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Wednesday, January 24, 2018

EIGHTH CIRCUIT HOLDS “ELABORATING” ON REASONS FOR FIRING EMPLOYEES NOT EVIDENCE OF PRETEXT IN BIAS SUITS

In Rooney v. Rock-Tenn Converting Company, No. 16-3631, 2018 U.S. App. LEXIS 494 (8th Cir. Jan. 9, 2018), the 8th U.S. Circuit Court of Appeals recently clarified that when explaining its reasons for termination during litigation under the McDonnell-Douglas burden-shifting framework, an employer may elaborate on its previously stated reasons and opined: “evidence of a substantial shift in an employer’s explanation for a decision may be evidence of pretext, but an elaboration generally is not.” It also reiterated that federal courts are not to act as a “super-personnel department with authority to review the wisdom or fairness of business judgments made by employers.”

Aaron Rooney was hired in March 2010 as an account representative in Rock-Tenn’s Bentonville, Arkansas office. Rock-Tenn was in the business of making packaging and displays for retail merchants and Rooney was responsible for developing and selling in-store displays. One of his primary responsibilities was Rock-Tenn’s account with Alcon.

Rooney reported to Dean Metter until September 2013, when Nancy Collom was hired and became Rooney’s direct supervisor. Rooney’s November 2013 performance evaluation was still completed by Metter however, who gave Rooney an overall rating of 3 out of 5 but he also criticized Rooney’s “collaborative team work skills” and noted that he did “not communicate effectively in the office.” The review also noted conflicts with Collom.

At least as far back as June 2014, there were ongoing problems with the Alcon account, including missed deliveries; delivering wrong or damaged products; and pricing mistakes. The problems with the Alcon account persisted throughout the fall of 2014 and Alcon’s representatives were consistently communicating with Rooney and his bosses complaining about both the problems and the lack of response from Rock-Tenn to persistent inquiries. Metter attempted to work with Rooney to fix the problems, but they continued into the new year and Rooney was fired on February 5.

Rooney claimed he was told he was fired because of “difficulties with interacting with coworkers and failure to support Alcon.” But he claimed that the real reason he was fired was because he was discriminated against by Metter and Collom for not being Jewish, and by Collom for being a man. Among his claims, Rooney asserted that Metter, who is Jewish, made remarks about networking with the “Jewish network” of potential customers. Rooney’s gender discrimination argument was premised on several remarks he attributed to Collom, including that after she was hired, Collom said that she could’t “wait until there’s more ladies in the office.” According to Rooney, he was replaced on two of his accounts by women before he was fired. After exhausting his administrative remedies, Rooney sued, alleging, among other things, violations of Title VII of the Civil Rights Act of 1964 but the district court granted Rock-Tenn’s motion for summary judgment, finding that although Rooney had established a prima facie case of discrimination based on religion and sex, Rock-Tenn articulated legitimate, nondiscriminatory reasons for firing him, and Rooney was unable to show that the reasons stated by Rock-Tenn were pretexts for discrimination. Rooney appealed that ruling.

On appeal, the court first noted that Rooney did not claim to have direct evidence of discrimination, so it then laid out the familiar McDonnell-Douglas burden-shifting framework, which requires the employee to establish a prima facie case for discrimination, shifting the burden to the employer to articulate legitimate, non-discriminatory reasons for the firing. If that occurs, the burden shifts back to the employee to establish that those reasons are a pretest. Rooney contended 1) that the trial court erred by expanding the non-discriminatory grounds given by Rock-Tenn beyond those offered at the time he was fired; and 2) that the trial court erred in finding his evidence insufficient to show that the reasons were pretextual.

In affirming dismissal of his first claim, the appeals court noted that Title VII does not require that an employee be given a basis for dismissal. An employer is also not bound to whatever reasons it might have provided and may elaborate on its explanation later. The court held that there was no contradiction between the explanation given to Rooney when he was fired and the non-discriminatory reasons for termination stated during the litigation because they consistently evidenced that Rooney interacted poorly with coworkers and that he failed to support the Alcon account.

Regarding his claim that he presented sufficient evidence to show that the reasons were pretextual, the court noted that pretext can be shown in two ways: by persuading the court that retaliatory animus more likely motivated his employer or that the employer’s explanation is unworthy of credence because it has no basis in fact and either route amounts to showing that a prohibited reason, rather than the employer’s stated reason, actually motivated the termination.

Rooney claimed that Rock-Tenn’s explanation was not credible because in June 2014 Alcon had stated in a customer satisfaction survey that it was generally satisfied with the account team’s performance and because shortly before he was fired, Metter said they had recently being doing better on the account. The appeals court noted that Rooney simply ignored all the problems on the account between June 2014 and January 2015.

The court also gave short shrift to Rooney’s claim that it was “unworthy of credence” that he was fired for poor interaction with coworkers because the court determined that Rooney focused only on Rock-Tenn’s identification of troubles with Collom at the time Rooney was fired but ignored the instances in the record in which he was criticized for his failure to communicate with colleagues and poor teamwork. The court noted “Rock-Tenn was not required to recite an office roll call to rely on those shortcomings as a basis for Rooney’s termination.” It further stated: “[t]he evidence must do more than raise doubts about the wisdom and fairness of the employer’s opinions and actions–it must create a real issue as to the genuineness of the employer’s perceptions and beliefs.” In other words, the court cannot act as a “super personnel department.” It held that Rooney’s claims that Collom was aggressive towards him, that she denied him permission to conduct a project review with a client during an open house, and that she should have consulted his Outlook calendar instead of asking him to keep her advised of his schedule–fell well short of creating such an issue. It similarly held that he had presented no evidence that “retaliatory animus more likely motivated his employer” than its stated reasons for firing him. His only “evidence” were claims that Jewish and female employees were treated more favorably than he was, and that his replacements were either Jewish or female. But the court discounted those claims because they appeared to be more conclusory statements than evidence.