The benefits of an appeal or review committee

published in McAfee & Taft EmployerLINC | October 28, 2015

termination of employment

By Joshua W. Solberg

Retaliation claims are some of the most common employment-based claims that employers face. In 2014, the number of retaliation claims filed with the Equal Employment Opportunity Commission reached a record high – 37,955 charges (42.8% of all charges filed) contained allegations of retaliation. In Thomas v. Berry Plastics Corp., the federal appeals court that decides Oklahoma cases provided employers with a powerful tool in the defense against such claims – the independent review committee.

Factual background

Karry Thomas, who was African-American, worked as a printing technician for Berry Plastics Corporation from 2003 to 2010 at one of its Kansas manufacturing facilities. In May 2009, Thomas began reporting to a new supervisor, Jason Morton. Shortly after taking over the group, Morton suspended Thomas for a print quality issue. In light of the suspension and prior discipline, Thomas was issued a Last Chance Agreement, which stated that Thomas would be “subject to disciplinary action, up to and including termination of employment, for future rules or attendance violations.”

Later, Morton issued Thomas a final warning. The warning was issued because of Thomas’ alleged failure to pack product properly on July 27, and, similar to the prior discipline, indicated that Thomas’ employment would be terminated if he had any additional quality or performance-related issues. When Morton and two other company representatives met with Thomas to deliver the written warning, Thomas complained that he was “getting discrimination because of race,” maintained that he had packed the product properly, and complained the warning was not warranted. The company investigated the July 27 packing problem and ultimately rescinded the warning.

Thereafter, Morton submitted a report to his supervisor identifying yet another performance issue with Thomas. After reviewing the incident, and without consulting with Morton, the supervisor terminated Thomas’ employment. Before termination, Morton issued Thomas yet another written warning due to Thomas’ failure to complete paperwork. Shortly thereafter, the termination decision was carried out.

Berry’s company policy provided for a termination review, which is an appeal process available to employees in the case of involuntary terminations. Thomas took advantage of this process and argued that his termination was not warranted. The employer’s review panel, comprised of two Berry managers that were independent (i.e., not involved in Thomas’ employment), met with Thomas, reviewed the full disciplinary history, and upheld the decision to terminate Thomas.

Thomas’ retaliation claim

Thomas sued the employer, claiming it terminated his employment in retaliation for opposing racial discrimination in violation of Title VII and 42 U.S.C. § 1981. Thomas invoked a doctrine known as the Cat’s Paw Theory to argue that a biased subordinate who lacked decision-making authority (Morton) used his supervisor in a scheme to retaliate. To succeed on such a claim, Thomas had to show that Morton’s retaliatory motive translated into retaliatory actions that caused his supervisor to terminate Thomas. In other words, Thomas had to prove that, but-for Morton’s unlawful motive, Thomas would not have been terminated.

The benefit of the independent review panel — breaking the causal link

The Tenth Circuit Court of Appeals found it significant that the employer implemented a termination review process that reviewed and upheld the decision to terminate Thomas. The court thought it particularly meaningful that the panel: 1) began its review quickly (within two days of Thomas’ termination); 2) reviewed Thomas’ entire disciplinary file; and 3) most critically, interviewed Thomas and gave him an opportunity to share his side of the story.

Because of the independent termination review process, the court found that the “independent termination review process broke the causal chain between Morton’s purported retaliatory [motive] and Thomas’s termination.” It further held that the company’s “virtually immediate post-termination review process—which was designed to identify and unwind termination decisions that violated company practices and policies—sufficiently constrained any retaliatory [motive] that Morton may have possessed.” Unable to prove that Morton’s alleged unlawful retaliatory motive was the cause of Thomas’s termination, the court found in favor of Berry Plastics.

Consider implementing an independent review committee

An independent review committee, or any review or appeal process, if implemented and utilized correctly, can help employers to successfully defend against retaliation and other employment-based claims. While employers may not be able to shield themselves from retaliation claims altogether, a review or appeal process can prove powerful in defending against such claims.

  • Thomas v. Berry Plastics Corp., Case No. 14-310 (10th Cir. 9/25/15)