• Employers Beware in Race Discrimination Cases
  • May 14, 2015
  • Law Firm: Pessin Katz Law P.A. - Towson Office
  • Several recent cases highlight the fact that employers should think twice before failing to properly address a Title VII complaint. Failing to do so may result in their winding up in a jury trial. That fact is most recently highlighted by a decision of the Fifth Circuit Court of Appeals filed April 6, 2015 in a case titled McMullin v. Mississippi Department of Public Safety (No. 14-60366 (USDC, SD Miss.))

    McMullin involved an appeal from a summary judgment dismissing a complaint in a Title VII race-discrimination case. According to the opinion: “...plaintiff, Lieutenant Gayle McMullin, presented evidence, which, if believed by a jury, would show a fumbling, bumbling case of determined efforts to deny a promotion to McMullin. Lieutenant McMullin alleges that the Mississippi Department of Public Safety (“the Department”)...failed to promote her to the position of Training Director and instead promoted a less-qualified officer of lower rank to fill the position, based on race.”

    Lt. McMullin was within the protected class of being racially white. The person who secured the position sought by Lt. McMullin was outside her class, being non-white, as was the decision-maker involved in making the promotional decision. The court found that the superior responsible for filling the position had presented confusing testimony as to the decision-making process regarding a promotion to the position Lt. McMullin sought and the number of available positions. The court further found that even though more qualified than the other applicant, Lt. McMullin was denied the opportunity to apply for the position she desired and, therefore, blocked her promotion.

    Citing the light burden that the Department had to overcome after Lt. McMullin presented a prima facie case of discrimination, the court found that the Department had failed to do so. According to the opinion, the Department provided “no discussion, explanation or elaboration of its purported reason(s) for its promotion decision...” other than the bald assertion that it had “...provided a legitimate, non-discriminatory reason for its decision to promote [the other candidate]”. Failure of the Department to do so resulted in the summary judgment ruling in its favor being vacated and remanded to the District Court.

    In Hutchens v. Chicago Board of Education, No. 13-3648 (7th Cir. Mar. 24, 2015), Hutchens, a black woman in the Board’s Professional Development Unit, was laid off from the Unit rather than a white woman, whom Hutchens claimed was retained because the Unit’s director “...preferred whites to blacks.”

    The director cited reasons of isolation of Hutchens during meetings leading to less recruitment into the Professional Development Unit’s program; her “bickering” with co-workers; and issues regarding her “tardiness”. All of this found no or scant documentation in the records of the Board; was contradictory to testimony in the case below; and raised questions about the veracity of the witnesses for the Board. As a result, the summary judgment granted the Board in the District Court was vacated and remanded as to discrimination under 42 U.S.C. §1983 and Title VII of the Civil Rights Act.

    The Hutchens case points out that even if an employer articulates a purported non-discriminatory reason for its employment decision, it had best document that reason clearly and be prepared to back up the documentation with clearly articulated (and reliable) witness testimony. Failure to do so may well lead a case back to a jury rather than toward an affirmance of summary judgment.

    And, finally, in Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015), a case in which one would think an “Administrative Office of the Courts” (“AOC”) would know better, a person with the disability of “Social Anxiety Disorder” was terminated three weeks after sending an email to her superior disclosing her disability and requesting an accommodation. The court’s opinion found that a prima facie case for discriminatory discharge had been made out by Jacobs.

    The AOC then offered several “non-discriminatory reasons” for Jacobs’s termination. The burden then shifted back to Jacobs to show that those reasons were a “pretext” for her termination, and not legitimate reasons for doing so. The court states: “Even more striking is that no one at the AOC documented any of the justifications (including those raised at the time of termination) in any way.” Furthermore, testimony in the case tended not to support the legitimacy of the reasons advanced by the AOC for the termination.

    After a lengthy recital of the summary judgment standard in the Fourth Circuit, the court vacated and remanded for trial Jacobs’s ADA disability discrimination, retaliation, and failure to accommodate claims. The case once again highlights the importance of documentation in discrimination cases and having proper testimony to back them up.