A former St. Paul Public Schools teacher will get his day in court on race discrimination and whistleblower claims despite just the barest showing of adverse employment action against him.
Aaron Benner is an African-American elementary school teacher who had been tenured in the St. Paul Public Schools (“SPPS”) since 1999. In 2013, Benner openly criticized the SPPS racial equity policy intended to narrow the performance gap between the highest- and lowest-performing students and decrease the amount of discipline referrals for African-American students. Benner contended that the policy created quotas on suspensions and punishments for such students and therefore impeded efforts to hold those students accountable for their behavior.
Near the end of the 2013-2014 school year, Benner and four other (non-African American) teachers brought forth a proposed countervailing “high expectations policy” to the SPPS school board. He then spoke publicly during the school board meeting on May 20, 2014, to complain about what he deemed “the separate but equal new illegal policies in St. Paul.”
Benner then began encountering employment-related issues, including:
– Disciplinary action for a discussion with his class about bullying, which allegedly violated the district’s student confidentiality policy.
– A request (but not a requirement) that he transfer to a different school.
– Investigation (but no discipline) for taking a sick day without informing the school principal.
Thereafter, Benner e-mailed the district that he felt these actions were taken against him because of his opposition to the racial equity policy. A meeting to review these contentions was scheduled but Benner cancelled the meeting after learning that he was again under investigation, this time for an incident in which he supposedly left his classroom unsupervised for a few minutes during an indoor recess. Benner eventually was reprimanded for having endangered “student health and safety,” and for behavior that was “unacceptable and unbecoming of a teacher in [SPPS].
In March 2015, Benner’s teaching assistant was terminated and the position was not replaced.
Benner resigned in May 2015, and commenced a lawsuit in federal court claiming retaliation and discrimination under Title VII, and violation of the Minnesota Whistleblower Act. The SPPS filed a motion for summary judgement (early dismissal) contending that each of Benner’s claims lacked an essential element – that Benner did not suffer sufficient “adverse employment action” to justify allowing him to pursue his claims in court.
A Little Adverse is Adverse Enough
In regard to the discrimination and whistleblower claims, Federal District Judge Susan Richard Nelson sided with Benner and denied the school district’s motion to dismiss. Judge Nelson determined that even if none of the individual events constituted a sufficiently adverse employment action to support a legal claim, a jury could consider the “cumulative effect” of all the actions taken by the SPPS and reasonably find that Benner suffered an adverse employment action.
In addition, even if the all of those actions did not constitute an adverse employment action on their own, Judge Nelson ruled that a jury could find that Benner was constructively discharged. Constructive discharge occurs when an employee is subjected to working conditions that a reasonable person would find intolerable because of illegal discrimination, and the employer created those working conditions with the intent of forcing the employee to resign. As a result, Benner may proceed with his Title VII discrimination claim and his claim under the Minnesota Whistleblower Act.
Judge Nelson did dismiss the Title VII retaliation allegation, which required a showing that Benner was treated adversely for having opposed a discriminatory employment policy or practice. Benner’s protests, however, related to the SPPS racial equity policy and how that policy affected the students in the school district. As such, Benner’s opposition was not employment-related and therefore was not protected under Title VII’s retaliation prohibition.
This case provides a cautionary tale for employers as it takes a broad view of acts that may be considered adverse employments actions that permit a legal claim to go forward. Even if an employee is not demoted, suspended, or terminated, he or she may still be determined to have suffered an adverse action and perhaps even a constructive discharge based on the “cumulative effect” of the employer’s actions.