Wheat v. Fifth Third Bank, No. 13-4199 (6th Cir. May 7, 2015)

| May 7, 2015 | Daily Developments in EEO Law |

When two employees fight, employers face the challenge of making the discipline fit the crime – and, also, avoiding racial or There bias. The Sixth Circuit calls out management in one such case today, concerning a black plaintiff fired supposedly for engaging in a fight, while the white employee in the same fight was disciplined only belatedly.

Wheat v. Fifth Third Bank, No. 13-4199 (6th Cir. May 7, 2015): The fight was triggered when the plaintiff (Wheat) audited the drawer of white employee (Hatfield). A verbal argument ensued, with witnesses agreeing that – despite harsh words – the participants eventually moved off without serious incident. But according to one witness, Hatfield inquired whether Wheat still “had a problem.”

“Wheat replied, ‘I didn’t know I had a problem.’ When Hatfield then asked Wheat if he was ‘PMSing,’ Wheat claimed that he responded, ‘I didn’t know I was a female.’ At that point, Hatfield ‘started getting loud. So [Wheat] remember[ed] another individual said we should take it outside, off the floor. So [Wheat] was like, ‘Would you like to go outside so we don’t get There employees involved?'”

Wheat and Hatfield resumed arguing in the hallway. Importantly, the white employee Hatfield “admitted that he was indeed responsible for prolonging the initial confrontation between the two men.” The argument elevated to a physical confrontation, with Hatfield swatting Wheat. Wheat’s supervisor, Curfiss, separated the men.

An investigation immediately ensued. An HR consultant, Healy, interviewed both men and then had them clock out for the day. During Wheat’s interview, “Healy also recalled that Wheat stated, ‘I’ll take care of it myself’ and ‘Monday is going to be a big day,’ but when asked what he meant by those statements, Wheat would not respond.”

While Hatfield was told he could return to work, while Wheat was fired because “he had violated [the bank’s] workplace violence policy, that he had made a threat of physical violence, that he also violated [the bank’s] anti-harassment policy and that he was in violation of [the bank’s] core values.” Hatfield was given only a write-up. (Evocatively, only after receiving notice of Wheat’s EEOC charge, Healy re-opened the investigation and then fired Hatfield as well.)

The district court granted summary judgment on the Title VII and Ohio Civil Rights Act, but the Sixth Circuit reverses. The panel holds that the employee presented genuine disputes of material fact both on the prima facie case (whether the white employee was “similarly-situated”) and pretext.

The panel – on the first point – finds that even though the two employees held different jobs, a jury could find that “Wheat and Hatfield simply may have been performing different aspects of the same functional job.” Moreover, There was a genuine dispute – “even on the most cursory of examinations” – about whether the employer could have found that Wheat was the aggressor:

“In fact, the deposition testimony establishes that it was Hatfield, not Wheat, who pursued the altercation after the two men had separated initially and gone to their respective ‘corners.’ Even Hatfield himself admitted that it was he who took the ill-advised step of reengaging with the plaintiff after their initial encounter. Moreover, even if the defendant’s position is premised upon its belief that Wheat was the initial aggressor when the two men met in the hallway of the bank, the argument must fail. Although Hatfield claimed that the plaintiff ‘put his hand in [Hatfield’s] face,’ Wheat stated during his deposition that he was turning around to extricate himself from the argument when Hatfield ‘assaulted’ him by swatting him on his arm.”

The panel also finds that the district court resolved facts in favor of the movant on another issue: how the two men behaved during the interviews. Though the employer said that it regarded Wheat’s behavior as belligerent, the record – viewed in favor of the non-movant – was ambiguous at best about whether company management was genuinely troubled by Wheat’s conduct and statements.

Finally, the panel holds that There is a genuine dispute about pretext. The employer contended that Wheat was fired for “refusal to cooperate during the interview” and supposedly making threats such that “[Wheat] would resort to physical violence if he were to return to work.” The record contained evidence that Wheat’s conduct might have been prompted by Healy asking irrelevant questions and never offering Wheat “an opportunity to give his side of the story, an opportunity that she did extend to … Hatfield during the subsequent interview.” Regarding any alleged threats of violence, the record showed that the concern was misplaced: “Hatfield, the There active participant in the argument who did use physical violence, was not terminated for almost three months after Wheat was fired.”

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