Yesterday, a divided Sixth Circuit reversed an employer’s summary judgment on racial discrimination and retaliation claims. Moore v. Coca-Cola Bottling Co., No. 23-3775 (6th Cir. 8/22/24). The majority agreed that the plaintiff produced enough evidence to demonstrate a factual dispute about whether he was treated differently than white co-workers when he was terminated for testing six times higher than the prohibited threshold while two white co-workers were treated more leniently under comparable circumstances. The Court refused to enforce the release of claims he signed in a last chance agreement given for insubordination despite his college education and failure to request more time to consider it when the entire meeting lasted about 10 minutes, the union vice-president encouraged him to sign it and the release of “all” claims against the employer arising out of employment did not specifically mention discrimination claims. The Court remanded for the trial court’s consideration whether placing him on a second chance agreement and requiring random drug testing after he tested positive for marijuana below the employer’s prohibited threshold was discriminatory. The Court also found that the employer waived its affirmative defense to his failure to exhaust administrative remedies by failing to raise with the district court the plaintiff’s failure to file a Charge of Discrimination about the second chance agreement or mention it in a later charge about his suspension and last chance agreement.
According to the Court’s opinion, the plaintiff had received
college degrees in fashion design and hospital administration, but joined the
defendant employer in 2015 as a warehouse employee after realizing his hospital
career was not going further. He began
filing discrimination complaints with HR starting in August 2016, complaining about
unpaid suspensions, etc. Following an April
2017 accident where he significantly damaged an autonomous vehicle with a forklift
he was driving, he was drug tested, but tested below the prohibited threshold in
the employer’s policy, which provides for suspensions without pay, random
testing for 24 months and immediate termination with another positive test within
60 months under a second chance agreement (SCA). Although
he objected to being placed on a SCA when he tested below the threshold, his
supervisor -- who never saw the drug test results -- told him that he would be fired if he
refused. He did not ask for additional
time to consider the agreement.
In June 2017, the plaintiff and other employees objected in salty
language to a new operations directive. He was then informed that he was being
terminated for insubordination, but the union negotiated a last chance
agreement for him the following month.
He met with the union vice president and his supervisor for ten minutes and
was told that he would not be reinstated without signing the agreement, which
contained a release of all claims against the company and the union. Again, he did not request more time to review
and consider the agreement. He filed a
Charge with the Ohio Civil Rights Commission challenging the termination (when
other white employees also used salty language without being terminated), the LCA
and his failure to receive backpay from his suspension, but did not mention the
SCA. A year
later, he tested positive for marijuana at 6 times the prohibited level and was
terminated in July 2018. While he does
not dispute that he tested positive, he challenged being placed on random drug
testing under the SCA in the first place. In May 2019, he filed an EEOC Charge alleging
that he was treated differently than white co-workers.
The district court found that the plaintiff had waived his
challenge to the SCA and his suspension by signing the release in the LCA. It also found that he could not show that the
employer’s explanation for his termination -- his positive drug test -- was
pretextual. A divided Sixth Circuit
reversed.
In the lengthiest part of the decision, the Court focused on
the questions raised about whether the release of claims contained in the LCA
were voluntary, and thus, enforceable under Title VII. The majority discounted his college
education for lacking legal training and his failure to request any time to
consider the LCA because the union officer had told him to sign it if he
wanted to be reinstated (and possibly poor legal advice) and the entire meeting
lasted only 10 minutes. It also discounted
the fact that he had union representation and was never given an explicit
deadline by the employer when he had to sign it. In considering whether a release is valid
and enforceable, courts will consider the following factors:
“(1) [the] plaintiff’s experience,
background, and education; (2) the amount of time the plaintiff had to consider
whether to sign the waiver, including whether the employee had an opportunity
to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for
the waiver; as well as (5) the totality of the circumstances.” Id. While
weighing these factors, we also “must ‘remain[] alert to ensure that employers
do not defeat the policies of . . . Title VII by taking advantage of their
superior bargaining position.’”
Interestingly, the majority found that the union’s
encouragement to sign the agreement should be held against the employer even
though the union was more accurately aligned with the employee. One has to wonder if merely a friend had similarly
given him poor advice would similarly affect the court’s analysis. In short, it found that a jury should be able
to later decide whether his signature should be considered voluntary:
It is unclear from the record
whether [the plaintiff] was required to sign the LCA the same day that he was
presented with it, or if he was able to request additional time to consider the
contract’s terms. Similarly, the record indicates that [he] did not have an
attorney present but does not provide any information as to whether [he] would
have been permitted to request one prior to his signing the LCA. Most
telling is that Arrington, the union representative in the room with [him] when
he signed the LCA, told [him] to just sign the LCA and that it was “better to
fight with a job than fight without a job.” . . . Reasonable jurors could find that Arrington’s
statements indicated that [his] discrimination claims would survive his signing
the LCA and that they influenced [his] signing the agreement.
Although Moore holds associate’s
and bachelor’s degrees, his education does not provide him with any type of
legal, managerial, or contractual background that would be relevant to
interpreting the LCA’s terms in a manner essentially at odds with what the
union representative told Moore. . . .
The Court also questioned whether the simple language
releasing all claims against the employer and union relating to his employment
arising prior to that date was sufficiently clear when the simple sentence did
not explicitly mention discrimination or statutory claims.
In other cases where we have found
that such provisions are straightforward in their terms, the contracts have
explicitly stated that the employee was waiving the right to bring a
discrimination suit, . . . or that an
individual must “arbitrate any legal dispute relating to their employment . . .
, including all state and federal statutory claims,” . . . . The LCA that [the plaintiff] signed is
not precise in explaining what was meant by “any and all liability of any kind
whatsoever relating to his employment with” CCBC, and [he] lacks a background
that would help him to interpret this term. Most important in [his] case is [the union
officer’s] statement in the context of signing the LCA that it was “better to
fight with a job than fight without a job.”
. . . . As discussed above, particularly important
in this case are the facts that (1) the union representative effectively
suggested that [the plaintiff] would be able to seek legal recourse
notwithstanding [his] signing of the agreement; (2) the agreement was not clear
with respect to what rights [he] was waiving; and (3) [the employer] was in a
better bargaining position. In other words, consistent with our caselaw, [his]
education and experience are not “dispositive,” but rather are considered in
the full context of the other waiver factors. . . . Indeed, the union
representative’s comments alone suggest that the waiver was not likely knowing
and voluntary: it is natural for an employee to trust that their
representative’s representations concerning that employee’s rights are fair and
accurate.
The Court also rejected the employer’s accurate argument
that the plaintiff had failed to exhaust his administrative remedies because he
never filed a Charge of Discrimination challenging the SCA because the employer
never raised this argument in its summary judgment motion before the trial
court. The failure to exhaust
administrative remedies is an affirmative defense.
In addition, the Court found that the plaintiff had produced sufficient
evidence for the jury to consider whether the justification for terminating him
-- the admitted positive drug test -- was pretextual because it was
insufficient to motivate his discharge when other employees were not terminated
under similar circumstances. He alleged
that he was targeted for drug testing six times -- more than any other employee
-- even though two of his co-workers “were permitted to come to work under the
influence of alcohol or drugs and were not likewise penalized.” He alleged that one co-worker “was likewise
on an SCA, but was not tested during this time, nor was [that employee] fired
after he had a positive drug test while on a SCA” following an accident. Instead, the white co-worker wasn’t fired for
more than a year after he failed a third drug test.
A two-strikes policy for firing
Black employees and a three-strikes policy for firing white employees would
plainly constitute disparate treatment and raise pretext concerns. At this
stage, all that we look for is similarly situated comparators who “were not
fired” despite engaging in “substantially identical conduct to that which the
employer contends motivated its discharge of the plaintiff.”
Because the trial court did not consider pre-LCA events, the
Court remanded for further consideration the plaintiff’s argument that that he
was placed on random drug testing under the SCA even though it was not factual
that he failed the first drug test.
Finally, the Court had no difficulty in finding adequate evidence
for the jury to consider about the retaliation claim. The plaintiff had filed many internal
discrimination grievances with HR, which were known to his manager. He submitted one complaint a mere week before
the final random drug test that resulted in his termination. “Given the
temporal proximity between Moore filing his EEO grievances and the adverse
employment action taken against him, Moore has shown “sufficient temporal
proximity to establish a causal connection.”
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.
