Republicans Discriminate Against LGBT Americans

On July 21, 2014 President Obama signed an Executive Order prohibiting discrimination against Americans working for companies doing business with the federal government based on sexual orientation and gender identity. What a common sense decision. Why should employers be permitted to fire a fellow American because they are gay or because of their gender identity? There is no excuse for employment discrimination, period. Sure, employers should be permitted to "discriminate" between employees based on work quality or production, but because of who they are? Please.

Leave it to our current Republican Congress to authorize discrimination against people because of their sexual orientation and identity. On April 29, 2016, the Republican-controlled House Armed Services Committee voted to allow such discrimination. Why stop there? Why not not approve discrimination based on religion, color or any other trait?

We don't need bigots in Congress. Vote a straight (no pun intended) Democratic ticket in November.

The Objective Test for Severe or Pervasive Sex Harassment

Dana Ellis worked for Jungle Jim’s grocery. Upon transfer to the seafood department her new supervisor, Caldas, started making lewd comments and suggestions on what she said was a daily basis.  Ellis cried and became physically ill because of her supervisor’s conduct. She needed her job, which paid $9.00 an hour. The store had a sex harassment policy in its employee handbook but Ellis didn’t follow it by complaining to her supervisor’s boss. A co-worker brought the harassment to the attention of management. The company reprimanded Caldas and told him to stop but the conduct continued albeit in a less direct way.

The law is clear as to what plaintiff’s such as Ellis must prove to win a hostile work environment sex harassment case:

Ellis must demonstrate: that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the "terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment," and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

The third element requires a two-pronged showing: the conduct in question must (1) be severe or pervasive enough to create an objectively hostile or abusive work environment, and (2) be subjectively perceived by the victim to be abusive.

When you read the opinion it seems abundantly clear that the supervisor created an abusive sexually charged work environment. Nevertheless, the trial court tossed the case on summary judgment because it decided that the supervisor’s conduct wasn’t bad enough to make it harder for Ellis to do her job. The court of appeals reversed that decision and sent the case back for trial. The trial court’s error was in making its own subjective determination that a reasonable person would have been able to put up with the supervisor’s behavior. This is what I believe is a common mistake judge’s make. The issue for the trial court is not the judge’s opinion of the plaintiff’s working condition; rather, the issue is whether reasonable people, sitting on a jury, could view the evidence as demonstrating the existence of a hostile work environment. It’s unfortunate that Ms. Ellis had to pursue a timely and costly appeal in order to correct what really is a simple application of the law.

Sixth Circuit Reverses Summary Judgment in Race Discrimination Case

        The U.S. Court of Appeals for the Sixth Circuit (which hears appeals from U.S. district courts in Michigan, Ohio, Kentucky and Tennessee) issued a plaintiff-friendly opinion in a race discrimination case on May 7, 2015.

        In Wheat v. Fifth Third Bank, No.13-4199 (6th Cir., May 7, 2015), the plaintiff, an African-American, initiated a verbal confrontation with a Caucasian co-worker. Their discussion ended when plaintiff went to his desk but the co-worker soon approached plaintiff and reignited the argument. They went to a hallway, argued back and forth and, according to plaintiff’s deposition testimony, the co-worker swatted his arm as he turned to return to his desk. Plaintiff admitted calling his co-worker a “bitch” numerous times. The co-worker admitted telling plaintiff that plaintiff did not know what the co-worker was capable of doing. A human resources representative met with plaintiff first. Plaintiff was not entirely cooperative during the interview but the record contained disputed facts and inferences as to what occurred. The co-worker was then interviewed. He essentially said he thought the two simply were having a bad day. Both employees were sent home but plaintiff was told not to report to work until notified. The bank terminated plaintiff for violating its workplace violence and anti-harassment policies, making a threat of physical violence, violating the bank’s “core values.” The bank issued discipline to the co-worker but did not terminate him. Plaintiff filed an administrative charge with the Ohio Civil Rights Commission. Upon receiving the charge the bank reopened its investigation and ultimately decided to terminate the co-worker as well.  

    The value of this case to plaintiff’s counsel is the court’s discussion of how summary judgment is supposed to work in the familiar McDonnell Douglas indirect evidence discrimination case. Gratifying in particular is the court’s citation to Reeves v. Sanderson Plumbing Prods.,Inc., 530 U.S. 133, 142 (2000), with respect to the third step of the McDonnell Douglas concerning pretext. Quoting Reeves the court said:

However, the burden on the defendant at this stage of the McDonnell Douglas analysis is not to prove the existence of a nondiscriminatory reason for the adverse employment action. Rather, as the Supreme Court has instructed, “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.’” (Quoting St. Mary’sHonor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).

Our analysis of the pretextual nature of the proffered justifications for Fifth Third’s employment decision again must be overlaid with an understanding of the summary-judgment principles at play. In other words, at this preliminary stage of the litigation, Wheat need only identify genuine disputes of fact regarding the legitimacy of the defendant’s stated reasons in order to withstand a motion for summary judgment. We conclude that the plaintiff has met that burden. 

       The Wheat case will be cited often by discrimination plaintiffs in cases in this circuit. It is without question a useful tool in overcoming summary judgment motions by employers and getting cases to trial.

Supreme Court Determines Scope of Judicial Review of EEOC Pre-Suit Conciliation Efforts

Read my article here.

Disability Discrimination, Evidence, and Getting to Trial

       Getting past summary judgment and to trial is what it’s all about. To do that takes evidence. Sometimes trial courts lose their way and by weighing the evidence submitted on summary judgment. That’s what happened in Nigrov. Sears, Roebuck and Co., No. 12-57262 (9th Cir., Apr. 10, 2015).  Fortunately for plaintiff the U.S. Ninth Circuit Court Appeals recognized the error and sent the case back to the district court for trial.

       Plaintiff suffers from ulcerative colitis. Following his termination he brought three disability discrimination claims: (1) termination because of disability; (2) failure to accommodate a disability; and (3) failure to engage in an interactive process to find a reasonable accommodation. Plaintiff’s evidence consisted of his testimony that Sears’ managers and supervisors told him that “[i]f you’re going to stick with being sick, it’s not helping your situation. It is what it is. You’re not getting paid, and you’re not going to be accommodated,” and that he was told not to be concerned about his pay issue because he was “not going to be here anymore.” The district court viewed this evidence as “self-serving.” The Ninth Circuit correctly viewed it for what it was: evidence.

       Plaintiff also presented evidence that his direct supervisor had granted a late start on an as-needed basis but the store manager still required him to arrive at the regular start time. Summary judgment was improper because a reasonable jury could infer that the store manager’s unwillingness to accommodate compelled plaintiff to arrive on time every day despite his need to arrive later.

       Plaintiff’s third claim survived based on evidence that Sears’s failure to accommodate had a “chilling effect” on his right to discuss accommodations. More to the point, the store manager’s statement to plaintiff that “You’re not getting paid, and you’re not going to be accommodated,” was direct evidence that Sears unlawfully refused to discuss accommodations.

     As the Ninth Circuit said, “it should not take much for plaintiff in a discrimination case to overcome a summary judgment motion.” All it takes, of course, is evidence. 

Equal Protection, LGBT and Religious Freedom

             An Executive Order signed by President Obama took effect on April 8, 2015 barring discrimination against members of the LGBT community working on federal projects. The Office of Federal Contract Compliance Programs is responsible for enforcement of the President’s initiative. When will Congress finally pass legislation banning discrimination on the basis of sexual orientation and gender identity? Not until Republicans are replaced with enlightened politicians who understand that equality means equality for everyone.

            Over the last few weeks I corresponded with radio talk show host Peter Heck of Indianapolis about Indiana’s “religious freedom” law. I must have baffled him in my final position statement when I pointed this out to him:

I think the freedom argument works both ways. A person isn't free if the government sanctions discrimination against them. That's tyranny. Under your argument anti-discrimination laws are tyrannical because the government is forcing people to behave a certain way. 

Moreover, the RFRA was enacted to appease one and only one religion. Indiana legislators I believe did not intend to protect the rights of the Muslim community, some members of which can now deny with impunity business services to "infidels" based on conscience. 

I note that Indiana's anti-discrimination law states that "[i]t is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations ***." The statute then identifies the currently recognized protected classes (race, religion, gender, etc.). Yet, certain Indiana citizens are not covered by this Indiana public policy despite the fact that the public policy encompasses "all of its citizens." I would argue that any law that sanctions discrimination against any citizen violates the public policy. 

Providing business services to all citizens is the price paid for participation in society. If a person objects on the basis of "religious freedom" then the solution is clear: live like the Amish, separate and apart from mainstream society.

            He had no response and that was the end of the discussion. For me at least it’s easy to see why. If all citizens are guaranteed equal opportunity employment rights, then how can the law not provide equal rights to any segment of the citizenry? Yet that is what employment anti-discrimination laws accomplish --  courts interpret them to allow discrimination against the LGBT community. Equal does not mean equal when it comes to protection against employment discrimination. Perhaps the key to changing the common law is to make an equal protection argument. This I will do the next time an opportunity arises.

Plaintiff Wins Based On Only Prima Facie Case in Reverse Discrimination Failure to Promote Case

      When an appellate court sums up plaintiff’s evidence as presenting a “fumbling, bumbling case of determined efforts to deny a promotion,” it’s a good day at the office for the plaintiff. That’s how the U.S. Fifth Circuit Court of Appeals described the evidence in McMullin v. Mississippi Department of Public Safety, No. 14-60366 (Apr. 6, 2015).

          This was a rather basic case of discrimination in the failure to promote context involving a law enforcement position. The case illustrates what happens when an employer prevaricates and is unprepared for questioning by an astute plaintiff’s lawyer. The plaintiff was white and the successful candidate was black. In employment discrimination cases that makes no difference – it’s all about equal protection of the law, right? – so the case goes in the books as a reverse race discrimination case.

          The plaintiff easily made her plaintiff’s prima facie under the McDonnell Douglas standard, as modified for failure to promote cases: (1) she is a member of the protected class; (2) she sought and was qualified for a position for which applicants were being sought; (3) she was rejected for the position; (4) the employer hired a person outside of the plaintiff’s protected class or continued to seek applicants with the plaintiff’s qualifications. This burden is very light. The real test for plaintiffs in these cases is responding to the employer’s evidence of a legitimate, nondiscriminatory reason for its promotion decision.

       In McMullin, though, the defendant employer offered no evidence of the reason for its decision. It “perfunctorily state[d] that it ‘has provided a legitimate, non-discriminatory reason for its decision ***.’ Beyond this statement, the Department provide[d] no discussion, explanation, or elaboration of its purported legitimate reason(s) for its promotion decision. This will not do. The Department’s burden was light. It needed only to produce or point to evidence of a non-race-based reason for its employment decision; yet, it wholly failed to do this.”

          What this meant is that plaintiff’s simple prima facie case, all by its lonesome, was enough to survive summary judgment and get the case to a jury. And getting a case to a jury is what it is all about.

        Not to mention, it probably didn’t hurt that the person who received the promotion had been fired twice by the employer, once for having sex with a confidential informant and later for not accounting to cash seized from a suspect and engaging in sexually explicit behavior during a vacation, among other antics. He was reinstated both times. Plaintiff’s record was clean.

         If the employer has any brains it will get this case settled. The Mississippi Department of Public Safety doesn’t need the publicity – taxpayer dollars at work once again for the citizens of the state.

Failure to Accommodate in Disparate Treatment Discrimination Cases -- Young v. UPS

            I’ve been meaning to share my thoughts about the U.S. Supreme Court’s decision in Young v. United Parcel Service, 575 U.S. ___ (Mar. 25, 2015). Work sometimes gets in the way, of course. But passage of time allowed me to jot down the following thoughts about what the decision means and its impact on discrimination law.

          Young addresses pregnancy discrimination and how plaintiffs can prove it in a slightly different context than your typical pregnancy discrimination case. Let’s first take a look at a district court decision filed on the same day as the Supreme Court’s decision in Young. In Rogers v. Southeast Psychiatric Services, Inc., 1:14-cv-354 (M.D. Ala., Mar. 25, 2015). Plaintiff Kimberly Rogers worked as a psychologist for the defendants’ psychiatric medical practice. Defendants designed and built a new office building, which included a space specifically for Rogers’ practice. Within weeks of the move defendants put Rogers’ nameplate on the door of her new office. Later that same day, Rogers announced she was pregnant. Defendants’ executive committee met one or two days later and decided to terminate Rogers’ employment.  

          The district court recited the basic McDonnell Douglas framework of analysis:

[T]he plaintiff first has the burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally. "To set out a prima facie case, the plaintiff may show that: (1) [s]he is a member of a protected class; (2) [s]he was qualified for the position; (3) [s]he suffered an adverse employment action; and (4) [s]he *** was treated less favorably than a similarly-situated individual outside h[er] protected class." (Citations omitted.)

          The parties did little in the way of arguing the fourth element; however, the court noted that “a plaintiff does not have to show a comparator if she *** presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” (Citations omitted.)

          The court reviewed the evidence and decided that Rogers presented a prima facie case, there was evidence that defendants' proffered reasons were pretextual and that summary judgment should be denied.

          The evidence in Rogers can be categorized as a typical pregnancy discrimination case under Title VII. The same cannot be said of the record before the Supreme Court in Young.  Young worked for UPS as a part-time driver. UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds. When Young became pregnant her doctor imposed a lifting restriction of 20 pounds.  UPS told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.

          Young sued under Title VII’s pregnancy protections claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. She relied upon Title VII’s requirement that “women affected by pregnancy *** shall be treated the same for all employment-related purposes *** as other persons not so affected but similar in their ability or inability to work ***.” Young argued that UPS accommodated non-pregnant drivers by providing light duty assignments. UPS argued in response that Young was not similar to the other drivers because they had become disabled on the job, had lost their Department Transportation certifications, or suffered from a disability covered by the Americans with Disabilities Act.  UPS’s point was that there were plenty of other non-pregnant drivers who did not receive light duty assignments because they, like Young, did not fall into one of these three categories.

          The plaintiff’s dilemma in Young was that (1) she had been treated the same as a subset of other persons not so affected [by pregnancy] but similar in their ability or inability to work as she was; while at the same time (2) she had not been treated the same as another subset of other persons similar in their ability or inability to work, but for whom UPS had granted an accommodation (i.e., other employees with physical limitations). Young, of course, argued that not having been treated the same as one of the subsets ended the matter. She posited in her Brief that pregnant workers who are similar in the ability to work must receive the same treatment even if another subset of nonpregnant workers do not receive accommodations. The Court paraphrased her argument thusly: because pregnant and nonpregnant workers were treated differently, “that is the end of the matter, she must win; there is no need to refer to McDonnell Douglas."

          The Court rejected Young’s argument:

The problem with Young’s approach is that it proves too much. It seems to say that the statute grants pregnant workers a “most-favored-nation” status. As long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria. *** We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status.

          The Court solved the dilemma presented by the record by returning to the tried and true McDonnell Douglas framework, modifying it to fit plaintiff’s failure to accommodate case:

Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that [1] she belongs to the protected class, [2] that she sought accommodation, [3] that the employer did not accommodate her, and [4] that the employer did accommodate others “similar in their ability or inability to work.”

          Under this analysis it is unnecessary for a plaintiff to prove she was qualified because in the context of a failure to accommodate disparate treatment case qualification is irrelevant. Likewise, the Court’s modified prima facie test dispenses with a showing of an adverse employment action and replaces it with the requirements of seeking an accommodation and failure to accommodate, which is in essence the adverse employment action. The employer can then offer a legitimate, nondiscriminatory reason for its failure to accommodate. If the employer does so, then the plaintiff must show that the employer’s proffered reasons are in fact pretextual.

          The critical part of the test is and remains what it has always been in a disparate treatment case – whether the plaintiff’s evidence demonstrates she was treated less favorably than similarly-situated other employees because of the protected trait. This, when combined with evidence of pretext, raises an inference of intentional discrimination and gets a case to the jury.

          The Court’s suggestions about how a plaintiff can show pretext gave rise to the crux of the Justice Scalia’s dissenting opinion.  It would have been better if the majority had made explicit that it was merely suggesting how plaintiff could establish her case on remand, much as when explicating the four factors in Daubert (“Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.”) The Court wrote:

We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

          The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. (Emphasis supplied.)

          In my mind the majority was simply suggesting a way for plaintiff to prove her case. The majority was not creating a rule that must be satisfied in all cases.

          Justice Scalia, joined by Justices Kennedy and Thomas, agreed with the majority that the key consideration is whether the plaintiff was treated less favorably than similarly-situated other employees:

[T]he right reading of the same-treatment clause prohibits practices that discriminate against pregnant women relative to workers of similar ability or inability.

          The dissenters, however, viewed what I believe were only suggestions as instead written-in-stone rules emanating from the statute. Justice Scalia wrote:

It takes only a couple of waves of the Supreme Wand to produce the desired result. Poof!: The same-treatment clause means that a neutral reason for refusing to accommodate a pregnant woman is pretextual if “the employer’s policies impose a significant burden on pregnant workers.” Poof!: This is so only when the employer’s reasons “are not sufficiently strong to justify the burden.” How we got here from the same-treatment clause is anyone’s guess.

          Justice Scalia took further exception because the majority proceeded “to bungle the dichotomy between claims of disparate treatment and claims of disparate impact.”

In the topsy-turvy world created by today’s decision, however, a pregnant woman can establish disparate treatment by showing that the effects of her employer’s policy fall more harshly on pregnant women than on others (the policies “impose a significant burden on pregnant workers,”) and are inadequately justified (the “reasons are not sufficiently strong to justify the burden,”.). (Citations omitted.)

          To be fair, the majority’s decision did not create such a “topsy-turvy world.” The focus of the majority’s analysis remains on whether the plaintiff was treated less favorably than nonpregnant employees similar in their ability or inability to work. Plaintiff on remand still has to convince the district court judge that a reasonable jury could infer discriminatory motive.

          Justice Scalia would have held that “because Young has not established that UPS’s accommodations policy discriminates against pregnant women relative to others of similar ability or inability, she has not shown a violation of the Act’s same treatment requirement.” Justice Scalia’s reference to UPS’s policy stems from an unjustified revision of plaintiff’s claim into one of disparate impact.  While UPS did have a policy, plaintiff did not challenge the policy. Her complaint was that she was not treated the same as other similarly-situated employees who were not pregnant. Justice’s Scalia conjured a strawman argument by focusing on an employment policy not under attack. The ultimate issue of intentional discrimination remains and, therefore, it is entirely possible that plaintiff will on remand lose by way of summary judgment.

          The Court’s decision in Young does not effect a sea-change in discrimination law. I believe many courts will recognize that any type of evidence which has a tendency to prove pretext, be it “significant burden” and “insufficiently strong reasons” evidence or otherwise, can be used to establish intentional discrimination.

Tyson Foods Responds to My Letter of Concern Regarding Arkansas' New Religious Freedom Law

I am boycotting Tyson Foods products in protest over Arkansas' new "religious freedom" law. That law sanctions discrimination against the LGBT community. I contacted Tyson's public relations director yesterday to advise that I will not purchase Tyson products until Arkansas repeals its detestable legislation. The company responded quickly. I assume that Tyson used a carefully drafted boilerplate response being sent to other persons of conscience who have lodged similar protests. That's OK, because at least it indicates the company is receiving many communications in protest. 

Here is the letter:

"Mr. Neel - Thanks for your message. We appreciate the efforts of Governor Hutchinson, Senate President Pro Tem Dismang and House Speaker Gillam to resolve the controversy over HB 1228 by agreeing to reshape this bill. We implore the members of the Arkansas State Legislature to ensure that the final bill protects and preserves our religious freedom, will not allow discriminatory practices in the workplace and does not create further damage to our state's reputation."

My Letter to the Editor of the Indianapolis Star

"Indiana's so-called "Religious Freedom" law is an abomination. No matter what your Governor says, the State of Indiana now sanctions discrimination against a minority of its citizens. It is now legal in Indiana for businesses to refuse service based on sexual orientation in the name of "God." What's next -- legalization of discrimination against Jews and Muslims based on "religious freedom."? Way to go Indiana!"

David W. Neel, Esq.

Summary Judgment and Trial in an Employment Discrimination Case

            A jury decided that the Diocese of Fort Wayne-South Bend Indiana refused to renew Emily Herx’s contract as an elementary school teacher because she was undergoing in vitro fertilization.  I like the court’s decision for what it says about overcoming summary judgment in an employment discrimination case:

            First, Mrs. Herx didn’t need to show prima facie case-quality comparators at the summary judgment stage because she made an adequate showing under the direct method of proof. See Docket No. 135, at 16-19. The direct method of proof can include circumstantial evidence, Whitfield v. International Truck and Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) (“A plaintiff may prevail by ‘constructing a convincing mosaic of circumstantial evidence that allows a [factfinder] to infer intentional discrimination by the decision maker.’”) (quoting Phelan v. Cook County, 643 F.3d 773, 779 (7th Cir. 2006)); Harper v. Fulton County, Ill., 748 F.3d 761, 765 (7th Cir. 2014) (“Should the plaintiff lack direct evidence, she may also point to circumstantial evidence that allows a jury to infer intentional discrimination by the decision-maker.”), and doesn’t always require a showing of better treatment of a similarly situated co-employee.

         Second, once a Title VII case proceeds to trial, the indirect method of proof - including the showing of comparators - doesn’t matter. The jury isn’t asked to evaluate whether the plaintiff has shown the prima facie required by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or even instructed on that test. Once the case gets to trial, the only issue the jury decides is whether, based on all the evidence in the case, it’s more likely than not that things would have been different had the plaintiff not been in the protected class and everything else remained the same.

Herx v. Diocese of Fort Wayne-South Bend, Inc., 1:12-CV-122 (N.D. Ind., Mar. 9, 2015).

Transgender Discrimination is Illegal

Transgender discrimination is illegal. Why? Because it is gender discrimination under Title VII of the Civil Rights Act (and O.R.C. 4112.02, Ohio’s anti-discrimination statute). Two federal appellate courts have agreed. So has the Equal Employment Opportunity Commission. These courts (the 9^th and 6^th appellate circuits) and the EEOC riffed off the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins. There, the Court said that making negative employment decisions based on a perception that the employee does not conform to the “gender stereotype” is discrimination under Title VII.

Transgender discrimination will rise as the labor force absorbs more transgender individuals. The law (and employment lawyers like me) will be there to protect them.

But-For Causation and Breaking the Camel's Back in EEOC Retaliation Case - An Example

Roberts v. State, Department of YouthServices, Case No. 2:13cv335 (M.D. Ala., Feb. 11, 2015)

Arthur Roberts, Jr. was hired by the Alabama Department of Youth Services (DYS) as a Security Officer. Within his first few months of employment Roberts notified his supervisor and other administrators that he was an ordained minister and that he wished to provide volunteer pastoral services to the facility’s young men. DYS gave its approval and scheduled him to begin providing services once a month on Sunday.  McCree, Roberts’ immediate supervisor, ridiculed him about his religious activity, teasing him with comments such as “preaching the word today, Minister?” and “You going to get some saved today, ain’t you, Preacher?” McCree also told Roberts not to “come out here with that preaching shit to these kids” because “they don’t want to hear it, ” and McCree stated to another employee, “How in the world is that man [Roberts] going to come out here and preach, when he can’t perform his job he was hired to do[?]”. These comments were made over several months.  Roberts filed a charge with the Equal Employment Opportunity Commission (EEOC) and later sued DYS and McCree for religious discrimination hostile work environment claim and for retaliatory discharge.  

The district court granted summary judgment on Roberts’ religious discrimination claim. The court decided that McCree’s comments were insufficient to establish objectively severe and pervasive conduct. In other words, they were isolated, off-hand comments.  Roberts’ claim was not aided by his testimony that he was still able to perform his job duties.

However, the district court allowed Roberts’ retaliatory discharge claim to go to trial. The central evidence in support of that claim was co-worker testimony that McCree said he intended to “fire [Roberts’s] ass” if he had filed an EEOC charge.  Under University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), a retaliation plaintiff must prove that the retaliatory motive was the ‘but-for’ cause of the adverse employment action. Thus, “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer” is required. Nassar, 133 S.Ct. at 1533.

The district court borrowed an analogy from Burrage v. United States, 134 S.Ct. 881 (2014), to explain that but-for causation can exist even when other possible motives are in the mix, such Roberts’ lackluster job performance:  

[R]etaliatory intent may still constitute a but-for cause even if it “combines with other factors to produce the result, so long as the other factors alone would not have done so--if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. at 888.

So, even though Robert’s job performance may have contributed to the termination decision, McCree’s comment that he intended to “fire [Roberts’s] ass” if he filed an EEOC complaint raised a genuine issue of material fact as to whether the EEOC charge was “the straw that broke the camel’s back.” 

First Ohio R.C. 4112.02 Discrimination Case of 2015 Won By Employer.

Employees demoted and later terminated by Family Video have lost their appeal for failure to offer sufficient evidence of pretext.  Brogan v. Family Video Movie Club, Inc., 2015-Ohio-70 (Sixth District, Lucas Cty.,Jan. 9, 2015).