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:

1. Falsification of company records by under-reporting scrap
2. Harassment of and retaliation against one the employees she supervised
3. Violation of company safety policies on multiple occasions by driving an  uninspected personnel scooter and continually failing to wear a required safety vest, and
4. 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.