Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on a Title VII sexual orientation and retaliation claim where the plaintiff had been fired for misconduct a year after being hired and receiving several promotions and raises. Boshaw v. Midland Brewing Co., No. 21-1365 (6th Cir. 4/26/22). The Court found it speculative that his sexual orientation was held against him when he received three promotions within 8 months of being hired when he never hid his sexual orientation on his Instagram account and reposted it on his Facebook account after his first promotion. It is not illegal to discriminate against or request an employee to change their “spiky” hairstyle or hide visible body piercings. Further, the passage of three months between his protected activity and his termination was “a firm indicator of a lack of a causal link.” Finally, he could not plead or prove a hostile work environment based on a few isolated and discrete discriminatory actions.
According to the Court’s opinion, the plaintiff had been
initially hired as a server. His manager
told him that he would be considered for promotion if he would “act a little more
masculine,” change his spiky hair style and remove his visible body piercings. While the plaintiff deleted his Facebook
status, combed over his hair and removed the piercings, he did not change his
Instagram page which pictured his male partner, children or gay hashtags. Within a couple of months, he received three promotions
to the second highest position in the restaurant. In the meantime, he re-posted his Facebook
relationship status. The plaintiff had
a positive relationship with his manager, calling her “the best boss ever” and
thanking her for his career. When he was
almost lured away by a competing restaurant, he was given a raise. When he told the owner about his manager’s
prior comments about his needing to act more masculine, the owner promised to “make
it right” with him and between him and his manager.
However, the plaintiff’s employment was not without
problems. One of the employees – with blue
hair – was receiving customer complaints about blue hair in their food and
plaintiff did not handle the complaints well. He also sometimes overstepped his authority
and failed to communicate problems with management. The final straw came when he refused to
attend a mandatory meeting, telling a subordinate that he was going to get out
of it because he was not going to pay for childcare for the meeting, which was a
waste of time. He then failed to show
up for his shift that same evening. He
had confirmed his schedule the day before and with an employee that same
day. He also failed to return a call
from his manager. He was fired the next
day.
While his manager’s comments about his masculinity might
have constituted evidence of animus, there was no evidence that the comments resulted
in a delay or denial of any promotions or any adverse employment action. The plaintiff never disguised his sexual orientation
on his Instagram account and reposted his gay status on his Facebook page after
his first promotion and before his second and third promotions. The plaintiff’s subjective belief that his manager
possessed discriminatory animus was insufficient to survive summary judgment.
In other words, [the plaintiff] was promoted despite his open and obvious noncompliance with the supposed condition on his social media postings. To the extent [he] argues that the fact he was promoted only after he changed his hairstyle from “spiky” to “combed over” is evidence of gender stereotyping, we know of no such stereotype, and [he] fails to identify one.
In all, [he] secured three promotions in eight months, rising from an entry-level server to front-of-house operations manager. All things considered, [his] rapid rise shows that Midland did not delay or deny his promotions because of sex discrimination. No rational trier of fact could find otherwise.
The Court also rejected the plaintiff’s retaliation claim
where he alleged that his manager subjected him to “hyper scrutiny” after he informed
the owner about her prior comments concerning his sexual orientation. Each of the instances he identified were grounds
for legitimate criticism: his handling
of the blue hair in customer food, exceeding his authority with vendors and
employees, bringing the wrong resume to a job interview, etc. Moreover, more than three months had passed between
when he reported her comments and when he was fired, weakening any possible
temporal proximity. The Court described
this as “a firm indicator of a lack of a causal link” between his protected
activity and the adverse employment action. Finally, he failed to produce evidence that
any employees were similarly situated to his position or misconduct.
In any event, there was no evidence that the employer’s
explanation for his termination was pretextual. The plaintiff admitted that he believed the owner
“honestly believed” he missed a mandatory meeting and shift. His manager did not learn until after the
termination that the plaintiff may have believed that his absence had been
excused. “This evidence satisfies the
“honest belief rule,” which precludes a finding of pretext when an employer’s
nondiscriminatory reason for terminating an employee is later proven false, so
long as the employer can show that it honestly believed the reason was true
when making the termination decision.”
Finally, the Court agreed that the plaintiff failed to plead
or prove a hostile work environment claim with a few discrete and isolated acts
of possible discrimination. This was
insufficient when “a hostile work
environment claim requires a plaintiff to demonstrate a “workplace . . .
permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.”
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.
