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.

Sixth Circuit Affirms $435K Verdict in Retaliatory Termination Case.

In Imwalle v. Reliance Medical Products, Inc., No. 06-4619 (6th Cir. 2/8/08), the plaintiff argued that he was unlawfully terminated by a Swiss conglomerate as President and corporate Chief Operations Officer only three months after he filed a Charge of Discrimination with the EEOC alleging discrimination on account of his age (62) and national origin (American). The jury awarded $185,000 to the plaintiff on the retaliation claims and the Court added another $250,000 for attorney fees, court costs and pre-judgment interest. The Sixth Circuit affirmed on appeal.

The plaintiff had produced evidence that the Swiss company had proposed several cost-cutting measures, including a corporate-level powerpoint presentation by his boss (a Swiss citizen) which suggested the termination of “elderly” employees. He testified that he had been phased out of the corporate decisionmaking process and his boss also suggested in May 2003 that he hoped to retire and volunteer in the community at plaintiff’s age and then asked for the plaintiff’s resignation. The plaintiff also testified that his Swiss boss had complained to him in 1996 about it being the biggest mistake of his career to hire an American manager (i.e., the plaintiff), said he would never repeat that mistake and, in fact, never hired another American manager thereafter. His boss admitted that age discrimination is not illegal in Switzerland and did not understand U.S. employment laws or how they applied to the plaintiff. Nonetheless, the jury rejected the plaintiff’s discrimination claims.

When the plaintiff refused to retire as requested, he hired an attorney and accused the employer of both illegal discrimination and breaching his employment agreement. The employer then agreed to retain him in his current position, but never brought him back into the corporate decisionmaking process. The plaintiff then filed an EEOC Charge alleging age and national origin discrimination. Three months later, his boss met with him and, as described by both the plaintiff and the employer’s human resources director, fired him in January 2004 after reading the following statement:

“‘Dennis, I know that you know [the defendant employer] never committed discrimination in the past, at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim.’ We are not discriminatory, just not.”

The defendant submitted a plausible explanation of poor performance as a non-retaliatory reason why it terminated the plaintiff. For example, the employer contended that it was unhappy with how the plaintiff had managed a particular division and had managed his own division during the brief 2001 recession. The employer also showed that it had pretty much excluded the plaintiff from the corporate decisionmaking process before he made his first allegation of discrimination in May 2003. However, the Court held that the jury could disbelieve the employer’s explanation of poor performance on the grounds that other individuals were more responsible for the corporate failures according to the outside auditors (and yet were not similarly held accountable) and because other managers were not similarly held responsible for the recession. Once a jury rejects the employer’s explanation as false or insufficient, it may infer that discrimination or retaliation was the actual reason or motivation. More importantly, the Court found that the employer’s pre-discharge statement -- denying any unlawful discrimination and wondering how the plaintiff could make such an accusation -- could reasonably be interpreted as evidence that the plaintiff’s EEOC allegations were at the forefront of the employer’s mind when it decided to terminate him.

The Court acknowledged that temporal proximity alone can rarely prove a retaliation claim and the plaintiff lacked direct evidence of retaliation. Indeed, the Court had previously ruled that the passage of four months between protected conduct (i.e., an EEOC Charge) and a discharge created an insufficient inference of retaliation. However, with the passage of only three months, the jury’s disbelief of the employer’s explanation for its conduct and – most importantly -- the employer’s pre-discharge statement, the plaintiff had produced sufficient circumstantial evidence of a retaliatory discharge to support the jury’s verdict. It probably would have been a different result had the employer not protested the discrimination allegations moments before firing the plaintiff.

Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0066p-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.