Sixth Circuit Rejects Retaliation Claim When Plaintiffs Were About to Be Terminated Before Raising Harassment Claim

Last week, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment in a racial harassment and retaliation case on the grounds, among other things, that it had already pretty much been decided to terminate the plaintiffs before they engaged in any protected conduct.  Reynolds v. Federal Express Corp., No.  13-5010 (6^th Cir. 10-8-13).   In that case, one plaintiff had suffered some racial and union-related comments from a co-worker, but failed to bring the matter to the attention of management.  As the plaintiffs were suspended pending an investigation into allegations of rampant unauthorized absences (which they contend was raised by their racist co-workers) and a decision whether to terminate them, they first raised the issue of a racially hostile work environment and then claimed that their termination 20 days later was in retaliation for their complaint.  The Court rejected the claim that management was merely a “cat’s paw” for their racist co-workers because there was no evidence that the author of the anonymous letter harbored any racial animus. The Court also rejected their claim of a hostile work environment on the grounds that the incidents were too few, remote and minor to constitute unlawful harassment.

According to the Court’s opinion, the plaintiffs argued that the temporal proximity of their complaint of a hostile work environment and their termination 20 days later was sufficient to prove causation for their retaliation claim.  The Court disagreed because management was already contemplating terminating them and most of the investigation had been conducted before they raised their complaint during the meeting about their suspension.

 

That [the manager] fired the plaintiffs 20 days later “is immaterial in light of the fact that [FedEx] concededly was contemplating [the adverse employment action] before it learned of [the protected activity].” . . . Employers “proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

Moreover, even if the plaintiffs were able to establish causation and a prima facie case of retaliation, the Court found that they could not prove the employer’s explanation for their termination was pretextual:

A plaintiff must show that the employer did not honestly believe the reasons cited for the adverse employment action. A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 705 (6th Cir. 2013); Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). A plaintiff may show that an employer does not honestly believe the reasons for its decision because it acted without information or consideration.

While the parties disputed the accuracy of the employer’s investigation results and its decision to terminate the plaintiffs, “there was nothing to suggest an “error too obvious to be unintentional,” or a sham investigation. The decision to terminate the plaintiffs was based on a reasonable investigation which considered documents, interviews with the plaintiffs and an unbiased co-worker, etc.

Finally, the Court rejected the plaintiff’s hostile work environment claim.  “The evidence [of harassment] needs to be specific.  A plaintiff may not rely on only, for example, “one specific incident of the use of a . . . race-based epithet” over entire span of her five-year employment and an otherwise “total lack of specificity as to verbal abuse.”  In this case, the plaintiff “testified about harassment on only two specific occasions. And when asked at his deposition how many times he heard [the co-worker’s] comments, [he] responded that “I can’t give you a count” never explaining the frequency of the comments, or how the comments affected his work.”  Title VII only prohibits harassment that is so severe that it alters the conditions of employment.  “A worker does not establish a hostile-work-environment claim by testifying that “there were times” he faced verbal abuse but specifically identifying only two occasions.”

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.