Supervisor’s Anti-Military Stance Taints Investigation

 

By Roger S. Achille September 17, 2019
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​The 6th U.S. Circuit Court of Appeals held that an employer can be liable for discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for wrongfully terminating an employee, even though the supervisor who harbored anti-military sentiments did not make the ultimate decision to fire the employee.

In 2015, the plaintiff worked as a kitchen manager for American Multi-Cinema Inc. (AMC) while also serving in the Ohio National Guard. Although AMC never prevented the plaintiff from fulfilling his military obligations or denied him time off, one senior manager repeatedly expressed disapproval when the plaintiff had to take leave for military duty. The plaintiff reported this to the general manager, who said "[he] would take care of it."

In April 2015, the plaintiff and the senior manager were talking about the upcoming "Avengers weekend," which was expected to draw large crowds to the theater. The plaintiff reminded the senior manager that he would be gone that weekend because of a military drill. She allegedly told him that he would be fired if he missed work. When the plaintiff stated that firing him for missing work due to military obligations would be illegal, she allegedly responded, "We will find something else to terminate you on."

On April 17, 2015, the plaintiff found a to-go container in which there were more chicken fingers than an employee was allowed to take home. After the plaintiff informed the employees that they could not take food home that night, a few employees began speaking inappropriately to the plaintiff. He typed up a statement of events, and the employees were eventually fired for their part in the incident. The next day, employees told the plaintiff that the senior manager was plotting to get him fired by having employees write complaints about him to AMC headquarters. This prompted the plaintiff to text the senior manager about the alleged plot. The senior manager told him that he needed to have the employees "write statements tonight."

After the incident involving the chicken fingers, the general manager contacted AMC's compliance manager, who initiated an investigation. According to AMC procedure, the compliance officer's conclusions are passed to an adjudicator, who ultimately decides how to resolve the situation. Neither the senior manager nor the general manager had independent authority to fire the plaintiff.

During the investigation, the plaintiff told the compliance officer about the senior manager's comments threatening to get him fired for taking military leave and the alleged plot to get him fired. At the close of her investigation, the compliance officer sent an e-mail to the adjudicator listing facts that were substantiated. Consequently, the adjudicator decided to fire the plaintiff based on "impeding the investigation" and "just his overall behavior and demeanor."

The plaintiff claimed that his termination stemmed from AMC's anti-military stance and therefore violated USERRA. Under the "cat's paw" theory of liability, if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

[SHRM members-only how-to guide: How to Administer Military Leave Benefits Under USERRA]

The 6th Circuit concluded that there was enough evidence to infer that the senior manager intended to cause the plaintiff's termination. AMC countered by insisting that it "broke the chain of causation" by conducting a thorough and independent investigation. However, the court pointed out that the investigation was neither "necessarily thorough" nor "necessarily independent" because it consisted mostly of gathering a few statements. Moreover, the compliance officer described the general manager as her "partner" in the investigation.

AMC had the burden of showing that it would have fired the plaintiff even absent his military service but failed at this stage of the litigation. The court emphasized that the adjudicator knew of the plaintiff's USERRA concerns, and the senior manager told the plaintiff to take action that would amount to impeding the investigation. As such, the court remarked that the decision-maker was "fully aware of the facts suggesting that the impeding-the-investigation charge was pretextual." The 6th Circuit reversed summary judgment for AMC.

Hickle v. American Multi-Cinema Inc., 6th Circuit, No. 18-4131 (June 20, 2019).

Professional Pointer: Those assigned to workplace investigations, especially in highly stratified workplaces, should take steps to ensure that the investigation is independent from supervisor biases. Such steps include independently examining evidence and speaking to witnesses.

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

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