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).

U.S. Supreme Court Holds Adverse Action Against a Close Family Member of a Complainant Emloyee May Now Constitute Illegal Retaliation

The United States Supreme Court recently held in Thompson v. North American Stainless, LP, No. 09-291 (U.S. Jan. 24, 2011) that taking an adverse employment action against a close family member of an employee may constitute illegal retaliation.

This decision follows a recent trend of Supreme Court decisions expanding the scope of protection for employees in retaliation cases. The Court's conclusion that "close family members" may raise claims of their own, while "mere acquaintances" may not leaves a lot of room for disagreement over who can qualify as a "close family member" and will likely become the subject of significant litigation.

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).

Age and Gender Discrimination Case Rejected Due to Plaintiff's Poor Work Performance and Misconduct

The U.S. District Court for the Southern District of Illinois recently held in Lesicko v. Conoco Phillips Pipe Line Co. that the plaintiff was precluded from pursuing her claims of gender and age discrimination against her former employer due to her own misconduct at work and failure to meet the employer’s job performance expectations.

The plaintiff in the case, Julie Lesicko, was one of 18 employees working at Conoco Phillip’s (“CP’s”) East St. Louis terminal. Her employment began in June of 1995 and ended in March of 2007. Although Lesicko’s performance was initially good, she began experiencing problems in early 2001 when her position’s shift structure changed and a new supervisor was hired.

Lesicko received verbal and written warnings for misusing sick time, and in 2002, Lesicko made derogatory remarks about her supervisor in front of other employees and became aggressive and confrontational with co-workers. This behavior apparently continued into 2003 and 2004 and negatively impacted the relationships between employees and customers at CP. In September of 2006, CP received a call to its “AlertLine” by an employee complaining that Lesicko’s conduct was creating a hostile workplace. Specifically, it was reported that Lesicko “threatened her co-workers with lawsuits, screamed and cursed at them, cussed and used the ‘f word’ at co-workers and drivers, was abusive to them, was volatile, created turmoil in the building, threatened to get them fired and created a stressful working environment.”

Following an investigation, Lesicko was issued a one day suspension and given a “Final Warning” letter. However, six months later, trouble arose again when Lesicko threatened to beat up a co-worker. Lesicko’s schedule had her off work for eight days following the incident during which time CP conduced an investigation of the incident. Lesicko refused to participate in the investigation, and ultimately delivered a written resignation when she returned to work.

After receiving her Notice of Right to Sue from the EEOC, Lesicko filed a lawsuit against CP claiming that she had been discriminated against based on her gender and age in violation of Title VII and the ADEA. Specifically, Lesicko claimed CP unfairly denied her vacation requests, denied her training and unfairly disciplined her all of which created a hostile working environment and ultimately resulted in her constructive discharge. Lesicko also claimed that she had been harassed with sexually suggestive comments which were made toward or in front of her and by sexually oriented materials she claimed were left in her locker and on desks.

Rejecting all of Lesicko’s claims, the court noted that the sexually oriented comments were made nearly seven years prior to Lesicko’s alleged constructive discharge and were therefore time barred. The court further noted that, even if the comments were not time barred, there was no evidence connecting the comments to Lesicko’s constructive discharge. Consequently, the court determined that Lesicko was unable to prevail under the “direct proof” model.

The court further found that Lesicko’s age and gender discrimination claims failed under the “indirect proof” model because Lesicko could not establish that she was meeting CP’s legitimate performance expectations at the time of her alleged discharge and because Lesicko failed to identify any similarly situated male employees or younger employees who were engaged in similar misconduct but received less severe consequences. The court also rejected Lesicko’s claim that she had been constructively discharged noting that “. . . the record before this Court is replete with uncontroverted evidence that it was Lesicko who made the working conditions difficult to bear for her co-workers—creating stress, stirring up turmoil, verbally intimidating them and damaging morale.”

Read the Madison County Record's article about the lawsuit here.

Lesicko v. Conoco Phillips Pipe Line Co., No. 07-cv-0826 (S.D.Ill. Feb. 5, 2009)

Plaintiff’s “Mosaic of Evidence” Sufficient to Survive Summary Judgment in Title VII Case

In Hasan v. Foley & Lardner, the Court of Appeals for the Seventh Circuit reversed a District Court’s grant of summary judgment in favor of the law firm Foley & Lardner, finding that a genuine issue of material fact existed as to Foley’s true reason for firing Mr. Hasan.

The plaintiff, Zafar Hasan, is a Muslim of Indian descent and was an associate at the law firm of Foley & Lardner. Mr. Hasan joined Foley in October of 2000 and initially received positive performance evaluations. However, after September 11, 2001, matters changed for Mr. Hasan. On the day of the attacks, another Foley attorney overheard a partner on the firm’s Management and Compensation Committee state that “those people don’t belong here . . . they should kick them all out.” Mr. Foley responded by posting articles on his office door describing Islam as a peaceful religion. In response to the articles, another Foley attorney commented to Hasan that he should be careful “not to upset any sacred cows.” Mr. Hasan’s fortunes continued to worsen and he began to receive negative evaluations in 2002. His billable hours – which had been among the highest in the firm – also dropped off precipitously. In October of 2002, a meeting was held to evaluate the department’s associates. During the meeting, the partner who made the “kicked out” comment was critical of Mr. Hasan’s work (although the attorney had never actually worked with Mr. Hasan). There was testimony that other attorneys at the meeting were influenced by these critical comments. There was also evidence that one of the attorneys who attended the meeting later commented to Mr. Hasan that it was “too bad that those guys took out their religious dispute in Israel on you and had you fired.”

Mr. Hasan sued Foley claiming that he was fired after the September 11, 2001 terrorist attacks because of his religion, race, national origin, and color. Finding in favor of Foley, the trial court concluded that Mr. Hasan “failed to create a ‘convincing mosaic’ of direct or circumstantial evidence that could permit a jury to conclude that Foley intentionally discriminated against him” and entered summary judgment in Foley’s favor. Mr. Hasan appealed.

Reversing the trial court, the Court of Appeals for the Seventh Circuit concluded that Mr. Hasan had in fact presented a sufficient “mosaic” of circumstantial evidence to permit a jury to conclude that Foley terminated Mr. Hasan because of his religion and national origin. In arriving at this conclusion, the appellate court noted that discriminatory comments made by someone who provided input into or influenced the employment decision (as opposed the employee’s direct supervisor) may be relevant. The court also noted that the recency of discriminatory comments to the adverse employment action is relevant to the “total picture of discrimination” but that recency alone may not be viewed as a decisive factor. Finally, the court concluded that “behavior toward or comments directed at other employees in the protected group” (also known as “me too” evidence) is relevant and can support an inference of discrimination.

Hasan v. Foley & Lardner, LLP, No. 07-3025 (7th Cir. Jan. 21, 2009).

Failure-to-Promote Claim Fails Without Evidence of an Open Position

In Jones v. City of Springfield, Illinois, the Seventh Circuit Court of Appeals affirmed summary judgment in favor of the City on Mr. Jones' failure-to-promote claim. Mr. Jones, a Springfield, Illinois police officer, claimed that the City failed to promote him because he is white. On appeal, Mr. Jones argued that he presented sufficient evidence under both the direct and indirect proof models to survive summary judgment.

With respect to his direct proof, the court found that Mr. Jones failed to present evidence that any similarly situated officers received more favorable treatment. The court also found that Mr. Jones failed to present evidence that the City would have acted differently toward him had he not been white.

The court found Mr. Jones' indirect proof case (and the District Court's analysis of the indirect proof case) was also fatally flawed. Specifically, the court noted that ". . . the district court should have considered the availability of an open position under the prima facie case because in a failure-to-promote claim, a prima facie case presupposes the existence of an open position."

For an interesting article on Mr. Jones' exploits with the Springfield Police Department, see Dusty Rhodes, "Out of the Blue, Alan Jones, the new head of the Springfield Police Union, isn't a member of the old guard." Illinois Times, November 2, 2006.