Sixth Circuit: No Discrimination If Employer Honestly Believed the Plaintiff Was Poor Employee

On Friday, the Sixth Circuit affirmed summary judgment in favor of an employer on an age discrimination and retaliation claim even though the Plaintiff’s supervisor made comments two years before her termination that most of the employees were old like her and she received a negative performance evaluation days after complaining about her perception of age discrimination.  Blizzard v. Marion Technical College, No. 11-3441 (6^th Cir. 10-19-12).  Without discussing the cat’s paw theory of liability, the Court found that the comments were not related to the termination decision even though the speaker was the person who recommended the plaintiff’s termination.   The court also found that the negative performance evaluation was not sufficiently important to constitute an adverse employment action that would deter someone from engaging in protected conduct.  Nonetheless, the court found that the plaintiff’s replacement – hired seven months after her termination – was sufficiently close in age (a mere 6.5 years younger) so that the plaintiff could satisfy her prima facie case.   In the end, the court found there was insufficient evidence of pretext because she could not prove that the employer did not honestly believe she was a poor performer and because her termination took place more than six months after her protected conduct.

There were a number of interesting issues in the case.  First, the Court refused to confine the reasons for the plaintiff’s termination to her notice of termination.  Instead, it also considered the memorandum recommending her discharge and her performance evaluation from two years earlier.   Second, the court refused to give weight to opinions of the plaintiff’s job performance offered by co-workers who had infrequent interactions with her or a supervisor who left three years before she was terminated.

Third, the court declined to find pretext about the quality of the plaintiff’s work performance because the employer honestly believed that her performance was subpar. 

 

This court has adopted a “modified honest belief” rule, which provides that “‘for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.’ . . . The employee, in turn, “must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is ‘too obvious to be unintentional.’ To overcome the employer’s invocation of the honest belief rule, the employee “must allege more than a dispute over the facts upon which [the] discharge was based. He must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment action.”

The plaintiff attempted to expose the employer’s dishonest belief by attacking the employer’s failure to investigate the allegations made against her by her supervisor. “However, it is not necessary “that the decisional process used by the employer be optimal or that it left no stone unturned.”  It was only necessary that the employer’s reliance on the facts before it at the time of the decision to dismiss her was reasonable.  An employer need only show that it made a reasonably informed and considered decision to terminate the plaintiff’s employment.  The plaintiff’s disagreement with the decision to terminate her is insufficient to demonstrate discrimination.

Fourth, the court rejected the plaintiff’s argument that her performance failings were insufficient to motivate her termination because younger employees made the same mistakes but were not fired.   The court found the comparators were not similarly situated because their conduct and mistakes were not “substantially identical.”  While one employee made typographical errors that resulted in checks being returned, the plaintiff’s mistakes resulted in double payments to vendors. “These are not acts of comparable seriousness.”  

Fifth, the court refused to find pretext from a statement – about her being old --  made by her supervisor two years before he recommended her termination because it was not related to the termination decision.

Sixth, the court rejected any argument about her being retaliated against because of discrimination complaints she made to the Human Resources Department because there was no evidence that HR told her supervisor or his boss before they decided to terminate her employment.   The court also refused to infer retaliation from complaints she made more than a year before her termination about discriminatory actions and statements by her supervisor.  “This timing does not “raise the inference that [the] protected activity was the likely reason for the adverse action.”

 Finally, the court refused to find retaliation in her negative performance evaluation, which was given only days after her first complaint of discrimination because she failed to show that “the performance evaluation constituted a materially adverse action.”

An adverse action is material if it “would ‘dissuade[] a reasonable worker from making or supporting a charge of discrimination.’ . . . Generally, a negative employment evaluation does not rise to this level unless it “significantly impact[s] an employee’s wages or professional advancement.” . . . [The plaintiff] has produced no evidence to support a conclusion that her June 2006 appraisal reduced her compensation or possibility for future advancement. Therefore, the 2006 performance evaluation was not a materially adverse employment action for the purposes of [her] retaliation claim.

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.

Age Discrimination Can Be a Sloppy Business

On October 15, 2007, the Sixth Circuit reversed a summary judgment which had been entered in favor of an employer in an age discrimination case and began its opinion as follows:

"When a fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee, can the employee’s age-discrimination claim survive summary judgment? We believe it can."

In Blair v. Henry Filters, Inc., No. 05-2437, the court returned the case to the district court for trial. The employer lost on appeal even though it showed that it had laid off two under-40 employees at the same time as plaintiff (and had reduced its workforce from 143 employees to just 52 employees in only two years) and the employer's witnesses denied the plaintiff’s version of events and that the decisionmaker was the same person making the ageist comments alleged by the plaintiff. However, courts are not permitted to weigh credibility at the summary judgment stage.

The appellate court noted that the comment about the plaintiff being “too old” to be handling the employer’s Ford account was direct evidence of his removal from the Ford account on account of his age, but was not direct evidence that he was terminated on account of his age. However, the cumulative effect of the comments and the fact that a twenty-year old salesperson was hired in some capacity four months later were enough to create a circumstantial case of age discrimination. The court also noted that plaintiffs in a RIF case had a lower burden of proof than in the typical discrimination case:

"We recognize that this holding comes close to permitting a plaintiff in a reduction-in-force case to get to a jury merely by creating a genuine issue of material fact regarding the prima facie case. But to create a genuine issue of material fact regarding the employer’s actual motivation, a plaintiff must still provide evidence from which a reasonable jury could conclude that an illegal motivation was more likely the reason for the adverse employment action. To create a genuine issue of material fact regarding the prima facie case in a case involving a reduction-in-force, a plaintiff’s standard is lower. The plaintiff must supply evidence tending to indicate that the employer singled the plaintiff out for impermissible reasons. Accordingly, creating a genuine issue of material fact regarding the prima facie case is not a free pass to a jury, even in a reduction-in-force case."

The employer could take some solace in the fact that the appellate court affirmed the dismissal of the plaintiff's hostile work enviornment claims on the grounds that the same discriminatory comments which created the circumstantial evidence of age discrimination were insufficient to interfere with his job performance.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/052437p.pdf.