Panel says claim alleging pay bias clear to proceed

Ruling says woman’s firing could be seen as retaliation

A woman who said she was fired from her job at Oakley Grain in Arkansas City because she complained about unequal pay based on her sex can pursue her claim before a federal jury, an 8th U.S. Circuit Court of Appeals panel said Wednesday.

Two members of the three-judge panel reversed U.S. District Judge James Moody Jr.'s Oct. 27, 2015, ruling tossing Shana Donathan's complaint out of court. The third judge on the panel said he would have affirmed Moody's ruling.

Moody dismissed Donathan's Oct. 20, 2014, lawsuit after finding that she failed to show that her termination was related to a legitimate complaint of wage discrimination and was a direct result of her engaging in "protected" activity. The activity in question, which Moody agreed would be protected by federal law, was sending an email in January 2014 to the company president complaining about perceived wage discrimination.

Donathan, who had worked for the company since 2010, was fired on a Friday, eight days after she sent the email. Four other employees were let go at the same time in what the company called a layoff. But three of them, who were temporary workers, were rehired the next Monday, and a new "regular" worker to replace Donathan was hired that same day.

The company later said the layoffs occurred because its Yellow Bend plant in Arkansas City was suffering from a post-harvest slowdown, but the seasonal workers were rehired after a surprise new grain contract was secured over the weekend. It said Donathan wasn't rehired because, when she was given her layoff notice at lunchtime, she went home immediately rather than working her entire shift, as the three others had done.

The layoff notice didn't specify whether the employees should work the rest of the day or leave immediately, noted the majority opinion, written by Senior U.S. Circuit Judge Michael Melloy of Cedar Rapids, Iowa, and joined by U.S. Circuit Judge Bobby Shepherd of El Dorado. Melloy also noted that Donathan's replacement, who lacked the skills that Donathan had to do the job, remained in the position for years, reinforcing Donathan's contention that the position wasn't generally subject to layoffs, as were seasonal positions.

Moody cited 8th Circuit precedent that to prove retaliation discrimination, a plaintiff must show he was fired as a direct result of conduct that is considered "protected." Moody said there was a lack of sufficient evidence to show that Donathan's termination was related to the email she had sent to the company president. He also said she failed to counteract the company's claim that her failure to finish her shift was the reason she wasn't rehired.

Moody also dismissed a separate claim of sex discrimination in wages that Donathan didn't appeal.

According to the 8th Circuit opinion, Donathan sent the email after learning that her brother, also an Oakley Grain employee, had received "harvest and safety bonuses" at the plant's Pendleton facility, which the company said was operated separately from the Yellow Bend facility. Her email complained that she hadn't received any bonuses and that new employees she was required to train were being paid more than she was.

Company President Dennis Oakley forwarded the email to Donathan's supervisor, Charlie Porter, who managed the Pendleton and Yellow Bend facilities, and who told Oakley that he was going to lay off employees.

Porter forwarded the email to another employee who didn't supervise Donathan, who in turn forwarded it to yet another employee who didn't supervise Donathan, and who ended up securing the surprise grain contract over the weekend -- a fact that Melloy called significant.

"A rational jury could easily conclude [the company] terminated Donathan in retaliation for her complaint and did so under the auspices of eliminating a position out of economic necessity all the while harboring the intent to keep her position continuously filled," he wrote.

U.S. Circuit Judge Steven Colloton of Des Moines, Iowa, said in a dissent that the majority's "scenario is too far-fetched to support a reasonable finding that retaliatory motive was the but-for cause" of the termination.

Donathan is being represented by attorneys Timothy A. Steadman and John T. Holleman, both of Little Rock, while the defendants are represented by attorney Penny Collins Choate of Searcy.

Metro on 06/29/2017

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