Thomas v. Berry Plastics Corp.

Decision Date25 September 2015
Docket NumberNo. 14–3100.,14–3100.
PartiesKarry L. THOMAS, Plaintiff–Appellant, v. BERRY PLASTICS CORPORATION, Defendant–Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Alan V. Johnson (Danielle N. Davey, with him on the briefs) Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for PlaintiffAppellant.

Josh C. Harrison (Elmer E. White, III, The Kullman Firm, Birmingham, AL, and John T. Bullock, Stevens & Brand, L.L.P., Lawrence, KS, with him on the brief) The Kullman Firm, Birmingham, AL, for DefendantAppellee.

Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.

Opinion

EBEL, Circuit Judge.

PlaintiffAppellant Karry L. Thomas—who is African American—worked for DefendantAppellee Berry Plastics Corporation (Berry) from 2003 to 2010. Following his termination, Thomas sued Berry, alleging that Berry terminated him in retaliation for opposing racial discrimination within the company. The district court granted summary judgment in favor of Berry. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Facts

Taking the facts in the light most favorable to Thomas, see Ward v. Jewell, 772 F.3d 1199, 1202 (10th Cir.2014), the record established the following:

From 2003 to 2010, Thomas was employed by Berry, which owns and operates over seventy manufacturing plants throughout North America. Thomas was initially hired as a Printing Operator in Berry's Kansas facility, but after a few years, he was promoted to Printing Technician. As a Printing Technician, Thomas was responsible for setting up the machines and ensuring that they ran properly.

Over the course of Thomas's seven-year employment, eight different Berry supervisors initiated at least thirteen disciplinary actions against him. These actions ranged in severity from verbal coaching and written warnings to suspensions and final warnings.

According to Thomas, the series of events leading up to his termination began in May 2009, when Jason Morton became Thomas's group leader. As group leader, Morton had limited disciplinary authority. Although Morton's limited authority prevented him from independently issuing high levels of discipline (e.g., suspensions, last chance agreements, final warnings, and terminations), he nonetheless played some role in most of the disciplinary actions leading up to Thomas's termination in September 2010.

The most relevant of these actions began in July 2010, when Morton, after conferring with his supervisor, suspended Thomas for a print-quality issue. As a result of this suspension and a prior suspension issued by a different supervisor two months earlier, Printing Manager Watson—who oversaw the entire Kansas operation—executed a Last Chance Agreement with Thomas. This agreement provided that Thomas would be “subject to disciplinary action, up to and including termination of employment, for future rules or attendance violations.” Suppl. App. at 105. Morton was not involved in the decision to place Thomas on a Last Chance Agreement.

A few weeks later, Morton, acting pursuant to Watson's and Human Resources' direction, gave Thomas a Final Warning. This Final Warning, which indicated that Thomas's employment would be terminated if he had any further quality or performance related issues, was based on Thomas's alleged failure to pack product properly on July 27. When Morton and two other Berry representatives met with Thomas to discuss this Final Warning, Thomas maintained that he did not fail to pack the product properly on July 27 and stated that he felt he was “getting discrimination because of race.” App. at 86. Upon further investigation, Morton discovered that the July 27 packing problem was not Thomas's fault and rescinded the related performance issue.

Thereafter, Morton submitted a report to Printing Manager Watson that faulted Thomas for a print-quality issue that occurred on September 10. After reviewing this incident and without consulting Morton, Watson decided to terminate Thomas's employment. Before Human Resources could review and approve Watson's termination decision, Morton, acting pursuant to another supervisor's instructions, issued a written warning to Thomas based on another incident wherein Thomas failed to complete paperwork. Shortly thereafter, Berry officially terminated Thomas's employment.

Thomas initially challenged his termination through Berry's Termination Review Process,1 arguing that his termination was not warranted because he was not at fault for the September 10 print-quality issue. After meeting with Thomas and reviewing his full disciplinary history, the Termination Review Panel—which was comprised of two independent Berry managers—affirmed Watson's termination decision.

Thomas thereafter filed suit for wrongful discharge, alleging, inter alia, that he was terminated in retaliation for opposing race discrimination in violation of Title VII and 42 U.S.C. § 1981.2 Berry moved for summary judgment. Although Thomas initially argued that Printing Manager Watson possessed retaliatory animus that infected his termination decision, Thomas eventually invoked the “cat's-paw” theory of recovery, arguing that it was Morton —an intermediate supervisor who reported to Watson—who possessed the retaliatory animus that infected Watson's termination decision.3

Under a cat's-paw theory of recovery (also known as “subordinate bias” or “rubber stamp” theory), an employer who acts without discriminatory intent can be liable for a subordinate's discriminatory animus if the employer uncritically relies on the biased subordinate's reports and recommendations in deciding to take adverse employment action. See E.E.O.C. v. BCI Coca–Cola Bottling Co., 450 F.3d 476, 484–85 (10th Cir.2006). According to Thomas, Morton possessed retaliatory animus against Thomas as a result of Thomas's opposition to racial discrimination during the Final Warning meeting.

The district court ultimately granted Berry's motion for summary judgment, and Thomas appealed.

II. Analysis

On appeal, Thomas argues that the district court erroneously granted summary judgment in favor of Berry because, according to Thomas, he presented sufficient circumstantial evidence from which a reasonable jury could conclude that the stated reason for his termination was a pretext for retaliation based on a cat's-paw theory of recovery. We disagree. Reviewing the district court's summary judgment order de novo and applying the same standard as the district court, Ward, 772 F.3d at 1202, we conclude that the court properly granted summary judgment in favor of Berry for two reasons, either one of which requires our affirmance.

A. Legal Framework

A plaintiff can state a valid claim under Title VII or § 1981 by presenting either direct or circumstantial evidence of retaliation.4 Ward, 772 F.3d at 1202. When a plaintiff presents only circumstantial evidence, the McDonnell Douglas5 burden-shifting framework typically applies. Id. Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of retaliation by demonstrating that (1) he or she engaged in a protected activity, (2) he or she suffered a material adverse action, and (3) there was a causal connection between the protected activity and the adverse action. See Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1195 (10th Cir.2011). The burden then shifts to the employer to articulate a legitimate non-retaliatory reason for taking the adverse employment action before ultimately shifting back to the plaintiff to establish that the employer's explanation is pretextual—i.e., unworthy of belief. See id. at 1196.

Although the parties disagree about whether Thomas established a prima facie case of retaliation—the first step of the McDonnell Douglas framework—we focus our analysis on whether Thomas established pretext—the last step of the framework. Because we conclude that Thomas failed to meet his burden of establishing that Berry's explanation for terminating his employment was pretextual, we need not separately consider whether Thomas established a prima facie case of retaliation.

Where, as here, the plaintiff lacks evidence that the actual decisionmaker possessed an unlawful retaliatory animus, the plaintiff can establish pretext by invoking the cat's-paw theory of recovery and presenting evidence that a biased subordinate who lacked decisionmaking power used the formal decisionmaker as a dupe in a deliberate scheme to bring about an adverse employment action. See BCI Coca–Cola, 450 F.3d at 484–85. To survive summary judgment when a retaliation claim is based on the cat's-paw theory, the plaintiff must establish that there is a genuine issue of material fact as to (1) the retaliatory animus of the subordinate, and (2) whether the subordinate's animus translated into retaliatory actions that caused the decisionmaker to take adverse employment action. See id. at 488 ; Simmons v. Sykes Enters., Inc., 647 F.3d 943, 950 (10th Cir.2011).

B. Animus

Because Thomas's retaliation claim was based on a cat's-paw theory, Thomas needed to establish a genuine issue of material fact as to Morton's retaliatory animus in order to survive summary judgment. On appeal, Thomas argues that he made this showing because a reasonable jury could infer that Morton possessed retaliatory animus based on two pieces of circumstantial evidence.

First, Thomas argues that a reasonable jury could find that Morton possessed retaliatory animus because his report regarding the September 10 print-quality issue—the incident triggering Thomas's termination—was dishonest as to a material fact.Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (explaining that pretext can be inferred from the falsity of an employer's explanation for taking an adverse action). According to Thomas, Morton's report—which indicated that Thomas's press was missing a tagline for fifty-eight minutes—was dishonest because it did not also indicate that Thomas had properly inspected the...

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