The U.S. Court of Appeals for the
Sixth Circuit (which hears appeals from U.S. district courts in Michigan, Ohio,
Kentucky and Tennessee) issued a plaintiff-friendly opinion in a race
discrimination case on May 7, 2015.
In Wheat v. Fifth Third Bank, No.13-4199 (6th Cir., May 7, 2015), the plaintiff, an African-American, initiated
a verbal confrontation with a Caucasian co-worker. Their discussion ended when
plaintiff went to his desk but the co-worker soon approached plaintiff and
reignited the argument. They went to a hallway, argued back and forth and,
according to plaintiff’s deposition testimony, the co-worker swatted his arm as
he turned to return to his desk. Plaintiff admitted calling his co-worker a “bitch”
numerous times. The co-worker admitted telling plaintiff that plaintiff did not know what the co-worker was capable of doing. A human resources representative met with
plaintiff first. Plaintiff was not entirely cooperative during the interview
but the record contained disputed facts and inferences as to what occurred. The
co-worker was then interviewed. He essentially said he thought the two simply
were having a bad day. Both employees were sent home but plaintiff was told not
to report to work until notified. The bank terminated plaintiff for violating
its workplace violence and anti-harassment policies, making a threat of
physical violence, violating the bank’s “core values.” The bank issued
discipline to the co-worker but did not terminate him. Plaintiff filed an
administrative charge with the Ohio Civil Rights Commission. Upon receiving the
charge the bank reopened its investigation and ultimately decided to terminate the
co-worker as well.
The value of this case to plaintiff’s
counsel is the court’s discussion of how summary judgment is supposed to work
in the familiar McDonnell Douglas indirect evidence discrimination case. Gratifying
in particular is the court’s citation to Reeves v. Sanderson Plumbing Prods.,Inc., 530 U.S. 133, 142 (2000), with respect to the third step of the McDonnell
Douglas concerning pretext. Quoting Reeves the court said:
However, the burden on the defendant at this stage of
the McDonnell Douglas analysis is not to prove the existence of a
nondiscriminatory reason for the adverse employment action. Rather, as the
Supreme Court has instructed, “This burden is one of production, not
persuasion; it ‘can involve no credibility assessment.’” (Quoting St. Mary’sHonor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).
Our analysis of the pretextual nature of the proffered
justifications for Fifth Third’s employment decision again must be overlaid
with an understanding of the summary-judgment principles at play. In other
words, at this preliminary stage of the litigation, Wheat need only identify
genuine disputes of fact regarding the legitimacy of the defendant’s stated
reasons in order to withstand a motion for summary judgment. We conclude that
the plaintiff has met that burden.
The Wheat case will be cited often
by discrimination plaintiffs in cases in this circuit. It is without question a
useful tool in overcoming summary judgment motions by employers and getting
cases to trial.
