Independent Disciplinary Review Defeats Discrimination Claim

By W. Kevin Smith and Jacob W. Crouse Oct 23, 2015
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A black employee failed to prove that alleged discrimination by his immediate supervisor led to the termination of his employment, according to the 10th U.S. Circuit Court of Appeals.

Karry L. Thomas was employed by Berry Plastics Corp. (BPC) as a printing operator, and then as a printing technician, from 2003 to 2010. Thomas had been subject to 13 disciplinary actions during that time, and his employment eventually was terminated as a result of these issues.

Beginning in 2009, Jason Morton became Thomas’ immediate supervisor. Though Morton did not have the authority to terminate Thomas directly, Morton had been involved in some of the disciplinary actions that led to Thomas’ discharge. After a July 2010 disciplinary action involving Morton, Thomas alleged that he was subject to race discrimination. Shortly before Thomas’ discharge, Morton submitted a disciplinary report faulting Thomas for a print-quality issue that occurred in September 2010.

Thomas challenged his termination and was granted a meeting by BPC’s termination review panel. The panel consisted of two independent BPC managers who reviewed Thomas’ full disciplinary history and gave Thomas an opportunity to make a statement in his own defense. Thomas’ termination was upheld by the panel.

Thomas filed suit against BPC under a “cat’s paw” theory of liability, alleging that Morton had taken disciplinary action against Thomas based on his race and that Morton’s influence had led to the decision to terminate the employment of Thomas.

The Kansas District Court ruled in favor of BPC, and the 10th Circuit affirmed. In reaching its decision, the appeals court held that Thomas was required to prove that Morton had retaliated against him based on Thomas’ race and that Morton’s animosity had influenced the decision-maker at BPC to discharge Thomas.

The court of appeals first determined that Thomas failed to demonstrate that Morton’s September disciplinary report was evidence of retaliation or animosity. The court then determined that Morton’s alleged animosity was not the cause of Thomas’ discharge.

The court based this determination on the fact that Thomas had been provided with an independent review within two days of his termination, where Thomas’ entire disciplinary record was reviewed and where Thomas was given an opportunity to speak on his own behalf, which “broke” any causal change between the purported animus and the discharge.

Thomas v. Berry Plastics Corp., 10th Cir., No. 14-3100 (Sept. 25, 2015).

Professional Pointer: This case highlights the importance of an independent review of employee discharges, particularly where the employee has made allegations of discrimination, retaliation or bias on the part of his or her supervisors. While the court found no evidence of animosity toward Thomas by his immediate supervisor, the review of Thomas’ discharge removed all doubt as to whether his employment termination was the result of one supervisor’s animosity. It also demonstrated that the employer had given careful consideration to the employee’s entire disciplinary history and to the employee’s own version of events.

W. Kevin Smith and Jacob W. Crouse are attorneys with Smith and Smith Attorneys, the Worklaw® Network member firm in Louisville, Ky.

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