Labor & Employment Law Daily Nigerian employee gets second chance on two non-promotion claims against Safeway
Wednesday, November 29, 2017

Nigerian employee gets second chance on two non-promotion claims against Safeway

By Kathleen Kapusta, J.D.

Reversing summary judgment on certain disparate treatment claims of a naturalized U.S. citizen who was originally from Nigeria, the Sixth Circuit in an unpublished decision found that evidence of the employee’s qualifications, procedural irregularities, prior poor treatment, subjective criteria used in rejecting his applications, and a lack of African-American managers at his workplace during his tenure, when considered together, was sufficient to support his claims regarding non-promotion to two manager positions. Summary judgment, however, was affirmed as to a third non-promotion claim as well as to his hostile work environment, retaliation, and constructive discharge claims (Sotunde v. Safeway, Inc., November 24, 2017, Kelly, P., Jr.).

Hired by Safeway in 2004 to run its produce warehouse, the employee was promoted several months later to supervisor. While employed at Safeway, he earned a second bachelor’s degree in finance and a master’s degree in business administration but was never promoted above supervisor.

The employee resigned in 2013 and then sued Safeway under Title VII and Section 1981, alleging he was denied promotion because of race, color, and national origin discrimination; was subjected to a racially hostile work environment; was retaliated against after he complained about unfair treatment; and was constructively discharged. The district court granted summary judgment on all claims.

Manager positions. On appeal, the employee argued that while he applied for two manager positions in 2012, he was not selected for an interview and the positions were awarded to two white males. In reversing the grant of summary judgment against these disparate treatment claims, the Tenth Circuit first observed that not only was he more qualified from an educational standpoint—one of the successful candidates did not have a college degree and the other had only one bachelor’s degree—there was evidence from a performance standpoint that he met his individual and department goals, increased efficiency in the warehouse, and was identified by the talent acquisition team as a candidate who should proceed.

Although the decisionmaker claimed he had concerns about the employee, one of the successful candidates also suffered from comparable deficits. These discrepancies, said the court, could lead a reasonable juror to conclude that the decisionmaker gave only pro forma consideration to the employee’s application and/or unreasonably inflated the successful candidate’s qualifications while unreasonable denigrating the employee’s.

In addition, there was evidence from which a reasonable juror could infer that the decisionmaker manipulated the qualifications to the employee’s disadvantage as he admitted he could add or subtract qualifications for job openings and for the two manager postings, he limited the preferred college degree to logistics rather than logistics or business and included a years of experience degree equivalent. There was also evidence he treated the employee poorly, including calling him at home on a day he had taken off to help his mother after surgery and allegedly telling him, “You know, Abby, if you don’t want to [be] part of this team, just let me know, so I’ll replace you.”

Further, the court found evidence of disparate treatment of similarly situated employees. While the employee claimed the decisionmaker told him he would not be promoted because his warehouse had not been producing for 10 years, he promoted another employee out of that same warehouse three years earlier. And while the decisionmaker expressed concern about the employee’s relationship with coworkers, he also conceded that one of the successful candidates did not get along with some employees.

Moreover, turning to Safeway’s legitimate, nondiscriminatory explanations—it focused on “potential for success” and “leadership and communication skills”—the court pointed out that discrimination is more likely where subjective rather than objective criteria are used to reject a candidate’s application. Finally, there was also evidence that there were no African-American managers while the employee worked at the warehouse and there were no other African-American supervisors until after he complained of discrimination. And while some or all of these pieces of evidence may not have been enough in and of themselves to create a fact issue as to pretext, the court found taken together, the evidence was sufficient for a reasonable jury to disbelieve Safeway’s explanations for not interviewing the employee for the manager positions.

Superintendent position. The court, however, upheld the grant of summary judgment as to his disparate treatment claim regarding a superintendent position that was not posted for application and for which the employee did not apply. While he argued he was “in the group of people who might reasonably be interested” in that job, Safeway presented evidence that the position was created especially for one person as part of its Military Veterans Recruitment Program and the hiring decision was made by the company’s corporate office, not by local warehouse management.

Hostile work environment. Nor would the court revive his hostile work environment claim where the handful of incidents and comments upon which the employee relied—being told by the decisionmaker that he could not call him a racist because he hired him; being excluded from certain conversations about his work; derogatory comments about his wife; and coworker conversations about his future with the company—were not sufficiently severe or pervasive.

Retaliation. As to his retaliation claim, the court found he failed to show he was subjected to a materially adverse action. He claimed he was excluded from conversations and email communications in which he should have been included, two managerial employees sent emails questioning his work and failed to respond to his efforts to learn about the alleged problems, he was given a lower performance review for 2012, and sometime in 2013, management made comments about his future with Safeway and told employees that he was planning on quitting. But this evidence, said the court, described actions in the nature of snubs or slights that were insufficient to support a retaliation claim. And because he relied on the same conduct to support his constructive discharge claim, the court affirmed summary judgment against that claim as well.

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