they “m ove on from this.” R. 26-2 at 32. Mumm requested another meeting with Schwar tz, Phillips, and McKinney for February 21 to discuss Schwartz’s request that she wit hdraw her complaint. At that meeting, Mumm complained about a pattern of mistreatment and informed the officials that she would withdraw the complaint only if the Township granted her an immediate pay increase of $10,000 because she was “tired of being underpaid for all these years in relation to Ke ith Lockie.” R. 23-6 at 31. Lockie was a Township employee who, like Mumm, worked as an account ant in addition to other duties. When the Township officials di d not acquiesce, Mumm proposed, as an alternative resolution, that she resign with one year’s severa nce pay. Mumm then informed the officials that she had consulted with a labor attorney and that she intended to file a lawsuit “about this.” Id. at 33. Schwartz says that Mumm was “belligeren[t] ” and used an “extreme tone of voice” during the meeting, threatening that her lawsuit would “shred” their reputations, but Mumm claims she spoke calmly and that McKinney screamed at her without provocat ion. R. 23-3 at 5, 13, 18; R.
23-6 at 33.Case No. 16-2142 Mumm v. Charter Township of Superior

3 After the meeting, Schwartz, Phillips, and Mc Kinney met privately and agreed they could no longer work with Mumm or trust her. Schwartz told the others he wanted to fire Mumm. That same day, the Township suspended Mumm w ith pay and began the process of terminating her employment. The Board of Tr ustees fired Mumm on April 3, 2014. Mumm filed a civil rights complaint alleging vi olations of the Equal Pay Act, 29 U.S.C. § 206(d), Title VII of the Civil Rights Act, 42 U. S.C. § 2000e, and the Elliot Larsen Civil Rights Act, Mich. Comp. Laws § 37.2701. Mu mm claimed that the Township paid her less than Lockie for substantially similar work because of her se x and retaliated when she complained about the alleged sex discrimination by firing her. Th e parties filed competing motions for summary judgment, and the district court granted summa ry judgment in favor of the Township. On appeal, Mumm challenges only the di strict court’s denial of her fe deral and Michigan retaliation claims. Title VII . Employers may not retaliate against employees who “ha[ve] opposed any . . . unlawful employment practice.” 42 U.S.C. § 2000e-3(a ). Where there is no direct evidence of a retaliatory motive, as is the case here, we appl y a three-step burden-shifting analysis. If the plaintiff makes out a threshold cas e, the burden of produc tion shifts to the em ployer to articulate a legitimate, non-retaliatory reason for its actions. If the employer carries its burden, the plaintiff must then prove that the reasons offered by the employer were a pretext for retaliation. See Imwalle v. Reliance Med. Prods., Inc. , 515 F.3d 531, 544 (6th Cir. 2008). To establish a threshold claim of retaliation, th e plaintiff must show: “(1) [she] engaged in activity protected by Title VII; (2) the exercise of [her] civil rights was known to the defendant; (3) thereafter, the defe ndant took an employment action adverse to the plaintiff; and (4) there was a causal connection between the pr otected activity and the adverse employmentCase No. 16-2142 Mumm v. Charter Township of Superior

4 action.” Allen v. Mich. Dep’t of Corr ., 165 F.3d 405, 412 (6th Cir. 1999). The Township disputes whether Mumm’s threat to sue qualified as protected activity and whether Mumm can show pretext. A plaintiff’s objection to an em ployment practice is protecte d activity if her supervisors “should have reasonably understood that [she] was making a compla int of sex discrimination.” Braun v. Ultimate Jetcharters, LLC , 828 F.3d 501, 512 (6th Cir. 2016). That means a complaint must allege unlawful discrimination rather than general unfairness. And while a complaint need not be “lodged with absolute fo rmality, clarity, or precision,” Yazdian v. ConMed Endoscopic Techs., Inc. , 793 F.3d 634, 645 (6th Cir. 2015), “a vague charge of discrimination . . . is insufficient to constitute opposition to an unlawful employment practice,” Booker v. Brown & Williamson Tobacco Co., Inc ., 879 F.2d 1304, 1312–13 (6th Cir. 1989). A jury could find that Mumm’s threat to sue over the pay disparity was clear enough to qualify as protected activity. Mumm claims she told the Township officials that she “should have been paid as much as Keith Lockie” and w ould sue if the Township did not rectify “the pay discrimination between Keith and [me].” R. 23 -6 at 31–33. Mumm admits that she did not use the phrase “sex discrimination” or otherwise ma ke explicit that she believed gender explained the pay disparity. But the officials knew that Lockie was male and, like Mumm, occupied asimilar accounting position for the Township. And they knew that Mumm was an at-will, nonunionized employee, which meant that sex discrimi nation was the only viable basis for a lawsuit relating to the pay disparity between her and Lockie. Construing all facts and making all reasonable inferences in Mumm’s favor, a jury could find that the officials should have known Mumm was charging the Township with sex discrimination.Case No. 16-2142 Mumm v. Charter Township of Superior

5 Our decision in Yazdian supports this position. We reversed a grant of summary judgment to an employer when a plaintiff verba lly accused a supervisor of creating a “hostile work environment” and threatened to bring a la wsuit, even though the pl aintiff did not mention any specific form of discrimination during th e conversation and had made only one off-hand reference to ethnic discrimina tion in the past. 793 F.3d at 641–43, 646. Mumm’s complaint was more precise than ot hers found too vague in the past. In Fox v. Eagle Distributing Co. , the plaintiff threatened to sue, but he alleged only that management was “out to get him” and unfairly denied him a promotion. 510 F.3d 587, 592 (6th Cir. 2007). He did not mention the age discrimination claim he ultimately brought and did not point to a younger employee who received better treatment. In Booker , the plaintiff never threatened to sue and told management only that complaints a bout his work performance were examples of “ethnocism [sic],” with no further explanation. 879 F.2d at 1313. The c ourt noted that Booker “was not contesting any unlawful employment pr actice; he was contesting the correctness of a decision made by his employer.” Id. Here, Mumm pointed to a spec ific practice she believed to be unlawful (the pay disparity between her and Lock ie) and threatened to sue if the Township did not correct it. It makes no difference that Mumm did not utter the magic words “sex discrimination.” A jury could find that the ba sis for the threatened la wsuit should have been clear to the Township officials and thus that Mumm’s complaint was protected activity. Mumm has also created a triable issue of fact over whether the Township’s proffered reason for firing her—that the officials “lost trus t” in her after the meeting, which was the “last straw” in a series of inappr opriate actions—was a pretext fo r retaliation. A plaintiff can demonstrate pretext by showing that the employe r’s stated reason for terminating the employeeCase No. 16-2142 Mumm v. Charter Township of Superior

6 (1) has no basis in fact, (2) was not the actual reason for termina tion, or (3) was insufficient to explain the employer’s action. Imwalle , 515 F.3d at 531. Mumm has put forward enough evidence for a jury to conclude that her conduct prior to the final meeting could not jus tify a firing. The Township empha sizes Schwartz’s testimony that he wanted to fire Mumm the day he learned about the health saving s account mishap, but Schwartz admits that Phillips and McKinney “talke d [him] down” from that position. R. 26-3 at 9. Phillips and McKinney personally assured Mumm she would not be fired over the health savings account problem and Schwartz told Mumm tw o days before the final meeting that they could “move on” if she withdrew her complaint about th e suspension. R. 23-32 at 4; R. 26-2 at
32. A reasonable jury could also doubt that the Township fired Mumm because of her allegedly inappropriate behavior at the final meeting. The Township describes Mumm’s conduct during the meeting as “shocking,” noting Sc hwartz’s testimony that Mumm acted “belligeren[tly].” Appellee’s Br. 58. But Mumm disputes this characterization and claims she stated her requests in a calm voice, even after McKinney screamed at her. All told, the record at this stage of the case does not show that Mumm behaved inappropriately at the meeting. A jury could agree with Mumm that the true reason for her termination was her threat to sue the Townsh ip, not the manner in which she delivered it. Michigan Law. Our Title VII analysis applies equa lly to Mumm’s re taliation claim under Michigan civil rights law. Michigan courts use the federal Title VII framework to assess retaliation claims. See Garg v. Macomb Cty. Cmty. Mental Health Servs. , 696 N.W.2d 646, 653 (Mich. 2005); Hazle v. Ford Motor Co. , 628 N.W.2d 515, 520–21 (Mich. 2001). For these reasons, we reve rse and remand for trial.