Employment Law Daily Self-described ‘racist’ heavily influenced firing decision, so cat’s paw theory bars summary judgment
Tuesday, April 5, 2016

Self-described ‘racist’ heavily influenced firing decision, so cat’s paw theory bars summary judgment

By Lorene D. Park, J.D. Evidence that all of the information leading to an African-American worker’s termination came from a supervisor who openly described himself as a “racist” supported a cat’s paw theory of liability and precluded summary judgment against his Title VII and state-law discrimination claims, ruled a federal district court in Michigan. The plaintiff’s retaliation claims also advanced (Henry v. Shawnee Specialties, Inc., March 31, 2016, Bell, R.). Supervisor was self-described racist. The plaintiff, a die cast technician, was placed with Shawnee through a staffing company. His shift supervisor and coworker were both Caucasian. During the plaintiff’s few months at Shawnee, the supervisor allegedly: falsely accused him of making defective parts; complained about him to the plant manager; and had him carry hot metal across the floor, which was unusual and dangerous. At one point, the supervisor said his father had been a “racist” and would have shot the plaintiff if he had entered their home. The supervisor then said he was also a “racist” but was trying to overcome it. Plaintiff fired same day he complains. On May 17, 2013, the supervisor cursed and yelled at the plaintiff, who complained to the plant manager. The plant manager said he would investigate and consider moving the plaintiff to another shift. However, the other shift supervisor said he did not want to work with the plaintiff. The manager and the company president decided to terminate the plaintiff, who was informed by the staffing company. He was also told he would be placed on the staffing company’s availability list, but he was never given another assignment. No direct evidence. Addressing Shawnee’s motion for summary judgment on the plaintiff’s race discrimination claims, the court found that the supervisor’s description of himself as a “racist” and a coworker’s testimony that the same supervisor referred to her and other African-Americans as “you people” was not direct evidence because it didn’t “require the conclusion that race was a motivating factor in his actions.” Instead, a fact-finder had to infer that the supervisor’s racial animus motivated his complaints to the plant manager, which then led to the termination. Supervisor not proper comparator. Under the burden-shifting analysis, Shawnee argued that the plaintiff could not show he was replaced by someone outside his protected class or was treated differently than similarly situated non-protected employees. In response, the plaintiff claimed his supervisor was treated more favorably because he was only reprimanded for not following instructions or making mistakes. In the court’s view, though, the supervisor was not a proper comparator because he had been with the company 15 years and had been a foreman since 2000. In contrast, the plaintiff was hired as a temporary employee and had only been there a few months. Even if some of the supervisor’s mistakes were more serious, they were mitigated by his tenure and performance record. A supervisor could justifiably be more concerned that a pattern of minor mistakes by a new worker could indicate a more serious, long-term problem. Discrimination claim proceeds. That said, the court found that the plaintiff made out his prima facie case because the supervisor’s racist remarks in the context of criticizing the plaintiff’s performance and his allegedly false accusations of bad performance leading to the termination could raise an inference of discrimination. And while poor performance is a nondiscriminatory reason for termination, there was contradictory evidence as well. Honest belief and cat’s paw theory. The court rejected Shawnee’s assertion of the honest-belief defense because the company did not point to what evidence supported the defense. Also, there was very little evidence that the plant manager or the president of the company investigated the plaintiff’s work performance before deciding to terminate him. Moreover, Shawnee could not rely on the defense if an improper motivation by the plaintiff’s supervisor could be imputed through a cat’s paw theory. Here, there was evidence indicating that the self-described “racist” supervisor influenced the decision-making process. According to the company president, he was informed that the plaintiff was having performance problems and was unwilling to follow his supervisor’s direction. Also, even though the plant manager testified that he was the one that provided information on the plaintiff to the company president, he received his information from the supervisor, who complained about the plaintiff’s performance on several occasions. To the court, that evidence indicated that the supervisor was the source of “virtually all the information which led to Plaintiff’s dismissal.” That was enough to support a “cat’s paw” theory of liability in this case. Retaliation claims. The plaintiff asserted Title VII and state law retaliation claims against both Shawnee and the staffing company. Denying summary judgment, the court noted that Shawnee failed to address that claim in its briefing. As for the staffing company, the court rejected its argument that the plaintiff did not show a protected activity. To the contrary, when he was told he would no longer be working at Shawnee, he explained the “whole situation,” to the staffing company representative, including the discrimination that had allegedly taken place. Also, while the staffing company had a valid reason for not giving the plaintiff more assignments (he did not say he was available as required by policy), a jury could reasonably infer that the company understood he was available because a company rep told him that he would be placed on the “availability list.” In addition, there was no evidence the company actually enforced the policy requiring notice of availability.

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