A prima facie case of discrimination in a RIF case has a modified fourth element: the plaintiffs must provide "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Geiger v. Tower Auto, 579 F3d 614, 622 (6th Cir 2009). One way to meet this proof requirement is to identify a group of comparable employees who were retained head of the plaintiff. The Sixth Circuit analyzed this issue in Rachells v. Cingular Wireless, No 12-4137 (October 17, 2013), a race discrimination case where summary judgment granted the employer was reversed.
Anthony Rachells work as a sales rep for Cingular Wireless and "received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his Cingular peers." In October 2004, Cingular acquired AT&T Wireless. The acquisition left nine sales representatives in the merged company, five from AT&T and four from Cingular. A RIF required five of the sales reps be let go. Rachells, a top performer and the lone African-America among the group, was one and he filed suit claiming race discrimination following his termination.
Rachells argue that the comparative ors were limited to the for Cingular employees; Cingular contended that all nine must be considered. The Sixth Circuit agreed with Rachells, concluding as follows: "employees comparable to Rachells must have equivalent positions, be subject to the same decision-making processes, and subject to evaluation by the same decision-makers." Because the Cingular and the AT&T sales reps were subject to different performance review criteria and their performance reviews were conducted by different persons, the Sixth Circuit ruled that "the record does not support including the AT&T candidates in the peer group with which Rachells is to be compared."
The Sixth Circuit opinion was authored by District Judge Algenon Marbley joined by Circuit Judges Guy Cole and Bernice Donald.
The Sixth Circuit's decision in Rachells v Cingular Wireless was also discussed in a previous post: "It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated To Demonstrated Sales Ability," Sixth Circuit Observes In Reversing Summary Judgment.
