Monday, May 11, 2015

Did the 6th Circuit just gut the honest-belief rule?

The only fight I’ve even been in was in 4th grade. For reasons that I can’t remember, Yale Weinstein and I squared off in the schoolyard of Loesche Elementary School. There were no winners, only losers, and the only thing that saved both of us from suspension that day was the fact that the principal knew my dad from his childhood and was friends with my grandmother. It’s not what you know, but who you know, right?

Let’s suppose you have two employees who get into a fight at work, and one happens to be white and one black. Does Title VII require you to fire both employees, or can you make an honest assessment of the instigator, and only fire the responsible party?

According to the 6th Circuit in Wheat v. Fifth Third Bank (5/7/15) [pdf], an employer potentially violates Title VII when an it fires only one participant in a workplace fight, when both are of different races.

The facts are relatively simple. Wheat (black) and Hatfield (white) first got into an argument, which later escalated into a physical altercation. The employer’s HR department immediately investigated, concluded that Wheat was the instigator, and fired him for violating its workplace violence policy.

The 6th Circuit concluded that the trial court erred in dismissing Wheat’s Title VII claim on summary judgment. Critically, the appellate court reviewed the deposition testimony and found that the evidence showed that Hatfield, and not Wheat, was the aggressor.

Even the most cursory of examinations of the evidence before the district court and this court reveals that a genuine factual dispute exists regarding Wheat’s status as the aggressor in the confrontation with Hatfield. In fact, the deposition testimony establishes that it was Hatfield, not Wheat, who pursued the altercation after the two men had separated initially and gone to their respective “corners.” Even Hatfield himself admitted that it was he who took the ill-advised step of reengaging with the plaintiff after their initial encounter. Moreover, even if the defendant’s position is premised upon its belief that Wheat was the initial aggressor when the two men met in the hallway of the bank, the argument must fail. Although Hatfield claimed that the plaintiff “put his hand in [Hatfield’s] face,” Wheat stated during his deposition that he was turning around to extricate himself from the argument when Hatfield “assaulted” him by swatting him on his arm.

Based on the appellate court’s reading of the deposition testimony, it concluded that “divergent explanations of the unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant of summary judgment to the defendant at the prima-facie-case stage of the litigation.”

To that, I say hogwash. Courts have long held that they do not, and will not, sit as super-personnel departments, second-guessing an employer’s business decisions. Indeed, an employer’s “honest belief” in its decision will act as a shield from a later claim of discrimination. As another panel of this same court recognized a few years ago, in Brooks v. Davey Tree Expert (internal quotations omitted):

Under the “honest belief” rule … 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…. 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.

[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action. Although we will not micro-manage the process used by employers in making their employment decisions, we also will not “blindly assume that an employer’s description of its reasons is honest. Therefore, when the employee is able to produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process unworthy of credence, then any reliance placed by the employer in such a process cannot be said to be honestly held.

It seems to me that as long as Fifth-Third Bank’s HR department engaged in a reasonable-under-the-circumstances investigation of the fight between Wheat and Hatfield, a court is not in a position to second-guess the results of that investigation or the terminations that flowed therefrom. Yet, by examining the deposition testimony and reaching its own independent conclusion of which employee was responsible for the fight, hasn’t this court undermined (or, more accurately, ignored) the employer’s “honest belief?” And, if that’s the case, what does it say about the future of the honest-belief rule as a viable defense to a discrimination claim in the 6th Circuit?

For now, however, if you are faced with two employees of different races (or national origins, or religions…) fighting in your workplace, is it just best to fire them both, if your honest belief of who was the instigator won’t protect you if that “instigator” happens to be of different race?