Joseph J. Hopkins v. Electronic Data Systems Corporation

MOORE, Circuit Judge,

dissenting.

The majority holds that Joseph Hopkins failed to establish a prima facie case of discrimination based on his transfer to the Business Combinations department and ultimate termination. Moreover, the majority concludes that even if Hopkins could meet his burden, EDS provided a legitimate, non-discriminatory reason for its actions which Hopkins did not show to be pretextual. Because the majority does not consider EDS’s refusal to provide Hopkins with access to E-Tips and other placement services as a basis for discrimination, I respectfully dissent.

Hopkins may establish a prima facie case of discrimination by showing that: (1) he is disabled; (2) he is otherwise qualified for the position; (3) he suffered an adverse employment action; (4) EDS knew or should have known of his disability; and (5) after he was rejected or terminated, the position remained open or was filled by another person. See Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996). As the majority notes, EDS conceded that Hopkins is disabled, Hopkins is otherwise qualified for positions at EDS, and EDS knew or had reason to know of his disability. With respect to the third factor, Hopkins suffered an adverse employment action because he was denied the opportunity to use E-Tips and other placement services to find another position within EDS. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351 (6th Cir.1998) (denial of opportunity to transfer to another position within a corporation after position was eliminated constituted a basis for maintaining age discrimination suit). Access to E-Tips, an internal data base containing up-to-date information on hundreds of positions, was crucial in discovering open positions within EDS. Finally, the positions described in E-Tips, to which he was denied access, were open. Hopkins thus met his burden of making a prima facie ease- of discrimination based upon EDS’s denial of access to E-Tips and other placement services.

The burden of production then shifted to EDS to prove a legitimate, non-discriminatory reason for its actions. See Monette, 90 F.3d at 1186 . EDS claims that it had no duty to provide Hopkins with access to E-Tips and that it had no standard practice of giving terminated employees access to its placement services. See J.A. at 164-65 (Hitchcock Dep.); 190-91 (Ford Dep.). In addition, EDS asserts it did not treat Hopkins differently than other similarly situated, non-protected employees. As an example, EDS points to its treatment of Jim Murphy, a non-protected employee, who worked with Hopkins in the Business Combinations department and had similar responsibilities to Hopkins. Murphy also was denied access to E-Tips and other placement services after his position in the department was eliminated. Because EDS refused to provide both Hopkins and Murphy access to its placement services and treated them similarly, EDS claims its actions could not have been based on a discriminatory motive.

Hopkins, however, submitted evidence that EDS’s reasons for refusing to give him access to E-Tips and other placement services are pretextual. First, he asserts the reasons have no basis in fact because EDS’s standard termination procedure was to provide access to its placement services. EDS is a dynamic company that is constantly restructuring. See J.A. at 499 (Hopkins Dep.). It has at least one employee whose entire job appears to be helping people whose departments are eliminated find new positions. See J.A. at 538 (Hopkins Dep.). Hopkins stated that when an employee who was performing *665 well was terminated, EDS would allow that employee to find another position at EDS through its E-Tips and other placement services. “It would become that employee’s full-time job to find another job” for a month or even close to a year. J.A. at 496 (Hopkins Dep.). Hopkins himself had been able to take advantage of these services after his eight-person department was dissolved in 1993. See J.A. at 534 (Hopkins Dep.). In addition, Murphy similarly stated that when a successful employee’s position was terminated, he or she was usually allowed to use his or her desk, telephone, computer, e-mail, and E-Tips for a period of up to sixty days to find another position within EDS. See J.A. at 622-23 (Murphy Dep.). In Hopkins’s termination meeting, Justin Ford and William Hitchcock explained that his department was being eliminated because of budget cuts and assured him that they had no problems with his performance or attitude at work. See J.A. at 593 (Hopkins Dep.). Nonetheless, he was denied access to E-Tips and told not to look for another position within the company. See J.A. at 593 (Hopkins Dep.). EDS responds that Hopkins and Murphy, a non-protected employee, were similarly situated employees and both were denied access to EDS placement services. However, Murphy had a personal conflict with Ford, one of the department’s managers, who had shown hostility toward Murphy and told him “[w]e don’t want you around here.” J.A. at 625 (Murphy Dep.). Thus, the evidence shows that EDS departed from its standard termination policy and denied both Hopkins and Murphy access to E-Tips and other placement services because of managerial hostility — toward Hopkins because of his Adult Attention Deficit Disorder (“ADD”) and toward Murphy because of a personal grudge.

In addition, Hopkins’s claim that he was denied the opportunity to use EDS’s placement services to find another position because of his disability is supported by Hitchcock’s derogatory comments about his disability. In evaluating the relevancy of discriminatory remarks, this court examines the identity of the speaker and the substance of the remarks. See Ercegovich, 154 F.3d at 354-55 . If the comments were made by a person in a position to influence the alleged employment decision, they will be relevant unless they are so isolated and ambiguous as to be nonproba-tive. See id. at 355 . Hitchcock was Hopkins’s direct supervisor in the Business Combinations department and was responsible for helping him find another position within EDS. See J.A. at 538-39 (Hopkins Dep.). Hitchcock, however, expressly denied Hopkins access to E-Tips and specifically discouraged him from looking for another job at EDS, telling him “[d]on’t waste your time looking internally.” J.A. at 497-98, 593 (Hopkins Dep.). Thus, Hitchcock was in a position to decide whether Hopkins would have access to EDS’s placement services. Throughout late 1994 and early 1995, Hitchcock made derogatory, joking comments about Hopkins’s ADD. See J.A. at 521 (Hopkins Dep.). On one occasion in 1995, Hitchcock referred to Hopkins as “the mentally ill guy on Prozac that’s going to shoot the place up.” J.A. at 524 (Hopkins Dep.). Hitchcock’s comments were not isolated and were made within months of Hopkins’s termination and the subsequent denial of placement services. 1 Hitchcock’s *666 characterization of Hopkins showed that he questioned Hopkins’s mental stability and competency because of ADD; the comments were unambiguously derogatory. Although Hitchcock denies making any remarks about Hopkins’s condition, a reasonable juror could examine all of the evidence and conclude otherwise.

Based on the evidence that EDS deviated from its standard termination procedure for good employees and that Hitchcock made several derogatory comments about Hopkins’s condition, a genuine issue of material fact exists whether Hopkins was denied access to E-Tips and other placement services because of his disability. For the foregoing reasons, I believe Hopkins’s case should have been submitted to a jury and respectfully dissent.

. The majority claims Hitchcock made a single isolated remark long before Hopkins was terminated. The majority is incorrect because Hitchcock's remarks were both numerous and in close proximity to Hopkins’s termination. In his deposition, Hopkins stated that Hitchcock made comments "about [Hopkins] being mentally ill” on “[n]umerous occasions” in "late '94, early '95.” J.A. at 521 (Hopkins Dep.). He also stated specifically that Hitchcock referred to him as "the mentally ill guy on Prozac that's going to shoot the place up” sometime between "January of '95 and February of ’95.” J.A. at 523-24 (Hopkins Dep.). The majority correctly notes that Hopkins was terminated from EDS in February 1995. Therefore, there is evidence that Hitchcock made numerous derogatory comments about Hopkins's disability, includ *666 ing the particular comment quoted above, in the few months before his termination.