Sixth Circuit Affirms Employer's Summary Judgment in Discrimination and Retaliation Case Where Plaintiff Had No Evidence of Pretext

 Two weeks ago, the Sixth Circuit affirmed an employer’s summary judgment on a supervisor’s claim that he had been demoted and his position had been eliminated on account of his European race and prior complaints of discrimination.  Browning v. Franklin Precision Industry, Inc. No., 23-5406 (6th Cir. Dec. 5, 2023).   The Court found that he could not prove that the employer’s explanation was pretextual because he had admitted that his was not the only position eliminated, that he had failed to comply with certain policies, that he had been counselled about prior conduct and had been demoted prior to his position being eliminated.  It also did not help that he had no documentation to prove that he had engaged in protected protestations of unlawful discrimination before he filed a Charge of Discrimination following his demotion. 

According to the Court, the plaintiff alleged that the Japanese employees of his employer made inappropriate jokes about his weight and European heritage and racist comments about African-American employees.  He also alleged that he had reported to HR multiple times about the refusal of management to permit him to promote African-American employees.  However, there was no documentation of any such complaints.   Prior to his alleged mistreatment, a female temporary worker complained that he made her uncomfortable when, for instance, he invited her to dinner alone to thank her for her work.  Although he denied he had acted inappropriately and he claimed that HR found no merit in her complaints, he was suspended for three days.  He was also counseled for leaving work prior to when a manufacturing defect had been remedied for a major customer.  He also admittedly refused to clock in an out pursuant to a new policy.  He was offered a demotion, which he ultimately accepted, but filed a Charge of Discrimination a few weeks later.  A few months after that, most employees were furloughed with the COVID pandemic.  Although the company eventually began to recall employees to work, it was determined that it would be more cost effective to outsource some positions, including that of the plaintiff.  He filed suit alleging discrimination and retaliation.    The trial court dismissed the claims on summary judgment. 

The court agreed that he could not show a prima facie case of retaliation or discrimination.  Although he engaged in protected activity by complaining about discriminatory comments, he could not show that his complaints motivated his demotion, furlough or ultimate termination because there was no evidence that any of the decisionmakers knew about his protected conduct:

However, as the district court found, [he] failed to present credible evidence that decisionmakers at FPI were aware of his complaints, or that his protected activities led to his demotion and termination.  . . .  Stated differently, [he] failed to establish that the protected activity and adverse employment action were causally connected.

Even if the plaintiff had complained to the decisionmakers, he could not show that their justification for the employment actions was pretext for unlawful discrimination or retaliation: “FPI provided legitimate reasons for its adverse employment decisions. The company maintains that it demoted [him] because he behaved inappropriately toward a temporary worker, failed to comply with timekeeping policies, and exhibited poor leadership skills.”

He does not dispute that he routinely failed to comply with company timekeeping policies and, on one occasion, left members of his team to handle a production crisis. Instead, [he] contends that his less-than-exemplary record did not justify the company’s decision to demote him. But as the district court correctly held, [he] cannot prove pretext by arguing that he thinks FPI made the wrong choice. . . . Instead, [he] was required to show that FPI’s “reasons [were] false [and] that retaliation was the real reason for the adverse action.” . . .

Moreover, [he] presented no evidence at the summary judgment stage or on appeal to rebut FPI’s stated reasons for his furlough and termination. To the contrary, [he] concedes that he was not the only person in his department who was furloughed, or whose position was eliminated to save costs in the aftermath of the COVID-19 pandemic.

                . . ..

[He] failed to establish that unlawful discrimination motivated FPI’s decision to demote, furlough, and fire him.  . . .  As explained above, it is undisputed that [he] regularly failed to clock in and out, and that he left his team after a major production issue. His argument that those errors did not warrant demoting him are insufficient to establish pretext. And [he] did not provide any evidence suggesting that FPI used the COVID-19 pandemic as a cover-up for discrimination when it furloughed and fired him.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Temporal Proximity and Informality of Performance Coaching Is Insufficient to Show Pretext for Termination

Earlier this month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an Emergency Paid Sick Leave Act of 2020 retaliation claim where the employee was fired before she returned from the emergency COVID leave.   Kovacevic v. American Int’l Foods, No. 22-1675 (6^th Cir. 6-1-23).  Despite the temporal proximity between her protected conduct and her termination, the employee could not show pretext when the employer had repeatedly counselled her about her constant mistakes since when she had been hired 11 months earlier and had begun recruiting and interviewing replacement candidates before she called off sick.  The final straw had been finding many more undisclosed performance problems while the employee was on leave.  Ten other employees – over 25% of the workforce -- had taken COVID emergency leave and not been fired before or after returning to work. While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”  Pretext could also not be shown by the informality of her frequent coaching.

According to the Court’s opinion, the plaintiff employee was hired as an accounts payable specialist in January 2020.  While she was always exceedingly pleasant, she never mastered her job duties.  Some vendors went unpaid for months.  Some were overpaid or paid early.  She could not find basic accounting records, like invoices.  Because of her mistakes, checks needed to be re-run several times each week.  She thought that these mistakes were a “little things.”  Since she was hired, voided checks increased 952%.  In August, her boss told HR that he wanted to replace her and confidential advertisements were placed in October.  An interview was scheduled for November 10. 

On November 15, the plaintiff called off sick for COVID and wanted to remain off work until after Thanksgiving.  Her boss took over her duties in her absence and discovered over 95 blanks checks out of sequence that had been forgotten, 70 past due invoices, over $100K in vendor credits that had not been applied, and $2.5M active invoices that had not been organized or alphabetized.   He telephoned her on November 24 to inform her that her employment was being terminated (despite having not yet hired a replacement).   She filed suit.

Assuming that she could show a prima facie case of retaliation, the Court focused on whether she could show that the explanation for her termination – her ongoing poor performance – was pretextual and just a disguise for unlawful retaliation.  She argued that her poor performance did not actually motivate her termination.

While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”

While it was suspicious that she was fired while still on COVID emergency leave, the Court found no reasonable jury could find the timing suspicious when her documented performance issues were legion, recruitment had been underway before she called off sick and numerous and serious performance issues were discovered after she called off sick.

The Court also rejected her argument about shifting justification.  She claimed that just before she was fired, HR had mentioned that they had not yet decided what to do with employees returning with COVID.  However, she also claimed that her sole basis for believing that her performance was satisfactory was that HR also told her that she had a very positive disposition.  Granted, “when an employer expresses disapproval of an employee’s work performance only after the firing, there can be a genuine dispute of material fact about whether the employer’s reason for terminating the employee was pretextual.”  But in this case, the statement about returning employees was not evidence of retaliation when the Company had welcomed back more than 25% of its workforce from COVID sick leave.  Further, the HR employee was not the individual with personal knowledge of her work performance and there was no legitimate dispute that her supervisor was unhappy with her work performance.

The Court also rejected her argument that the supervisor had fabricated the justification for her termination by not informing HR of them before she was fired:

Nor can she show that [her supervisor’s] discoveries during her absence were fabricated justifications for terminating her. [Her] evidence of fabrication is that [he] did not document each incident or mention these issues to [HR] before she took COVID leave. Based on this, [she] argues that a reasonable jury could have found that [he] merely claimed to find evidence of poor performance while filling in for her in order to justify firing her for taking COVID leave.

[Her] argument fails here. [His] emails to [her] addressing her errors throughout her employment are contemporaneous documentation of her poor work performance. And even if [he] had not emailed [her] on each of these occasions, failure to document contemporaneously does not necessarily give rise to an inference of pretext.

The Court also rejected the plaintiff’s argument that her alleged poor performance was merely pretextual when she was not given formal performance warnings and progressive disciplinary policies were not followed and because she was not given the required performance evaluations from her offer letter and the employee handbook.  Unlike some employee handbooks which provide that progressive discipline will generally be followed, this employee handbook merely stated that it was an option when appropriate.

She alleges that [the company] failed to follow the procedure for progressive discipline outlined in the Handbook because [her supervisor] never explicitly referred to his criticisms of her work as “warnings.” True, where an employee handbook establishes a general practice of counseling employees before terminating them, a company’s failure to follow that practice may be evidence of pretext.

             . . . . . In any event, [her supervisor] repeatedly brought his concerns with [her] work performance to her attention, remarking on at least one occasion that her “errors” could not “continue to happen.” . . . So the fact that [he] did not formally tell [her] that he was warning her within the terms of the company’s progressive discipline policy simply does not demonstrate pretext.

 . . . True, an “employer’s failure to follow a policy that is related to termination or demotion can constitute relevant evidence of pretext,” . . . But even if [the company] did not strictly follow its review policies, [she] was certainly on notice that her performance was causing issues and had the opportunity to correct those problems. [Her supervisor] regularly notified [her] of problems with her performance, both via email and in person. And she still did not adjust her work performance. So [his] efforts—accomplishing the corrective objective that an annual review would—combat any finding of pretext.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

To Succeed, Plaintiffs Need Comparative Evidence and Not Just Subjective Opinions

Earlier this month, the Sixth Circuit affirmed an employer’s summary judgment on an employee’s claims for FMLA retaliation, disability discrimination, sexual harassment and unequal pay.   Santiago v. Meyer Tool, Inc. No. 22-3800 (6^th Cir. 6/8/23).   The Court ultimately found that the plaintiff failed to identify any employees who were both similarly situated and treated differently because she had significant attendance and performance issues, unlike employees who only had one or the other.  It also found that she could not show FMLA retaliation when she was given her requested FMLA leave, failed to mention FMLA leave when calling off during the attendance infractions and never claimed when given the pre-litigation opportunity that her absences were covered by the FMLA.  She also did not provide sufficient comparative evidence – about skills, responsibility, effort, etc.,  to show that she was paid less on account of her gender merely because other men were paid more.  Finally, the Court found her sexual harassment EEOC Charge was filed 58 days too late and could not relate back to her original timely ADA Charge when she never indicated any continuing violations and had focused only on the date of her termination.

According to the Court’s opinion, the plaintiff was fired in 2017 as a machinist after 19 years of employment.  She had informed the Company of her HIV diagnosis in 2015 and was given intermitted FMLA leave to seek medical treatment, etc. in 2016 and 2017.  Nonetheless, both before and after her HIV diagnosis, she was frequently disciplined for excessive absenteeism, including a suspension a month before her termination.  Prior to the litigation, she never claimed that her attendance infractions were covered by her FMLA entitlement, even when given the opportunity on the disciplinary action form to protest the disciplinary action.  She also was occasionally disciplined for poor performance for creating deviated parts (that did not meet the customer’s specifications).  Her last such incident was on May 17, when she created 4 deviated parts that were ultimately rejected by the customer after her termination.   In contract, she had similarly created deviated parts in February 2017 without disciplinary action.  She was fired in July 2017 after her suspension for poor attendance and creating the deviated parts on May 17.

She filed an EEOC Charge in October 2017 alleging that non-disabled employees had also created deviated parts and not been fired.   In July 2018 – 358 days after her termination – she filed a second EEOC Charge alleging that her supervisor sexually harassed her for years and that she was paid less than other male machinists.  After filing suit, the trial court granted summary judgment to the employer, which was affirmed on appeal.

The Court found that the employer articulated a legitimate and non-discriminatory reason for her termination on account of her poor work performance and chronically poor attendance.  She failed to produce evidence disputing that she created four deviated parts on May 17, even if her performance at other times had been satisfactory.  She also failed to produce evidence that her attendance had been satisfactory or that she had complied with the employer’s call-off policies.   She could not simply rely on her own opinion to satisfy her burden of proof.

The Court also rejected her evidence of pretext based on statistics showing that all machinists who took FMLA leave between 2014 and 2017 were eventually terminated.  While that might be sufficient evidence to satisfy a prima facie case, it was insufficient without additional circumstantial evidence to show pretext or that discrimination/retaliation more likely than not motivated the decision in her case when it was rebutted by evidence showing the basis for the termination decision in this case – i.e., that she created four deviated parts and had repeatedly violated the attendance policy.  “Her statistical evidence, standing alone, is not so significant to indicate that her termination was more likely than not retaliation for her FMLA leave, particularly in light of her documented disciplinary history.”

The plaintiff also could not “show by a preponderance of the evidence that ‘other employees, particularly employees not in the protected class, were not fired even though they were engaged in substantially identical conduct to that which the employer contends motivated its discharge.’”  None of the other employees to whom she vaguely referred had both performance and attendance issues.  “First, she points to no employee with a disciplinary record that demonstrates the employee engaged in “substantially identical conduct” to her own.” One employee had been suspended for three days because of deviated parts, but had no attendance or other misconduct issues.  While the plaintiff asserted that there were nine other employees with more egregious performance issues, she failed to identify them or explain how their situations were comparable to hers.   Finally, while she was not personally aware of any other employees being terminated for poor performance, the employer had produced records showing that it had previously fired employees for creating too many deviated parts.

The Court also rejected her wage discrimination claim.  She produced evidence that male employees were paid more on average than female machinists.  She also showed that male employees with similar tenure to her – and some that she trained --  were given larger raises than her year after year.  However, she failed to produce any evidence of their respective skills, experience, responsibility, effort or job titles so that an effective comparison could be made to her.

The Court also rejected her sexual harassment claim as being filed too late with the EEOC and too unrelated to her timely ADA charge regarding her termination.  Charges must be filed within 300 days.  She did not indicate any continuing violations in her original, timely charge, but rather focused only on her termination date.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Pregnancy and FMLA Claims and Cat's Paw Theory and Evidence of Alleged Pattern and Practice Discrimination to Show Pretext Despite Temporal Proximity Evidence

Last week, the Sixth Circuit affirmed an employer’s summary judgment on claims of pregnancy discrimination and FMLA interference and retaliation after the plaintiff had been fired in a RIF just 10 days after she disclosed her pregnancy to her new supervisor and a couple of HR employees.  Johnson v. Evolent Health, LLC., No. 22-5574 (6^th Cir. 3/2/23).  The Court agreed that there was no evidence showing that anyone who had been involved in the RIF and decision to terminate her employment knew that she was pregnant.  While temporal proximity is often enough to show causation, “the individuals who decided to terminate [the plaintiff] must still have ‘had actual knowledge of her pregnancy at the time that the adverse employment action was taken’ for a nexus to exist.  “Because [the plaintiff] failed to show that any individual who participated in the RIF process knew she was pregnant at the time of her termination, and because she cannot show that any employee who was aware of her pregnancy showed any animus towards her or influenced the decisions of decision makers [under a cat’s paw theory], she has not established a prima facie case of pregnancy discrimination.” The Court also rejected evidence of alleged pattern and practice discrimination to show pretext because it does not evaluate individual employment decisions.   The Court rejected her FMLA claims on the same grounds.

According to the Court’s opinion, the plaintiff was hired in 2018 and had received only “below expectations” on her first two annual performance evaluations and was about to be placed on a Performance Improvement Plan.  Instead, the company decided to eliminate her department and offered her a transfer to a new team, which she accepted, sometime in 2020.  Her new supervisor reached out to her on February 10, 2020 to let her know that the reorganization would take place in a few weeks.  Meanwhile, on February 5, the Company identified the plaintiff and 67 other employees with poor performance evaluations for a reduction in force.  After analyzing which employees would have the least impact, 33 of them (including the plaintiff) were selected for the RIF on or about February 20.  All of these discussions were held among individuals who did not supervisor or manage the plaintiff.  Rather, her former supervisor was not informed until February 20 and was instructed that he would be the person to inform plaintiff since the reorganization had not yet been completed.  However, a few days earlier – on February 14 – the plaintiff had requested two days off from her new supervisor for doctor’s appointments because she had discovered that she was pregnant with twins.  The supervisor directed the plaintiff to contact Human Resources, but did not tell anyone else about the pregnancy.   The plaintiff then contacted the benefits department, which asked a few questions and put her on a tracking spreadsheet for pregnant employees.  On February 24, different Human Resources employees informed the plaintiff that her role was being eliminated and her employment terminated.  She protested that she had just been transferred and explained that she was pregnant.   No one else performing her duties was hired until the following year.  The plaintiff then filed suit for pregnancy discrimination and FMLA interference and retaliation.

The Court closely examined who had been involved in the RIF and termination decision (which had been finalized on February 21) and who had been informed of the plaintiff’s pregnancy on February 14.  It agreed that there was no evidence that anyone involved in the RIF decisions had been informed of the plaintiff’s pregnancy.  Rather, the plaintiff had only informed three people and none of those people share that information with anyone else, let alone anyone who was involved in the RIF decisions. 

Temporal proximity between the announcement of an employee’s pregnancy and that employee’s termination can sufficiently establish a nexus between the events. . . . . Even so, the individuals who decided to terminate [the plaintiff] must still have “had actual knowledge of her pregnancy at the time that the adverse employment action was taken” for a nexus to exist.

The Court rejected the plaintiff’s argument that other HR employees had access to the shared email box or tracking spreadsheet because they denied ever reviewing the information or learning about her pregnancy before her lawsuit.   The plaintiff could only speculate that other HR employees had actual knowledge and no actual evidence.

The Court also rejected the cat’s paw theory because she did not allege – let alone prove – that the individuals with knowledge of her pregnancy had any discriminatory animus whicvh they then used to influence others into taking discriminatory actions.

“In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” . . . . But the “predicate to cat’s paw” is a demonstration of discriminatory animus: that “by relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of the supervisor's prejudice––his cat's paw.’”  . . . [The plaintiff] does not allege that any subordinate employee, aware of her pregnancy or not, showed any discriminatory animus towards [her].

In any event, the plaintiff also could not show that the employer’s explanation for her termination was pretext for discrimination.   The plaintiff attempted to challenge the termination decision – based on her documented poor performance – because ultimately only half of the employee initially selected on February 6 were actually terminated and no extra supporting comments were offered to support her termination.  However, it was undisputed that she had poor performance scores and she was not the only terminated employee without extra supporting comments. 

The Court also rejected her argument that the employer’s explanation had shifted from position elimination to poor performance.  However, the Court did not find it inconsistent to find that her position had been selected for elimination based on her poor performance.   While the termination script never mentioned her poor performance, it never gave any explanation for how or why she had been selected for termination.

The Court also rejected the plaintiff’s argument that pretext was shown because approximately 10% of pregnant employees were terminated by the Company.

pattern or practice evidence is unavailable to assess an individual plaintiff’s discrimination claim.  . . . Pattern-or-practice evidence is generally “inappropriate as a vehicle for proving discrimination in an individual case” because it does not evaluate individual hiring decisions. . . . It can support, however, an “otherwise-viable individual claim for disparate treatment under the McDonnell Douglas framework,” although a plaintiff must still satisfy the McDonnell Douglas framework to prevail. Id. [The plaintiff] is unable to separately satisfy the McDonnell Douglas framework. Thus, this evidence does not raise a triable issue of fact nor does it allow [her] claims to survive summary judgment.

Similarly, the Court again rejected the temporal proximity of her pregnancy announcement and the termination decision as evidence of pretext:

The temporal proximity of [her] disclosure of her pregnancy and her termination may be indirect evidence of pretext but cannot alone support pretext here. . . . . Even when the timing appears “suspect,” it “must be accompanied by other, independent evidence of pretext for [the plaintiff] to succeed.”

The Court likewise rejected her FMLA arguments because she could not show pretext for the employer’s decision for the reasons discussed above and because at least one other employee had been terminated without requesting FMLA leave.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Plaintiff's Discrimination Claims Because Honest Belief Rule, Employee Handbook Rules and Vague Allegations Prevented Showing of Pretext

Yesterday, as I was participating in a webinar on the Honest Belief Rule, the Sixth Circuit affirmed an employer’s summary judgment in part because of – you guessed it – the Honest Belief Rule.  Okakpu-Mbah v. Postmaster, No. 21-2811 (6^th Cir. 2022).  The plaintiff had been fired at the conclusion of her 90-day probationary period for not working fast enough in sorting the mail.   The Court agreed that she could not show that the employer’s explanation was pretextual in light of documents showing that her efficiency had previously been rated as unacceptable, that she did not improve and, according to all of the other supervisors, was still working too slow by the time of her 80-day evaluation.  The Court also refused to find pretext from the use of a subjective standard for efficiency because there was no evidence that the employer had manipulated or abused the standard to single her out. It also refused to compare her to co-workers whose performance deficiencies were different and improved over time.  

According to the Court’s opinion, mail sorters receive 30, 60 and 80 day evaluations during their 90-day probationary period.  The Employee Handbook states that they will be separated during orientation as soon as it becomes evident that they are unable to meet the requirements of the position.  The plaintiff received a satisfactory 30-day probationary evaluation, except that her productivity was rated unacceptable. She denied receiving a 60-day evaluation (which was disputed).  However, as her 80-day evaluation approached, her supervisor reached out to other supervisors for their opinion.  One emailed that the plaintiff was very slow, did not grasp the concept, demonstrated no sense of urgency and sometimes had to be reassigned to a different task.  The local postmaster recommended that she be terminated.  She was terminated following her 80-day evaluation for inefficiency and brought suit alleging age, race and national origin discrimination and retaliation.  The district court granted the employer summary judgment.

The Court rejected the plaintiff’s argument that the employer’s explanation was pretextual because the rationale was insufficient to motivate the employer’s action.  She pointed to the fact that no other employee had ever been fired for working too slowly.  However, the Court summarily rejected her argument on the grounds that the Employee Handbook:

says that employees “should be separated as soon as it becomes evident that they are unable to meet the requirements of their positions.” Handbook § 584.35. Working inefficiently is sufficient to motivate the firing.

The Court also rejected the plaintiff’s argument that her termination lacked a basis in fact based largely on the Honest Belief Rule.   The employer produced her 30-day evaluation showing that her productivity had been rated “unacceptable” and indicated that she never improved.  The employer also produced an email from one of her supervisors indicating that she worked very slowly and could not keep up with her co-workers.   Although the employer did not use objective metrics to measure productivity, the plaintiff’s own subjective view of her performance was insufficient to create a disputed issue of fact about whether the employer’s explanation was reasonably based on facts.   Her supervisor’s “belief about [the plaintiff’s] performance was reasonable. Not only was the belief based on [her] own observation, but also on the observations of other supervisors who all agreed she was working slowly.”  Because the supervisor’s conclusion was reasonable, the plaintiff “cannot show pretext by showing it was wrong.”

            [A]n employer’s use of subjective reasons in terminating an employee, without more, “does not raise an inference” of discrimination. . . . And [plaintiff] “has offered no evidence from which a reasonable juror could infer that the [employer] manipulated, abused, or misapplied that criteria to affect” her chances of being retained at the end of the probationary period. . . . . So even when an employer uses an “evaluation process [that] was haphazard” that alone cannot create a “reasonable inference” of discrimination.  . . . . And an employer’s “unwise business judgments” or “faulty evaluation system” does not establish an inference of discrimination either.

The plaintiff’s efforts to show that her inefficiency did not actually motivate her terminations failed largely from lack of specificity.  She did not show how other events were “’logically or reasonably tied’ to the adverse action against her, that the same “bad actors” were involved, or that the conduct was in close temporal proximity, among other factors.”   Among other things, she incorrectly claimed that four employees had been fired and could not show that her supervisor was involved in the termination of the fifth.    Her attempt to show better treatment of white coworkers failed because their negative evaluations related to their attendance and not to their productivity.  Thus, “[s]uperficial similarities between a disciplined employee and his colleagues” are not enough to make them comparators.”  Further, some of her alleged comparators improved their performance while the plaintiff did not.  The third comparator had a valid excuse for her absences. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Title VII Protects HR Employees, Too

Last summer, the Sixth Circuit reversed summary judgments given to two employers on claims brought by human resources employees.   In Briggs v. UC, 11 F.4^th 498 (6^th Cir. 2021), the Court ruled that a jury should evaluate a compensation analyst’s claim of wage discrimination within a college human resources department based on race and gender.  In Jackson v. Genesee County Road Commission, 999 F.3d 333 (6^th Cir. 2021), the Court ruled in favor of a fired HR Director who had advocated on behalf of employees alleging unlawful discrimination and asserted that her termination had been in retaliation for her opposing unlawful discrimination and engaging in those protected activities.  More interestingly, the Court found that Title VII – governing employment discrimination --  protected her role as the EEO Officer in ensuring EEO compliance by the employer’s vendors: as EEO Officer, her “actions could reasonably be viewed as steps to ensure there was no discrimination in hiring both within GCRC and among its vendors, and, thus, were protected activity under Title VII.”

According to the Court's analysis of the plaintiff's allegations in Briggs, the HR department hired a new compensation analyst in 2015 who possessed a college degree but no compensation experience.  She was paid significantly more than the incumbent-plaintiff, who had significant compensation experience but no college degree.   Part of the reason for the disparity was a policy requiring a 5% raise for any promotion and part was to entice her to leave her current position.  Although the manager advocated for an equity adjustment for the plaintiff (who was paid both less than the new peer and also below market) in 2015, the new VP allegedly refused because of his “inconsistent” 2016 performance evaluation (which apparently did not explain objectively the basis for the lower evaluation).  It was implied that the plaintiff had performed only his basic expectations before understanding that advancement came with exceeding expectations.  Ultimately, the manager claimed that he suffered retaliation for advocating on behalf of the plaintiff’s equity adjustment.  The new employee exceeded expectations, was promoted again and ultimately left.  When the plaintiff applied for her former position, the VP apparently revised the job description in an alleged attempt to render him unqualified.  There was also an implication that the VP contended that the plaintiff was not even qualified for his own position.  The VP gave the plaintiff the lowest possible performance bonus.

The Court rejected the employer’s argument that the compensation difference was based on a factor other than sex or race:

no authority supports the concept that an employee’s prior salary or demand for a specific salary is sufficient in isolation to justify a wage differential. Such a rule would simply perpetuate existing sex-based pay disparities and undercut the purpose of the Act—to require that those doing the same work receive the same pay. . . .

Though a defendant need not offer contemporaneously produced evidence of its rationale, there must be evidence in the record proving that the employer’s proffered justification was the reason for the wage differential’s existence. . .

                . .  .

The record does not show beyond dispute that Wittwer’s bachelor’s degree and higher performance ratings than Briggs, or any other specified factors, were the reason for the salary disparity between her and Briggs.   [The employer] has therefore failed to meet its burden of proving that these distinctions were “the reason for the pay disparity.”

The Court also rejected the employer’s argument regarding the new employee’s higher education and better attitude towards self-improvement and working outside the job description because of the lack of documentary evidence regarding the plaintiff’s purported performance issues until after he requested an equity adjustment and because of the lack of evidence that these issues actually motivated the pay disparity.  The Court explained that an employer is required to submit evidence “beyond dispute” from which “a factfinder could conclude that the proffered reasons “in fact” explain the wage disparity—not just that the reasons could explain it.” The Court also found sufficient evidence of pretext in that the employer’s explanation was not credible:

The record contains no contemporaneous evidence that the cited distinctions between Wittwer and Briggs actually motivated their salary disparity, and it contains disputes of fact among [the employer’s] own witnesses as to whether performance is, in practice, a consideration for employees’ base pay. The post-hoc nature of the justifications contained in Stidham’s affidavit further support an inference of pretext, particularly given that several of the statements contradict statements made by Stidham in Briggs’s performance reviews and cannot be squared with the undisputed fact that Stidham recognized Briggs’s pay was below market and requested an equity adjustment for him. “An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”

The Court also rejected the employer’s honest belief defense on the retaliation claim because the VP could not show a factual basis for her mistaken belief about the incumbent’s qualifications and his experience before being hired by the college and the fact that she pulled the job posting soon after he made his discrimination complaint.   

a reasonable jury could conclude that [the VP’s] alteration of the posting was retaliatory rather than innocent. Contemporaneous e-mails and other evidence suggest that [her] decision-making about Briggs’s complaint and the job posting were linked. Briggs made his complaint on November 8. . . .

Then, on November 13, [she] e-mailed [the manager] directing him to pull the senior compensation analyst job posting. Although in retaliation cases “temporal proximity cannot be the sole basis for finding pretext,” it can be “a strong indicator of pretext when accompanied by some other, independent evidence.”

According to the Court's evaluation of the plaintiff's allegations in Jackson, the employer had fired its HR Director without any explanation or investigation following a number of complaints about her communication skills, including some from individuals who had been investigated and/or counselled by her.   The employer had previously supported all of the actions she had taken.  One of the complaints was from a vendor which incorrectly claimed that she had frozen its payments based on a discrimination complaint it had received from one of its own employees.   The employer’s outside counsel had also complained about her insistence that all communications go through her when he was attempting to meet with witnesses and prepare for hearings, etc.  The employer did not investigate any of the complaints or give her any explanation for why she was being terminated.  Without being able to identify that it had relied only on accurate complaints or on complaints that did not implicate her investigating and remedying unlawful discrimination, the Court found that a jury should determine whether she had been terminated in retaliation for engaging in protected activities.

The opposition clause of Title VII makes it “unlawful . . . for an employer to discriminate against any of his employees . . . because he has opposed any practice made . . . unlawful . . . by this [title.]” 42 U.S.C. § 2000e-3(a). The Supreme Court has held that the term “oppose” should be interpreted based on its ordinary meaning: “[t]o resist or antagonize . . . ; to contend against; to confront; resist; withstand.” . . .

This court and the Supreme Court have imposed limited restrictions on what activity constitutes opposition activity. While the plaintiff’s allegations of protected activity do not need to “be lodged with absolute formality, clarity, or precision,” the plaintiff must allege more than a “vague charge of discrimination.” . . . The plaintiff also must express her opposition in a reasonable manner. Johnson, 215 F.3d at 580. For example, “[a]n employee is not protected when he violates legitimate rules and orders of his employer, disrupts the employment environment, or interferes with the attainment of his employer’s goals.”. . .

. . .the district court held that the opposition clause is limited to conduct that goes beyond the plaintiff’s regular job duties. However, the district court’s assertion is contrary to both the text of the opposition clause and this court’s interpretation of Title VII for two reasons. First, the text of § 2000e-3(a) states that it “shall be an unlawful employment practice for an employer to discriminate against any of his employees,” which suggests that all employees are subject to the same standard. 42 U.S.C. § 2000e-3(a) (emphasis added). The statute also does not state that the employee’s conduct must fall outside of her regular job duties. . . .

                . . . this court has previously allowed plaintiffs to bring a retaliation claim for conduct related to their job responsibilities. . . . In Johnson, the vice president of human resources brought a Title VII claim . . . for allegedly firing him in part because of his advocacy on behalf of minorities related to his management of the university’s affirmative action program. . . . The Johnson court found that “the fact that Plaintiff may have had a contractual duty to voice [his concerns about the affirmative action program] is of no consequence to his claim.” . . . Excluding the vice president from the protection of Title VII would “run[] counter to the broad approach used when considering a claim for retaliation under this clause, as well the spirit and purpose behind Title VII as a broad remedial measure.” . . . The court worried that narrowing the scope of Title VII could create perverse incentives for employers and leave the employees specifically hired to do the often difficult work of combating discrimination with fewer protections than general employees. . . . In sum, both the text of Title VII and our precedent reject the district court’s additional restriction that the opposition clause does not extend to an employee’s regular job duties.

That being said, the Court did not find that all of the plaintiff’s investigations amounted to protected activity because she had not concluded that some of the alleged misconduct was the result of unlawful race discrimination.   Where she had concluded that unlawful race discrimination had occurred, her conduct in that investigation, informing management and negotiating a severance agreement for the offending manager constituted protected conduct.

Interestingly, the Court also found her role as EEO officer in working with vendors (not employees) was similarly protected conduct. “Jackson’s actions could reasonably be viewed as steps to ensure there was no discrimination in hiring both within GCRC and among its vendors, and, thus, were protected activity under Title VII.”

The Court also found sufficient evidence of causation from the temporal proximity of her protected activities (i.e., 2.5 months) and her termination.

The temporal proximity between Jackson’s protected activities and her termination is strong circumstantial evidence. In addition, many of the same people who complained to Daly about Jackson’s communication style were involved either in the negotiations with Bennett, such as Derderian, or communication about EEOPs, such as Plamondon, Peivandi, and two outside vendors. A reasonable juror could infer that these individuals described Jackson’s communication style as offensive and abrasive because they took issue with her handling of the investigation into Bennett’s or Jackson’s efforts to ensure EEOP compliance. Thus, Jackson has met the relatively light burden of demonstrating causation at the prima facie stage.

While there was some evidence supporting the employer’s explanation for her termination, she was also able to produce sufficient evidence of pretext to go to a jury.  Some employees, vendors and Board members contended that they had an excellent relationship with her.  “This evidence contradicts GCRC’s claim that Jackson’s communication style was inflexible and abrasive and could lead a juror to conclude Jackson’s communication style was not the true reason she was fired.”

Furthermore, several of the GCRC employees who complained about Jackson’s communication style also complained about Jackson’s protected activities, so a reasonable juror could conclude that their complaints about Jackson’s style were motivated to some degree by their opposition to her protected activities. . . . Although it is true that some of the employees who complained about Jackson’s communication style were not directly involved in her protected activities, there is enough overlap between the employees who complained to Daly and the individuals objecting to Jackson’s protected activities to call into question the strength of GCRC’s nondiscriminatory proffered reason.

  NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Although Plaintiff Was Not Plainly Superior Candidate, He Could Still Prove Pretext With Disputed Comments

On Monday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in an age discrimination failure-to-hire case, but affirmed dismissal of the plaintiff’s retaliation claim.   Aday v. Westfield Ins. Co., No. 21-3115 (6^th Cir. 1/24/22).   The Court discussed alternative ways for a plaintiff to prove that an employer’s explanation is pretextual in a failure to hire case and permitted the case the be resolved by a jury based on only two ageist comments from debatable decisionmakers.  The Court agreed that the plaintiff had not proven that he was the plainly superior candidate, in part because of the comparative leadership experience and because that he wanted to remotely manage his team from Seattle, far away from any company office.  However, when considering what would typically be “stray remarks” from arguably non-decisionmakers that may have indicated an age bias and a discriminatory atmosphere together with evidence that he had comparable qualifications to the successful candidates, the Court found sufficient evidence of pretext to let a jury decide the outcome.  The Court also rejected the argument that the employer's counterclaim was objectively baseless. 

Background

According to the Court’s decision, the 63-year old plaintiff has worked successfully for 40 years and received both promotions and transfers into leadership and other significant positions.  When his domestic partner accepted a job in Seattle, he sought authorization to work remotely from there or, in the alternative, to be transferred into a different management position for the Central U.S. which he would manage remotely from Seattle.  His own manager supported his efforts.  While he was denied authorization to work remotely, he was permitted to work from Ohio as long as he wished.   Although he interviewed well for the new management position, a 50-year old employee from Toledo with 22 years of comparable experience who had been a direct report of the hiring manager was chosen.   The employer later explained that there were questions about his passion for the position and his intent to manage his team from Seattle.

The plaintiff claimed that the hiring manager’s superior once joked to him over a lunch that he would be the next person to retire.  He also alleged that a co-worker claimed to have spoken with the interviewing/draft management team about the hiring decision and reported that they felt that it was time for the plaintiff to retire. He eventually retired, moved to Seattle and brought suit for age discrimination.  The employer filed a counterclaim for misappropriation of trade secrets and the plaintiff responded by amending his complaint to add a retaliation claim.  The trial court granted summary judgment dismissing the claims and the plaintiff appealed.

There was no dispute about whether the plaintiff had alleged a prima facie case of age discrimination and the focus of the Court’s opinion was on whether or not he had created a factual dispute (for a jury to resolve) about whether the employer’s explanation was pretextual.  The standard way to show pretext is “that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”  However, in a failure-to-hire context, a plaintiff

may prove pretext through the relative-qualifications test. . . . that either (1) he was the “plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former,” or (2) he “was as qualified as if not better qualified” than Somogyi and Zito and the record contains “other probative evidence of discrimination.”

Not a Plainly Superior Candidate

The Court found that the plaintiff failed to produce objective evidence that he was plainly superior candidate. Courts will not act as a super-personnel department to second guess business decisions.   “If two reasonable decisionmakers could consider the candidates’ qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one candidate’s qualifications are not significantly better than the others.” In other words, “[s]imply being “more qualified” is not sufficient to prove Plaintiff is the plainly superior candidate.”  Similarly, giving a good job interview does not make one plainly superior.

While the plaintiff had more industry and technical expertise than the other candidates, simply being more qualified than them on one aspect of the job was insufficient by itself to satisfy his burden of proof.  “[E]ven if Plaintiff were considered the candidate with marginally better technical experience, no reasonable juror could conclude he was the plainly superior candidate under the Sixth Circuit’s exacting standard, especially considering technical experience is only one facet of the job.”

The Court was less impressed with his prior “leadership experience.”  The hiring manager recalled his six years leading a team and he had seemed stressed and overworked.  Indeed, he had left that position to become an individual contributor as an claims specialist and this contributed to the decision that he lacked sufficient desire for a leadership role.  One of the other candidates had 11 years of “incredible” leadership experience and the other had comparable leadership experience.  “In terms of leadership experience, no reasonable jury could find that Plaintiff was the plainly superior candidate.”

The Court also disagreed that plaintiff’s desired work location in Seatle made him more qualified to supervise a team in Arizona, Colorado, Minnesota and Illinois.  However, “anything requiring in-person attendance would incur a greater expense” because the other candidates were working more closely to the rest of the company.  This concern with his remote work location had been expressed to the plaintiff repeatedly throughout the process.

In his best-case scenario, a reasonable juror could conclude that Plaintiff had marginally better technical training, had better leadership experience than Zito , and was in a marginally better geographic location. This is not enough.

Plaintiff has not produced enough evidence from which any reasonable juror could conclude that he had better leadership experience than Somogyi.

Comparative Qualifications with Some Other Evidence

Plaintiff could not show that he was plainly superior because of his comparable leadership experience and questions about his ability to effectively manage remotely from Seattle.  To prevail on the alternative argument, the plaintiff need not show that he was the indisputably best candidate; he need only show that his qualifications made him arguably “as qualified.”  He satisfied this burden with the employer’s admission that he had been ranked as one of the top four candidates.  

The second prong requires other probative evidence of discrimination.  For this, the plaintiff proffered two statements made to him: a joke about him being the next to retire and a disputed allegation by a co-worker that the hiring managers had expressed their belief that he should retire.  The Court held this was sufficient evidence:

By themselves, neither  . . . .  comment would likely be sufficient to create a genuine dispute. However, considering the comments together, we believe Plaintiff has produced probative evidence of discrimination.

The parties disputed whether the joke was made by anyone involved in the decision to hire the plaintiff.  However, the jokester was the hiring manager’s manager and had the authority to override her decision (although he had rarely done so). “Nevertheless, we need not determine whether Bowers was a decisionmaker because this Court has ‘held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext.’” Further, it was irrelevant at this stage that everyone admitted the comment was a joke. “This Court has held, however, that statements may be probative evidence of discrimination even if they are made as a joke.”  This joke could contribute to a discriminatory atmosphere where discriminatory decisions are made.

We noted that evidence of a discriminatory atmosphere “may serve as circumstantial evidence of individualized discrimination directed at the plaintiff.” . . . And while a workplace atmosphere replete with discrimination is not conclusive proof that an individual plaintiff is the victim of age discrimination, a discriminatory atmosphere “‘tend[s] to add “color” to the employer’s decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff.’” . . .  Here, Bowers was a very senior leader at Westfield and his willingness to comment on and “joke” about a junior employee’s retirement status in the midst of that employee’s search for a new position could reasonably be interpreted as contributing to a discriminatory atmosphere at Westfiel

While the co-worker admitted telling the plaintiff that he should retire, he denied ever speaking with any of the hiring managers about the decision.   Nonetheless, the Court found that a jury could decide to credit the plaintiff’s memory – that his co-worker had in fact claimed to have spoken with the hiring managers – over the co-worker’s denial that he had ever done so. 

General Pretext

The Court rejected the plaintiff’s other evidence of pretext.  Although he was able to cast sufficient doubt on one of the employer’s explanations, he did not have evidence showing that the other explanations lacked a basis in fact, etc.

With respect to plaintiff’s perceived lack of passion for the position, he pointed out that one of the successful candidates had applied for any and every position after her current position had been eliminated.    The other candidate had previously left the industry altogether at one point to pursue a different field.   The plaintiff had also scored highly on an assessment.  “Considering all this, a reasonable juror could conclude that Lilly’s explanation that Plaintiff lacked passion for the Unit Leader position had no basis in fact and was pretextual.”

Plaintiff has cast doubt on some—but not all—of the reasons Defendants articulated for not hiring him. While [the hiring manager’s] explanation that he lacked passion for the Unit Leader position arguably has no basis in fact, Plaintiff has failed to cast doubt on [her] subjective beliefs that one candidate had more relevant experience and the other candidate presented a more creative plan. Since these are both nondiscriminatory bases for choosing to hire [them] over Plaintiff, Plaintiff has not created a genuine dispute under the general pretext test.

No Retaliation for Counterclaim

The plaintiff’s retaliation claim was based on the employer’s filing of a counterclaim for misappropriation of trade secrets.  The Court rejected this argument as well. 

While ‘”an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in a protected activity,”. in some situations, the filing of counterclaims may constitute adverse employment action.  . . . The central question is whether the counterclaims are filed “not in good faith and instead motivated by retaliation.” . . . Stated differently, the Court must find (1) “the employer acted with retaliatory motive” and (2) that the employer’s counterclaims “lack a reasonable basis in fact or law.”

The employer’s claim was based on the plaintiff emailing trade secrets to the personal email accounts of himself and his domestic partner.   The trial court concluded that the plaintiff had not used improper means to access the information in violation of any policy and there was no evidence that anyone other than the plaintiff had accessed any trade secrets.   The plaintiff argued that the claims were “objectively baseless” because of the lack of precedent condemning emailing confidential information to an employee’s personal email account. “A claim is not objectively baseless simply because it fails.”

Defendants’ argument is not nearly as outlandish as Plaintiff tries to make it seem. Courts around the country have considered whether emails sent to oneself can constitute misappropriation. For example, in Aon PLC v. Infinite Equity, Inc., No. 19 C 7504, 2021 WL 4192072, at *14 (N.D. Ill. Sept. 15, 2021), the court found there was a reasonable likelihood of success on a misappropriation claim when an employee “forwarded emails from his Aon email address to his personal email address.” See generally
Mintz v. Mark Bartelstein & Assocs. Inc., No. 2:12-CV-02554-SVW-SS, 2013 WL 12182602, at *4 (C.D. Cal. June 14, 2013); CPI Card Grp., Inc. v. Dwyer, 294 F. Supp. 3d 791, 809 (D. Minn. 2018). Having failed to prove Defendants’ counterclaims lack a reasonable basis in fact or law, for this reason alone, Plaintiff’s claim of retaliation must fail.

The Court also rejected the argument that the employer’s counterclaim was retaliatory because it knew that other employees emailed information to themselves but only sued him for it after he brought an age discrimination claim.

There are many reasons an employer would not litigate every infraction employees commit. However, after an employee has hauled an employer into court, it is entirely reasonable for the employer to file its claims for minor infractions. Additionally, Defendants only filed the counterclaims after Plaintiff brought the conduct to their attention. During the parties’ initial disclosures, Plaintiff mentioned he had emailed documents to his personal email account. Defendants sought leave to file the counterclaims after taking the time to audit Plaintiff’s email account. Finally, these were compulsory counterclaims that, if not filed in the present action, would be barred in future litigation.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Refuses Employee Claim for Age Discrimination and to Award Attorneys Fees to Prevailing FMLA Plaintiff

This morning, the Sixth Circuit issued a few employment decisions that may be of interest to employers and employees.  In the first case, the Court rejected the plaintiff’s age discrimination claim where she had been fired for insubordination.   Pelcha v. MW Bancorp, Inc.,  No. 20-3511 (6^th Cir. 1-12-21, amended 2-19-21).  The Court reiterated that the Supreme Court has held the ADEA does not permit mixed-motive cases, unlike Title VII.  Further, her evidence of stray remarks by the Bank’s president about an employee who was 40 years older than her were too vague and unrelated to her situation to constitute direct evidence that she had been fired because of her age.    In the second case, the plaintiff physician was denied prevailing party attorney fees in his FMLA claim by the arbitrator because he had failed to educate the arbitrator that the statute prevailed over contrary language in the arbitration clause and because he failed to submit any definitive evidence of the fees he was claiming.

In the first case, the plaintiff teller was fired by her long time banking employer for insubordination for refusing to submit a written request for time off until the day before her day off even though such requests were due a month in advance.  She argued that this was pretext for age discrimination.  The district court granted summary judgment to the employer and she appealed.

The plaintiff attempted to argue that she had proved age discrimination with direct evidence based on a few inflammatory statements that the Bank’s president made about another employee who was 40 years older than the plaintiff and that he wanted to hire younger tellers.  The Court disagreed.  “In reviewing direct evidence, we look for “evidence from the lips of the defendant proclaiming his or her . . . animus.”  . . .Inferences are not permitted.”

“Direct evidence is evidence that proves the existence of a fact without requiring any inferences” to be drawn.  . . . In other words, direct evidence is “smoking gun” evidence that “explains itself.”

                . . .

In determining the materiality of allegedly discriminatory statements, we consider four factors, none of which are dispositive: “(1) whether the statements were made by a decisionmaker . . . ; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination.”

             . . . None of the statements were related to [the plaintiff]’s termination. In fact, they were not made in relation to any termination decision and were about an entirely different employee. Additionally, nothing in the record suggests that the statements were more than isolated remarks. Here, it appears as though these statements were only made once or twice to certain higher-level management employees.

                . . . Hiring younger tellers does not require the termination of older employees.

 . . ., in terms of timing, the comments in question come from late 2015 or early 2016, more than six months before her termination. We have previously suggested that time spans of six or seven months can be temporally distant.

That being said, such statements could be considered as circumstantial evidence to argue pretext if the plaintiff attempted to prove her case through burden shifting and to raise a “plausible inference of discrimination.”     Nonetheless, the Court found that the plaintiff failed to prove that the employer’s explanation for her termination – that she was insubordinate – was pretext for age discrimination.

First, the plaintiff could not prove that the explanation had no basis in fact.  She argued that she was not insubordinate because she had submitted a written request one day in advance and had obtained verbal approval a month in advance.  However, the Court pointed out that she had been required by her manager’s policy to submit the written request a month in advance and she had admittedly told her manager that she refused to do so because she disagreed with the policy.  She did not ultimately submit her written request until the day before her took time off.  Her “late completion of the form could not cure her original refusal to follow Sonderman’s directive.”

She also could not prove pretext with the isolated and sparse comments that the Bank president had made about another situation. Those comments “were not directed towards Pelcha, not directed towards anyone near Pelcha’s age, and not made in connection with any termination decision at all.”

She also could not show that her employer changed its explanation for her termination by also later documenting issues with her negative attitude and contribution to a negative work environment.  Prior decisions have held that “providing “additional, non-discriminatory reasons that do not conflict with the one stated at the time of discharge does not constitute shifting justifications”.

In addition, she could not show pretext by arguing that the employer failed to comply with its own progressive disciplinary policy.   The policy was clear of the typical steps in the process and clarified that some offenses would justify skipping some or all of the steps.  In conclusion, “an ‘employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’”

Ultimately, she also could not satisfy the prima facie case because she could not prove that she was treated more harshly than another, younger employee because the fact that a younger co-worker may have neglected to turn in the form is not the same as insubordination in refusing to turn in the form. “Neglecting to complete a time off form and defiantly refusing to do so upon being asked by a superior are significantly different actions.”

In the second case, the Court denied the appeal of a physician who was denied in arbitration attorney’s fees as the prevailing party on his FMLA claim.  Gunasekera v. War Memorial Hospital, No. 20-1340 (6^th Cir. 1-12-21).   The physician asserted (correctly) that attorneys’ fees are awarded under the FMLA statute to prevailing plaintiffs.  However, the arbitrator reasoned that the arbitration agreement provided that each party would pay its own fees and, in any event, his attorney had failed to submit evidence of the attorneys’ fees accrued to that point during the hearing.    The Sixth Circuit found that a mere error of law by the arbitrator does not constitute the necessary manifest disregard of the law (if that standard even still applied) as required to overturn an arbitration award.  This was particularly true when the arbitration briefs failed to argue that the FMLA provision overrode the terms of the parties’ agreement.    More importantly, the physician failed to submit any evidence to the arbitrator of the amount of his fees. “In that brief, Dr. Gunasekera merely asserted that he was entitled to receive ‘all of his legal fees,’ which exceeded $35,000.”  Without concrete evidence upon which to base an award of a specific sum, the arbitration could not have erred in failing to award fees to a prevailing party under the FMLA.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Rejects Cat's Paw Theory for Discriminatory Job References in Hiring Cases

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim based on its failure to interview or hire an applicant with 30 years of experience, but who had poor job references.  Flowers v. WestRock Services, Inc., No. 20-1230 (6^th Cir. 2020).  The plaintiff admittedly could not satisfy certain qualifications for the job established in the job description and was not entitled to override the employer’s ability to establish its own job criteria.  The plaintiff also could not show pretext based on a generic, automated message about preferring more candidates who more closely matched the job requirements.  Interestingly, the Court held that the cat’s paw theory of discrimination did not apply to hiring decisions because the employer could not independently investigate the basis of a negative job reference from a prior employer. “If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms.”

According to the Court’s opinion, the plaintiff had 30 years of pipefitting experience prior to his 2013 retirement.  He had been told about an open pipefitting position with the defendant employer, which required the ability to read blueprints, to select the type and size of appropriate pipe, and to weld, etc.  He applied online and did not reveal his age.  However, he was not interviewed when a former supervisor now working for the defendant employer reported on his poor work ethic and this was confirmed by another former supervisor contacted by the employer.  He was informed through an automated message that the employer had decided to pursue other candidates whose skills more closely matched the desired requirements and qualifications.   The employer apparently hired two temporary contractors at a higher billing rate.  After the plaintiff heard that a younger candidate with less pipefitting experience, but extensive welding experience, had been hired, this lawsuit followed.  

During his deposition, the plaintiff admitted that he was unable to read blueprints and lacked experience selecting the type and size of pipe appropriate for a job.  He also was not certified in welding because he did not like welding.  The successful candidate was an extremely experienced welder, but there is no discussion of whether he met the other qualifications.  Accordingly, the trial court granted the employer’s summary judgment motion because the plaintiff could not show that he was qualified for the position due to his failure to satisfy the basic requirements for the position.   The trial court also found it was common sense that the employer would prefer to interview a candidate about whom it knew nothing over a candidate with poor job references.

Flowers’s failure to show he was “otherwise qualified” for the job of Journeyman Pipefitter dooms his claim. From the summary judgment record, Flowers has not demonstrated that his “qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field,” as set out in the job description. . . . Noting Flowers’s admission that he does not know how to select the size and type of pipes or read blueprints, two of the listed job requirements, and aware of Flowers’s disinterest in welding, another job duty, the district court held that Flowers failed to show he was otherwise qualified for the position. We see no error in that conclusion. Requiring a plaintiff to establish a prima facie case under the ADEA framework serves to eliminate the most common nondiscriminatory reasons for an employer’s action. . . .  One such reason is an applicant’s lack of qualifications. WestRock desired a pipefitter who could read blueprints and select pipes, and who also had an interest in welding. Flowers missed the mark in each respect, the first two by his own admission, and the third due to his lack of interest in welding as much as “seven days a week, twelve hours a day.”

Rather than challenging those conclusions, Flowers instead challenges the premise that these skills are necessary for the position. To his mind, pipefitters do not need to read blueprints, nor should they be required to make pipe selections. But as the one who creates the position in question, the employer largely enjoys the right to decide the qualifications it prefers in one who holds the position and, it follows, whether an applicant lacks the necessary knowledge or experience.. . . And given an employer’s superior knowledge of its workplace and industry, the employer’s stated job requirements will typically be the objective criteria by which we measure a fail-to-hire claim. . . . Who, after all, better understands the relevant field and the corresponding skills necessary to succeed than the employer? Not a federal court, one reason why we do not “substitute [our] judgment for that of management” when it comes to business decisions like setting necessary job qualifications.

The Court also agreed that the plaintiff could not show that the employer’s explanation was pretextual based on the poor job references he received.   The plaintiff did not and could not dispute that he had received poor job references.   He also failed to show that his age was a factor.  His age was never indicated on his job application, in any of the negative job references, and, even considering his 37 years of work experience, he could have been as young as 55 (instead of his actual age of 71).

The plaintiff could not show pretext on the basis that he passed the initial review of his application as “generally qualified” because it was undisputed that he received negative evaluations of his work ethic at the next stage.   The Court also refused to find pretext from the employer’s automated message that the employer was pursuing more qualified candidates instead of bluntly telling him that he had poor references.    (This part of the decision is confusing because it indicates that the employer did not in fact consider other, more qualified candidates, despite the factual summary indicating that a candidate with welding experience was hired).  

Accepting Flowers’s contention, moreover, seemingly would impute a legal duty on employers to reject applicants in blunt, precise terms. Some employers may have no objection to telling someone like Flowers that he was not hired because two people, including a prior coworker, thought he had a bad work ethic. Yet many others surely would prefer to respect social etiquette, avoiding hard truths when possible. Either way, certainly the ADEA does not require the former, nor does it suggest that the latter is evidence of age discrimination.

The Court also found that the plaintiff failed to show that the negative references were insufficient to justify the hiring decision because the plaintiff did not show that any other candidates were considered with similarly poor references.

Flowers says there are three such WestRock employees. Yet of the three, WestRock provided evidence that one was hired before Flowers applied, and another was already employed by the company before being moved into a pipefitting apprenticeship. And as to the third, Flowers provides no evidence that the employee received negative references or lacked required skills as did Flowers.

As a final salvo, Flowers invokes an economic rationality argument to justify his age claim. Noting that WestRock paid two contractor pipefitters substantially more than he would have been paid as an employee, Flowers paints this purported “irrational economic decision” as evidence of age discrimination. True, in some circumstances we may consider the reasonableness of an employer’s decision to the extent it explains whether an employer’s proffered reason for an employment action was its actual motivation. Wexler, 317 F.3d at 576. Whether WestRock relied on temporary contractors, however, has little bearing on whether the company was motivated by the negative references.

Finally, the Court rejected the plaintiff’s attempt to prove discrimination through a cat’s paw theory.  Indeed, the Court found that the cat’s paw theory should not apply in hiring decisions because HR could never independently investigate whether a prior employer held a discriminatory animus.  In any event, the Court found that the plaintiff failed to show that the individuals – inside and outside the employer – held an age bias against him when they recommended against hiring him.

Cat’s Paw.  Failing on these fronts, Flowers embraces a novel understanding of what has come to be known as the “cat’s paw” theory of discrimination. The customary application of that theory involves a supervisor who “performs an act motivated by [prohibited] animus that is intended by the supervisor to cause [the formal decisionmaker to take] an adverse employment action.” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011). Where a supervisor engages in that type of conduct, and where the supervisor’s “act is a proximate cause of the ultimate employment action, then the employer is liable.” Id. This theory of liability serves to prevent the ultimate decisionmaker—for example, a middle manager—from being a shield for a supervisor’s discriminatory intent.

While this theory has been applied to purported discrimination against a company’s current employees, it is quite another thing to extend it to mere job applicants as well. Doing so would place a tremendous burden on human resources employees in culling through applications. After all, a disgruntled applicant could always allege that those employees did not do enough diligence in considering an applicant’s references, both positive and negative, and that one reference or another had some impermissible bias. If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms. That is unlike the narrower focus of a cat’s paw claim asserted by a current employee or group of employees.

To the same end, whereas the relevant job history for a current employee is likely internal to the company, in the hiring context the relevant history will often lie with another employer. That makes those matters difficult to investigate. Nor, it bears emphasizing, should an employer be liable for the bias of an outsider. Take this case, for example, where one of the negative reviews of Flowers came not from a WestRock supervisor but rather from an employee of another company. While the cat’s paw theory might apply to root out supervisory employees who attempt to shield their discriminatory motives through an internal third-party, it makes little sense to apply that same theory to an allegedly impermissible motive that stems from one who does not even work for the company in question. In the district court’s words, extending the cat’s paw theory as Flowers urges is simply “beyond the pale.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.