Employment Law Daily Disparaging references to 'Indian' manager too remote to sustain bias, retaliation claims
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Thursday, January 28, 2016

Disparaging references to 'Indian' manager too remote to sustain bias, retaliation claims

By Brandi O. Brown, J.D. An operations manager of Indian descent who allegedly was fired for poor leadership skills and problems with personal communications was unable to revive her discrimination and retaliation claims on appeal to the Seventh Circuit. Contrary to her assertions, her employer's reasons had not shifted over time. Moreover, a comment about her "old Indian husband" was made outside of the workplace and was unrelated to work. Although a "closer call," her allegation that one of the people involved in her termination called her an "Indian bitch" was likewise insufficient to sustain her claim. The district court's decision granting summary judgment was affirmed (Bagwe v. Sedgwick Claims Management Services, Inc., January 26, 2016, Ripple, K.). Complaints about pay. Promoted to an operations manager position in 2007 in spite of one supervisor's concerns about her leadership skills, the employee was fired two years later. In the months leading up to the termination, both she and her coworkers and supervisors had voiced concerns about one another. According to the employee, she believed that she had not received appropriate raises in prior years, eventually complaining that she believed it was related to her race and national origin. She first complained of racial discrimination in May 2008 and she repeated her complaint in April 2009. According to her supervisors, the employee had received appropriate raises since 2005, including above-budget pay increases in two years, and her salary prior to promotion had been above the median. Told to get rid of "old Indian husband." In contrast to her account, the employer contended that it received several complaints about the employee, including concerns about her leadership and her interactions with other employees. In March 2009, the employer placed her on a Performance Improvement Plan because of problems with her behavior over the previous year, including her nonresponsiveness and her refusal to listen to criticism. She was also criticized for failing to report, until almost a year later, a co-worker's comments about her getting rid of her "old Indian husband" and finding a white husband. The employee complained about the PIP and also complained about "discrimination, harassment, bullying, and hostile work environment" as well as pay disparities and retaliation. During the course of the ensuing investigation, more complaints were made about the employee's behavior, including that she would talk over others and raise her voice. The investigation concluded with no evidence being found of harassment, discrimination, or pay disparity. Termination. A subsequent round of "email war debates" allegedly started by the employee finally led to her termination. On the same day she was fired, she heard her area manager mutter "Indian bitch" as she was leaving her office. She was told she was fired because of a distracting lack of trust. She was also told she was not being fired for performance reasons. She was replaced by a white, American male, who started at a higher salary. When she later applied for a new job with a new employer, she was rejected because of a communication from her former employer. She filed timely discrimination charges and ultimately filed suit against, complaining of discrimination, retaliation, and defamation. All of her claims were dismissed on summary judgment. Comments insufficient. Reviewing the district court's grant of summary judgment de novo, the appeals court affirmed. With regard to her claim of discrimination based on her termination, the court found the employee could not establish a claim under either the direct or indirect method of proof, for the same reasons. Although she pointed to evidence of discriminatory intent, including a remark by one of her supervisors about her Indian sister-in-law, her suggestion that the employee get rid of her "old Indian husband," and an statement by another manager that she was an "Indian bitch,” the court found those comments insufficient to create an inference of discrimination. The first two comments were not work-related and were made in settings outside of the workplace. Moreover, the "old Indian husband" remark was made over a year before the employee was fired. The third comment, although a closer call, likewise did not raise an inference of discrimination. As a single bit or piece of evidence, it was insufficient to support a claim under the direct method. Moreover, it was made by only one of the four decisionmakers, who did not make the ultimate decision. Rationale was consistent. Under the direct method, the employee also failed to establish that the rationale for her discharge was "unworthy of belief." By the time of her discharge, the employer had received many complaints about her inability to work with others and had placed her on a PIP based on those concerns. According to the employer, those problems continued and led to her termination. Although the employee contended that its explanations shifted, the court explained that the explanations had been "entirely consistent" and were supported by the record. Indeed, in its EEOC statement the employer had contended that the employee interfered with other employees' ability to do their jobs and in deposition one of the decisionmakers stated that she was fired because she was causing "morale" problems. Although the employee correctly pointed out inconsistencies in how the decisionmakers described their decision-making process, the court explained that contrasting recollections of the events surrounding the action in question did not raise an inference of discrimination, so long as the rationale remained consistent. Moreover, her argument that the employer deviated from its internal procedures was unhelpful because the employee failed to present evidence of a "regularly enforced company policy." Other alleged inconsistencies noted by the employee likewise failed to demonstrate an error in the district court's decisionmaking process. No comparators. With regard to comparator evidence, the employee was likewise unable to support her claim. Although she pointed to her replacement as a comparator, because he also had leadership problems, her claim that his subsequent termination was not because of those problems, but instead because he cost the employer money, was purely speculative. Moreover, the employee failed to provide sufficient information about coworkers whom she alleged were paid more than she was. Her pay discrimination claims also could not be revived because of her inability to present evidence of a similarly situated employee who received a higher salary. Finally, although the employee contended that the employer engaged in an "escalating" campaign of retaliation against her, she described a pattern that began prior to her protected activity. Moreover, nothing indicated that the PIP or the later investigation after her complaint of discrimination were retaliatory. Likewise, she failed to link her termination to her complaints or to show that the reasons for her termination were pretextual.

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