Same Actor Inference
10TH CIRCUIT USES SAME ACTOR INFERENCE IN RACE/RETALIATION SUIT
In the case of Antonio v. The Sygma Network, Inc., No. 05-1374 (CA 10 2006), the Tenth Circuit Court of Appeals held that the plaintiff’s evidence going towards pretext was not enough to overcome the employer’s hiring, rehiring, and eventual firing of the plaintiff by essentially the same group of supervisors.
Gladys Antonio, a black female from Zimbabwe, worked for the Sygma Network, Inc., as an accountant in approximately 2000. Antonio was originally hired by an interview team that included accounting supervisor, Dena Johnson. Antonio worked for Sygma until her work visa expired in December 2000. After obtaining permanent resident status in March 2001, Antonio applied with Sygma again and was rehired, with the approval of Johnson.
Several weeks later, Johnson approached Antonio and indicated that Antonio had offensive body odor and “believed it had to do with [Antonio's] culture.” Feeling “alienated” and “very harassed,” Antonio made a complaint with Human Resources at Sygma. A human resources representative made Johnson’s supervisor aware of the comment and “coached [Johnson] on being more aware of sensitivities to that area of race, national origin, or any other areas of discrimination.” Unhappy with such discipline, Johnson acted cold towards Antonio and avoided speaking with her for several weeks.
Almost three months later, all seemed well again as Johnson gave Antonio a positive annual job evaluation, rating her overall performance as “equal to or somewhat better than the standard for the position.” The admiration was not one-sided as Antonio wrote in her self-evaluation that “[Johnson] has been an excellent source of training and assistance. There is no limit to the amount of help and clarification that she is willing to provide, and as a result I have learned a great deal from her.”
Ten months into her second run of employment with Sygma, Antonio took a vacation back to her home country of Zimbabwe. Despite being scheduled to return to work on December 31 (which also marked the beginning of the accounting department’s busy “quarter close” week, Antonio was not able to return because of delays resulting from her and her husband’s immigration documents. Antonio called in on December 29 and 31 to provide updates of the situation and indicated that she would call in with more updates; however, because of malfunctioning international telephone lines, she was unable to do so.
On January 4, Johnson had a meeting with other members of the personnel committee and concluded that Antonio’s failure to continue with the updates of her plight amounted to job abandonment. Sygma sent a correspondence to Antonio that day (presumably to her U.S. address) indicating: “Due to the fact that we have not heard from you in the last 4 days we are considering your position abandoned and your lack of communication a resignation from your position.” Antonio returned home on January 11 to learn that she had been terminated. About a month later, Sygma had filled her position with a white, U.S. born applicant.
Displeased with Sygma’s “welcome back” letter, Antonio sued Sygma for (1) race and national origin discrimination in violation of 42 U.S.C. section 1981; (2) race and national origin discrimination and retaliation in violation of Title VII; (3) promissory estoppel; and (4) breach of the covenant of good faith and fair dealing.
After a period for discovery, Sygma moved for summary judgment. The district court ruled in favor of Sygma on the motion, determining that no causal connection existed between Johnson’s negative remark and Antonio’s termination and that Antonio’s failure to return to work was a legitimate, non-discriminatory, as well as, non-pretextual reason for terminating her employment due to job abandonment.
The Tenth Circuit Court of Appeals began its analysis by setting for the elements of a retaliation claim: “To establish a prima facie case of retaliation, Antonio must show that (1) she engaged in protected opposition to discrimination; (2) she suffered an adverse action that a reasonable employee would have found material; and (3) there is a causal nexus between her opposition and the employer’s adverse action.”
It continued in its analysis: “An employee ‘may establish the causal connection by proffering evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.’ Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40 (10th Cir. 2004) (quotation omitted). But ‘[u]nless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation.’ O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).”
Antonio’s evidence that she was terminated in retaliation for complaining about Johnson’s remark consisted of (1) deposition testimony that members of the personnel committee knew that Antonio liked her job and had been trying to leave Zimbabwe to return to work; (2) Johnson’s deposition testimony that she would not rehire Antonio; (3) Sygma’s failure to employ progressive discipline instead of termination; (4) Sygma’s reliance on job abandonment when there was purportedly no written job abandonment policy; (5) Sygma’s use of different discipline for “white and American-born” employees; and (6) Sygma’s purported failure to give Antonio an opportunity to explain why she had not called as promised from Zimbabwe.
The appeals court felt that such proof was not evidence establishing a causal connection between Antonio’s complaint concerning Johnson’s comment and her termination nine months later. The court of appeals focused on testimony from three other members of the personnel committee indicating that they would rehire Antonio if she applied for a position for which she was qualified. Such a termination committee may serve employers well in watering down any potential discriminatory animus of a single member.
And although Johnson indicated that she would not rehire Antonio, the reviewing court felt that a causal connection between the complaint and later termination would be speculative given the warm compliments the two had for each other three months later as reflected in Antonio’s evaluations as well as the nine months that passed from the complaint and Antonio’s eventual firing.
Antonio’s other challenge on appeal concerned the district court’s ruling that Sygma’s reliance on job abandonment was not a pretext for discrimination. Here, the reviewing court emphasized the fact that some of the same individuals that had hired Antonio on two occasions were part of the termination decision: “It makes little sense to deduce that these individuals terminated Antonio roughly ten months later because of her race and/or national origin.”
The appeals court took the opportunity presented by the instant case to join the several other circuits that recognize the same actor inference. Specifically, in cases where “the employee was hired and fired by the same person within a relatively short time span,” there is “a strong inference that the employer’s stated reason for acting against the employee is not pretextual.” The court emphasized, however, that “[t]he plaintiff still has the opportunity to present countervailing evidence of pretext,” and that “same actor” evidence gives rise to an inference, rather than a presumption, that no discriminatory animus motivated the employer’s actions.
The court considered Johnson’s remark concerning culturally based body odor to be an isolated remark and not probative of race discrimination as Antonio could not tie the remark to the employment decision. The court looked at Antonio’s other evidence of pretext showing a lack of minority employees within the company as not relevant to her individual claim of racial discrimination.
In this case, it seems that Antonio was doubly cursed as she was hired and later rehired by many of the same individuals who later determined to terminate her employer. Such facts weigh heavily against a finding of discrimination.