Black Siemens Field Tech Can't Show Race Bias in RIF

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By Patrick Dorrian

July 21 — A black field service technician with Siemens Healthcare in South Dakota failed to show he was included in a 2011 nationwide reduction in force because of his race, the U.S. Court of Appeals for the Eighth Circuit ruled ( Cherry v. Siemens Healthcare Diagnostics, Inc. , 2016 BL 233919, 8th Cir., No. 15-1930, 7/21/16 ).

Farrell Cherry produced evidence that his immediate supervisor may have underrated his performance because he harbored a racial animus toward Cherry, the court said. However, there was nothing showing the Siemens Healthcare Diagnostics Inc. service director who chose employees to include in the layoff was motivated by Cherry's race, the appeals court found.

The court also rejected the argument that the service director acted as a mere conduit for the racial bias of Cherry's immediate supervisor. Cherry didn't show that the supervisor was aware, at the time he rated Cherry's performance in an allegedly discriminatory manner, that Siemens planned to reduce its workforce, the court said.

The decision illustrates a vital component of establishing employment discrimination under the “cat's paw” theory of liability. That component is proof that a biased subordinate who allegedly influenced a neutral decision maker in taking adverse action against a protected-class worker knew at the time of the alleged discrimination that the adverse action was potentially in the offing.

Discriminatory Influence Not Possible

The purpose of the cat's paw rule, Judge Jane Kelly said for the appeals court, is to ensure an employer can't shield itself from liability for a discriminatory termination “by using a purportedly independent person or committee as the decisionmaker” where that person or committee “merely serves as the conduit, vehicle, or rubber stamp” by which a biased subordinate achieves his or her discriminatory intent.

Here, Cherry's supervisor, Regional Service Manager Blaine Raymer, didn't learn of the planned workforce reduction until November 2011. Raymer therefore didn't actually know about the RIF when he rated Cherry's work performance poorly in 2010 and early 2011, put him on a performance improvement plan in June 2010, and complained to Service Director David Siebert—who made the RIF decision—about Cherry's performance, the court said.

“Raymer's negative performance reviews” and stories and jokes he and fellow field service technician Dave Eide told around or about Cherry “may very well have been discriminatory in nature,” Kelly said. “But it would simply not be possible” that Raymer used Siebert as a dupe to trigger Cherry's inclusion in the RIF given the sequence of events, she said.

Cherry worked for Siemens for 20 years and was the sole field service technician in the Rapid City, S.D., area for many years. He claims his trouble started in 2008 when Raymer became his supervisor and Eide was brought in as a second field service technician in the area. Raymer favored Eide, and the two men created a racially hostile work environment for him, Cherry alleged in his lawsuit under Title VII of the 1964 Civil Rights Act.

‘Mixed Information' About Job Performance

The court noted that there was “mixed information” regarding Eide's and Cherry's “relative job performance” prior to Cherry's selection over Eide for inclusion in the RIF. “In September 2011, when Siebert asked Raymer for a list of employees with current performance improvement plans, Raymer gave Siebert Cherry’s name, even though Cherry’s performance improvement plan had expired in August 2010,” the court wrote.

In addition, although Eide repeatedly complained about Cherry’s performance, “an internal report in June 2011 ranked Eide as the lowest-rated field engineer in the area,” but a later draft of that report ranked Cherry lowest and Eide second-lowest, the court said. Moreover, Raymer at one point suggested to a major client that Eide replace Cherry as their primary technician, but “the client flatly refused.”

Despite that evidence, Cherry couldn't show race discrimination because he also couldn't refute Siemens's explanation that Siebert had honestly relied on Cherry's record of poor performance in choosing him for the RIF, the court ruled. Cherry's only evidence of possible discrimination concerned Raymer and Eide, it said.

Siemens Healthcare has rebranded itself as Siemens Healthineers.

Judges William Jay Riley and Steven M. Colloton joined the opinion.

Abourezk Law Firm represented Cherry. Littler Mendelson represented Siemens.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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