September 2014 FBA Labor and Employment Law Third Circuit Update
October 29, 2014
Stephen E. Trimboli, Esq.
Trimboli & Prusinowski, L.L.C.
An employee terminated following a disciplinary hearing over his misuse of employer property failed to present sufficient evidence to show that the employer’s decision maker was motivated by racial animus or retaliatory motive.
Joseph v. New Jersey Transit Rail Operations, Inc. — F.Appx. —-, 2014 WL 4723747, C.A.3 (N.J.), September 24, 2014, available at www2.ca3.uscourts.gov/opinarch/134430np.pdf
Plaintiff, an African-American male, was terminated after a two-day disciplinary hearing relating to Plaintiff’s misuse of a machine called “the 801,” used to construct and maintain railroads. New Jersey Transit’s Chief Track Engineer decided to terminate Plaintiff after reviewing the hearing transcript and conferring with two of the individual Defendants. New Jersey Transit then appointed a Hispanic male to replace Plaintiff. Plaintiff responded by filing suit against New Jersey Transit and three supervisors, alleging race discrimination and unlawful retaliation under 42 U.S.C. Section 1981 and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. (“NJLAD”). The Third Circuit affirmed the District Court’s granting of summary judgment to Defendants.
Plaintiff argued that the District Court failed to consider the “subordinate bias” theory of discrimination, also known as the “cat’s paw” theory. He argued that one of the Defendants, Plaintiff’s immediate supervisor, possessed racially motivated bias that allegedly “tainted” the Chief Track Engineer’s decision to terminate him. This argument was rejected due to the lack of any evidence that Plaintiff’s immediate supervisor actually was motivated by racial bias.
The only even arguable evidence of possible racial bias was a comment from a second individual Defendant, a supervisor not involved in the 801 misuse incident. Plaintiff quoted that supervisor as stating, “I do not know what’s wrong with you people.” However, the phrase, “you people,” is too ambiguous when used in isolation to constitute direct evidence of discrimination. “Although we do not doubt that racial animus will sometimes lurk beneath the surface of this phrase, something more than speculation is needed to connect those dots.” Further, even if the phrase did constitute direct evidence of bias on that supervisor’s part, there was no evidence that the actual decision maker – the Chief Track Engineer – was motivated by Plaintiff’s race.
Plaintiff’s retaliation claim was also rejected. To sustain a retaliation claim under either 42 U.S.C. Section 1981 or the NJLAD, a claimant must show (1) that he or she engaged in protected activity; (2) that he or she was thereafter subjected to an adverse employment decision; and (3) that there is a causal link between the protected activity and the adverse employment decision. The Third Circuit focuses “on two main factors in finding the causal link necessary for retaliation: timing and evidence of ongoing antagonism.” Abramson v. William Paterson College of N.J., 260 F.3d 265, 288 (3d Cir. 2001). Plaintiff asserted that he once posed the question to his immediate supervisor, “Is it because I’m black?” However, Plaintiff admitted that his immediate supervisor never answered the question, and there was no evidence that the immediate supervisor or anyone else ever acted on the question. The Chief Track Engineer did not know that Plaintiff had ever placed that question to the immediate supervisor. And because the decision to terminate Plaintiff occurred several months after Plaintiff posed the question, timing alone could not establish a causal link. Nor was there evidence of ongoing antagonism. As such, Plaintiff’s retaliation claims were properly dismissed.
A temporary employee terminated for inadequate job performance failed to present sufficient evidence to show that the decision to terminate him was motivated by discriminatory animus or retaliatory motive.
Farzan v. The Vanguard Group, et al., — F.Appx. —-, 2014 WL 4723768, C.A.3 (N.J.), September 24, 2014, available at www2.ca3.uscourts.gov/opinarch/141340np.pdf
Plaintiff in this matter was a Muslim of Arab descent who had been born in Iran. He was hired as a temporary employee by Defendant, LiquidHub, an information technology company, to work as a senior business systems analyst on a project run by the Vanguard Group, an investment management company. Within approximately three months, Vanguard notified LiquidHub that it was dissatisfied with Plaintiff’s work. After investing several weeks’ effort to improve Plaintiff’s performance, Vanguard decided to remove Plaintiff from the project. Because there were no other opportunities available for Plaintiff at LiquidHub at that time, his employment with LiquidHub was thereupon terminated. His position on the Vanguard project was assumed by a Vanguard employee who happened to be a 27-year-old white female.
Plaintiff responded by filing a lawsuit against LiquidHub and Vanguard alleging race, religion, gender, national origin and age discrimination, as well as retaliation, under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act. The District Court entered summary judgment for Defendants, and the Third Circuit affirmed.
The District Court properly analyzed all of Plaintiff’s discrimination and retaliation claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, the claimant bears the initial burden of proving a prima facie case of discriminatory termination. Once this is done, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the termination. The burden then returns to the claimant to prove, by a preponderance of evidence, that the legitimate reason offered by the defendant was a pretext for discrimination.
In this case, Vanguard’s dissatisfaction with the quality of Plaintiff’s work was a legitimate, nondiscriminatory justification for his termination. LiquidHub’s usual practice is to fire an employee when a client removes the employee from a project.
To establish pretext for purposes of avoiding summary judgment, Plaintiff was required either to (1) offer evidence that casts such doubt on Defendants’ proffered legitimate explanation that a factfinder could reasonably conclude that the explanation was a fabrication, or (2) present evidence sufficient to support an inference that discrimination was more likely than not a motivating or determinant cause of the adverse employment action. It is not sufficient merely to show that the employer’s decision was wrong or mistaken.
Plaintiff attempted to prove pretext by pointing to a single email from his Vanguard supervisor complimenting his “good progress,” and by asserting that he had never been given a formal evaluation. But pretext is not established simply because an employee had received some favorable comments in some areas or had received some good evaluations in the past. And the lack of a formal evaluation did not establish pretext, especially in light of record evidence that Defendants placed Plaintiff on informal notice of his need to improve his performance and took steps to help him improve.
Plaintiff also failed to show that his termination was motivated by invidious discriminatory reasons. Neither the fact that he was the only Iranian or Muslim assigned to the Vanguard project, nor the fact that he was replaced by a 27-year-old woman, was sufficient to prove discriminatory motive. His claim that he was not provided adequate training or equipment to handle an allegedly heavy workload failed to establish discriminatory motive in the absence of evidence that he was treated differently than similarly-situated employees who were not in his protected classes. And various comments allegedly made to him by various Vanguard employees were immaterial because they not directed to him, were not uttered by decisionmakers, and were not indicative of discriminatory animus.
Finally, Plaintiff’s claim of retaliation was rejected due to Plaintiff’s inability to produce evidence that either LiquidHub or Vanguard was aware that Plaintiff had engaged in protected activity. Plaintiff alleged that he threatened to file a complaint if he was fired. But this alone was not sufficient to establish that either LiquidHub or Vanguard was aware that Plaintiff was alleging that he was experiencing discrimination.