Yesterday, the Sixth Circuit Court of Appeals affirmed an
employer’s summary judgment on an age and reverse race discrimination claim
based on the employer’s honest belief – despite contradictory information
produced during its investigation – that the plaintiff had violated company
policy. Hardesty
v. Kroger Co., No. 18-3378 (6th
Cir. 1-23-19). Choosing between
inconsistent accounts given during an investigation does not create an issue of
fact about the employer’s bad faith. The
investigation was sufficiently diligent to be worthy of credence and the Court
refused to second-guess the harshness of the punishment.
According to the Court’s opinion, the plaintiff had been
hired six months earlier to conduct telephone interviews with job applicants for
a new store. He was observed by a
co-worker hanging up on calls directed to his desk so that he could continue a
discussion with another co-worker and this was reported to management as to
time, place and witnesses. There seemed
to be a discrepancy whether she saw this happen two or three times. The company’s “customer first” policy
requires applicants to be given excellent customer service. An investigation was conducted which showed
that his average call time was under 2 minutes per call, compared to an average
of 5 minutes per call. The call logs did
not track individual calls. When
confronted, the plaintiff explained that he just spoke quicker than his
co-workers. The other co-worker denied
noticing the plaintiff hanging up on callers, but this was not mentioned in the
investigation report. Although the
plaintiff was given the option of resigning, he chose termination.
The Court rejected the plaintiff’s argument that the failure
to mention in the report that another witnesses could not corroborate the
allegation showed consciousness of guilt and doubt in the truth of the
allegations against him. It found this
argument to require a strained and unreasonable inference to be drawn:
Even assuming that [his co-worker’s] inability to corroborate
the accusation can be fairly read to refute it, investigations often produce
conflicting evidence, requiring an employer to evaluate credibility and weigh
various pieces of information. Just
because an employer must choose between inconsistent accounts “does not mean
that there inevitably is a genuine issue of fact concerning the employer’s good
faith.
The Court also rejected the plaintiff’s attack on the Company’s reliance on the significant discrepancy in the average call times: “exceptionally
short call times could reflect a pattern of dishonest behavior and reveal a
practice of failing to properly screen applicants or disconnecting calls.”
While the employer may have left some stones unturned (like
checking surveillance footage to see if the reporting employee actually walked
by the plaintiff’s cubicle as described),
when we evaluate the honesty of an employer’s belief, we do
not require evidence of an optimal decisional process or a scorched-earth investigation. Smith,
155 F.3d at 807. “[T]he key inquiry is
whether the employer made a reasonably informed and considered decision before
taking an adverse employment action.”
In any event, the evidence showed that the employer
conducted a thorough and sufficiently diligent investigation which was worthy
of credence:
She spoke to all potential witnesses, scrutinized Hardesty’s
call logs for any suspicious patterns, sought advice from her colleagues in
human resources and operations, and met with [the plaintiff] to clarify why his
logs reflected such short phone calls as compared to his team’s average. After reviewing all the data she believed
available, she concluded that [the plaintiff] likely released at least one
incoming call and determined that this warranted immediate termination. “That [the plaintiff] or the court might have
come to a different conclusion if they had conducted the investigation is immaterial.” Seeger v. Cincinnati Bell Tel. Co.,
681 F.3d 274, 287 (6th Cir. 2012).
The Court also rejected the plaintiff’s argument that his
alleged misconduct did not warrant termination under the employer’s prior
administration of its policies. However,
he apparently failed to identify a comparator who was sufficiently
similarly-situated who was treated differently (i.e., better) because the
alleged comparator’s actions may not have violated the policy. Unfortunately, the Court did not elaborate.
Not a single Kroger employee involved in [this] investigation
ever questioned whether hanging up on a customer merited termination. And “disputes about the interpretation of
company policy do not typically create genuine issues of material fact
regarding whether a company’s stated reason for an adverse employment action is
only a pretext designed to mask unlawful discrimination.”
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 be changed or 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.
