The Court concluded that the trial court erred in granting
the JNOV motion because the plaintiff produced sufficient evidence to support
the jury’s verdict. For instance, the
Court found that there was sufficient evidence to support the race
discrimination in termination claim because the plaintiff had been one of the
first employees laid off despite his seniority and experience. Although the evidence was disputed, there was
also evidence that the plaintiff’s racist manager had been involved in
selecting employees for layoff by identifying the employees he wanted to keep
(which, clearly, did not include the plaintiff). The
Court found the manager’s use of the n-word directly to the plaintiff months
before the layoff decision was sufficiently proximate to support the jury
verdict. As explained by the Court:
Constructing the evidence in favor of Smith, we determine
that perhaps the most offensive word in the English language was used directly
by Smith's supervisor in telling him to clock out and leave. As a result,
Smith, no longer willing to work under Holstein, was moved to another facility,
demoted in title and pay, and worked on another shift. This same supervisor was
involved in the decision to layoff Smith two months later. There was a culture
of discrimination at Superior evidenced by the common use of the n-word by both
staff and management, including the owners as well as the lack of reprimands
for use of the word. Holstein also used a gun to intimidate African-Americans
during meetings in his office. . . .
There was evidence
presented that only about 60 employees were initially terminated, . . .
There was also evidence that Superior sought to retain employees who could perform
multiple jobs and provide the most flexible and skilled labor force. Superior typically
tried to push down from the top of the workforce, to layoff only the bottom employees,
but this was not the case with Smith. (Tr. Vol. III, at 362.) Smith was the
first production employee laid-off and only the eighth employee overall.
. . . Viewing the evidence most
favorably for Smith, the jury could find that Smith, who was a production
supervisor, who had performed every job on the production floor, and had
over two decades experience, would not
have been terminated but for his race.
The Court also concluded that the trial court erred in
granting the JNOV motion on the retaliation claim, even with its higher level
of proof. There was evidence that this
same manager may have been involved in the recall decisions and that he had
made statements to another black employee in early 2009 disparaging the
plaintiff with the n-word. The employer
had contended that the plaintiff had not been recalled because his primary skill
was in an area supervised by his prior manager, who he had already refused to
work for. The Court concluded that the
plaintiff had a wider skill set than the employer freely admitted and that
there had never been any complaints
about his work performance. The Court
also concluded that the jury may have found the employer witnesses to not be
credible in light of inconsistencies in their testimony and discovery
responses.
Further, if the jury
believed that Holstein was acting like a racist, then Smith's desire not to be
directly supervised by Holstein can be viewed by the jury as not being a
legitimate business reason for failing to rehire him, and would further damage Holstein's
credibility. This view is especially reasonable since Superior had multiple facilities
and shifts in which Smith could work and not be supervised by Holstein. (Tr. Vol.
III, at 343.) Superior could also have changed Duane Holstein's position so
that he was not a manufacturing manager, an occurrence which happened anyway
when Holstein became a safety manager. (Tr. Vol. III, at 317.) Reasonable minds
can conclude that the jury properly found that Superior's proffered reasons for
failing to rehire Smith were pretextual.
The Court also concluded that the trial court erred
in granting the JNOV motion on the hostile work environment claim on the
grounds that the use of the n-word was isolated and sporadic and “and merely an offensive utterance, rather than being threatening or
humiliating.”
Reasonable minds can easily conclude that Holstein's use of
the n-word, directly to Smith, while on the production floor, at the same time
telling him to go home, was humiliating.
In any event, the Court also concluded that the employer was
not entitled to a new trial – even under an abuse of discretion appellate
standard -- and, therefore, reinstated the jury’s verdict (which will
undoubtedly be appealed to the Supreme Court).
The dissent agreed
with the majority on the impropriety of the JNOV verdict on the hostile work
environment claim (based on the use of the n-word by two of the company’s
owners), but believed the trial court was correct on the race and retaliation
claims and saw no abuse of discretion in granting a new trial on all of the
claims. Among other things, he did not
find the manager’s disparagement of the plaintiff two months before his layoff
to be proximately related to the decision to lay him off. He also noted that the plaintiff had been
replaced by other black employee. He
also disputed the relevance of the gun evidence since there was no evidence
that the manager behaved differently with white employees. He also rejected the
retaliation claim because the employer’s explanation – that none of the supervisors requested the
plaintiff’s return – did not show that the other supervisors were
retaliating. “While
Superior's reason is not particularly fair to Smith, it is a motive other than
unlawful retaliation.”
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
