March 3, 2014

SUMMARY JUDGMENT OVERTURNED IN RACE & SEX CLAIM FOR BLACK FEMALE REPLACED BY HISPANIC FEMALE

The case is Shazor v. Professional Transit Management decided by the 6th Circuit on 2/19/14 [2014 U.S. App. LEXIS 2943]. The facts of the case are that Professional Transit Management (PTM), a provider of management services to transit authorities throughout the country, hired Shazor as the chief operating officer for the Southwest Ohio Regional Transit Authority (SORTA) in Cincinnati. Once hired, Shazor refused to participate in educational programs offered by SORTA, leading two senior officials (Setzer, her direct supervisor & Scott the company president) to question her loyalty to SORTA. Setzer and Scott began an email exchange that included references to Shazor being, among other things, a “prima donna” and “one helluva bitch,” which Shazor presented as direct evidence of sex discrimination, and that other emails used “code words” for “angry black woman” or “uppity black woman.” However, the ultimate decision to terminate Shazor was made by Hock, the CEO, who took over direct supervision of Shazor after Setzer was reassigned to another position. Hock, who never participated in the emails involving the alleged derogatory remarks, terminated Shazor on grounds of misrepresenting information to the SORTA board on two occasions, and replaced her with an Hispanic female. Shazor argued that the reasons for termination were pretext for sex and race discrimination.

At the district court level [see 2013 U.S. Dist. LEXIS 16575], Judge S. Arthur Spiegel rejected the direct evidence arguments under the so-called “cat’s paw” theory. Generally, cat’s paw theory is most probative when derogatory remarks are made by a decision maker in close temporal proximity to the challenged decision. Judge Spiegel rejected the cat’s paw argument on grounds that Hock was deemed the decision maker, he took no part in any of the implicated emails, and the emails themselves occurred at least four months earlier and were not deemed to be the “proximate cause” of Shazor’s termination. Therefore, the remarks by Setzer and Scott were deemed irrelevant to the decision to terminate. More specifically, Spiegel ruled:

The facts upon which Plaintiff relies, even viewed in the light most favorable to Plaintiff, simply do not require the conclusion that Setzer and Scott were involved in the decision to terminate Plaintiff’s employment. It is possible that a reasonable jury could infer their involvement from the facts that Scott, Setzer and Hock were the three principals of the company for which Plaintiff worked; at various points Plaintiff was supervised by one or more of them; Scott was present at the meeting where she was terminated; in the four months between the “helluva bitch” comment and Plaintiff’s termination, Hock had conferences with Scott and/or Setzer; and Scott, who made the “helluva bitch” comment, sent to Hock a generic termination checklist in advance of the termination meeting. However, none of these facts alone or in combination requires the conclusion that Scott and Setzer were involved in the decision to terminate Plaintiff’s employment.

Judge Spiegel also ruled that Shazor’s “permanent replacement was a Hispanic woman, who is therefore a member of the same protected class as Plaintiff”, further weakening Shazor’s claims of sex and race discrimination under a circumstantial evidence case (i.e., McDonnell-Burdine theory).

The 6th Circuit then overturned Judge Spiegel’s ruling remanding the case for trial. The 6th Circuit ruled that replacement of a black by an Hispanic is sufficient for prima facie evidence of race discrimination under McDonnell-Burdine theory, and that her sex discrimination “cannot be untangled from her race discrimination claim” because “these characteristics do not exist in isolation.” The 6th Circuit also ruled there was sufficient evidence for a jury to decide whether (a) the derogatory emails were connected to the decision to terminate and (b) whether the stated reason for termination (misrepresentation to the SORTA board) were pretext for race and/or sex discrimination.

In my opinion, two factors make this case important. The first is that the district court treated blacks and Hispanics as being of the same Title VII class, whereas the 6th Circuit did not. The second is that the district made a literal interpretation of cat’s paw theory as having to involve the specific decision maker and proximate cause, whereas the 6th Circuit granted leeway for a jury to decide if there was any causal connection between the derogatory remarks and the challenged decision.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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