Yesterday, as I was participating in a webinar on the Honest Belief Rule, the Sixth Circuit affirmed an employer’s summary judgment in part because of – you guessed it – the Honest Belief Rule. Okakpu-Mbah v. Postmaster, No. 21-2811 (6th Cir. 2022). The plaintiff had been fired at the conclusion of her 90-day probationary period for not working fast enough in sorting the mail. The Court agreed that she could not show that the employer’s explanation was pretextual in light of documents showing that her efficiency had previously been rated as unacceptable, that she did not improve and, according to all of the other supervisors, was still working too slow by the time of her 80-day evaluation. The Court also refused to find pretext from the use of a subjective standard for efficiency because there was no evidence that the employer had manipulated or abused the standard to single her out. It also refused to compare her to co-workers whose performance deficiencies were different and improved over time.
According to the Court’s opinion, mail sorters receive 30,
60 and 80 day evaluations during their 90-day probationary period. The Employee Handbook states that they will
be separated during orientation as soon as it becomes evident that they are
unable to meet the requirements of the position. The plaintiff received a satisfactory 30-day
probationary evaluation, except that her productivity was rated unacceptable. She
denied receiving a 60-day evaluation (which was disputed). However, as her 80-day evaluation approached,
her supervisor reached out to other supervisors for their opinion. One emailed that the plaintiff was very slow,
did not grasp the concept, demonstrated no sense of urgency and sometimes had
to be reassigned to a different task.
The local postmaster recommended that she be terminated. She was terminated following her 80-day
evaluation for inefficiency and brought suit alleging age, race and national
origin discrimination and retaliation. The district court granted the employer
summary judgment.
The Court rejected the plaintiff’s argument that the
employer’s explanation was pretextual because the rationale was insufficient to
motivate the employer’s action. She
pointed to the fact that no other employee had ever been fired for working too
slowly. However, the Court summarily
rejected her argument on the grounds that the Employee Handbook:
says that employees “should be separated as soon as it becomes evident that they are unable to meet the requirements of their positions.” Handbook § 584.35. Working inefficiently is sufficient to motivate the firing.
The Court also rejected the plaintiff’s argument that her
termination lacked a basis in fact based
largely on the Honest Belief Rule. The employer
produced her 30-day evaluation showing that her productivity had been rated “unacceptable”
and indicated that she never improved. The
employer also produced an email from one of her supervisors indicating that she
worked very slowly and could not keep up with her co-workers. Although the employer did not use objective
metrics to measure productivity, the plaintiff’s own subjective view of her performance
was insufficient to create a disputed issue of fact about whether the employer’s
explanation was reasonably based on facts.
Her supervisor’s “belief about [the plaintiff’s] performance was
reasonable. Not only was the belief based on [her] own observation, but also on
the observations of other supervisors who all agreed she was working slowly.” Because the supervisor’s conclusion was
reasonable, the plaintiff “cannot show pretext by showing it was wrong.”
[A]n employer’s use of subjective reasons in terminating an employee, without more, “does not raise an inference” of discrimination. . . . And [plaintiff] “has offered no evidence from which a reasonable juror could infer that the [employer] manipulated, abused, or misapplied that criteria to affect” her chances of being retained at the end of the probationary period. . . . . So even when an employer uses an “evaluation process [that] was haphazard” that alone cannot create a “reasonable inference” of discrimination. . . . . And an employer’s “unwise business judgments” or “faulty evaluation system” does not establish an inference of discrimination either.
The plaintiff’s efforts to show that her inefficiency did
not actually motivate her terminations failed largely from lack of specificity. She did not show how other events were “’logically
or reasonably tied’ to the adverse action against her, that the same “bad
actors” were involved, or that the conduct was in close temporal proximity,
among other factors.” Among other things, she incorrectly claimed
that four employees had been fired and could not show that her supervisor was
involved in the termination of the fifth. Her attempt to show better treatment of white coworkers
failed because their negative evaluations related to their attendance and not
to their productivity. Thus, “[s]uperficial
similarities between a disciplined employee and his colleagues” are not enough
to make them comparators.” Further, some
of her alleged comparators improved their performance while the plaintiff did
not. The third comparator had a valid
excuse for her absences.
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.
