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If you have read our discrimination attorneys’ previous posts, you have learned a great deal about employment discrimination in all its forms. To recap: most states are considered at-will employment states, meaning your employer can fire you for any reason, as long as it is not discriminatory. If you are fired for a discriminatory reason (because of your age, race, national origin, gender, pregnancy, sexual orientation, religion, disability, or in retaliation for making a protected complaint), then it is considered a wrongful termination and is illegal. (Best Law Read: How Do You Win A Wrongful Termination Claim?; Does Title VII Prohibit All Discrimination?). Likewise, if you are fired today for reporting unlawful discrimination to HR or management, that employment laws also protect you from such retaliation. (Best Law Read: Retaliation Is Still Easier To Prove Than Discrimination; Employers Cannot Retaliate Against Spouses, Siblings, Significant Others; Can My Boss Give Me Dangerous Assignments For Reporting Discrimination?).

Because the default is at-will employment, to succeed with a discrimination or retaliation claim, an employee has to show they were discriminated against, and that the discrimination was the cause of their termination. How does one accomplish this, especially if the employer argues a legitimate business reason for the employee’s termination? This was recently discussed in Bledsoe v. Tennessee Valley Authority Board of Directors, No. 21-5808, 2022 WL 2965630 (6th Circuit, July 27, 2022).

In this case, Robert Bledsoe was employed by the Tennessee Valley Authority (TVA) for 37 years and, for most of his employment, worked as an Assistant Unit Operator (AUO) at the Sequoyah Nuclear Plant. The TVA runs training programs, and the AUO training program has two types of courses: the Nuclear Student Generation Plant Operating (NSGPO) training courses and the Non-Licensed Operator Requalification (NLOR) training courses. Each TVA nuclear plant has a joint local training subcommittee that oversees both programs.

In May 2015, Bledsoe was appointed to be an NSGPO instructor. In this position, Bledsoe developed lessons, exams, and course materials, and collaborated with licensed and non-licensed instructors in all the training programs. Jeremy Baily was Bledsoe’s direct supervisor, and Bailey’s supervisor was Christopher Dahlman, who managed all training programs at the Sequoyah Nuclear Plant.

In October 2016, Bledsoe had to take a medical leave to manage his liver cirrhosis and undergo a liver transplant. Bledsoe returned to work in February 2017. Starting in April 2017, Dahlman began to harass and demean Bledsoe because of his age and medical condition. On one occasion, Dahlman demanded Bledsoe remove his medications from his desk and asked, “just how disabled are you?” Dahlman told Bledsoe that he was “tired of disabilities,” asked Bledsoe if he had any other disabilities, demanded Bledsoe explain his disabilities in detail, and asked if Bledsoe qualified for disability. When Bledsoe Dahlman at one point state that he was not “running a rehabilitation clinic.” Dahlman repeatedly demanded Bledsoe retire because he was “concerned about this disability [he had].”

In November 2017, Bledsoe reported Dahlman’s continuous harassment and discrimination to a human resources (HR) generalist, Megan Markum, and the union vice president, David Williams. Around this time Bledsoe’s son, Hudson, had applied for the NGSPO classes offered at both plants. Hudson was offered the position in the NGSPO class at Sequoyah and was expected to begin training in March 2018. Bledsoe was worried that Hudson being in his training class would raise a conflict of interest and brought his concern to Dahlman. Dahlman assured Bledsoe he should not worry about it, but if he was so concerned, he could teach the NLOR course instead. Independently to Bledsoe’s concerns, an operations management representative named Kevin Michael expressed concerns about familial conflicts within classes. Michael requested that Markum conduct an ethics opinion after Hudson’s interview.

Around the end of November 2017, the training subcommittee met to discuss the potential ethical issue posed by Hudson joining the NGSPO class. The subcommittee consisted of Dahlman, Markum, Williams, and Michael. Dahlman and Markum insisted on removing Bledsoe from all non-licensed training programs. Initially Williams and Michael proposed that Bledsoe be reassigned to the NLOR program, however they eventually changed their minds and agreed with Dahlman and Markum. Because of the subcommittee’s decision, Bledsoe was demoted, which resulted in a $28,000 reduction in salary.

Bledsoe alleged the TVA discriminated against him based on his age and disability under the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Rehabilitation Act of 1973. The TVA argued that their decision to demote Bledsoe was based on the ethical concerns that arose when Hudson was accepted to the training program Bledsoe taught. The court in Bledsoe v. Tennessee Valley Authority discussed whether the TVA’s cited ethical concerns were, in truth, pretext for a discriminatory demotion.

How do you establish causation in a disability discrimination claim?

Best Age and Disability Discrimination Lawyer Answer: Both the ADEA and Section 501 of the Rehabilitation Act require an employee to show that the discrimination was the “but-for cause” of the adverse employment action. Essentially the test for causation under these statutes (and the Americans with Disabilities Act) is: would the employee have suffered the adverse action if the discrimination had not occurred? In other words: causation is established when you can show that, but for the discrimination, the adverse action would not have occurred.

How does an employee show that discrimination was the but-for cause of their adverse employment action? There are two types of evidence an employee can use to establish causation under the ADEA and Rehabilitation Act: direct evidence and indirect evidence.

What is direct and indirect evidence of discrimination?

Best Employment Discrimination Lawyer Answer: Direct and indirect evidence of discrimination can both be used to establish causation. Direct evidence is “evidence that proves the existence of a fact without requiring any interferences. Willard v. Huntington Ford, Inc., 952 F.3d 795, 805 (6th Cir. 2020). Basically, the evidence itself would convince a jury that the discrimination motivated the decision without needing anything additional.

Bledsoe argued that Dahlman’s statements about his age and disabilities constituted direct evidence that his demotion was motivated by discrimination. The court did not find Dahlman’s statements to be direct evidence. The court noted that the statements could have been direct evidence- particularly the comments suggesting Bledsoe could not effectively teach because of his age and disabilities- however the extent of Dahlam’s influence on the subcommittee’s decision was not obvious. Discriminatory comments of the kind Dahlman made are direct evidence of discrimination “only when they come from a supervisor with at least a meaningful role in the decision-making process.” Bledsoe v. Tennessee Valley Authority, citing Bartlett v. Gates, 421 F. App’x 485, 489 (6th Cir. 2004). Here, because a subcommittee of four individuals with presumably equal influence made the decision to demote Bledsoe, rather than Dahlman unilaterally deciding, his comments cannot constitute direct evidence. A jury would need additional information to make the leap that Dahlman influenced the decision.

The court then turned to Bledsoe’s indirect evidence of discrimination. When it comes to indirect evidence, there is a “burden shifting framework.” First, it is the employee’s responsibility to establish a prima facie case of discrimination (Best Read: How Do You Win a Discrimination At Work Lawsuit?) Once the employee establishes a prima facie case, the burden shifts to the employer to give a non-discriminatory reason for the adverse action. The burden then shifts again to the employee to show that the employer’s proffered reason is actually pretext for the discrimination.

How can I prove my employer’s reason for termination was pretext?

Best Wrongful Termination Lawyer Answer: To demonstrate pretext, an employee must show that the employer’s proffered reason: (1) had no basis in fact; (2) did not actually motivate the adverse action; or (3) was insufficient to justify the adverse action. Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 421 (6th Cir. 2021). (Best Law Read: Employment Discrimination Question: What Is Pretext?).

In Bledsoe’s case, the court was persuaded that there was at least a question of fact for a jury to answer about whether the TVA’s proffered reason was pretext. The court found that Bledsoe offered sufficient evidence to suggest that Dahlman’s remarks were, indeed, discriminatory, that Dahlman wanted Bledsoe to stop teaching because of his discriminatory bias, and that Dahlman influenced the other three subcommittee members’ decision. Dahlman’s remarks themselves, Dahlman’s friendship with Markum, the fact that Williams and Michael changed their minds to ultimately agree with Dahlman’s recommendation, and how utterly adamant Dahlman was that Bledsoe be demoted, rather than transferred, constituted enough indirect evidence to support the conclusion that the cited “ethical concerns” were pretextual and that Dahlman used the first convenient excuse he was given to demote Bledsoe.

How do I sue my employer for discriminating against me at work?

Best Employee’s Rights Law Firm Answer: If you have recently been terminated or demoted and believe the reason your employer gave you is pretext for discrimination, call the right attorney at Spitz, the Employee’s Law Firm to schedule a free and confidential consultation. (Best Law Read: What is the Spitz No Fee Guarantee?). Each case is different and presents complex issues that must be analyzed. To that end, it is very important to have an experienced consider the facts specific to your situation. (Best Law Read: Why Having Skilled Employment Attorneys Is Critical).

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