Yesterday,
the Sixth Circuit affirmed an employer’s summary judgment on an ADEA claim
where the plaintiff had been fired by the new executive director without an
explanation, but was later justified by the documented mismanagement (by the
state controller) of two of her departments and her toxic relationship with
subordinates (as reflected by numerous complaints) even though she received no
progressive disciplinary action. Miles v.
South Central Human Resources Agency, Inc., No.
19-5202 (6th Cir. 1-7-2020). Further, the Court did not require the employer to conduct an investigation to justify its decision and rejected the plaintiff's challenges for failing to administer progressive disciplinary action.
According to
the Court’s opinion, the agency was investigated for financial mismanagement by
state and federal agencies, which found significant problems. The executive director resigned and two
financial managers were immediately fired by the Board after being specifically
identified in the government report and admitting their culpability. Two of the mismanaged departments were the
responsibility of the plaintiff, who was terminated 10 days later by the new
executive director without any explanation. She blamed her subordinates,
threatened to retaliate and filed an EEOC Charge. At that point, the employer explained that
she had been terminated for her poor management of the two departments
criticized in the government reports and having a toxic relationship with her
subordinates (as reflected by numerous complaints received by the new executive
director). The trial court granted
summary judgment and the Sixth Circuit affirmed.
The Court
observed that the plaintiff could not show that age discrimination was the “but
for” cause of her termination in light of the government reports and the
complaints about her. Further, she could
not show that the employer’s explanation was pretexutal. There are three primary methods to show that
an employer’s explanation is pretextual: “(1) that the proffered reasons had no
basis in fact, (2) that the proffered reasons did not actually motivate the
employer’s action, or (3) that the proffered reasons were insufficient to
motivate the employer’s action.”
1)
The plaintiff could not show that there was no
basis in fact for her termination in light of the government report or the
receipt of the numerous employee complaints.
“For a plaintiff’s challenge to the factual basis of an employer’s
proffered termination rationale to establish pretext, the plaintiff must
provide evidence that the employer’s allegations never happened.” The Court rejected the following challenges:
a)
The government report did not specifically
identify her by name, unlike the two financial managers. “But this hardly means
that the report did not implicate her.” It did specifically identify wrongdoing in
several departments and two of them were her responsibility. She “cannot argue that the report failed to
implicate her simply because it does not mention her name.”
b)
The employer’s failure to investigate the
employees’ complaints about her or even to be able to describe them showed the
lack of a particularized facts and were hearsay. The employer “did not offer .
. . testimony to show that [the plaintiff] in fact treated her subordinates
poorly. It did so to show that her
subordinates lodged these complaints . .
.” While generally an employer should
investigate the basis of an employee’s termination prior to making the
decision, the Court did not require it here.
“Terminating an employee only because of complaints from her
subordinates— without investigating the merits of those complaints—may be
unwise, but that’s not the question here.”
None of her challenges disputed that the employee complaints were made
and only focused on the merits of the employee complaints. However, the employer terminated her based on
the fact of the complaints, not their merits.
2)
The plaintiff could not show that the
articulated explanation was not the true motivation for her termination.
a)
The Court rejected her argument that the
employer’s shifting explanation for her termination – to no explanation in her
termination meeting to its articulated reason given only after she filed an
EEOC Charge – was suspicious because the eventual explanation did not conflict
with the lack of explanation during her termination meeting. “’[P]roviding
additional, non-discriminatory reasons that do not conflict with the one stated
at the time of discharge does not constitute shifting justifications.’” Endorsing the practice of refusing to give any
explanation at time of an employee’s discharge: the employer’s “proffered rationales
do not conflict with the reason stated at the time of discharge because [the
employer] provided no reason at the time of discharge.”
b)
Employers are not required by the ADEA to given
an employee any explanation when they are terminated: “[N]othing in the ADEA
requires an employer to justify a termination to the fired employee, even if
she is among the protected class. So an
employer’s explanation for not providing such a rationale cannot alone
establish a genuine dispute as to pretext.” It was irrelevant that the employer
informed her peers 10 days earlier why they were being terminated because they
were not similarly-situated to her (in that they were named specifically in the
government report and acknowledged their culpability).
3)
The plaintiff could not show that the reasons
given were insufficient to motivate a decision to terminate her
employment.
a)
The plaintiff could not identify
similarly-situated comparators by identifying two of her subordinates (of
unknown ages) whose culpability and
performance standard was less than her own or by comparing herself to two peers
who were fired for cause 10 days earlier after admitting their culpability in
the mismanagement. “It cannot be said
that conduct that might be tolerated or treated with progressive discipline at
lower ranks must be similarly accepted from the [highest employee’s] advisors,
who are held to a higher level of professionalism and who are expected to set
the standard of conduct for the [employer].” Indeed, “[f]iring the most senior employee
responsible for mismanagement while maintaining, or even promoting, their
subordinates, despite their involvement in the mismanagement, is an employment
practice that is not unorthodox and is in fact common in some industries.” Moreover, the plaintiff’s misconduct was
worse because she granted unlawful favoritism in the bidding process to the
spouse of a co-worker and was responsible for two programs (instead of one),
while the subordinates were passively each responsible for only one program. At the pretext stage, the comparators must
have engaged in substantially similar misconduct.
The Court also rejected a variety of miscellaneous
arguments that the plaintiff raised to question the truth of the employer’s
explanation for her termination. She
pointed out that five of the nine program directors and senior staff who were
fired or resigned were all over the age of 40, but she failed to identify the
ages of the remaining directors and senior staff. “To [be relevant], the
statistics must show a significant disparity and eliminate the most common
nondiscriminatory explanations for the disparity.” Here, some of the replacements were older than
the terminated employees.
In addition, she could not rely on comments 6 months later about trying to recruit young people because they were irrelevant to the termination of her employment. “Even if [the employer] wanted to attract young people, that says nothing about terminating older employees.” Moreover, even “[i]f these are discriminatory remarks, they can only serve as pretext if “a person in a position to influence the alleged employment decision” made them and they are not “so isolated or ambiguous as to be nonprobative.”
Finally, she could not show pretext from the employer’s
failure to utilize the progressive disciplinary policy which for serious
misconduct required the suspension of the employee pending investigation
because, among other things, the employer did not rely on the policy to justify
her termination, did not treat anyone similarly situated was differently and
had reserved for itself the right to change the policy when it saw fit.
“an employer’s failure to follow self-imposed regulations or procedures is generally insufficient to support a finding of pretext.” . . . We have held that failure to uniformly apply a progressive discipline policy can be evidence of pretext, especially when the company asserts that policy as a rationale for the employee’s termination. . . . And SCHRA did not articulate its progressive discipline policy as a rationale for Miles termination. SCHRA was also not even bound by its own policy. As stated in the first paragraph, SCHRA “retain[ed] the right to administer discipline in any manner it [saw] fit,” such as “bypass[ing] the disciplinary procedures suggested . . .Thus, even in not complying with the ordinary procedures, SCHRA was still acting within its discretion provided by the policy.
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.
