The 8th Circuit recently reversed an Arkansas federal district court’s decision to dismiss a store manager’s sex discrimination claims. The appellate court indicated that a trial must be held to determine whether a district manager who allegedly made certain sexist comments to the store manager was a decision maker and, if so, whether the district manager’s comments could be direct evidence of discriminatory animus. 
Background
Donna Morrow was hired on February 9, 2007, to be a store manager at the Zales Outlet in North Little Rock. Sometime between late October and early November 2012, John Daugherty became her district manager. Daugherty reported to regional manager Kelly Williams.
In December 2012, Williams authorized Daugherty to inquire into Morrow’s managerial conduct. During the inquiry, Vera Mnatzaganian, Morrow’s coworker, reported that Morrow sent a text message to her stating “I hate those F___ing N_____s.” Based on Mnatzaganian’s statement to Daugherty, Williams initiated an HR investigation.
The investigation indicated that Morrow used her mother’s credit account to make purchases that resulted in her receiving approximately $600 in sales bonuses. HR asked the loss prevention department to conduct a separate investigation, which showed that Morrow had used the credit account without being an authorized user. Morrow disputed the findings of both investigations.
Even though she denied that she sent the racist text and wasn’t authorized to use her mother’s credit account, Morrow was terminated at the conclusion of the investigations. She then filed a lawsuit alleging sex discrimination under Title VII of the Civil Rights Act of 1964. She presented evidence that during her employment, Daugherty implied that she should step down because she is a single mother and told her on several occasions to consume more protein and “man up.”
The district court analyzed Morrow’s claims under the McDonnell Douglas burden-shifting framework, which required her to establish, among other things, that the justification provided by Zales wasn’t the true reason for her termination but her sex was. The district court dismissed her case, finding that she hadn’t proven the legitimate nondiscriminatory reasons Zales offered for her termination were a pretext, or excuse, for sex discrimination. Morrow appealed.
8th Circuit’s decision
On appeal, the 8th Circuit concluded that Morrow presented an issue of fact appropriate for trial about whether Daugherty was sufficiently involved in the decision to terminate her to qualify as a “decision maker.” The court reasoned that because the evidence showed he participated in the investigation leading up to her termination and he was the one who told her that she was terminated, he could be deemed a decision maker. Moreover, the court concluded that Morrow raised a question about whether he told her that she should step down because she is female and a single mom, and it’s “a man’s world” and she needed to “man up.”
The court explained that Daugherty’s status as a decision maker was important because if he made the alleged comments, they would serve as direct evidence of discriminatory animus. If there was direct evidence of discriminatory animus, the McDonnell Douglas burden shifting framework used by the district court wouldn’t apply to Morrow’s claim. Instead, a mixed-motive analysis would apply.
The court explained that under a mixed-motive analysis, once the employee demonstrates that an illegal criterion (like gender) was a motivating factor in the adverse employment decision, the employer may provide evidence to support a defense that it would have made the same decision absent the illegal criterion. The court further explained that the defense doesn’t absolve the employer of liability but does restrict the remedies available to the employee.
The court noted that direct evidence of discriminatory animus could be found even if the biased comments were made by an employee who wasn’t formally entrusted with decision-making duties but was closely involved in the adverse decision. Accordingly, the court reversed the district court’s dismissal of Morrow’s claim.
Bottom line
When an employee files a lawsuit alleging that she was terminated because of her protected class and there is evidence that a person in a supervisory role made comments about her protected class (e.g., her race or gender) and was involved in the decision to terminate her, the employer likely won’t be able to avoid liability no matter how valid its reasons for the termination are.
Stephen W. Jones is a partner at Jack Nelson Jones, P.A. in Little Rock, Arkansas. 
You may contact him at sjones@jacknelsonjones.com.