A recent retaliation/sexual harassment case, Young v. Bernhard MCC, LLC, No. 3:20-cv-00363, 2022 WL 1499700 (M.D.Tenn. May 12, 2022), presents an interesting and somewhat unique fact pattern.
Here, plaintiff Michael Young is plaintiff Robert Young’s father. Michael and Robert worked together at defendant Bernhard MCC, a construction company, until they were both fired on the same day. Plaintiff sue defendant under Title VII of the Civil Rights Act of 1964. Son Robert alleges he suffered employment discrimination in the form of sexual harassment at Bernhard; father Michael claims Bernhard fired him in retaliation for reporting the harassment that his son faced.
This decision rules on father Michael’s retaliation claim. It holds that father Robert presented both direct and circumstantial evidence of retaliation sufficient to survive defendant’s motion.
As to direct evidence, the court explained:
Michael has raised direct evidence of retaliation. He testified that he asked Mr. Wisor whether he was being fired for reporting his son’s sexual harassment. (Doc. No. 85-3 at 81–83). According to Michael, Mr. Wisor responded affirmatively. (Id. at 81). This testimony, if believed, Abbott, 348 F.3d at 542, requires the conclusion that retaliation motivated Michael’s termination. Indeed, being fired for reporting sexual harassment is a classic textbook example of unlawful retaliation. Grizzard, 2021 WL 3269955, at *19 (“The Court finds that … evidence of Mathis’ statement that Plaintiff was terminated because she was a ‘liability’ due to her sexual harassment complaint is direct evidence of retaliation against Plaintiff.”); Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 648 (6th Cir. 2015) (finding direct evidence of retaliation where a supervisor “specifically referenced [the plaintiff’s] protected statements as examples of insubordination” when terminating the plaintiff).
Bernhard’s argument that Michael’s testimony does not count as direct evidence is unavailing. Bernhard points out, correctly, that evidence is not “direct” if it “admits more than one plausible interpretation, and requires a significant inference or presumption on the part of the trier of fact.” (Doc. No. 81 at 19 (quoting Grizzard, 2021 WL 3269955 at *17)). Bernhard then argues Michael’s conversation with Mr. Wisor is subject to more than one plausible interpretation. (Id.). Specifically, Bernhard avers one could interpret that conversation to mean Mr. Wisor fired Michael for making a report about improper welds, as opposed to firing him for making a report about sexual harassment. (Id.).
For the Court to agree with Bernhard, it would have to ignore the standard of review applicable at the summary judgment stage. In Michael’s deposition, he testified that when he asked Mr. Wisor whether he was “being fired for making that report,” he specified that he was referring to the report about “[his] son.” (Doc. No. 85-3 at 81–83 (“I feel confident I said ‘my son.’ … There wasn’t no question — there wasn’t no question as to what — what the reason was between us because we went into detail talking about it for a few seconds there. I said — so I said, ‘So I’m being fired for filing a report for my son being sexually harassed against?’ ”)). As noted, Mr. Wisor allegedly responded, “Yeah. That’s pretty much it.” (Id. at 81). Accepting Michael’s testimony about his conversation with Mr. Wisor “as true,” and viewing it in the “light most favorable” to Michael, Laster, 746 F.3d at 726, the Court cannot interpret that conversation to mean Mr. Wisor fired Michael for making a report about improper welds. Michael’s testimony is subject to only one plausible interpretation and constitutes direct evidence of retaliation.
Because Michael has presented direct evidence of retaliation, the Court can only grant summary judgment if Bernhard has shown that no reasonable jury “could fail to find by a preponderance that [Bernhard] would have [fired Michael] absent [retaliatory] motive.” Grizzard, 2021 WL 3269955, at *20. It has not. Bernhard claims it would have fired Michael no matter what based on Mr. Wisor’s testimony that “he decided to terminate [Michael’s] employment because of the constant disruption he caused on the job site and the confrontation[s] that he had with multiple employees.” (Doc. No. 91 at 4 (citation and quotation omitted)). However, in his deposition, Mr. Wisor had difficulty recalling the details of these alleged confrontations. (Doc. No. 79-3 at 57 (“Q: All right. That’s one [confrontation], Rodney Clark. And it happened at some unknown time and place about an unknown subject, correct? A: That’s correct. That’s correct.”)). Accordingly, a reasonable jury could discredit Mr. Wisor’s testimony that the alleged confrontations motivated him to terminate Michael. It could choose to believe Michael’s version of events instead. Michael’s claim passes summary judgment based on the direct evidence of retaliation that he has offered.
As to circumstantial evidence, the court explained:
First, the Court disagrees with Bernhard’s argument that Michael has not presented a prima facie case of retaliation because he “cannot show that he engaged in Title VII protected activity.” (Doc. No. 81 at 2). Michael testified that he reported the sexual harassment of his son to Mr. Moore around a week before he was fired. (Doc. No. 85-1 at 8; Doc. No. 85-3 at 69). Bernhard does not appear to dispute this testimony.2 The Court need not go any further; Michael’s uncontested testimony about his conversation with Mr. Moore is sufficient, at this stage, to show Michael engaged in protected activity.
Second, the Court rejects Bernhard’s argument that Michael’s prima facie case fails because he “cannot show that the individual who made the decision to terminate his employment knew about his alleged protected activity.” (Doc. No. 81 at 2). Mr. Wisor made the decision to terminate Michael. (Doc. No. 79-3 at 35). According to Michael, during the termination meeting, Mr. Wisor said he was firing Michael because he reported his son’s sexual harassment. (Doc. No. 85-3 at 81–82). True, Bernhard has introduced conflicting testimony from Mr. Wisor. (Doc. No. 91 at 3 (citing Mr. Wisor’s deposition and stating he “has denied that he had any knowledge of any complaints of sexual harassment by Michael or Robert Young”)). But that is immaterial. The Court “may not make credibility determinations nor weigh the evidence” at this stage. Laster, 746 F.3d at 726. Accepting Michael’s evidence as true and viewing the record in his favor, id., indicates Mr. Wisor was aware of Michael’s protected activity.
Finally, the Court is not persuaded by Bernhard’s argument that Michael cannot show its proffered reason for firing him was pretextual. (Doc. No. 81 at 2). To pass summary judgment, a plaintiff need only present evidence sufficient to “rebut, but not to disprove, the defendant’s proffered rationale.” Blair v. Henry Filters, Inc., 505 F.3d 517, 532 (6th Cir. 2007). Michael has rebutted Bernhard’s proffered rationale—which is that Michael caused disruptions on the job site—through his testimony about Mr. Wisor’s statements during his termination meeting. (Doc. No. 85-1 at 10; Doc. No. 85-3 at 74). Michael has also presented evidence that his termination occurred around a week after he first reported his son’s sexual harassment. (Doc. No. 85-1 at 8; Doc. No. 85-3 at 69). This is significant because “suspicious timing is a strong indicator of pretext when accompanied by some other, independent evidence.”
Based on the foregoing, the court denied the defendant-employer’s motion for summary judgment.