​An employer’s termination of an employee for violating policy after receiving prior discipline was enough to establish a legitimate nondiscriminatory reason for discharge, according to the 8th U.S. Circuit Court of Appeals.The plaintiff worked as a private fleet safety manager for the employer in Iowa. In January 2016, the plaintiff was issued a third written warning after he disclosed an employee’s medical condition during a training session. This meant the plaintiff could be fired if disciplined again. About one year later, the plaintiff violated the employer’s hazardous materials endorsement (HME) policy when he allowed a driver to continue working for 30 days after failing to obtain an HME without informing the employer. The employer gave the plaintiff the option to resign or be dismissed. The plaintiff resigned. He then sued the employer under Iowa law, alleging age discrimination.The plaintiff presented no direct evidence of discrimination, and the district court granted summary judgment to the employer. On appeal, the plaintiff argued that the employer’s reason for terminating his employment—violating the HME policy after receiving a third written warning—was a pretext for discrimination. The plaintiff argued that his former supervisor made disparaging comments about older individuals, but the former supervisor was not involved in the decision to terminate the plaintiff’s employment and the comments the plaintiff identified took place months before his termination. The 8th Circuit also dispensed with the plaintiff’s argument that his positive performance history did not warrant termination because the plaintiff’s performance had not been exclusively positive and the employer relied on his recent infractions. The plaintiff was unable to show that similarly situated employees were not disciplined for violating the HME policy.The appeals court also found the plaintiff’s statistical evidence insufficient. The plaintiff showed that most safety managers who had been recently fired by the employer were over 40, but he did not provide the contextual information necessary to show discriminatory intent.The employer’s consistent and supported explanation that the plaintiff was terminated for violating the HME policy after receiving a third written warning was sufficient to overcome the plaintiff’s general arguments that the employer had terminated him for discriminatory reasons. The 8th Circuit found that no reasonable juror could find the employer’s reason for termination was a pretext for discrimination.Gardner v. Wal-Mart Stores Inc., 8th Cir., No. 20-1831 (June 23, 2021).Professional Pointer: Employers should use clear and consistent factual explanations when terminating employees. When an employer documents performance issues appropriately and consistently, a former employee will need more than generalized statements to successfully prosecute a lawsuit against the employer.John T. Ellis is an attorney with Ufberg & Associates, LLP, the Worklaw® Network member firm in Scranton, Pa. …

​A transgender woman could not establish employer liability for a co-worker’s threatening statements and conduct that the employer investigated but could not immediately stop, or for retaliation, the 6th U.S. Circuit Court of Appeals ruled.The plaintiff lived and presented as a man when starting to work for the city of Detroit in January 2016. About five months after starting the job, the plaintiff decided to undergo surgery to transition to a woman and asked for time off. The city supported the transition and the need for time off.The plaintiff returned to work after the first of a series of medical procedures. The plaintiff’s supervisor revealed that someone filed a complaint alleging that the plaintiff had violated the dress code, but the supervisor stated that the plaintiff’s attire was appropriate. In July, the supervisor again told the plaintiff that another dress-code complaint was filed.The plaintiff took medical leave at the end of October 2016 for an additional surgery and returned in December. On Dec. 14, the plaintiff’s office nameplate was defaced with the word “Mr.” scrawled on it. The plaintiff complained and, in response, the plaintiff’s supervisor and an administrative assistant removed, cleaned and replaced the nameplate. The plaintiff also complained of harassment to several HR professionals but allegedly received no response.Two days later, someone delivered to the plaintiff’s desk a gift bag that contained a phallic sex toy and a handwritten note quoting a Bible verse against cross-dressing. The note also said, “We don’t wont (sic) people like you working here.” The plaintiff reported the gift bag and note and asked the city to install a lock on the office door and a camera to help identify the harasser.That same day, the city asked employees to provide a handwriting sample and told employees the city had a zero-tolerance harassment policy that could result in termination. An HR professional examined the handwriting samples but was unable to conclude whether any matched the note. The city interviewed employees but no one admitted to involvement.At the end of February, the city sent the plaintiff its report concluding it could not identify who had defaced the nameplate and left the gift bag. The report recommended that a lock and camera be installed but neither were installed despite the plaintiff’s requests.On May 8, 2017, the plaintiff received a typed note quoting a Bible verse commanding execution of homosexuals and reported it as a death threat. The plaintiff learned that a nearby co-worker in accounting made the earlier dress-code complaints. The plaintiff suspected that the co-worker might be the harasser but did not tell HR or the city.The plaintiff asked to stay home, but the request was denied. Less than two weeks later, a threatening typed note was placed on the plaintiff’s office door. The plaintiff again complained to HR and to federal and state equal employment opportunity agencies and told HR that the co-worker in accounting was likely to blame. The city did not interview the co-worker, and the plaintiff was moved to a new office so that locks and cameras could be installed in the plaintiff’s office.Later that year, an HR professional discovered that the co-worker had previously viewed the plaintiff’s Facebook page in the office and made disparaging comments. The city suspended the co-worker for three days and moved him away from the plaintiff. The harassment finally stopped.During the course of the harassment, the plaintiff’s supervisor complained of the plaintiff’s attendance and would not allow the plaintiff to have the office door closed during work hours. The plaintiff complained to HR, and the complaint was shared with the supervisor. The supervisor left the city’s employment five months later, and the plaintiff applied for the position. The city selected someone else for the position. The plaintiff claimed this new supervisor gave poor reviews and engaged in other acts of retaliation.The plaintiff filed a federal lawsuit against the city, claiming sexual harassment and retaliation. The city moved for summary judgment, which the district court granted. On appeal, the 6th Circuit determined that the city had fulfilled its duty to investigate the acts of harassment, even though it did not find the perpetrator. It further found that the plaintiff could not establish retaliation by the city because the decision not to promote her occurred months after the complaints were made and the plaintiff presented no other evidence of causation.Doe v. City of Detroit, 6th Cir., No. 20-2029 (June 10, 2021), petition for en banc rehearing denied (July 28, 2021).Professional Pointer: While the law governing harassment generally requires employers to make good-faith efforts to end harassment, it will not penalize an employer when it does not discover the identity of an unknown harasser.Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.