The Eleventh Circuit Court of Appeals recently recognized that repeated mishandling of company funds in a short time period is a legitimate basis for terminating an employee.  Chukes v. Sailormen, Inc., No. 15-12192, 2016 WL 1534071 (11th Cir. Apr. 15, 2016).

Chukes began work as an Assistant Manager for a Popeye’s restaurant franchise in September 2012.  By October 26, 2012, her restaurant’s safe was short on cash at least three occasions.  On that date, the franchise suspended Chukes and launched an investigation into the missing funds.  The supervisor conducting the investigation testified that he intended to convert the suspension to termination if the investigation determined that Chukes was responsible for the shortages.

The day after her suspension, October 27, 2012, Chukes claimed that another employee was terminated after rejecting sexual advances by a co-worker.  Thereafter, the supervisor conducting the investigation determined that Chukes was taking money from the safe, and Chukes’ employment was terminated.  Chukes sued for discrimination and retaliation under Title VII of the Civil Rights Act of 1964.  Those claims were dismissed in the United States District Court and the Eleventh Circuit affirmed dismissal.

Chukes tried to claim that her termination was discriminatory because funds were missing following the shift of another manager.  The Eleventh Circuit rejected that argument and relied upon the requirement that “the quantity and quality of the comparator’s misconduct be nearly identify to prevent courts from second-guessing employer’s reasonable decisions and confusing apples and oranges.”  The comparator had worked as a manager for years and money was only found missing once during his tenure.  In contrast, money was found missing three times during Chukes’s two-month employment period.

Federal courts regularly reject attempts by employees to compare their misconduct to that of other employees who are not terminated, because the comparator employees are not “nearly identical.”  Indeed, the “nearly identical” standard also played a role in a recent decision dismissing claims against Hyundai in Alabama: Eleventh Circuit Affirms Dismissal of Retaliation Claim Against Hyundai  Thus, the Chukes and Hyundai cases demonstrate the importance of implementing uniform standards of punishment for similar conduct by similar employees.

On April 21, 2016, Senior United States District Judge W. Harold Albritton found that Tuskegee University’s former Director of Human Resources, Ruby McMullen, could not sue the University for retaliation under Title VII of the Civil Rights Act of 1964.  See McMullen v. Tusekegee University, No. 3:15CV16-WHA, 2016 WL 1601040 (M.D. Ala. Apr. 21, 2016).  Judge Albritton’s decision hinged upon the fact that Ms. McMullen’s arguably protected conduct occurred in the course of her normal job performance as Director of Human Resources.

On December 2, 2013, Tuskegee employee Tracy Boleware filed a complaint alleging harassment by University Vice-President Dr. Mohammad Bhuiyan.  Later that day, McMullen attended a meeting with Bhuiyan and the University’s General Counsel where termination of Boleware’s employment was discussed.  McMullen warned that termination of Boleware was, or might appear to be, retaliation for her harassment complaint.  McMullen was told that the University’s president had decided prior to December 2 to terminate Boleware’s employment.

After the December 2 meeting, McMullen met with the University President who told her that he did not feel she was on his team and wanted to let her know where she stood.  She also attended a subsequent meeting with the President, Bhuiyan and the General Counsel where they complained that she did not warn them about retaliation.  McMullen protested that she warned them in the December 2 meeting about the appearance of retaliation.

McMullen’s employment was terminated on January 21, 2014.  McMullen then sued Tuskegee for retaliation.  She claimed that Tuskegee retaliated against her, because she opposed the retaliatory termination of Boleware.

Judge Albrtitton granted summary judgment and dismissed the retaliation claim.  In part, he relied upon the “manager rule,” which holds:  “a management employee that, in the course of her normal job performance, disagrees with or opposes the actions of an employer, does not engage in ‘protected activity.'”  McMullen, 2016 WL 1601040 at *4.  “Instead, the employer engages in protected activity if she crosses the line from being an employee performing her job, to an employee lodging a personal complaint.”  Id. at *5.  Because McMullen opposed termination of Boleware in the course of her normal job performance as Director of Human Resources, Judge Albritton found that she could not successfully sue Tuskegee for retaliation.

The “manager rule”provides an effective defense for employers who are sued by managerial employees for retaliation.  Those employees are frequently required to give their advice and input regarding termination decisions.  If those managerial employees are later terminated themselves, the “manager rule” makes it very difficult for them to claim retaliation based upon their involvement in other termination decisions.