Would Chris Bosio Win a Wrongful Termination Suit?

Last week, Detroit Tigers pitching coach Chris Bosio was fired by GM Al Avila for what was then described as “making an insensitive comment directed at a team employee.” Though he didn’t disclose the nature of the insensitive comment at the time, Avila said that the team has a “zero tolerance” policy for the conduct in question, adding that he holds team employees “to the highest standards of personal conduct on and off the field.”

Later, however, ESPN reported that Bosio was fired for calling someone a “spider monkey.”  The Tigers and Bosio differ, however, on the person to whom Bosio was referring. Bosio insists that “Spider Monkey” is a nickname for Tigers LOOGY Daniel Stumpf, currently on the disabled list. Per USA Today’s Bob Nightengale:

Bosio insists he was not using the word in a racial and disparaging context, and that it was not directed toward the clubhouse attendant. He says he referring to injured pitcher Daniel Stumpf, a white pitcher from Humble, Texas.

“Someone in our coaches’ room asked me (Monday afternoon) about Stumpf,” Bosio said. “And I said, “Oh, you mean, ‘Spider Monkey.’ That’s his nickname. He’s a skinny little white kid who makes all of these funny faces when he works out.

“The kid thought we were talking about him. He got all upset. He assumed we were talking about him. I said, “No, no, no. We’re talking about Stumpf.’

“And that was it. I swear on my mom and dad’s graves, there was nothing else to it.”

But other witnesses relayed to Ken Rosenthal and Katie Strang of the Athletic a very different story:

Bosio called the attendant, who is African-American, a “monkey,” according to four team sources. The remark was directed toward the young man, who was collecting towels from the coaches’ room at the time, during a post-game gripe session in which Bosio was lamenting about a pitcher.

During this exchange, Bosio made a derogatory comment about one of the Tigers pitchers and then gestured toward the attendant before adding, “like this monkey here,” the sources said. The attendant pushed back at Bosio for the comment, and an additional team employee witnessed the exchange. Bosio was provided an opportunity to apologize to the attendant after his outburst but declined to do so, according to multiple sources.

And Stumpf himself didn’t back up Bosio, either.

Bosio is insistent that he was wrongfully terminated — so much so, in fact, that he has threatened to sue the team for wrongful termination. To make out a claim for wrongful termination, a plaintiff generally has to prove that they were fired for an impermissible reason. Most often, that impermissible reason relates to whether the fired employee was terminated for being a member of what’s called a “protected class.” Depending on the state, that includes things like race, gender, gender identity, religion, national origin, disability, and citizenship or immigration status. But Bosio, as a straight, cisgender, white male, doesn’t appear to be a member of a protected class, and there’s no evidence he was terminated for being any of those things in any event.

Michigan law also provides for other bases to bring wrongful termination claims.

Written Contracts: Any written contracts that cover employment and termination will be considered according to both contract law and employment law. Generally, the written contract will govern the terms of the employment and the employment will not be considered “at-will.” Violations of contract terms may form the basis of a wrongful discharge lawsuit.

Oral Promises: Michigan will also consider whether your employer made any oral promises regarding your termination procedures. For example, if they told you that they would not fire you within the next six months, and you relied on this promise to your detriment, it may be considered wrongful termination. However, the oral promise exception is very difficult to prove and will be subject to rigorous analysis in court.

Public Policy Violations: Employers in Michigan may not terminate at-will employees if the termination violates public policy. Examples of public policy violation include firing an employee in retaliation for reporting health and safety violations or for firing an employee who refuses to commit an illegal act.

Legitimate Expectations: If your employer has created an environment that causes an employee to believe that certain practices are applicable to all employees, this may create a “legitimate expectation” in the mind of the employee. For example, language contained in an employee handbook can cause an employee to reasonably expect their employer to follow certain termination procedures.

In practice, oral promises are incredibly hard to prove, and don’t seem applicable here anyway. “Public policy” is hard to define, but lawyers generally use it to denote what we, as a society, have decided is the Right Thing to Do. So, for instance, requiring an employee to sell cocaine or kill business rivals would violate public policy. That doesn’t seem to apply here, either. The other options are for breach of a written contract and breach of “legitimate expectations,” which in some states is also known as “reasonable reliance.”

Bosio’s strongest claim would probably be for breach of a written contract. Michigan is an at-will employment state, which generally means that an employer can legally fire an employee at any time for almost any reason. But at-will employment doesn’t apply to contract employees, and Bosio, like nearly all other major-lkeague managers and coaches, worked for the Tigers pursuant to a written contract. When the Tigers fired Bosio, they terminated his contract.

In a vacuum, terminating an employee under contract before the end of the term (length) of that contract would be a breach of that contract. That’s because, when an employer signs a contract with an employee, the employer is promising to employ, and pay, the employee for the entirety of the contract term. It’s similar to a lease, where you agree to pay rent for a certain period of time. But there are reasons, called affirmative defenses, which excuse performance of a contract. And one of them is that the other party breached first. In other words, if you and I agree that I’ll pay you $10 for a ticket to a Yankees-Red Sox game, you are excused from giving me the ticket if I don’t give you the money. And the same applies to Bosio’s situation: if Bosio’s comment breached his contract with the Tigers, then the club was legally excused from continuing to employ him and could legally end his contract before the term was up.

Coaches’ written contracts aren’t publicly available. But players’ contracts have clauses requiring certain standards of personal conduct like this:

And this:

Most written employment contracts have similar language, requiring employees to comply with employer rules and generally not do anything to bring disrepute upon the employer. The phrase “high standards of personal conduct” is obviously pretty vague, but if the team really does have rules against racial epithets as Avila says, Bosio’s statement is almost certainly covered. And — assuming Bosio isn’t telling the truth — calling an African-American clubhouse attendant a “monkey” almost certainly violates even the vague “personal conduct” language.

If Bosio is telling the truth, however, and if there aren’t specific written rules, Bosio may have a claim under those “legitimate expectations.” In other words, an employee can’t be terminated for reasonably relying on those written and oral policies that an employer made them aware of, and for not following rules they weren’t aware of. But that seems a stretch, for a few reasons. Multiple reports have indicated that Detroit does, in fact, have a personal conduct policy. And, from a practical perspective, reports indicate that there seem to be far more witnesses supporting the Tigers’ version of events than Bosio’s. In fact, Des Bieler at the Washington Post relayed that this one incident may have been just the tip of the iceberg.

There was more to it for the Tigers, who said they included legal counsel in interviewing people involved in the incident before the team’s general manager, Al Avila, decided to terminate Bosio’s contract. “We know what we did, and why we did it, and we’ll see where it goes from there,” Avila told Nightengale.

Similarly, The Detroit News‘ Lynn Henning passed this along:

Bosio had been a problem since the start of spring training, not because of any serious flaws on the pitching or tutorial side, but because of the occasionally abusive way in which he treated people.

Although pitchers generally liked his approach and his style, it was his demeanor outside of a narrow pitching construct that had made him increasingly a problem, particularly with fellow coaches who disliked him, the source told The Detroit News.

And, while it may be entirely unconnected, it’s also worth noting that Bosio had a surprising and unceremonious exit from Chicago’s North Side late last year.

Ultimately, we weren’t there and we don’t know what happened. But based on the reports we do have, Bosio has an uphill climb here. Whereas Bosio may have a prima facie case for wrongful termination, it does not seem as though it would be a winning one. And he runs a significant risk of making this worse for himself depending on what comes out in discovery and at trial in any case he brings. On the surface, at least, it seems that the Tigers made the right decision.





Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.

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Anon21
4 years ago

Agree with the overall analysis. Unless the Tigers are completely distorting what happened, they had grounds to fire him under whatever personal conduct clause appeared in his contract. But I don’t agree with this:

“But Bosio, as a straight, cisgender, white male, doesn’t appear to be a member of a protected class, and there’s no evidence he was terminated for being any of those things in any event.”

At least under federal law, one does not have to be a member of a minority racial or ethnic group to be protected from adverse employment action due to race, nor does one have to be a woman or gender minority to be protected from adverse employment action due to sex or gender. Most employment discrimination claims based on the plaintiff’s status as white or male are nonsense, but not because the plaintiff cannot show they were a member of a “protected class.”

HappyFunBallmember
4 years ago
Reply to  Anon21

Agree. We are all members of every protected class. An employee cannot be fired simply for being white any more than another employee can be fired for being black.

That being said, Bosio will have to go through some contortions (or there will have to be facts we don’t know about) to prove that this termination was based on his race, gender, or religion.

TKDCmember
4 years ago
Reply to  HappyFunBall

This is a case where the conclusion is correct, but the analysis is wrong.

CliffH
4 years ago
Reply to  Sheryl Ring

That’s absolutely false and an egregious error.

E L
4 years ago
Reply to  Sheryl Ring

Thankfully:

This post is intended for informational purposes only and is not intended as legal advice.

Free Clay Zavada
4 years ago
Reply to  E L

Crap

tung_twista
4 years ago
Reply to  Sheryl Ring

Nowhere in your link does it imply that history of discrimination has anything to do with what constitutes protected class.
A quick google search shows a lot of articles contradicting what you claim.

http://www.lawfficespace.com/2013/12/yes-white-males-are-protected-class.html
http://newday.blogs.cnn.com/2013/12/03/archie-boss-says-white-men-not-in-protected-class/

Legal Analyst and Criminal Defense Attorney Danny Cevallos says, “All of us are members of a protected class, that’s why I’m a little confused by this court filing. The bottom line is this, you can hire and fire people for any reason in the world, unless, and it’s a big unless, it’s based on your membership in a protected class. But white males are members of a class, just like any other race, any other gender and any other religion. It’s not that you have to be a historically disadvantaged member of the class, but that you are treated differently because of your membership in a particular class.”

TKDCmember
4 years ago
Reply to  Sheryl Ring

Your first source does not say what you say it says, and neither do others. We aren’t even talking about AA hiring practices here so I have no idea why you even bring that up. The fact that discrimination based on sex is less common for men and discrimination based on race is less common for whites does not make them not a “protected class.” This is just wrong. Period. Yes, men or whites are less likely to actually be discriminated against based on those characteristics, but that does not at all mean the same thing. And this furthers a pernicious line of attack used by trolls to attack civil rights, so you should really not go down this road.

https://www.archives.gov/eeo/terminology.html#p

“Protected Class: The groups protected from the employment discrimination by law. These groups include men and women on the basis of sex; any group which shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps. Every U.S. citizen is a member of some protected class, and is entitled to the benefits of EEO law. However, the EEO laws were passed to correct a history of unfavorable treatment of women and minority group members.”

OddBall Herrera
4 years ago
Reply to  TKDC

https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.pdf

You can’t just ‘use Affirmative Action’ as a tie breaker (or, as alleged in the above case, to put someone with lesser ‘resume’ qualifications ahead). I think it’s not hard to read between the lines that the above case came out the way it did because of how assiduous UT was in the structuring of their program (kudos to them) and defining a rational basis for race based decision making, and that decisions that are less well rounded would go the other way. What the case *didn’t* say is that “it’s ok, because the plaintiffs’ status as white does not include them in a protected class”.

TKDCmember
4 years ago
Reply to  Sheryl Ring

I don’t disagree with you about the reasons protected classes exist, the characteristics of most cases, or that Bosio was not fired because he was a member of a protected class. But taking your words most generously, your shorthand is incredibly misleading. Something that many non-lawyers have a hard time understanding is that you can be fired for all sorts of stupid or even unfair reasons, but there are these exceptions, and they apply to everyone. Your words make it seem as though you are not protected from being fired because you are white or a man (honestly, I think there may be some legal squishiness with straight or cis).

This also comes up fairly out of nowhere. There are not even claims from Bosio that his race, sex, or anything else played a role in his termination. Noting that he is white, male, straight and cis doesn’t matter, nor does it seem in this case that it would have mattered if any of those things weren’t true. It seems odd to throw that out there, but it is much worse to throw it out there and then strongly insinuate that those characteristics are not protected by law, when at least two of them definitely are.

The bottom line is that if Bosio were fired because he is white, that would be illegal and it would be illegal because it would be a termination based on a protected class. That protected class is race. Bosio is white. Thus, your statement that “Bosio, as a straight, cisgender, white male, doesn’t appear to be a member of a protected class” is wrong. Even using your shorthand method, this is very misleading, because under that analysis, he is not “not” a member of a protected class because of these traits, but rather because his termination had nothing to do with those traits. Again, this would be misread and lead to false conclusions 100 out of 100 times by anyone who did not possess a previous understanding of EEO law.

OddBall Herrera
4 years ago
Reply to  Sheryl Ring

Agreed, he isn’t one of them, primarily because I don’t see any alleged facts that suggest his whiteness or maleness was at all related to his firing (the Stumpf comment is particularly damning).

E L
4 years ago
Reply to  Sheryl Ring

That’s sure is a lot of words to inadequately restate:

Every U.S. citizen is a member of some protected class, and is entitled to the benefits of EEO law. However, the EEO laws were passed to correct a history of unfavorable treatment of women and minority group members.

It also seems to willfully ignore the Supreme Court just deciding to treat protected class litigation for religion rather differently. In the latest session, an aside about the religious beliefs of Christians is important evidence of discrimination to be rectified while bold-faced statements of intent to discriminate against Muslims are somehow not.

A “class” is any group of people that shares a characteristic. If that characteristic is one of age/race/sexual orientation/national original/sex, etc., then the class is protected. There’s literally no such thing as ‘”race” as a protected class’; instead, all the values of the race characteristic form the bases for protected classes: African-Americans, East Asian-Americans, but also Caucasian Americans.

OddBall Herrera
4 years ago
Reply to  E L

“In the latest session, an aside about the religious beliefs of Christians is important evidence of discrimination to be rectified while bold-faced statements of intent to discriminate against Muslims are somehow not.”

I mean…this is a little disingenuous. The S.C. ruled in the former case that statements combined with past actions (specifically inconsistent outcomes) demonstrated that the commission in Colorado was actually acting out of animus towards a particular religion. The S.C. in the latter case ruled that prejudicial statements by Trump didn’t outweigh that the standards for rational bases for a travel ban had been met. In that sense the rulings are entirely consistent – if you’re going to make prejudicial statements you better have a compelling case that the actions you take aren’t motivated by them.

Not to get too far into it, but the Masterpiece Cakeshop case was so, so narrowly tailored to the facts that its implications have been grossly overstated by both sides.

CliffH
4 years ago
Reply to  Sheryl Ring

“the bleeding edge of protected class litigation is LGBT people. Courts are finding that sexual orientation and gender identity are protected classes *because LGBT people* have, throughout history, been discriminated against.”

I believe protected classes can only be created by legislation. Do you have examples of judge-made law creating new protective classes? There are many states that have passed laws making sexual orientation a protected class. And I believe there have been cases where discrimination against same-sex couples was found to be regular old sex discrimination.

“The ADEA is a perfect example. Does it protect younger people? Sure. But the targeted protected class is people aged 40-70, and the discrimination they faced.”

This is actually wrong also. The ADEA does NOT protect people younger than 40. There has been litigation and it was determined that it provides no protection whatsoever against being fired for being too young.

“should an employer turn around and start firing people for being straight, then sure, then straight sexual orientation would then be a protected class.”

No, no, no. This is so, so wrong. I’m a bit disturbed by these inaccuracies, especially as it seems that you are doubling down and saying that this specific area is “all you do all day”

rgarofalo80member
4 years ago
Reply to  Sheryl Ring

Sheryl,

I am echoing the other sentiments here. He is a member of many protected classes, but that doesn’t mean he was terminated on the basis of one. Suggesting a class were only protected if it were historically discriminated against would in itself being discriminatory.