The U.S. 8th Circuit Court of Appeals—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—recently reversed an Arkansas district court’s dismissal of a former employee’s retaliation claim against a grain company under Title VII of the Civil Rights Act of 1964, the Equal Pay Act (EPA), and the Arkansas Civil Rights Act.
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Should She Stay or Should She Go?
Oakley Grain operates facilities in Arkansas and Missouri. “Jim” is the president of the company, and “Mac” manages the Yellow Bend and Pendleton facilities in Arkansas.
Oakley Grain hired “Mariah” in August 2010 to work at the Yellow Bend facility in Arkansas City. Her duties included answering phones, weighing and grading grain, and performing payroll functions. When needed, she would report to the Pendleton facility. She worked primarily in an office or at the indoor controls of remotely controlled grain-measuring equipment.
However, Yellow Bend workers are expected to serve multiple functions, and she occasionally worked outdoors around grain elevators or barges. In 2011, 2012, and 2013, she received raises. Mac characterized her as a good employee with a good work ethic, and there was no evidence that she received poor reviews or was ever disciplined.
Mariah learned that her brother, an Oakley Grain employee at the Pendleton facility, had received “harvest and safety bonuses.” She understood that other employees also received such bonuses. On January 23, 2014, she e-mailed a letter to Jim in which she detailed her history with the company and complained that she hadn’t received bonuses and that new employees she was required to train were starting at a higher rate than she was paid. Regarding the bonuses, she wrote, “I see no difference in my position and the ones performed by the grain department at Pendleton[,] for example[,] except the fact that I am female.”
Under Oakley Grain policy, outdoor workers are eligible for safety bonuses, and workers at profitable facilities are eligible for harvest bonuses. Mariah argued that her duties included outdoor work; therefore, she should have been eligible for bonuses. Jim countered that the Yellow Bend facility had never been profitable and she wasn’t an outdoor worker.
About 10 minutes after receiving the e-mail, Jim forwarded it to Mac. He then called Mac, who took a moment to read Mariah’s complaint, and then discussed it with Jim. Mac said that during the call, he told Jim he was going to lay off employees to save money after they finished an intake of corn. According to Mac, the Yellow Bend facility was about to receive the final truckloads of corn from an outstanding order; he expected a work slowdown after the order was completed.
Approximately 2 hours later, Mac forwarded the e-mail to “Mario,” a grain merchandiser at a different facility. Mario almost immediately forwarded the e-mail to “Steve,” an operations manager and merchandiser at another facility. Mario and Steve had no supervisory role over Mariah and generally didn’t work with her. Mac later couldn’t remember why he sent the e-mail to Mario or why Mario would have forwarded it to Steve.
Mariah said the work atmosphere changed after her e-mail. On January 31, 8 days after she sent it, Oakley Grain terminated Mariah and four other Yellow Bend workers. The termination notices thanked the employees for their service, blamed the terminations on a lack of work, and indicated the company hoped to reemploy them in the future.
The notices didn’t instruct the employees to work the rest of the day or leave work immediately. Mariah’s notice stated, “It is with regret that I inform you [that you] are being laid off from your position as a grader and weighier [sic] effective January 31, 2014.” She left the facility after receiving the notice, but the other four workers stayed for the rest of the day.
In prior years, Oakley Grain had laid off seasonal outside workers at Yellow Bend because of work slowdowns. However, the company had never laid Mariah off. Further, the woman who preceded Mariah in the position had never been terminated with the seasonal workers.
Three of the terminated employees were temporary outside workers. The other two—Mariah and plant supervisor “Mark”—were “regular” workers. Oakley Grain admitted firing Mark at least partly because of performance concerns. Mac stated that Mark was a good worker but lacked the skills to serve in the maintenance-related job for which he was hired.
Oakley Grain didn’t suggest that it terminated Mariah for performance reasons. In a note to Jim, Mac reported that he had let Mark and Mariah go, but he didn’t mention the three other workers. In response, Jim asked, “Laid off?” Mac responded, “Yes.”
The following Monday, Oakley Grain hired back the three temporary outside workers. It also hired a replacement for Mariah, “Tammy,” who wasn’t licensed to weigh and grade grain and lacked Mariah’s experience. Oakley Grain admitted that Tammy issued grain receipts bearing Mariah’s name but blamed the computer system, which automatically generated the receipts and hadn’t been updated. In company e-mails, however, employees discussed the fact that Tammy actually forged Mariah’s signature on handwritten grain slips and that she misspelled Mariah’s name when doing so.
Mariah sued Oakley Grain, alleging wage discrimination and retaliation in violation of the EPA, Title VII, and the Arkansas Civil Rights Act. Oakley Grain claimed that a new contract for a grain delivery to Yellow Bend on the Saturday after Mariah’s termination created a surprising new demand for labor.
It contended that it rehired the three seasonal laborers but not Mariah because she alone failed to finish the workday on the Friday of the terminations. The district court ruled that a jury would believe the company’s version of the facts and dismissed Mariah’s claims. She appealed the dismissal of her retaliation claim.
8th Circuit’s Opinion
The 8th Circuit concluded Mariah met her burden to show there was a causal connection between her protected conduct (her letter complaining about unequal pay) and the adverse action (her termination and, possibly, the failure to rehire her). She was fired from her office job even though that position hadn’t been included in the seasonal layoffs in any of the 3 years she had worked for Oakley Grain (or during the years when her predecessor held the post).
Her work record contained no negative reviews, and Tammy was hired to fill the position the very next working day. The court also found it noteworthy that Tammy wasn’t licensed to grade grain and had forged Mariah’s signature on grain slips.
The 8th Circuit pointed out that temporal proximity also played a role in its decision. Jim forwarded Mariah’s letter to Mac upon receiving it and called him to discuss the letter even before he had a chance to view it. The court said a rational juror could infer that the two men decided to fire Mariah then—on the same day as her protected act. Even taking the day of termination as the date of the adverse action, the court said the delay of a mere 8 days was strong evidence of causation in light of the other evidence.
Although Steve reportedly called in the grain order on the Saturday after the layoffs and workers were needed to process the new order, Oakley Grain produced no contract to establish the timing of the “surprise” order. When asked about a written contract for a different order, Mac responded that Oakley Grain would have a contract. When asked about a written contract for the surprise order, he responded that there was none.
Further, the 8th Circuit noted that the fact that Steve was the merchandiser who purportedly secured the surprise order was material in light of Mariah’s argument that Oakley Grain was dissembling to hide a retaliatory motive. It was also significant because Steve was one of the people who received Mariah’s letter even though he lacked any supervisory authority over her and didn’t work at Yellow Bend.
Although seasonal outdoor workers generally would be laid off during the annual slowdown, Oakley Grain took the opportunity of the January 31 layoffs to fire Mark for performance reasons. According to the 8th Circuit, that showed the layoffs weren’t merely due to a postharvest slowdown. And after Mac had the layoff notices delivered, he reported to Jim that he had laid off Mariah and Mark but didn’t mention the seasonal workers.
The court believed a rational jury could conclude the motivation for terminating Mariah and Mark was different from the reason for laying off the seasonal workers. Because there was no evidence of poor performance or other possible reasons for Mariah’s termination, the court believed a reasonable jury could conclude that her protected act was the but-for cause of her termination.
Moreover, after Oakley Grain hired Tammy out of purported necessity to address the surprise order, she remained in Mariah’s position through at least July 2015. In the court’s opinion, that strongly suggested that Oakley Grain never intended to leave the office position unfilled, a conclusion that was wholly consistent with the company’s multiyear pattern of protecting the office position through seasonal layoffs of outdoor laborers.
The 8th Circuit believed a reasonable jury could conclude the employer’s Friday morning animus drove its Monday decision to replace Mariah instead of rehiring her. That was especially true in light of the absence of evidence suggesting any past discipline and the minimal nature of her supposed infraction (leaving the workplace upon being terminated when she hadn’t been asked to remain and the termination letter listed that day’s date as the effective date of her discharge). Accordingly, the court reversed the district court’s decision and allowed Mariah to present her case to a jury.
Bottom Line
When an employer’s termination of an exemplary worker deviates from its usual practice and comes soon after her protected conduct, her retaliation case probably won’t be dismissed before trial.
Steve Jones is an attorney Jack Nelson Jones & Bryant, P.A and an editor of the Arkansas Employment Law Letter. He can be reached at sjones@jacknelsonjones.com.