THIS ARTICLE FIRST APPEARED IN HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S Sara Anne T. Quinn.
Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), employers are prohibited from taking adverse employment actions against employees because they are servicemembers or are obligated to perform military service. The U.S. 6th Circuit Court of Appeals (which oversees federal courts in Tennessee) recently addressed whether a supervisor’s comments about terminating an employee who was a member of the National Guard were evidence of wrongful termination when the supervisor wasn’t the ultimate decision maker. The court held that the internal investigation and the termination decision by individuals other than the problematic manager didn’t break the “chain of causation” between the manager’s potential discriminatory animus and the employee’s termination.
After graduating from high school in 2004, Jared Hickle began working for an Ohio dine-in theater operated by American Multi-Cinema, Inc. (AMC), a large cinema chain. In 2008, Hickle joined the Ohio Army National Guard. During his employment, he was never denied leave related to his military service, and in 2013, he was promoted to kitchen manager.
Even though Hickle’s requests for leave, including leave to serve a yearlong deployment in Afghanistan, were always granted, his direct supervisor, Jacqueline Adler, frequently let him know his military service was a major scheduling inconvenience. However, she didn’t have the authority to terminate him.
After Hickle informed Adler that he couldn’t close as scheduled on a Thursday in June 2014 because he had weekend military orders beginning at midnight, she told him he “need[ed] to find another job.” Hickle then requested a meeting with Adler’s supervisor, general manager Tim Kalman, who was the highest-ranking manager at that location. During the meeting, Hickle gave Kalman a pamphlet explaining USERRA’s protections. Kalman, who had no training on USERRA, asked why Hickle was giving him the pamphlet, noting he had never been denied leave.
Hickle claimed Adler continued complaining about his absences and threatening to fire him. In April 2015, she went so far as to tell him that if he missed opening weekend for Avengers: Age of Ultron, he would be fired. When he reminded her of his USERRA protections, she allegedly replied that she would “find something else to terminate [him] on.”
Later that month, an incident AMC termed the “chicken fingers incident” occurred. In short, Hickle confronted two of his subordinates when they tried to take home more free chicken tenders than company policy allowed. The employees lost their temper, acting disrespectfully toward Hickle and cursing at him. Both eventually lost their jobs because of their behavior.
The day after the incident, a coworker told Hickle Adler was plotting to set him up for termination by persuading employees to complain about him to headquarters. Hickle began investigating the alleged plot. Two other employees, including one of the workers who was terminated for the chicken fingers incident, confirmed that Adler was hatching such a plot and wrote a statement for Hickle.
Importantly, because Hickle was kitchen manager, neither Adler nor Kalman could terminate him. That decision had to come from corporate headquarters. However, the chicken fingers incident led Kalman to request that AMC’s compliance manager investigate Hickle. During the investigation, Hickle informed the compliance manager about Adler’s comments and her plot to get rid of him. The compliance manager responded that such behavior was concerning, but if Hickle had never been denied leave, she wasn’t sure why it was relevant to the investigation.
When the compliance manager closed the investigation, she sent a corporate officer an e-mail setting forth a list of “substantiated” facts. The corporate officer decided to terminate Hickle based on the compliance manager’s e-mail, which contained references to his allegedly unprofessional behavior as well as an accusation that he had impeded the investigation.
Hickle filed suit, alleging AMC fired him in violation of USERRA. The federal district court granted summary judgment in favor of AMC and dismissed the case without a trial. The court found that because Adler and Kalman weren’t the decision makers, Hickle hadn’t provided evidence that his termination was due to any animus against members of the military. Hickle appealed that decision to the 6th Circuit.
Court of appeals’ decision
The 6th Circuit strongly disagreed with the district court. Finding the lower court didn’t look at all the facts in a light favorable to Hickle as required at the summary judgment stage, the court of appeals reversed the dismissal for three primary reasons.
First, the district court misapplied the “cat’s-paw theory,” which is intended to protect employees from individuals with a discriminatory intent who use impartial decision makers to unknowingly act out their hidden discriminatory intent. The theory works particularly well in stratified workplaces like the AMC theater, where direct supervisors don’t have the authority to terminate employees but are often the main, if not only, source of information provided to corporate decision makers. The court of appeals disagreed with the district court’s finding that Hickle was required to prove his case using the cat’s-paw theory.
Noting there was evidence the decision maker who terminated Hickle had actual knowledge that Adler had continuously made problematic comments to Hickle and had apparently instructed him to engage in some of the conduct for which he was being investigated, the 6th Circuit concluded a jury could find that her clear discriminatory motives weren’t hidden from the decision maker. The court found that information to be direct evidence of a discriminatory motive.
Second, the court of appeals found that Hickle presented direct evidence sufficient to establish a cat’s-paw claim, regardless of whether he had to. Evidence of Adler’s continuous comments about finding a reason to terminate him and then instructing him to do something that could get him fired was enough to survive summary judgment under the cat’s-paw theory.
Finally, the 6th Circuit disagreed that AMC’s approval of Hickle’s leave requests protected it from a USERRA retaliation claim. Essentially, the court found that Hickle put forth sufficient evidence that his military service was a motivating factor in his termination and that summary judgment in favor of AMC was improper. The court of appeals therefore reversed the dismissal of his claims and sent the case back to the district court for a trial. Hickle v. Am. Multi-Cinema, Inc., No. 18-4131 (6th Cir., June 20, 2019).
There are a handful of important takeaways from this case. First, make sure all employees, but especially supervisors at all levels, understand USERRA’s employer obligations and employee protections. Membership in the military is a protected category that garners far less attention than other protected categories like race, age, and sex. USERRA provides protection against retaliation beyond requiring employers to accommodate servicemembers’ need for military leave. Specifically, an employer will be found to have violated USERRA if an employee’s military service or affiliation was a motivating factor in an adverse employment action unless the employer can prove the adverse action would have been taken in the absence of the employee’s military affiliation.
Next, as always, take complaints of discrimination and retaliation seriously, and act swiftly. Hickle made numerous complaints about Adler that should have been taken into account before the termination decision was made. Instead, not only was she allowed to continue making inappropriate comments, but Hickle’s complaints about her were completely ignored during the internal investigation.
A termination decision won’t always be protected simply because it was preceded by an investigation or the decision maker was removed from the situation. Even when there’s no discriminatory motive for the termination decision, it’s always prudent to act cautiously if the employee is a servicemember or has ever complained about discrimination or retaliation. You may want to contact an employment attorney before making any employment decisions in that situation.