Court Allows the Case To Be Heard by The Jury, Reverses Summary Judgment
Author: New York Employment Discrimination Attorney Alena Shautsova
On December 3, 2021, the federal appellate court for the Fourth Circuit ruled in favor of the plaintiff (Tracy Sempowich) on an employment discrimination case. It was an appeal from the grant of summary judgement in employer’s favor. That is why this case is important, because it is very difficult to win a case on appeal, usually.
A Summary of the Employment Discrimination Case
Plaintiff Sempowich worked for the Tactile System Technology (a company selling medical devices). She had worked with the company for many years serving different positions such as the regional sales manager, among other duties across the company. The primary issue that was addressed by the appellate court was whether the plaintiff met the job performance goals. Because if she did, then the defendant could not successfully argue they chose to promote a male employee over her due to her poor performance.
The defendant's side argued that the plaintiff did not meet the job performance goals, and all through the years, her insufficient job capabilities affected the growth and development of the company. Sempowich presented evidence to the court showing that the company considered her to be a top performer. For example, she presented reviews that noted that the plaintiff had exceptional strength in several company operations. Besides, the Tactile systems had given her several awards due to her distinctive working potential. Also, the company management gave her a salary raise as well as a distinction in the excellent work she did. The appellate court found out that the company had ranked the plaintiff higher compared to a male colleague who was subsequently promoted.
But despite great reviews, the company notified the plaintiff that it was going to reassign her position due to her poor work, and for her they offered a position that more like a sales job rather than management, where she would have been able to keep her base salary. At this point, the plaintiff filed a discrimination case against the company management with HR. Shortly thereafter, a company’s attorney informed plaintiff that if she does not accept new position, she would be fired. Plaintiff did not accept and was terminated, and the lawsuit followed.
The appellate court granted defendant’s motion for the summary judgment. Summary judgment is a motion, a tool used by both sides to resolve legal issues. However, it is also a tool the parties, and especially defendants use to avoid the case to be heard by the jury. Summary judgment can and should resolve only issues of law, but not facts. This case, according to the appellate court, had issues of facts that a lower court could not resolve.
On appeal, the court first address the legal standard a plaintiff has to meet in employment discrimination cases. The court noted that
To survive a motion for summary judgment on a Title VII disparate treatment claim, a plaintiff must either proceed under the mixed-motive framework or the McDonnell Douglas burden-shifting framework. See Perkins v. Int’l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Here, the district court held that Sempowich failed to present the direct evidence required to proceed under the mixed-motive framework, a contention that Sempowich has not challenged on appeal. Accordingly, the court analyzed her claims under the McDonnell Douglas burden-shifting framework. Under the burden-shifting framework, a plaintiff must first offer a prima facie case. Lettieri v. Equant, 478 F.3d 640, 646 (4th Cir. 2007). To do so, a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her employer’s legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination, including because the employer left open the position or replaced the plaintiff with someone outside the protected class. Id.; Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 n.8 (4th Cir. 2020). Once a plaintiff makes out a prima facie case, the burden shifts to the employer to put forth a nondiscriminatory explanation for its actions. Lettieri, 478 F.3d at 646. If the employer does so, the burden then shifts back to the plaintiff to show that the employer’s explanation was “actually a pretext for discrimination.” Id. (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc)).
The lower court rules that plaintiff did not put forward the prima facie case because she failed to meet company’s growth expectations. But the appellate court ruled that “To satisfy this factor, a plaintiff need not “show that [s]he was a perfect or model employee. Rather, a plaintiff must show only that [s]he was qualified for the job and that [s]he was meeting [her] employer’s legitimate expectations.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019). Defendant’s argue that it should be only up to the defendant to decide whether or not the employee’s performance was satisfactory. But the court stated that plaintiff’s perspective regarding employer’s expectations is also important:
Viewing the evidence in the light most favorable to Sempowich, there is an issue of material fact as to whether Tactile’s asserted expectations were legitimate or genuine. Sempowich presented substantial evidence that they were not. If an employer genuinely believed that one of its employees was performing poorly on metrics the employer perceives as critical (as Tactile claims here), it seems likely that it would at the very least not rate the employee’s performance highly or give her awards, a salary raise, or an equity grant. And yet there is evidence that Tactile (1) consistently rated Sempowich’s overall performance highly (and notably, higher than the employee who it reassigned to her position); (2) repeatedly gave her awards, including one for Sustained Excellence three weeks before it told her that it would reassign her position; (3) told her that it would give her a salary raise three weeks before it told her that it would reassign her position; and (4) gave her a discretionary equity grant twelve days before it told her that it would reassign her position.
Was the Employer’s Explanation a Pre-text for Employment Discrimination?
The appellate court likewise ruled that “the district court erred in analyzing pretext not only by failing to account for those disputes but also by incorrectly applying the same-actor inference.” The issue of pretext is often a center issue in an employment dissemination case. The appellate court stated that
First, the district court erred in holding that there is no genuine issue of material fact as to pretext. “[T]o show pretext, a plaintiff may show that an employer’s proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.” Haynes, 922 F.3d at 225. “Once the plaintiff offers such circumstantial evidence, the case must be decided by a trier of fact and cannot be resolved on summary judgment.” Id. Interestingly, the appellate court pointed out that “ a jury might well conclude it unlikely that an employer who reassigned an employee solely because it believed that she performed poorly would replace her with an employee whose performance it consistently rated as worse.” A good point, wouldn’t you agree? How often have you seen that an employer fires a complainant or a woman, or a person of a particular religion and replaces them with a more convenient employee with a worse performance record!
Second, the appellate court ruled that “the district court also erred in applying the same-actor inference to dispose of Sempowich’s claim. Under the same-actor inference, if the plaintiff’s “hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor.” Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (emphasis added).”
Further, the appellate court made an important point about how a plaintiff may prove retaliation.
To establish a prima facie case of retaliation under the burden-shifting framework, a plaintiff must show: “(i) ‘that [she] engaged in protected activity,’ (ii) ‘that [her employer] took adverse action against [her],’ and (iii) ‘that a causal relationship existed between the protected activity and the adverse employment activity.’” Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015) (alterations in original) (quoting Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004)). The burden then shifts to the employer to demonstrate that “its purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason.” Id. If the employer does so, the burden shifts back to the plaintiff to show that “the employer’s purported nonretaliatory reasons ‘were not its true reasons, but were a pretext for discrimination.’
As to the prima facie case, the district court assumed without deciding that Sempowich engaged in protected activity and that Tactile took an adverse action against her. But it then held that no rational jury could find that a causal relationship existed, reasoning that (1) temporal proximity alone cannot establish a causal relationship; and (2) no temporal proximity existed in Sempowich’s case. The court erred on both counts. First, the court erred by holding that temporal proximity alone cannot establish a causal relationship. We have made abundantly clear that temporal proximity suffices to show a causal relationship. We explained this in Strothers v. City of Laurel, 895 F.3d 317 (4th Cir. 2018). A plaintiff may establish a causal relationship “simply by showing that (1) the employer either understood or should have understood the employee to be engaged in protected activity and (2) the employer took adverse action against the employee soon after becoming aware of such activity.” Id. at 336 (emphasis added). Second, the district court erred by holding that there was not temporal proximity in Sempowich’s case. The court reasoned that, because Vice President Rishe told Sempowich on February 12 that Tactile would reassign her region, and Sempowich did not submit her internal discrimination complaint until February 22, Tactile’s adverse actions could not have been caused by Sempowich’s internal complaint. But there is a genuine issue of material fact as to whether Rishe made clear on February 12 that her employment with Tactile would end if she did not accept the reassignment. It was not until March 23 — about a month after Sempowich submitted her internal complaint — that Tactile stated that, if she did not accept the offer of reassignment, her “employment with Tactile [would] end effective March 30.” But the appellate court took a view opposite to the one of the lower’s court and held that adverse actions against the plaintiff did not begin “gradually” prior to the re-assignment or complaints as was argued by the defendants.
This case makes several important points: 1. That the plaintiff’s point of view has to be taken into consideration when assessing meeting of the company’s goals and performance; 2. That the temporary proximity between the protected activity and adverse employment action may by itself establish causal connection necessary for retaliation; 3. That it is sufficient for retaliation to show that the employer understood or should have understood that the employee to be engaged in protected activity. And, the main point: the same case, with the same facts and the same arguments can be decided very differently by different judges!