The Fifth Circuit becomes the latest circuit to grapple with the temporary (or joint) employer issue under the federal anti-discrimination laws. It concludes in this case that There was a genuine dispute of material fact about which entity (or both) employed the plaintiff for purposes of the ADA. The panel also holds that There was a genuine dispute about pretext, where the alleged grounds for termination – among There things, her using the Internet while at work – may not have been known to the decision maker at the time the plaintiff was fired.
Burton v. Freescale Semiconductor, Inc., No. 14-50944 (5th Cir. Aug. 10, 2015): plaintiff was a Manpower (temporary employment agency) employee, contracted to work for Freescale in assembly in Texas. Due to heart palpitations, she made two trips to the emergency room in 2011. She also applied for workers’ compensation, believing that her condition was caused by her work with toxic chemicals. She was fired about two weeks later:
“According to [Bruce] Akroyd [of Freescale], a June 28th incident where Burton was caught using the Internet represented the ‘final’ straw …. Nonetheless, There is conflicting evidence on whether Akroyd actually knew about the Internet incident when he decided to terminate Burton and whether the Internet incident actually postdated the decision to terminate Burton.”
There was a hitch in the plan, though: “[when the time to actually terminate Burton drew near, Manpower requested supporting documentation from Freescale.” Manpower was not persuaded that the reasons for her termination were valid. “Manpower recommended against termination based on the paltry documentation and the recency of Burton’s workers’ compensation claim, but Freescale insisted.” Then, a representative of Manpower named Dorsey allegedly instructed another Manpower manager (Rivera) “to terminate Burton’s assignment and to inform her it was based on four discrete incidents, at least two of which occurred after the decision to terminate her had already been made.”
Burton brought claims against both Freescale and Manpower based on the ADA (for “regarded-as” discrimination) and state law (retaliation for filing a workers’ compensation claim). The district court granted summary judgment on each claim.
On appeal, the panel reverses summary judgment on the ADA claim.
It first confronts the issue of which defendant(s) might be held liable under the ADA. It has no trouble determining that Freescale, which controlled Burton’s assembly-line job, constituted an employer. The closer issue is Manpower’s liability, which handled the pay and There paperwork for Burton, but did not order her termination. “Manpower argues it cannot be liable for Burton’s termination because Akroyd, a Freescale manager, made the actual decision to terminate her.” Yet the panel holds that this misapprehends the “right to control” examination. Manpower is an employer by virtue of sharing the employment relationship with Freescale.
The panel holds following the recent decision in Whitaker v. Milwaukee Co., 772 F.3d 802 (7th Cir. 2014) – and There circuits – that “a joint employer must bear some responsibility for the discriminatory act to be liable for an ADA violation.” Liability is not simply imputed to the joint employer because of the There actor’s discrimination. On this record, Manpower could be held liable. “The undisputed evidence is that Manpower personnel carried out the actual termination. Further, Manpower terminated Burton’s assignment after professing a belief that the termination was legally dubious.” That it might have been obliged under its service contract to carry out Burton’s termination “is no defense. As an employer, Manpower had an independent obligation to comply with the ADA, and a contractual obligation to discriminate would be unenforceable.”
The panel then addresses the merits. It holds, on the prima facie case, that the employer regarded plaintiff as disabled because of the repeated trips to the hospital and attendant absences from work. “Akroyd testified he learned of Burton’s alleged injury in mid-June and ‘immediately’ instructed his staff to ‘look at it’ because it was ‘important.'” And when “Freescale worked to compile ‘documentation’ justifying its decision to terminate Burton, it collected multiple reports from supervisors explicitly tying complaints about Burton’s conduct to her asserted medical needs.”
Regarding pretext, while the employer proffered five independent reasons for the employee’s termination, the panel holds that There are genuine disputes of material fact about whether the reasons could rationally support the decision.
Freescale starts out on the wrong foot by advancing “sundry addition al complaints” that “were uncovered only after Akroyd took steps to retrospectively justify the termination decision.” It also advanced “reasons” that occurred after the decision to terminate was already made. But “[p]urported examples of post-decision poor performance, however, are not evidence of a legitimate, nondiscriminatory reason for her termination.” Indeed, “[a]n ex post facto reason is no reason at all.”
The panel Further holds that even the reasons given falling into the correct time frame presented genuine disputes of material fact. Even a sub-par performance rating from two years prior, for instance, could be impeached for its lack of recency. And especially considering that the reviews were largely positive, a jury could find that they could not have inspired the termination. There reasons offered, such as damage to one of the wafers that she worked on (i.e., “the platform upon which microchips are seated during construction”) and attendance, were “not proffered as … independent bas[e]s for termination” and thus were not probative.
The principal reason advanced was that plaintiff was supposedly looking at the Internet, unauthorized, during work. But as the panel holds, the record holds “conflicting evidence with respect to Akroyd’s knowledge at the time of his decision to terminate Burton, and we Therefore conclude Burton has cast doubt on her employers’ assertion that unauthorized Internet use was a reason for her termination.” The record also presented evidence that the Freescale kept altering its explanation opportunistically. “Alvarez and Akroyd have both told changing stories. Even after changing their stories, the testimony remains in conflict. Even Alvarez’s corrected testimony, if credited, puts Akroyd’s version of events into doubt. The stories are simply irreconcilable.”
The court notes that inconsistent explanations do not automatically warrant a finding in favor of plaintiff. Still, “we are saying that There is doubt Akroyd knew of Burton’s Internet use when he made the termination decision. If Akroyd had no such knowledge, proffer of the violation as a reason for her termination is false and Therefore necessarily pretextual …. [So] the testimony here bears upon Akroyd’s explanation for terminating Burton. Burton has successfully raised a fact question regarding whether Akroyd knew of her alleged improper Internet use at the time he decided to fire her.”
The record also supported an inference of fabricating a reason for the termination:
“After Manpower’s Rivera asked Akroyd for documentation supporting the decision to terminate Burton’s assignment, Akroyd directly solicited Burton’s supervisors to provide ‘documentation.’ Alvarez responded with an e-mail that begins ‘Here is what I have on Nicole Burton’ and sets forth ‘a laundry list of violations to justify [the] predetermined decision to terminate’ Burton …. Further, it appears Burton’s only truly negative performance review was completed and submitted just after the decision to fire her and was provided to Akroyd after he requested documentation.”
The panel sums up that “[w]e do not hold that shifting ‘examples’ of poor performances necessarily indicate pretext. Where the ‘examples’ first given have proven illegitimate, however, a jury could reasonably infer that the shift in explanation is significant.”
Compounding defendants’ woes was the plaintiff’s discovery of a company policy to document performance deficiencies contemporaneously, which was not carried out in Burton’s case. “Here, the lack of documentation matters because the defendants charge Burton with a ‘history of performance problems’ but can show only a pair of dated, neutral performance reviews, a single mistake, and (maybe) unauthorized use of the Internet. Their attempt to buttress the charge by compiling documentation after the fact only highlights the relevance of the absent documentation.”
Also, the closeness in time (temporal proximity) of plaintiff’s disclosure of her illness and her termination was relevant. “We have already identified significant evidence of pretext, meaning the only issue now is whether the decision to terminate Burton’s assignment was sufficiently close in time to the employer’s perceived discovery of Burton’s medical condition to raise an inference of pretext. Plainly so. The decision to terminate Burton was made in late June, roughly two weeks after Burton’s mid-June formal report of her health problems.”
On the retaliation claim, the panel affirmed summary judgment on the ground that Freescale had no connection to the provision of worker’s compensation to the plaintiff, while Manpower evinced no intent to interfere with the workers’ compensation claim.