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No evidence of bias in discharge of older black employee fired for insubordination

By Brandi O. Brown, J.D.

An African-American worker who had worked for the City of Blytheville, Arkansas, for 27 years, and who was fired after allegedly refusing to give up his driving duties to a less senior employee, could not revive his race and age bias claims on appeal to the Eighth Circuit. Affirming the grant of summary judgment in favor of the employer, the appeals court found the employee failed to present evidence giving rise to an inference of discrimination (Grant v. City of Blytheville, Arkansas, November 14, 2016, Wollman, R.).

Fired after new guy assigned to drive. In September 2012, the 59-year-old municipal employee was fired by the new Public Works Director. Prior to that time, he had been driving a Street Department truck. After one coworker died and another retired, the employee learned that he was being assigned a new crew member. He was told that this employee, a 45-year old man who had recently transferred from a different department, would now drive the truck.

He and his supervisor then went to the Director’s office. What happened there was disputed. The employee claimed he told the Director he did not have a problem with the change and, when asked if he was going to quit, said no. He alleged that he was then fired. The employer’s witnesses, however, told a different story. They claimed the employee said he was not going to let the new guy drive the truck and that he refused to work at all if he was not assigned to drive. The Director testified that he asked the employee if he was going to retire. When the employee answered that he would not retire, the Director testified that he told him if he would not do what was asked, he had “no use” for him.

Default and summary judgments. The employee filed an EEOC charge and later filed suit. Initially the employer did not answer the lawsuit and the court granted the employee’s motion for entry of default. The default judgment, however, was later set aside after the court concluded that there was good cause. It later entered summary judgment against the employee on a motion by the city, finding that although the employee established a prima facie case of age and race discrimination, he failed to present sufficient evidence of pretext. While the employee’s appeal was pending, he died and the administrator of his estate was substituted as a party.

The Eighth Circuit found on appeal that the lower court did not err in setting aside the entry of default. The employer’s misunderstanding—both the mayor and the HR director reviewed the complaint but the latter believed it was related to the employee’s EEOC charge and did not realize it was a separate court complaint—and the delay it caused in filing an answer was “excusable.” The district court did not err in setting it aside, the court concluded.

With regard to the summary judgment decision, the appeals court likewise ruled in favor of the employer. However, it did not reach the pretext question. Instead, evaluating the claims under the McDonnell Douglas burden-shifting framework, the court concluded that the employee never met his initial burden of establishing a prima facie case of race or age discrimination. Although he met the first three elements—he was a member of both protected classes as a black male over the age of 40, he met his employer’s legitimate employment expectations, and he suffered an adverse employment action—the court agreed with the employer that he did not provide sufficient evidence of circumstances surrounding his termination that gave rise to an inference of race or age discrimination.

White employee also fired for insubordination. First, he failed to identify a similarly situated employee not in his protected class who was treated more favorably. Looking only at the time period starting with the new Director, who was the decisionmaker in the employee’s termination, the court noted that of eight employees who left, four were fired. Of the four fired, three were black and one was white and all four were over 40 years old. Two of the black employees were fired for “No call/No show” and one was fired for walking off the job.

The white employee was the only one fired for the same reason as the plaintiff, i.e., insubordination. Although the employee appeared to argue that more older black employees were fired than older white employees, the court noted that the department also employed more black than white workers. The fact that the Director fired both black and white employees indicated to the court an “absence of discriminatory motive.” Moreover, the employee who was assigned to drive the truck was also a black man over the age of 40.

Although the employee provided other demographic information, he failed to explain how the statistics were relevant. He also suggested disparities in terms of pay, management, and job assignments, but he failed to present evidence to support those allegations. He also failed to present evidence of any discriminatory comments made by the Director.

No policy violations. As to evidence of policies or procedures that the employer might have failed to follow, the employee admitted that the city’s policies were “confusing and contradictory” and he presented no evidence that the employer failed to follow a particular policy. While he also attempted to argue that the employer’s justification for its decision had changed over time, the court found that the evidence indicated otherwise. While it was true that there was some inconsistency in the City Personnel Director’s statements, it was “inconsequential.” The substance of her statements, the court explained, “never changed.” The employer “consistently cited insubordination” as the reason the employee was discharged.