By Harold S. Berman J.D.
An African-American manager for General Motors who was demoted for performance issues after he complained about his supervisor’s racial remarks could proceed with his Title VII retaliation claim, but not his discrimination claim, a federal district court in Kansas ruled. The court granted General Motors’ summary judgment motion on the discrimination claim, finding that the supervisor’s performance concerns were reasonable and well-documented, and her sole racial remark did not reflect racial animus. However, summary judgment on the retaliation claim was denied because the supervisor’s criticism of the employee’s performance increased significantly after he complained about the remark, and he was demoted less than three weeks after he asserted she was targeting him because he complained (Marshall v. General Motors LLC, November 14, 2017, Lungstrum, J.).
New supervisor. The African-American male employee was promoted to become a per diem group manager at General Motors in December 2013 and assigned to manage 30 to 40 hourly employees. In July 2014, he was assigned to a new supervisor. He had no previous documented performance issues as a per diem manager. Nor were any performance deficiencies noted during the first seven months under the new supervisor.
Performance issues. In February 2015, the supervisor discussed with the employee an issue concerning deficiencies in the assembly line inspection process; the supervisor documented the conversation, noting the employee did not understand the process. Approximately two weeks later, the supervisor documented another incident in which the employee ran out of shipping materials used for export and failed to remedy the situation.
Racial remark. In March, after a medical department representative mistakenly contacted a different African-American manager to discuss the status of one of the employee’s assigned workers, the supervisor told the employee, “Well, all you black guys look alike.” The employee felt humiliated because the supervisor laughed when she said it, and other managers laughed with her.
Later in March, the supervisor held a discussion with the employee about administrative tasks that were not completed for which the employee was responsible. One week later, on March 30, the employee reported the supervisor’s earlier racial comment to a personnel representative. The following week, the supervisor was verbally counseled for making the comment and subsequently apologized to the employee.
Altercation. In May, the employee had an altercation with a Caucasian group leader about the employee’s performance, and the group leader became physical with him. The employee reported the incident to his supervisor and the personnel representative. As a result, the employee was moved to a different area, and the group leader was disciplined.
The supervisor continued to document the employee’s various job performance issues. During a meeting in October, after the supervisor talked with the employee about his poor audit results and failure to address an underperforming worker under his charge, the employee told the supervisor he believed she was “targeting” him in retaliation for his March report on her racial comment.
Reluctance to discipline. The employee then initiated disciplinary proceedings against the underperforming worker. During the disciplinary interview, the worker’s union representative asked for documentation of the worker’s mistakes, but the employee had none, and spent 30 minutes looking for relevant documents, without success. A labor relations representative who was present at the interview told the supervisor it was “the worst” he had witnessed, it was unusual that the employee had never issued any discipline for shop rules violations during his two years as a manager, and he seemed resistant to disciplining hourly workers.
Following the disciplinary interview, and after consulting with the personnel representative and others, the supervisor recommended that the employee be removed from his group leader position; he was demoted in early November. The employee sued, claiming Title VII discrimination and retaliation. General Motors moved for summary judgment.
Discrimination. The court granted summary judgment on the discrimination claim, finding no inference that General Motors’ reasons for demoting the employee were pretextual. The employee claimed General Motors demoted him because of his race, yet the supervisor’s concerns about the employee’s performance were well-documented and reasonable. The supervisor’s racial remark was a stray remark that did not show racial animus, and it was made nearly eight months before the demotion decision. Additionally, three other individuals besides the supervisor were involved in the demotion decision, and the employee did not suggest that they bore racial animus.
The court also rejected the employee’s argument that General Motors showed racial animus through its practice of hiring African-Americans as per diem group leaders rather than as salaried workers. The record was insufficient to show that General Motors had such a practice, or that such a practice reflected racial animus. Nor could the employee show that an African-American coworker’s account of the employee’s altercation with the Caucasian group leader was ignored.
Retaliation. However, the court denied summary judgment on the retaliation claim, concluding that a jury could find that General Motors demoted the employee in retaliation for his protected activity. A reasonable person could have believed that the supervisor’s remark was discriminatory and the employee’s October 2015 complaint to his supervisor that she was targeting him constituted protected activity. Additionally, the October 2015 complaint was made less than three weeks before the demotion decision, and the close temporal proximity was sufficient to establish a causal connection between the protected conduct and the adverse action.
The supervisor did not document any deficiencies during the first seven months the employee worked for her. After the employee confronted his supervisor about her racial remark in March 2015, her documentation of his performance issues increased significantly, and so a jury could reasonably conclude that the supervisor’s criticism escalated in response to the employee’s complaint. After the complaint, the supervisor also began to document other non-performance related issues, which she did not do before his complaint.
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