By Maria Greco Danaher

 

Termination based solely on a biased supervisor’s recommendation could lead to liability under Title VII , even when an HR person unfamiliar with the employee’s race discharges the worker, the 10th U.S. Circuit Court of Appeals ruled.

Stephen Peters worked as a merchandiser for BCI Coca-Cola Bottling Co. in Albuquerque, N.M., and was one of the fewer than 2 percent of black employees at that location. Most BCI merchandisers worked staggered shifts to effectively perform their duties of arranging, cleaning and rotating product displays in various retail outlets. Because Peters was the most senior merchandiser in the district, he had the most desirable schedule, with weekends off. Peters was regarded as a good employee and team player.

He reported directly to Cesar Grado, a Hispanic district manager, but Jeff Katt, a white account manager, supervised Peters on a day-to-day basis. Grado was responsible for supervising and evaluating the district’s account managers, but he did not have authority to discipline or terminate employees. Instead, he was to bring such issues to the attention of the HR department, which then would take any necessary action. BCI received no complaints about Grado from Peters, but a number of Grado’s other subordinates felt that Grado treated black employees less respectfully than Hispanic employees, and subjected black employees to greater scrutiny and more serious discipline than others.

On Sept. 28, 2001, Grado learned that a “floater” merchandiser, upon whom Grado relied to cover extra shifts, had been injured and was unable to work the following weekend. Because Coca-Cola was running a promotion at that time, BCI needed additional personnel to cover the work. Grado asked Katt to have Peters work that Sunday, but Peters refused. Grado’s recollection was that Peters had responded that he would “call in sick” for that day, but Katt denied that Peters said that. Instead, Katt recalled that Peters said that he had plans for the weekend. Grado decided to follow up with HR.

The HR manager for Grado’s district was Sherry Pederson, and her supervisor was Pat Edgar. Neither had ever met or heard of Peters until the incident in September 2001. Grado called Edgar and told her that Peters planned to call in sick rather than come to work on Sunday. Based on a BCI policy that prohibited calling in sick in advance, Edgar told Grado to direct Peters to come to work and to inform Peters that his failure to do so would be viewed as insubordination, which constituted grounds for discharge.

Grado then met with Peters, who informed Grado that he had plans for the weekend. When Grado asked about the plans, Peters reacted angrily and told Grado that the plans were “none of his business.” Grado then directed Peters to work on Sunday, and told him that failure to do so would be viewed as insubordination.

Peters did not work on Sunday, and he was terminated. He filed a charge of discrimination with the EEOC, which ultimately filed a federal court action against BCI on his behalf. Although the district court dismissed the case, the 10th Circuit reinstated the action, based on the fact that the decision to terminate Peters was based solely on information obtained from Grado, an individual with an alleged racial bias.

EEOC v. BCI Coca-Cola Bottling Co. , 10th Cir., No 04-2220 ( June 7, 2006 ).

Professional Pointer: Various federal courts have used the “cat’s paw” or “rubber stamp” theory to characterize a situation in which an employment decision is made by one manager but is heavily influenced by a biased supervisor. Courts have held that an employer cannot escape liability simply by insulating the decision-maker from the affected employee. The important element in this decision is a statement by the court that “an employer can escape liability entirely by performing an independent investigation.” The fact that information from a biased supervisor forms part of an adverse decision can be mitigated by a fair, full and unbiased investigation into the circumstances that lead to the ultimate employment action. Employers should ensure objective and complete documentation of such an investigation as a defense to a claim of discrimination.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh