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Griffin v. Finkbeiner, No. 10-3659 (6th Cir. Aug. 20, 2012)

The Sixth Circuit returns a Title VII case for trial, concerning claims that the City of Toledo discriminated against an African-American manager in work assignments, pay and evaluations, and also retaliated against him because he assisted another employee in complaining to the city about race discrimination. The panel holds that the district court applied too strict a standard at the pre-trial stage of the case, demanding proof that the "real" reason for the adverse actions was race discrimination. It also holds that at trial on the retaliation claim, the district court erred by excluding evidence of "other acts" targeting co-workers for the same activities.

Griffin v. Finkbeiner, No. 10-3659 (6th Cir. Aug. 20, 2012): Plaintiff Gary Daugherty - a manager in the Environmental Services Division ("ESD") of the Department of Public Utilities ("DPU") for 14 months - complained to the city that he, as an African-American, was paid less than his white predecessor and even his white subordinate. Moreover, he contended - as laid out in his opposition to summary judgment - "that City officials evaluated his work more harshly than the work of white employees and that, despite his position as second-in-command at the ESD, he was not placed in charge when Commissioner Stephens was absent." Daugherty also assisted two African-American co-workers in making complaints, and was threatened by his superiors for doing so.

Daugherty also testified that Toledo's former Mayor Carlton Finkbeiner regularly made racial remarks:

"Daugherty alleges that Finkbeiner stated that blacks lack parenting skills, black men cannot hold jobs or take care of their families, black women just want to have babies and collect welfare, and black ministers are pimps. At a Director's meeting, Finkbeiner complained that black employees lack drive and professionalism. He once commented, 'thank God I was not raised poor and black, and referred to then-Fire Chief Michael Bell (who is black) as 'King Kong.' Finkbeiner told Youth Commission Co-Director Dwayne Morehead (who is black) to 'get out of the lazy mode' and, comparing him to white female employees, said 'is that a black stain on the glass ceiling?' At one staff meeting, Finkbeiner yelled at Morehead to sit down when he attempted to leave to go to the restroom, even though several white attendees had left without comment from Finkbeiner. When Morehead recommended that the City hire Morlon Harris, who, like Morehead, is a black man, to serve as Morehead's co-director of the Youth Commission, Finkbeiner responded that 'the good old boys on the 22nd floor [mayor's office] would not want two black employees running the department' and did not hire Harris. [FN] The only racially tinged remark that Daugherty alleges that Finkbeiner made directly related to Daugherty was telling Griffin that Daugherty was 'lazy.'"

By early 2007, Daugherty was terminated ostensibly owing to a reduction in force, but six to eight months later (he alleged) his former duties were assumed by a white employee. Daugherty brought a federal lawsuit under Title VII and Ohio state law alleging discrimination, harassment and retaliation.

The district court dismissed the discrimination action on summary judgment, holding that even though the record raised an inference of racial discrimination under the McDonnell Douglas standard, Daugherty supposedly failed to present addition al evidence that race discrimination was the "real" reason for various acts of discrimination. On the trial of the retaliation claim, the judge barred admission of evidence of other African-American employees who claimed that they has also been the victims of retaliation; the city won a jury verdict.

The Sixth Circuit reverses in relevant part. The panel first holds that the employee should have been permitted to go to trial on his discrimination claims, whether measured under the single- or mixed-motive rubric. "[A]fter finding that Daugherty had made out a prima facie case of race discrimination [FN] and that Daugherty had shown that the City's proffered reasons for the termination may have been pretextual," the district court held Dagherty erroneously to a burden that he must also "offer some evidence that the real reason for his termination was discrimination."

The panel notes that the Supreme Court held that Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000), that summary judgment may be appropriate even if the employee proves pretext, but that the district court erred in holding that this always the case absent addition al evidence of discrimination. "Evidence that the employer's proffered reason for the termination was not the actual reason thus does not mandate a finding for the employee, but is enough to survive summary judgment. The jury can decide whether racial animus was the actual reason for Daugherty's termination." [Citations omitted.]

The panel holds, alternatively, that Daugherty could prove the same claim under a so-called "mixed-motive" theory, 42 U.S.C. § 2000e-2(m). "Daugherty points to the evidence of Finkbeiner's numerous racially insensitive statements. These statements are sufficient evidence of racial animus only if they have some connection to the decision to terminate Daugherty. The fact that the statements do not specifically mention Daugherty means only that they are not direct evidence of discrimination; they could still be circumstantial evidence of discrimination." [Citation omitted.] The comments were relevant in light of the mayor's testimony that he signed off on all termination decisions. The panel notes:

"In certain circumstances, even statements by a non-decision maker can be probative evidence of discrimination, such as when the speaker holds a management position, the statements are commonplace or made in a relevant context (such as a meeting in which personnel decisions are made), or where other evidence of animus exists. Finkbeiner was clearly in a management position, made some of his comments in staff meetings attended by the Department heads, and was part of the group tasked with producing lay-off lists." [Citations omitted.]

The panel also holds that because the district court never ruled on Daugherty's addition al race harassment claim, that claim too must be remanded to the district court for evaluation.

Finally, it orders a new trial on Title VII retaliation, holding that the jury was entitled to hear from two other former employees who alleged that they aware also the victims of retaliation. The district court held that such evidence was only admissible when the plaintiff and the other employees shared a common supervisor who made the adverse decisions. "Whether the same actors are involved in each decision is a factor, but Sprint[/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008)] makes clear that it cannot be the only factor in the decision whether to admit 'other acts' evidence. Notably, the testimony in Sprint involved supervisors 'who played no role in the adverse employment decision challenged by the plaintiff.' 552 U.S. at 380. Here, the district court did not consider other ways in which the excluded evidence could be 'related . . . to the plaintiff's circumstances and theory of the case,' id. at 388, such as temporal and geographical proximity, whether the various decision makers knew of the other decisions, whether the employees were similarly situated in relevant respects, or the nature of each employee's allegations of retaliation."

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