Chipotle manager fired for poor performance, not objections to director’s ‘hiring too many Hmong people’ comment

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By Joy Waltemath

By Kathleen Kapusta, J.D.

Although he was fired just two months after complaining about a team director’s comment that he was hiring “too many Hmong people,” a Chipotle employee failed to raise a fact issue as to whether the stated reason for his termination—declining work effort and performance—was pretextual. Accordingly, the Eighth Circuit affirmed summary judgment against his Minnesota Human Rights Act reprisal claim (Sieden v. Chipotle Mexican Grill, Inc., January 26, 2107, Strand, L.).

Too many Hmong people. Hired in 2001, the employee rose through the ranks and by 2011, he was responsible for three restaurants. In March 2012, the team director and an area manager removed one of these restaurants from his responsibilities due to performance issues. A year later, the director told the employee he was hiring “too many Hmong people.” Although the employee complained about the comment, he did not file a formal complaint. The next month, his responsibilities were limited to acting manager at one location, and shortly thereafter he was terminated.

He then sued under the MHRA, asserting claims of reprisal and age and sexual orientation discrimination. The district court granted summary judgment against his reprisal and sexual orientation claims. Although his age discrimination claim proceeded to trial, a jury returned a verdict in favor of Chipotle. The employee appealed only the lower court’s decision on his reprisal claim.

Performance concerns. Assuming without deciding that the employee established a prima facie case, the court pointed out that performance-related concerns are legitimate, nonretaliatory reasons for discharge. The employee, however, contended that the summary judgment record supported a finding of pretext because Chipotle’s complaints about his performance had no basis in fact; he was set up for failure and received increased scrutiny following the protected activity; the stated reason for discharge shifted during the litigation; Chipotle failed to follow its own disciplinary policies; and the complaints about his job performance were purely subjective.

“Really bad.” Rejecting his contention that the stated reason for his discharge had no basis in fact, the court noted that a year before his protected activity, the area manager and team director expressed concerns about his performance and commitment at one restaurant and decreased his responsibilities by removing a restaurant from his oversight. Further, an operations summary for the month prior to his protected activity illustrated problems at two of his restaurants, and the employee acknowledged that the results at one of the locations were “really bad.” The fact that Chipotle expressed concerns about his performance both before and after the protected activity undercut the significance of the temporal proximity between that activity and the adverse employment action.

And while the employee pointed to his positive performance review shortly before his protected activity, that review also reflected serious concerns, and as compared to the previous year, his overall rating dropped. As to his history of positive performance reviews, the court pointed out that an employer is free to rely on recent performance reviews more heavily; doing so does not discount the proffered reason or show pretext.

No increased scrutiny. Also rejected was the employee’s claim he could show pretext because he received increased scrutiny after his protected activity, as he did not present evidence supporting these allegations. Given Chipotle’s concerns about his effort and commitment, which predated the protected activity, the decision to reduce his responsibilities further and assign him to a different restaurant did not give rise to an inference of pretext.

No shifting reasons. Nor did Chipotle’s reason for discharge shift as the employee contended. It always maintained that his termination was based on job performance. While Chipotle elaborated on that explanation during the course of litigation, the nature of the explanation never changed.

Disciplinary policy. And while the employee claimed Chipotle failed to follow its progressive disciplinary policy, he presented no evidence supporting this allegation, and it was undisputed he discharged employees without following a progressive discipline policy.

No speculative reasons. Finally, as to his argument that Chipotle’s stated reasons for his discharge were purely speculative, the court observed that while the discharge explanation was based largely on subjective factors, Chipotle’s concerns existed long before the employee’s protected activity, indicating that the reasons were not fabricated to conceal a retaliatory animus. Moreover, Chipotle’s concerns were not purely subjective as, for example, the audit of one of his restaurants resulted in objective, negative findings, for which the employee accepted responsibility.

Source:: Chipotle manager fired for poor performance, not objections to director’s ‘hiring too many Hmong people’ comment


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