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Female jewelry store manager told to ‘man up’ has gender bias suit revived

By Lisa Milam-Perez, J.D.

With little fanfare, the Eighth Circuit reinstated a gender discrimination suit brought by a female store manager against a national jewelry retailer, concluding that genuine issues of material fact remained as to whether the male district manager who told her to step down—because she was a “single mom” in a “man’s world” and needed to “man up”—played a role in the decision to terminate her (Morrow v. Zale Corp., March 15, 2016, per curiam).

According to the facts set forth in the district court’s opinion, the district manager was directed to look into managerial misconduct on the employee’s part. During his investigation, he was told that the employee sent her coworker a text message stating, “I hate those F*cking N*ggers.” The employer was also investigating whether the employee used her mother’s credit account (she was not an authorized user) to make purchases that garnered her a $600 sales bonus. Although the employee denied both allegations, she was terminated. She filed suit contending she was fired because she is a woman.

The employee pointed out that the district manager implied that she should step down from her store manager position because she was a single mother in “a man’s world”; also, on several occasions he allegedly told her to consume more protein and to “man-up,” she testified. But even assuming these comments were made, and that they evidenced discriminatory animus, the lower concluded that the district manager was not the one who initiated the investigations that ultimately led to her discharge. Also, even if a discriminatory motive prompted the investigations, there was no disputing that the district manager was told that she sent the racist text, which was reason enough to fire her.

The Eighth Circuit reversed, in a terse per curiam opinion. Such comments, if made by an individual who played a decision-making role in an adverse job action, would be direct evidence of discriminatory animus, the appeals court noted. Given evidence that the district manager had participated in the investigation that led to her discharge, and that he was the one to tell her that she had been terminated, fact questions remained as to whether he was a decisionmaker and, thus, whether her termination was discriminatory.

Moreover, the appeals court concluded that under a mixed-motive analysis, the employee may be entitled to some of the remedial relief she sought in her complaint. Concluding that summary judgment was erroneously granted, the appeals court reversed and remanded.