Tuesday, February 21, 2017

Fifth Circuit Reverses Summary Judgment

Originally published by Thomas J. Crane.

In the world of jobs, anything is possible. In the employment world, we deal with human behavior in all its manifestations. We see a crazy case in Fisher v. Lufkin Industries, Inc., No. 15-40428 (5th Cir. 2/10/2017). William Fisher had worked for Lufkin Industries off and on for some 20 years when he was fussed at by his boss, Steve Saxton. “Boy, I don’t know why every time come over here [to Fisher’s work area] its a hassle!” His voice was raised. Mr. Fisher is African-American. Fisher reported the use of the term “boy” to HR and said it was racial. HR tasked another manager to look into the matter. That manager found that the use of the term “boy” was used as exclamation, not in a derogatory way.

[I am not sure what that means, but it could mean Mr. Saxton referred that way to white and black workers.]

Mr. Saxton’s manager. David Jinkins, was also asked to look into the matter. About a month later, a co-worker of Mr. Fisher, David Rhoden, approached Manager Jinkins and said he did not like hearing that Fisher had complained about the use of the term “boy.” Mr. Rhoden said Fisher had said he would get Mr. Saxton fired. During this conversation, Mr. Rhoden mentioned that for a long time, Mr. Fisher had been selling DVD’s out of his lunch box and some of the CD’s were pornographic. Rhodes would later testify that it was Mr. Jinkins who asked about the CD’s.

Manager Jinkins asked Rhoden to buy a CD from Fisher, so they could use it as proof. Rhoden resisted. Jenkins said, “You scratch my back, I’ll scratch yours.” Mr. Rhoden bought a CD a few days later. It turned out to be blank. Mr. Jinkins told Rhoden to try again. This time, the CD was pornographic, said Mr. Jinkins. An investigation ensued. The company said Mr. Fisher violated a company rule in selling CD’s on company property. Mr. Fisher did not deny the accusation, nor did he agree with it. The company officials went to Mr. Fisher’s car to search it. As the search began, Mr. Fisher said he received a call from his wife and he had to go. One official said he heard the phone ring. Two other officials present said they did not hear any phone ring. The car was never searched. Mr. Fisher was fired a day later.

Mr. Fisher filed suit. In his lawsuit, he said he had been subjected to reprisal for opposing discriminatory conduct.

The lower court granted summary judgment. The court said the investigation was retaliatory. Many employees sold things at work. Many employees possessed pornographic material at work. There was no specific rule prohibiting selling things at work. But, Mr. Fisher lied to company investigators and did not cooperate in the search of his car, said the district court. Therefore, said the court, the firing was justified. It granted summary judgment apparently seeing the termination by HR, which meant the HR official was not motivated by retaliation.

On appeal, the Fifth Circuit was perplexed. It noted that the investigation was retaliatory. The lower court found it was retaliatory and facts supported that finding. But, under the cat’s paw theory, a supervisor can act on the retaliatory motive of a subordinate manager. Manager Jinkins appeared to have a retaliatory motive. His investigation and “sting” operation reflected an unusual interest in Mr. Fisher. The investigation would not have occurred but for Rhoden’s and Jinkin’s retaliatory motive. Mr. Fisher’s lack of cooperation with a retaliatory motivated investigation was “inextricably” tied to the retaliatory motive of Jinkins and Rhoden. The actions of Mr. Rhoden and Mr. Fisher were proximate causes of Fisher’s termination. So, the Fifth Circuit panel reversed the grant of summary judgment. See decision here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today http://ift.tt/2lHSZXK
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