According to the Court’s opinion, a soon-to-be-demoted restaurant general manager told his staff that he planned to resign and, at her request, started to groom the plaintiff -- an assistant manager (with a stellar performance history) -- to replace him as general manager. However, after the employer replaced the general manager with a seasoned veteran instead of promoting the plaintiff, she filed a Charge of Discrimination with the EEOC. Eleven days later, the employer suspended the plaintiff for loaning her register access card to other employees, based on a report which showed numerous register errors on her card code. The plaintiff claimed that her former supervisor (who was a newly demoted Assistant Manager who had been grooming her for promotion) requested that she leave the card with him while she was on a week-long vacation. She then filed another Charge, this time alleging retaliation for filing the first Charge. About a month later, she was fired for the loaning her access card (which had already been the subject of disciplinary action). The Assistant Manager resigned and the plaintiff was fired on the same day. The plaintiff conceded that loaning the access card was a dischargeable offense. Five days after terminating her employment, the employer requested the EEOC for copies of her Charges. The employer claimed that it did not receive either Charge of Discrimination from the EEOC until after the employee was fired, but the United States Postmaster and the former Assistant Manager provided affidavits otherwise.
The Court affirmed summary judgment on the failure-to-promote claim because the plaintiff could not show that she was as or more qualified than the white mail who was hired from the outside to fill the position.
When . . . , a white male, was hired for the General Manager position, he had fifteen years of restaurant experience, twelve of which were managerial, and a culinary degree. [the plaintiff], in contrast, had just under two years of managerial experience and no culinary degree. Thus, she has not proved that she possessed “similar qualifications” to Barnes. See White, 429 F.3d at 242 (“[T]o satisfy the fourth prong . . . it is incumbent upon the plaintiff to establish that she and the non-protected person who ultimately was hired for the desired position had similar qualifications.”). Finally, we note that “[a]n employer has even greater flexibility [than in choosing non-management- level employees] in choosing a management-level employee, as is the case here, because of the nature of such a position.” Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
The employer argued that it could not have retaliated against the plaintiff because it had no knowledge that she had filed any Charge of Discrimination before it suspended and then fired her. However, the Assistant Manager who resigned the same day that plaintiff was fired claimed that his boss had mentioned her Charge to him before he left. In addition, the Charge had been mailed to him at the employer’s address (a post office box). While the employer claimed that it had lost the key to the post office box, the local postmaster denied the employer had ever requested a replacement key. Moreover, the Assistant Manager claimed that the mail was checked frequently, and the box would get full within two days, which would cause the mail carrier to then deliver all other mail to the store directly. Thus, the Court found there was an issue of fact as to whether the employer had prior knowledge of the plaintiff’s Charges before it suspended and later terminated her.
The temporal proximity of the employer’s actions (i.e., suspension and then termination) to the timing of her first and second Charges also supported an inference of retaliation. Adverse action within three months of the protected activity has been found to be sufficient to support a causal connection and in this case the employer took adverse action within eleven days of her first Charge and within a month of her second Charge.
The Court was also influenced by the increased scrutiny given to Plaintiff’s performance and her access card after she filed the first Charge. The employer had not taken any interest in the use of access cards before the plaintiff filed her first Charge as evidenced by the fact that the access card of an employee terminated in 2007 was still being regularly used a year later in the month before the plaintiff was terminated.
Evidence “that the adverse action was taken shortly after the plaintiff’s exercise of protected rights is relevant to causation,” id. at 563. While evidence of temporal proximity alone is ordinarily not sufficient to support an inference of causation, “there may be circumstances where evidence of temporal proximity alone would be sufficient to support [such an inference].” Id. at 567. We have “accepted temporal proximity as a valid basis from which to draw an inference of retaliatory motivation under limited circumstances . . . . Specifically, the more time that elapses between the protected activity and the adverse employment action, the more the plaintiff must supplement [her] claim with ‘other evidence of retaliatory conduct to establish causality.’” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010) (citations and internal quotation marks omitted). Here, [the plaintiff] was suspended eleven days after filing charges with the Commission and there is evidence that she was subject to increased scrutiny with respect to the activity on her Micros card following the filing of charges—the record shows that there is evidence [the employer] did not ordinarily scrutinize the Micros reports as it did when it used the report to support her suspension and termination. Indeed, activity logs for the Micros card of an employee terminated in 2007 on the February 2008 report supports an inference that the Micros activity records were not ordinarily scrutinized for the infraction forming the articulated basis of [the plaintiff]’s termination, but that instead it was at least somewhat common for employees to use cards not their own to log in to the Micros system.
While the employer was able to articulate a legitimate and non-retaliatory reason for suspending and terminating her, the Court found that the plaintiff was able to show a factual dispute about pretext. While the plaintiff concededly violated the employer’s cash-handling policy and admitted this was a dischargeable offense, she was able to show that the employer had not consistently enforced this police in the years prior to her suspension and termination. More importantly, she was able to cast doubt on whether the employer’s explanation was the actual motivation for her suspension and termination:
she was told by . . . her direct superior, “to leave [her] keys and [Micros] card with him so he could let employees use the card” while she went on vacation. [The employer] does not dispute this statement that supports an inference that . . . management told her to violate the cash-handling policy. Further, she stated in the affidavit that she was on vacation “from February 2 . . . to about February 12.” The cash-handling report [the employer] cites in support of its contention that [the plaintiff] lent her card to other employees, as proved by much higher net sales and error corrects, covers the period from February 4 through February 18. However, [she] was on vacation for more than half of the period the report covers, and, further, left her card with her superior during this time upon his request. Thus, when viewed in light of evidence that other employees violated the policy and that activity on the Micros card of an employee terminated in 2007 appears on the February 2008 report (which shows a trend of employees logging in to the Micros systems with cards not their own), a jury could reasonably infer that [the employer’s] actual motivation for terminating [the plaintiff] was not the policy violation reason it articulated. [The employer] otherwise tolerated, and seemingly encouraged, Micros card use that was inconsistent with the policy under which [the plaintiff] was purportedly terminated. For these reasons, and drawing inferences in her favor, [she] has provided enough evidence to survive summary judgment at the pretext stage of her claim.
Finally, the plaintiff was able to buttress her pretext argument by showing that her termination was motivated by unlawful retaliation in that there was evidence (as discussed above) that the employer was lying about not receiving notice of her Charges before suspending and terminating her. Thus, a disbelief of its explanation along with doubt about its integrity created a sufficient inference that her suspension and termination were motivate by retaliation against her for filing Charges of Discrimination with the EEOC.
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.
