Hamilton v. General Electric Co.

GRIFFIN, Circuit Judge,

dissenting.

I respectfully dissent. I agree with the well-reasoned opinion of the district court and would affirm.

I.

First, in this diversity of citizenship case governed by Kentucky state law, I agree with the district court and the majority that the waiver signed by Hamilton as part of his Last Chance Agreement was ineffective to bar this prospective civil rights retaliation claim.

However, I respectfully dissent from the majority’s holdings that under Kentucky law, the district court erred in ruling that Hamilton failed to sustain his burdens of demonstrating the “causal connection” element of his prima facie case and establishing that defendant’s legitimate reasons for discharge were pretextual.

II.

The events of August 9, 2005, which resulted in Hamilton’s termination, are consistent with and are further illuminated by Hamilton’s well-documented and undisputed pattern of defiance at General Electric Company (“GE”). In my view, his termination was merely the culmination of his serious disciplinary history.

In 2004, a year before Hamilton filed his age discrimination charge, various managers reported that they were unable to locate Hamilton at work on several occasions. As a result, Frank Whitehouse, manager of plant relations, waited by the front gate on June 18, 2004, in an attempt to find him. On that day, electronic records confirm that Hamilton clocked out at 7:54 AM and returned over sixty minutes later. Because lunch breaks at GE are thirty minutes, Whitehouse questioned Hamilton about his whereabouts. Hamilton explained that he had taken his thirty-minute lunch break but could not account for the additional thirty minutes. GE then suspended Hamilton without pay for thirty days because he violated its written rule forbidding employees from leaving work without permission.

When Hamilton returned to work on July 24, 2004, he refused to perform assigned jobs. As a result, human resources manager Michael Luvisi terminated Hamilton for insubordination.

Fortunately for Hamilton, the union intervened on his behalf. It negotiated a Last Chance Agreement, which Hamilton signed on August 17, 2004. Under the Last Chance Agreement, Hamilton conceded that GE’s decision to terminate him was “proper and for just cause.” GE agreed to reinstate Hamilton’s employment without back pay in exchange for Hamilton’s agreement to “strictly adhere” to the terms and conditions stated in the *439Last Chance Agreement, including the requirement that he comply “with all of the Appliance Park Rules of Conduct.” It specifically warned Hamilton that “[a]ny violation of the Rules of Conduct will result in immediate discharge.... ”

Despite the Last Chance Agreement, less than a year later, Hamilton again behaved insubordinately toward GE management. On May 6, 2005, manager Terry Bale directed Hamilton and another employee to take their lunch breaks early so that they would be available to work on an assembly line. When Hamilton refused to obey Bale’s directive that he report to his assigned work station, Bale called security guards who escorted Hamilton off GE property.

Although GE determined that Hamilton’s conduct on May 6, 2005, violated the Last Chance Agreement and made the preliminary decision to terminate him, the union again intervened on Hamilton’s behalf. At the union’s request, GE agreed to place Hamilton on unpaid leave for thirty days instead of discharging him. Significantly, it was while Hamilton was serving that unpaid thirty-day suspension that he filed his age discrimination charge with the EEOC on May 20, 2005.

On July 28, 2005, Hamilton’s supervisor, Donald Blair, convened a meeting with Hamilton and the union to discuss his continuing concerns about Hamilton’s alleged refusal to follow instructions, tardiness at the start of his shift, unauthorized breaks, and routine absences from his work area. Blair required that Hamilton report to him every morning for daily instructions and reminded him to adhere to his scheduled break times and GE’s rules of conduct.

The lunch break incident on August 9, 2005, which led to Hamilton’s discharge was merely another link in the long chain of Hamilton’s documented challenges to his employer’s authority. On that day, Hamilton’s supervisors once again attempted unsuccessfully to find him. It was only when they could not locate him that they searched for and found him in the lunch room.

At oral argument, Hamilton’s counsel conceded that his client’s lunch break on August 9, 2005, was “unauthorized.” Moreover, no reasonable jury would believe Hamilton’s contention that during his unauthorized lunch break, he timely complied with his supervisor’s instructions to move skids. According to Hamilton, Blair gave him only a few “seconds” to begin the task, and while he was still putting away his food, Blair and Bale returned to the lunch room and ordered him to leave the plant. Blair and Bale contend that they allowed Hamilton several minutes to put away his lunch before they returned. Obviously, the time it requires for a supervisor to leave the lunch room in the large plant and then return is more than a few “seconds.” Under these circumstances, Hamilton’s failure to comply with Blair’s orders clearly constituted refusal to comply with “specific work directions from your supervisor” as referenced in defendant’s August 15, 2005, termination letter.

III.

The majority acknowledges that “the burden first falls on Hamilton” to “establish a prima facie case of retaliation by showing that: ... there was a causal connection between the protected activity and the adverse employment action.” It then incorrectly concludes that Hamilton met his burden of proving the “causation” element based on two factors: (1) the temporal proximity between his filing of the EEOC charge, and (2) GE’s alleged “heightened scrutiny” of him after he filed the charge. In relying on these considerations, the majority ignores the undisputed *440circumstances leading to Hamilton’s termination and his well-documented pattern of insubordinate behavior at GE.

The majority’s reliance on temporal proximity as establishing the causation element of the prima facie case is untenable. On at least three occasions in the year preceding his filing of the charge, GE suspended or terminated Hamilton. He signed the Last Chance Agreement before he filed his EEOC charge. In fact, Hamilton filed his charge while serving an unpaid, thirty-day suspension for his insubordination on May 6, 2005. Thus, he was already on the brink of termination when he complained about discrimination and when GE discharged him for the last time.

In a similar case in which the plaintiff employee had a history of disciplinary problems that preceded the filing of the discrimination charge, the Eighth Circuit rejected the employee’s attempt to immunize herself from termination by complaining:

The wisdom of [the] rule [that temporal proximity, by itself, is not enough to present a genuine issue of material fact in a retaliation case] is evident in a case such as this, where the employee was accused of insubordination before she notified the employer of her protected activity. Insubordinate employees may not insulate themselves from discipline by announcing an intention to claim discrimination just before the employer takes action. Evidence that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity.

Hervey v. County of Koochiching, 527 F.3d 711, 723 (8th Cir.2008) (holding that the employer’s adverse action against the plaintiff “was a logical consequence of [the plaintiffs] pre-existing disciplinary problems,” and the plaintiff “cannot create a submissible case of unlawful retaliation by interjecting her announcement of a discrimination claim in the middle of a previously scheduled meeting to discuss her absences from work.”) (internal quotations and citations omitted). Other decisions have recognized the same. See, e.g., Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir.2001) (holding that the plaintiff failed to establish the causation element of the prima facie case for retaliation where “an extensive period of progressive discipline” began five months before the plaintiff filed his EEOC charges); Zenni v. Hard Rock Cafe Int’l, Inc., 903 F.Supp. 644, 655-56 (S.D.N.Y.1995) (holding that the plaintiff did not establish the causation element of the prima facie case for retaliation where he committed infractions and the employer negatively evaluated him before he complained about alleged discrimination); Lawson v. Getty Terminals Corp., 866 F.Supp. 793, 804 (S.D.N.Y.1994) (holding that the plaintiff failed to establish the causation element of the prima facie case for retaliation where his employer informed him that it was dissatisfied with his performance and verbally counseled him about his failure to perform required job duties before he complained about alleged discrimination).

IV.

The majority also incorrectly relies on GE’s alleged “heightened scrutiny” of Hamilton after he complained as establishing the causation element. GE was entitled to heavily scrutinize and discipline Hamilton, an employee with a history of insubordination. Cf. Conley v. City of Findlay, 266 Fed.Appx. 400, 409-10 (6th Cir.2008) (unpublished) (affirming district court’s grant of summary judgment in favor of the employer where the plaintiffs “entire retaliation argument is dedicated to challenging the district court’s conclu*441sion that an employer may discipline an employee that it views as being more culpable in a harsher manner than it disciplines an employee that it deems to be less culpable.”).

Moreover, contrary to the majority’s observation that “[t]he fact that the scrutiny increased [after Hamilton filed the charge] is critical” and permits an inference of retaliation, the majority again ignores a crucial fact — the alleged “heightened scrutiny” began after Hamilton returned from the thirty-day unpaid suspension coinciding with the filing of his discrimination charge. Surely an employer may more closely observe an employee who is returning from sanction, particularly one like Hamilton, who was working under a Last Chance Agreement and had been suspended and terminated in the past. Indeed, Hamilton identifies no other similarly situated, non-complaining employee whom GE treated differently. See Evans v. Prospect Airport Servs., Inc., 286 Fed.Appx. 889, 895 (6th Cir.2008) (unpublished) (stating that “[b]eyond temporal proximity, other indicia of retaliatory conduct would include evidence that the plaintiff was treated differently ... than similarly situated employees who had not exercised Title VII rights ....”) (citing Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.1999)).

The Kentucky legislature certainly did not intend the anti-retaliation provision of the Kentucky Civil Rights Act to preclude employers from supervising their employees, particularly insubordinate ones. The majority’s holding merely encourages sanctioned employees like Hamilton to file discrimination charges, thereby obtaining “instant immunity” from their employers’ supervision and punishment. Contrary to the majority’s sweeping construction of the anti-retaliation provision, the statute is designed to prevent employers from taking adverse action against employees who engage in protected conduct, not to function as a blindfold or “gag order” on an employer’s ability to properly supervise its employees, particularly employees who have decisively demonstrated that they require closer supervision.

Under these facts, no reasonable jury could find that Hamilton met his burden of establishing a prima facie case for retaliation, and I respectfully dissent from the majority’s ruling that he did.

V.

Next, assuming that Hamilton met his burden of establishing a prima facie case for retaliation, it was also his burden to demonstrate that GE’s articulated legitimate, non-retaliatory reasons for terminating him were pretexts for retaliation. Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir.2008). The majority correctly assumes that GE’s explanations for firing Hamilton- — his persistent failure to abide by its rules of conduct and the Last Chance Agreement — were legitimate and non-retaliatory. However, it then concludes erroneously that a reasonable jury could find that GE’s articulated reasons were pretexts for retaliation, holding that sufficient facts suggest that GE waited for a “legal, legitimate reason [to fire him] to fortuitously materialize” and then used that reason “to cover up [its] true, longstanding motivations” of retaliation.

Again, the majority ignores Hamilton’s significant disciplinary history at GE, which long preceded the filing of his discrimination charge. When he filed his charge, Hamilton had nearly exhausted his “nine lives” at GE. GE did not need to wait for legal, legitimate reasons to “fortuitously materialize” in order to fire Hamilton because he already proved on numerous occasions that he was more than willing to assist.

*442The August 9 infraction was representative of and consistent with his past behavior at GE: for whatever reason, he did not respect GE’s rules or the authority of his supervisors or managers, and he paid the price by losing his job. The facts in this case are thus similar to those in Conley, in which we held that the employer’s decision to terminate an employee for causing wastewater spills on three separate occasions was not a pretext for discriminating against her as a matter of law, even though she argued that the third spill was insufficient to justify her termination because it was of “minimal quantity.” Conley, 266 Fed.Appx. at 406-07. In Conley, we recognized that the third spill which immediately preceded the plaintiffs termination was merely one error among several made by the plaintiff, and that the City of Findlay, Ohio, lawfully discharged her “because of her unacceptable job performance in all three spills.” Id. at 406.1

Here, as in Conley, Hamilton’s final infraction on August 9 merely reinforced the accuracy of the label GE had already assigned to him, which in the words of Logan Pearsall Smith, was “plainly printed on the bottled essence of [his] past behavior.” Accordingly, because no reasonable juror could find that GE’s explanation for terminating Hamilton' — -his persistent and pervasive violation of its rules — was a pretext for retaliating against him, summary judgment was proper. See Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir.2007) (stating that “the plaintiff must identify evidence from which a reasonable jury could conclude that the proffered reason is actually a pretext for unlawful discrimination.”); Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 371 (6th Cir.2007) (same); Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir.2001) (stating that a “case should be dismissed” where “no reasonable juror could find that the employer’s adverse employment action was pre-textual.”).

VI.

For these reasons, the district court correctly granted summary judgment in favor of GE on Hamilton’s retaliation claim, and I would affirm that judgment. I therefore respectfully dissent.

. Unpublished opinions of this court are not precedentially binding under the doctrine of stare decisis but may be considered for their persuasive value. United States v. Sanford, 476 F.3d 391, 396 (6th Cir.2007).