Sixth Circuit Rejects Pregnancy and FMLA Claims and Cat's Paw Theory and Evidence of Alleged Pattern and Practice Discrimination to Show Pretext Despite Temporal Proximity Evidence

Last week, the Sixth Circuit affirmed an employer’s summary judgment on claims of pregnancy discrimination and FMLA interference and retaliation after the plaintiff had been fired in a RIF just 10 days after she disclosed her pregnancy to her new supervisor and a couple of HR employees.  Johnson v. Evolent Health, LLC., No. 22-5574 (6^th Cir. 3/2/23).  The Court agreed that there was no evidence showing that anyone who had been involved in the RIF and decision to terminate her employment knew that she was pregnant.  While temporal proximity is often enough to show causation, “the individuals who decided to terminate [the plaintiff] must still have ‘had actual knowledge of her pregnancy at the time that the adverse employment action was taken’ for a nexus to exist.  “Because [the plaintiff] failed to show that any individual who participated in the RIF process knew she was pregnant at the time of her termination, and because she cannot show that any employee who was aware of her pregnancy showed any animus towards her or influenced the decisions of decision makers [under a cat’s paw theory], she has not established a prima facie case of pregnancy discrimination.” The Court also rejected evidence of alleged pattern and practice discrimination to show pretext because it does not evaluate individual employment decisions.   The Court rejected her FMLA claims on the same grounds.

According to the Court’s opinion, the plaintiff was hired in 2018 and had received only “below expectations” on her first two annual performance evaluations and was about to be placed on a Performance Improvement Plan.  Instead, the company decided to eliminate her department and offered her a transfer to a new team, which she accepted, sometime in 2020.  Her new supervisor reached out to her on February 10, 2020 to let her know that the reorganization would take place in a few weeks.  Meanwhile, on February 5, the Company identified the plaintiff and 67 other employees with poor performance evaluations for a reduction in force.  After analyzing which employees would have the least impact, 33 of them (including the plaintiff) were selected for the RIF on or about February 20.  All of these discussions were held among individuals who did not supervisor or manage the plaintiff.  Rather, her former supervisor was not informed until February 20 and was instructed that he would be the person to inform plaintiff since the reorganization had not yet been completed.  However, a few days earlier – on February 14 – the plaintiff had requested two days off from her new supervisor for doctor’s appointments because she had discovered that she was pregnant with twins.  The supervisor directed the plaintiff to contact Human Resources, but did not tell anyone else about the pregnancy.   The plaintiff then contacted the benefits department, which asked a few questions and put her on a tracking spreadsheet for pregnant employees.  On February 24, different Human Resources employees informed the plaintiff that her role was being eliminated and her employment terminated.  She protested that she had just been transferred and explained that she was pregnant.   No one else performing her duties was hired until the following year.  The plaintiff then filed suit for pregnancy discrimination and FMLA interference and retaliation.

The Court closely examined who had been involved in the RIF and termination decision (which had been finalized on February 21) and who had been informed of the plaintiff’s pregnancy on February 14.  It agreed that there was no evidence that anyone involved in the RIF decisions had been informed of the plaintiff’s pregnancy.  Rather, the plaintiff had only informed three people and none of those people share that information with anyone else, let alone anyone who was involved in the RIF decisions. 

Temporal proximity between the announcement of an employee’s pregnancy and that employee’s termination can sufficiently establish a nexus between the events. . . . . Even so, the individuals who decided to terminate [the plaintiff] must still have “had actual knowledge of her pregnancy at the time that the adverse employment action was taken” for a nexus to exist.

The Court rejected the plaintiff’s argument that other HR employees had access to the shared email box or tracking spreadsheet because they denied ever reviewing the information or learning about her pregnancy before her lawsuit.   The plaintiff could only speculate that other HR employees had actual knowledge and no actual evidence.

The Court also rejected the cat’s paw theory because she did not allege – let alone prove – that the individuals with knowledge of her pregnancy had any discriminatory animus whicvh they then used to influence others into taking discriminatory actions.

“In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” . . . . But the “predicate to cat’s paw” is a demonstration of discriminatory animus: that “by relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of the supervisor's prejudice––his cat's paw.’”  . . . [The plaintiff] does not allege that any subordinate employee, aware of her pregnancy or not, showed any discriminatory animus towards [her].

In any event, the plaintiff also could not show that the employer’s explanation for her termination was pretext for discrimination.   The plaintiff attempted to challenge the termination decision – based on her documented poor performance – because ultimately only half of the employee initially selected on February 6 were actually terminated and no extra supporting comments were offered to support her termination.  However, it was undisputed that she had poor performance scores and she was not the only terminated employee without extra supporting comments. 

The Court also rejected her argument that the employer’s explanation had shifted from position elimination to poor performance.  However, the Court did not find it inconsistent to find that her position had been selected for elimination based on her poor performance.   While the termination script never mentioned her poor performance, it never gave any explanation for how or why she had been selected for termination.

The Court also rejected the plaintiff’s argument that pretext was shown because approximately 10% of pregnant employees were terminated by the Company.

pattern or practice evidence is unavailable to assess an individual plaintiff’s discrimination claim.  . . . Pattern-or-practice evidence is generally “inappropriate as a vehicle for proving discrimination in an individual case” because it does not evaluate individual hiring decisions. . . . It can support, however, an “otherwise-viable individual claim for disparate treatment under the McDonnell Douglas framework,” although a plaintiff must still satisfy the McDonnell Douglas framework to prevail. Id. [The plaintiff] is unable to separately satisfy the McDonnell Douglas framework. Thus, this evidence does not raise a triable issue of fact nor does it allow [her] claims to survive summary judgment.

Similarly, the Court again rejected the temporal proximity of her pregnancy announcement and the termination decision as evidence of pretext:

The temporal proximity of [her] disclosure of her pregnancy and her termination may be indirect evidence of pretext but cannot alone support pretext here. . . . . Even when the timing appears “suspect,” it “must be accompanied by other, independent evidence of pretext for [the plaintiff] to succeed.”

The Court likewise rejected her FMLA arguments because she could not show pretext for the employer’s decision for the reasons discussed above and because at least one other employee had been terminated without requesting FMLA leave.

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.

Sixth Circuit Rejects Cat's Paw Theory for Discriminatory Job References in Hiring Cases

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim based on its failure to interview or hire an applicant with 30 years of experience, but who had poor job references.  Flowers v. WestRock Services, Inc., No. 20-1230 (6^th Cir. 2020).  The plaintiff admittedly could not satisfy certain qualifications for the job established in the job description and was not entitled to override the employer’s ability to establish its own job criteria.  The plaintiff also could not show pretext based on a generic, automated message about preferring more candidates who more closely matched the job requirements.  Interestingly, the Court held that the cat’s paw theory of discrimination did not apply to hiring decisions because the employer could not independently investigate the basis of a negative job reference from a prior employer. “If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms.”

According to the Court’s opinion, the plaintiff had 30 years of pipefitting experience prior to his 2013 retirement.  He had been told about an open pipefitting position with the defendant employer, which required the ability to read blueprints, to select the type and size of appropriate pipe, and to weld, etc.  He applied online and did not reveal his age.  However, he was not interviewed when a former supervisor now working for the defendant employer reported on his poor work ethic and this was confirmed by another former supervisor contacted by the employer.  He was informed through an automated message that the employer had decided to pursue other candidates whose skills more closely matched the desired requirements and qualifications.   The employer apparently hired two temporary contractors at a higher billing rate.  After the plaintiff heard that a younger candidate with less pipefitting experience, but extensive welding experience, had been hired, this lawsuit followed.  

During his deposition, the plaintiff admitted that he was unable to read blueprints and lacked experience selecting the type and size of pipe appropriate for a job.  He also was not certified in welding because he did not like welding.  The successful candidate was an extremely experienced welder, but there is no discussion of whether he met the other qualifications.  Accordingly, the trial court granted the employer’s summary judgment motion because the plaintiff could not show that he was qualified for the position due to his failure to satisfy the basic requirements for the position.   The trial court also found it was common sense that the employer would prefer to interview a candidate about whom it knew nothing over a candidate with poor job references.

Flowers’s failure to show he was “otherwise qualified” for the job of Journeyman Pipefitter dooms his claim. From the summary judgment record, Flowers has not demonstrated that his “qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field,” as set out in the job description. . . . Noting Flowers’s admission that he does not know how to select the size and type of pipes or read blueprints, two of the listed job requirements, and aware of Flowers’s disinterest in welding, another job duty, the district court held that Flowers failed to show he was otherwise qualified for the position. We see no error in that conclusion. Requiring a plaintiff to establish a prima facie case under the ADEA framework serves to eliminate the most common nondiscriminatory reasons for an employer’s action. . . .  One such reason is an applicant’s lack of qualifications. WestRock desired a pipefitter who could read blueprints and select pipes, and who also had an interest in welding. Flowers missed the mark in each respect, the first two by his own admission, and the third due to his lack of interest in welding as much as “seven days a week, twelve hours a day.”

Rather than challenging those conclusions, Flowers instead challenges the premise that these skills are necessary for the position. To his mind, pipefitters do not need to read blueprints, nor should they be required to make pipe selections. But as the one who creates the position in question, the employer largely enjoys the right to decide the qualifications it prefers in one who holds the position and, it follows, whether an applicant lacks the necessary knowledge or experience.. . . And given an employer’s superior knowledge of its workplace and industry, the employer’s stated job requirements will typically be the objective criteria by which we measure a fail-to-hire claim. . . . Who, after all, better understands the relevant field and the corresponding skills necessary to succeed than the employer? Not a federal court, one reason why we do not “substitute [our] judgment for that of management” when it comes to business decisions like setting necessary job qualifications.

The Court also agreed that the plaintiff could not show that the employer’s explanation was pretextual based on the poor job references he received.   The plaintiff did not and could not dispute that he had received poor job references.   He also failed to show that his age was a factor.  His age was never indicated on his job application, in any of the negative job references, and, even considering his 37 years of work experience, he could have been as young as 55 (instead of his actual age of 71).

The plaintiff could not show pretext on the basis that he passed the initial review of his application as “generally qualified” because it was undisputed that he received negative evaluations of his work ethic at the next stage.   The Court also refused to find pretext from the employer’s automated message that the employer was pursuing more qualified candidates instead of bluntly telling him that he had poor references.    (This part of the decision is confusing because it indicates that the employer did not in fact consider other, more qualified candidates, despite the factual summary indicating that a candidate with welding experience was hired).  

Accepting Flowers’s contention, moreover, seemingly would impute a legal duty on employers to reject applicants in blunt, precise terms. Some employers may have no objection to telling someone like Flowers that he was not hired because two people, including a prior coworker, thought he had a bad work ethic. Yet many others surely would prefer to respect social etiquette, avoiding hard truths when possible. Either way, certainly the ADEA does not require the former, nor does it suggest that the latter is evidence of age discrimination.

The Court also found that the plaintiff failed to show that the negative references were insufficient to justify the hiring decision because the plaintiff did not show that any other candidates were considered with similarly poor references.

Flowers says there are three such WestRock employees. Yet of the three, WestRock provided evidence that one was hired before Flowers applied, and another was already employed by the company before being moved into a pipefitting apprenticeship. And as to the third, Flowers provides no evidence that the employee received negative references or lacked required skills as did Flowers.

As a final salvo, Flowers invokes an economic rationality argument to justify his age claim. Noting that WestRock paid two contractor pipefitters substantially more than he would have been paid as an employee, Flowers paints this purported “irrational economic decision” as evidence of age discrimination. True, in some circumstances we may consider the reasonableness of an employer’s decision to the extent it explains whether an employer’s proffered reason for an employment action was its actual motivation. Wexler, 317 F.3d at 576. Whether WestRock relied on temporary contractors, however, has little bearing on whether the company was motivated by the negative references.

Finally, the Court rejected the plaintiff’s attempt to prove discrimination through a cat’s paw theory.  Indeed, the Court found that the cat’s paw theory should not apply in hiring decisions because HR could never independently investigate whether a prior employer held a discriminatory animus.  In any event, the Court found that the plaintiff failed to show that the individuals – inside and outside the employer – held an age bias against him when they recommended against hiring him.

Cat’s Paw.  Failing on these fronts, Flowers embraces a novel understanding of what has come to be known as the “cat’s paw” theory of discrimination. The customary application of that theory involves a supervisor who “performs an act motivated by [prohibited] animus that is intended by the supervisor to cause [the formal decisionmaker to take] an adverse employment action.” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011). Where a supervisor engages in that type of conduct, and where the supervisor’s “act is a proximate cause of the ultimate employment action, then the employer is liable.” Id. This theory of liability serves to prevent the ultimate decisionmaker—for example, a middle manager—from being a shield for a supervisor’s discriminatory intent.

While this theory has been applied to purported discrimination against a company’s current employees, it is quite another thing to extend it to mere job applicants as well. Doing so would place a tremendous burden on human resources employees in culling through applications. After all, a disgruntled applicant could always allege that those employees did not do enough diligence in considering an applicant’s references, both positive and negative, and that one reference or another had some impermissible bias. If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms. That is unlike the narrower focus of a cat’s paw claim asserted by a current employee or group of employees.

To the same end, whereas the relevant job history for a current employee is likely internal to the company, in the hiring context the relevant history will often lie with another employer. That makes those matters difficult to investigate. Nor, it bears emphasizing, should an employer be liable for the bias of an outsider. Take this case, for example, where one of the negative reviews of Flowers came not from a WestRock supervisor but rather from an employee of another company. While the cat’s paw theory might apply to root out supervisory employees who attempt to shield their discriminatory motives through an internal third-party, it makes little sense to apply that same theory to an allegedly impermissible motive that stems from one who does not even work for the company in question. In the district court’s words, extending the cat’s paw theory as Flowers urges is simply “beyond the pale.”

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.

Sixth Circuit Rejects Employer's Independent Investigation and Honest Belief Defenses and Finds Cat's Paw Theory

In June, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in a USERRA retaliation case on the grounds that the plaintiff produced sufficient direct evidence of discrimination, produced sufficient evidence to proceed under a cat’s paw theory and the employer’s explanation was clearly pretextual when the plaintiff had been fired, in part, for engaging in conduct that violated corporate policy as directed in a text message by his allegedly biased manager.  Hickle v. American Multi-Cinema, Inc., No. 18-4131 (6^th Cir. 2019).  The employer could not rely on an honest belief defense when the investigator did not interview witnesses to the biased threats to terminate the plaintiff for a pretexual reason on account of his military service and supported the termination of the plaintiff in part for violating a policy at the clear direction of his manager who was allegedly biased against him.   

According to the Court’s opinion, the plaintiff had been hired while in high school, joined the national guard, served overseas and was promoted to kitchen manager.  Over the years, his manager repeatedly complained about his military leave and he complained about this to the General Manager.  He was never denied military leave.   When he reported that he required military leave the weekend of a big Avengers movie release in April 2015, his manager indicated in front of another employee that he might be fired if he did not report to work.   He also heard from other employees that his manager was planning to set him up to get fired and he reported this to his manager, who texted him that he should obtain written statements about this before leaving for the day.   Apparently, investigating workplace misconduct is exclusively reserved for corporate employees and obtaining witness statements is considered to be impeding an investigation.  In the meantime, he was involved in a dispute with two subordinates that lead to their termination for trying to take home too many leftover chicken-fingers.  


A corporate investigation commenced and he reported to the investigator that his manager had openly resented his military leave and indicated that he could be fired for attending drill instead of the Avengers premiere.  The investigator also indicated that the General Manager thought he should be fired.  The investigator did not interview the employee who heard the manager threaten the plaintiff with termination.  In the end, the investigator found that the plaintiff had engaged in several instances of misconduct, and he was fired in April 2015 for the chicken finger episode and impeding an investigation, despite the written instruction from his manager.   


On appeal, the Court found that he had produced sufficient direct evidence of retaliation with (disputed) evidence of his manager’s comments to him and his repeated complaints about it to the General Manager and to the investigator even though the discriminatory comments were not made by the decisionmaker or investigator who made the recommendation.   The Court was influenced by the fact that the plaintiff had been terminated for violating a rule at the explicit direction of the manager who had threatened to have him fired for attending national guard drill that same month during the Avengers premiere.

The decisionmaker (Bradley) and those with direct input (Kalman and Melton-Miller) knew about Adler’s persistent, discriminatory comments. . . . In sum, the decisionmaker knew that Hickle was told to commit a fireable offense—gathering statements and thereby impeding an investigation—by someone Hickle had repeatedly said had made discriminatory comments threatening his job.  Yet the decisionmaker chose to fire Hickle.

The Court also found sufficient evidence to proceed to a jury with a cat’s-paw theory of liability.  As previously explained by the Supreme Court, ““if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  The trial court did not find it to be a jury question whether the manager intended to cause the plaintiff to be fired when she directed him to obtain witness statements in violation of company policy even though she had very recently told him that he would be fired for a pretextual reason if he missed the Avengers premiere in order to attend military drill.   Drawing inferences in favor of the plaintiff could lead a jury to believe that the manager texted him order to set him up to be fired.


The Court indicated that it was also a question for the jury whether an independent investigation by corporate broke any chain of causation between the manager’s alleged animus and the decision to terminate the plaintiff’s employment.   On one hand, the plaintiff may have engaged in other misconduct as alleged by other employees involving the chicken-finger incident which was also cited as additional reasons for his termination, but on the other hand, the investigator weighted the “impeding the investigation” more heavily in her deposition testimony and failed to interview key employee witnesses who could have supported the plaintiff’s concerns with anti-military animus. “As best as we can tell, the investigation consisted mostly of gathering statements from a few employees, and was not necessarily thorough.” (But the deposition at issue admittedly was not clear).   Moreover, the investigator referred to the General Manager as her “partner” in the investigation.


The Court also found that the plaintiff produced sufficient circumstantial evidence of retaliation, particularly from the employer’s failure to articulate a cogent explanation for why “impeding an investigation” was an dischargeable offense when his own allegedly biased manager directed him to do gather the witness statements at issue.   The Court did not find it to be a close question whether sufficient evidence had been produced merely because the employer had always granted the plaintiff’s military leave requests.

We do not find this fact to be determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.  Certainly, granting Hickle’s leave requests helps AMC’s case, but it does not insulate AMC from charges of retaliation.

While the district court found that the employer had satisfied its burden of proving that it would have terminated the plaintiff even if he had never served in the military because of the other incidents alleged by his subordinates, the Court found that this was a question for the jury because:

it remains an open question whether the decisionmaker relied solely on the chicken-finger incident in deciding to terminate Hickle, and whether she would have reached the same conclusion in the absence of the charges of impeding the investigation. 

  The Court distinguished a case where the investigator did not know about the potential discriminatory animus and conducted a more thorough investigation.  The Court also rejected the employer’s honest belief defense when the investigator was aware of the manager’s potentially biased motive in directing the plaintiff to violate corporate policy and obtain witness statements.

Here, [the investigator] knew of Hickle’s USERRA complaints and knew that Adler told Hickle to take action that would amount to impeding the investigation; nevertheless, Bradley seems to have considered the charge of impeding the investigation relevant to the decision.  Thus, the honest-belief rule does not help the defendant.  The “particularized facts that were before [the employer] at the time the decision was made,”  . . ., included Adler’s anti-military comments and her text to Hickle telling him to collect statements.  This was not a case in which the decisionmaker was acting on a clean record and in ignorance of lurking discriminatory motives.  The decisionmaker was fully aware of the facts suggesting that the “impeding the investigation” charge was pretextual.

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.

Sixth Circuit: No Summary Judgment for Employer in Sex-Plus Race Title VII Case Or Honest Belief Defense Based on Cursory Investigation

Last week, the Sixth Circuit Court of Appeals reversed summary judgment for the employer in a Title VII case.  Shazor v. Professional Transportation Management, Ltd., No. 13-3253 (6^th Cir. 2-19-14).  Among other things, the Court held that the plaintiff could survive summary judgment even though she was replaced by a female because her replacement was not an African-American female.  In other words, the Court employed a sex-plus analysis and decided to not separate her sex from her race. The Court also found that the plaintiff could show that the employer’s explanation for her termination – that she had been dishonest – was pretextual simply by creating an issue of fact as to whether her challenged statements were false.  The Court also rejected the employer’s honest belief defense because it only interviewed one witness about whether the plaintiff had lied during a board meeting and never questioned her about her motive for the misstatements.   While the sole interview might have been sufficient to discharge her for “overt misconduct,” it was insufficient to determine the truth or motive behind her statements.

According to the Court’s opinion, the defendant employer provided management services to a transit authority and, among other things, assigned plaintiff to be the transit authority’s CEO even though she had worked in public transit only two years.  When the plaintiff refused to participate in educational seminars that her employer provided, some of its management began questioning  her loyalty and whether she was attempting to be hired directly by the transit authority.  She was referred to in some emails as a “prima donna” and in one email as a “bi*ch.”  In her positive performance evaluation, she was criticized for poor teamwork.

Almost a year later, a dispute arose about two representations that the plaintiff made to the board of the transit authority about her employer’s willingness to provide training and consulting services concerning a labor-relations issue.  She had recommended the retention of a competing firm (which had a reputation of being anti-union) to provide training services and testified this had been the recommendation of the HR Director and General Counsel.  (The General Counsel later told her supervisor that the decision had been the plaintiff’s).  When questioned by the Board, she claimed that her new supervisor was too busy to handle union negotiations.  Some board members requested to meet specially with her supervisor to confirm this. There was some suspicion that she was not being honest because her supervisor had been active consulting with the authority in the past and she had a reputation of keeping her employer at arm’s length.   Plaintiff produced an email where her supervisor said he had another appointment on the date when the union wanted to meet and which showed that she had requested him to submit a proposal to provide union relations training.   When the meeting was held with the Board and her supervisor, the supervisor said that the plaintiff had lied when she said he was not available.  He fired her a few days later for being dishonest with the Board about his availability and for denying her role in selecting a competing firm to provide the union relations training.   His investigation consisted of one conversation with the authority’s General Counsel.     A Hispanic woman was eventually selected to replace the plaintiff as CEO.

The Court questioned the plaintiff’s argument that the emails constituted direct evidence of discrimination by essentially referring to her as an “angry black woman” or “uppity black woman.”  The email authors were not her supervisors or decisionmakers.  “Viewed as a whole,” their emails “might only show “occasional[]” sexist and racist comments, which would not be enough to establish direct evidence of discriminatory intent.”  Moreover, the Court was unsure if the cat’s paw theory could be used where the email authors were never her supervisors, had never sent them to the supervisor who terminated her and had sent the emails more than a year before her termination.  However, the Court ultimately decided to not rule on that issue because it found that she had presented sufficient circumstantial evidence to survive summary judgment.

 

The Court held that the plaintiff had shown that she was replaced by someone outside her protected class.  First, plaintiff is African-American and her replacement is Hispanic.   As for her sex discrimination claim, the Court refused to separate her gender from her race for purposes of evaluating her prima facie case:

Moving to Plaintiff’s sex discrimination claim, we find that it cannot be untangled from her claim for race discrimination. Naturally, “where two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). The Supreme Court has acknowledged this truism and held that a plaintiff can maintain a claim for discrimination on the basis of a protected classification considered in combination with another factor. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam). In many of these so-called “sex-plus” cases, the plaintiff’s subclass combines a characteristic protected by Title VII with one that is not. See id. We have therefore required sex-plus plaintiffs to show unfavorable treatment as compared to a matching subcategory of the opposite sex. See Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 438–39 & n.8 (6th Cir. 2004).

In the case now before us, both classifications—race and sex—are protected by Title VII. These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure. Cf. Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994)(discussing sex-and-race Title VII claim brought by Asian woman). And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds. Thus in Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999), we held that a plaintiff could rely on evidence of religious harassment to buttress his claim for racial harassment, even though the religious harassment claim could not survive independently.

 . . . If a female African American plaintiff (for example) establishes a sufficient foundation of discrimination, a defendant cannot undermine her prima facie case by showing that white women and African American men received the same treatment. See id. at 1032–33; see also  Gorzynski, 596 F.3d at 109–10. The realities of the workplace, let alone the purpose of Title VII, will not allow such an artificial approach. . . . .

The Court rejected the employer’s argument that the question should be whether the plaintiff can identify anyone similarly situated outside her protected class who was treated better.

This method is especially useful in cases where the plaintiff is not terminated, is not replaced, or is not replaced with a single person.. . .  But the replacement method works especially well when a plaintiff is terminated and the employer hires a single replacement to do the same job. That is precisely what happened in this case.

The Court rejected the plaintiff’s argument that the white male temporary replacement should have been considered to be her replacement because he was temporary.  The Court also left open the employer’s ability to show at trial that it had put forth four candidates to replace the plaintiff and the transit authority chose to hire the Hispanic woman.

 As for pretext, the employer explained that it had terminated the plaintiff because she lied to the transit authority board.  The Court found that the plaintiff produced sufficient evidence to prove that this explanation was pretextual because it lacked basis in fact.  In short, she produced sufficient evidence to question whether her statements to the board “were clearly untrue.” 

A jury can consider Hock’s and Plaintiff’s credibility and weigh the evidence accordingly. We cannot.

As for her denial to the Board that she was involved in the decision to recommend her employer’s competitor, the Court found the employer could not prevail on summary judgment because it produced only hearsay evidence to show that the plaintiff had lied.  Instead of producing deposition testimony or an affidavit from the General Counsel refuting his role in the decision and putting that decision on the plaintiff, the employer produced only an affidavit from the plaintiff’s supervisor claiming that this is what he had been told by the General Counsel.  Moreover, “Plaintiff’s sworn testimony that she did not have a role in the retention of MPI is enough to create a genuine issue of fact.”  

Finally, the Court rejected the employer’s reliance on the honest belief doctrine and created a higher threshold for this doctrine when the employee’s misconduct is based on lying and the employer failed to question her about the motive for her misstatements: 

“If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual even if it was erroneous.” . . .  “The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained-of action.”

Hock’s investigation into Plaintiff’s two purported lies consisted of speaking with one person, Desmond, about the retention of MPI. Perhaps this single interview could satisfy the requirement that the investigation turn up particularized facts if Hock had fired Plaintiff for overt misconduct.  . . . .  But Hock fired Plaintiff for lying—not   just uttering a falsehood, but doing so “with intent to deceive.” Webster’s Third New Int’l Dictionary 1305 (1993). One conversation did not establish sufficient particularized facts about the truth behind Plaintiff’s statements, let alone her motive. Defendants have therefore failed to establish a foundation for the honest belief doctrine to apply.

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.