The U.S. Court of Appeals for the Sixth Circuit recently affirmed a summary judgment granted to Skyline Chili, Inc. on claims of age and sex discrimination, and retaliation, brought by a terminated employee. Skyline showed that the employee’s termination was based on performance deficiencies, and the employee failed to establish that those alleged deficiencies were a mere pretext for a discriminatory firing. Mary T. McKinley v. Skyline Chili, Inc., 6th Cir. No. 12-4064 (unpublished op., August 21, 2013).
Underlying Facts
McKinley, a female born in 1954, was hired to work as a district manager for Skyline in 2006. After receiving positive performance reviews, she was promoted to the position of market manager for the Cincinnati market in 2008. In that position, McKinley reported directly to the senior vice president of restaurant operations, Deborah Chitwood, a female born in 1957.
After McKinley was promoted to market manager, Chitwood began citing McKinley for numerous deficiencies in her job performance. In May 2010, Chitwood gave McKinley a letter outlining those alleged deficiencies: inability to partner with the management team at one of her stores, lack of professionalism, lack of responsiveness to customer complaints, and poor financial results.
After receiving Chitwood’s letter, McKinley complained to Skyline’s director of human resources, Shari Bleuer, that she was the only person being held accountable for customer complaints and her that counterparts, all of whom were significantly younger, and some of whom were male, were not being held accountable.
In November 2010, a male Skyline employee complained to Bleuer about McKinley’s handling of his promotion from shift manager to an assistant general manager position. He asserted that McKinley had told him that he would get a raise to a salary in the $32,000 to $35,000 range. However, his actual promotion salary was only $27,000. Skyline asserted that this employee complaint, combined with McKinley’s prior performance issues, caused Chitwood to terminate McKinley’s employment on December 1, 2010.
McKinley’s Age and Sex Discrimination Claims
McKinley asserted that her termination constituted age and sex discrimination under both Ohio state and federal law. Her state law claims were analyzed under the same framework as her federal claims. Blizzard v. Marion Tech. Coll., 698 F.3d 275 (6th Cir. 2012).
McKinley failed to produce any direct evidence that Skyline possessed discriminatory animus in support of her discrimination claims. As a result, the McDonnell Douglas burden shifting framework applied to her claims. That framework required McKinley to show that (1) she is a member of a protected class; (2) she was subject to an adverse employment action; (3) she was qualified for the position; and (4) she was replaced by someone outside the protected class. If McKinley established that prima facie case, the burden would then shift to Skyline to articulate a legitimate nondiscriminatory reason for its adverse business decision. If it did so, then the burden would then shift back to McKinley to demonstrate that Skyline’s alleged business reason was mere pretext.
The district court found that McKinley has established a prima facie case of age discrimination. However, Skyline produced a legitimate business reason for terminating McKinley — her supervisor, Chitwood, had lost confidence in McKinley’s leadership abilities based on her documented deficiencies. In response, McKinley failed to establish Skyline’s business reason was mere pretext. As a result, the district court granted summary judgment in favor of Skyline.
Pretext
McKinley could establish that Skyline’s proffered reason for terminating her was a pretext for unlawful discrimination by establishing that the reason (1) had no basis in fact; (2) did not actually motivate the adverse employment action; or (3) was insufficient to motivate the employment action. The third showing usually consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in the same conduct. To establish pretext, McKinley offered the testimony of a few Skyline district managers stating that McKinley was “better qualified” than a younger male who was given a director of operations position, and that she was “more qualified” than a younger male who was proposed for a market manager position.
The Sixth Circuit noted that at the summary judgment stage, McKinley was required to produce sufficient evidence from which a jury could reasonably reject Skyline’s explanation for its adverse employment action. The district court had found that the testimony adduced by McKinley was “opinion testimony”; that it was “essentially speculation and lacked specific facts” regarding the performance of the allegedly comparable employees who were treated differently. The appellate court agreed that “the existence of differing opinions regarding the sufficiency of McKinley’s performance does not create a genuine issue of material fact as to whether Skyline’s stated reasons for terminating her employment masked impermissible discrimination.” McKinley had failed to show that the employees she identified for comparison “had engaged in acts of comparable seriousness and were not terminated.” (emphasis added).
Retaliation
McKinley also asserted that Skyline had terminated her in retaliation for her complaint to Bleuer that she felt discriminated against and that she was the only person being held accountable for customer complaints, while her younger, male, counterparts were not similarly held accountable.
To establish a prima facie case of retaliation, McKinley was required to show that (1) she had engaged in protected activity; (2) Skyline knew she had exercised that protected right; (3) Skyline took an adverse action against her; and (4) a causal connection existed between her protected activity and Skyline’s adverse employment action.
The district court held that McKinley’s complaint to Bleuer was “too vague to constitute opposition” to discrimination, and therefore, did not constitute protected activity sufficient to support a retaliation claim. The Sixth Circuit disagreed, finding that viewing the evidence in the light most favorable to McKinley (on a summary judgment motion), her complaint to Bleuer “could qualify” as protected activity. Nonetheless, the appellate court concluded that McKinley had not established a causal connection between her complaint and her termination because she had failed to establish that Skyline’s proffered business reason for her termination was mere pretext. As a result, the court affirmed the summary judgment in favor of Skyline.
Lessons To Be Learned
A plaintiff cannot establish that she was discriminated against on the basis of her age or sex simply by proffering opinion testimony of co-workers that she is “better qualified” or “more qualified” than younger, male workers. The plaintiff must present evidence of specific facts suggesting discrimination — that the asserted comparable employees engaged in specific acts of comparable seriousness, but had no adverse action taken against them.
With respect to a retaliation claim, a plaintiff cannot establish a causal connection between her protected activity and the employer’s adverse action if she does not show that the employer’s proffered business reason for its action is mere pretext.
The McKinley decision can be found at:
http://www.ca6.uscourts.gov/opinions.pdf/13a0776n-06.pdf
