Congress tasked the Equal Employment Opportunity Commission (EEOC) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq. Under these statutes’ substantive provisions, an employer may not “discriminate against any individual with respect to [her] … terms, conditions, or privileges of employment, because of such individual’s” race or age. 42 U.S.C. § 2000e‑2(a)(1); accord 29 U.S.C. § 623(a)(1). And under their retaliation provisions, an employer may not “discriminate against any of [its] employees” for opposing practices the substantive provisions prohibit. 42 U.S.C. § 2000e-3(a); accord 29 U.S.C. § 623(d).

This appeal involves the proper standards for deciding whether an employer’s challenged actions (1) affect terms, conditions, or privileges of employment within the meaning of the statutes’ substantive provisions or (2) are sufficiently adverse to be actionable under their retaliation provisions. Because the EEOC holds a strong interest in ensuring that courts apply the correct standards, it offers its views to this Court pursuant to Federal Rule of Appellate Procedure 29(a)(2).

1. Whether a reasonable jury could find plaintiff’s employer affected her terms, conditions, or privileges of employment within the meaning of Title VII and the ADEA where it allegedly subjected her to disparate treatment with respect to training, job resources, and work assignments, and where this disparate treatment allegedly caused her performance to suffer to such a degree that her employer put her on a Performance Improvement Plan and disqualified her for a raise.

2. Whether a reasonable jury could find these and other challenged actions sufficiently “adverse” to form the basis for a Title VII or ADEA retaliation claim, in that they could dissuade a reasonable worker from making a discrimination complaint.

STATEMENT OF THE CASE

A. Statement of Facts [2]

Plaintiff-Appellant Zaneta Shivers, an African American woman who was over age forty at all relevant times, worked for Defendant-Appellee Charter Communications, Inc. (Charter) and its predecessors for eighteen years, from April 2001 to April 2019. Shivers Aff. ¶ 2, R.28‑1, PgID#594; see Tucker Decl. ¶¶ 5-6, R.25‑1, PgID#133. The period relevant here began in February 2018, when Charter transferred Shivers into a Credit Service Associate (CSA) position. Tucker Decl. ¶¶ 4, 8, R.25‑1, PgID#133-34. As a CSA, Shivers worked at a call center and resolved “tickets” created when customers contacted Charter to report issues with their account payments. Bliss Decl. ¶¶ 2, 5-6, R.25‑2, PgID#199-200. Credit Services Supervisor Joshua Bliss acted as Shivers’s direct supervisor. Bliss Decl. ¶¶ 2-3, R.25‑2, PgID#199.

Shivers testified that she received discriminatory treatment as soon as she began working under Bliss. Shivers Dep. 125-26, R.25‑3, PgID#341-42. While a younger, Caucasian CSA who began in the role around the same time reportedly got five to ten days of training and the chance to spend additional time observing experienced CSAs, Shivers testified to receiving only one day of training and no opportunity to “sit with more experienced employees to see how they processed their work.” Shivers Dep. 138, R.25‑3, PgID#354; Shivers Aff. ¶¶ 6-7, R.28‑1, PgID#595-96. Indeed, Shivers maintains that Bliss expressly told her not to ask questions of her colleagues.[3] Shivers Dep. 138, R.25‑3, PgID#354. And Shivers also contends that she—unlike the other new CSA—did not get access to computer log-in credentials until about a month after she began in the role. Shivers Aff. ¶ 8, R.28‑1, PgID#596.

Shivers’s lack of training left her unable to “process … [her] tickets in a more efficient way” despite her attempts to teach herself how to use the relevant computer systems. Shivers Dep. 138-40, R.25‑3, PgID#354-56. And Bliss, though denying he had given Shivers only one day’s training, testified that he “would disagree” with—and be “baffled” by—a decision to do so. Bliss Dep. 66, R.31, PgID#1144. Meanwhile, the initial lack of computer credentials further “slowed [Shivers’s] work performance as [she] had to wait for others to sign [her] into the necessary computers.” Shivers Aff. ¶ 8, R.28‑1, PgID#596.

Other forms of disparate treatment likewise hampered Shivers’s job performance. For example, while Charter gave younger, Caucasian workers “access to multiple billing and operating systems, … which permitted them to keep their work performance numbers high,” it allegedly refused Shivers’s requests for access to these same systems. Shivers Aff. ¶ 12, R.28‑1, PgID#597; see Shivers Dep. 146-49, R.25‑3, PgID#362-65. As a result, Shivers “always had to reach out to others to get their assistance” in looking up certain information and could not “just work[] … at [her] own pace.” Shivers Dep. 143-44, R.25-3, PgID#359-60. This caused delays and “negatively impacted [her] job performance.” Shivers Aff. ¶ 12, R.28‑1, PgID#597.

Among the computer systems to which Shivers had no access was a system that a CSA needed in order to receive assignments involving customers in the Eastern Time Zone. Shivers Dep. 175-76, R.25‑3, PgID#391-92. Because Shivers worked 8:00 a.m. to 5:00 p.m. Eastern Standard Time and was not allowed to call a customer before it reached 8:00 a.m. in the customer’s time zone, her limitation to customers outside her own time zone impeded her efficiency. Shivers Dep. 150-51, R.25‑3, PgID#366-67; see Bliss Dep. 50, 117, R.31, PgID#1140, 1156. As Shivers explained, she was often “unable to process tickets or contact clients for the first three … hours of [her] day.” Shivers Aff. ¶ 9, R.28‑1, PgID#596. But although Shivers asked Bliss to let her serve Eastern Time Zone customers—as her younger, Caucasian colleagues were allowed to do—he refused. Shivers Aff. ¶ 10, R.28‑1, PgID#596.

Shivers also testified to disparate treatment in the form of a disproportionately heavy workload. A CSA’s tickets typically involve transferring payments from one customer account to another or doing payment research. Bliss Decl. ¶ 7, R.25‑2, PgID#200. Shivers described payment research as “more rigorous, harder to complete[,] and more detailed” than performing a balance transfer, Shivers Aff. ¶ 11, R.28‑1, PgID#596-97, and Bliss agreed that a balance transfer was “essentially the easiest ticket,” Bliss Dep. 58, R.31, PgID#1142. But according to Shivers, Bliss assigned balance transfers to younger, Caucasian CSAs and not to her. Shivers Aff. ¶ 11, R.28‑1, PgID#596-97. Instead, Shivers maintains that Bliss exclusively assigned her “work intensive” payment research tickets, “creating a harsher workload for [her]” and making it harder for her to reach her daily ticket-resolution targets. Id.

Shivers testified that Bliss told her he was reserving balance transfers for CSAs who, unlike her, were working on special projects. Shivers Dep. 162-63, R.25‑3, PgID#378-79. And Shivers later learned that CSAs working on special projects not only received easier tickets but also “were not required to process as many daily tickets as [she] was.” Shivers Aff. ¶ 13, R.28‑1, PgID#597-98. But while Shivers’s “younger, Caucasian counterparts were routinely assigned special projects,” Shivers generally was not.^{^[4]} Id.

Compounding Shivers’s disparate workload, Bliss made her “leave [her] telephone in an ‘available’ status,” while allowing her “younger Caucasian counterparts” to “place their telephones in an ‘unavailable’ status.” Shivers Aff. ¶ 15, R.28‑1, PgID#598. This caused Shivers’s telephone to “ring more than anybody else’s,” leaving her with a disproportionate share of responsibility for answering incoming calls and taking messages. Shivers Dep. 151, R.25‑3, PgID#367. Finally, Shivers also testified that Charter subjected her to further differential treatment by, among other things, denying certain vacation requests, requiring her to follow a burdensome process for requesting overtime, and making her give Bliss detailed daily reports on “how [she] processed [her] work.” Shivers Aff. ¶¶ 17-18, 21, R.28‑1, PgID#599-600.

While subject to this disparate treatment, Shivers struggled to meet Bliss’s performance expectations. Bliss assessed his CSAs in part by comparing the percentage of tickets they successfully resolved to a predetermined baseline. Bliss Decl. ¶ 9, R.25‑2, PgID#200. The goal was to reach at least 90-95% of the baseline, but Shivers’s monthly scores from April 2018 to November 2018 ranged between 60.07% and 86.26%. Bliss Decl. ¶¶ 9-10, 13, R.25‑2, PgID#200-01. That December, Bliss told Shivers he planned to give her documented counseling due to her low ticket-resolution numbers. Bliss Decl. ¶ 14, R.25‑2, PgID#201.

Soon after, Shivers met with a Human Resources (HR) manager to complain that Bliss “ha[d] an issue” with her “because of [her] age” and “because [she] was a black woman.” Shivers Dep. 220, R.25‑3, PgID#436; see Bliss Decl. ¶ 14, R.25‑2, PgID#201. Shivers, though, testified that the manager was “not really paying attention,” and that the manager eventually told her, “[W]e’ll address the issue if [Bliss] has a problem with you once you bring your [ticket] numbers up.” Shivers Dep. 220-21, R.25‑3, PgID#436-37. Bliss put Shivers on a Performance Improvement Plan (PIP) on January 4, about a week after her meeting with HR. Bliss Decl. ¶ 15, R.25‑2, PgID#201; see Handwritten Notes, R.25‑3, PgID#562 (indicating the HR meeting occurred December 26).

The next month, Bliss presented Shivers with her performance review for the prior year. Bliss Decl. ¶ 16, R.25‑2, PgID#201. On a scale from 1.0 (Did Not Achieve Expected Performance) to 5.0 (Far Exceeded Expected Performance), Bliss gave Shivers a 2.3, due in large part to her ticket-resolution numbers. Tucker Decl. ¶¶ 25-26, R.25‑1, PgID#136; see Performance Eval., R.25‑3, PgID#539-45. Because 3.0 (Achieved Expected Performance) was the minimum score needed to be eligible for an annual merit pay increase, Shivers’s score disqualified her for such an increase. Tucker Decl. ¶¶ 24-26, R.25‑1, PgID#136.

Charter terminated Shivers not long afterward for hanging up on a belligerent customer during a call. Bliss Decl. ¶¶ 17-21, R.25‑2, PgID#201-02; see Shivers Dep. 29, R.25‑3, PgID#245. While Charter maintains that it has “zero tolerance for hanging up on customers,” Tucker Decl. ¶ 7, R.25‑1, PgID#133-34, neither Shivers nor Bliss had heard of Charter’s supposed zero-tolerance policy prior to Shivers’s termination, Shivers Dep. 36, R.25‑3, PgID#252; Bliss Dep. 28-29, R.31, PgID#1134. To the contrary, Shivers testified that Charter had “always trained” its CSAs that “whenever [they] had an irate customer, [they] did not have to sit there and suffer the abuse of a customer, that [they] were permitted to release the call.” Shivers Dep. 29, R.25‑3, PgID#245.

Following her termination, Shivers filed charges of race and age discrimination with the EEOC and Ohio Civil Rights Commission. Compl. ¶ 4, R.1, PgID#2. After receiving a right-to-sue letter, she filed this lawsuit. EEOC Letter, R.1, PgID#16-17. As relevant, Shivers alleged that Charter violated Title VII and the ADEA by discriminating against her based on her race and age and by retaliating against her for her HR complaint. Compl. ¶¶ 35-50, R.1, PgID#8-11. Charter moved for summary judgment. Mot. Summ. Judg., R.25, PgID#106.

B. District Court’s Decision

The district court granted summary judgment for Charter on the discrimination and retaliation claims.^{^[5]} Op. 13, R.33, PgID#1525. The court first held that Shivers could not make out a prima facie case of discrimination. Op. 9, R.33, PgID#1521. It characterized most of the alleged disparate treatment—including the reduced training, delayed computer access, inability to serve Eastern Time Zone customers, and comparatively heavier workload and telephone duties—as “‘de minimis’ employment actions” insufficient “individually and/or collectively” to qualify as the sort of “adverse employment decisions” that can be actionable as discrimination under Title VII or the ADEA. Op. 6-7, R.33, PgID#1518-19. And while the court recognized that denial of a raise would qualify, it granted Charter summary judgment as to this action because Shivers had not “identif[ied] a similarly situated non-protected Charter employee who received a 2.3 performance score and received a … salary increase.” Op. 8-9, R.33, PgID#1520-21.

The district court then held that Shivers could not make out a prima facie retaliation case. Op. 9-13, R.33, PgID#1521-25. Noting that a required element of a retaliation claim is a “materially adverse action” sufficient to dissuade a reasonable worker from making a charge of discrimination, the court ruled that “[a] PIP does not meet this standard.” Op. 11, R.33, PgID#1523. And the district court separately noted that the supposedly “de minimis administrative decisions” it had discussed in the context of Shivers’s discrimination claims—including the deprivation of training and resources and the increased workload—also “d[id] not support” her retaliation claim because they, too, were “not materially adverse.”[6] Op. 12, R.33, PgID#1524.

ARGUMENT

I. A reasonable jury could find the cumulative effect of Charter’s challenged actions had more than a de minimis impact on Shivers’s terms, conditions, or privileges of employment for purposes of her discrimination claims.

Title VII and the ADEA both prohibit discrimination against “any individual with respect to [her] … terms, conditions, or privileges of employment, because of such individual’s” protected characteristic. 29 U.S.C. § 623(a)(1); 42 U.S.C. § 2000e-2(a)(1); see Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996) (noting that “courts routinely employ Title VII and ADEA case law interchangeably”). As the Supreme Court has recognized, “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment … in employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (citation and internal quotation marks omitted). Accordingly, “[i]f the words of [the statutes] are our compass, it is straightforward to say” that discrimination in training, access to job resources, and workload fall within the statutes’ scope. Threat v. City of Cleveland, 6 F.4th 672, 677 (6th Cir. 2021).

The district court nonetheless held that no reasonable jury could find Shivers’s alleged disparate treatment in these areas significant enough to be actionable discrimination. In so holding, the district court characterized Charter’s challenged actions as “de minimis.” Op. 7, R.33, PgID#1519. But while this Court reads the relevant statutory text to “incorporate a de minimis exception,” so as to discourage lawsuits over “the pettiest forms of workplace misconduct,” it has recently emphasized that “de minimis means de minimis.” Threat, 6 F.4th at 679-80. Thus, although “mere inconvenience[s]” or “very temporary” changes in employment status, for example, might not be actionable under this Court’s precedents, Bowman v. Shawnee State Univ., 220 F.3d 456, 461 (6th Cir. 2000) (citation omitted), employment actions need not involve a “change in status, benefits, or salary” to rise above a de minimis level, Keeton v. Flying J, Inc., 429 F.3d 259, 264-65 (6th Cir. 2005). And to determine whether a jury could find such actions more than de minimis, a court must consider “[t]he[ir] cumulative effect.” Rogers v. Henry Ford Health Sys., 897 F.3d 763, 776 (6th Cir. 2018).

The district court’s opinion here failed to undertake the required context-specific “de minimis” analysis. See Threat, 6 F.4th at 679 (refusing to read prior cases to establish an “across-the-board directive” about whether a given category of employment action is de minimis and recognizing “the contextual nature” of such an inquiry). The court cited several nonprecedential decisions holding training denials, scheduling matters, or temporary workplace inconveniences to be de minimis on the facts of particular cases, Op. 7-8, R.33, PgID#1519-20, but its analysis did not address the facts of this case or ask “whether there are ‘other indices that might be unique to the particular situation’ which could turn what would ordinarily not be an adverse employment action into one,” Deleon v. Kalamazoo Cnty. Rd. Comm’n, 739 F.3d 914, 919 (6th Cir. 2014) (quoting Keeton, 429 F.3d at 265).

To be sure, this Court has held that not every denial of training or resources, for example, necessarily clears the de minimis bar. See, e.g., Stewart v. Esper, 815 F. App’x 8, 18 (6th Cir. 2020) (holding temporary denial of access to a specific computer system was de minimis when plaintiff “received access within a month”); Vitt v. City of Cincinnati, 97 F. App’x 634, 640 (6th Cir. 2004) (holding denial of training was de minimis where there was no evidence the training was “necessary for Plaintiff’s unique position” or “primary duties”). But rather than treating these sorts of disparate treatment as categorically falling outside the scope of Title VII’s and the ADEA’s antidiscrimination protections, the proper inquiry here is whether a reasonable jury could find that the cumulative force of Shivers’s disparate treatment with respect to training, resources, and workload rose above a de minimis threshold and adversely influenced her terms, conditions, or privileges of employment.

Viewing this case’s record in the light most favorable to Shivers, a reasonable jury could infer that the various sorts of disparate treatment to which Charter subjected her, while arguably minor individually, collectively affected her employment conditions by impeding her ability to perform. Charter set Shivers up to fail from the start, a jury could find, by giving her a level of training that her supervisor would have found “baffl[ingly]” inadequate. Bliss Dep. 66, R.31, PgID#1144. It then further compromised her efficacy by withholding access to necessary computer systems and refusing to allow her to serve customers in the time zone aligned with her working hours. And while the district court focused on Shivers’s “delayed” initial access to her computer log-on credentials, Op. 6, R.33, PgID#1518, it apparently overlooked Shivers’s testimony that there were specific systems to which Charter never gave her access, see Shivers Dep. 146, R.25‑3, PgID#362 (Shivers agreeing that “during the entire time that [she] worked … under Josh Bliss’ supervision … [she] never had access to … multiple [computer] systems” that her peers could access).

A jury could also find Charter hamstrung Shivers still further by assigning her a disproportionate share of difficult, time-consuming tickets, imposing extra telephone duties on her, and refusing to assign her to special projects that would have lightened her ticket-closure responsibilities. See Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir. 2004) (describing “assignment of a disproportionately heavy workload” as an “adverse employment action[]” capable of supporting Title VII liability). Between saddling Shivers with a heavier workload and imposing obstacles that prevented her from processing that workload efficiently, a jury could find, Charter’s challenged actions had more than a de minimis impact on Shivers’s working conditions.^{^[7]}

And while “the language of Title VII [and the ADEA] is not limited to ‘economic’ or ‘tangible’ discrimination,” Meritor Sav. Bank, 477 U.S. at 64, evidence that Charter’s challenged actions here had an economic impact only bolsters the reasonableness of a finding that they affected the terms, conditions, or privileges of Shivers’s employment. As the district court correctly recognized, Op. 8, R.33, PgID#1520, denial of a raise is an adverse employment action. See Lulaj v. Wackenhut Corp., 512 F.3d 760, 765 (6th Cir. 2008) (favorably citing Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 791 (7th Cir. 2007)). Because Shivers’s failure to meet her ticket-resolution targets contributed to the low performance evaluation score that left her ineligible for an annual merit pay increase, a jury could find Charter compromised her pay by imposing discriminatory conditions that hindered her performance.

The district court discounted the possibility that the denial of a pay raise could contribute to a finding of actionable discrimination here because Shivers failed to “identify a similarly situated non-protected Charter employee who received a 2.3 performance score and received a … salary increase.” Op. 8, R.33, PgID#1520. But this analysis neglects the possible inference that Shivers’s low score itself derived from a confluence of various forms of disparate treatment. See Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888 (11th Cir. 2005) (holding that “an evaluation that directly disentitles an employee to a raise of any significance is [itself] an adverse employment action under Title VII”); cf. Ford v. Gen. Motors Corp., 305 F.3d 545, 554 (6th Cir. 2002) (holding jury could find more than “de minimis employment action” for purposes of a retaliation claim where there was evidence the employer increased plaintiff’s workload and “set [him] up to fail”). While a jury need not draw this inference, the fact that it could do so only highlights that a jury could reasonably find the underlying disparate treatment had more than a de minimis impact on Shivers’s employment, making summary judgment on this basis inappropriate.

II. A reasonable jury could find Charter’s challenged actions materially adverse for purposes of Shivers’s retaliation claims.

In analyzing Shivers’s retaliation claims, the district court stated that the supposedly “de minimis administrative decisions” discussed above “are not materially adverse and therefore do not support her prima facie case.” Op. 12, R.33, PgID#1524. But as this Court has observed, “the requirements for a retaliation claim are … considerably less stringent” than those for discrimination claims because the former do not include a showing that the challenged actions affected the terms, conditions, or privileges of employment. Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 569 (6th Cir. 2019). Instead, as the district court explained, a retaliation plaintiff need only show the challenged actions were “materially adverse” in the sense that they “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Op. 11, R.33, PgID#1523 (second quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

To the extent Shivers’s retaliation claims are based on the forms of disparate treatment discussed in Part I, the district court erred in holding that no reasonable jury could find they collectively satisfy this material adversity standard.[8] Because a jury could—as explained above—find Shivers’s disparate treatment with respect to training, resources, and workload sufficient in the aggregate to negatively affect employment conditions, a jury could necessarily find them sufficient to dissuade a reasonable worker from making a discrimination complaint.

And insofar as the district court held that a PIP categorically “does not meet” this material adversity standard as a matter of law, Op. 11, R.33, PgID#1523, this too was error. The district court relied for this idea on this Court’s unpublished—and nonprecedential—decision in Bacon v. Honda of Am. Mfg., Inc., 192 F. App’x 337 (6th Cir. 2006), which suggested that PIPs “do not, on their own, generally qualify as adverse employment actions,” id. at 343. But Bacon was decided less than a month after the Supreme Court clarified in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that the dissuade-a-reasonable-worker adversity standard is the proper one for retaliation claims, see id. at 68. Bacon neither cited nor applied that standard.

Since Bacon, this Court has emphasized in a published opinion that determining whether a PIP is materially adverse requires a court to consider “[t]he specifics” of the plan at issue. Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594-95 (6th Cir. 2007) (declining to decide whether a given PIP was materially adverse but noting that it “c[ame] the closest” out of several challenged actions to meeting Burlington Northern’s standard). The EEOC takes no position on whether a reasonable jury could find the PIP in this case, standing alone, to be materially adverse. But to the extent this Court finds it necessary to resolve that question, this Court should consider the particular features of the PIP at issue here and ask whether those features—when viewed in context—could have dissuaded a reasonable worker in Shivers’s shoes from raising a discrimination complaint.

CONCLUSION

For the foregoing reasons, this Court should hold that the district court erred in concluding that no reasonable jury could find Shivers’s alleged disparate treatment cumulatively sufficient to affect her terms, conditions, or privileges of employment or to dissuade a reasonable worker from complaining of discrimination.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that the foregoing brief complies with the type-volume requirements of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because it contains 4,177 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f).

This brief also complies with the typeface and type style requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word with 14-point Century Schoolbook.

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

Dated: September 1, 2022

CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing amicus curiae brief with the Court via the appellate CM/ECF system on September 1, 2022. I also certify that all counsel of record have consented to electronic service by virtue of Sixth Circuit Rule 25(c)(2)(A) and will be served the foregoing brief via the Court’s appellate CM/ECF system.

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

[1] The EEOC takes no position on any other issue in this appeal.

[2] Because this appeal arises from a grant of summary judgment in favor of appellee, the EEOC presents the facts in the light most favorable to appellant.

[3] Bliss later arranged for Shivers to have additional training with an experienced CSA after she notified his manager about her lack of training. Bliss Decl. ¶¶ 12, 19, R.25‑2, PgID#201-02; Shivers Dep. 216-17, R.25‑3, PgID#432-33. But Shivers testified that this added training generally “wasn’t helpful” because Bliss refused to let her observe the trainer at work. Shivers Dep. 193, R.25‑3, PgID#409.

[4] Bliss did assign Shivers to a special project on one occasion, but only after she had already received documented counseling due to her low ticket-resolution numbers. Shivers Dep. 222-23, R.25‑3, PgID#438-39.

[5] Shivers also raised a harassment claim and several state-law claims. Compl. ¶¶ 49, 51-62, R.1, PgID#10-13. The district court granted summary judgment for Charter on the harassment claim and certain state-law claims and dismissed the remaining state-law claims without prejudice. Op. 9, 13, R.33, PgID#1521, 1525. The EEOC takes no position on these claims.

[6] The district court acknowledged that termination qualifies as an adverse action under both the discrimination and retaliation standards, but it held that no reasonable jury could find Shivers’s termination discriminatory or retaliatory. Op. 8-9, 11-13, R.33, PgID#1520-21, 1523-25. The EEOC takes no position on these holdings.

[7] The EEOC takes no position on whether any of the challenged actions would clear this Court’s de minimis bar if considered individually. Nor does the EEOC take a position on whether a reasonable jury could find any of the challenged actions occurred because of Shivers’s race or age.

[8] The EEOC takes no position on the ultimate question of whether a reasonable jury could find actionable retaliation on this record.