Discrimination Claim Unsuccessful for Allegedly Insubordinate Employee

By Roger Achille December 8, 2021

An employee who was purportedly insubordinate failed to demonstrate her suspension was based on gender discrimination when the alleged biased supervisor was not involved in the decision to suspend the employee.

The plaintiff was one of seven full-time mold setters with Grote Industries, but she was the only woman on the team. Mold setters were responsible for setting up the machines that inject plastic into the molds, changing the molds and filling out the requisite paperwork.

In February 2019, Grote suspended the plaintiff for five days because she purportedly resisted instructions from her supervisor to place part numbers on a mold setter checklist sheet. According to Grote, the plaintiff's supervisor gave a directive to his third-shift employees to start putting part numbers on their mold setter checklists. In response to this directive, the supervisor contended that the plaintiff was insubordinate by expressly refusing three times to fill out the part numbers on the checklist and laughing in his face multiple times. The plaintiff insisted that she simply made two jokes in response to the requests and never verbally refused to put the part numbers on the sheet.

According to the plaintiff, the real reason for the suspension was based on upper management's desire to terminate her because of her sex. This belief stemmed from another conversation she'd had with her supervisor in which he told her that his supervisor, the production leader, told him she was a "troublemaker" and that he was going to try and have her fired. She also stated that her supervisor characterized the comments from the production leader as being "very sexist" when he relayed the conversation to the plaintiff. 

The plaintiff's supervisor denied that the production leader ever told him that the plaintiff was a troublemaker or that he wanted to fire her and denied telling the plaintiff that he believed the production leader was sexist. 

The court found that the plaintiff failed to create a triable issue as to whether her suspension was motivated by the gender-based discriminatory intent of Grote's supervisory employees. Ambiguous or suggestive remarks "may be direct or circumstantial evidence of intentional discrimination if they are sufficiently connected to the employment decision, i.e., made by the decision-maker, or those who influence the decision-maker, and made close in time to the adverse employment decision," the court stated.

Assuming the production leader's remarks were made in the manner that the plaintiff recounted them, the court found "no connection between them and the decision to suspend her employment." Rather than referencing her gender, the court noted that the remarks related to the plaintiff's allegedly troublesome behavior as an employee whereas the only reference to sex was the supervisor's secondhand characterization of the remarks as "sexist," which occurred well in advance of the purported insubordination.

Additionally, the production leader's role in the disciplinary action was limited to transmitting the incident report to the management committee, which then independently made the final disciplinary decision. The court found no evidence that the production leader made any recommendation as to the appropriate discipline, noting he had no part in drafting the final suspension letter that he presented to the plaintiff at a subsequent meeting. Whatever comments he may have made at some point in the past regarding the plaintiff or views toward her, the court concluded that they played no role in her suspension.

The plaintiff also cited as additional evidence of pretext the lack of disciplinary action taken by Grote with respect to similarly situated male mold setters who repeatedly failed to put part numbers on their checklists after being instructed to do so. However, Grote maintained that any difference in treatment was not because the men in question failed to put down the required part numbers but because these male employees were not insubordinate in response to the request that they do so.

Grubbs v. Grote Industries LLC, S.D. Ind., No. 4:19-cv-00211 (Sept. 23, 2021).

Professional Pointer: Employers should ensure that their policies are consistently enforced. Disparately enforced policies can lead to perceptions of discrimination.

Roger Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.



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