Sixth Circuit Affirms Employer’s Summary Judgment on Race and Retaliation Claims Despite Messy Termination and Possible Evidence of Pretext

Today, the Sixth Circuit Court of Appeals affirmed the summary judgment entered by the federal court in Columbus in favor of an employer who terminated an African-American employee three times without always following all of its written procedures because the plaintiff was unable to show that any similarly-situated white employee was treated better. Moreover, the court affirmed dismissal of the plaintiff’s retaliation claims because there was no temporal proximity between his termination and when he filed his EEOC and OCRC Charges and no additional acts of retaliation. Gibson v. Shelly Co., No. 07-3009 (8/20/08). Nonetheless, the Court indicated that (i) it would still consider retaliation claims despite the passage of one year between the protected conduct and the adverse employment action; (ii) that the court could consider actions taken by the employer against the plaintiff outside the limitations period and (iii) that a plaintiff need not always show that similarly situated employees reported to the same supervisor if the supervisor’s role in termination decisions was minor.

Plaintiff was hired in 2003 (and in prior years) to assist with highway paving projects. As in other years, he received copies of the employer’s safety manual which provided for the Safety Committee terminating employees for one (and no more than two) serious safety violations (i.e., those which could result in serious injury or death) and for two (and no more than four) non-serious safety violations in a year. The manual also provided for conducting prompt investigations, including interviews with the violating employee, and that employees could be terminated at will (although, as a practical matter, because of union contracts, employees, such as plaintiff, could only be terminated for just cause). Employees who are terminated are not eligible for reemployment for at least one year.

Plaintiff’s first termination took place in May 2003 after he had been observed on three separate occasions driving the roller into moving traffic (which could have killed commuters) and after the employer received a sexual harassment complaint about inappropriate comments Plaintiff had made to a female co-worker. However, the decision was not made by the Safety Committee and the employer never completed its investigation of the sexual harassment complaint by, for instance, interviewing the Plaintiff. The employer also gave differing accounts of the reasons for his termination, at times citing only the safety violations and at others also referring to the sexual harassment allegations. Plaintiff filed a Charge of Discrimination with the EEOC and the OCRC (which were dismissed in February 2004) and a union grievance (which resulted in his reinstatement and back pay almost two years later). Plaintiff did not file a lawsuit after receiving his right-to-sue letters, and was inadvertently hired in June 2004, but was terminated two days later on account of his prior termination and the failure of the arbitrator to render a decision in the union grievance. Plaintiff again filed Charges of Discrimination and Retaliation with the OCRC and EEOC, but they were dismissed in April 2005.

Honoring the arbitration decision, Plaintiff was again hired in Spring 2005, but was again fired on May 12, 2005 following two serious safety violations. In one incident, he almost ran into a co-worker with the roller, and in another, he ran the roller off the road and almost into a ditch while grabbing something out of his lunch bag. An investigation was conducted, but again, the Plaintiff was not interviewed. This time, however, the Safety Committee considered the investigation report and voted to terminate Plaintiff. Plaintiff again filed a Charge of Discrimination and Retaliation with the OCRC and, again, it dismissed it in February 2006. Plaintiff then filed suit.

Although the employer’s failure to follow its own procedures, shifting and inconsistent explanations for his 2003 termination and failure to interview Plaintiff during its several investigations may have constituted evidence of pretext in connection with the parties’ respective burden of proof (and entitling Plaintiff to a jury trial of his claims), the trial and appellate courts concluded that it did not need to evaluate the sufficiency of the employer’s explanation for the termination – or Plaintiff’s evidence of pretext – because Plaintiff failed to satisfy his prima facie burden of proving that he was treated differently than similarly-situated employees. In particular, the courts found that the Plaintiff failed to identify any white employees who committed two serious safety violations who were not fired.

In addition, the courts found that the plaintiff failed to show that he was terminated for filing Charges of Discrimination in May 2003 or 2004 because he was not fired until June 2004 and May 2005 – approximately a year after the Charges had been filed. While the Sixth Circuit pointed out that it has found sufficient evidence of retaliation in cases where a year had passed between the adverse employment action and the filing of the Charge, those cases also possessed other evidence of retaliation – unlike this case. “We have never suggested that a lack of temporal proximity dooms a retaliation claim. In fact, we have previously found retaliation when the termination followed the complaint by over a year. . . . However, in order to overcome a lack of temporal proximity, the plaintiff must present sufficient evidence supporting the causal connection. “[W]here some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0507n-06.pdf.

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.

When Nice Guys Do Not Always Finish Last

On October 5, 2007, the Lucas County Court of Appeals affirmed the summary judgment dismissal of a race discrimination case on the grounds that the plaintiff could not show that he was qualified for his position or had been treated more harshly than his similarly situated white co-workers after he had been granted repeated instances of leniency which had not been extended to his co-workers. Isbell v. Johns Manville, Inc., 2007-Ohio-5355. For instance, even though he was found sleeping on duty on numerous occasions and refusing to wear protective gear, he was not formally disciplined because his brother had been very ill and eventually died. Other employees, however, were formally disciplined each time they were caught. The plaintiff had already grieved and lost the union arbitration to challenge his termination before pursuing his race discrimination claims in court.

This decision is also interesting for its discussion of the employer’s new disciplinary system:

“By 2002, Johns Manville had adopted, as an alternative -- and purportedly less punitive -- approach to resolving performance problems, a system known as "performance counseling".1 Performance counseling consists of three phases: Phase I involves clarification of the employer's expectations; Phase II involves obtaining the employee's commitment to change; and Phase III involves a decision by the employee as to whether or not he wishes to continue employment with the company.”

The employer explained how it had exhausted the disciplinary process with the plaintiff before it terminated him for repeatedly failing to meet agreed-upon expectations about staying awake at work, etc. At one point, the plaintiff had provided written assurances that "From this day forward I will wear the protective gear that is required” and, without admitted to sleeping on duty, that "I realize that whether I was sleeping or not, this is not what Johns Manville pays me to do." Unfortunately for him, however, he failed to comply with these assurarnces.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/6/2007/2007-ohio-5355.pdf.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.