The Sixth Circuit Reexamines Discrimination Claims: Employers Beware!

Human resource and legal professionals have long evaluated the potential of a discrimination claim using the following paradigm:

• Whether the employer is able to articulate a lawful reason (preferably objective) for the adverse employment decision;
• Whether there is documentation that supports the existence of the lawful reason for the adverse employment decision;
• Whether there are comparables or comparators;
• Whether the decision-maker (including any personnel who influenced the decision-maker under the “cat’s paw” theory of liability) is above reproach; and
• Whether the decision was fair (for example, whether the employee was provided with the opportunity to tell his or her “side of the story”; whether the employee was placed on notice the conduct that led to the adverse employment decision was improper).

While all these factors are important, as underscored by the Sixth Circuit Court of Appeals’ recent decision in Bobo v. United Parcel Service, Inc. (No. 09-6348, January 9, 2012), the litigation of discrimination claims typically involves an attack on the decision-maker’s alleged bias and the identification of comparables. Traditionally, a comparable involves the identification of a similarly situated individual, supervised by the same decision-maker as the plaintiff, who was treated the same as the plaintiff for engaging in the same or similar conduct. Even though the employer in Bobo was able to identify a comparable who was treated the same as the plaintiff, as discussed by the court in Bobo, depending upon the facts of the case, the search for comparables has potentially expanded and could require a more robust inquiry. In Bobo, the Sixth Circuit ruled against the employer and reversed the trial court’s decision to grant summary judgment on the plaintiff’s discrimination claims. This case is important for any employer that has facilities in Michigan, Ohio and Tennessee.
 
Factual Background

Walleon Bobo, an African-American Army Reservist, was employed by United Parcel Service (UPS) as a feeder supervisor. His job duties included training his direct reports by conducting yearly safety rides and evaluating the performance of his direct reports. The evaluation required the completion of a specific form. A department-wide investigation revealed that Bobo asked a number of the drivers he supervised to sign blank forms and did not actually spend the amount of time training as indicated on the forms. Bobo was discharged for falsifying records in violation of the company’s written policies. Thus, the first two prongs of the paradigm were satisfied: an objective reason supported by written documentation.

Bobo sued UPS alleging discrimination and retaliation under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Title VII of the Civil Rights Act, 42 U.S.C. §  1981, and the Tennessee Human Rights Act. According to Bobo, his discharge was a pretext for discrimination and retaliation because other non-African-American and non-military employees engaged in this widespread practice of falsification of forms and were not ultimately terminated from employment. In seeking summary judgment, UPS maintained the only comparable, a non-military, Caucasian feeder supervisor who admitted to falsifying yearly safety ride forms, was also terminated for the same conduct. 

Legal Analysis

During discovery, Bobo moved to expand the scope of discovery to seek information about several Caucasian, non-military supervisors to whom Bobo attempted to compare himself, even though these individuals reported to a different supervisor. UPS had only provided discovery about a single employee, who was the only Caucasian, non-military feeder supervisor who reported to Bobo’s supervisor. The trial court agreed with UPS on the permissible scope of discovery and denied Bobo’s request to expand the search for comparables. However, the Sixth Circuit was critical of the trial court’s limitation on the definition of comparables and held that “[c]ontrary to the holding below, Bobo was not required to demonstrate an exact correlation between himself and others similarly situated; rather, he had to show only that he and his proposed comparators were similar in all relevant respects, and that he and his proposed comparators engaged in acts of comparable seriousness.” The court further explained that the similarly situated employees did not have to deal with the same supervisor in every case and that this criterion was never “an inflexible requirement.”

The Sixth Circuit held that the trial court’s reliance on the standard that only included similarly situated employees that reported to the plaintiff’s supervisor was too narrow and the inquiry on who constituted a comparable depended on the facts of the case and, given the facts of this case, the search should have been expanded by the trial court.

A reading of the court’s decision also indicates UPS may have failed the fourth prong of the paradigm, i.e., the decision-maker was not above reproach. Even though Bobo’s immediate supervisor did not make the termination decision, the court found that Bobo’s immediate supervisor may have “influenced” the termination decision due to discriminatory animus. The immediate supervisor made disparaging remarks concerning Bobo’s military service and had been the subject of a prior complaint by Bobo. There is little doubt the court’s decision to expand the definition of comparables was tied to the evidence of discriminatory animus by an individual who may have “influenced” the adverse employment decision of an otherwise unbiased decision-maker. 

Practical Impact

Bobo underscores the importance of critically evaluating the definition of “comparables” and the reputation and conduct of all of those individuals who had the ability to influence the ultimate decision-maker. In expanding the definition of comparables, the Sixth Circuit in Bobo significantly increased the potential burden on employers to justify the adverse employment decision, to evaluate comparables and to carefully analyze all those who may have “influenced” the decision-maker based upon an improper motive.

Additional Information

Should you have any questions about this ruling, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department by phone at 866-287-2576 or via email at clientservices@ogletreedeakins.com.