Day v. Sears. (E.D. Pa. Jan. 15, 2014) Baylson, J. (15 pages).

U.S. DISTRICT COURT-EASTERN

The Legal Intelligencer

LABOR & EMPLOYMENT

Wrongful Termination • Disparate Treatment • Race Discrimination

Day v. Sears. (E.D. Pa. Jan. 15, 2014) Baylson, J. (15 pages).

Plaintiffs Rodney Day and Keith Bowles, both black males, were employed as sales associates for defendant Sears. Plaintiffs were investigated by Sears management and ultimately terminated for improper and unauthorized waiving of delivery fees. Plaintiffs filed a complaint with the EEOC and Pennsylvania Human Relations Commission alleging that they were terminated because of their race. Plaintiffs brought suit for racial discrimination under 42 U.S.C. § 2000e and 43 Pa. Stat. § 951 in the court of common pleas, which Sears removed to federal court.

Plaintiffs alleged that they were given "manager approval cards" that empowered them to waive fees without having to specifically seek out a manager for approval. Sears conceded that the cards were issued to plaintiffs, but contended that they did not authorize plaintiffs to waive fees in non-standard cases without manager approval.

The court ruled that plaintiffs' claims survived summary judgment under both the McDonnell Douglas and mixed-motive analyses. Under McDonnell Douglas, the plaintiff must establish a prima facie case of unlawful discrimination; if a case is established, the employer must provide a legitimate, non-discriminatory reason for the adverse treatment; if a reason is given, the plaintiff must then demonstrate that the reason is merely a pretext for discrimination. Under a mixed motive analysis, when a plaintiff alleges evidence that discrimination was a substantial factor in adverse treatment, the burden shifts to the employer to prove that it would have fired the plaintiff despite the impermissible motivating factor.

The court also found that plaintiffs' case survived under the mixed-motive analysis. The material question of fact raised by the plaintiffs, if found in the plaintiffs' favor, could constitute circumstantial evidence of discrimination.

Where African American sales associates were terminated for fee waiving that they allege they were instructed and empowered to engage in, and a factual dispute arises over whether that practice was authorized, sufficient evidence exists to survive a motion for summary judgment. Denied.