Employment discrimination, retaliation and wrongful termination cases often come down to the issue of pretext -- is the employer's explanation for doing whatever adverse was done not more than a lie, a lie offered to try and coverup something unlawful? Being caught in a lie creates all sorts of problems for employers and parties in all sorts of cases.
The Sixth Circuit recently examined the question of pretext in Kirilenko-Ison v. Bd. of Ed. of Danville, Ky. The plaintiffs were two school nurses who voiced their concerns about the medical assistance that was being offered to two students. For their efforts, they claimed, one was suspended and the other was not hired when later a full-time opening came open. The district court, Hon. Danny C. Reeves of the Eastern District of Kentucky, granted the school board a summary judgment on all claims. The Sixth Circuit reversed.
The court found that both the plaintiffs had presented triable issues of fact on the issue of pretext. The court's discussion and examples are helpful. First, "[a]ll that a plaintiff must show in order to overcome a defendant's motion for summary judgment at this stage is that a reasonable juror could find that the defendant's reasons were pretextual. The plaintiff does not need to prove pretext, she only needs to show that the question of pretext is a genuine factual dispute." So the proof at the summary judgment stage need not knock down the Great Wall of China, and the following was sufficient:
the school principal screamed at them and told them to do what the parent of a child with serious health problems wanted, notwithstanding the negative impacts on the child and on their nursing licenses
a threat that one's continued advocacy could cost her her job
allegations in a third party's resignation letter that the school board was pressuring the nurses to go along and shut up
one's long work history for the school board and the absence of prior disciplinary measures
the temporal proximity between one's most strenuous advocacy and her suspension.
Here, as in all things, context is important. Consider first the supposed sins of the plaintiffs: advocating for proper and necessary medical care for students, not refusing, advocating, which would seem exactly what they were hired to do and what the Kentucky Board of Nursing requires them to do. Second, there is bullying and threatening followed by action that is at best disproportionate. That doesn't make sense; reasonable jurors could easily view this type of scenario as retaliatory and the school board's explanations unworthy of credence.
In an opinion straining at the bit to express hostility toward the Americans With Disabilities Act (ADA) as mildly as possible, the Sixth Circuit suggested that it is ready to re-examine its subjective intent requirement in constructive discharge cases. The case is Tchankpa v. Ascena Retail Group.
As to the first point, the opinion authored by Judge John Nalbandian takes pains to assure readers and possible litigants that it brooks no favor to the ADA or to employees suffering discrimination as a general matter, here's a sampling:
The ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations. Instead, it protects disabled employees from disability -related mistreatment – no more, no less.
As Milton put it, “The mind is its own place, and in itself/ Can make a Heav’n of Hell, a Hell of Heav’n.” Our job is to confirm that the plaintiff’s work conditions were indeed hellish, or at least close to it.
Sixth Circuit law on constructive discharge is straight-forward. The existence of a constructive discharge “depends upon the facts of each case and requires an inquiry into the intent of the employer and the reasonably foreseeable impact of the employer's conduct upon the employee.” Smith v. Henderson, 376 F.3d 529, 533 (6th Cir. 2004). An employer's intent can be shown “by demonstrating that quitting was a foreseeable consequence of the employer's actions.” Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999). This Court has stated that the ultimate question in a constructive discharge case is whether a reasonable person would have continued working in the job given the terms and conditions intentionally established by the employer. Easter v. Jeep Corp., 750 F.2d 520, 522-23 (6th Cir. 1984).
The opinion suggests that the Supreme Court may have upended the employer's intent element of this proof in Green v. Brennan, 136 S.Ct. 1769 (2016). This seems a red herring and betrays a poor grasp of this area of law. If an employer knows or should know that it is compelling an employee to work in conditions in which a reasonable person would not continue working, it is fair to conclude that the intended the employee to quit. If the employer did not know of the condition or situation, it would seem incongruous that it should be held liable to something it knew nothing about. The Sixth Circuit's discussion of Green just goes off on a tangent to no discernible purpose. More troubling is the suggestion that a constructive discharge may require "hellish" work conditions, as opposed to that merely a reasonable person would find intolerable.
Last year JPMorgan Chase reached a $24 million settlement in a race discrimination case in which financial advisors claimed that "the bank practiced “uniform and national in scope” discrimination against African-American financial advisors, such as assigning them to poorer bank branches, understaffing them, and failing to include them in a program for richer clients," as reported by Fortune Magazine, "JPMorgan Chase Settles Lawsuit Claiming 'Uniform and National' Racism for $24 Million."
Jena McClellan had established herself pretty well as a telemarketer at Midwest Machining until she had to report that she was pregnant. Her supervisor commenced a litany of negative comments and, about three months later, she was fired. When McClellan was fired she was made to meet with the company president, Philip Allor, who, McClellan claimed, pressured her into signing an agreement releasing all her claim in exchange for $4,000. McClellan did sign the agreement.
McClellan was paid the severance money and later filed a pregnancy and sex discrimination lawsuit. About three weeks after the suit was filed and before any answer was due, McClellan paid back the $4000 she'd been paid to release her claims. The district court allowed limited discovery as to whether McClellan had entered the severance agreement knowingly and voluntarily. The corporation moved for summary judgment; although the district court observed that there were disputed issues of fact regarding whether McClellan had entered the agreement knowingly and voluntarily, it gave the corporation a summary judgment because McClellan didn't pay the $4000 back before she filed suit.
The "tender-back doctrine" is from contract law and holds that "contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party" but "before the innocent party can elect avoidance, she must first tender back any benefits received under the contract." But if the innocent party fails to do so within a reasonable time of learning that she can rescind the contract, she ratifies the contract and makes in binding.
The Sixth Circuit reversed, explaining that "requiring recently-discharged employees to return their severance before they can bring claims under Title VII ... would serve only to protect malfeasant employers at the expense of employees' statutory protections at the very time that those employees are most economically vulnerable" and held that "the tender-back doctrine does not apply to claims" brought under Title VII.
There are legal protections and remedies under both federal and Kentucky state law. A reasonable person can ask how effective they are if the problem they aim to eliminate is and remains widespread. The conclusion is obvious: not good enough.
This employment discrimination lawyer says the best solution is found in better laws that offer greater remedies. What I'm talking about is real damages: when companies pay through the nose, they may change their conduct, more or less like individuals do.
Tonya Lindsey, an African-American woman, began working in healthcare for UK in 1990. She claimed that she was passed over for a promotion on three separate occasions on account of her race and gender. She later added a retaliation claim as well, one arising, as Lindsey pleaded her complaint, from the actions of her supervisor, Lisa Turner. Turner actually became Lindsey's supervisor after Lindsey had filed the discrimination suit.
The Fayette Circuit Court granted a summary judgment to the defendants, a decision that appeared to leave Lindsey's case in the shallows at best. Turner, a couple of months later, filed a cross-claim against UK and claimed, among other things, that "she was pressured by her superiors to closely scrutinize Lindsey so that Lindsey could be fired" and that he succumbed to this pressure out of fear for her own job. This caused the circuit court to vacate the summary judgment. To shorten the story, Turner later dismissed her cross-claim, and the circuit court granted summary judgment again to the defendants and this time on all claims.
The Court of Appeals reversed as to the retaliation claim, and invoked the "cat's paw" in so doing. Turner had not known of Lindsey's discrimination suit, but her assertion that she had been directed to dig up dirt, so to speak, on Lindsey and her further assertion that she feared for her job if she did not do so created a fact issue as to whether Turner was simply the unwitting and proximate cause of an unlawful retaliatory intent by the higher-ups at UK. The Court explained as follows:
This is known as the "cat's paw" theory of liability. A plaintiff alleging liability under the cat's paw theory seeks "to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision." Thus, even if Turner herself lacked discriminatory intent, UK many nonetheless be liable if Turner's decision to recommend Lindsey's termination was caused by one of its agents acting with a discriminatory intent.
Lindsey was represented by the now-late William C. Jacobs. Bill Jacobs was one of Kentucky's great lawyers; he represented the plaintiff in the landmark Kentucky sexual harassment case, Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992), and represented the plaintiff in a case that changed the way public library systems are funded in Kentucky, LFUCG v. Hayse, 684 S.W.3d 301 (Ky. App. 1984).
Pittington prevailed at trial against his former employer on claims that he was retaliated against for his involvement with his wife's sexual harassment complaint in violation of both Title VII and Tennessee law. The jury wasn't too generous though; it did not award Pittington any compensatory or punitive damages and only $10,000 in back pay, which was only about 25% of what Pittington requested. After the district court refused his motion to order a new trial on damages, Pittington appealed. The Sixth Circuit reversed and ordered the district court to revisit or retry the damages issue.
Pittington's proof at trial regarding backpay was not too specific. The defense attorney suggested to Pittington at trial that he had received a pay raise in defendant's employ to $10.50 per hour, although Pittington himself was not too sure about that. In any event, Pittington's lawyer argued to the jury using an hourly rate of $10.50 multiplied by 40 hours per week (the defense attorney, in addition to suggesting to Pittington that he got a pay raise, also solicited testimony that Pittington sometimes worked more than 40 hours per week) while deducting lesser wages that Pittington earned at other jobs between the time of his firing and trial for a total of $40,632.50. This was enough, the Sixth Circuit ruled, to establish Pigginton's backpay damages with sufficient reasonable certainty, which is all that is required.
The mistake made by the district court, the Court explained, was to assert that it was Pigginton's burden to show that he had acted diligently to mitigate his damages sustained by reason of the former employer's wrongdoing. The Court explained: "Such critiques were unfounded, as Pittington, did not bear the burden of producing evidence as to his efforts at mitigation." So the district court, Hon. Pamela Lynn Reeves of the Eastern District of Tennessee, blew the issue, going at it from exactly the wrong direction.
The defendant-employer failed, the Court explained further, to offer, as was its burden, "evidence indicating that substantially equivalent positions ... were available and that [Pigginton] failed to use reasonable care and diligence in seeking such positions." So it was the employer's burden to show Pigginton had unreasonably failed to mitigate the damage done by its wrongdoing, and merely suggesting criticisms by way of cross-examination was not enough.
Notwithstanding the Sixth Circuit's ruling, plaintiffs would be well-advised to present themselves evidence of how they labored to mitigate the harm done by the defendant's wrongdoing. Doing so, as a general matter, presents them as a hard-worker and serves to buttress a claim for compensatory damages for emotional distress and mental anguish. Pigginton's proof as to backpay was barely sufficient and only because the defendant's was nonexistent did Pigginton prevail in the Sixth Circuit. Notably, the jury awarded him no emotional distress damages.
The Sixth Circuit's decision earlier this year in Jackson v. VHS Detroit Receiving Hospital offers an excellent example of the correct analysis of comparator proof in discriminatory discipline cases. Judge Eric Clay's opinion shows the type of care and attention to detail all too rare.
The plaintiff, Karon Jackson, worked as a mental health technician at the hospital. Her duties included handling the discharge of psychiatric patients. She was a 15 year employee when she was fired in 2013; she had received consistently good performance evaluations. One of the duties in discharging the psychiatric patients was checking their ID bands to make sure the right patient was being discharged. Jackson and an RN both failed to check the ID band of a patient that was mistakenly discharged. The patient, however, later returned to the hospital without incident or injury. Nevertheless, Jackson was terminated.
Jackson filed a sex discrimination suit following her discharge. She pointed to differential discipline imposed on two male colleagues, a Duncan and a Little, as her principal proof of gender discrimination. The district court, Judge Stephen Murphy, ruled that Jackson's conduct was too dissimilar from Duncan's and/or Little's to be fairly comparable and granted the hospital a summary judgment.
The Sixth Circuit reversed. It explained that Jackson's conduct should be compared with Duncan's and Little's both as to whether she presented a prima facie case of discrimination and as to the issue of pretext.
With regard to the prima facie case analysis the Sixth Circuit advised that "we look to whether the comparators' actions were of comparable seriousness to the conduct for which Plaintiff was discharged. A plaintiff is not required to show that this proposed comparator's actions were identical to his own." One of the comparators, Duncan, had likewise failed to check a patient's ID when discharging the patient and, as a result, the incorrect patient had been discharged. At the time of this incident, Duncan was subject to a "last-chance agreement" because of, among other things, a failed drug test. Little also had a prior disciplinary history; he failed to check a patient for weapons upon the patient's admission and was cited for the same infractions as was Jackson.
The district court had asserted that Jackson could not cited Little as a comparator, because he had never discharged the wrong patient. This was error, the Sixth Circuit pointed out: Jackson did not need to show that the comparator's conduct was identical, only that it was of comparable seriousness. The hospital's reference to the same sections of its handbook as violated by Jackson and Little showed this.
The Sixth Circuit again returned to comparing Jackson's with Duncan's and Little's conduct when examining the issue of pretext. This entailed "a change in the rigor with which we evaluate Jackson's similarity to her comparators; it is not an increase in the weight of her evidentiary burden." The court described its analytical focus as follows:
When conducting this more rigorous comparison, we again focus on the severity of the differently treated employees' actions. The relative severity of two actions is not determined solely by whether those actions violated the same company rule or policy. Instead, employers -- and therefore courts -- are free to consider both the actual and potential consequences of the employee's actions.
Considering actual consequences makes some sense, but getting into the area of potential consequences - an area necessarily prone to speculation -- is problematic; perhaps also, some would say, a convenient way for a judiciary hostile to employment discrimination cases to justify their dismissal. Here, the court punts a bit: it first asserts that "whether differences in ... hypothetical injuries justified differential discipline is a task better suited for a jury." Second, the court asserted that the potential consequences from Duncan's conduct were much more apparent when the mistake occurred, a fact that the court said favored Jackson.
As to Little, both his and Jackson's infractions "were cited as violating the same two major infractions [which] indicates that those mistakes were substantially identical in terms of potential disciplinary consequences." They were also "identical in the severity of their actual consequences: neither employees' violation resulted in harm to patients or staff." The potential consequences were also sufficiently similar, since some grave potential risk surrounds both discharging erroneously a psychiatric patient and allowing one to bring three weapons into the hospital.
A final factor the Sixth Circuit cited in Jackson's favor was the gender disparity among the mental health techs. Jackson was the only female out of 14, although their overall work unit was predominantly female: "the fact that Jackson was the only female out of fourteen MHTs supports her contention that [the hospital] preferred males for that particular position."
What do we gain out of this: (1) Jackson had a better work record than either Duncan or Little; they had some fairly significant disciplinary history while she had good performance reviews; (2) they were all cited for infractions that regarded the same policy interests of the hospital; (3) the actual consequences of the violations were the same: there was no harm to either patient or staff; and, (4) the potential consequences - harm to either patient or staff -- were the same also. This plus the gender disparity among Jackson and her colleagues was enough to create a fact issue for trial to be resolved by a jury. One can see that it would be reasonable to conclude that a different and tougher standard was being applied to Jackson, a female, as opposed to her male colleagues.
Evidence is evidence. That unremarkable observation is at the heart of the 7th Circuit's remarkable opinion in Ortiz v. Werner Enterprises in which it endeavors to simplify the evidence doctrines that "has complicated and sidetracked employment discrimination litigation for many years."
The case is a run-of-the-mill national origin discrimination case; the plaintiff claimed he was fired, because of his Mexican ethnicity. The district court, Judge John Darrah of the Northern District of Illinois, granted the employer summary judgment. One of the district judge's errors was the "effort to shoehorn all evidence into two 'methods,' and its insistence that either method be implemented by looking for a 'convincing mosaic,' detracted attention from the sole question that matters: Whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had stayed the same."
After reviewing and overruling a number of its own sloppily-written opinions that had added to the complications and observing the inefficacy of its efforts to get understood what an evidentiary mosaic is (a metaphor for evidence making a persuasive case), the 7th Circuit got to this point:
Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself - or whether just the "direct" evidence does so, or the "indirect" evidence. Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled "direct" or "indirect."
Try the argument: "Judge, evidence is evidence." It's a good one, right.
The plaintiff, Brunker, was a route manager for Schwan's, a home-delivery food service. Brunker began experiencing medical problems, which led to a diagnosis of multiple sclerosis, and was fired for alleged "unsatisfactory performance" and being "unable to perform essential job functions." He brought claims under the Americans With Disabilities Act (ADA) for disability discrimination and failure to accommodate.
Brunker sought production of the personnel files of other route managers who had been accused of performance deficiencies similar or like his own. Schwan's opposed these efforts and stated that it "would rely only on Brunker's failure to service customers as the reason it fired him," a position rendering, it claimed, irrelevant any other discipline that Brunker and/or his co-workers received. A magistrate judge accepted the employer's position and with prejudice, imposing $4,423 in sanctions on Brunker for seeking the discovery. The Seventh Circuit reversed not only the denial of discovery and the sanctions order explaining:
An employer accused of discrimination cannot limit discovery simply by restricting during litigation its stated reasons for an adverse action. After all, the true reason behind the action is the very heart of the case, and Brunker presented evidence that Schwan's may have asserted reasons for firing him other than the one it relied on during litigation. An employer's shifting explanations are evidence that its stated reasons did not truly motivate the adverse action and that an impermissible one actually did.
