Fourth Circuit Affirms Jury Verdict in Racial Harassment and Retaliation Action Despite Erroneous Causation Instruction

In E.E.O.C. v. A.C. Widenhouse, Inc. (06/24/2014), the Fourth Circuit Court of Appeals affirmed a substantial plaintiffs’ jury verdict in a case featuring claims of a racially hostile work environment, racially discriminatory discharge, and retaliatory discharge.  The lawsuit was brought first by the United States Equal Employment Commission (“EEOC”) on behalf of two black employees, and also included additional claims brought by Contonious Gill, one of the affected employees, after he intervened in the action.

Gill had worked for A.C. Widenhouse as a truck driver from May of 2007 until his termination in June of 2008.  During his employment, Gill was subjected to racial epithets, which included use of the “N” word and the term “porch monkey.”  He also heard racially charged jokes and witnessed displays of objects such as nooses and confederate flags.  Gill testified that he repeatedly reported these incidents to superiors, who did nothing to remedy the problem.  Gill was terminated in June of 2008 when he was unable to complete a delivery due to illness.  Gill alleged that the termination was due to racial discrimination as well as retaliation for his reporting the harassment.

The jury found Widenhouse liable on each claim and awarded Gill $105,000.00 in damages.  The judge, in turn, awarded Gill an additional $88,509 in back pay and prejudgment interest. The judge also ordered Widenhouse to pay $139,000 in attorneys’ fees and costs.

In its appeal to the Fourth Circuit Court of Appeals, Widenhouse contended that the trial court erred by instructing the jury on the law applicable to the claim of retaliation.  On this point, the trial judge instructed the jury that it should find Widenhouse liable for violating Title VII's retaliation prohibition if the jury found that retaliation for Gill's protected activity of reporting racial discrimination was a motivating factor in his termination.  This instruction was contrary to recent United States Supreme Court precedent holding that a retaliation plaintiff must prove that the plaintiff’s protected conduct (here, Gill’s complaints of harassment) must have been the “but-for” cause of the retaliatory action.  

While acknowledging the erroneous instruction, the Court of Appeals nevertheless affirmed the verdict because Widenhouse failed to show that the erroneous instruction affected the outcome of the retaliation claim.  In its analysis on this point, the Court found significant the jury’s verdict sheet, which noted the jury’s finding that the termination was “because of” his opposition to unlawful harassment.  The Court also found that the jury’s finding of liability for the same conduct under a companion Section 1981 federal law theory to demonstrate further a lack of prejudice from the erroneous instruction.

In affirming the jury verdict despite the erroneous jury instruction, the opinion also demonstrates that the Supreme Court’s recent pronouncement of a “but-for” causation requirement really is not the significant change in the law that employers initially believed.  Other recent cases decided by other courts have previously noted that there can be more than one “but-for” cause, and the opinion here seems to confirm the point.  Other commentators have discussed how the traditional analytical framework for retaliation claims appears to have been altered little by the distinction between “motivating factor” and “but-for” causation. We tend to agree that the but-for causation requirement is unlikely to dramatically alter the danger presented by retaliation claims when termination decisions closely follow an employee’s complaints of work place discrimination or harassment.

EEOC Files Age Discrimination Lawsuit Against Wal-Mart Stores of Texas

As we have previously noted on this blog, age discrimination claims continue to be asserted in large numbers, both in North Carolina and across the nation.  Employment discrimination on the basis of age is expressly prohibited by the Age Discrimination in Employment Act (“ADEA”).  Furthermore, in North Carolina, age discrimination is prohibited by the North Carolina Equal Employment Practices Act. 

Recently, the United States Equal Employment Opportunity Commission (“EEOC”) filed a civil lawsuit against Wal-Mart Stores of Texas, LLC due to alleged age discrimination.  In the lawsuit, the EEOC contends that David Moorman, a 54 year old manager of a Wal-Mart store located in Keller, Texas, was the victim of unlawful age discrimination in multiple respects.  The lawsuit is instructive in demonstrating the various types of discriminatory conduct and actions that can constitute actionable discrimination.

In the complaint that initiated the lawsuit, the EEOC contends that Mr. Moorman was subjected to frequent age-based taunts from his direct supervisor, including repeated references to “old man.”  According to the EEOC’s press release on the case, the supervisor also referred to Mr. Moorman as “old food guy,” and derided him with comments such as, “You can’t teach an old dog new tricks.”  It is further alleged that Wal-Mart took no corrective action, even after Mr. Moorman reported the conduct, that the misconduct increased, and that the store ultimately fired Mr. Moorman because of his age.

In addition, the lawsuit alleges that Wal-Mart unlawfully refused a request for accommodation of a diabetes related disability.  According to the lawsuit, Mr. Moorman requested reassignment to a store co-manager or assistant manager position after being diagnosed with the condition.  It is alleged that Wal-Mart refused to consider the request and simply rejected it without discussion.

On the basis of the above, the EEOC sued Wal-Mart for violations of the ADEA as well as the Americans with Disabilities Act (“ADA”).  The ADEA claims are multifaceted inasmuch as the complaint refers both to a hostile work environment and a discriminatory discharge. 

The lawsuit is a good example of how multiple federal causes of action can arise as a result of an employer’s treatment, or mistreatment, of older workers.  The alleged misconduct in this case occurred during a relatively brief time period, between February of 2011 and July 11, 2011, the date of termination.  Within this relatively brief time period, it is alleged that Wal-Mart created a hostile work environment, failed to correct it upon notification of the problem, and terminated a complaining victim.  It is not clear whether the EEOC contends that Wal-Mart terminated Mr. Moorman in retaliation for his reports of harassment, but a claim for retaliatory discharge is yet another risk for employers under this scenario.  Finally, the ADA claim represents still another statutory violation that the company is alleged to have committed within a relatively brief time frame.

While surprising to read, it is not uncommon to see allegations of this nature.  The “can’t teach an old dog new tricks,” is a particularly common statement that appears to be used with some frequency in the American work place. 

As explained, the EEOC has filed this particular lawsuit on behalf of the affected worker.  Notably, just two weeks after filing the lawsuit described above, the EEOC also reported a settlement with Wal-Mart Stores East, LP, in which the company was required to pay $363,419 to resolve an action for sexual harassment and retaliation.  These recent developments show that even the nation's largest companies continue to face substantial liabilities as a result of equal employment opportunity violations.

The majority of age discrimination lawsuits are brought by private law firms after the EEOC concludes an administrative review of a Charge of Discrimination.  The cases are quite complex, both in terms of procedural and proof requirements.  If you are confronting issues or allegations of work place discrimination or harassment, it is important to seek counsel from qualified attorneys in this area.

City of Greensboro Moves for Summary Judgment in Discrimination Case filed by Former Police Chief, David Wray

Former City Manager, Mitchell Johnson and former Police Chief, David Wray.  Photo credit: News-Record.com.

For those of you who live in the Triad area of North Carolina, you may recall that in 2005, the City of Greensboro police department was fraught with allegations of internal racial discrimination.  The police chief at the time was David Wray.  Allegedly, Mr. Wray used an internal affairs unit to secretly investigate numerous black officers for alleged misconduct.  Furthermore, it was reported that a binder known as the “Black Book” allegedly contained photographs of black police officers.  As reported by NPR, there were rumors that crime suspects were sometimes promised more lenient treatment if they could identify black officers in the “Black Book” for misconduct.    

According to reports by the Greensboro News and Record, the former City Manager, Mitchell Johnson, met with Mr. Wray and the human resources director on January 6, 2006.  During that meeting, Mr. Johnson informed Mr. Wray that he had reviewed two internal reports detailing how Mr. Wray’s administration had investigated its own officers.  According to news articles, Mr. Johnson then informed Mr. Wray that he was being placed on administrative leave.  Mr. Wray subsequently tendered his resignation on January 9, 2006.

Mr. Wray filed a discrimination lawsuit against the City of Greensboro in 2009.  Mr. Wray alleges that the City of Greensboro violated his rights under the Civil Rights Acts of 1866 and 1870, 42 U.S.C. § 1981.  In short, Mr. Wray alleges the city discriminated against him based on his race (white) in an effort to appease a segment of the African American community by publicly stripping him of his authority and forcing him out of office.  A copy of the complaint can be viewed by clicking here.

Section 1981 prohibits all forms of intentional employment discrimination based on race which are considered “disparate treatment”.  The prohibition against disparate treatment applies to hiring, firing, demotion, and failure to promote decisions, as well as to unequal pay and hostile work environment claims.  Proving a Section 1981 claim can be difficult.  A Section 1981 plaintiff alleging discrimination based upon a protected trait must produce sufficient evidence from which one could determine that the protected trait (race) actually motivated the employer’s decision.  See, e.g., Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286 (4^th Cir. 2004).   

More than four years after the complaint was first filed (and nearly four years after the Court ruled on the City's earlier motion to dismiss), the City has moved for summary judgment.  The City of Greensboro is asking the Court to summarily rule that Mr. Wray cannot prove that he was placed on administrative leave because he is white or that former police chief Tim Bellamy was selected as Mr. Wray’s replacement because he is black.  Instead, the City of Greensboro contends that the evidence demonstrates that Mr. Johnson placed Mr. Wray on administrative leave because of concerns over Mr. Wray’s truthfulness and leadership decisions.   

In defense of its actions against Mr. Wray, the City of Greensboro relies on a decision by the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) holding that an employee's dishonesty is a legitimate, non-discriminatory reason for termination.  See Curry v. Alamance Health Services, 1994 WL 242288 (M.D.N.C. Apr. 11, 1994), aff'd 54 F.3d 772 (4th Cir. 1995).    

In support of its motion for summary judgment, the City has included a transcript of the closed door January, 2006 meeting between Mr. Wray and Mr. Johnson.  A copy of the transcript on file with the court can be viewed by clicking here.   The City of Greensboro emphasizes that during the meeting, Mr. Johnson informed Mr. Wray that he was placing him on administrative leave pending further investigation and that Mr. Wray agreed that appointing then Assistant Chief Tim Bellamy as Acting Chief was an appropriate choice.  

This case demonstrates how even corrective personnel actions can sometimes lead to discrimination complaints, regardless of the plaintiff's race.  The case and its long timeline are also good examples of how protracted and expensive employment discrimination cases can become.  A review of the docket shows some 52 filings over the course of 4 years, which likely has generated prodigious legal fees for the City of Greensboro.  

Similarly, the plaintiff's counsel has likely incurred substantial fees over the course of this protracted litigation.  If the plaintiff were to prevail in the case, these fees would present an additional exposure to the City that could very well prove greater than the plaintiff's damages.  This is so because courts routinely award prevailing plaintiff's their attorney's fees as part of the final judgment in employment discrimination actions.  Whether this plaintiff ultimately prevails or not, it seems clear that the City of Greensboro will have paid substantial, costly attorney's fees and expenses over the course of a litigation that has already consumed more than four years of time.  The importance of experienced counsel capable of streamlining litigation and achieving timely and economical results in employment litigation matters cannot be understated.

Mr. Wray will have an opportunity to file a brief in opposition to the City of Greensboro’s motion, but has not yet done so.  We will discuss issues raised by Mr. Wray’s response once his brief is available, so please check back.  In the meantime, please feel free to contact me directly at (336) 333-6375 to discuss this post or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless &Stavola, please visit our website at www.sharpless-stavola.com. 

Fourth Circuit Finds Plaintiff’s Allegations of Sexual Harrassment Sufficient to State a Claim for Relief

On December 1, 2012, in the case of Sheila Davis v. City of Charlottesville School Board, the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) vacated a District Court’s dismissal of a sexual harassment complaint filed by Sheila Davis against the City of Charlottesville School Board.  Presently, only the slip opinion is available; click here to view the slip opinion.

As the opinion explains, in order to establish a claim for coworker sexual harassment under federal law, a plaintiff must demonstrate that the conduct was unwelcome, that it was based on gender, that it “was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment,” and that it is “imputable to her employer.” See, e.g., Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003).

Ms. Davis alleged that she was the subject of an attempted sexual assault by a coworker and that she immediately reported the incident to a supervisor. She alleged that she then suffered an unwanted intimate touching by the same coworker the very next day. The district court concluded that Ms. Davis had not alleged any facts that would entitle her to relief and dismissed her complaint. The Fourth Circuit disagreed. It found that the facts alleged by Davis, including the physical nature of the harassment, stated a plausible claim that the assault was “sufficiently severe or pervasive” to survive dismissal. Furthermore, the Fourth Circuit held that Ms. Davis sufficiently alleged facts that could demonstrate liability on behalf of her employer, since she immediately reported the harassment and the harassment occurred again thereafter.

In sum, the Fourth Circuit held that Ms. Davis’s original complaint was sufficient to state a plausible claim for relief, and the district court’s judgment was reversed and remanded. The opinion is notable inasmuch as it confirms that even misconduct that is limited in frequency can suffice to establish a sexual harassment claim when the conduct is severe in nature.

The Davis case reaffirms the difficulties posed by allegations of workplace sexual misconduct.  Even in traditionally conservative federal circuits, when sexual misconduct is alleged to have recurred after reporting, such cases will almost surely reach a jury for final determination. If you are confronting issues of work place harassment, it is important to speak with experienced North Carolina employment lawyers. Please feel free to contact me directly at (336) 333-6375 to discuss the case or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at www.sharpless-stavola.com.