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Employee’s claim that United Airlines terminated him in retaliation for testifying on behalf of coworker’s race discrimination charge survives motion to dismiss; possible “cat’s paw” liability

United Airlines was denied a motion to dismiss an employee’s claim that he was terminated in retaliation for testifying on behalf of a coworker’s race discrimination claim (Gibson v United Airlines, Inc, March 8, 2011, Roberts, V). A federal district court in Michigan ruled that the employee presented evidence upon which a juror cold find that his supervisor’s retaliatory animus impacted the decisionmaker’s discharge decision, such that animus could be imputed to the decisionmaker. Additionally, there was a genuine issue of material fact as to whether United’s reason for firing the employee was pretext.

The employee was a customer service rep, handling calls from customers who experienced problems with the airline. He also held the position of committeeman with the Machinists union, which involved assisting employees with grievances. In this role, the employee testified at a deposition on behalf of a coworker who brought a race discrimination claim against United. Approximately three weeks later, the employee had a difficult call with an unhappy customer. Thereafter, the customer wrote a letter of complaint regarding the employee’s handling of the call, resulting in his suspension. Ultimately, after a final investigative review hearing, his employment was terminated. However, the employee was reinstated without back pay in settlement of a union grievance. Subsequently, he filed suit against United alleging that he was fired in retaliation for testifying on behalf of the coworker.

Causal connection. United did not dispute that the employee engaged in protected activity in testifying for the coworker, that it knew of his testimony, and that the employee suffered an adverse employment action when he was terminated. Rather, the company asserted that the employee’s claim failed because he could not establish a causal connection between the protected activity and the adverse employment action. United noted that the regional manager, who was the ultimate decisionmaker in his termination, did not know of his testimony; thus there was no connection between the testimony and his termination. However, the court ruled that a genuine issue of material fact still existed with respect to this element of the employee’s claim.

Although the employee’s supervisor was not present at the hearing in which he was terminated, she signed the termination notice as the appropriate person to sign on behalf of the regional manager who conducted the hearing, which tended to show that she had authority over or approved of the decision. Thus, the court determined that there was a question of fact as to whether the supervisor approved the recommendation to discipline the employee or approved of the decision to terminate him. Further, while the employee presented no evidence that the decisionmaker knew of his testimony, the court concluded that there were genuine issues of material fact regarding whether his supervisor harbored animus against the employee because of his testimony and withheld information about company policies to ensure that he was fired.

Pretext. The court also ruled that a reasonable juror could find that United’s stated reason for terminating the employee was a pretext for unlawful retaliation. The employee alleged that he was brought up on charges for correctly following policy, was given harsher punishment than others who violated the same rule, and that United violated its own rules of conduct. According to the employee, his supervisor, on her own initiative, decided that all violations of the rule would be subject to increased discipline. Taking the employee’s testimony as true, the court held that increasing the discipline level that applied to the employee’s alleged infraction was evidence of pretext. Additionally, proof that the employee’s supervisors told him to behave in a certain way, yet recommended and approved his discipline and then taught the very same policy to others after his discharge, could be evidence of pretext. Pretext could also be shown if the discipline imposed on the employee far exceeded the discipline enforced against other similarly situated employees. Thus, summary judgment was inappropriate.