EMPLOYER LIABILITY

Unchecked supervisor sends employer to trial

by Stephanie C. Moore and Jennifer L. Anderson

Imagine you have a supervisor who makes a careless remark or lets his anger get the best of him when disciplining or firing an employee and exposes you to a discrimination claim.  Further imagine your frustration in knowing that the company had good reasons for the decision regardless of the supervisor’s behavior that might suggest an improper motive to a judge or

jury. Is all lost?

Not necessarily, but you should be prepared for what’s involved in a “mixed motives” case, which is a case in which there’s evidence of both lawful and unlawful reasons for the decision at issue. When an employer has mixed motives for its employment decision, it can still defeat the employee’s claim — but only if it can prove that the same decision would have been made regardless of any unlawful motive. It’s an uphill battle that turns on the facts and circumstances of each case.

New boss in town

A 52-year-old manager for a fast-food restaurant chain supervised two restaurants, sharing managerial duties with a co-manager at one of the stores. The manager worked without incident until assigned to a new supervisor. According to the manager and his co-manager, the supervisor repeatedly criticized him and made disparaging comments about his age. The manager claimed the supervisor said, “And don’t forget it you’re old, too.” The manager complained to the HR department that he was being harassed because of his age. He requested a transfer, claiming he was afraid the supervisor wanted to fire him because of his age, but his transfer was never approved.

The supervisor subsequently sent an e-mail to all of his subordinate managers to alert them to a company policy that required managers to fill out a disciplinary form every time an employee neglected to “punch out” for breaks. According to the supervisor’s e-mail, managers couldn’t punch out employees’ timecards for them without also filling out a disciplinary form reprimanding the employee for failing to clock out correctly. The supervisor said the reason for the policy was to make sure that if an employee contests changes made to the hours on his timecard, the manager will have a disciplinary notice on file to show that the employee didn’t clock out properly. The notice would be “proof” that the managers didn’t illegally alter the timecard. The strongly worded e-mail informed all managers that if they violated the policy, they would be fired.

You’re fired!

The company’s HR department investigated several “punch changes” entered for employees at the restaurants managed by the 52-year-old manager. At the conclusion of HR’s investigation, the supervisor fired the manager despite the fact that HR had informed the supervisor that it was his responsibility to determine whether the manager in question or another manager had made the improper changes without issuing the proper disciplinary form. A 47-year-old was hired to replace the manager.

Oh yeah? You’re sued!

The manager filed an age discrimination suit against the company in federal court. He acknowledged that he occasionally changed employees’ timecards when they took breaks and that he didn’t fill out the disciplinary form for all those changes. He claimed, however, that the supervisor’s e-mail wasn’t a companywide policy. He further claimed that he thought he was following the policy because, as he understood it, he was required to fill out a disciplinary form only if an employee complained about his timecard being changed. Since that had never  happened, he hadn’t filled out any forms.

The employer claimed it fired the manager because he violated company policy, not because of age discrimination. As proof, the company demonstrated that it fired several other (much younger) managers for “employees’ hours deletions.” None of those managers reported to the same supervisor, and none of them appeared to have been fired specifically for failing to fill out the disciplinary forms.

The employer asked the court to dismiss the case before trial. The trial court granted the request and threw the case out. But it didn’t end there. The manager appealed, and the appeals court decided that he was entitled to have a jury hear his side of the story

Who has to prove what in mixed-motive cases?

The court announced that in mixed-motive age discrimination cases like this one, the employee must prove that he was (1) fired, (2) qualified for his position, (3) more than 40 years of age at the time he was fired, and (4) replaced by someone younger than 40 or otherwise fired because of his age. If he’s able to prove all four of those things, the employer must then provide a legitimate, nondiscriminatory reason for the decision to fire him.

If the employer is able to give a nondiscriminatory reason for the decision, the employee must then prove that its reason isn’t the true reason but instead is a pretext for discrimination or that the reason, while true, is only one of the reasons for the decision, the other motivating factor being his age. In other words, the  employee has to prove the employer had a mixed motive for firing him.

If the employee gets that far and is able to show that age was a motivating factor in the decision to fire him, the employer must prove that it would have fired the employee anyway, regardless of any discriminatory attitude. The court decided there were too many factual issues in dispute in this case for the trial court to have thrown it out before trial. First of all, the court said the manager met his initial burden of proof. Second, it was disputed whether the employer even had a policy requiring managers to fill out disciplinary forms regarding their changes to timecards — the only place such a “policy” appeared was in the supervisor’s e-mail.

Furthermore, even if the e-mail policy was in fact a company policy, there was a question regarding when it required the disciplinary forms to be filled out. (Did they have to be filled out every time a change was made or only when the employee complained about the change?) Finally, the court found the other managers’ terminations for “employees’ hours deletions” unpersuasive because none of them worked for the same supervisor and there was no evidence that any of them had been terminated specifically for failing to fill out the disciplinary forms. For all those reasons, the court decided that there were enough facts in dispute to warrant a trial and sent the case back to the trial court. Rachid v. Jack in the Box, Inc., 2004 WL 1427046 (5th Cir. 6/25/04).

Mixed motives means HR involvement is a must

This case demonstrates the importance of HR’s role in weighing in on the ultimate employment decisions in your workplace. On the off chance that you have a supervisor who uses bad judgment by making a derogatory or discriminatory remark to subordinates, you can likely avoid a lawsuit or put the company in a better defensive position if you have a handle on the employment actions being taken against the people reporting to the supervisor. You’re also more likely to ferret out any employee dissatisfaction that stems from actual or perceived discrimination and will be in a better position to remediate it. The best way to do that, of course, is to get HR involved early and often in the decisionmaking chain to make sure your policies are being applied evenhandedly throughout the company.

Stay on top of your supervisors to make sure they’re getting the necessary training to prevent such callous remarks in the first place. Also, keep in mind that you may not hear about those comments as they occur in the field — in many instances, by the time you hear about the alleged comments, the employee is already gone. That shouldn’t stop you from following up with the supervisor and  investigating the situation anyway. Being proactive can save your company thousands of dollars in attorneys’ fees and litigation costs. ❖