Ohio Appeals Court: Fire Chief Properly Terminated for Inappropriate Comments

Last week, the Fairfield County Court of Appeals affirmed the termination of a Township Fire Chief for making a racially insensitive joke while still on probation for an earlier, unrelated event.  Mathias v. Pleasant Twp. Bd. of Trustees, 2014-Ohio-3019.   The Court made clear that management can be held to a higher standard of conduct than subordinates and enforcement of an anti-harassment/discrimination policy does not require the existence of a specific victim.  In particular, the Court found that the terminated chief had made a joke in the presence of three white firefighters that he did not have a problem with black people because “everyone should own one” or “everyone should have one.”  One of the firefighters reported it to the Assistant Chief, who mentioned it to a Township Trustee.  Written statements were taken and the Chief was confronted.   He later explained that he and the department’s lone black employee had a friendly and joking relationship where they made jokes with each other about historical racism, including segregated parking, bathrooms and drinking fountains.  The black employee testified as a witness in support of the terminated chief. There was no evidence that anyone had felt offended or harassed by the Chief’s statements or that anyone thought he was a racist.  The Chief also pointed out that other firefighters had made similar statements without any complaint or investigation.  Nonetheless, the Court agreed that the Chief had violated Department policy against making such statements and for engaging in unbecoming and undignified behavior.

While appellant contends that he committed no act pursuant to such section which would justify his termination, we disagree. Appellant admittedly made a racially derogatory comment. While appellant argues that [the sole black firefighter] and other firefighters also made similar jokes, appellant was the Chief of the Fire Department and set the tone and morale for the department as a whole. During the hearing, appellant himself admitted that it was probably not appropriate for him, as the Acting Fire Chief, to make the racial statements that he did.

In addition, the Court agreed that the Chief had “clearly” violated the Department’s anti-harassment/discrimination policy, which could justify dismissal on a first offense – even without the existence of a specific victim.  The policy provided:

 

“316.02 - Sexual, ethnic, racial and religious harassment is an offense first against this department and second an offense against the employee or group of employees. Offense refer to physical, verbal or implied actions that have the purpose or effect of creating a hostile, offensive or intimidating working environment or has an ethnic, racial, religious or sexual basis, or both. Examples would include but are not limited to: physical contact of sexual nature; sexual, racial, ethnic, or religious jokes, comments, insults, audio/visual material, cartoons, innuendoes or personal conduct or mannerisms that could be construed as offensive.”

The Court also rejected the Chief’s procedural arguments about, for instance, the timing of his suspension, consideration of documents about the earlier event which caused him to be placed on probation,  and the conduct of the investigation by the Assistant Chief who was made Acting Chief and ultimately promoted to replace him.  

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.

Franklin County Appeals Court Reinstates $549K Race Discrimination Verdict Against Columbus Employer

Earlier this month, a divided Franklin County Court of Appeals reinstated a $549K jury verdict rendered against a south-side employer in a lawsuit alleging race discrimination, hostile work environment and retaliation and producing evidence about disparaging comments and implied threats by management involving guns.    Smith v. Superior Production LLC, 2014-Ohio-1961 (5-8-14).  The plaintiff had been a production supervisor who requested a transfer in 2008 after his manager (also the son of a company owner and part owner himself) yelled at him and referred to him as the “n-word.”  The plaintiff admittedly never mentioned the n-word incident when he requested the transfer or anytime afterwards until he filed his lawsuit.   However, he claimed (over employer denials) that he had complained about his manager being a racist and the hostile work environment that existed in his former facility.  His transfer was granted, but he was demoted.  Despite his years of experience and seniority, he was one of the first employees laid off (with 60 other employees) during the great recession later that year and was not recalled to work when the economy improved months later.   During the jury trial in March 2013, the jury heard evidence about the use of the “n-word” by five different people (two managers and three co-workers) – out of 250 people who worked in the plant -- sporadically in a 10- year period and how a manager would intimidate black employees by putting a cocked gun on his desk during a meeting in his office.  The employer argued that the evidence was insufficient to show that there was pervasive harassment or different treatment of employees and the trial court determined that the employer was entitled to another trial, but then ultimately granted the employer judgment notwithstanding the jury verdict.  On appeal, the Court of Appeals reversed.

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.

EEOC Settles Race Discrimination Case for $250K When HR Fires Employee Based on Racial Bias of Employee’s Supervisor.

The EEOC announced this week that it had settled “a race discrimination lawsuit against BCI Coca-Cola Bottling Company of Los Angeles (BCI) for $250,000 on behalf of an African American former worker in Albuquerque, N.M. The resolution follows a favorable ruling by the U.S. Court of Appeals for the 10th Circuit, which established an important legal doctrine known as “subordinate bias” theory. . . . The EEOC had charged BCI with committing race discrimination against Stephen B. Peters, a black merchandiser, when a supervisor fired him in 2001 for not working his scheduled day off, even though Peters had called in sick and provided medical documentation. Additionally, the EEOC found that the supervisor made racist remarks about blacks generally.”

In initially dismissing the EEOC’s lawsuit on summary judgment, “the district court had said that the BCI official who actually terminated Peters was unaware of his race. However, the 10th Circuit [reversed and] found that a jury might reasonably conclude that Peters’ termination was based on his race because there was evidence that one of his supervisors, Cesar Grado, treated African Americans more harshly than other employees. The EEOC asserted that Grado made racial remarks about African Americans. In a published opinion, 450 F.3rd 476 (10th Cir. 2006), the appeals court observed, “In making the decision to terminate...the human resources official relied exclusively on information provided by Mr. Peters’ immediate supervisor, who not only knew Mr. Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace.” . . . Under this legal doctrine, called the “subordinate bias” theory, an employer may be liable for discrimination when it relies on comments from a biased subordinate supervisor when taking adverse employment action against an employee.”

Interestingly, “[a]fter the 10th Circuit ruling, BCI asked the U.S. Supreme Court to hear the case via a petition for a writ of certiorari. The high court accepted the case, and it was fully briefed and set for oral arguments. However, less than a week before the oral argument, BCI withdrew its appeal with no explanation and, subsequently, settled the case with the EEOC.”
“In addition to $250,000 for Peters, the EEOC’s two-year consent decree contains significant injunctive relief which applies to BCI and its managing agents at the Albuquerque facility. The injunctive measures require BCI to:

• Carry out policies and practices that promote a work environment free from race discrimination -- including a review of its existing policies on race discrimination and making any necessary changes so that those policies comply with Title VII of the Civil Rights Act;


• Distribute its policies to current employees and to new employees hired during the duration of the decree;


• Provide its employees with written policy statements regarding reporting and preventing racial bias;


• Post a Notice with a statement that Title VII prohibits race discrimination, and provide employees EEOC’s contact information; and


• Hold training sessions with managers, supervisors and employees of the Albuquerque facility on Title VII and race discrimination.

“The consent decree also prohibits BCI from retaliating against Peters or any witness in this case, and converting the official status of Peters’ firing to a voluntary resignation.”
Insomniacs may read the EEOC’s full press release at http://www.eeoc.gov/press/4-15-08.html.

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.