Complaints of Supervisor’s Favoritism Fail to Support Discrimination and Retaliation Claims

Kenyon Clark, a male project manager, sued his former employer for sex discrimination and retaliation after he was fired for complaining that his male supervisor favored a female employee over him. However, the Tenth Circuit Court of Appeals held Clark failed to show his termination violated Title VII of the Civil Rights Act. Clark v. Cache Valley Elec. Co. (10th Cir. 2014).

The Tenth Circuit ruled that Clark’s allegations about his supervisor’s “special friendship, affinity, or relationship” with a female employee was insufficient to support a claim that he was discriminated against because he is male. The court reasoned that, at best, any perceived favoritism was based on the two employees’ personal relationship and not gender.

The court also rejected Clark’s claim that Cache Valley unlawfully retaliated against him for complaining about his supervisor’s allegedly inappropriate relationship and rumors of an affair by firing him. To prove retaliation, an employee must show, at a minimum, that “he had a reasonable good-faith belief that he was engaged in protected activity when he complained about the alleged gender discrimination.” This “reasonable good-faith belief” must include both a subjective and objective belief, i.e., that his good-faith belief was “objectively reasonable in light of the facts.” Although Clark complained about retaliation, he did not point to any objective facts that his complaints were in opposition to any unlawful employment practice on Cache Valley’s part. Because Clark’s supervisor’s alleged favoritism toward a paramour or special friend, standing alone, is lawful, firing an employee for complaining about that conduct was not enough to support a claim of unlawful retaliation.

This decision turned on specific facts. Normally, HR professionals receiving complaints about alleged discriminatory or retaliatory conduct should speak with counsel before deciding whether an employee’s complaints are protected.