Susan P. Asmo v. Keane, Inc.

our reading 10. Based on trial ASMO, Susan P. Plaintiff-Appellant,

transcript, Eddleman’s trial attorney also superb job done a seems have under Fulmi- light difficult conditions. KEANE, INC., Defendant-Appellee.

nante, however, the Michigan Courts of Appeals not reasonably could have con- No. 05-3818. cluded, beyond doubt, a reasonable prejudice his efforts United States Court of Appeals, eliminated the caused Sixth Circuit. the erroneous admission of the confes- sion. Argued: April 2006. On each of the dimensions the Su- Decided and Filed: Dec. preme Court identified as relevant to a determination, harmless-error the circum- parallel

stances Eddleman’s case

circumstances of Fulminante. No other

case-specific factors dictate that two differently.

cases should come out Conse-

quently, we Michigan hold that the Court

of Appeals’s harmless-error decision was application unreasonable clearly es- law,

tablished federal as determined

Supreme Court’s decisions in Chapman

and Fulminante.

IV reasons,

For the preceding the district grant

court’s conditional a writ of habe-

as corpus is AFFIRMED. The case

remanded to the district court with in-

structions to order Eddleman’s release un-

less state grants Eddleman new trial

within a period. reasonable 2000e(k),

§ analogous provisions Rev.Code, Chapter Ohio 4112. The dis- trict granted summary court judgment for Keane, the defendant appealed. and Asmo below, For the reasons set forth we find granting district court erred in summary defendant Keane judgment, and we remand for proceedings. further

I. BACKGROUND Keane is a Massachusetts corporation authorized to do business the State of provides Ohio. Keane information technol- ogy consulting and business services for corporations, governmental entities and healthcare through facilities network of Marshall, ARGUED: John S. Marshall branch offices located across the United Morrow, Columbus, Ohio, & Appellant. for States and abroad. Keane employs techni- Welsh, Bello, Welsh, John F. Black & Bos- employees cal who work as consultants Massachusetts, ton, Appellee. for ON providing technology-related information Marshall, BRIEF: John S. Louis A. Ja- services to its clients. cobs, Columbus, Ohio, Morrow, & Marshall Plaintiff Asmo resides Delaware Szolosi, Sr., Roy Michael McNamara & County, Ohio and was an of de- McNamara, Columbus, Ohio, for Appel- fendant began working Keane. She for Welsh, Bello, lant. John F. Black & on February Keane 2001 as a Selling,

Welsh, Boston, Massachusetts, C. Charles General, and Administrative Recruiter Warner, Porter, Arthur, Wright, & Morris (SG&A Recruiter). SG&A Recruiters are Columbus, Ohio, Appellee. for responsible recruiting for employees for MOORE, high-level Keane’s non-technical and GRIFFIN, sales

Before: management positions. CUDAHY, When Judges.* Keane Circuit Asmo, hired three other SG&A Recruiters GRIFFIN, J., 598-601), (pp. delivered had working been for Keane since 1998: separate dissenting opinion. Shea, Valerie Thomas Becker Christo- pher Hanson. Keane hired one other CUDAHY, RICHARD D. Judge. Circuit February 5, on SG&A Recruiter Jen- (Asmo) Susan Asmo claimed that nifer Bowman. (Keane) Keane, defendant Inc. terminated she preg- Asmo worked out a home office in nant, in violation Columbus, of Title VII reported of the Civil Ohio. She to Keane’s et Rights Act § Corporate U.S.C. 2000e Director of Recruiting, Scott seq., as amended Pregnancy Santoro, Dis- corporate headquar- Keane’s crimination Boston, Act ters in U.S.C. Massachusetts. The SG&A * Circuit, Cudahy, The Honorable by designation. Richard D. sitting Circuit for the Seventh Judge of Appeals the United States Court team, but Santoro decided consider three main worked as a each Recruiters determining assigned to cover factors the five primarily Recruiter was (1) be laid Keane’s North SG&A recruiters would off: region within specific (2) tenure; relative the number operations. Branch Asmo was of hires America 2001; had region, which each SG&A Recruiter made in to Keane’s midwest assigned (3) Columbus, hiring offices in Pitts- forecasted needs branch included Milwaukee, 2002. testified that he Chicago, Minneapolis, Santoro did burgh, Group compare performance or review Indianapolis and Detroit. Vice five managed Keane’s recruiters because he considered them all Gary President Gindele performers.” Policy to be “solid region. midwest Rehire,” “Layoff states that “[i]n mid-2001, In- acquired Metro determining employees be (Metro), Service, IT Inc. another formation aby layoff, affected consideration should expected sig- to achieve company. Keane skills, needs, given perform- business acqui- from the operation leverage nificant history employee ance tenure.” by combining Keane and Metro sition woman, in Bowman, offices the same markets and branch Asmo and another Ms. eliminating duplicate functions. all had the least tenure of of the SG&A year. recruiters —less than one The other in attacks the United

After the terrorist three recruiters had about SG&A three 2001, 11, IT in- September on States years Regarding of the third fac- tenure. significant dustry particularly suffered a tor, hiring forecasted Keane’s needs general in of a slow- slowdown the context 2002, engaged in several Santoro conversa- economy. down of the American Group tions some of Keane’s Vice with slowdown, expe- and it was affected Presidents, gave who Santoro sense significant downturn in its busi- rienced hiring in company’s projected needs 11. September after ness regions. respective Group their Midwest 11, day also the September was (where Gary President Gindele Asmo Vice pregnant learned she was Asmo based) told was Santoro that Midwest Subsequently, twins. sometime October activity for the rest of 2001 region’s hiring (the period of the exact date diminished and that he did not would be disputed), month is Asmo informed anyone Gary hire new in 2002. plan to entire SG&A team her dur- Richard, Vice President Western ing a conference call. Asmo testified (where region Jennifer Bowman was as- congratulated all recruiters SG&A signed) region told that the was Santoro her, during remained silent but Santoro impor- growing and that Bowman was congratulations and then tried to part growth tant of its and success. quickly change the conversation back Keane, According to Santoro selected business matters. layoff on the factors Asmo for based three acquisition Around the time Metro above. had the least ten- discussed 2001, completed November was hires, number of 2001 ure and lowest Resources, Re- Vice President Human little predicted Mr. need for Gindele Southard, nee directed Santoro reduce region hiring new the Midwest SG&A of recruiters his staff. number 2002. to eliminate one Santoro decided SG&A 4, 2001, Santoro informed Sourcing positions On December position, Specialist two being laid off. Asmo roughly thirty recruiting posi- Asmo that she was “your expenses said testified Santoro tions. 587, expensive more than are a lot the other U.S. 106 S.Ct. 89 L.Ed.2d (1986). and that one of the recruiters” reasons she 538 To summary judg- withstand ment, that her being salary was terminated was the non-movant must show sufficient higher was a lot than other genuine recruiters. evidence to create a issue of mate- also testified Santoro said anoth- Bank, She rial fact. Klepper See v. First Am. (6th Cir.1990). laid being er reason she was off was that get she did not the “face time” that other familiar use the We McDonnell got. Santoro, on recruiters the other Douglas burden-shifting framework an hand, in his deposition salary testified alyze Title VII discrimination lay role in played deciding no off Asmo Douglas Corp. cases. McDonnell keep and that he did not track of recruiter Green, 411 U.S. 93 S.Ct. expenses. during He noted that his conver- (1973). L.Ed.2d 668 See Cline Catholic sation with Asmo she offered to take a Toledo, Diocese salary job, reduction to retain her and he Cir.2000). First, employee pres must layoff informed her that the about Cline, ent a facie case. 206 F.3d at salary. acknowledge Asmo did that Santo- If to present able ro also mentioned number of hires and case, a such then the burden shifts the her her tenure reasons for termination. employer provide a legitimate, nondis 20, 2003, On February Asmo filed her criminatory reason for its employ adverse complaint court, in the district alleging ment employer decision. Id. If the is able that had unlawfully she been terminated so, to do the burden shifts back to the from employment Keane on December who, employee, in order to defeat a motion 7, 2001 pregnancy. her On for summary judgment, must show that 2005, May 31, granted district court the employer’s the articulated reason was a Summary Judgment Keane’s Motion for pretext for intentional discrimination. Id. judgment dismissing entered entirety. claims in their A. Prima Facie Case timely Appeal filed her Notice of The district court found that Asmo 22, with this on June Court prove prima was unable to a facie case of discrimination. In disagree. We order to II. DISCUSSION a prima show facie case of pregnancy dis This Court reviews a district court’s de- VII, crimination under Title a plaintiff grant summary cision to judgment de “(1) (2) must show that pregnant, she was Jopke, novo. Farhat v. 370 F.3d 587 (3) qualified job, she was for her she was (6th Cir.2004). Summary judgment is ap- subjected an employment adverse deci propriate pleadings, “the depositions, when (4) sion, and there ais nexus between answers to interrogatories, admissions pregnancy and the employment adverse file, affidavits, on together if any, with the Cline, decision.” Here, 206 F.3d at 658. show genuine that there is no issue as to proven concedes Asmo has any material fact moving par- and that the However, first three elements. Keane ar ty is judgment entitled to a as a matter of gues Asmo was not to meet able the fourth 56(c). law.” In deciding Fed.R.Civ.P. (a nexus) step in establishing prima a facie motion, a court must view case. draw all reasonable in favor inferences the nonmoving party. Inc., See Matsushita v. GenCorp Barnes Elec. Corp., Indus. Co. v. Zenith Cir.1990), Radio age an discrimi- ensure, suit, is to reduction of quirement court modified the fourth nation cases, plaintiff present- force that the has test when facie case element ed evidence show there is chance alleged in discriminatory are terminations reduction in is not the force reason force. The context of reduction a nexus be- Showing for termination. Douglas McDonnell court noted and a termination can tween requires framework just that. do rejection due one show that his rejec- for most common reasons of the two Asmo met require the nexus quali- “an or relative lack of tion: absolute part by establishing temporal ment vacancy of a in the fications or the absence learning between Keane’s of her proximity job sought.” Id. at 1464 Int’l Bhd. (citing Tempo and her termination. States, Teamsters United U.S. proximity ral can establish a causal con n. 97 S.Ct. 52 L.Ed.2d protected activity nection between the (1977)). However, the court went re employment the unlawful action a work force reduction say that when Potter, taliation context. See DiCarlo decision, is a in the employer factor (6th Cir.2004) (stating legitimate common reasons” “the most prem “this Circuit has embraced the force discharge for the work that in certain distinct cases where the ise By showing three] the [first reductions. temporal proximity protected between the case, Douglas elements of McDonnell activity ac and the adverse any presented evi- plaintiff acutely time, has near in that close tion indicating that the work force re- dence is deemed indirect evidence proximity are not the reasons ductions permit as to an inference of retalia such discharge.... arise”); Nguyen City to Cleve tion of (6th Cir.2000) (not land, F.3d 567 229 Thus, the court concluded Id. at 1465. ing may that “there be circumstances case, plain- a in the in reduction force temporal proximity of where evidence facie prima tiff not make out a case “does support sufficient to alone would be circumstantial, direct, or absent additional nexus). Temporal of a causal inference” to tending evidence indicate that statistical re satisfy can also the nexus proximity the for employer singled plaintiff out pregnancy discrimination quirement Id. discharge for reasons.” impermissible Gay Prebilich-Holland context. See ques- not This court has addressed (6th Co., 297 lord Entm’t F.3d whether the Barnes additional-evi- tion Cir.2002) temporal prox (suggesting requirement applies to discriminato- dence satisfy require imity the nexus would ry on the termination claims basis Parts, ment); Auto DeBoer v. Musashi prong of the pregnancy, where the fourth (6th Inc., Cir. Appx. 124 Fed. requires a “nexus” prima facie test be- 2005) temporal proximity (holding that pregnancy termination. tween requirement). satisfies nexus However, to unnecessary it is for us reach meet required if Asmo was showing a nexus be- Even question this termination, require the Barnes additional-evidence pregnancy tween case, the prima facie step fourth ment to establish required as of establish- would sat temporal proximity prima facie case in dis- evidence ing claims, isfy requirement. In Cline v. Catholic meet crimination should Toledo, requirement. Diocese Barnes additional-evidence Cir.2000) facie we that “[t]he additional re- noted purpose The evidence for requirement making a Title claim VII cient evidence to show that the reasons onerous, poses a is burden easily gave Keane for pre- her termination were (citations omitted). met.” In retaliation textual. The district court found that cases, this court has said it “has embraced provide Asmo failed to such evidence after premise that in certain distinct gave legitimate cases Keane non-discriminato- temporal proximity ry where the between the for terminating reason employ- protected activity and employ- clear-cut, the adverse ment. issue While this is we time, acutely ultimately ment action near disagree with the district court proximity close is deemed indirect evi- summary judgment and find that under standards, permit dence such an inference of there was sufficient evidence DiCarlo, retaliation to arise.” pretext. show added). Thus, (emphasis temporal The significant showing most proximity employer’s learning between the pretext is Santoro’s conduct after Asmo employee’s pregnancy and an ad- she pregnant announced was with twins. verse action taken with re- 2001, Asmo, In October Santoro and the spect may to that likewise A entire SG & team were participating in “indirect of an evidence” infer- call, during conference in- of pregnancy ence discrimination satisfy formed the team that pregnant she was requirement the Barnes of additional “in- with twins. The news was met with con- direct evidence” that “tend[s] indicate gratulations colleagues from all her except singled plaintiff that the employer out the Santoro, who did not comment and then discharge impermissible for reasons.” “simply moved on to the next business Barnes, 896 F.2d at 1465. (J.A. topic in the conference call.” 158-

In early 59). December decided suspect. Santoro’s initial silence is employment. terminate Asmo’s This usually Pregnancies are met with congra- was within two months of October words, tulatory in professional even set- when Santoro learned that Asmo was tings. people together they When work pregnant. This temporal proximity is suf develop beyond relationships the realm of ficient to establish a link between Asmo’s employment, and Asmo’s pregnancy and her termination for the particularly noteworthy given that she was a purposes prima of facie case. See twins, (and Di pregnant fairly with a unusual Carlo, (twenty-one days); 358 F.3d at 422 overwhelming) occurrence.

DeBoer, (approxi 124 Fed.Appx. at 393 Additionally, though Santoro conducted months). mately two weekly conference calls with the recruit- reasons,

For these find we that the dis- ers, he not did mention Asmo’s pregnancy holding trict court in erred that Asmo again until day December the he present beyond needed to a nex- job terminated Asmo. Asmo’s involved con- pregnancy us between her and the adverse (forty siderable travel sixty percent of satisfy decision to the Barnes time), something her employer an might requirement, additional-evidence and we given be concerned about the announce- find that Asmo did establish facie twins, ment that going Asmo was to have case. people most know is a tremendous responsibility. Yet Santoro did not talk B. Pretext planned with Asmo about how she to deal ques impending The second and difficult with more the arrival of her twins tion here is presented company whether Asmo suffi- help what could do to and/or (here, Instead, employer not for he did who works accommodate her. Keane), also did of her at all. He we consider both substance pregnancy mention to discuss as as any colleagues of his a remark well the influence the indi- not ask her, provide or to employee’s with vidual had termination. pregnancy Asmo’s compa- about how the Ercegovich Goodyear her information Tire & Rubber Co., Cir.1998). Given the com- ny parents. accommodates particularly job’s being of bination Asmo’s have Knauer did not a direct or indirect and her demanding termination, thus, of time due to travel influence on Asmo’s just a but pregnancy, of not announcement remark alone is sufficient to prove his not twins, silence pregnancy Santoro’s against Keane discriminated Asmo. discriminatory interpreted as ani- However, could be at held Id. court has mus. “[a]lthough discriminatory statements alone, nondecisionmaker, standing argument there are generally do not inference possible explanations Santoro’s discrimination, the comments of nondeci- well-taken. Howev silence is correct and categorically sionmaker excluda- er, summary judgment, context establishing Circumstantial evidence ble. light the evidence where we examine discriminatory atmo- the existence of non-moving party, to the most favorable workplace sphere at defendant’s argument that Asmo’s is suffi we believe may as circumstantial evidence turn serve into mo question cient to call Santoro’s discrimination directed at of individualized of pre Santoro’s silence is evidence tives. (citations omit- plaintiff.” Id. speculation it text because can be read ted). regarding impact of Asmo’s work, specula employer’s and an her own Knauer’s statements on their do employ about how an assumption tion or discrimination, they prove but indicate job her ee’s will interfere with might discriminatory he believe there discriminatory can evidence of constitute taking place action at Keane. Instead Inc., Gap animus. Laxton v. for, he he defending company worked (5th Cir.2003). 583-84 Asmo to what she to do.” told “do needed 239). (J.A. Thus, while Knauer’s state- A statement another Keane em fur- dispositive, they ments are not lend ployee lends further evidence towards argument weight ther towards conclusion that there was discrimination against and can was discriminated she in After Asmo was part on the of Keane. as “circumstantial evidence estab- serve termination, told Ron formed she lishing the existence of’ discrimination. Knauer, Regional who was Sales Vice Ercegovich, 154 F.3d at 356. region and re President for midwest Gindele, In and state- Gary to that she was addition to behavior ported employees, there is evi- “seek[ing] legal ments of Keane [she] counsel proffered on the go pretext that let dence of based strongly [she] was believefd] by for Asmo’s termi- pregnant given was reasons [she] from Keane because (J.A. 239). pretext “An can response In to nation. show twins.” said, statement, by offering employer’s “I that Asmo’s Ron Knauer fact, had in did you, You do reason no basis proffered don’t blame Susan. need to decision, was actually In motivate its or you discrimina not what need do.” Id. past an cases, discharge in used in the tion order evaluate the rele never Chrysler Corp., employee.” an Smith v. vance of a remark made individual (6th Cir.1998). tionally, F.3d 805-06 See Man SG&A expenses recruiters’ were Co., zer v. Shamrock tracked, Diamond Chems. 29 not expenses and thus the (6th Cir.1994). 1078, 1084 various recruiters were unknown. It is initially unclear how up Santoro came with Keane’s stated reasons for Asmo’s ter- termination, these reasons for but the fact to the Ohio Rights mination Civil Commis- they eliminated, were later they and sion, court, to the district court this happen to be the two reasons that Santoro deposition in are following: Santoro’s gave false, very are is suspicious. It 1) Asmo had the fewest hires of the appears that Santoro offered any and all (SG&A) 2) recruiters; Asmo had the same reasons he could think of to justify his seniority as or less than the other SG&A Asmo, decision to whether or not 3) they recruiters; and region Asmo’s had the were true. Once a lawsuit was filed and hiring lowest in anticipated needs Keane knew the subject reasons would be However, Asmo testified that a De- scrutiny, changed justifications it 4, 2001 phone cember conversation be- offered for Asmo’s termination to include Asmo, tween Santoro Santoro stated only those that were either circumstantial- 1) termination: five reasons Asmo’s ly or true not easily penetrated could be as Asmo had the fewest hires of the SG&A change false. This suspi- rationale 2) recruiters; had the same as or cious and is evidence pretext. seniority less than the other SG&A re- 3) cruiters; Smith salary Chrysler Corp., higher Asmo’s was than (6th Cir.1998) 4) recruiters; (quoting the other SG&A Kariotis v. Asmo’s ex- Corp., Navistar penses higher Int'l Trans. were than the other SG&A 5) Cir.1997)), recruiters; court get Asmo did not said “[i]n challenging employer’s action, an “face time” that other SG&A em recruiters (J.A.233). ployee ‘must got. employ demonstrate (each them, er’s reasons if the reasons employer’s “An changing rationale for independently caused employer [the] making an adverse decision ” did) take the Here, action it are true.’ can evidence of pretext.” Thurman v. Keane does argue that each factor Inc., Freight Sys., Yellow would alone not have independently result (6th Cir.1996), amended termination, ed in Asmo’s but rather that (6th Cir.1996) (or- grounds, 97 F.3d 833 the factors collectively taken resulted in der). Here, the inconsistencies Thus, Asmo’s termination. in order to terminating stated reasons for Asmo’s em- summary survive judgment, Asmo need ployment after she initiated this lawsuit not show that all of the factors articulated gave reasons Santoro her over the rather, Keane are false only but phone probative pretext. are The two some the factors false and a mere initially reasons that Santoro offered Asmo pretext for discrimination. that were then eliminated at the com- lawsuit, mencement of this major Keane stated that a reason for salary higher than the other laying SG&A off Asmo was that her region had recruiters and that her expenses anticipated were hiring lowest needs higher than the recruiters, other SG&A out of recruiting regions. Keane’s five However, are false. The other recruiter presented SG&A with evidence that seniority least the working who started question the calls this statement into and Asmo, day Bowman, same Jennifer juror was would allow a reasonable to conclude paid about than more Asmo. Addi- that $5000 stated reason was pretextual. it to leading question: say re- fair that “[I]s that after extensive testified Santoro hir- you’re really projecting much new part, on his he determined search (the (J.A. 267). region ing your midwestern evi- assigned area?” This Asmo’s need for a recruiter region) supports had the least dence further Asmo’s claim that with three talked like Asmo. Santoro to terminate her all Santoro intended anticipated about the presidents vice group simply and he to con- along wanted Gindele, Gary region: needs their hiring of compa- firm his decision with others the re- the midwestern president of vice ny. Richard, Gary president of gion; the vice into claim calling question Aso Keane’s Bowman); (assigned to region the western region that Asmo’s had the fewest antici- Rader, president vice Gary and pated hiring needs is evidence about the Tom region (assigned to northeastern positions in open region of her number Becker). indicate, The record does of the time her termination. Asmo testi- however, that Santoro had conversations termination, fied that at the time of her of regional presidents vice with re- open positions were five her there regions, the two other southern Keane’s gion. company It that a suspicious seems region, to region and the federal access the re- would terminate recruiter who was hiring regions. of those anticipated needs region sponsible many open- for a with so Thus, no proof there is Santoro ings. particularly given odd This compare hiring of truly to needs able notes, said that November Asmo’s which of of region with the needs all Asmo’s termination, 2001, just before her Gindele question into regions. This calls region’s anticipat- that the midwest stated hiring being of needs validity regional Knauer, testimony ed growth, Asmo’s termination. legitimate reason for regional who at time was the vice only if Additionally, even we consider region in the midwest president sales regional with the vice conversations he was “concerned” who said that have, avail- that Santoro did presidents layoff Asmo’s of the needs about “because supports an inference that able evidence (J.A. 13). region.” This the central already have he may Santoro decided was evidence alone cannot Asmo’s lay off Asmo before he had those going presented evi- claim because neither side Rader testified that Santo- conversations. positions open dence about the number him ro had with only general conversations discharge time in other re- at the needs, region’s anticipated about his with- point gions, important but this would be an layoff deci- impending out reference to the investigation upon remand. for further recruiting his sion or whether needs could also evidence that The record contains Further, by sharing a recruiter. be met question explanation into calls talked with Richard testified Santoro job it considered degree how and what positions open, him that were about about performance in the decision terminate performance, Bowman’s Jennifer layoff hiring policy Asmo. Keane’s importance about Bowman’s the west- em- determining “[i]n states and success. region’s growth ern Santoro layoff, ployees affected however, not, did ask Richard about his skills, given should be consideration region’s hiring or wheth- anticipated needs needs, performance history and region business recruiting er of his could needs (J.A. 69). However, contrast, tenure.” be shared. when Santoro (the em- of Santoro said that he did not consider spoke president vice Gindele each of the region) following ployee performance asked the he 598 performed at good

five SG&A recruiters All of together, this evidence taken con- and similar levels and thus comparing summary sidered under a judgment stan- performances their would not lead to con- dard where all we evaluate evidence in the However, clusive results. recruiter SG&A light Asmo, most favorable to indicates Becker, who Tom covered the northeast that Keane’s stated reasons for terminat- Quality two region, received Re- Service ing pretext Asmo were for discrimination. (QSRs) per- that were critical of his views Quality formance. Service Reviews are III. CONCLUSION filled out individual clients about the above, For the reasons stated we RE- he working. recruiter with whom is San- grant VERSE district court’s of sum- QSRs toro testified are not indicative mary judgment for Keane and REMAND performance, an individual recruiter’s for proceedings. further only they “marginal and that are [] Nonetheless, importance] to San- [him].” GRIFFIN, Judge, dissenting. Circuit say QSR’s did provide toro I respectfully dissent. this reduction- “snapshot” specific client’s feeling case, in-force Asmo has not satisfied the recruiting about SG&A the time. fourth element of the prima facie case of However, why it’s difficult understand discrimination, pregnancy i.e., the Barnes QSR’s useful tools for evaluat- Inc., (6th GenCorp v. 896 F.2d ing performance of individual recruit- Cir.1990), additional evidence requirement ers, filling QSR since the client out the and a causal nexus between her termi- directly would have worked with the re- nation and Keane’s acquisition of knowl- QSR. cruiter about whom he filled out the edge of her pregnancy. plaintiff Because suspect is also Jennifer given This Bow- case, did a prima not make out facie there testimony man’s that she believed the was no need for Keane to articulate lawful important most criterion in evaluating the reasons for its According- adverse action. performance of an SG&A recruiter ly, we should not address Keane’s stated (J.A. 259). If “client satisfaction.” attempts reasons or portray not emphasize did client satisfaction as a pretexts those reasons as for unlawful major perform- criterion for evaluation of pregnancy discrimination. recruiters, ance SG&A it’s difficult to why understand such recruiter would majority The states that “the district testify that she felt client satisfaction was court holding erred in that Asmo needed the most important criterion in evaluating to present beyond a nexus be- recruiter performance. tween her and the adverse em- ployment satisfy decision to the Barnes

Finally, temporal prox while the But, requirement....” additional-evidence imity informing between Asmo Keane of majority effectively proceeds still twins and Keane’s de premise prox- erroneous that temporal cision to prove terminate her cannot alone imity alone can establish a causal connec- pretext, v. Publ'g Corp., Arban W. (6th protected tion between Cir.2003) activity (quoting unlawful action retalia- Skrjanc Co., v. Great Lakes Power Serv. (6th authority tion context. As Cir.2001)), propo- temporal sition, proximity majority Potter, can be an cites DiCarlo v. used “indirect evi (6th Cir.2004) employee’s dence” to Ngu- claim of Potter, pretext. Cleveland, 408, yen City DiCarlo 229 F.3d 559 (6th Cir.2004). Cir.2000). However, neither DiCarlo nor

599 (listed 1983) only entry a and un- a one-line read Nguyen stands for such broad Unreported in an ing “Affirmed” Decision And neither DiCar- qualified proposition. of that binding section volume Federal Re any marshaled Nguyen lo nor 2d). Therefore, porter v. Brown ASD holding. in a precedent support such any any does not bind us more than other panel only “this The stated that DiCarlo decision, at district court not all. is in premise embraced that Circuit has M14, TRW, U.S. See v. One Model 7.62 temporal cases where the certain distinct 416, (6th 441 Rifle, F.3d 423 n. 10 Caliber protected activity between the proximity Cir.2006). action the adverse “[vjarious DiCarlo also states of our sis time, acutely proximity that close near accepted ter Circuits have also this con evidence such as to is deemed indirect 421, 358 at cept,” F.3d but “this court is of permit an inference of retaliation arise.” holdings course not bound our DiCarlo, a at 421. state- 358 F.3d Such Carpenter, sister circuits.” U.S. v. 360 temporal a that holding prox- ment is not (6th Cir.) (en banc) (citing 600 imity can establish a causal nexus. alone Cty., Nixon v. Kent 76 F.3d 1388 case, Moreover, in instant Asmo’s ter- (en (6th Cir.1996) denied, banc)), cert. 543 “acutely not near time” to mination was (2004).1 U.S. 851 Thus, learning her pregnancy. majority if read even we DiCarlo as regard Nguyen, panel With that stat- does, not permit temporal DiCarlo would only may ed that “while there be circum- alone to establish a causal nexus proximity prox- temporal stances where evidence of here. imity alone would be sufficient to link], do inference of causal we not [an event, binding In no any DiCarlo cites say they not hesitate to have been tempo- precedent proposition presented Nguyen, this case.” can proximity ral alone establish causal Thus, Nguyen did not hold that a discrimination case. nexus in DiCarlo can temporal proximity alone establish Nguyen, cites which does not cannot nexus; qualify causal it took care to for such a rule. also cites stand DiCarlo “there where such may be circumstances” Ctr., Computing Brown v. ASD Nguyen suffice. effective- evidence would (S.D.Ohio 1981) F.Supp. for the that, temporal or ly stated whether not is no proposition “where there direct can proximity alone ever establish causal motive, proof retaliatory of a retaliation circumstances, it nexus under some may imputed timing if the retal- pres- Nguyen immaterial did not because iatory act is such as allow inference ent such circumstances. correctly of retaliation arise.” DiCarlo Therefore, Nguyen’s statement about notes that district court decision “temporal proximity But alone” was obiter dic- Brown was affirmed this court. ie., tum, judicial comment made while inaccurately our affirmance “[a] DiCarlo cites delivering judicial but one that is opinion, in a format that fails to show unnecessary to the in the case and unpublished. affirmance was See Brown decision (6th Mark, Mar.3, precedential....” v. 709 F.2d 1499 Cir. therefore Black’s Ward, (6th Cir.1996) DaimlerChrysler Corp. 1. See 93 F.3d also Healthcare Durden, ("[E]ven though the decisions other circuits Plan Benefits Cir.2006) ("The (6th binding respect, they ... not are entitled to our are bind- cases are us.”) Ry. ing upon (citing re Cent. they court Tenn. on this from Coal, Co., Cir.1974)). circuits."); Inc. Cross Mountain (8th ed.2004); Yoon, Dictionary prior 1102 see decision.’” 398 at F.3d 806 Law 802, (6th Yoon, Park, (quoting F.3d 806 v. City U.S. v. 398 Darrah Oak 255 also of (6th Cir.2001)). 301, Cir.2005); Leval, F.3d 309 Judging Pierre N. Un- Dicta, Dicta der the About Constitution: stated, correctly As a recent panel “tem- (2006). A panel’s L. Rev. 1249 81 N.Y.U. poral proximity itself is insufficient find ” dicta, course, subsequent of does not bind a Randolph causal connection.... v. Ohio Anderson, v. panels. See Williams 460 Servs., 724, Dep’t Youth 453 F.3d 737 of (6th Cir.2006) 789, (noting 796 F.3d (6th Cir.2006) (citations omitted). Rather, Court”); not “dicta does bind this ACLU temporal coupled “a connection with other (6th 641, Taft, v. n. 4 Ohio 385 F.3d 649 retaliatory indicia bemay conduct suf- of of Cir.2004) (“This statement is dicta support finding ficient to a of a causal opinion, advisory binding decision is an not added); (emphasis connection.” Id. see persuaded by on this court. Nor are we 543, Ashcroft, also Mulhall v. 287 F.3d 551 ”). (6th Cir.2002) non-binding similar in.... (“Temporal dicta proximity, when coupled facts, may with other be sufficient important, Nguyen Most decision in certain cases to establish the causal- upon by majority relied also states that case.”) prong connection a Title VII temporal proximity alone cannot suffice to added). (emphasis authority As for these establish a causal nexus: propositions, Randolph cited v. BP Little both In Harrison Metro. Gov’t [v. of Co., & Oil 265 363- Exploration F.3d (6th Cir.1996) Nashville, 80 F.3d 1107 ] Cir.2001) (6th itself, 64 and Nguyen 229 Sys., Welding [v. Moore KUKA 171 566-67, F.3d both which pre-date of (6th Cir.1999)], 1080 we (2004). DiCarlo “When later decision found a causal when connection from this court its deci- prior conflicts with temporal proximity was considered sions, the earlier cases control.” Sowards along other retaliatory evidence of Tenn., Cty., v. Loudon 203 F.3d 431 n. spoken conduct. We have also on the (6th Cir.2000), quoted v. Slaughter question temporal of proximity whether Parker, (6th Cir.2006) 450 F.3d protected activity between the and the (Cole, J., dissenting). action, itself, adverse in and of is suffi- short, precedents require our earlier cient to establish a causal connection. temporal us to hold that proximity alone Olmsted, v. Cooper City See North requisite cannot establish the causal nexus (6th Cir.1986). 795 F.2d 1265 In Coo- employee’s activity between the protected rejected per, we proposition or status and the action. adverse See also temporal .... proximity enough is HCA, Inc., v. Balmer added). Nguyen, (emphasis 229 F.3d at 566 (6th Cir.2005) (“[T]he mere fact that an Moreover, to the extent that DiCarlo or employment adverse decision occurs after Nguyen be a holding could read state not, charge standing discrimination temporal proximity can alone alone, finding support sufficient nexus, enough they to establish a causal the adverse decision was in to, with, yield conflict and must earlier claim.”); retaliation discrimination [for] “ published prior decisions. ‘The decision Johnson Univ. Cincinnati panel] [of Sixth (6th Cir.2000) Circuit remains control- 561, (“[T]emporal prox- ling authority unless an inconsistent deci- imity alone support does inference sion of Supreme the United States Court retaliatory discrimination the absence ”). requires modification of the decision or of other evidence.... Absent some sitting this Court en banc of a persuasive overrules the causal nex- requirement req of Barnes her ter- dence pregnancy and us between then, mination, may employer consider causal nexus between an we uisite “close ac learning the two events were the adverse whether temporal proximity majority in time for the The cites enough” published tion. one finding Potter, of causal nexus. decision, alone DiCarlo satisfy the fourth element failed Cir.2004), only but that stands discrim- facie case of of a that on the facts of that proposition ination, summary judgment for Keane and case, substantially lapse shorter time —(cid:127) proper. was days to estab twenty-one sufficient —was lish a causal nexus. Seid there, with no inquiry end The should Cf. Hafford (6th Cir.1999) (“We ner, 506, reasons of Keane’s stated lawful discussion magistrate with the portray agree judge ‘[b]e- rea attempts or those Asmo’s Grosjean v. First actions two pretextual. disciplinary as See cause occurred sons 332, (6th Cir. Energy Corp., charges, Hafford months filed five after 2003) (“He failed to make his therefore fairly spread period and are even over a age discrimination] prima facie case [of time, the inference of causal connection legitimate- we need not address and temporal proximity alone is tenu based pretext parts McDonnell reason evidence, Absent additional ous.’ denied, 1010, ....”), 541 U.S. analysis cert. is temporal proximity loose insufficient (2004). L.Ed.2d 620 S.Ct. added). issue.”) (emphasis create a triable precedents permit- if our Finally, even case, I In the instant reduction-in-force satisfy the causal-nexus plaintiff ted that, likewise hold absent additional would temporal proxim- with evidence element evidence, temporal proximity, the loose pregnancy-discrimination alone ity alone, is insufficient evidence to withstand case, fails. I note first Asmo’s claim still summary judgment. motion for defendant’s does not establish the record reasons, I respectfully For these dissent learned that Asmo certainty when Keane and would affirm. majority opinion As the pregnant. General, notes, Selling, Asmo informed (SG&A) her team of Administrative 2001,” in October

pregnancy “sometime Recruiting Corporate Director of Scott of her termination informed her Santoro Troy BAKER, Snader, as and Glenn lapse So be- on December 2001. Next Friend Jesse Father and knowledge and acquiring Keane tween Snader, Plaintiffs-Appellants, short as termination could as (October days 31-December thirty-five HAMILTON, OHIO, Eric OF CITY (Octo- 2001) sixty-four days long or as Taylor, Defendants-Appellees. 2001). ber 1-December No. 05-4390. view, period my the time between learning pregnant that Asmo was of Appeals, Court United States in- is terminating and its Circuit. Sixth sufficient, itself, satisfy fourth Argued: Oct. 2006. facie The ma- element of case. Dec. Filed: Decided and holding jority binding precedent cites no more, lapse, that such time without

sufficient establish additional-evi-

Case Details

Case Name: Susan P. Asmo v. Keane, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 18, 2006

Citation: 471 F.3d 588

Docket Number: 05-3818

Court Abbreviation: 6th Cir.