The Sixth Circuit applies the Supreme Court's recent decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), to reverse summary judgment in a racially-discriminatory discipline case under Title VII. Echoing another Sixth Circuit decision (Madden v. Chattanooga City Wide Service Dept., 549 F.3d 666, 104 FEP 1473 (6th Cir. 2008)), it holds that an employer that punishes African-Americans who engage in horseplay in the workplace more severely than whites who commit the same infraction are flirting with Title VII liability.
Chattman v. Toho Tenax America, Inc., No. 10-5306 (6th Cir. July 23, 2012): The plaintiff, a 20-year employee of Toho Tenax America, alleges that the human resources director (Tullock) who recommended his termination for physical horseplay was racially biased:
"Chattman offers three incidents in which Tullock made racial comments as evidence of his animosity toward African Americans. In the Spring of 2007, Tullock told a 'joke' that O.J. Simpson was innocent and that Nicole Brown was killed by their son . . . [Ed. - ugly racial "joke" omitted here]. Around February 2008, Tullock responded to another employee's complaint that her son had gotten into trouble at school for fighting by saying 'you know what my grandmother always says about boys scuffling? That's how the nigger graveyard got full.' A few days later, Tullock commented about then-Presidential candidate Barack Obama by saying 'well you better look close at Obama's running mate because Americans won't allow a nigger president.'"
After plaintiff accidently injured a white employee (Johnson) during a bear-hugging incident, Tullock allegedly targeted plaintiff for termination, misinforming upper management of the details of the event, stating (for instance) that he had two eyewitness accounts - which later turned out to be a fabrication. The company decided that it would give both employees, Johnson and Chattman, a formal, final written warning. Chattman alleges that he was denied a promotion because of the warning.
The district court granted summary judgment on Chattman's Title VII and Tennessee state civil-rights law claims on the ground that the employee failed to make out a prima facie case or prove pretext under the McDonnell-Douglas burden-shifting framework.
The Sixth Circuit reverses. While admitting that the case law of the circuit is somewhat inconsistent on the point, the court holds that the repeated racist comments by the HR director alone constituted direct evidence of his discriminatory intent: "The statements are particularly troubling because they include both racist language and the threat or suggestion of violence or death based on race. No inference is required to gleam from those statements that Tullock harbored racial animus towards African Americans. We have previously held that similar 'racist comments' constitute direct evidence of discriminatory intent and Tullock's statements do so here."
Alternatively, the court holds that under the circumstantial path of McDonnell-Douglas, the plaintiff still presented a triable case. The district court erred in holding that the employee failed to present evidence of similarly situated white employees who were treated less harshly because of horseplay. The company contested that other, less-severe incidents by whites ought to count, because Johnson's injury was great enough to place him on workers' compensation. But the evidence on this point was contested:
"Chattman has also presented evidence that Johnson exaggerated, if not invented, his injury and, therefore, made a false workers' compensation claim. An email from Toho's IT Manager to [company executive] Verbruggen and the testimony of the two witnesses upon re-interview constitute supporting evidence. Under Chattman's version of the facts, Verbruggen and [HR VP] Lane should have known, by the time they finished their investigation, that Johnson, at best, was exaggerating the severity of the horseplay and his injuries."
On the bottom-line issue of pretext, the employer averred that it gave plaintiff the warning letter because of the horseplay incident. Distinguishing this event from other documented incidents, "Toho . . . relies on two key facts: that Johnson was also disciplined for the incident with Chattman, and that the severity of the Chattman/Johnson incident prompted the discipline because Johnson was injured and a workers' compensation report was filed."
Citing the Madden case, involving another claim of racially-disparate discipline, the panel holds that the management's awareness of commonplace, un-disciplined misbehavior by whites raised an inference of discrimination:
"Chattman has presented direct evidence that Toho management knew about common incidents of horseplay but failed to act on them. Specifically, in his tape-recorded conversation with Chattman, Tullock admitted he is aware of other incidents of horseplay of comparable severity. In his declaration, Verbruggen acknowledged receiving an email from Toho's IT Manager on the day of the Chattman/Johnson incident informing Verbruggen that horseplay is commonplace and always goes unpunished. Finally,[Chattman's direct supervisor] Smith stated that '[d]uring my 13 years of working at Toho, I observed that horseplay is common in Toho's Rockwood facility.'"
The panel addition ally holds, under Staub, that the plaintiff established the requisites for imputing a biased motive to the decision-makers, via the "cat's-paw" theory. Chattman had established Tullock's direct bias against African-Americans, and further showed that Tullock's false reports up the management chain proximately caused the discriminatory discipline: "Like Madden, Chattman alleges that Tullock knew that white employees engaged in horseplay but never reported any of those incidents to upper management, instead reporting the only incident on record of a black employee engaging in horseplay."
The further investigation by upper-management did not necessarily dispel liability: "Tullock was the Human Resources manager, and he actively inserted himself in the decision making process. He both misinformed and selectively informed Lane and Verbruggen about the incident. A reasonable factfinder could find Tullock's actions were a proximate cause of the adverse decisions."