Subordinate employee exercising substantial influence on employment decision is a "decisionmaker" for mixed-motive analysis

Law Reporter, Apr 2003

EMPLOYMENT LAw

Subordinate employee exercising substantial influence on employment decision is a "decisionmaker" for mixed-motive analysis.

Hill v. Lockheed Martin Logistics Mgmt., Inc., 314 F.3d 657 (4th Cir. 2003).

The Fourth Circuit Court of Appeals held that a subordinate employee may be considered a decisionmaker in analyzing a plaintiff's claim of mixed-motive discrimination if the employee has a substantial role in the employment decision.

Here, Hill, 58, worked as a sheet metal mechanic at Lockheed Martin. Fultz, a safety inspector, made derogatory comments about Hill's sex and age. Hill was terminated by managers who did not work at her worksite, on the basis of information provided by Fultz. Hill was replaced by men who were significantly younger than she.

Hill sued her former employer, alleging wrongful discharge on the basis of sex and age in violation of Title VII, among other claims. The trial court granted defendant summary judgment, holding that Hill had not provided any direct evidence of discrimination because Fultz-whose derogatory statements about Hill's age and sex were in evidence-had not made the decision to terminate Hill. Hill appealed.

Reversing, the Fourth Circuit noted that plaintiffs may bring intentional discrimination claims under either of two theories. In a "pretext" case, where plaintiff alleges discrimination and the employer puts forth a nondiscriminatory reason for the employment action, the plaintiff may submit circumstantial evidence of discrimination. In a "mixed-motive" case, where plaintiff alleges that discrimination was one motivating factor in the defendant's employment decision, plaintiff must submit direct evidence of the discrimination.

The court noted that derogatory remarks may constitute direct evidence of a discriminatory attitude in the workplace, but said that courts must consider the source of the remarks. In the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a concurrence stated that one must distinguish between "decisionmakers" and "nondecisionmakers" in the workplace. Comments made by nondecisionmakers cannot constitute direct evidence of employment discrimination.

The court here rejected defendant's contention that Fultz was not a decisionmaker because he did not have the authority to make the final decision with respect to terms of employment. If direct evidence of discrimination were limited to statements and actions of formal decisionmakers, the court said, the analysis would overlook discrimination by subordinates who are actual decisionmakers-those who, like Fultz, lack formal authority but who nevertheless exercise substantial influence in employment decisions.

A subordinate who exerts substantial influence over an employment decision can taint that decision with personal bias, the court continued. Employers could theoretically create a position known as "manager in charge of firing," who could make firing decisions based solely on input from other, subordinate employees, thereby insulating themselves from liability under the Price Waterhouse mixed-motive analysis, the court suggested.

Accordingly, the court reversed.

Plaintiff's Counsel

Ronald A. Rayson, Knoxville, Tenn.

*David A. Burkhalter II, Knoxville, Tenn.