Employment Law Daily AutoZone employee fired for her crude remark to coworker who made disparaging comments about women can’t revive bias claim
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Wednesday, August 21, 2019

AutoZone employee fired for her crude remark to coworker who made disparaging comments about women can’t revive bias claim

By Kathleen Kapusta, J.D.

The employee failed to show that AutoZone had any knowledge of the coworker’s alleged sexist comments until an investigation that resulted in the termination of both employees.

Affirming summary judgment against the state-law discriminatory termination claim of a female AutoZone employee who was fired for a single crude remark to a male coworker, the Second Circuit found the remark “would not be tolerated in any workplace outside, perhaps, of a locker room.” And while she argued that AutoZone allowed the coworker to remain on the job despite his numerous sexist and degrading comments about women, the appeals court pointed out that he was fired at the same time as the employee following an investigation into both their conduct and there was no indication the employer had prior knowledge of the comments. Summary judgment was also affirmed against the employee’s hostile work environment claim (Bentley v. AutoZoners, LLC, August 19, 2019, Raggi, R.).

“Management team.” During the first 14 months the employee worked as a part-time AutoZone sales associate, the store manager position remained unfilled, and personnel problems plagued the store. The district manager (DM), who oversaw 11 stores, visited from time to time and a store manager for a nearby location stopped by once a week for a few hours. The DM primarily relied on a “management team” consisting of two parts sales managers (PSM) for the day-to-day running of the store.

During her 17-month tenure, the employee not only had attendance issues—she received numerous warnings and received enough points to warrant termination—she clashed with the male PSM. Starting in January 2014, she claimed, he made vulgar and disparaging comments about women, calling them “lazy,” and suggesting that they should be home baking cookies. Although she testified in her deposition that she reported each comment in a text message to the HR manager, when confronted with a record of her texts to him, which did not contain complaints of sexist comments, she retracted her testimony, claiming instead she reported his comments by phone.

Disparaging comments. In May, she reported that the PSM had threatened to slap her. In response, the HR manager talked to both employees, but took no further action. In July, the second PSM, a woman, told the DM that the employee and male PSM did not get along. She also told the HR manager that the male PSM frequently disparaged women and called the employee lazy. The HR manager then spoke with the employee, who told him the PSM made numerous comments in front of coworkers and customers such as “never work with a female, females are lazy, they don’t do anything,” called her and the female PSM “lazy,” asserted that “[g]uys are superior to women,” and said he didn’t want to work with women. The employee also told the HR manager the PSM had threatened to cut her hours and fire her, and the female PSM watched Netflix on company time, put the store phones on hold, and ate store merchandize without paying for it.

Terminated. The HR manager re-interviewed the female PSM, who admitted to the misconduct. He also talked to the male PSM, who accused the employee of telling him “you need to get your d**k sucked.” The employee admitted making the comment and she and both PSMs were fired.

She subsequently sued, asserting state-law claims of sex discrimination, retaliation, and hostile work environment, and the district court granted summary judgment against all claims.

Deposition statements. On appeal, the employee first argued the district court erred in ruling that part of her deposition testimony, in which she claimed to have reported the PSM’s sexist comments to AutoZone before August 2014, did not raise material fact issues because it was contradicted by her earlier statements. Agreeing with the court below, the appeals court found serious contradictions in her deposition testimony regarding having purportedly sent text messages to the HR manager complaining of the PSM’s sexist comments. When faced with his record of texts from her that did not show any complaints, she changed her testimony to say she had called rather than texted. But even that claim, observed the court, was contradicted by an earlier statement in which she admitted she had never reported the comments. Thus, she could not rely on her own testimony to create a fact issue as to whether she gave notice before August 2014.

Discrimination. As to her discriminatory termination claim, while AutoZone argued she failed to carry her prima facie burden because she was replaced by a woman, the court found it did not need to address this argument as AutoZone pointed to a nondiscriminatory reason for its action—her crude comment directed toward the PSM—and she failed to show pretext. Although she pointed to Stalter v. Wal-Mart, in which the Seventh Circuit characterized terminating an employee for “gross misconduct” based on eating a coworker’s potato chips as akin to “swatting a fly with a sledge hammer” and argued that terminating her for the one-time occurrence “does not pass the straight-face test,” the circumstances, said the court, were hardly comparable. The remark was not only extremely crude, she acknowledged it was both inappropriate and expressly prohibited by company policy.

The employee claimed AutoZone treated the male PSM, a comparator, more favorably because it fired her for a single offensive remark while allowing him to remain on the job despite complaints about his sexist comments over a period of months. However, even assuming he was a proper comparator, they were fired at the same time after an investigation into both their conduct. Further, there was no evidence AutoZone was aware of his remarks prior to the August 2014 investigation when both the employee and the female PSM reported his conduct.

Retaliation. Turning to the employee’s retaliatory termination claim, in which she argued that retaliation could be inferred from the temporal proximity between her August 2014 reporting of PSM’s sexist comments and her termination the following month, she again asserted her comparator argument to show pretext. But, the court pointed out, that argument depended on AutoZone’s knowing of the PSM’s sexist comments before August 2014, and the only evidence of such knowledge was the employee’s deposition testimony, which was so contradicted by other record evidence that it could not create a triable fact issue.

Hostile work environment. As to the employee’s claim that AutoZone was strictly liable for the hostile work environment created by the PSM, the court noted that even if his comments were sufficiently severe or pervasive, there was no evidence to support a finding that he was a supervisor for purposes of vicarious liability. He could not hire, fire, promote, or demote employees or set their compensation or hours and there was no evidence he ever took such actions, said the court.

As to whether AutoZone could be held liable for a hostile work environment created by a coworker, the court again pointed out that there was no evidence the company knew of his sexist comments, other than the employee’s own deposition testimony, prior to the investigation that resulted in his termination. Thus, no reasonable jury could find AutoZone liable in negligence.

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