Agreeing with the district court’s assessment that “résumé misrepresentations by a senior human resources professional represent an infraction so egregious as to defy correction by mere counseling or other lesser discipline,” the 6th Circuit on April 23, 2018, rejected an appeal from a summary judgment order on claims of pregnancy, race, and age discrimination and retaliation in Bailey v. Oakwood Healthcare, Inc..
Michelle Bailey, a 40 year old African-American woman, was fired from her position as a senior staffing professional at Oakwood Healthcare, Inc. (Oakwood) on the day she returned from a three-month maternity leave. During her maternity leave, her supervisor had identified deficiencies in her work performance that prompted the supervisor to go back and review her qualifications. When she checked, she found what Ms. Bailey acknowledged in deposition were “embellishments” on her employment application. In notifying Ms. Bailey of her termination, Oakwood relied on both the deficiencies and the misrepresentations. Ms. Bailey later sued, claiming that she was fired because of her pregnancy, her race and her age as well as in retaliation for concerns she had expressed about the rejection of employment applications of certain African-American candidates for employment at Oakwood prior to her maternity leave. The district court granted summary judgment in Oakwood’s favor on each of these counts.
On appeal, the 6th Circuit upheld the summary judgment order. The court had little difficulty dispensing with Ms. Bailey’s claims of race and age discrimination, stating that “[t]he record is devoid of evidence of any change in [the decision makers’] understanding of her race or age that played a role in their decision to terminate her employment a mere eleven months later.” Similarly, the court was not persuaded that the timing of the termination decision thirteen months after Ms. Bailey’s pregnancy announcement and the day she returned from maternity leave was sufficient to justify an inference of pregnancy discrimination despite comments from her supervisor that supposedly suggested disapproval of her pregnancy at age 40. The court described these comments as showing “a lack of discretion, but nothing more.”
Finally, as to the retaliation claim, Ms. Bailey contended that her supervisor (who incidentally also was an African-American female) had given less favorable treatment to three African-American candidates that Ms. Bailey had recommended. The court, however, recognized that Ms. Bailey had acknowledged the existence of plausible, race neutral reasons for the unfavorable treatment of each one, including the discovery that two of the three applicants had prior criminal records. The court again found no error in the district court’s disposition of this claim:
Suffice it to say that a reasonable fact finder confronted with evidence of disagreements between a relatively new subordinate African-American female employee and her experienced African-American female supervisor, regarding appropriate treatment of three African-American applicants (among the several dozen considered), would hardly be justified under these circumstances in disbelieving the supervisor’s facially valid, race neutral reasons for overruling the subordinate’s recommendations. That employees sometimes disagree on an appropriate course of action is not controversial. Nor is it surprising if the subordinate’s opinion is overruled by the superior’s. And when the applications of African-American applicants who suffered unfavorable treatment at the hands of African-American decision-maker were undisputedly handicapped by other disqualifying facts, the race of the applicants facially appears to be merely incidental. It follows that Bailey’s expressed subjective belief that racial bias played a role in the unfavorable treatment carries little weight in support of her showing that retaliation for protected activity was the real reason she was terminated.
- Certain positions at a business, such as human resources professionals, require a level of integrity resulting in courts being reluctant to second guess employer decisions to terminate when the employee in that position demonstrates a sufficient lack of integrity to warrant termination of employment.
- While conventional wisdom often suggests that employers should not rely on multiple bases for a termination decision, the two reasons proffered by Oakwood (performance deficiencies that revealed application fraud) meshed together seamlessly. More important in this case was Oakwood’s consistent telling of its overall story (despite minor deviations in recollection among witnesses) that helped it carry the day.