Discrimination Survives, Retaliation Fails - 5th Circuit

We have become so use to talking about cases where an employer wins the discrimination claim but loses on retaliation that it is almost shocking to see the reverse. But that's one of the "great things" about employment law — almost anything can happen.

Which is probably what the folks at Dr. Pepper are thinking after reading today's opinion from the 5th Circuit in Burrell v. Dr. Pepper/7 Up Bottling Group (5th Cir. 3/20/07) [pdf].

When Burrell was passed over for the position as Vice President of Purchasing, even though having served well as what the 5th Circuit called the "stopgap vice president" until a new VP was brought on board, he felt as if perhaps the decision was based on his race.

In fact he shared with his superior a copy of the book, Roberts v. Texaco: A True Story of Race and Corporate America, and two articles detailing the class action lawsuit brought against Coca Cola, saying he felt his experiences at Dr. Pepper mirrored those of the plaintiffs in those cases. Still he continued with the job, earning not only a raise, but a bonus and an invitation to an annual meeting of high achieving employees.

But when the new VP arrived, so did problems between the two of them. It culminated in a lengthy review of Burrell's performance, done at his request, to which he wrote a lengthy 3 page rebuttal. According to the 5th Circuit:

The performance evaluation response authored by Burrell begins by characterizing Koester's [the new VP] initial evaluation as an inappropriate and unprofessional attack and questions Koester's ability to give an accurate evaluation. The response goes on to attribute the negative review to Koester’s “biased perception” of Burrell’s on-the-job performance. Throughout his response, Burrell accuses Koester of being ill informed and unqualified to critique his performance.

While the response includes significant supporting facts and examples, Burrell made clear his lack of respect for Koester's authority, asserted no responsibility for their bad relationship, and made no provisions for future changes. Both the evaluation and the response demonstrate the failed working relationship between Burrell and Koester. Notably, neither document contains any mention of a racial or retaliatory basis for their disagreements.

On the same day that rebuttal was delivered, Burrell was terminated.

In the suit that followed, the district court granted summary judgment for Dr. Pepper on both the discrimination claim for failing to select Burrell as the new VP of Purchasing and retaliatory termination for his protected activity.

Today's result — summary judgment on retaliation, affirmed; summary judgment on discrimination on the promotion claim, reversed.

Although the result — retaliation losing, while discrimination wins - is unusual, more attention will probably be directed to the discrimination claim as the Court explains what it was that led it to believe that Burrell had established a triable issue on pretext. The Court gives its views of how the evidence, including what it believed to be shifting explanations for the hire, gave rise to a triable issue of fact.

One thing that caught my eye is the importance the court attributed to consistency of the company's explanation:

While Dr. Pepper offers an explanation for the difference between the reason for promoting Koester over Burrell it offered to the EEOC (“purchasing experience”) and the one offered to this court (“purchasing experience in the bottling industry”), its brief does not attempt to explain how either explanation is consistent with its arguments to the district court which were framed in terms of Burrell’s insufficient “bottling” experience.

Although you can see the difference, there is also a lot of similarity in those three phrases:

• purchasing experience,
• purchasing experience in the bottling industry,
• Burrell’s insufficient “bottling” experience

While the Court gives additional reasons for its holding, when you consider the number of times that you could be potentially be called upon to explain the reason for a termination -

• to the employee,
• unemployment proceedings,
• EEOC or state agency,
• district court pleadings and discovery
• and appellate briefing

the potential chance of damage caused by a lack of precision or a subtle change of emphasis are enough to get an employer's attention.

While Burrell's discrimination claim may still be alive, it is not to say it didn't take a hit as well. Given a now legitimized termination, it would seem at a minimum that even assuming that liability could be established, which of course is by no means certain, a large element of economic damages, would seem to have gone disappeared along with the retaliation claim.