An employer's admission that an employment decision was made in part to "maintain racial balance" is direct evidence of discrimination the Sixth Circuit has ruled in Ondricko v MGM Grand Detroit, LLC, No. 10-2133 (August 8, 2012).
Kim Ondricko, a white female, was employed as a casino's floor supervisor in charge basically of supervising the card-game dealers. The casino fired her, failure to properly supervise card shuffle procedures being the proffered reason. Around the same time, a black male floor supervisor, a man named Black, was given only a three-day suspension for a violation similar to Ondricko's. Ondricko's supervisor, a Hannon, asked the casino's vice-president, O'Connor, why Black was getting more lenient treatment than Ondricko. O'Connor explained the considerations as follows, referring also to a black female named Boyd, as the Court explained:
... O'Connor also brought up Boyd, a black female, during that meeting, saying "her attorneys had already called and wanted to know what we were going to do about Kim." O'Connor than said "do you think I wanted to fire Kim, I didn't want to fire Kim, how could I keep the white girl."
In reversing a summary judgment granted the employer, the Sixth Circuit found O'Connor's statement that his intent was to maintain racial balance to be direct evidence of discriminatory intent. The Court explained as follows:
This statement was made by an MGM decisionmaker shortly before notifying Ondricko of her termination, immediately after discussing inquiries by a fired black female employee's attorney, and in the same meeting where MGM's decision not to fire a black male for similar conduct is discussed. Under these circumstances, and in light of the fact that Boyd had a much worse disciplinary record than Ondricko, it is certainly reasonable to conclude from O'Connor's statement that MGM was motivated by a desire to be racially balanced in its termination for misconduct related to shuffling. See Taylor v Board of Education of Memphis City Schools, 240 F.Appx. 717, 720 (6th Cir 2007)(statement that another applicant was hired to "maintain racial balance" plainly indicated unlawful discrimination may have been a motivating factor in the hiring decision).
The question in discrimination cases is whether discrimination (here race discrimination) is a substantial and motivating factor for the the employment decision, here a termination. The casino, it appears from O'Connor's statement, fired Ondricko, a white female, in substantial part to create a defense against a possible race discrimination claim by Boyd, a black female. In this scenario the employer has in fact admitted that Ondricko's race was a substantial factor for her termination.
Robert L. Abell
www.RobertAbellLaw.com
