A stratified termination procedure created circumstances in which a biased direct supervisor could make a “cat’s paw” of upper management, leaving it for a jury to decide whether a senior manager was the proximate cause of a service member’s termination.
Finding that an employee gathered evidence during discovery that would allow a reasonable jury to find that his military service was a motivating factor in an employer’s termination decision, the Sixth Circuit reversed a district court’s grant of summary judgment in favor of the employer against the employee’s USERRA claim. Not only did a senior manager persistently make anti-military comments, up to and including threatening to get him fired, he offered evidence that she was, in fact, plotting to get him fired (Hickle v. American Multi-Cinema, Inc., June 20, 2019, Moore, K.).
Military training. The employee began working at an AMC theater in 2004, while he was still in high school. In 2006, he was promoted to operations coordinator. Then, in 2008, he joined the National Guard. After joining the National Guard but before leaving for training, the employee interviewed for a management position. During the interview, he advised the general manager that he was leaving for military training for approximately six months. The general manager ended the interview immediately.
The employee was not promoted to a management position when he returned from military training, but in April 2013, he was promoted to kitchen manager. In the meantime, the employee continued his military service, including a one-year deployment to Afghanistan.
Although AMC never prevented the employee from fulfilling his military obligations or denied him time off, a senior manager repeatedly expressed disapproval when he had to take leave for military duty. The senior manager insinuated that the employee could or should be fired for taking time off for military duty.
Chicken finger incident. As kitchen manager, the employee was responsible for supervising employees who worked in the AMC kitchen. He was advised that a subordinate had asked for extra food to take home at the end of the night. After the kitchen closed, the employee found a to-go box with ten chicken fingers (more than the amount an employee was allowed to take home). When confronted by the employee, the subordinate began cursing and speaking inappropriately. The employee reported the incident to management. Two workers were fired for their part in the incident.
Discharge plot. Thereafter, three separate coworkers warned that the senior manager was trying to get the employee fired. Allegedly the senior manager was plotting to have employees write complaints about him that would be sent to corporate headquarters, eventually causing his termination. While the employee was investigating the senior manager’s plot, AMC was investigating him. Once the investigation was initiated, the employee was suspended. Ultimately, he was terminated.
The employee filed suit claiming that he was discharged in violation of his rights under USERRA and state law. The district court granted the employer’s motion for summary judgment on the employee’s wrongful discharge claim. This appeal followed.
Direct evidence of discrimination. The appeals court found that the district court reached two incorrect conclusions that the employee had not offered any direct evidence of discrimination on the basis of his military activity. First, it erred when it concluded that, because the senior manager did not have the authority to fire the employee, he could have proceeded only under the cat’s paw theory. In fact, the employee did have evidence that ties some people involved in the termination decision to the senior manager’s discriminatory comments. The decisionmaker and those with direct input knew about the senior manager’s persistent discriminatory comments. The employee repeatedly complained to one of the individuals with direct input into the termination decision about the senior manager’s behavior. Further, the decisionmaker knew that the employee had heard that the senior manager was conspiring to get him fired.
“Cat’s paw” theory of liability. Next, the district court erred by finding that the employee could not make out a claim under the “cat’s paw” theory. The district court held that the employee could not proceed under the cat’s paw theory because he had not offered any evidence that the senior manager issued the direction to obtain statements relating to the conspiracy plot with the intention of causing the employee’s termination.
However, the appeals court determined that the employee offered evidence that the senior manager persistently made anti-military comments, up to and including threatening to get him fired for “something else” when the employee had to miss the very busy “Avengers” weekend for military duty. Further, he offered evidence that she was, in fact, plotting to get him fired.
Proximate cause. Next, the appeals court addressed whether the senior manager’s conduct was the proximate cause of the employee’s termination, and determined that this was an issue for a jury to decide. The chicken-finger incident and issues with the employee’s demeanor, communication, and professionalism were part of the investigation, and cited as a reason for his termination.
But the appeals court disagreed with the employer’s assertion that it broke the chain of causation by conducting a thorough and independent investigation. The court observed that the investigation consisted mostly of gathering statements from a few employees and was not necessarily thorough. Second, the investigation was not necessarily independent. Moreover, the employer’s stratified termination procedure demonstrated circumstances in which a biased direct supervisor can make a “cat’s paw” of upper management.
Accordingly, the appeals court reversed the judgment of the district court, and remanded the matter for further proceedings.
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