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‘Colored’ sign, other evidence cast doubt on why black employee discharged in companywide RIF

By Marjorie Johnson, J.D.

A jury will decide whether a supervisor’s racial animus or retaliatory motive played a role in the employer’s decision to discharge an African-American employee as part of its companywide layoff, which it claimed was due to his poor productivity and low seniority. Though the coworkers and supervisors testified that he was considered the lowest performer on his team and drank on the job, he presented evidence that a “Colored” sign was hung in his doorway, that coworkers and supervisors made racially insensitive and offensive comments, that he complained to HR, and that his supervisor singled him out for discipline. Accordingly, a federal court in California denied the employer’s motion for summary judgment (Barbara v. HERE North America, LLC, January 29, 2018, Seeborg, R.).

Drinking at work. The employee was hired as a hardware technician in March 2013. Though his employer claimed that he had attendance and tardiness issues, he argued that he missed no more work than his coworkers. His supervisors also claimed he had poor productivity and drank while on the job. The company acknowledged that alcohol was consumed in the warehouse during barbeques and Friday happy hours, it claimed that drinking during work hours was unusual. The employee disagreed, stating that drinking “was an integral part of the culture” and that coworkers frequently consumed alcohol during normal business hours.

Enters rehab. On May 19, 2014, he received a final written warning regarding his consumption of alcohol in violation of the drug and alcohol policy, and given information regarding how to take a leave of absence. He decided to check himself into alcohol rehabilitation and began his leave in June. He returned to work on November 3.

Laid off in RIF. Meanwhile, the employer began planning a company-wide reduction (RIF) based on dramatically changed production needs. A VP and senior manager, in consultation with the employee’s direct supervisor and the HR manager, decided to include him in the layoffs. The purported reasons were that his services were no longer needed and he was the least productive and most junior member of the team. He was advised of his layoff on November 19.

Race-based comments. The employee also claimed that he was subjected to daily race-based harassment by both coworkers and supervisors. This included having a sign reading “Colored” posted above his work area door and hearing the “n-word” and extremely derogatory remarks about black people. He said that he complained to HR two months before being selected for layoff, but the company denied that any such complaints were received.

Continuing violation. The court rejected the employer’s assertion that the employee’s hostile work environment claim was time-barred with respect to any conduct that occurred more than one year prior to the date that he filed his administrative charge. This included several instances of alleged harassment, including the hanging of the “Colored” sign and comments a supervisor asking him, “why do black people love to waste everybody’s time” and “why do black people buy shoes and a car before they buy a house.” He also claimed that his direct supervisor used the terms “brother” and “black people” in a way that he felt were stereotypical and offensive.

Though it was undisputed that none of the racially offensive incidents took place after he returned from leave, he argued that his supervisors’ efforts to “freeze him out at work” upon his return—by giving him menial tasks and not inviting him to training—constituted continuing violations. He also pointed to his termination. Though finding the connection “somewhat fragile,” the court found that he made a sufficient showing of a “continuing violation.”

Severe and pervasive. The alleged race-based comments and incidents were also sufficiently severe or pervasive. While the employee’s recollection of a supervisor’s repeated use of the “n-word” was questionable as to his recall, it was undisputed. Moreover, the “Colored” sign was plainly a reference to his race. “Given the historical context of these terms in connection with the abuse and oppression of black Americans, neither may be disregarded as mere ‘joking,’” reasoned the court. And his supervisor’s apparent failure to take any action, despite being admittedly aware of these incidents, created a significant issue.

No direct evidence. However, he failed to provide direct evidence of bias. Though he pointed to the “Colored” sign, the use of the “n-word,” comments about “black people” and other racialized treatment, he failed to explain how these instances demonstrated that his termination was motivated by antagonism towards his race.

Supervisor’s animus. Though the employer presented evidence demonstrating that his selection for termination was justified based on his job performance, this did not defeat his prima facie or pretext showing, since there was evidence suggesting bias by his direct supervisor. Specifically, the record suggested that the supervisor (who was one of the decisionmakers) was aware of the “Colored” sign incident and another supervisor’s use of the “n-word” and had acted “unfriendly” towards the plaintiff. He also purportedly excluded him from training, singled him out for discipline regarding alcohol use, assigned him only menial tasks, and used the terms “brother” and “black people” in stereotypical and offensive ways.

Remaining claims. A jury would also decide whether the employee was unlawfully terminated in response to his complaints to HR of race harassment. Summary judgment was also denied on his claim for wrongful termination against public policy since it was predicated on his claims for race discrimination and retaliation. Finally, the court rejected the employer’s bid to dismiss his claim for punitive damages since triable issues existed.