Fool Me Three Times: the Eighth Circuit Rules that an Employer Did Not Hold a Grudge Against a Thrice-Hired Plaintiff

In order to reach a jury in an employment discrimination lawsuit, a plaintiff-employee bears the burden of producing direct evidence of a discriminatory basis for his termination or that the defendant-employer’s legitimate reason for terminating the plaintiff is not credible. In Engelhardt v. Qwest Corp., et al., the Eighth Circuit Court of Appeals ruled that the plaintiff failed to carry this burden.

The Facts

Walter Engelhardt began work as a St. Paul-based technician for CenturyLink in 2000. In 2007, Engelhardt joined 300 other employees in a class action lawsuit against CenturyLink, which ultimately settled. Then, in 2008, Engelhardt was terminated by CenturyLink due to low productivity.

In 2011, Engelhardt applied to be a technician for CenturyLink in St. Paul through MP Nextlevel, which was an agency that placed contractors with telecommunications companies. When Engelhardt’s former supervisor at CenturyLink, Chris Fry, was notified of Engelhardt’s potential placement, he expressed confusion to his superior, Tim Buchholz, about how a terminated employee could return as a contractor. Six days later, Buchholz released Engelhardt from the assignment, citing that Engelhardt had been placed on CenturyLink’s “Do Not Rehire” list.

About a month later, Engelhardt contacted Buchholz and threatened suit for retaliation because Engelhardt believed he was released based upon his involvement in the class action. Subsequently, Engelhardt was informed that he had been cleared to work as a contractor. Engelhardt never actually began work as a contractor, however, due to CenturyLink terminating all of its contractors based upon a “seasonal slow down[.]”

In 2015, after moving to North Dakota, Engelhardt was encouraged by a friend to apply for a technician position at CenturyLink. Engelhardt then contacted former associates at both CenturyLink and MP. Engelhardt was then informed that there was nothing in his file impeding his return to CenturyLink and that he was welcome to come back. That summer, MP rehired Engelhardt and he was assigned to work as a contractor for CenturyLink.

About a week into Engelhardt’s assignment, Fry was contacted by Brian Burth, who was complaining about Engelhardt’s low productivity. Burth had been hired in June 2015 to monitor contractor performance. Fry then sent Burth’s email to Buchholz. About a half hour after Fry sent the email, Buchholz replied by stating that Engelhardt should be sent home.

Engelhardt later sued CenturyLink in federal court, alleging, among other things, a violation of the Fair Labor Standards Act (FLSA). According Engelhardt, he was terminated by CenturyLink as retaliation for his involvement in the class action and for his threatened lawsuit in 2011. In response, CenturyLink stated that Engelhardt was terminated based upon his low productivity. The federal district court then dismissed Engelhardt’s lawsuit, ruling that CenturyLink had provided evidence of a legitimate, non-discriminatory reason for Engelhardt’s termination, and that Engelhardt had failed to demonstrate that CenturyLink’s reason was unworthy of credence.

The Appeal

Engelhardt appealed the dismissal of his case to the United States Court of Appeals for the Eighth Circuit. On appeal, Engelhardt argued that issues of fact remained for a jury to decide as to CenturyLink’s motivation for firing Engelhardt. According to the Eighth Circuit, to prevail on a retaliation claim under the FLSA, it is a plaintiff’s burden to demonstrate that the reason offered by the employer to support the termination is not credible and is merely a pretext to terminate. Affirming the district court, the Eighth Circuit stated that Engelhardt failed to carry his burden.

First, Engelhardt claimed that Buchholz harbored a grudge against him due to Engelhardt’s participation in the 2007 class action and Engelhardt threatening to sue for retaliation in 2011. Engelhardt, however, was unable to cite to any evidence to support the claim. According to the Eighth Circuit, all the evidence showed was that Engelhardt was cleared to return in 2011, but was unable to do so after CenturyLink terminated its entire contractor work force due to the seasonal slow down.

Second, Engelhardt claimed that Buchholz’s grudge was shown by Buchholz firing Engelhardt in 2015 after only a week into Engelhardt’s assignment. Unpersuaded, the Eighth Circuit stated that the evidence showed that Buchholz had terminated other contractors only two-weeks into their assignments and the circumstances of Engelhardt’s firing were not so unusual to demonstrate CenturyLink’s discriminatory motive. Moreover, Engelhardt failed to refute Buchholz’s claim that Buchholz did not recognize Engelhardt’s name in 2015 when Buchholz determined to fire Engelhardt.

The Eighth Circuit concluded by stating that the record did not support Engelhardt’s “grudge theory.” Instead, all that was supported was CenturyLink’s claim that Engelhardt was terminated due to his low productivity. “Burth, Fry and Buchholz all cited Engelhardt’s productivity as the primary reason for his termination. Burth’s initial e-mail to Fry included a breakdown of Buchholz’s completed jobs, indicating that Engelhardt was falling far short of the expected five to six jobs per day.”

The Lesson

The Eighth Circuit reaffirmed the proposition that a plaintiff’s mere suspicion or hunch that he or she was subject to unlawful employment discrimination will not carry the day. Instead, a plaintiff must point to concrete evidence tending to show that the employer harbored discriminatory animus toward the plaintiff. Such evidence could be in the form of bad acts or statements by the employer directed at the plaintiff or evidence that other similarly-situated employees were treated more favorably. Engelhardt failed to present any such evidence.

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