Martin v. Toledo Cardiology, No. 07-3724 (6th Cir. Nov. 21, 2008); Royall v. National Association of Letter Carriers, No. 07-7165 (D.C. Cir. Nov. 21, 2008)

By Paul Mollica

Another ride on the Sixth Circuit wheel-of-fortune — Judge Boyce Martin (a Carter appointee) joins with Judge R. Leon Jordan (district judge from E.D. Tenn.) to reverse summary judgment in an ADEA and Title VII case; Judge Alice M. Batchelder (Bush I appointee) dissenting. Also, the D.C. Circuit assumes jurisdiction over an appeal in a § 1981 case — despite a tricky question about e-filing — only to dump the case on the merits.

Martin v. Toledo Cardiology, No. 07-3724 (6th Cir. Nov. 21, 2008):  A senior employee runs afoul of new management, gets several write ups (such as about not showing up at a co-worker’s bridal shower) and — in the most damning incident — is believed to have uttered a racial slur about a patient.  Eventually she is fired for drafting a letter tha the CEO (Dr. Kabour) apparently deemed as blackmail because it challenges the safety of certain staffing decisions. 

While the district court granted summary judgment, the 2-1 majority reversed.  On the ADEA claim, the lower court found that the employee failed to make out a prima facie case.  But the majority points out what it regards as impermissible fact-finding by the district court judge:

“The court obviously accepted as true and completely relied on the defendant’s version of the racial slur incident. However, the circumstances surrounding this event are clearly in dispute. Plaintiff denied in her deposition that she made the racial slur. The record contains a declaration from a co-worker, Kimberly Bachmeyer, who was sitting at the table with plaintiff at the time the alleged incident occurred, and in that declaration Bachmeyer denies the remark was made as asserted by Dr. Alkhateeb and Dr. Kabour. Plaintiff explained in her deposition that when she was confronted by Dr. Kabour about the incident, he presented her with documents that she could sign, quit, or be fired. Plaintiff testified that she was single and helping to support her mother, so she needed the job. She signed the papers. However, in them she does not admit to making the specific ethnic slur. This was the first time in the 37 years of employment that plaintiff had been disciplined. Clearly, this was a decisive event; yet the district court does not reference the plaintiff’s deposition testimony or the co-worker’s declaration. Rather, the district court accepted completely the defendant’s version of the facts and made a factual finding inappropriate for summary judgment.”

The court also criticizes the level of exactitude that the district court imposed on the plaintiff for proving up a similarly-situated individual:

“the district court’s overly narrow and restrictive definition of similarly situated made it virtually impossible for plaintiff to make a prima facie showing. Plaintiff submitted evidence of alleged disparate treatment in the disciplinary context and in the context of her pay reduction. This  evidence may have been sufficient to establish a prima facie case of age discrimination if an appropriately framed similarly-situated standard had been articulated by the district court.”

On the Title VII retaliation claim, the panel majority again criticizes summary-judgment fact-finding and also application of the “honest belief” rule, which privileges even an erroneous decision by management provided that it had cause to believe it was true.  The majority finds that there was a substantial dispute over the facts of investigating the alleged racial slur: 

“to the extent the racial slur was a factor in plaintiff’s firing, there is a material issue whether a reasonable and informed decision was made. Although time had passed since that incident, there is a question how reasonable and thorough the inquiry had been. The Bachmeyer declaration reflects that even though she was sitting with the plaintiff at the time the incident allegedly occurred, no one from Toledo Cardiology approached her about what she heard or observed. However, Dr. Kabour did rely on the statement of Dawn Hook, one of his young favored employees, who maintained that plaintiff made the racial slur. A reasonable jury could infer from these facts that defendant did not make a reasonably informed and considered decision before terminating plaintiff on this basis.”

The dissenting judge, though, sets out in lavish detail both the alleged (and highly inflammatory) racial remark and supposed investigation that followed.  The dissent lays out the foundation for the CEO’s belief:

“Dr. Kabour testified at his deposition that he had received a written and signed accusation from Dr. Alkhateeb, whom he trusted; had inquired of three possible witnesses; and had confronted Ms. Martin herself. In addition to Dr. Kabour’s deposition, the record contains depositions by Dr. Alkhateeb and Ms. Hook, among others – though, notably, not Ms. Bachmeyer [who prepared a declaration denying that the slur was made]. Dr. Alkhateeb testified to his hearing Ms. Martin say the slur, reporting it to Dr. Kabour, and preparing and signing the written accusation to document the incident. Dr. Alkhateeb also testified that Ms. Martin had approached him later and apologized. Ms. Hook testified unequivocally that she had heard Ms. Martin say the slur, though Ms. Hook was not questioned about the ensuing investigation.”

Royall v. National Association of Letter Carriers, No. 07-7165 (D.C. Cir. Nov. 21, 2008):  A glitch in the e-filing system caused the plaintiff’s otherwise-timely filing of a notice of appeal not to register in the docket until months later.  The clerk entered the notice for the months’-earlier date, but the Union defendant argued that the clerk lacked the authority to repair the defect retrospectively and the late filing deprived the court of appeals of jurisdiction.  The panel rejects this argument holding that (1) the plaintiff did all that he was required to do by filing within 30 days, regardless of what happened at the courthouse; (2) the district court was authorized to “backdate” the notice to the date that the plaintiff actually filed it; (3) that while the courthouse software was functioning as an “agent” of the court, its failure to docket the notice was unauthorized by the rules.  The panel concludes:

“Accordingly, we hold that, pursuant to the federal rules, the electronic case filing system’s failure to docket Royall’s timely submitted notice of appeal cannot be treated as a failure on his part to file timely. His situation is akin to one in which the clerk’s office misplaces a filing and then later makes the docket entry when the filing is found. Where, as here, a notice of appeal is tendered to the clerk within the filing period, ‘any error regarding the filing of his notice of appeal must be charged to the court, not to him.'”

Yet having so held, the panel promptly dispatches with the merits. 

“Here, the Union has articulated a legitimate nondiscriminatory justification for terminating Royall’s employment, namely ‘a steady drumbeat of complaints about Royall’s job performance.’ Appellee’s Br. 19. Among other evidence, the testimony about Royall paying payroll taxes late, improperly entering W-2 information into the accounting software system, making the Union officers’ benefit payments late, and experiencing difficulties learning the accounting system substantiate the inadequate performance justification.”

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“Given the consistent testimony by several Union officers that they received complaints about Royall’s work and the undisputed evidence that at least two tax payments for which he was responsible were late, a reasonable jury could not find that the Union’s officers were lying, much less that the Union’s ‘stated belief about the underlying facts is [un]reasonable in light of the evidence.’ . . . Other than evidence that he and his African American supervisor were replaced by white employees, Royall provides no evidence of unlawful discrimination that the court may properly consider.”