By Lorene D. Park, J.D. A male assistant manager failed to raise triable issues on whether his gender was a “contributing factor” either to disciplinary warnings issued by a female manager or to his termination for failing to immediately report workplace harassment as required by policy. Affirming summary judgment against his state law claim, the Eighth Circuit noted that he did not dispute his performance deficiencies, that he was also disciplined by a male manager, and that he lacked other evidence supporting his claim. Summary judgment was also affirmed on his retaliation claim (Denn v. CSL Plasma, Inc., March 16, 2016, Gruender, R.). During his first few years as assistant manager at a blood plasma collection facility, the employee received good reviews. However, in late 2011, his male manager issued two verbal warnings for revealing confidential information. In January 2012, a female manager took over and supervised both the employee and a female coworker who shared many of his same duties. This manager gave the employee numerous verbal and written warnings for performance problems, including failure to sufficiently build relationships, interact with staff, or manage workflow. He also repeatedly failed to deliver timely corrective actions to subordinates. He went on a development plan, but the problems continued, and he had numerous conversations with the manager about missing deadlines, communication problems, and failing to correct his subordinates. By July 2012, the manager sought permission from HR to issue a final warning. Complaint to HR. On August 17, the employee reported to HR that his manager was discriminating against him based on his gender. The employer investigated, reviewing documents and interviewing the employee and several others. It concluded he had not suffered discrimination. On August 21, he was served with his final written warning. He then took a leave of absence through mid-October. Shortly after his return, he received an addendum to his final warning that revised his timeline in light of his absence and reminded him to provide peers and supervisors with necessary updates according to the communication channels in the handbook. Termination. On October 31, two of the employee’s subordinates got into a physical altercation. He reviewed video of the incident and ensured they did not work together until he could investigate, but he did not inform his manager, HR, or the other assistant facility manager until November 7. The employer’s policy required the immediate reporting of all harassment to a manager and HR. The employee was fired on November 8 for failing to report the incident, though the paperwork additionally listed several prior corrective actions. Sex discrimination claim fails. He filed suit and the district court granted summary judgment against his sex discrimination and retaliation claims under the MHRA. Affirming, the Eighth Circuit first noted that, as to the discrimination claim, the MHRA’s “contributing factor” standard is less rigorous than Title VII’s “motivating factor.” Thus, it would be sufficient for an employee to show that consideration of a protected characteristic contributed to the unfair treatment. In this case though, even under the less rigorous standard, the employee failed to raise a triable issue on whether his gender was a contributing factor to the employer’s decision. Though he claimed his warnings resulted from his female manager’s animosity toward him, he did not deny that he also received discipline from a male manager. Nor did he offer evidence rebutting the documentation of instances of poor performance. To the contrary, he acknowledged the need to improve his performance. Moreover, though the employee claimed that his female coworker was never disciplined, that did not raise an inference of discrimination because he provided no evidence that she suffered from the same performance deficiencies. Also rejected was the employee’s “me too” evidence that two other males employee felt targeted by female superiors—there was no information on the nature of the treatment or, as to one of the men, whether it involved the same type of discipline. Similarly, the employee’s version of the events preceding his firing did not raise a triable issue. It was undisputed he did not report the altercation between subordinates for eight days in contravention of written policy and the written warning he had just received. Though he claimed he was following a verbal instruction from HR to investigate before reporting the incident, the record did not support this claim. The employee also claimed one of his subordinates overheard a female manager trainee remark to his female counterpart, after he was fired: “Isn’t it nice that all of the testosterone is gone so that we don’t have to deal with it anymore[?]” In the appellate court’s view, while that might show his peers harbored bias, it did not support his claim because neither woman was involved in the termination decision or linked to his prior discipline. Retaliation claim fails too. Summary judgment was also affirmed on the retaliation claim because the employee failed to provide evidence that his discrimination complaint to human resources contributed to the employer’s decision to issue his final written warning and then to terminate him. Though he received the written warning soon after complaining, the manager had sought approval to deliver the warning nearly a month before his complaint and his performance issues dated back for months. As to the termination, the employee failed to undermine the employer’s lawful explanation, and his poor performance overwhelmed any temporal relationship between his August complaint and his November termination.
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