Marcial Avila worked for Jostens, Inc., a yearbook publisher, in its Topeka, Kansas, facility from 1995 until September 2003. His duties included counting yearbooks, packing them into boxes, and printing and affixing shipping labels. He is a legal resident of the United States but was born in Mexico and spoke Spanish as his primary language.
In February 2003, Avila’s supervisor, Jim Keeffe, issued him a warning for boxing 900 calendars without drilling a top hole in them as required. A few months later, in May, Avila received another warning, this time for failing to do quality checks on a shipment, kicking boxes, and glaring at a coworker. Avila disputed the allegations in the warning, so a meeting was held with Avila, his interpreter, Keeffe, a Jostens employee relations representative, and a union rep. During the meeting, Keeffe told Avila’s interpreter to be quiet and told Avila to “speak American.”
After the meeting, the union rep asked Jostens to remove the May 2003 warning from Avila’s record, asserting that Avila’s coworker didn’t see him kick any boxes or glare at another employee. The coworker later testified that contrary to the allegations in the May 2003 warning, he and Avila unpacked the boxes, then glued, repacked, and labeled them after another employee failed to glue them ? nothing more.
In August, Keeffe rated Avila’s work quality and attendance “exceptional” and gave him an “on target” rating in productivity and safety, with an overall assessment that his performance was “on target.” Nevertheless, on August 25, he suspended Avila for three days and gave him a pretermination warning for failing to follow special instructions on an order. The warning stated that any additional quality issues with his work during the next year would result in his termination.
On September 2, the union filed a grievance regarding Avila’s August 25 warning and suspension, asserting that the warning was unjust because the error was caught before the shipment was sent and Jostens didn’t discipline other employees who made worse mistakes.
On September 4, Keeffe assigned Avila to a different line with a different operator than the one he had worked with for four years. On September 9, seven days after the union filed its grievance, a different supervisor issued a second pretermination warning to Avila stating that an unnamed coworker had reported that Avila stood watching while another employee did all the work. The warning again stated that any further issues would lead to Avila’s termination. The union filed another grievance asserting that one of the employees who complained about Avila was new and the other had problems with a number of coworkers.
On September 12, Keeffe fired Avila, accusing him of failing to notice that a batch of 904 yearbooks had scratches on them during a quality check. The union filed a grievance stating that Keeffe threatened Avila and supervised him more than other employees and that no other worker, including the other box packer, was disciplined because of the scratches.
A line operator and the union rep later testified that Jostens’ usual practice would have been to blame the line operator or the whole group, not an individual packer. The line operator testified that scratched books were routinely shipped to customers.
Avila sued Jostens for national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The U.S. District Court for the District of Kansas dismissed his claims without a trial, and he appealed to the Tenth U.S. Circuit Court of Appeals.
Tenth Circuit’s Decision
National origin discrimination. On appeal, the Tenth Circuit focused on whether Avila presented evidence that Jostens’ nondiscriminatory explanation for his termination was pretext (i.e., acover-up) for discrimination on the basis of his Hispanic national origin. The court noted that an employee may show pretext by producing evidence of:
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons.
Avila argued that non-Hispanic employees were treated more favorably than he was when they violated the same type of work rules. The district court had rejected that argument because Avila failed to present evidence of a non-Hispanic employee with the same disciplinary record as his. The Tenth Circuit disagreed, calling the lower court’s ruling “circular rejection” of Avila’s argument. It explained that Avila’s claim was that he had a disciplinary record precisely because of warnings by Keeffe for minor errors based on his national origin. Non-Hispanic employees received no warnings for the same or similar errors.
Based on Keeffe’s May 2003 statement that Avila should learn to “speak American” and a line operator’s testimony that Keeffe twice said Avila should return to Mexico if he couldn’t speak English, the appeals court found there was circumstantial evidence that Keeffe had a discriminatory motive. The court said there was no appropriate work-related reason for his remarks since there was no evidence that Jostens required its employees to speak English or that Avila’s lack of English skills affected his job performance.
The court rejected Jostens’ argument that Keeffe’s remarks were isolated and unrelated to the termination decision, pointing out that one remark was made in a meeting to discuss a disciplinary warning and the other was made right around the time Keeffe fired Avila. The court found additional evidence of pretext, including:
- Jostens’ failure to investigate the union’s claim of discrimination by Keeffe;
- inconsistencies between the disciplinary actions taken against Avila and the company’s usual procedures; and
- the “vague and entirely subjective” allegation in Avila’s September 2003 warning that an unnamed employee had criticized his work ethic.
The court said that a reasonable jury could conclude from the evidence that the reasons Jostens gave for firing Avila were pretext for national origin discrimination.
Retaliation. Avila also claimed that Jostens retaliated against him for filing a union grievance alleging discrimination. Again focusing on the issue of pretext, the Tenth Circuit said that the district court “failed to view the evidence of pretext in its totality and failed to view the evidence in the light most favorable to Mr. Avila.”
The appeals court found it significant that immediately after the union filed its grievance on September 2, Avila was moved to a different line after four years working on the first line. Since the operator of the first line testified that Avila did great work, the court said that Jostens’ issuance of the postgrievance warning letter and pretermination letter immediately after Avila’s reassignment undercut the credibility of the company’s stated reason for his termination. The Tenth Circuit reversed the dismissal of Avila’s claims and sent the case back to the district court for a jury trial. Avila v. Jostens, Inc., 2009 U.S. App. LEXIS 6283 (10th Cir., Mar. 19, 2009).
Bottom Line
This case underscores the importance of (1) training to avoid discrimination claims and (2) taking prompt action to address discrimination complaints once they are made. Jostens apparently neglected to train at least one of its supervisors to be sensitive to potentially discriminatory conduct in the workplace and, in this case, to avoid blatantly biased comments in disciplinary meetings. It then compounded its error and created additional evidence to support Avila’s discrimination and retaliation claims by failing to investigate the union’s claim of discrimination.