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Theater manager complains about Carmike Cinema's poor lighting, is fired, but cannot sue as a Whistleblower

The theater manager at Carmike Cinemas in Saginaw tried to sue his employer after he was fired for "blowing the whistle" on unsafe lighting conditions.  James Parks had worked for Carmike at the Fashion Square Mall since 2005.  In December of that year, he was promoted from Assistant Manager to Manager.  In 2008 and 2009, a new District Manager was hired and he criticized the cleanliness at Parks' location in annual employee audits.

During the same period, Parks was interacting with local police who were concerned with broken lights in the theater parking lot and the safety issues this represented.  Both Parks and local law enforcement officers confirmed that Parks encountered resistance from Carmike in correcting the problem.  Although Parks secured bids and raised the issue with the District Manager, he was unable to secure approval or funding for repairs.

From March to October of 2009, Township authorities and law enforcement both threatened Carmike management with civil penalties and expressed their concern over the lighting repair issue, citing disorderly behavior, lack of security and even a gun being discharged.  The District Manager acknowledged that he had received two bids for repairs but had taken no action.  At this point, the District Manager also wrote up an annual audit on Parks in which he represented that he was "completely sastisfied with the progress of Management staff to work on the areas of cleanlinessw concerns."

Within two months, however, Banda, the District Manager, reversed his complimentary audit, claimed cleanliness had taken a "step backward" and in January of 2010 he fired Parks.  Parks filed a civil suit under the Whistleblower Protection Act, arguing that Banda and Carmike had fired him because of his complaints to law enforcement about management's failure to respond to the lighting issue.  He also alleged age discrimination.

Banda admitted that Parks and another manager were replaced by two 27 year-olds and that he had never hired a manager over 40.  The Court's opinion doesn't give Parks' age, however, he was apparently older than 40.  His claim was summarily dismissed and unfortunately, his appeal was assigned to a Court of Appeals panel composed of staunch conservative Republicans.  Although the panel conceded that Parks was "engaged in protected activity" when he reported his lighting concerns to police, the panel held that there wasn't enough evidence of causation to allow a jury to consider his claim.  The panel ruled that the timing of the termination--months after lighting became a significant issue with police and government officials, coupled with the employee audit reversal (from satisfactory performance to unsatisfactory between October and November) was insufficient to create a circumstantial claim of retaliation.

Because Parks "did not have an extremely positive employment history," because the employment audits "[did] not contain any reference to Parks' reports to police" and because the termination was "only loosely temporally related to his protected activity" the conservative panel upheld the summary disposition of his claim.  If you wonder whether ANY employee could meet this panel's threshold for proving retaliation you are not alone:  in essence, an employee must have a spotless record, the retaliation must occur at the moment an employer learns of protected activity, and the employer must be stupid enough to include in its paperwork an illegal justification for the adverse employment action, apparently.  Even a paperwork reversal to document inadequate performance that was fine a month earlier doesn't raise a red flag to these judges.

The long and short of this holding is that Parks' right to a jury trial has been denied with regard to what appears to be a straight-forward illegal termination.  A man who raised legitimate safety issues with law enforcement is terminated within months, after his documented satisfactory performance is papered over.  If this guy can't sue for retaliation and at least secure a trial of his claims, we wonder who can.  Unfortunately, Republican judicial activists like Christopher Murray think that the courts exist solely to smooth the waters for commerce--not to enforce the law against special interests.

Oh, by the way, Parks' age discrimination claim was also dismissed.  Although the Court's opinion never did identify his age at discharge, it reported that his proofs about discharge and replacement weren't sufficient to show that Carmike's inadequate performance claim was merely a pretext.  Apparently, he needed a statement from management explicitly confirming that Carmike discriminates on the basis of age.

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