NOT RECOMMENDED FOR PUBLICATION File Name: 22a0313n.06
No. 21-1739
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 02, 2022 DEBORAH S. HUNT, Clerk TERRANCE BAR, ) ) Plaintiff-Appellant, ON APPEAL FROM THE ) UNITED STATES DISTRICT ) v. COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN ) KALITTA CHARTERS II, LLC, ) Defendant-Appellee. OPINION ) ) )
Before: WHITE, BUSH, and READLER, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Terrance Bar appeals the
dismissal of his complaint alleging a hostile work environment under Title VII of the Civil Rights
Act of 1964 based on sexual harassment and retaliation for opposing that harassment. He argues
that the district court improperly required him to make out a prima facie case for his hostile-work-
environment claim on a motion to dismiss and that, in any case, he made the required showing,
and did so for his retaliation claim as well. We AFFIRM in part, REVERSE in part, and
REMAND for further proceedings.
I.
Bar was employed as a pilot by Defendant-Appellee Kalitta Charters II, LLC (“Kalitta”),
an “on demand” charter airline company, R.23, PID 156, until his employment was terminated on
August 21, 2020. Bar alleges that in December 2019, Check Airman1 Greg DeBourge “made
1 A check airman is “a person who is qualified to conduct flight checks in an aircraft, in a flight simulator, or in a flight training device for a particular type aircraft.” 14 C.F.R. § 135.337(a)(1). No. 21-1739, Bar v. Kalitta Charters II, LLC
dist[ur]bing and intimidating comments on [a] soc[i]al media platform.” R.17, PID 107. He
further alleges that on February 20, 2020, DeBourge made “a disturbing sexual suggestive
simulation act” during a meeting at a hotel in Miami, Florida, at which Bar and two female
colleagues were present. Id. The next day, while Bar was participating in a flight simulator
training session, DeBourge “showed my Simulator Partner Brandon Kearns and I . . . a homosexual
pornographic video on his cell phone.” Id.
Bar alleges that after DeBourge showed him the video, he was unable to continue the
training session and left the facility. He first called the Director of Training, Darrell Coleman, to
complain about what had just happened, but Coleman did not pick up, so Bar “left him a voice
message to please return my call.” Id. Bar next called Chief Pilot Mike Geadtke and explained to
him what had happened. Geadtke informed Bar that he was just across the street and that he would
speak to him shortly. When Geadtke arrived at the training facility, Bar again explained what
DeBourge had done. Bar alleges that Geadtke “could see how visibly upset [he] was,” gave him
his car keys, and told him to go back to his hotel room. Id. These allegations form the basis of
Bar’s claim alleging a hostile work environment based on sexual harassment.
Bar also alleges that Kalitta retaliated against him for reporting the incident involving
DeBourge. For example, Kalitta began requiring him to report to the Cincinnati/Northern
Kentucky International Airport, which is a four-hour drive from his house, despite the fact that
since March 2018, he had been working out of the Willow Run Airport in Ypsilanti, Michigan,
which is a forty-four minute drive. Bar also contends that when he was scheduled to fly, he would
typically fly out of Cincinnati to a different city, stay at a hotel for the day, and then fly back to
Cincinnati at night. He would then sleep on a reclining chair in the crew room at the Cincinnati
airport and perform the same routine the next morning. Bar alleges that Kalitta paid for some
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captains to stay in hotels but did not do the same for him. Bar further alleges that when he was
scheduled to fly, he would, on occasion, arrive at the airport only to discover “there was no aircraft
or captain for me.” Id., PID 110.
Bar contends that Kalitta’s acts of retaliation did not stop there. On June 5, 2020, he was
flying with Captain Buchanan out of the Rochester Airport in New York when the aircraft
experienced a malfunction during takeoff and veered off the runway. Bar alleges that although he
was “performing [his] duties as trained,” Buchanan “did not perform the standard operating
procedures.” Id. After this incident, both pilots were put through retraining. Buchanan failed his
simulator check ride and was demoted to First Officer and assigned to fly with a regular line pilot.
Bar, on the other hand, passed his simulator check ride and “was put through Recurrent Training
with three different Check Airmen.” Id. Bar alleges that after the last check ride, a check airman
named Rob Numbers “used pretext on a[n] [i]nstructor comment form,” after which Bar was called
into the Chief Pilot’s office and fired. Id. Finally, Barr alleges that Kalitta then denied his request
for unemployment benefits “due to [g]ross [m]isconduct,” but that the Michigan Unemployment
Insurance Agency later awarded him unemployment benefits “due to [a] lack of evidence.” Id.,
PID 107.
After his employment was terminated, Bar, acting pro se, filed the instant complaint2
asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17,
for hostile work environment based on sexual harassment and for retaliation. Kalitta moved to
dismiss the complaint, arguing that Bar failed to allege sufficient facts to state a plausible claim
for relief. The district court granted the motion and this appeal followed. After briefing in this
2 Bar filed his original pro se complaint in June 2021, which Kalitta moved to dismiss. Bar then filed an amended pro se complaint—the operative complaint—in August 2021. We refer to the operative complaint as “the complaint.”
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matter was complete, we asked the parties for supplemental briefing on the question whether Bar
alleged sufficient factual content regarding employer liability for the hostile-work-environment
claim to survive a motion to dismiss.
II.
“We review a district court’s order granting a Rule 12(b)(6) motion to dismiss for failure
to state a claim de novo.” Golf Vill. N., LLC v. City of Powell, 14 F.4th 611, 617 (6th Cir. 2021).
“We construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded
factual allegations as true, and examine whether the complaint contains sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Nolan v. Detroit Edison
Co., 991 F.3d 697, 707 (6th Cir. 2021) (internal quotation marks omitted). Rule 8(a)(2) of the
Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Nevertheless, “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To avoid dismissal for
failure to state a claim, a plaintiff must plead sufficient “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
We hold pro se pleadings to “less stringent standards than formal pleadings drafted by
lawyers” and construe them liberally. Luis v. Zang, 833 F.3d 619, 626 (6th Cir. 2016) (quoting
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)). But “basic pleading essentials” still apply,
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), and we have no duty to “create a claim which
[the pro se plaintiff] has not spelled out in his pleading.” Clark v. Nat’l Travelers Life Ins. Co.,
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518 F.2d 1167, 1169 (6th Cir. 1975) (per curiam) (quoting Case v. State Farm Mut. Auto. Ins. Co.,
294 F.2d 676, 678 (5th Cir. 1961)).
A.
Bar first argues that the district court erred in dismissing his hostile-work-environment
claim because it improperly required him to establish a prima facie case. He contends that his
complaint provides adequate notice of his claim and that, in any event, he has made a prima facie
showing.
Title VII provides that “[i]t shall be an unlawful employment practice for an employer . . .
to discriminate against any individual . . . because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. 2000e-2(a)(1); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). This prohibition “includes requiring people to work in a discriminatorily hostile or abusive
environment.” Harris, 510 U.S. at 21 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986). “[D]iscrimination based on sex” that “create[s] a hostile or abusive work environment” is
actionable under Title VII. Meritor, 477 U.S. at 66. And “Title VII covers hostile work
environment claims based on same-sex harassment.” Vickers v. Fairfield Med. Ctr., 453 F.3d 757,
765 (6th Cir. 2006) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)).
“[E]mployers are not automatically liable for sexual harassment perpetrated by their employees.”
Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009) (quoting Petrosino
v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004)). “In the case of a harassing supervisor, the employer
is vicariously liable for the hostile work environment.” Doe v. City of Detroit, 3 F.4th 294, 301
(6th Cir. 2021). “But when committed by a coworker, the employer is liable only ‘if it knew or
should have known of the charged sexual harassment and failed to implement prompt and
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appropriate corrective action.’” Id. (quoting Clark v. United Parcel Serv., Inc., 400 F.3d 341, 348
(6th Cir. 2005)).
A Title VII plaintiff need not make a prima facie showing to survive a motion to dismiss.
In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court held that “it is not
appropriate to require a plaintiff to plead facts establishing a prima facie case because the
McDonnell Douglas [burden-shifting] framework does not apply in every employment
discrimination case.” Id. at 511 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
The Court reasoned that a plaintiff may, in some cases, uncover direct evidence of discrimination,
obviating the need to establish a prima facie case. Id. The Court further explained, “it may be
difficult to define the precise formulation of the required prima facie case in a particular case”
before “discovery has unearthed relevant facts and evidence.” Id. at 512.
Swierkiewicz’s holding remains good law after the Supreme Court’s decisions in Twombly
and Iqbal, see Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012), and a complaint “satisfies
the pleading requirements of [Rule] 8(a)(2)” so long as it “provides an adequate factual basis for
a Title VII discrimination claim.” Serrano v. Cintas Corp., 699 F.3d 884, 897 (6th Cir. 2012).
“[D]etailed factual allegations” are not necessary; a plaintiff need only “allege sufficient ‘factual
content’ from which a court, informed by its ‘judicial experience and common sense,’ could ‘draw
the reasonable inference’” that an employer violated Title VII. Keys, 684 F.3d at 610 (quoting
Iqbal, 556 U.S. at 678, 679).
The district court acknowledged that Bar was not required to make out a prima facie case
of a hostile work environment at the pleadings stage, but found that dismissal of the complaint was
warranted nevertheless. Although it had “no doubt” that Bar found DeBourge’s conduct
subjectively offensive, the district court determined that the three, “vaguely allege[d]” incidents of
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harassment “fall far short of the objectively severe or pervasive conduct” necessary to state a
hostile-work-environment claim. R.23, PID 168–70. Because we conclude that Bar’s hostile-
work-environment claim is deficient for a different reason, we need not decide whether the district
court’s reasoning was correct. See Golf Vill. N., 14 F.4th at 617 (noting that we may affirm a Rule
12(b)(6) dismissal “on any ground supported by the record, even if not relied upon by the district
court.”).
Bar’s claim falls short because he failed to allege sufficient facts establishing that Kalitta
is liable as an employer for DeBourge’s conduct. He asserts that under a liberal reading of his
complaint, he adequately alleged that DeBourge was his supervisor because he alleged that
DeBourge was a check airman and that one of the incidents of harassment occurred while he was
in a flight simulator training session conducted by DeBourge. We disagree. “[A]n employee is a
‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the
employer to take tangible employment actions against the victim.” Vance v. Ball State Univ., 570
U.S. 421, 424 (2013). Tangible employment actions are those that result in a “significant change
in employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Id. at 431
(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The fact that a check airman
is someone who “is qualified to conduct flight checks in an aircraft, in a flight simulator, or in a
flight training device for a particular type aircraft,” 14 C.F.R. § 135.337(a)(1), tells us nothing
about that person’s ability to hire, fire, or otherwise take tangible employment actions against
another employee.
Similarly, that DeBourge was training Bar during one of the alleged incidents of
harassment does not support an inference that DeBourge was acting in a supervisory role or that
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he “had Mr. Bar’s entire career in his hands.” Appellant Supp. Br. at 5. Indeed, Bar’s allegation
that he was fired after being called into the Chief Pilot’s office some months later suggests that
supervisory authority over Bar was with employees other than DeBourge and those of similar rank.
To the extent Bar’s allegation regarding Check Airman Rob Numbers’s purportedly pretextual
evaluation could be read to imply that check airmen have authority to cause tangible employment
consequences to pilots such as Bar, we reiterate that an employee is not a supervisor unless he is
“empowered by the employer to take tangible employment actions against the victim.” Vance,
570 U.S. at 424. There is no indication that DeBourge specifically had that authority over Bar
here. And the mere fact that he might have been empowered “to conduct performance evaluations
does not turn [DeBourge] into [Bar’s] supervisor.” E.E.O.C. v. AutoZone, Inc., 692 F. App’x 280,
283–84 (6th Cir. 2017) (per curiam).
With vicarious liability off the table, Kalitta may only be found liable for DeBourge’s
conduct “if it knew or should have known of the charged sexual harassment and failed to
implement prompt and appropriate corrective action.” City of Detroit, 3 F.4th at 301 (quoting
Clark, 400 F.3d at 348). Under the coworker theory of liability, an employer is liable if its
“response to a coworker’s harassment . . . ‘manifests indifference or unreasonableness in light of
the facts the employer knew or should have known.’” Id. (quoting Hawkins v. Anheuser-Busch,
Inc., 517 F.3d 321, 338 (6th Cir. 2008)) (alteration omitted). Here, although Bar adequately
alleged that Kalitta knew or should have known about the charged harassment because he reported
the pornography incident to Chief Pilot Geadtke, his complaint provides no basis to conclude that
Kalitta “failed to implement prompt and appropriate corrective action.” Id. Bar alleges only the
three incidents of sexual harassment—the social-media comments, sexually suggestive simulation
act, and pornography—all preceding his complaint to Geadtke. The complaint does not describe
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any further misconduct by DeBourge, and it appears from the complaint that after Bar reported the
pornography incident to Geadtke, the alleged harassment stopped altogether.
Because Bar’s complaint does not support an “inference that [Kalitta] is liable for the
misconduct alleged,” Iqbal, 556 U.S. at 678, the district court did not err in dismissing Bar’s
hostile-work-environment claim.
B.
Next, Bar argues that the district court erred in dismissing his Title VII retaliation claim
because he established a prima facie case of retaliation. Because the district court applied the
wrong framework in assessing the sufficiency of Bar’s complaint, we reverse.
In dismissing Bar’s retaliation claim, the district court required Bar to allege the prima
facie elements of a retaliation claim under the McDonnell Douglas burden-shifting framework,
specifically that: “(1) he engaged in Title VII protected activity; (2) the employer knew that he
engaged in that protected activity; (3) the employer subsequently took an adverse employment
action against him; and (4) the adverse action was causally connected to the protected activity.”
R.23, PID 175 (citing Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013)). The district court
ultimately concluded that Bar failed to state a claim because he did not adequately allege that he
engaged in protected activity, and because there was an insufficient causal connection between his
complaint about the pornography incident—the only incident for which he allegedly made a
complaint—and the termination of his employment. Specifically, the district court held that Bar
did not sufficiently allege that he engaged in protected activity because he could not have had a
“reasonable, good faith belief” that the incident involving the pornographic video constituted
unlawful sexual harassment. Id., PID 177. The district court further found that the only alleged
incident of retaliation that constituted an adverse employment action was Bar’s termination. In the
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district court’s view, Bar’s termination lacked a sufficient causal connection to his complaint about
the pornographic video because Bar himself alleged that he was terminated because Check Airman
Rob Numbers made a comment on the instructor form after one of Bar’s recurrent training sessions.
The district court also concluded that the temporal proximity of the two events was not “significant
enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie
case of retaliation.” Id., PID 185.
But as the district court correctly noted earlier in its opinion, the McDonnell Douglas
framework is “an evidentiary standard, not a pleading requirement,” and the “ordinary rules for
assessing the sufficiency of a complaint apply” on a motion to dismiss. Swierkiewicz, 534 U.S. at
510–11. By requiring Bar to establish a prima facie case of retaliation, “the district court required
[Bar] to allege too much at the pleading stage.” Primm v. Dep’t of Hum. Servs., No. 16-6837,
2017 WL 10646487, at *2 (6th Cir. Aug. 17, 2017) (order). Instead, all that was required was that
Bar provide an “adequate factual basis” for his retaliation claim. See Serrano, 699 F.3d at 897.
Bar did so here.
“Title VII’s antiretaliation provision forbids employer actions that ‘discriminate against’
an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids or has
‘made a charge, testified, assisted, or participated in’ a Title VII ‘investigation, proceeding, or
hearing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C.
§ 2000e-3(a)). Title VII’s “opposition clause” protects “complaints to management and less
formal protests of discriminatory employment actions.” E.E.O.C. v. New Breed Logistics,
783 F.3d 1057, 1067 (6th Cir. 2015) (quoting Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th
Cir. 2014)).
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Bar alleges that after DeBourge made him watch the pornographic video, he contacted
Chief Pilot Mike Geadtke “and explained to him what just happened.” R.17, PID 107. He further
alleges that after he reported the incident, Kalitta engaged in the following acts of retaliation: (1)
requiring him to report to a duty station four hours away from his house, when his previous one
was only forty-four minutes away; (2) causing him to sleep on a reclining chair in the crew room
at the airport between shifts instead of paying for a hotel room, as it did for some pilots; (3)
scheduling him to fly when no aircraft or co-pilot was available; (4) terminating him after Check
Airman Rob Numbers made pretextual statements on an instructor comment form; and (5) denying
his unemployment benefits due to alleged “[g]ross [m]isconduct.” R.17, PID 107.
These allegations provide “sufficient factual content” from which this court, informed by
our “judicial experience and common sense, could draw the reasonable inference” that Kalitta
retaliated against Bar for complaining about DeBourge’s conduct. See Keys, 684 F.3d at 610
(internal quotation marks omitted). And the acts alleged were sufficiently severe that they “might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern, 548 U.S. at 68 (internal quotation marks omitted). Accordingly, we reverse
the dismissal of Bar’s retaliation claim.
III.
For the reasons set forth above, we AFFIRM in part, REVERSE in part, and REMAND
for further proceedings.
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