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Kinzel v. Discovery Drilling6/25/2004
atutory policy against retaliatory discharges.
We discussed the sufficiency of the evidence for a mixed-motive instruction in Era. In Era we considered whether a plaintiff, who complained of gender discrimination, had presented enough evidence to warrant a mixed-motive instruction. The evidence presented in that case involved two harsh statements directed toward the plaintiff in which she was told she "had no . . . business being a captain" and that she would "never be a captain." We noted that these statements could not be construed to be "direct evidence that sex was a factor" in Era's failure to promote the plaintiff.While the statements were certainly clear that the Era decisionmaker had a strong view that the employee did not deserve a promotion, they were silent as to the reasons for this view. "Both statements are ambiguous - they can be interpreted in a discriminatory or benign way - and do not reflect directly on Era's discriminatory animus."
Here, Kinzel argues that unlike the situation in Era, the evidence presented at trial revealed an animus based on his protected activity. At trial, Kinzel presented two e-mails written and sent by Brown to Craig Martin. The first e-mail was dated July 25, 1998. Brown wrote Martin:
I understand that you have told Dave to have Jeff Kinzel removed from the site. I understand. Please confirm that request to me in writing. It can be by e-mail or fax. If you would include an official reason, that would be helpful. I do apologize for the recent events, however I was stuck in the middle between you and Jeff. I assume we might take up all that at a later time when the wound is not so fresh.
At trial, Brown was asked to explain what "wound" he was referring to in his message. Brown replied, Well, obviously, an OSHA investigation is an unpleasant arrangement in any regard. The things that they were looking into, Craig was clearly not happy about it. In a general sense, I don't know that anybody was happy about having to discontinue what they were doing and respond to the investigators' requirements.
In an e-mail dated August 13, 1998, to Martin, Brown wrote: Craig, I am sure that neither of us are happy about the way this project ended. It was a no win situation for absolutely everyone involved. . . . I just wanted to touch base after the initial pain had subsided a bit and say that I clearly tried too long to give Jeff [Kinzel] a chance to get over the details and see the big picture. . . . I will be paying for a long time for giving him a chance.
When Brown was asked at trial about his use of the words "initial pain," he acknowledged that he again was referring to the OSH investigation. He further testified that he was upset more about Kinzel's report to OSH than he was about the quality of his work.
Brown's e-mails and corresponding testimony reveal an animus based on Kinzel's OSH report. Brown characterized the actions of Kinzel as creating a "wound" and a "pain" in the relations between Discovery and Hart Crowser, and Brown's explanation at trial revealed he was upset with Kinzel for these actions: "So I guess what I was upset about was not the work." These facts distinguish this case from Era. In Era, the plaintiff failed to provide evidence of animus based on forbidden motives. Here, however, the evidence shows an animus triggered by Kinzel's safety complaints.
Although the e-mail statements by Brown as explained by his testimony directly reflect an animus against Kinzel based on Kinzel's protected conduct, was the evidence sufficient to permit a jury "to infer that that attitude was more likely than not a motivating factor in the employer's decision"? We believe that i
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