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Racism, American style


Slavery was brought to North America in the 1600s, where it took hold in colonies established by white Europeans who relied for money on the sale of tobacco and cotton. White plantation owners prospered on the backs of slave laborers. England’s effort to assert control over the colonies by, among other things, encouraging slaves to revolt stoked the revolutionary spirit of Southern whites. Yet, these same would-be revolutionaries objected to language in Jefferson’s first draft of the Declaration of Independence which faulted King George III for slavery. Such language implied that slavery was wrong and immoral, a proposition they summarily rejected. Slavery was therefore removed from the Declaration’s list of grievances against the King. By the time of the Constitutional Convention, and even after the Articles of Confederation had proven so patently inadequate to the governance of the several States, slave-holding States declared their opposition to any constitutional provision that limited or interfered with, or even had the prospect of limiting or interfering with, their ownership of slaves. But for a sinful compromise with representatives from these southern States, the Constitution would not have been ratified. Over time, as more and more people recognized slavery’s inherent incompatibility with the ideals of freedom and democracy described in the Constitution, southern states broke from the Union, precipitating a bloody Civil War that claimed nearly 700,000 American lives. Although the Confederacy was defeated, deeply engrained racial animus against blacks persisted, giving rise to Jim Crow laws and the perpetuation of a malicious stigma against black Americans for no reason other than the color of their skin. In negotiations at the Versailles Conference following WWI, Woodrow Wilson rejected efforts by Japan to include a clause declaring all races equal, fearing political retaliation by Southern congressional leaders were he to agree. Even when blacks stepped forward to serve their Country in World War II, and routinely proved their valor in combat, they were forcibly segregated from whites and were rarely recognized for their contributions. Later, when LBJ passed the Civil Rights Act of 1964 banning racial discrimination in employment, formerly southern Democrats were so incensed that they renounced their party affiliation and became Republicans.

Pittsburgh employment lawyer Charles A. Lamberton. Representing executives, managers and professional employees in discrimination, retaliation, sexual harassment and wrongful termination cases for 20 years. High end representation for high end cases and clients. Contact us today.

Discrimination at its essence

imagesThe Third Circuit’s recent decision in Hassan v. City of New York, — F.3d —, 2015 WL 5933354 is a welcome reminder that the Court understands the real harm inflicted by discrimination. Discrimination is not, and I repeat not, principally an economic tort. Economic losses often result from discriminatory decisions, but discrimination is more about the dignitary – some would say spiritual – injury inflicted when one is judged or treated differently because of skin color, race, age, gender or religion.

The plaintiffs in Hassan claimed that they were targets of a wide-ranging surveillance program that the New York City Police Department (the “NYPD”) began in the wake of the September 11, 2001 terrorist attacks (the “Program”). They alleged that the Program was based on the false and stigmatizing premise that Muslim religious identity “is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.” They sued “to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance that cause them continuing harm simply because they profess a certain faith.” The District Court threw the case out, believing that the Program had not caused any harm. The Third Circuit reversed. Let’s take in some of what the Appellate Court had to say.

“Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. After all, the fundamental concern of discrimination law is to redress the dignitary affront that decisions based on group characteristics represent, not to guarantee specific economic expectancies. *** Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the badge of inferiority inflicted by unequal treatment itself.”

Defense lawyers, neutrals and judges who rely on lost wages alone to measure the harm inflicted by discriminatory decisionmaking would do well to read Hassan and reflect on the “dignitary affront that decisions based on group characteristics represent.”

Racism outrages jury, judge not so much

imagesRacist jokes supported a verdict against the employer in a  race-based hostile work environment claim under Section 1981, along with an award of compensatory and punitive damages, but judge knew better than jury what the damages should have been.  A tale of Fulmore v M & M Transport Services, Inc, April 29, 2014 (Pratt, T).

During the four years the plaintiff worked for his employer, he heard many racially offensive jokes, including use of the word “n***er,” every week. He also testified that coworkers made racial comments about President Obama, including that “the day that a black man became the president, it would be a cold day in hell, and that’s probably why it’s so cold out there today” and “when a black man becomes president, that would be when pigs fly, so that’s why we have swine flu.” He also presented evidence from coworkers regarding racial jokes and comments, including comments about President Obama having spinners on his limo and about fried chicken and watermelon being served at the inauguration. The racially offensive jokes even went to top levels, including a joke told by an executive vice president with a punch line that implicated the stereotype that African-American men want to rape white women. The employee and coworkers complained but his supervisor believed the “Obama stuff” and other complaints were “overblown.”

The jury returned a verdict in the employee’s favor for $400,000 in compensatory damages and $2,850,000 in punitive damages. The employer filed a motion for stay of execution of the judgment, which was granted; then it moved for judgment as a matter of law and for a new trial or, alternatively, remittitur of the damages award.

The employer argued that the employee failed to satisfy two elements of the HWE claim: (1) severity or pervasiveness and (2) basis for employer liability. The court noted that the evidence of racial comments and jokes fell into three categories —statements directed at the employee, statements that he overheard, and statements that he did not overhear, but that were made to other employees. It noted the many comments regarding President Obama. The jury heard “ample testimony” that those jokes were prevalent near election times. The plaintiff also testified that the word “n***er” was used on a weekly basis and that numerous offensive jokes and statements were made every week. The court noted that it did not have to “carve up” and analyze separately the incidents of harassment and while “second-hand racial comments” overheard by the employee might not be enough, alone, to rise to the level of severe and pervasive, “the frequency of the overheard statements and the jokes made directly to” the employee was sufficient evidence.

Moreover, he showed that the environment was objectively severe or pervasive. While there was no physical behavior, he testified that the comments were not isolated and continued throughout his employment. “The content of the comments are certainly offensive, such as frequent use of the word ‘ni**er,’ calling an African-American driver ‘Buckwheat’ and ‘Buttwheat,’ and the myriad of distasteful jokes including those told by” an executive VP at annual meetings. There was evidence that the employee and other African-American drivers felt “uncomfortable and embarrassed” to the point that they withdrew from the environment.

The employee and others complained to the supervisor about the racial jokes and statements, including use of the “N word” and the Obama remarks. The supervisor testified that another dispatcher told him about the “Obama stuff” and he spoke to one employee about it, but he did not say that he told him to stop the comments. He also testified that “it was overblown.” Thus, the court explained, a rational jury could find that the employer was on notice. Moreover, there was no evidence that the supervisor told anyone to stop the behavior or that any disciplinary actions were taken. Indeed, the employee contended that any talks the supervisor had with the employees only incited them to make more racially charged statements, such as “These motherf***ers are always complaining” and “[t]hese ni***rs always complain.” Comments other than jokes were made frequently and multiple employees complained to the supervisor. For example, two other employees had complained about one employee being called “Buckwheat” and “Buttwheat,” and others complained about the route assignments.

Furthermore, the employer could not “ignore the undisputed evidence” that its own executive vice president made a racially offensive joke at an annual meeting. Added to that, the record was “sparse” regarding the employer’s anti-harassment policy and its implementation. A rational jury could conclude that the employer was “negligent in its discovery and response to the alleged racial harassment.” For all of these reasons, the court found that the record supported the jury verdict and denied the motion for judgment as a matter of law.

An award of punitive damages was warranted, the court ruled. Liability was imputed to the employer where evidence supported the conclusion that the supervisor knew about the harassment and would have known about the employer’s antidiscrimination policies. A punitive damages verdict could have reasonably been based on evidence that the employer “did not engage in good faith efforts to implement” that policy. Under that policy, when a complaint is made, a “prompt investigation” was supposed to commence, including interviews and prompt remedial action. Nevertheless, “[t]he record is nearly void of evidence regarding any efforts to implement the policy.” In fact, the behavior continued after the employee left the company. A coworker even received a video via text from a dispatcher depicting “a cornflakes cereal box titled ‘coonflakes’ and when opened, played the song ‘jiggaboo, jiggaboo where are you.’” Moreover, the fact that the executive vice president told “egregiously offensive jokes at company-wide events on an annual basis” suggested that “the company as a whole does not in good faith follow or implement its antidiscrimination policies.” In fact, the court noted, “[t]he entire management team’s condoning of racially offensive jokes is particularly offensive and creates an environment that is severe and pervasive.”

The Court nonetheless found that the actual compensatory and punitive damages awards were excessive. The Court cut the pain and suffering damages to 1/8 the jury’s award, and cut the punitive damages award by nearly 93% to $250,000.00.  The Court told the plaintiff that if he didn’t accept these lower numbers, the Court would order a new trial.

Hat’s off to Hon. Mark R. Hornak, U.S. District Court Judge

awesome-quotes-wallpapers-background-hd-wallpaperFrom the very first sentence of the Hon. Mark R. Hornak’s opinion in McClung et al. v. Songer Steel Services, Inc., No. 12-341, 2014 WL 793133 (W.D.Pa.), the reader knew they were in for a special treat:  “In this race discrimination suit, claims based solely on permissible inferences square off against an essentially vaporous defense on the summary judgment battlefield.”  Here are a couple of my favorite excerpts:

In finding the plaintiff’s comparator similarly-situated:
 “Here, both Mr. Smiley and Mr, Pierce were employed as second-shift laborers at Defendant Songer Steel’s construction project at U.S. Steel—Clairton Coke Works, in Clairton, Pennsylvania, and as such, were listed with identical job titles in Songer Steel’s Employee List and Clairton Laborer List. Songer Steel identifies these two individuals’ work performance as “the particular criteria or qualification” that was behind its reason to terminate Mr. Smiley’s employment and not recall him….” However, Songer Steel’s contention that Mr. Smiley and Mr. Pierce were not similarly situated because Mr, Pierce had no negative performance reviews misses the mark because it instead points to Songer Steel’s alleged dissimilar treatment of Mr. Smiley, a black second-shift laborer, and Mr. Pierce, a white second-shift laborer, and does not point to Mr. Smiley and Mr. Pierce being dissimilarly situated as employees. [n. 3] In some ways, Songer Steel’s argument is circular, since the next “logical” step in this mode of analysis would be that Messrs. Smiley and Pierce were not “similarly situated” because one was recalled and the other was not. Under this analytical model, no plaintiff could ever be found to be similarly situated to a better-treated comparator in any discharge/failure-to-rehire case in which the employer claims that the plaintiff’s performance was less satisfactory than that of better-treated employees. Under this approach, every such claim would fail ab initio. Moreover, the fact that Mr. Pierce had been working on the job only six days before he was fired, whereas Mr. Smiley had been working on the job for nearly two months, is not fatal to Plaintiff’s claim that the two laborers are similarly situated because the standard is that the comparator be “similar,” not identical. Mr. Smiley and Mr. Pierce were indeed hired at different times to do identical work at the same Songer Steel facility. Further, that Mr. Smiley had worked at Songer Steel longer than Mr. Pierce simply begs the question as to why, if Mr. Smiley was such a poor worker, he wasn’t laid off much earlier given Songer Steel’s stated common pattern and practice as to layoffs.”

On whether the defendant satisfied its light burden to articulate a legally sufficient reason for the plaintiff’s termination: When Plaintiff’s counsel attempted to elicit testimony from Mr. Smiley about the specifics of Mr. Smiley’s alleged “slacking off,” Mr. Leadbitter’s testimony became a veritable matryoshka doll of stacked up inconsistencies and equivocations. Here, what emerges from Mr. Leadbitter’s testimony is, at best, his wholly uncertain and conditional knowledge of Plaintiff’s allegedly subpar work performance. The sweeping, yet essentially unsupported, generalities in Mr. Kutemeier’s affidavit do little more to suggest a “legally-sufficient [explanation] to justify a judgment for the defendant.” [n.12] Based on the Third Circuit’s admonitions in Ezold, at least prior to the 2010 amendments to the notice provisions Federal Rule of Civil Procedure 56, consideration of granting summary judgment for the nonmovant (Plaintiff) would have been this Court’s next move. See Keller v. Oriz Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (noting that in an employer’s Title VII motion for summary judgment, as to the second prong of McDonnell Douglas, “[i]f the defendant cannot satisfy this burden, judgment must be entered for the plaintiff.”). However, under the amended Rule 56, a court may grant summary judgment for the nonmovant only “after giving notice and a reasonable time to respond.” Fed.R.Civ.P. 56(f).


Is your supervisor a “supervisor” under Title VII? Supreme Court to decide soon

The Supreme Court heard oral arguments in a case that will clarify who is a “supervisor” when it comes to Title VII sexual harassment litigation. Under current law, an employer is vicariously liable under Title VII for severe or pervasive workplace harassment by the supervisor. If the harasser is a co-worker, however, the employer cannot be held liable absent proof of negligence. The case is set to clarify a circuit court split on whether an employer is vicariously liable for harassment by those with authority to direct and oversee the plaintiff’s daily work, or whether vicarious liability is limited to employees who have the power to “hire, fire, promote, transfer, or discipline” the plaintiff.

The litigants in the case are Maetta Vance and Ball State University in Muncie, Indiana. Vance started working in the banquet and catering department at Ball State in 1989, and worked there for the next 18 years. She was promoted twice.  During most of her tenure, she was the only African-American in the department. Vance alleges that a superior co-worker, Saundra Davis, was verbally abusive towards her and once slapped her in the head. Vance notified the University about the incident but did not pursue a formal complaint because Davis was transferred to another department. Davis returned to the department in 2005, and the harassment allegedly began again with verbal taunts and racial slurs. Vance also alleges that she was told that another co-worker had bragged about family connections to the Ku Klux Klan and had referred to Vance using a racial slur. There were several other incidents in which Vance claims she was subjected to inappropriate and hostile behavior at the hands of Ball State employees.

Vance eventually brought a Title VII action raising claims for racial discrimination involving a hostile work environment and for retaliation.  The District Court granted Ball State’s motion for summary judgment. The court accepted the defendant’s argument that Ball State could not be liable for Davis’s actions because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. The court further held that Ball State properly addressed each complaint made by Vance and its actions were reasonably likely to prevent future harassment. The Seventh Circuit affirmed the district court’s decision, additionally finding that even if there was a hostile work environment created by the employees at issue, the university would not be liable because it promptly and thoroughly investigated all claims, and took appropriate disciplinary action when warranted.

The Supreme Court heard oral argument earlier this week, which is available on the Supreme Court’s website here.

Charles A. Lamberton is a leading Pittsburgh employment and wrongful termination attorney who is dedicated to protecting the rights of employees. He can be reached directly at 412-258-2250, or by filling out his online contact form here.



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