NATIONAL ORIGIN DISCRIMINATION

'Binding' case shows evidence of discrimination, retaliation

If the following decision from the Tenth U.S. Circuit Court of Appeals (which covers Utah as well as Kansas) isn't a textbook case of national origin discrimination and retaliation, it certainly qualifies as a "yearbook" case of national origin discrimination and retaliation and is worth remembering. Read on to discover why the Tenth Circuit sent the case back to the district court for a trial on all claims.

'Thrilla' in Avila

Marcial Avila, who is Hispanic, worked for approximately eight years in the bindery department of Jostens, Inc., a yearbook publisher in Kansas. His job duties included counting yearbooks, packing them into boxes, printing labels, and affixing the labels onto boxes for shipping. Avila was born in Mexico and had only a limited understanding of English.

Avila's supervisor was Jim Keeffe. In 2000 and 2001, Avila received a few warnings about the quality of his work. However, in 2002, he received no warnings and was rated as "on target" in all areas by Keeffe.

In 2003, Avila received several warnings about his job performance. One incident involved boxing 900 calendars without first drilling a top hole in them. In a second incident, he allegedly failed to do quality checks on a shipment, kicked boxes, and glared at a coworker. Avila contested the allegations in the second warning and met with Keeffe, a Jostens' employment relations representative, a union representative, and an interpreter.

During the meeting, Keeffe told the interpreter to be quiet and told Avila, "This is America. . . . [Y]ou need to speak American" or "speak English." Later, coworkers said they overheard Keeffe state, "If you don't speak English, go back to Mexico." One coworker recounted that the incident with Avila resulted when another employee failed to glue the books together. Avila had fixed the problem by unpacking the books, gluing them, and then repacking them for shipment. He also said that Avila had not kicked any boxes.

The union rep sent Jostens a letter containing the coworker's account of the incident and a statement that the discipline against Avila was discriminatory and should be removed from his record. Jostens conducted no investigation into the allegations in the letter or the claim of discrimination.

Despite receiving a positive performance evaluation a few months later, Avila received another warning for failing to follow special instructions regarding the boxing and shipping of an order. Although he claimed that the warning resulted from a minor error that took him only an hour to fix, Jostens suspended him from work for three days and told him that any further quality issues within the year would result in his termination.

Soon after, the union filed a grievance on Avila's behalf. It claimed that the warning and suspension were unjust because (1) the error was caught before the shipment left Jostens, (2) other workers made worse mistakes without any disciplinary action taken against them, and (3) Avila should have received coaching rather than a suspension. The grievance also claimed that Keeffe had repeatedly discriminated against Avila based on his national origin.

Just two days after the grievance was filed, Keeffe assigned Avila to work on a different line with a different operator than the one he had worked with the previous four years. Several days after that, Keeffe issued another pretermination warning, stating that an unnamed coworker had expressed concerns about Avila's willingness to work and that Avila expected the coworker to do all the work while he stood watching. The union filed another grievance, claiming that the most recent warning was based solely on Keeffe's dislike of Avila and that Keeffe went out of his way to create a hostile work environment and to discriminate against Avila based on his national origin.

Three days later, Keeffe fired Avila, stating in the termination letter that Avila had failed to notice during his quality check that a shipment of 904 yearbooks was bad and that he had failed to improve his job performance despite previous warnings. The union again filed a grievance on Avila's behalf. The grievance stated that all of the yearbooks had scratches on them from the beginning, leading the union to believe that they had been printed that way, which was not Avila's job.

Ultimately, Avila sued Jostens in federal district court for national origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed both claims without a trial, and Avila appealed to the Tenth Circuit.

Pretext in the books

The Tenth Circuit reexamined whether Avila had shown sufficient evidence of pretext to warrant a trial on his claims. An employee need not demonstrate that discriminatory reasons motivated the employer's action to avoid dismissal. Instead, he need only make out his basic case and present sufficient evidence that a reasonable jury could find that the employer's proffered nondiscriminatory reasons are worthy of disbelief.

The Tenth Circuit determined that the district court was wrong in deciding that Avila hadn't shown sufficient evidence of pretext. Avila argued that non-Hispanic employees were treated more favorably than he was for violating the same type of work rules. The district court had rejected that argument because Avila hadn't shown that any non-Hispanic employees had the same disciplinary record that he did.

However, the district court was mistaken in its circular rejection of Avila's argument. The Tenth Circuit recognized his contention that the only reason he even had a disciplinary record was because Keeffe had issued warnings to him for minor errors, which wasn't the case for non-Hispanic employees making similar errors. It also acknowledged that Avila had presented evidence of disparate treatment, including:

• a statement from the union that other workers made worse mistakes without any disciplinary action;
• testimony that it was Jostens' usual practice to blame the line operator or the whole group when an entire run of books was defective, not just the boxer who failed to notice scratches;
• testimony from a coworker who was working the same machine as Avila the day the books were scratched and wasn't disciplined;
• testimony that it was routine practice for Keeffe to authorize the shipment of books with scratches;
• testimony that Jostens never investigated the union's allegations that Keeffe was acting out of discriminatory animus; and
• the union president's testimony that (1) the union found no factual support for any of the warnings issued to Avila, (2) Keeffe constantly watched and supervised Avila, and (3) Avila had never had any quality issues before Keeffe came to Jostens.

The Tenth Circuit also found that Avila presented evidence of pretext by producing a positive work evaluation he received just a few weeks before he was discharged. Based on the argument that (1) Keeffe supervised and disciplined Avila more severely than he did non-Hispanic employees, (2) he made derogatory remarks about Avila's national origin contemporaneously with his disciplinary and termination decisions, and (3) some of Avila's warnings were inconsistent with Jostens' usual policies and practices, the court concluded that a reasonable jury could find Jostens' reason for terminating Avila unworthy of belief. Avila v. Jostens, Inc., 2009 U.S. App. LEXIS 6283 (10th Cir., Mar. 19, 2009).

Yearbook memories

Reviewing an old school yearbook inevitably invokes memories, good and bad. If Jostens were to compile a yearbook of its experiences in this case, what would stand out? Certainly, it would have numerous regrets. Perhaps the biggest regret would be that one of its supervisors made what can be interpreted as a derogatory comment about an employee's national origin at a disciplinary meeting. Discriminatory comments are an invitation for trouble ― especially during a disciplinary meeting.

Another regret would be that the company never investigated the union's complaints of discrimination. Also, the timing of Avila's reassignment to a new line and his subsequent termination immediately after the union had filed grievances on his behalf were simply horrendous ― like a yearbook picture of someone with puffy hair and horn-rimmed glasses. While Jostens paid dearly for the yearbook memories in this case, avoiding obvious errors in your employment decisions may lead to a nomination for "most likely to succeed."

Copyright 2009 M. Lee Smith Publishers LLC

The contents of the UTAH EMPLOYMENT LAW LETTER are intended for general information purposes only and should not be construed or relied upon as legal advice or a legal opinion on any specific facts or circumstances. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.