Trumped-Up Reasons For Termination Can Prove Retaliatory Discharge
August 21st, 2009 | Ellen Simon
When employees are fired for misconduct, employers often think that they have an airtight defense to any charges of wrongful discharge. But that’s often not so.
The case of Upshaw v. Ford Motor Company, decided last week by the Sixth Circuit Court of Appeals, brought this point home. 
What Happened In The Case
Here’s a brief synopsis of what happened in the case.
Carolyn Upshaw worked for Ford Motor Company in Michigan as a production supervisor for several years. In spite of the fact that she received excellent reviews, she was repeatedly denied a promotion.
In 2003, she filed a charge of race and gender discrimination with the Equal Employment Opportunity Commission. Upshaw alleged that Ford had “improperly promoted similarly-situated while male production supervisors to Salary Grade 7 while continually denying her the same promotion.”
She later filed two more EEOC charges alleging various retaliatory acts by Ford. In 2004, she filed a lawsuit. In 2005, Upshaw was fired.
In response, Upshaw filed an additional EEOC charge claiming that she was terminated in retaliation for filing her prior EEOC charges and filing a lawsuit.
Upshaw also amended her complaint to contain a claim for retaliatory discharge. All of her claims were filed pursuant to Title VII of the Civil Rights Act of 1964.
The district court judge threw out Upshaw’s case against Ford. Upshaw appealed, and the Court of Appeals found in her favor on her claim for retaliatory discharge.
Why The Lower Court Was Reversed
Ford claimed that it fired Upshaw for cause. These were the reasons the company gave to support the discharge:
- Falsification of company records by under-reporting scrap
- Harassment of and retaliation against one the employees she supervised
- Violation of company safety policies on multiple occasions by driving an uninspected personnel scooter and continually failing to wear a required safety vest, and
- Insubordination
Upshaw submitted proof that none of these reasons would warrant the termination of a supervisor on its own or together.
Upshaw presented evidence to prove that business reasons for the discharge were not true or not believable (what’s called evidence of “pretext”) Therefore, she contended, she should have been allowed to present her case to a jury. The Court agreed.
Evidence of Pretext
The Court had several problems with Ford’s justification for Upshaw’s termination, not the least of which was that other employees who engaged in the same misconduct were not terminated. As the Court put it:
As a threshold matter, Upshaw has established that two of Ford’s four proffered reasons for terminating Upshaw – safety violations and her failure to timely resolve union health and safety complaints – do not typically warrant any formal discipline at Ford’s Sharonville plant, let alone termination.
In addition, the charges which were raised because Upshaw allegedly was insubordinate when she failed to timely resolve union safety complaints in a timely fashion were neither valid nor true.
According to the Court’s opinion:
Ford employees testified that no supervisor could be expected to resolve nineteen health and safety complaints by a union representative within a twenty-four hour period, and that they did not know of anybody who has ever been disciplined or fired for failure to complete health and safety forms within 24 hours.
What’s more, the supervisor involved with the so-called insubordination testified that “she could never recall asking Upshaw to do something that she did not do.”
Finally, as to the incorrect scrap reports, the evidence showed that Ford had never previously treated misreporting scrap as a serious offense that would result in discipline or termination of a supervisor.
In sum, what you have in the case is evidence that employees who engaged in the same conduct as Upshaw were not disciplined or terminated. The other reasons given by Ford for the discharge were simply not credible or plainly false.
The Court’s Conclusions
Viewing the evidence presented by Uphsaw (in a light most favorable to her at the summary judgment stage as the rules require) the Court concluded that her case should not have been thrown out and Upshaw should be entitled to take her retaliation case to a jury.
This is some of what the Court had to say when it reversed the lower court:
Although Ford is entitled to terminate an employee for an actual violation of its internal policies, Upshaw has introduced evidence suggesting that these actual violations were nothing more than trumped -up charges.
The Court also said:
When an employer waits for a legal, legitimate reason to fortuitously materialize and then uses it to cover up his true longstanding motivations for firing the employee, the employer’s actions constitute the very definition of pretext
In addition, the Court also relied on its previous decision in Hamiliton v. General Electric, ((discussed in Employee Rights Post)) — a case in which the employee filed a charge of discrimination and was then fired for misconduct :
Plaintiff alleged that after he had filed an age-discrimination claim against GE with the EEOC, his supervisors intensified their scrutiny of his work and harassed him more that they ever had before.
GE terminated plaintiff when he allegedly engaged in “unacceptable conduct;” the parties disputed the details of the incident.
The district court granted summary judgment for GE but we reversed explaining that “a reasonable fact-finder could determine that GE waited for, and ultimately contrived a reason to terminate Hamilton to cloak its true, retaliatory motive for firing him.
Therefore since the jury could find that Ford’s reasons for the discharge were “contrived” following the filing of her EEOC charges and the filing of the lawsuit, Upshaw should — according to the Court — have a right to prove her case to a jury.
Lessons From The Case
This case is a huge help for employees who face charges of misconduct to mask a discriminatory or retaliatory motive for discharge under any civil rights statute.
When employees are not comparably disciplined for the same misconduct, or the reasons given for the discharge just don’t hold up to scrutiny, employers can find themselves in big trouble as far as liability for civil rights violations is concerned.
Employers need to watch out for trumped up charges that don’t hold up to scrutiny.
This article originally appeared in Employee Rights Post on August 16, 2009. Reprinted with permission by the author.
About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.
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Tags: discrimination, Ellen Simon, Ford, Gender Discrimination, Retaliation, Upshaw v. Ford Motor Company
August 24th, 2009 at 8:33 pm
I worked for a company for 11 1/2 years. When the company was being brought out they started using any excuse to reduce management. I the last 18 months with this company, we had 3 managers. When an audit was done I was scored low because I did not do a performance plan for my manager. I didn’t have a manager when this occured. Then when I missed an adjustment, I was fired. Was this right?
August 26th, 2009 at 5:46 pm
This may be just the loophole I have been looking for to try to present my case. From December 2008 until March 2009 I worked through a temp agency as a data entry operator. While there I developed an attraction to a woman who was also my lead for most of the time I was there. In mid-February I came clean and confessed this to her, but used no supporting adjectives(sexual, physical, etc.) We did have a good working relationship up until that point, but after that the relationship crashed to the point where she often didn’t acknowledge if I even said good morning or good night. I firmly believe she was put up to this and did not act of her own accord. It was five weeks later before I got the call saying that my assignment had ended and not to return the following day. A few days later I found out that a bogus email had been sent in my name, which I reported to the abuse department and received a claim number for. The woman at the agency, who nobody really likes, refused to believe me when I told her I didn’t sent that particular email. They fought to keep me from collecting unemployment benefits. I eventually won that battle when she was a no-show for the hearing. I believe that could have been a mind game in itself, figuring that if they at least allowed me that that I wouldn’t continue to fight back. Wrong! A month later I phoned her just to see if I was cleared so I could use this experience as a future reference. I was told in a real derogatory tone that the only reason I got off was because she was out sick that day. I told her I was going to appeal to the home office, which I did just to prove my credibility. The next day a woman from the home office phoned me and wanted some information about my case. I submitted more info via email, but within two weeks I got a curt note saying that they took appropriate action and consider the case closed. I then filed an appeal with the department of human rights which is still a work in progress. I believe they tried to pin me for sexual harassment, something which was never intended, and I refuse to believe that just telling someone you have an attraction for them is enough to qualify. I plan to pursue this further, but because of all the at-will employment stautes am wondering whether there is something else I can pursue my case under. I find it appalling that we continue to live under a mentality where impatience and less tolerance is the name of the game. I believe herein lies a saga of greed, betrayal and jealousy so thick that even a seasoned novelist would be challenged to write the story. I want to see that justice is served, as this was something I never saw coming. At the very least I want redress for the bogus email and at least get to explain my position. Am wondering where to go from here, and any leads to qualified sources would be appreciated. Thank you.
October 29th, 2009 at 4:44 am
Hello Ellen,
Thank you for taking the time to read this, I greatly appreciate.
your time an potential input or ideas.
This seems to be a newer issue not dealt with yet.Illegal Termination based on Unlawful Discrimination based on/with asociation of an disabled person,(myself).(Us 29 USC &1630.8.
Not alot of info found right now.
My husband filed through the EEOC based on “Illegal Termination based on Unlawful Discrimination based on asociation with a disabled person,(myself).(Us 29 USC &1630.8
My husband took his vacation days for my surgeries.
I can make a very strong, well documented case with receipts,events and calendar days wth all inplace. I also can give exact time his replacement (I was in ICU)(no openings knew of, no need to hire a new person)was hired 7-9 weeks prior to this situation.
My husband stood by my side.He has very excellent work morals and values and gives 125%.
I felt he actually put too much self pride and effort and it refelected.He liked what he did.He never took a sick day.But because I can and do go blind, he would ask a week or 2 in advance if he could take me to the doctor in another state and come in late,exchange days etc. and work another day
(Yes I legally qualify for ADA and have the documents)
My husband scheduled his vacation and used off days for any surguries or doctors appts for me.
He was let go based on a misappropriation of funds he had not seen, nor touched,he was in the back as chef.He was never notified there was a problem till the Front of the House Asss. Manager sai he was short (which still wasn’t my husband job description (I kept the company training manuals and procedures)Oddly the money strangly found its way to be correctly accounted for the following day.
He has been fully denied unemployment.
The EEOC has decided to expedite to mediation.
I know there is more to disclose and the mini novel has worn me out.
Thank you once again,I appreciate your time and any input>
Trish Jones
February 10th, 2010 at 12:45 am
I will make this as short as possible, I have workedfor the state for the past 10 years, with a flawless record. I work a swing shift” at night you work alone. I have been severly diabetic 40 years, with many other physical issues. I had been put out of work for a few nights, I was left work at night when it was never done before, it was dangerous and I had just started wearing an insulin pump when it had broken from working in tight spaces under desks, stripping electrical power. A man from hvac dept. was walking past and noticed me not moveing, he pulled me out and helped me. My sugar was so high my meter couldn`t read it. My docter put me out of work a few days, I called my boss told him what had happend. When I returned back to work I was on nights again, I was told the job I was on was saved for me. People heard me say I was sorry if I cant finish it all due to the fact I came in following my doctors apointment and he didnt want me to go in, due to the fact my sugar was 700 and he drew a lot of blood, for two doctors. I was attacked vicously, then I was set up to be fired, after I told him to stop discriminating against me.
March 31st, 2010 at 11:49 pm
The first thing i would like to ask is,will phone recordings w/ time and date stamps hold up in court? I’ve saved recordings of a supervisor telling me “NOT to turn my injury in as a comp claim” “DON’T tell anyone you was hurt at work” along with many many other saved messages.I was injured working on government property,hit by an elevator as a co-worker and myself was working under it. My supervisors would not do anything to help me,i must add it knocked me out for a bit and was in somewhat of a daze.I was able to report what happend after i came to and somehow was able to get out of the pit.I reported to my supervisor and the job-site superintendent,the superintendent told me”this is NOT to leave this room!”In really bad shape,feeling like i was in shock.I can clearly remember him telling me that and the statement just floored me!?I needed help REALLY BAD but in my condition and what the highest ranking boss told me i did’nt know what to do.They would’nt let me file a report,never checked on me,a few hours later i can remember being in so much pain thinking maybe my neck was broke.My co-worker in the pit with me,lucky for him hearing me get hit turning to see me being knocked to the ground was able to jump to safety on the other side of the pit.Two CHSO’s on-site that was’nt even around for what i’ve found out MUCH later was a HUGE DEAL and so much training needed to take place for my co-worker and myself being that neither one of us had ever worked on,with or under an elevator.A few hours went by and i was locked up tight,hardly able to get around or do much of anything for myself.My co-worker went many times to find the companys CSHO seeing that no one else was going to help me and i was unable to help myself.I told CSHO the best i could what happen,we went back into the office where i was told all the reasons why this injury could’nt be reported on-site,was told by the supervisor…AGAIN,NOT to say how or where i was injured.On the goverment property that is.Another co-worker was made to take me off base because they did not want the goverments CSHO to see me or find out what happend.Missed a few days,tried to work for a few weeks.With no idea how i made it to and from,i must add my co-worker(the one in the pit with me)and myself was shiped off to a diffrent job.I called the office to beg them if i could get some form of help,still unable to move any upper body parts,couldn’t lift anything and in unbelieveable pain.Just after i made the call tring to get some help i was fired?!I was the only one hurt and the only one fired.I worked for a company that used nor had any form of protocol,training,no one checked anyones training,i can go on and on about what they did’nt do much more easy to tell what they did do.NOTHING!Can anyone help me or give me some tips?