Does a black employee who "suffered heinous racial harassment while employed" have a racial harassment claim against the employer? "No" rules the Sixth Circuit today in Burns v. Berry Global, Inc.
"Ronald Burns suffered intolerable racial harassment at work on account of his race," says the Sixth Circuit, but he has no case in that court. Life, liberty and pursuit of happiness in today's federal courts.
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Last year JPMorgan Chase reached a $24 million settlement in a race discrimination case in which financial advisors claimed that "the bank practiced “uniform and national in scope” discrimination against African-American financial advisors, such as assigning them to poorer bank branches, understaffing them, and failing to include them in a program for richer clients," as reported by Fortune Magazine, "JPMorgan Chase Settles Lawsuit Claiming 'Uniform and National' Racism for $24 Million."
The New York Times today publishes a story today suggesting that racial discrimination both against customers and employees remains a practice at JPMorgan Chase: "This Is What Racism Sounds Like in the Banking Industry."
Robert L. Abell
www.RobertAbellLaw.com
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A blockbuster race discrimination verdict against UPS was upheld by the Kentucky Court of Appeals last week, UPS v. Barber. The appeals court affirmed entirely the jury's verdict and the circuit judge's rulings.
The case was brought by a group of eight African-American men, who were all employed by UPS as "feeder drivers," which means that they drove tractor-trailers between hubs. Between 2006 and 2012 these drivers made "multiple complaints to UPS management about ongoing racial hostilities at the Lexington hub." Grievance meetings were held in 2009, 2011 and 2012 at which issues "raised included the use of racial slurs, epithets and cartoons, and the meting out of severe or unwarranted discipline based on race." A variety of retaliatory and punitive actions were taken against the drivers, while the evidence at trial showed no substantive response by UPS that led to any improvement for the issues.
A jury, after an eight day trial, awarded the drivers a total of $5,310,314.96 with the individual awards ranging from $100,000 to just over $1.5 million.
The most notable of the Court of Appeals rulings regarded the trial court's admission of evidence "introduced to show incidents of racial animus were brought to UPS's attention during meetings with UPS managers in 2009, 2011 and 2012." This evidence was correctly admitted as the Court of Appeals explained:
[The evidence] tended to undermine UPS's defense that it exercised reasonable care to prevent harassment and take corrective action when necessary. Further, this evidence showed a pattern and practice of adverse treatment, racial hostility, discrimination and retaliation - a purpose approved by our Supreme Court.
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Anthony Rachells, despite having "received numerous sales awards, consistently exceeded company sales goals with the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his Cingular peers," was let go in a RIF following the acquisition of AT&T Wireless by Cingular Wireless. He claimed that he was terminated because of race discrimination. In support of this claim, Rachells sought to present evidence from two other Cingular employees who experience race discrimination in the course of their employment. The Sixth Circuit, in reversing a summary judgment, ruled once again that evidence of other discriminatory practices is relevant and admissible in support of a plaintiff's claim of individualized discrimination. Rachells v Cingular Wireless, No 12-4137 (October 17, 2013).
Rachells claimed that race discrimination was the reason he was terminated by Cingular Wireless in a RIF. He sought to introduce affidavits from two other Cingular employees regarding discriminatory practices they suffered. Cingular argued this evidence was not relevant because the two other employees "operated in a different business channel and generally had different co-workers and direct supervisors than did Rachells." The Sixth Circuit rejected this argument explaining as follows:
Indeed, "evidence of a ... discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific events that generated a claim of discriminatory treatment." Thus, even the conduct of a nondecisionmaker may be probative of whether an adverse action directed at a plaintiff was racially motivated. Moreover, "management's consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context." Factors affecting whether discriminatory atmosphere evidence is probative of discrimination in a particular case include: "the actor's position in the employer's hierarchy, the purpose and content of the conduct, and the temporal connection between the conduct and the challenge employment action, as well as whether the conduct buttresses other evidence of pretext."
One piece of this evidence were complaints by other African-American employees that their performance evaluations were tainted by race discrimination. There was no response to these "multiple complaints of discrimination," and the Sixth Circuit asserted that "this failure to investigate could be construed by a reasonable jury as willful and action and condemnation of such discriminatory conduct." Furthermore and significantly the Sixth Circuit observed that evidence regarding this nonresponse was "not rendered irrelevant simply because those events predated the RIF by a year and a half."
The Sixth Circuit's opinion was authored by District Judge Algenon Marbley joined by Circuit Judges Guy Cole and Bernice Donald.
The Rachells case was discussed in two previous posts: "It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated To Demonstrated Sales Ability" and Who Are Comparable Employees In A RIF Case?
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A prima facie case of discrimination in a RIF case has a modified fourth element: the plaintiffs must provide "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Geiger v. Tower Auto, 579 F3d 614, 622 (6th Cir 2009). One way to meet this proof requirement is to identify a group of comparable employees who were retained head of the plaintiff. The Sixth Circuit analyzed this issue in Rachells v. Cingular Wireless, No 12-4137 (October 17, 2013), a race discrimination case where summary judgment granted the employer was reversed.
Anthony Rachells work as a sales rep for Cingular Wireless and "received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his Cingular peers." In October 2004, Cingular acquired AT&T Wireless. The acquisition left nine sales representatives in the merged company, five from AT&T and four from Cingular. A RIF required five of the sales reps be let go. Rachells, a top performer and the lone African-America among the group, was one and he filed suit claiming race discrimination following his termination.
Rachells argue that the comparative ors were limited to the for Cingular employees; Cingular contended that all nine must be considered. The Sixth Circuit agreed with Rachells, concluding as follows: "employees comparable to Rachells must have equivalent positions, be subject to the same decision-making processes, and subject to evaluation by the same decision-makers." Because the Cingular and the AT&T sales reps were subject to different performance review criteria and their performance reviews were conducted by different persons, the Sixth Circuit ruled that "the record does not support including the AT&T candidates in the peer group with which Rachells is to be compared."
The Sixth Circuit opinion was authored by District Judge Algenon Marbley joined by Circuit Judges Guy Cole and Bernice Donald.
The Sixth Circuit's decision in Rachells v Cingular Wireless was also discussed in a previous post: "It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated To Demonstrated Sales Ability," Sixth Circuit Observes In Reversing Summary Judgment.
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Anthony Rachells "received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his ... Cingular peers." The next year, 2004, Cingular acquired AT&T Wireless and decided to reduce its merged salesforce from 9 to 4. Rachells looked good to survive the RIF: he "exceeded his 2004 sales goals by a greater margin than in 2003." But it was not to be and Rachells, the lone African-American among the sales group, was terminated. Rachells suit for race discrimination arising from his discharge. In reversing the summary judgment granted by the district court, the Sixth Circuit expressed skepticism about Cingular's contentions that Rachells' demonstrated sales abilities were irrelevant to his continued employment: "it strains credulity to imagine that the qualifications for a sales position ... are unrelated to demonstrated sales ability." Rachells v. Cingular Wireless, No. 12-4137 (October 17, 2013).
Cingular's position seems almost absurd: claims to have engaged in a process to select the best four of nine salespeople but also claims that the candidates'"demonstrated sales ability" was irrelevant to the process. Most disturbingly, it succeeded in selling this counter-intuitive position to a credulous district court judge that granted it summary judgment.
District Judge Algenon Marbley wrote the opinion for the Sixth Circuit; he was joined by Circuit Judges Guy Cole and Bernice Donald.
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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
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Reversing a district court's denial of class certification to some 700 black brokers in a race discrimination case against Merrill Lynch the Seventh Circuit has shown the limited scope and application of the Supreme Court's Wal-Mart v. Dukes ruling by its recent decision in McReynolds v. Merrill Lynch, No 11-3639 (February 24, 2012).
The main plaintiffs' claim before the court was that two Merrill Lynch policies, the "teaming" and "account distribution" policies, had racially disparate impacts. The "teaming" policy allowed but did not require brokers in the same office to form teams that would share clients and accounts. The "account distribution" policy regarded the passing out of the accounts of a broker that left Merrill, a procedure that was driven principally by past performance and success.
The plaintiffs claimed team membership was advantageous and that the procedure for team selection and formation had a racially discriminatory impact. The Seventh Circuit, in an opinion authored by Judge Richard Posner, explained this dynamic as follows:
The teams, they say, are little fraternities (our term but their meaning), and as in fraternities the brokers choose as team members people who are like themselves. If they are white, they, or some of them anyway, are more comfortable teaming with other white brokers. Obviously they have their eyes on the bottom line; they will join a team only if they think it will result in their getting paid more, and they would doubtless ask a superstar broker to join their team regardless of his or her race. But there is bound to be uncertainty about who will be effective in brining and keeping shared clients; and when there is uncertainty people tend to base decisions on emotions and preconceptions, for want of objective criteria.
The "account distribution" policy could likewise have racially disparate impacts in fact perpetuating the discriminatory effects of the "teaming" policy, as the court described:
If as a result of racial preference at the team level black brokers employed by Merrill Lynch find it hard to join teams, or at least good teams, and as a result don’t generate as much revenue or attract and retain as many clients as white brokers do, then they will not do well in the competition for account distributions either; and a kind of vicious cycle will set in. A portion of a team’s pre-existing revenues are transferred within a team to a new recruit, who thus starts out with that much “new” revenue credited to him or her—an advantage, over anyone who is not on a team and thus must generate all of his own “new” revenue, that translates into a larger share of account distributions, which in turn helps the broker do well in the next round of such distributions. This spiral effect attributable to companywide policy and arguably disadvantageous to black brokers presents another question common to the class, along with the question whether, if the team-inflected account distribution system does have this disparate impact, it nevertheless is justified by business necessity.
Robert L. Abell
www.RobertAbellLaw.com
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Some cases are hard. Some cases illustrate the at times seemingly insurmountable barriers that plaintiffs must overcome time and again to hold one of our Nation's large corporations accountable for lawless and wrongful conduct. And some cases also illustrate the erosion of the primacy of the civil jury to find facts and decide cases. Ash v. Tyson Foods is all three. On December 16, 2011, on the 5th pass by the Eleventh Circuit at the case, Judges Carnes and Pryor reversed their earlier per curiam opinion and allowed to stand the 2d jury verdict in the plaintiff's favor, although the court scornfully vacated the jury's $1 million punitive damages award, which was the 2d jury to assess $1 million or more in punitive damages in the case.
15 years of litigation is too much to discuss in a blog post but here is a chronology of the case:
The lead plaintiffs' counsel in the case is Alicia K. Haynes of the Birmingham, Alabama firm of Haynes & Haynes. Whatever your view of this case may be lawyer Haynes is to be commended for her extraordinary representation of her clients in this case.
Robert L. Abell
www.RobertAbellLaw.com
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Racial and sexual harassment creating a hostile work environment has resulted in a $1 million plus judgment against Whirlpool Corporation. Federal district judge John T. Nixon found that a hostile work environment was created based on the following:
Baker frequently directed songs and explicit commentary at Freeman. While isolated
episodes of teasing or sexual comments do not rise to the level of a hostile work environment,
the Court finds that Baker harassed Freeman on an almost daily basis, both during breaks and
while he worked in close proximity to her on the Line. As the months wore on, Baker’s
harassment became more and more threatening, as he began mumbling and pointing at Freeman and eventually assaulted her.
Whirlpool's argument that the conduct was not sex-based and therefore not illegal sex discrimination:
Non-sexually explicit harassing behavior that is “directed at women and
motivated by discriminatory animus against women satisfies the ‘based on sex’ requirement.”Id. Multiple witnesses describe Baker as mumbling and staring at Freeman and her co-worker Chinica Lillard, also African-American, preceding the assault. After punching Freeman, Baker verbally threatened Lillard as well and threw a pipe at her. The Court finds that the assault was the final harassing act in a campaign of harassment that Baker targeted at Freeman because of her sex. Any reasonable person would find Freeman’s working environment to be hostile and abusive.
The Court entered a judgment in excess of $1 million in Freeman's favor. You can read a copy of the Court's opinion, Freeman v. Whirlpool Corporation.
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