You and the Law
Firing on Same Day as Learning of EEOC Discrimination Charge Infers Retaliation
So held the U.S. Court of Appeals 6th Circuit, which covers Michigan, Ohio, Kentucky and Tennessee. An extremely close “temporal proximity” between these two events permitted the court to find an inference that the manager fired the worker because of that worker’s protected activity, i.e. filing a charge of discrimination. As a result, even though no age discrimination was found because he was not “replaced by a similarly situated younger worker,” retaliation could be found.
The facts of this case occurred in a metalforming plant where the plaintiff, Mr. Mickey, was a 67-year-old die maker who had worked for Zeidler Tool and Die Co. for 33 years, from 1971 until his October 2004 termination. A timetable of his employment showed the following progression:
1971—Hired as die maker.
1972—Promoted to die leader.
1974—Promoted again to the position of shop supervisor where he supervised 20 to 40 employees.
1979—On behalf of the company, Mickey hired a recent high-school graduate, Mr. Rhein, as an apprentice at the wage of $4.50/hr.
1983—After Mickey trained Rhein, the apprentice became a die maker.
Late-1980s—The company’s owner, Mr. DeForge, opened a bed-and-breakfast in northern Michigan catering to deer hunters, and spent most fall weekends at his new business.
1992—DeForge created the position of general manager, moving Mickey to this position at the stamping plant and promoting Rhein to shop supervisor replacing Mickey.
1995—Mickey was earning a yearly salary of $90,000 and Rhein was earning $70,000.
1997—The owner lowered Mickey’s salary to $75,000 annually explaining that Zeidler Co.’s financial condition required cost-cutting, but the owner did not mention any dissatisfaction with Mickey’s performance or reduction in his responsibilities. On the same day, the owner gave Rhein a $20,000 raise, increasing his salary from $80,000 to $100,000.
January 2000—The owner again raised Rhein’s salary to $125,000, while Mickey’s salary remained at $75,000.
Early-2002—Citing Zeidler Co.’s financial condition, the owner further reduced older worker Mickey’s salary from $75,000 to $70,000 and he reduced Rhein’s salary from $125,000 to $100,000. At this same time, Mickey claimed that the owner began inquiring into his plans for retirement.
Late-2003—Mickey presented the owner a list of reasons explaining his decision not to retire.
Late-2003—The owner significantly altered Mickey’s terms of employment effective January 1, 2004. He reassigned Mickey from an exempt salary status (at $70,000/year) to a nonexempt at $25/hr. status ($52,000/year), rescinded all vacation and holiday pay benefits and limited Mickey to a 40-hr. workweek. The owner claimed that he told Mickey he was “part-time” but Mickey does not recall any such statement. The owner also reportedly said that he changed Mickey’s status because the company was not doing well; at the same time, the owner raised Rhein’s salary to $110,000.
October 14, 2004—The EEOC sends notice of the charge to Zeidler Co.
October 19, 2004—The owner returns to the plant, learns of the EEOC charge and allegedly lays off Mickey. When asked at his deposition whether he had seen Mickey’s EEOC charge at that time, the owner reportedly responded that “I don’t remember” before admitting later that “I did see it.”
In December 2004, Mickey filed a charge of retaliation with the EEOC and filed his complaint in the Eastern District of Michigan on January 31, 2005, within 90 days of receiving a right-to-sue letter. On June 12, 2006, the district court entered an opinion and order granting Zeidler’s motion for summary judgment on July 10, 2006. Mickey filed a notice of appeal to the Sixth Circuit.
The owner, also a defendant named in the lawsuit, offered several reasons for his decision to terminate Mickey. He stated that the condition of the business, Mickey’s performance and the lack of available work for Mickey motivated his decision. The financial documents DeForge claimed to have reviewed that weekend showed that Zeidler Co. made a profit of nearly $330,000 over the first nine months of 2004 compared with a loss of approximately $410,000 in the same period of 2003. DeForge also reportedly admitted that Zeidler Co. was running help-wanted advertisements for various positions up to and after October 2004. The advertised positions included jobs and duties that Mickey had performed earlier in his career, such as die maker or die leader, but DeForge testified that during Mickey’s tenure as a supervisor he at some point lost these various skills, although DeForge could not pinpoint when this occurred.
Focusing on these events, the Sixth Circuit Court of Appeals ruled that: Summary judgment dismissing the plaintiff’s discrimination claim was proper because Mickey’s principal estimating job duties had not been assigned to a younger replacement worker but to two senior coworkers at the plant. Thus, the fourth burden-of-proof element of replacement by a younger worker or, alternatively, more favorable retirement of similarly situated, nonprotected employees was not proven.
An employee can support his or her retaliation age claim under the ADEA with evidence of pretermination of salary reductions and inquiries about the worker’s retirement plans.
In the court’s words, on the window-of-time issue:
“Where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.
“Here, the employee is unable to couple temporal proximity with any such other evidence of retaliation because his employer immediately retaliated against him upon learning of his protected conduct. A reasonable juror could conclude that the business owner’s actions, coupled with exceptional close temporal proximity, demonstrate an underlying bias that tends to prove the later termination involved retaliatory discrimination.”
The case: Mickey v. Zeidler Tool & Die Co., No. 06-1960, January 31, 2008 (6th Circuit).
If you would like a summary of how courts across the United States view the window as too short or too distant to support a retaliation inference, or a copy of this discussed case, contact Ehlke Law offices. MF
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