Employment Law Daily Fired for bullying workers, supervisor fails to raise pretext questions under ADEA or FMLA
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Thursday, September 1, 2016

Fired for bullying workers, supervisor fails to raise pretext questions under ADEA or FMLA

By Lorene D. Park, J.D. Granting summary judgment against a former production supervisor’s ADEA discrimination and FMLA retaliation claims, a federal district court in North Carolina found that he failed to raise a triable issue of fact on whether the investigation into multiple complaints that he bullied and intimidated subordinates was manipulated due to animus toward his age or use of FMLA leave. Nor did the employee show that anyone involved in the investigation or decision to fire him did not honestly believe that he had violated multiple rules of conduct (Shell v. Tyson Foods, Inc., August 26, 2016, Voorhees, R.). Employee disciplined for threats and intimidation. Hired by Tyson in 1995, the employee was promoted to production supervisor and then to the position of shift production manager, in which he supervised several subordinate employees. Although he received two largely positive competency reviews from his manager in 2011 and 2012, he also developed a record of allegedly violating Tyson’s employment and managerial standards. For example, in June 2010 he was disciplined for improperly assigning supervisory responsibilities to a subordinate and for intimidating the subordinate. In 2011, he was disciplined after Tyson investigated allegations that he openly harassed a fellow employee while at work. In November 2012, he was again disciplined for threatening subordinate employees for their use of overtime. New plant manager’s age-related remarks. In January 2013, a new plant manager became the employee’s supervisor. Shortly thereafter, he made several remarks about how Tyson needs to get the "old folks out . . . and get[] the young bucks in" or "this is a young man’s game now," among other similar statements. Significantly, though, the plant manager had no hiring or firing authority. All such employment actions were carried out by human resources, including investigations of misconduct and decisions on appropriate actions, and the plant manager had no authority over human resources. Fired for bullying others. In April 2013, Tyson was notified that the employee was bullying and harassing others. He was suspended and, during HR’s investigation, the HR manager was told that he had bullied, intimidated, and demeaned others; repeatedly cursed at work; was condescending; undermined another supervisor by admonishing him in front of subordinates; and otherwise abused the authority Tyson had granted him. In deposition, the employee admitted that he made remarks about speaking English and issued disciplinary papers outside of protocol to gain control over another. He also agreed that some of the misconduct, if true, would violate policies. The HR manager reported his findings to the HR Director, who was based in another state and who decided, based on the evidence gathered, that the employee should be fired. The termination letter admonished him for his inappropriate behavior and noted that he had previously been warned several times that his behavior had to change or he would be terminated. No direct evidence of age discrimination. The employee claimed the allegations of bullying were pretextual and he was really fired because he was 49 years old at the time. Granting summary judgment for Tyson on the ADEA claim, the court first held that the plant manager’s age-related remarks had no link to the employee or his termination and were not direct evidence of bias. Moreover, the employee did not raise a genuine dispute as to whether the plant manager played any decisive role in the termination. Indeed, there was no evidence that he was involved at all in the HR investigation and nothing to support the employee’s cat’s paw theory. To the contrary, the evidence indicated that the plant manager was only brought into the loop after the termination decision was made and the termination letter had circulated to him through email. No pretext. Under the burden shifting analysis, the court assumed a prima facie case and found that Tyson had a legitimate reason to fire the employee—the HR investigation revealed many complaints that he was abusive in violation of company policies, despite prior warnings. In response, the employee failed to show pretext. He claimed there were "irregularities" in the investigation because a different HR manager (who previously indicated he did not like the employee) had tainted the investigation. He also complained that other employees were not "forced to participate in the investigation" and were free to decline to be interviewed. In the court’s view, such irregularities were not enough to show pretext. There was no evidence that either HR manager falsified or manipulated the investigation in order to achieve a discriminatory aim. Also, the investigation as a whole was reviewed by a corporate HR director, the ultimate decisionmaker, who was not involved in the investigation and had not been shown to hold any sort of animus against the employee, age-related or otherwise. Moreover, the employee had no evidence that anyone involved in the investigation or decision to fire him did not honestly believe that he had violated multiple rules of conduct. Whether he was actually guilty of the misconduct was beside the point. For these reasons, the ADEA claim failed. No FMLA retaliation either. Summary judgment was also granted on the employee’s FMLA retaliation claim. While the temporal proximity of his termination approximately one month after he returned from FMLA leave was enough to make a prima facie showing of retaliation, it was not enough to demonstrate pretext. Moreover, the employee relied on the same pretext arguments that had been rejected with respect to his ADEA claim.

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