Reverse Race Discrimination Claim Fails Because Employee Voluntarily Resigned

Lonnie Dodge began his career with the City of Belton Police Department in 2001. Mr. Belton was arrested in 2007 for driving while intoxicated and eventually pled guilty to careless and imprudent driving. Mr. Dodge did not tell his supervisor of his arrest or conviction.

The Department discovered that Mr. Dodge had been arrested for DWI during a background check. Upon discovering this information, the Department gave Mr. Dodge a choice - resign or be terminated. Mr. Dodge refused to resign and was suspended with pay. However, shortly after submitting his resignation, Mr. Dodge attempted to rescind his resignation. The Department informed Mr. Dodge it had already accepted his resignation. Mr. Dodge claimed he resigned because the Department told him that, if he resigned, his police officer's license would not be revoked.

Mr. Dodge sued the City of Belton under the Missouri Human Rights Act and Title VII claiming he was terminated because of his race (white). Mr. Dodge alleged that an African-American employee also failed to report an arrest but was not terminated.

Granting the City's motion for summary judgment against Mr. Dodge, the court found that because Mr. Dodge had resigned and was not actually terminated, he was unable to show that he suffered an "adverse employment action." The court also noted that, because he resigned, the only way Mr. Dodge could have established an adverse employment action was to show that the City "constructively discharged him" by "deliberately creating intolerable working conditions with the intention of forcing [Mr. Dodge] to quit." Citing the Eighth Circuit Court of Appeals, the court concluded that "an employee's being told that he or she will be fired for cause does not, in and of itself, constitute constructive discharge."

Dodge v. City of Belton, Missouri, No. 10-0038-CV-W-ODS (W.D.Mo. Feb. 4, 2011).

Eighth Circuit Finds Employee's Lawsuit Failed to Allege Actionable FLSA Retaliation

Lisa Ritchie filed a lawsuit against her former employer, St. Louis Jewish Light, and Larry Levin, her former supervisor under the Fair Labor Standards Act claiming that her employment was terminated in retaliation for insisting on recording her overtime work. Jewish Light and Levin filed a motion to dismiss arguing that informal complaints about overtime to a supervisor do not constitute “protected activity” under the FLSA. The trial court agreed and dismissed Ms. Ritchie’s complaint.

On appeal, the Eighth Circuit declined to decide whether informal complaints could, in fact, constitute “protected activity” under the FLSA finding instead that Ms. Ritchie’s complaint actually failed to allege that Ritchie made any sort of complaint to either Levin or St. Louis Jewish Light. Instead, the court found that “ the only complaining asserted in her pleading goes the other way--Levin complaining to Ritchie.” Concluding that “[R]ather than constituting an affirmative complaint that would trigger the anti-retaliation provision of the FLSA, [Ms. Ritchie’s] recording of overtime could be nothing more than mere insubordination, she having been instructed to the contrary . . . Insubordination is not protected under the FLSA,” the court affirmed the dismissal of the suit. The court further noted that “. . . if merely recording one's overtime is a ‘complaint’ that triggers the anti-retaliation provision of the FLSA, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime.”

Ritchie v. St. Louis Jewish Light, No. 10-1356 (8th Cir. Jan. 4, 2011).

Eighth Circuit Court of Appeals Sets High Bar for Hostile Work Environment Claims

Sheila Smith was one of two African American women employed as transportation aides for the Fairview emergency room ("ER") in Burnsville, Minnesota. Smith worked in the Fairview ER until June 7, 2006, when she resigned after filing a charge of discrimination with the EEOC. In July 2006, the EEOC determined that there was "reasonable cause to believe that Fairview subjected Ms. Smith to a hostile work environment and retaliated against her in violation of Title VII." Ms. Smith thereafter filed suit against Fairview alleging hostile work environment discrimination, constructive discharge and retaliation.

In her Complaint, Ms. Smith alleged the following specific incidents of racial discrimination:

1. Soon after she began working at Fairview, a nurse asked Ms. Smith if she was Puerto Rican because she spoke Spanish.

2. In April or May 2005, Ms. Smith brought fried chicken to a Fairview potluck. Ms. Smith overheard a nurse inquire as to who had brought the chicken and then receive the response, "Who else?" Ms. Smith reported the incident to a supervisor but no corrective action was taken.

3. In May 2005, a picture of "Buckwheat" was posted on a door in the ER, along with other employees' childhood photographs. The caption above the picture read, "Guess who this is?" Ms. Smith inferred that the Buckwheat picture was placed on the door to represent her. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

4. In the summer of 2005, a nurse, who was not Smith's supervisor, grabbed a patient chart from Ms. Smith's hands and said, "[T]hese black aides don't know what they are doing." Ms. Smith reported the incident to a supervisor but no corrective action was taken.

5. In September or October 2005, Ms. Smith brought a meal for lunch and upon entering the break room with the food, a co-worker complained about a fish odor. The coworker was informed that Ms. Smith's meal contained fish, to which the coworker responded, "I smelled food that smelled better than that crap in my garbage." Ms. Smith then informed the coworker that it was an African dish.

6. In October 2005, Ms. Smith observed two co-workers using a work computer to view an article on the website, The Onion. The article discussed Hurricane Katrina and contained an image of a heli-copter hovering over houses that were flooded by the hurricane. On the front porch of one of the houses, three people, appearing to be African-American, were pictured. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

7. In December 2005, Ms. Smith observed two co-workers using a work computer to view the website, www.getoffended.com. Ms. Smith claimed that one of her co-worker's had invited her to look at what they were viewing. The website contained a racial slur. Ms. Smith reported the incident to Fairview's HR Representative, who reminded the co-workers that personal internet use at work was inappropriate.

8. After Ms. Smith returned from a short leave, she overheard a nurse say, "If she's unhappy here, why does she come back?" Another nurse responded, "Just like a dog, you beat them and abuse them, they still come back. Just like any good runaway slave would." Ms. Smith reported the incident to a supervisor but no corrective action was taken.

9. When Ms. Smith and an ER technician were discussing skin care, Ms. Smith suggested to the technician that she could use a certain facial cleanser to help with acne, and the technician replied, "People can't see yours because you're black."

10. At one point, a co-worker referred to Ms. Smith as "gal." The co-worker told Ms. Smith that she called everyone "gal."

11. After overhearing Ms. Smith and a hospital volunteer from Somalia discussing ethnic foods and employment positions at Fairview, Ms. Smith's co-worker told the volunteer that what she and Ms. Smith were discussing was inappropriate. Ms. Smith reported the incident to a supervisor but no corrective action was taken.

12. Teyona Brown, an African-American co-worker of Ms. Smith's, testified that she overheard two white employees referring to Ms. Smith and stating, "She needs to go back to the ghetto where she came from."

Upholding the lower court's grant of summary judgment in favor of Fairview on all of Ms. Smith's claims, the court began by noting that "The stringent hostile work environment standard is designed to 'filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language ... and occasional teasing.'" The court also noted that several of the allegations made by Ms. Smith (specifically the comments regarding Ms. Smith's lunch, acne, and ability to speak Spanish; the co-worker's comment about Ms. Smith's conversation with the Somali volunteer; and the image on The Onion), at most only tenuously relate to race.

However, the court conceded that the picture of Buckwheat, the comment about fried chicken, and the reference to the ghetto (although not all shown or recited directly to Ms. Smith) did carry some inferences that they were racially motivated. Nevertheless, the court concluded that these incidents were not so severe and pervasive as to be actionable. For the same reason, the court concluded that Ms. Smith's constructive discharge claim failed as well.

Smith v. Fairview Ridges Hospital, No. 08-1942 (8th Cir. Oct. 27, 2010).

Eighth Circuit Court of Appeals Rejects County Employee's Disability Discrimination Claim

Roger Duello sued Buchanan County, Iowa for wrongful termination, in violation of the Americans with Disabilities Act ("ADA") and the Iowa Civil Rights Act. The district court found in favor of the County, holding that Mr. Duello could not prevail under either statute because he was not a "qualified individual" within the meaning of the ADA.

Mr. Duello appealed the District Court's grant of summary judgment in favor of the County and the Eighth Circuit Court of Appeals affirmed. Specifically, the reviewing court found that even assuming Mr. Duello met the essential prerequisites for his position, he was unable to perform the essential functions of his job because he had lost his driver's license. According to the court, driving and working around machinery were essential functions of Mr. Duello's job. The court noted Mr. Duello's own deposition testimony where he testified: "Q: You couldn't perform the functions or the duties of [an] Operator II? A: Correct." The court also found that, although other County employees who had lost their driver's licenses were not terminated, those employees were not "similarly situated" to Mr. Duello and thus their situations failed to create an issue of fact as to whether the County had an ongoing practice of excusing employees from driving and working around machinery when they were temporarily disabled from doing so.

Duello v. Buchanan County Bd. of Supervisors, No. 10-2016 (8th Cir. Dec. 20, 2010).

Age Related Comment Made Shortly After Hiring Decision Could be Evidence of Discrimination

In King v. United States of America, et al., the U.S. Court of Appeals for the Eighth Circuit decided that a potentially ageist comment made shortly after an allegedly discriminatory hiring decision could be direct evidence of discrimination.

In early 2005, Ms. King and Ms. Evans both applied for a position with the U.S. Department of Agriculture. King was 54 years old when she submitted her application and Evans was 25. After interviewing both women, the Department's employment selection committee offered the position to Evans "based upon her undergraduate and graduate degrees, experience, 'go-getter' attitude, computer skills, and familiarity with the Department's operations." King sued alleging that the Department discriminated against her on the basis of her age when it offered the position to Evans.

At trial, King put on evidence that between 2003 and 2005 members of the selection committee were heard commenting that they "wanted to bring educated, young blood" into the Department and that the Department "had just hired a young, skinny blonde with a master's degree." King also elicited testimony from a co-worker, Ms. Triplett, who testified that she had a conversation with one of the committee members after Evans was offered the position about the member's "philosophy of hiring younger, educated people." In addition to this direct evidence of discrimination, King elicited indirect evidence of what she believed was an atmosphere of discrimination against older employees in the Department. The Department put on evidence, through the testimony of the committee members, that age was not a consideration in its decision to hire Evans.

The trial court found in favor of the Department, concluding that statements made by the committee members were not direct evidence of discrimination because they did not "demonstrate a specific link between the alleged discriminatory animus and the committee's decision to select Ms. Evans." The court failed to mention Triplett's testimony regarding the committee's "hiring philosophy." The trial court did, however, conclude that "statements made after the hiring decision was implemented, explaining why the decision maker chose one candidate over another, may be relevant." The trial court also concluded that King failed to overcome the Department's professed "legitimate, non-discriminatory reasons for the employment decision."

The appellate court remanded the case for further proceedings. Although the court determined that the earlier comments were not direct evidence of discrimination because they were made long before the hiring decision, the court was unable to conclude that the comment made shortly after the hiring decision - that it was one of the committee member's philosophy to hire "younger, educated people" - constituted direct evidence of discriminatory animus.