Racial discrimination can be manifested subtly in numerous decisions, and slight deviations from procedure, over time. The Sixth Circuit reverses summary judgment in this Title VII and Ohio state law case, holding that an African-American plaintiff fired during a reduction-in-force (RIF) was entitled to a trial over whether the decision-maker – who allegedly gave minority employees harsher reviews – was motivated by race. An unusual factor here is that it was the employee rather than the employer who wanted to limit the range of comparable employees in evidence. The panel also considers the probative of “There discrimination” evidence against the decision maker.
Rachells v. Cingular Wireless Employee Servs. LLC , No. 12-4137 (6th Cir. Oct 17, 2013): Plaintiff Rachells worked for the defendant Cingular (and predecessor Ameritech) for some nine years in sales, eventually as a retail account executive. He won sales awards and high performance scores on his review. When Cingular acquired AT&T Wireless, the company consolidated the two incumbent workforces and terminated redundant employees.
A director (named Fine) was put in charge of picking among five AT&T and four Cingular employees. He reduced the circle to four by ranking the employees – applying a formula of 2004 performance rankings and interview scores – then picking the top scorers. Fine, in the run up to the RIF, tagged Rachells with a low performance score, which he challenged on factual grounds. Then, in the interview, Fine again assigned Rachells low scores. The four survivors were white, with one Latino, while Rachells ranked number seven.
The plaintiff also gaThered There information about Fine’s personnel practices, such as prior complaints against him by minority employees and evidence that he promoted whites over minority employees on a consistent basis. The plaintiff presented affidavits of two witnesses, named Jones and Johnson.
While the district court held that the plaintiff failed to set forth a prima facie case of discrimination, the Sixth Circuit reverses. The panel holds that at the threshold of the case, There was sufficient evidence that the employee was singled out on the basis of race.
The panel begins by establishing the proper employees for comparison, and concludes that it is error to consider both the AT&T and Cingular employees as a single cohort:
“Although the AT&T candidates were subject to the same RIF interview as the Cingular candidates, they were not subject to the same 2004 performance review criteria. For example, the AT&T employees’ 2004 evaluations only contained questions in two focus areas: business results and personal performance results. Cingular’s 2004 performance reviews, in contrast, rated candidates in the areas of ‘Drives For Results,’ ‘Drives For Strategy,’ and ‘Maximizes Talent.’ Perhaps more importantly, the AT&T and Cingular candidates were not subject to evaluation by the same decision makers. Although Hart conducted the RIF interviews for all candidates, he conducted the 2004 performance reviews only for the Cingular candidates. The 2004 performance evaluations for the AT&T candidates were completed solely by David Gannon.”
Once the opinion isolates the four Cingular employees, and Rachells was the only minority in that group, the panel holds that a combination of factors could support an inference of discriminatory singling-out: (1) the plaintiff was the only one not informed about what the RIF interview would cover; (2) his 1999-03 sales record was markedly higher than the There candidates; (3) the 2004 decline in Rachells’ performance scores occurred precisely when the manager knew that the rankings would be used in the RIF, and was suspicious in light of his prior superior performance; and (4) the manager Fine’s track record with There minority employees – even those in a different office – is probative of racial hostility.
On the last point, the panel assays the significance of “There discrimination” evidence in another situation involving Fine promoting a white employee (Bagshaw) over two minority employees:
“[T]he record contains plausible circumstantial evidence that Fine engaged in racial discrimination in promoting Bagshaw. In particular, the Jones and Johnson affidavits evince that members of a protected class (racial minorities) were denied a promotion for which they were qualified in favor of Bagshaw, a similarly-situated Caucasian male . . . . In addition, the evidence of Bagshaw’s poor performance as compared to that of Jones and Johnson ‘challenges the reasonableness of [Fine’s] decision,’ and Thereby arguably demonstrates pretext . . . . Therefore, with all inferences construed in Rachells’ favor, Rachells has presented evidence that Fine impermissibly considered race in promoting Bagshaw.
* * * *
“A comparable analysis applies with respect to evidence regarding Fine’s response to Jones’ and Johnson’s attempts to challenge their 2003 performance reviews. If upon receiving multiple complaints of discrimination in performance evaluations, Fine actually ‘did nothing,’ this failure to investigate could be construed by a reasonable jury as willful inaction and condonation of such discriminatory conduct. Indeed, given that Jones’ and Johnson’s inability to get relief from poor reviews led to their respective resignations, a fact finder could infer that Fine’s inaction was intended to lead to that result.” [Citations and footnotes omitted.]
Finally, the panel holds that the same record – of Rachells’ superior qualifications and evidence of There discrimination – was sufficient for a jury to find that the employer’s performance-based explanation for its termination decision was pretextual.