Retaliation Claim Proceeds Based on Manager’s Text Messages

Takeaway: Employers can potentially worsen their situations by reacting negatively to an employee’s discrimination complaint.

The 8th U.S. Circuit Court of Appeals upheld dismissal of an employee’s age discrimination claim but revived her retaliation claim based on a manager’s texts seeking to limit the plaintiff’s employment options after she claimed age discrimination.

The employee worked for Catalent CTS (Kansas City) LLC from 2012 to 2020, when she was between the ages of 56 and 64. Throughout her employment, the plaintiff received multiple promotions until she was promoted to director/project manager in October 2018.

The year after the plaintiff assumed her role as a director, however, three employees left her team, citing concerns with management and workload. Two of these employees specifically cited the plaintiff as a reason for their departures. In the plaintiff’s 2019 year-end review, Catalent rated her performance as “partially met expectations,” the second-lowest rating on a five-point scale.

In January 2020, Catalent’s Kansas City general manager and the plaintiff’s onsite supervisor left the company. After the general manager left Catalent, members within Catalent’s management and human resources teams discussed the plaintiff’s declining performance.

By February 2020, two more employees from the plaintiff’s team resigned, again citing her as one of the reasons for their departures. Catalent’s management and HR considered three options: 1) place the plaintiff on a performance improvement plan (PIP), 2) demote her to a lower-level position, or 3) end her employment and offer her a severance plan.

Catalent’s management and HR teams were concerned about the risk of the plaintiff running her department while on a PIP.

On Feb. 13, Catalent gave the plaintiff her midyear performance review, told her she was rated “not on track,” and asked her whether she was interested in staying in her current position, but on a PIP, or receiving a demotion to a senior manager role.

Five days later, on Feb. 18, the plaintiff emailed Catalent, writing that she believed her age was a factor in her employment options. In that same email, the plaintiff chose to be placed on a PIP and stay in her position.

Just two days later, on Feb. 20, Catalent met with the plaintiff. She was told that the PIP was no longer an option and she could accept either a demotion or a severance plan. The plaintiff replied that she did not want a demotion. Catalent then provided the plaintiff with the proposed separation agreement, giving her 21 days to review the document. The plaintiff worked from home for the following week. Catalent pressed her to either return to work with a demotion or accept the severance plan. She did not return and was considered to have resigned.

The plaintiff then sued Catalent in Missouri state court, alleging age discrimination, sex discrimination, and retaliation and violation of the Missouri Human Rights Act (MHRA). Catalent removed the case to federal court and filed a motion for summary judgment on all the plaintiff’s claims.

The plaintiff opposed Catalent’s motion regarding her age discrimination and retaliation claims. During the briefing process, Catalent produced court-ordered evidence of certain text messages between members of its leadership.

These texts included a set of messages showing that, one day after the plaintiff claimed age discrimination, the HR manager proposed the idea of removing the option of a PIP and forcing the plaintiff to choose between demotion and termination. The plaintiff’s supervisor asked the global director of project management to approve the idea, and she texted a thumbs-up emoji.

The plaintiff requested leave to use these texts to oppose summary judgment, but the district court denied her request and granted summary judgment against her claims. The plaintiff appealed to the 8th Circuit.

On appeal, the 8th Circuit considered whether the plaintiff had alleged a sufficient claim of age discrimination to survive summary judgment. The plaintiff argued that a younger manager who also had a high number of subordinate resignations was not disciplined. The court noted, however, that the younger manager was not blamed by her departing employees for poor working conditions in the department, as was the plaintiff. Therefore, it stated that the plaintiff’s evidence did not show age discrimination.

Yet, the court found sufficient evidence of retaliation in the texts produced by Catalent to reverse summary judgment on that claim. The plaintiff’s managers apparently removed the PIP option soon after she claimed age discrimination, providing evidence that their decision was retaliatory.

The 8th Circuit thus reversed the grant of summary judgment on the plaintiff’s retaliation claim.

Lightner v. Catalent CTS (Kansas City) LLC, 8th Cir., No. 22-2452 (Dec. 26, 2023).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.