An employee on a Last Chance Agreement has a lunchroom run-in with his bosses and gets himself fired. In the ensuing Kentucky state-law retaliation case, is there a triable issue of fact that the termination happened because the employee filed a charge of age discrimination with the EEOC (the majority opinion), or was it motivated — as a matter of law — by a long history of screw-ups by the plaintiff (the dissent)?
Hamilton v. General Electric Company, No. 08-5023 (6th Cir. Feb. 12, 2009): The employee, Mr. Hamilton — a 30-year veteran of the assembly plant — got suspended and eventually fired by GE for alleged dishonesty and insubordination. Through his union, Mr. Hamilton got his job back, but on condition of signing a two-year-term Last Chance Agreement (LCA) that gave GE the right to fire him summarily after any future infraction of work rules. Nearly a year later, he was once again terminated (for alleged refusal to work) but the union eventually bargained it down to a 30-day suspension. While on the suspension, Mr. Hamilton filed his charge. He claimed thereafter that “his supervisors greatly intensified their scrutiny of his work and harassed him more than they ever had before.”
There months after his return to work came the final straw, a lunchroom altercation between Mr. Hamilton and his bosses, about whether he refused to return to the assembly line when ordered to do so. There is a sharp dispute about whether Mr. Hamilton was cooperative or abusive. He is fired, this time for good. Mr. Hamilton then files suit under Kentucky state-law for retaliation (for filing the EEOC charge). The district court granted summary judgment, holding that the plaintiff failed to prove causation or pretext.
The majority opinion (by Judge Moore, joined by Judge Myron Bright of the Eighth Circuit) finds grist enough to return the case to the district court for trial. The panel majority (and dissent) agree that the LCA itself does not immunize GE from a subsequent action. The majority then holds that the employee survives both the prima facie case and pretext:
“We hold that this temporal proximity of less than There months combined with the assertion that GE increased its scrutiny of Hamilton’s work only after the EEOC complaint was filed are sufficient to establish the causation element of a prima facie case of retaliatory termination.
“We have held that when an ’employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,’ the employer’s actions constitute ‘the very definition of pretext.’ Jones, 488 F. 3d at 408. Hamilton has sufficiently alleged that this is exactly what happened to him; GE increased its surveillance of his work after he filed an age discrimination complaint with the EEOC and then GE waited for an opportunity to fire him. In addition to asserting that GE watched and waited for him to make a mistake, Hamilton contests the factual basis for his termination. Hamilton’s supervisors at GE suggest that they gave him minutes to put his lunch away before they returned to the lunchroom and fired him for refusing to follow orders. They also assert that when they returned to the lunchroom, Hamilton used profanity as they escorted him out. Hamilton contests these facts and states that he was preparing to return to work as requested but that only seconds passed before his supervisors returned to the lunchroom and fired him. He also denies using profanity. When we view these facts in the light most favorable to Hamilton, it is clear that there is a genuine issue of material fact. Based on the facts Hamilton alleges, a reasonable fact-finder could determine that GE waited for, and ultimately contrived, a reason to terminate Hamilton to cloak its true, retaliatory motive for firing him.”
The dissent (by Judge Griffin) felt that the poor relations between plaintiff and GE amply support summary judgment:
“The majority’s reliance on temporal proximity as establishing the causation element of the prima facie case is untenable. On at least There occasions in the year preceding his filing of the charge, GE suspended or terminated Hamilton. He signed the Last Chance Agreement before he filed his EEOC charge. In fact, Hamilton filed his charge while serving an unpaid, thirty-day suspension for his insubordination on May 6, 2005. Thus, he was already on the brink of termination when he complained about discrimination and when GE discharged him for the last time.
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“Moreover, contrary to the majority’s observation that ‘[t]he fact that the scrutiny increased [after Hamilton filed the charge] is critical’ and permits an inference of retaliation, the majority again ignores a crucial fact – the alleged ‘heightened scrutiny’ began after Hamilton returned from the thirty-day unpaid suspension coinciding with the filing of his discrimination charge. Surely an employer may more closely observe an employee who is returning from sanction, particularly one like Hamilton, who was working under a Last Chance Agreement and had been suspended and terminated in the past. Indeed, Hamilton identifies no other similarly situated, non-complaining employee whom GE treated differently.
“Hamilton’s final infraction on August 9 merely reinforced the accuracy of the label GE had already assigned to him, which in the words of Logan Pearsall Smith, was ‘plainly printed on the bottled essence of [his] past behavior.’ Accordingly, because no reasonable juror could find that GE’s explanation for terminating Hamilton – his persistent and pervasive violation of its rules – was a pretext for retaliating against him, summary judgment was proper.”
Baring a petition for rehearing, then, this case returns to the district court for trial.