Threat v. City of Cleveland, No. 20-4165 (6th Cir. 2021)
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The plaintiffs, captains in Cleveland’s Emergency Medical Service division, belong to the same union; all are black. Each fall, captains bid on their schedules for the upcoming year. The city uses a seniority-based bidding system to assign shifts. The collective bargaining agreement also allows Carlton, the EMS Commissioner, to transfer up to four captains to a different shift that conflicts with a captain’s first choice. The 2017 bidding generated a schedule in which three plaintiffs were slated to work a day shift together; only black captains would staff the shift. Carlton removed Anderson from that day shift and replaced him with a white captain to “diversify the shift[].” Informal discussions failed. Discrimination charges were filed with the Ohio Civil Rights Commission and the federal EEOC. A rebidding generated a schedule that again resulted in reassignment to “create diversity.” A local news station ran a story about the shift situation.
The captains sued, bringing discrimination and retaliation claims under Title VII and Ohio law, and a section 1983 claims based on the federal constitution. The district court ultimately rejected all of the claims, reasoning the captains could not show that the shift change subjected them to a “materially adverse employment action.” The Sixth Circuit reversed in part. Shifts count as “terms” of employment under Title VII, 42 U.S.C. 2000e-2(a)(1) and the shift change is not “de minimus.”