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 (6th
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.
