The Employer's Legal Resource: Insulating the Employer from the (Possibly) Biased Supervisor


Mr. Thomas worked for Berry Plastics from 2003 to 2010. In that time he had eight different supervisors who issued at least thirteen different disciplinary actions against him ranging from verbal counseling to written warnings to suspensions to a last chance agreement to his termination.

The events in this story involve his group leader Jason Morton. Now, Morton was the group leader and did not have final decision-making authority on matters of discipline, but he did have input. Thomas believed that Morton had it out for him.

In July 2010, Thomas was suspended based upon reports of quality issues by Morton.

The manager Mr. Watson reviewed the situation along with prior disciplinary actions issued by other supervisors and decided to issue a Last Change Agreement to Thomas. (Morton was not involved in the Last Chance Agreement.) This Last Chance Agreement stated that Thomas was "subject to disciplinary action, up to and including termination of employment, for future rules or attendance violations."

Shortly thereafter, Morton acting with Berry Plastics' HR department issued Thomas a Final Warning letter regarding a July 27 event with similar language advising that his job was in jeopardy if he were to break any more rules. In the meeting where this letter was given to Thomas, he said he had done nothing wrong but raised issues of race discrimination. Upon further investigation, the company in fact found the performance issue was not due to Thomas and rescinded the Final Warning Letter.

On September 10, Morton made a report to Manager Watson that Thomas had had another print-quality issue. Without further consultation with Morton, Watson decided to fire Thomas.

Meanwhile (and before the termination was communicated), Morton and a supervisor decided to (and did) issue a written warning to Thomas about the incident.

Shortly after that written warning was given to Thomas, he was fired.

Thomas immediately appealed his termination through the Company's "termination review process" which is comprised of two independent managers who review the case. The Termination Review Panel affirmed his termination. Thomas sued.

Thomas claimed he was fired in retaliation for claiming race discrimination. He claimed that Morton had animus towards him and poisoned Watson (who was undeniably the decision-maker).

In finding the company was not liable for retaliation, the Court noted two things. First, the Court found it important that Thomas had been given the opportunity to present his side of the story. The company had not simply fired Thomas on Morton's word without asking him about the events.

"Indeed, we have held that simply asking an employee for his or her version of events may defeat the inference that an employment decision was discriminatory, as such an inquiry demonstrates that 'the employer has taken care not to rely exclusively on the say-so of the biased subordinate.'"

Second, the Court found it important that the company had given him an independent review. In other words, even if one could argue the original decision were tainted by Morton, the fact that it was reviewed (very close in time to the termination) by two independent managers gave credence to the company's argument that it was not biased by any alleged animus on Morton's part.

"It is well-established in this Circuit that an employer can 'break the causal chain' between the biased subordinate's unlawful actions and the adverse employment action by independently investigating the allegations against the employee."

The Court found it need not decide whether Morton was (or was not) biased because the actions of the Company in this case protected itself against any bias Morton may have had.

As many decision-makers must rely upon the recommendations of subordinates when making termination decisions, these are points to consider. You may not know today whether the person being fired may later claim the subordinate is biased. If that were to happen, could the person claim you were simply hoodwinked? To protect the integrity of the decision, do you need to investigate the situation, talk to the employee, or have an independent review of the situation? You might want to give it some thought.

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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