Tennessee employers have been thrown another curve ball. Employers have long understood that the risk of a lawsuit from a disgruntled employee cannot be completely eliminated. Nonetheless, employers could take some solace in the belief that an employee has the burden of proving his claim before he can win. That is still generally the rule, but a recent case from the United States Court of Appeals for the Sixth Circuit may have made that a little easier for employees, at least if an employer plans to rely on the “honest belief” rule when moving for summary judgment.
The concept of the “honest belief” rule finds its origins in the now familiar McDonnell Douglas burden-shifting approach used in analyzing claims of discrimination and retaliation under Title VII, at least at the summary judgment stage. Using that methodology, to survive a summary judgment motion, the plaintiff must first make out a prima facie case of racial discrimination or retaliation. To do this for a retaliation claim the employee must show (1) he has engaged in Title VII-protected activity; (2) the employer had knowledge of this fact; (3) the employee suffered an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. Second, if the plaintiff makes a prima facie case, the burden shifts to the defendant to articulate a “legitimate, non-discriminatory reason” for the employment decision. Finally, if the defendant meets its burden of articulation, the burden shifts back to the plaintiff to show that the reason put forth by the defendant is pretextual. If the plaintiff cannot establish pretext, summary judgment is generally granted to the employer. It is with the issues of “articulation” and pretext” that the honest belief rule comes in.
In Clay v. UPS, several African-American plaintiffs brought racial discrimination and retaliation claims against UPS. UPS moved for summary judgment on all claims. The District Court granted the motion, and the plaintiffs appealed. The Sixth Circuit affirmed several of the decisions, but notably reversed the District Court on one plaintiff’s retaliation claim. It is in examining this retaliation claim that the Sixth Circuit arguably made it a little easier for employees to survive summary judgments.
On this claim, the Sixth Circuit decided the District Court had erred in application of the honest belief rule when it placed the burden on the employee to show that the employer did not honestly believe he was a three-day no show for work. According to UPS’ information, based on its “feeder logs,” the employee was absent from work for three days. This was the articulated reason for his termination. However, other evidence suggested that UPS may have been mistaken in its belief, and the employee actually missed only two days of work. Thus, according to the Sixth Circuit, UPS’ purported basis for termination was not “anchored in the facts.” It was pretextual.
In making its decision, the Sixth Circuit explained that in determining whether an employer’s stated reason is pretextual, it uses a different version of the honest-belief rule than does the Seventh Circuit:
Under the “honest belief” rule developed by the Seventh Circuit, “so long as the employer honestly believed in the proffered reason,” an employee cannot prove pretext even if the employer’s reason in the end is shown to be “mistaken, foolish, trivial, or baseless.” We have rejected the Seventh Circuit's bare “honest belief” doctrine and instead have adopted a modified honest-belief approach. Under this approach, for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.”
A strong dissenting opinion by Judge Batchelder challenged the reasoning of the majority, and argued that its version of the honest belief rule had flipped the burdens of proof generally applied in discrimination and retaliation cases.
UPS pointed to evidence (i.e., the feeder logs) demonstrating its honest, albeit apparently mistaken belief, that [the employee] had missed three consecutive days of work. This is enough to show an honest belief. The burden remained with [the employee] to produce some evidence that this mistaken belief was not honestly held, and indeed, this was the approach taken by the district court. The majority, however, demands that UPS “demonstrat[e] that [its] actions . . , were not taken with discriminatory intent” and “show that its intent was pure.” Under the majority’s construct, the honest-belief rule is not an additional hurdle for the plaintiff to overcome in proving discriminatory motive, it is an affirmative defense on which the defendant must produce evidence sufficient to convince the trier of fact.
Regardless of whether this decision changes the law in this circuit, or simply highlights a difference between circuits, an employer in this circuit should take extra care when articulating the nondiscriminatory reason (or reasons) for an adverse employment decision. The employer should make sure that, rather than simply being able to articulate a reason for the action, it also can produce good, strong proof of the reason. Weak, contradictory, or nonexistent proof could result in a finding of discriminatory intent, even though none actually existed