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.