*

The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0243p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

DONNA RANDOLPH,

Plaintiff-Appellant,

v.

OHIO DEPARTMENT OF YOUTH SERVICES,

Defendant-Appellee.

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No. 04-3468

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 01-01253—George C. Smith, District Judge.

Argued: September 16, 2005

Decided and Filed: July 13, 2006 

Before: CLAY and GIBBONS, Circuit Judges; STEEH, District Judge.*

_________________

COUNSEL

ARGUED: Alexander M. Spater, SPATER LAW OFFICE, Columbus, Ohio, for Appellant. Jack

W. Decker, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF: Alexander M. Spater, SPATER LAW OFFICE, Columbus, Ohio, for Appellant. Jack

W. Decker, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION _________________

JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Donna Randolph filed a

complaint in United States District Court for the Southern District of Ohio against the Ohio

Department of Youth Services, asserting claims of sex discrimination, hostile-work-environment

sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. The district court granted the Ohio Department of Youth Services’s motion for

summary judgment in its entirety. Randolph now appeals.

For the following reasons, we reverse the decision of the district court and remand the case

for further proceedings. 

1
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 2

I.

Randolph’s claims arise out of her employment with the State of Ohio as a food service

worker in the Circleville Youth Center (“CYC”) from April 1995 until December 1996. CYC is an

all-male, maximum-security youth intake facility. Donald Feldkamp, CYC’s superintendent,

initiated a cadre program at CYC in 1995 that was designed to provide job training to inmates who

were nearing their release dates. A few cadre members were assigned to the kitchen, where they

worked directly alongside Randolph and other food service workers. The events giving rise to

Randolph’s lawsuit stem from her interaction with the cadre members in the kitchen. 

Initially, we note that there is much conflicting evidence in the record about Randolph’s

interaction with cadre members. We make no effort to summarize it all but instead focus on the

evidence produced by Randolph in opposing summary judgment because it is the sufficiency of this

evidence that governs our analysis. 

Randolph claimed in her deposition that the cadre members daily listened to music with

lyrics that were degrading to women and used body language that was offensive to the female

workers. Additionally, Randolph and other workers stated in deposition testimony that the cadre

members used offensive language to address the female workers and to describe their bodies and that

they directed the foul language only toward the female workers. Randolph stated in her deposition

that while she believes that she and other female workers complained about these issues, the cadre

members’ behavior did not interfere with her work life because she was a hard worker. Nonetheless,

Randolph claimed in her deposition that CYC failed to adequately address the complaints. In

addition, Sandra Fletcher, another food service worker, stated in her deposition that supervisor Doug

Smith verbally castigated and physically threatened her for complaining about a cadre member.

Randolph also claimed in her deposition that complaints about the cadre members’ behaviors often

exacerbated those behaviors and Fletcher and Joanna Tinney, another food service worker, testified

that the verbal harassment escalated and became far more threatening over time.

According to Randolph’s testimony, the harassment eventually became physical. She

testified that JH, one of the inmates, tried to sexually assault her. JH came upon her as she was

walking toward the staff bathroom and put something that she feared was a knife against her back.

Randolph testified that JH forced her into the bathroom and shut and locked the door. JH ordered

her to pull down her pants, but there was a sudden knock on the door. JH left, telling Randolph not

to come out until she heard another knock at the door. Randolph did not immediately report the

encounter.

Randolph testified that JH sexually assaulted her on a second occasion in May 1996. JH

again forced her into a staff bathroom and shut and locked the door once inside. JH turned her

around, hitting her head against the mirror, and got on top of her. Randolph’s testimony is unclear

as to whether penetration occurred; she stated that she may have “blocked it out.” JH left the

bathroom when he heard a knock on the door and told Randolph not to leave until she heard another

knock. Randolph again failed to immediately report the assault to anyone at CYC. 

Randolph testified in her deposition that subsequent to the alleged sexual assault, the inmates

began taunting and verbally harassing her about the incident. Randolph told two of the inmates to

tell JH that she was going to report both encounters. JH later found Randolph and was infuriated.

Randolph testified that he threw her against a kitchen appliance and lifted her off the floor by the

throat. Tinney observed the altercation and in her deposition corroborated Randolph’s account of

the events. Doug Smith entered the room and witnessed this event, but described it in his deposition

as “horseplaying.” Smith did not talk to either Randolph or JH about the incident, nor did he report

it or investigate it further because he thought that the event was merely horseplay.
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 3

1

Harman was secretary to Ralph Dowling-Fitzpatrick, who was in charge of direct services at CYC and who

reported to Feldkamp.

2

Specifically, Randolph alleges that an inmate told her that she had engaged in sexual intercourse with a

German shepherd and that the same inmate told her that she was “going to get it.” Randolph reported these and other

instances of verbal harassment. 

On June 4, 1996, while Randolph was on vacation, Tinney reported the altercation between

JH and Randolph to supervisor Donna Carpenter but asked Carpenter not to tell anyone else.

Carpenter stated that she discussed this report with Smith. Smith acknowledged witnessing the

event but reported that it appeared to him to be mere horseplay. Carpenter credited Smith’s response

and found Tinney untrustworthy, so she did not pursue the matter further. Tinney also reported the

attack to Mike Logan, who was in charge of indirect services at CYC and who reported directly to

Feldkamp. At that time, Tinney also informed Logan that other food service workers had been

continuously subject to verbal sexual harassment since the “horseplay” incident. According to

Tinney’s testimony, Logan stated that he could not pursue the allegations because Randolph had

failed to file a report. 

On June 8, 1996, Tinney and Rose Harman, Randolph’s sister,1 took Randolph to see Logan

and Jim Greek, another CYC administrator. At this time, Randolph reported the choking incident

but did not report either the alleged sexual assault or the alleged attempted sexual assault because

she felt “dirty and ashamed and disgusting” and did not want others to know about it. Both

Randolph and Tinney gave Logan a written statement of the assault. Soon after the report, JH

pressed himself against Tinney’s back and threatened to harm her should she report the incident.

Randolph was also threatened by other cadre members.2

 As a result of these reports, JH was put on

house arrest and removed from kitchen duty. At some later point, Randolph went into Logan’s

office, crying, and told him that she had been raped. 

Labor Relations Officer Aiesha Saunders investigated Randolph’s reporting of the choking

incident. Saunders did not interview Randolph, but her investigation uncovered rumors that

Randolph had engaged in inappropriate sexual behavior in front of the inmates. As a result,

Saunders recommended that the Highway Patrol conduct a formal investigation into any impropriety

by Randolph. Upon receiving this recommendation, Feldkamp reported the allegations of

Randolph’s inappropriate behavior and a possible consensual sexual relationship between Randolph

and JH to the Department of Youth Services’ Chief Inspector’s Office and the Ohio State Highway

Patrol. This resulted in a criminal investigation, conducted by Trooper Don Whipple, to determine

whether Randolph had violated Ohio Revised Code § 2907.03, which criminalizes engaging in

sexual activity with a person who is in state custody. Whipple concluded that there had been a

consensual sexual encounter between JH and Randolph and referred the case to the Pickaway

County Prosecutor. The prosecutor found the evidence insufficient to prosecute and took no action.

Saunders’s recommendation also resulted in an investigation by Rebecca Martin of the Chief

Inspector’s Office. At the end of her investigation, Martin concluded that Randolph was not a

credible witness and that the sexual encounters seemed to be consensual. Martin found especially

suspect Randolph’s decision to report the choking incident well in advance of the sexual assault and

attempted sexual assault.

On approximately July 17, 1996, Harman checked Randolph into Harding Hospital in

Columbus, Ohio, because Harman believed that Randolph was suicidal. Randolph was placed on

administrative leave. After she was released from the hospital, Randolph sought counseling.

Randolph’s administrative leave ended on July 25, 1996. Randolph was then required to use sick,

vacation or personal time to remain away from work. Randolph applied for and was granted

disability benefits, which consisted of a portion of her regular income. 
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 4

3

Although Randolph’s complaint states that she was subject to “sex discrimination,” the district court granted

summary judgment on this claim. On appeal, Randolph’s brief fails to raise any argument alleging sex discrimination.

This claim is therefore waived. Moorer v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 478 (6th Cir. 2005). 

The CYC decided to take disciplinary action against Randolph. A pre-disciplinary meeting

was scheduled for October 3, 1996, but was postponed because Randolph’s psychiatrist, Dr. Kevin

Ware, stated that Randolph was “under a large amount of stress” and that the meeting “would be

detrimental to her condition.” Ware requested that the meeting be postponed for at least six months.

Despite this request, the meeting was rescheduled for November 14, 1996, and occurred without her

being present. On December 13, 1996, CYC terminated Randolph. Randolph filed a grievance, and

an arbitrator reinstated her on March 15, 1998. Randolph applied for and was granted a transfer

shortly after her reinstatement. 

Randolph filed a timely charge with the Equal Employment Opportunity Commission

(“EEOC”) on January 3, 1997. The EEOC determined that enough evidence had been uncovered

during the investigation to establish a Title VII violation and issued a right to sue letter. On

December 13, 2001, Randolph filed a complaint in United States District Court for the Southern

District of Ohio, alleging hostile-work-environment sexual harassment, sex discrimination based on

disparate treatment,3 and retaliation in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C.

§ 2000e et seq. CYC moved for summary judgment on all claims. On March 15, 2004, the district

court granted CYC’s motion with respect to all claims. Randolph filed a timely notice of appeal on

April 13, 2004. 

II.

This court reviews a district court’s grant of summary judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999). Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A “material” fact is one “that might affect the outcome of the

suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We must view the evidence and

draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

III.

On appeal, Randolph first argues that the district court erred in holding that “Randolph’s

charges for a sexually hostile work environment prior to May 1, 1996 are barred for failure to

exhaust administrative remedies.” The district court so held because in Randolph’s charge of

discrimination filed with the EEOC, she stated that the earliest date of discrimination was May 1,

1996. The district court therefore ruled that Randolph had failed to exhaust her administrative

remedies with regard to those actions occurring prior to May 1, 1996. Though Randolph’s evidence

regarding events occurring after May 1, 1996, is by itself sufficient to support our holding that

summary judgment was improvidently granted in this case, we hold that the district court erred in

excluding evidence of prior acts.

A person seeking to bring a discrimination claim under Title VII in federal court must first

exhaust her administrative remedies. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976). This

requirement exists so that the EEOC will have an opportunity to convince the parties to enter into

voluntary settlement, which is the preferred means of disposing of such claims. Parsons v. Yellow

Freight Sys., Inc., 741 F.2d 871, 873 (6th Cir. 1984). The requirement, however, is not meant to be

overly rigid, nor should it “result in the restriction of subsequent complaints based on procedural

technicalities or the failure of the charges to contain the exact wording which might be required in
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 5

a judicial pleading.” EEOC v. McCall Printing Co., 633 F.2d 1232, 1235 (6th Cir. 1980). As a

result, the EEOC complaint should be liberally construed to encompass all claims “reasonably

expected to grow out of the charge of discrimination.” Haithcock v. Frank, 958 F.2d 671, 675 (6th

Cir. 1992) (internal quotation marks and citation omitted).

The district court’s holding that Randolph failed to exhaust her claims prior to May 1, 1996,

was improper because Randolph is not making a separate claim for actions prior to that date. The

district court’s holding bifurcated Randolph’s hostile-work-environment claim and held one of the

claims exhausted. Hostile work environment claims by their very nature require ongoing conduct,

however. See Bell v. Chesapeake & Ohio Ry. Co., 929 F.2d 220, 223 (6th Cir. 1991) (“[M]any

discriminatory acts occur in such a manner that it is difficult to define precisely when they took

place. One might say they unfold rather than occur.” (internal citations omitted)). This case is no

exception. Randolph’s allegations are not bounded by discrete temporal boundaries, but rather

describe an escalating progression of harassment. Thus, the actions prior to and after May 1, 1996,

all support Randolph’s single claim. As a result, the district court’s holding misconstrued both the

nature of the evidence presented and the nature of Randolph’s claim. As the pre-May 1, 1996,

actions do not constitute a separate claim, the district court’s exhaustion holding was incorrect.

The district court’s holding is more accurately described as evidentiary in nature. Although

the court couched its ruling as relating to exhaustion, the court fundamentally held that the events

occurring prior to May 1, 1996, were outside the scope of the EEOC claim and thus irrelevant. To

the extent that it did so and excluded evidence of events prior to May 1, its conclusion was also

incorrect for two reasons. First, the actions prior to May 1, 1996, are not beyond the scope of the

EEOC complaint, as the EEOC could reasonably be expected to investigate those actions

notwithstanding the date listed on the face of Randolph’s complaint. See EEOC v. Roadway

Express, Inc., 261 F.3d 634, 642 (6th Cir. 2001) (“[T]he Supreme Court has held that Title VII gives

the EEOC very broad powers of investigation and affords the EEOC access to ‘virtually any material

which might cast light on the allegations against the employer.’” (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984))). Second, the ongoing nature of hostile-work-environment sexual

harassment claims undergirds our “totality of the circumstances” review of these claims. See

Jackson v. Quanex Corp., 191 F.3d 647, 658-59 (6th Cir. 1999). As noted above, this case is no

exception, and the imposition of an artificial cut-off of May 1, 1996, would exclude evidence

relevant to the totality of the circumstances. The EEOC complaint cannot be read as a temporal

limitation on the admission of evidence for the hostile work environment claim. As a result, we

consider the events alleged both before and after May 1, 1996, in reviewing Randolph’s hostilework-environment claim.

Randolph next argues that the district court erred in finding that she had not raised a genuine

issue of material fact about whether she was subjected to a hostile work environment. Under Title

VII, in order to make out a hostile-work-environment claim based on sexual harassment, an

employee must show that: (1) she was a member of a protected class; (2) she was subjected to

unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the charged

sexual harassment created a hostile work environment; and (5) the employer is liable. Hafford v.

Seidner, 183 F.3d 506, 512 (6th Cir. 1999) (“‘The elements and burden of proof are the same,

regardless of the discrimination context in which the claim arises.’” (quoting Crawford v. Medina

Gen’l Hosp., 96 F.3d 830, 834 (6th Cir. 1996))). A hostile work environment occurs “[w]hen the

workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and

citation omitted). Both an objective and subjective test must be met; in other words, the conduct

must be so severe or pervasive as to constitute a hostile or abusive working environment both to the

reasonable person and the actual victim. Id. at 21-22. 
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 6

Rather than considering each event complained of in isolation, we must consider the totality

of the circumstances in determining whether the harassment was sufficiently severe and pervasive.

Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997). Specifically, we must consider “the

frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an

employee’s performance.” Harris, 510 U.S. at 23. “[S]imple teasing, offhand comments, and

isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms

and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal

quotation marks and citation omitted). We may, however, consider the effect of the incidents on the

employee’s psychological well-being. Harris, 510 U.S. at 23.

CYC conceded before the district court that Randolph is a member of a protected class and

has produced evidence of unwanted sexual harassment, so Randolph has satisfied the first two

elements of the hostile work environment claim. The sufficiency of Randolph’s evidence of the

remaining three elements, however, is in dispute.

The district court found that Randolph satisfied her burden to present evidence that the

harassment was because of sex. We agree, but find that the district court erred by examining the

evidence of verbal and physical harassment separately in its analysis of the third element. The

district court found that, while the verbal abuse and rumors of which Randolph complained were

not “because of sex” as required by Title VII, the physical abuse–specifically the choking incident,

the attempted sexual assault, the completed sexual assault, and the physical contact accompanied

by threats–was sufficiently gender-based to satisfy the third prong. Differentiation between verbal

and physical harassment violates the principle that the “totality-of-the-circumstances examination

should be viewed as the most basic tenet of the hostile-work-environment cause of action.”

Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999). It is therefore error to distinguish

between the various forms of harassment; as long as Randolph was subjected to a hostile

environment at CYC because of her sex, she has met the third element of her claim. 

Given the totality of the circumstances here, the evidence that the physical abuse was genderbased permits an inference that the verbal abuse was also “because of sex.” When this inference is

considered along with Randolph’s direct evidence of explicitly sexual verbal abuse, we find that

Randolph has easily presented sufficient evidence to satisfy the third element. Randolph testified

in her deposition that she was subject to daily threats, derogatory comments, verbal harassment, foul

language, and several serious physical assaults to which members of the opposite sex were not

exposed. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“‘The critical

issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous

terms or conditions of employment to which members of the other sex are not exposed.’” (quoting

Harris, 510 U.S. at 25 (Ginsburg, J., concurring))). Together, this evidence is sufficient to allow

us to find that Randolph has satisfied the third element of the hostile work environment claim.

Next, Randolph must present evidence as to the fourth element of the hostile work

environment test – that the harassment created a hostile work environment, in that it was

“sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.” Harris, 510 U.S. at 21. The district court again found that while

the verbal harassment did not objectively create a hostile work environment, the physical harassment

did suffice to meet the fourth element. For the same reasons stated above, the district court erred

in evaluating the allegations independently rather than considering the totality of the circumstances

as required under prevailing case law. 

Randolph has easily satisfied her burden to produce evidence from which a hostile work

environment can be found. As noted above, Randolph testified that she was subjected to daily

verbal harassment and threats and produced evidence corroborating her testimony. Additionally,
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 7

Randolph testified that she was subjected to multiple physical attacks and produced evidence

corroborating her testimony. These events would certainly be traumatic to any individual and were

clearly traumatic to Randolph, based on her evidence that they caused her to become suicidal and

necessitated institutionalization and counseling. 

The fact that Randolph was employed in a prison is not sufficient to overcome the allegations

of hostility presented in this case. As the district court noted, “[p]risoners, by definition, have

breached prevailing societal norms in fundamentally corrosive ways,” and thus “[b]y choosing to

work in a prison, corrections personnel have acknowledged and accepted the probability that they

will face inappropriate and socially deviant behavior.” Slayton v. Ohio Dep’t of Youth Servs., 206

F.3d 669, 677 (6th Cir. 2000). The Slayton principle that corrections personnel have accepted the

probability of deviant behavior is not without limit, however. Randolph’s allegations are so serious

that they satisfy the hostile work environment prong despite the mitigating consideration of the

prison work environment. We therefore find that Randolph has presented evidence sufficient to

satisfy the fourth element of a hostile work environment claim. 

Finally, Randolph must establish employer liability. Hafford, 183 F.3d at 512. In order to

show employer liability based on a hostile work environment created by inmates, Randolph must

show that “the institution fail[ed] to take appropriate steps to remedy or prevent illegal inmate

behavior.” Slayton, 206 F.3d at 677. The district court held that Randolph failed to meet this

standard because CYC took appropriate corrective action by removing JH from kitchen duty after

Randolph was attacked. The district court also held that Randolph had failed to present sufficient

evidence from which to find that CYC had actual or constructive notice of the hostile work

environment.

The district court erred in its holding as to liability. First, Randolph has presented sufficient

evidence to survive summary judgment on the question of whether CYC had actual or constructive

notice of the harassment. Randolph testified that she and her food service co-workers complained

about the verbal harassment on several occasions to supervisors to no avail. Randolph’s testimony

also indicated that the supervisors were aware of the harassment but largely ignored it. In fact, as

Tinney alleged, supervisors instructed the food service workers to stop complaining. More troubling

than CYC’s lukewarm response to the verbal harassment, however, is its response to Randolph’s

allegations of physical assault. While Randolph did not report these incidents immediately after they

occurred, it is undisputed that she did eventually report both the choking incident and the two sexual

assaults. Therefore, Randolph presented evidence sufficient to establish that CYC had actual notice

of the hostile work environment to which she was subjected. The district court focused on the fact

that Randolph failed to report the incidents in accordance with CYC’s sexual harassment policy, on

which Randolph had received two to three weeks of training. While we may consider Randolph’s

failure to file a formal complaint in accordance with the CYC procedure in determining whether

CYC knew of the harassment, that failure does not absolutely bar Randolph’s claim, nor does it

prevent the claim from proceeding where the record reflects that CYC was clearly apprised of the

harassment. See Jackson, 191 F.3d at 663 (failure to report harassment did not bar a hostile work

environment claim because the requirement is that the employer knew or should have known of the

offensive conduct, not that the employee must report it). We therefore find that Randolph presented

evidence that CYC had notice of the harassment. 

With regard to whether CYC’s response to the harassment was adequate, Randolph has again

presented sufficient evidence to permit a finding that CYC failed to take appropriate steps to prevent

the harassing behavior. Once CYC learned of the choking incident, JH, the perpetrator, was

removed from the kitchen and placed on some restrictions for the remainder of his time at CYC.

While it appears that Randolph had no contact with JH following these measures, Randolph testified

that she was still subject to harassment and rumors from other inmates relating to the attack. Thus,

it appears that a factfinder could determine that merely removing JH from the kitchen was
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 8

insufficient to prevent the hostile work environment from continuing, as required for CYC to avoid

liability under Slayton. 206 F.3d at 677. Furthermore, Randolph’s reporting of the physical assaults

led to a barrage of rumors that Randolph was engaging in a consensual sexual relationship with

inmates and had behaved in inappropriate ways at work. These rumors led to two investigations

which ultimately resulted in Randolph’s termination. If Randolph’s evidence is accepted, CYC’s

response to Randolph’s reports of assault by inmates seems patently inadequate to “remedy or

prevent illegal inmate behavior.” Slayton, 206 F.3d at 677. As a result, Randolph has presented

sufficient evidence to raise a genuine issue of material fact as to whether she was subject to a hostile

work environment, and we therefore reverse the district court’s holding on this issue. 

IV.

Randolph argues next that the district court erred in granting summary judgment in CYC’s

favor on her Title VII retaliation claim. In order to establish a prima facie case of retaliation, the

plaintiff must show that: (1) she engaged in activity protected under Title VII; (2) the defendant

knew that she engaged in the protected activity; (3) the defendant subsequently took an adverse,

retaliatory action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory

harassment by a supervisor; and (4) the protected activity and the adverse action were causally

connected. Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004); Morris v. Oldham County

Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. ___, No. 05-259, Slip Op. at 13 (2006) (“[T]he anti-retaliation provision . . . is not limited

to discriminatory actions that affect the terms and conditions of employment.”). 

Randolph identifies three protected activities in which she engaged to satisfy the first

element: (1) her report to the administration that JH had choked her; (2) her complaint that another

inmate had verbally harassed her by telling her that she had engaged in sexual activity with a dog;

and (3) her reports of sexual assault. Because Randolph reasonably believed that her actions in

reporting the harassment were protected activity, she satisfies the first element of her retaliation

claim. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000). 

Second, Randolph must show that CYC knew she was engaging in protected activity. As

noted above, it is undisputed that Randolph complained several times about the verbal and physical

assault. Particularly with regard to the allegations of sexual assault, CYC must have known that

Randolph was exercising a protected right under Title VII in making the report. Therefore, the

second element is satisfied.

Randolph must next show that CYC took an adverse, retaliatory action against her after the

reporting. Randolph cites CYC’s actions in placing her on administrative leave and then terminating

her employment as the adverse actions. The district court held that because she was reinstated with

seventy-percent back pay, she could not establish that she had been subject to an adverse action. 

Not every act affecting an individual’s employment can be considered an adverse, retaliatory

action giving rise to liability. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)

(noting need for tangible employment action to support vicarious liability discrimination claim).

Instead, to support a Title VII claim, “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.” Burlington

Northern, 548 U.S. ___, Slip Op. at 13 (internal quotation omitted). In determining whether an

employee’s change is material, we must consider the context of the action. Id. at 14. In this case,

Randolph was first placed on administrative leave, then terminated. She was later reinstated with

seventy-percent back pay. In this case, as in Burlington Northern, the termination and concomitant

loss of income constitutes a materially adverse action under Title VII, notwithstanding Randolph’s

later reinstatement with back pay. See id. at 18 (“White did receive backpay. But White and her
No. 04-3468 Randolph v. Ohio Dep’t of Youth Services Page 9

4

Ordinarily, we would be required to consider whether CYC could produce a legitimate, non-retaliatory reason

for the adverse action taken against the plaintiff. West v. Fred Wright Const. Co., 756 F.2d 31, 33-34 (6th Cir. 1985).

We would next have to consider whether the plaintiff could establish that the reason proffered by the defendant was

merely pretextual and that the actual reason was retaliation for her engaging in a protected activity. Id. at 34. However,

neither party’s brief addresses any argument beyond the prima facie case, so there is no proffered legitimate nonretaliatory reason for the panel to consider.

family had to live for 37 days without income. They did not know during that time whether or when

White could return to work. Many reasonable employees would find a month without a paycheck

to be a serious hardship.”). Therefore, the district court erred in finding that Randolph had failed

to establish an adverse employment action and Randolph satisfied the third element. 

Fourth, Randolph must establish that there was a causal connection between the adverse

employment action and the protected activity. Morris, 201 F.3d at 792. The district court declined

to reach this issue based on its ruling that Randolph had not suffered an adverse retaliatory action.

Randolph points to the temporal proximity between the reporting of the harassment and her

termination in support of the causal connection. Randolph reported the assaults in June and July

1996, was placed on administrative leave on June 17, 1996, and was terminated on December 13,

1996. Although temporal proximity itself is insufficient to find a causal connection, a temporal

connection coupled with other indicia of retaliatory conduct may be sufficient to support a finding

of a causal connection. Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir. 2001);

Nguyen v. City of Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000). In this case, the timing of

Randolph’s placement on administrative leave and eventual termination is coupled with the fact that

she was subjected to rumors about inappropriate behavior between her and the inmates that led to

two investigations of her conduct. These investigations were not to determine whether Randolph

had been subjected to a hostile work environment, but rather were conducted with the purpose of

inquiring into whether Randolph had engaged in any inappropriate behavior. These circumstances

are sufficient to support a finding by the panel that Randolph had satisfied the third prong, thereby

satisfying her prima facie burden for retaliation. As a result, we reverse the ruling of the district

court on this issue.4

V.

For the foregoing reasons, we REVERSE the decision of the district court’s opinion granting

summary judgment in favor of the Ohio Department of Youth Services and REMAND the case for

further proceedings.