Title VII does not impose a legal obligation to provide an employee with an articulated basis for dismissal at the time of firing, and an employer is not bound as a matter of law to whatever reasons might have been provided, the Eighth Circuit observed, rejecting an employee’s assertion that the court below impermissibly departed “from the rubrics of review” when it expanded the legitimate nondiscriminatory reason for adverse action beyond the parties’ stipulation that when he was fired, he was told it was because of his interactions with coworkers and failure to support a client. Nor was he able to show the reasons proffered by his employer were pretext for discriminating against him for being male and non-Jewish, said the court, affirming summary judgment against his Title VII claims (Rooney v. Rock-Tenn Converting Co., January 9, 2018, Gerrard, J.).
Charged with developing and selling in-store displays for retail merchants, the Rock-Tenn account executive was primarily responsible for the Alcon account. He reported to a male supervisor until September 2013, when a woman became his direct supervisor. His November 2013 performance evaluation, however, was completed by the male supervisor, who criticized his “collaborative team work skills,” noted his ineffective communication skills, and commented that he fought “the new office alignment.” His new supervisor described him as “polite but disrespectful” to her and was also dissatisfied with his communication.
Account issues. Although Alcon indicated general satisfaction with Rock-Tenn’s performance in a June 2014 customer satisfaction survey, an Alcon manager later emailed Rock-Tenn seeking a “full process review” of its operations due to recent problems. Quality control and shipping problems persisted, and the employer’s former supervisor ultimately decided to fire him. Although he was told it was because of “difficulties with interacting with coworkers and failure to support Alcon,” the employee claimed he was discriminated against by both his former and current supervisors, who were Jewish, for not being Jewish, and by his current supervisor for not being a woman.
Jewish resurgence. He claimed his former supervisor was building a “Jewish empire” at Rock-Tenn; that he made remarks about networking with the “Jewish network” of potential customers; and that he described the new supervisor as a “great Jewish lady from Philadelphia.” After he was fired, he claimed, he was replaced by a Jewish employee.
Women now overpower the men. As for his new supervisor, the employee claimed that she said she couldn’t “wait until there’s more ladies in the office”; after hiring another female employee, said it meant that “we have just as much women in the office as men”; and when another woman was hired, allegedly said that “the women now overpower the men.” According to the employee, before he was fired, he was replaced on two accounts by women.
The employee sued Rock-Tenn, asserting Title VII claims of religious and gender discrimination but the district court granted summary judgment to his employer.
Expanded nondiscriminatory grounds for discharge? On appeal, the employee first argued that the district court erred by expanding the nondiscriminatory grounds proffered for his discharge beyond the reasons provided at the time he was fired. He asserted that he was told he was fired was because of his interaction with coworkers and failure to support Alcon. The district court, however, observed that Rock-Tenn “offered numerous legitimate nondiscriminatory reasons” for his discharge, including poor performance, customer complaints, and negative interactions with coworkers. These observations, he suggested, “increased [his] burden of defending against Rock-Tenn’s” summary judgment motion.
Noting that the McDonnell Douglas framework is not as narrow as the employee contended, the appeals court pointed out that the employer’s burden to articulate nondiscriminatory reasons for an adverse employment action does not arise when that action is taken. Rather, it is triggered during litigation when an employee meets his burden of establishing a prima facie case of discrimination. Noting that an employer may elaborate on its explanation for an employment decision, the court found no contradiction between the explanation given to the employee at the time of his termination and the nondiscriminatory reasons for termination that Rock-Tenn articulated during litigation. While Rock-Tenn proffered additional examples of the employee’s poor performance with clients other than Alcon, this additional justification was consistent with its belief that he interacted poorly with coworkers and failed to support the Alcon account.
No pretext. The employee next argued that the district court erred in finding his evidence insufficient to show Rock-Tenn’s articulated reasons for firing him were pretext. He focused on the only two reasons for termination he believed were properly articulated, but, as the court already explained, its inquiry was not so limited. Even as to those two reasons, however, the court found he failed to show pretext.
Although he claimed Rock-Tenn’s explanation was not credible because there was no evidence of any failure on his part regarding the Alcon account, the court pointed to an email from Alcon’s manager regarding a problem that had gone unaddressed for several weeks that came on the heels of a series of mistakes, all of which came after the generally (but not completely) positive June 2014 customer survey. There was simply nothing to rebut Rock-Tenn’s evidence of repeated errors and omissions on the Alcon account or anything to suggest the employee was not responsible for the mismanagement, said the court.
As to his contention it was unworthy of credence that he was fired for poor interaction with coworkers, the court noted that there were a number of instances in the record in which he was criticized for his failure to communicate with colleagues and for his poor teamwork. “Rock-Tenn was not required to recite an office roll call to rely on those shortcomings” as a basis for his termination, the court explained. And with respect to his female supervisor, while he claimed she was aggressive toward him, denied him permission to conduct a project review with a client during an open house, and should have consulted his Outlook calendar instead of asking him to advise her of his schedule, these all fell well short of creating an issue as to the genuineness of Rock-Tenn’s perceptions and beliefs.
Retaliatory animus. Finally, the employee argued his evidence showed retaliatory animus more likely motivated his employer than its stated reasons for firing him because Jewish and female employees were treated more favorably than he was and his replacements were either Jewish or female. To the court, however, it was not clear how he was affected by any alleged sex discrimination as it was the male supervisor who terminated him and there was no evidence he harbored any animus toward men. Nor was there any evidence the female supervisor intentionally and proximately caused his termination.
His contention that Jewish employees were treated more favorably fared no better, said the court, noting that while he claimed a Jewish employee who was removed from the Alcon account was not fired, the male supervisor testified that he recommended his termination and he was later fired. Moreover, there was no evidence of that employee’s performance in other respects and thus there was no basis to conclude he was similarly situated. Finally, said the court, in the absence of more substantial evidence of discriminatory animus, the fact the employee was replaced on one of his accounts by a Jewish man was not enough to create a reasonable inference of discrimination.
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