Is a white manager calling his black employees “troublemakers” guilty of using racial-code language? Could be, says the Sixth Circuit in an unpublished decision reversing summary judgment in a Title VII case.
Thompson v. UHHS Richmond Heights Hospital, No. 08-4435 (6th Cir. Apr. 12, 2010): The plaintiff, Thompson, had been employed at the hospital since 1982. Management changed in 2005. This case involved a multiple employer situation; the chief antagonist in the picture, a chef named Savanick, began supervising the kitched staff in 2005:
“In June 2005, third-party food service contractor Sodexo began managing the Hospital’s Nutritional Services Department. Sodexo supervised the Nutritional Services Department operations, including the Nutritional Services Department staff. Mary Henefeld, a Sodexo employee, was assigned as the General Manager. Henefeld reported to Sodexo, to the Hospital’s human resources group, and to Kris Bennett, the Hospital’s Director of Finance and Support Services. Steve Savanick, a Sodexo employee, was assigned to the Hospital as an Executive Chef. Savanick reported to Henefeld. Thompson reported to Savanick.”
The plaintiff alleged that Savanick pushed around and undermined black staff:
“Thompson alleges that Savanick gave white employees preferential treatment; that black employees were required to perform the harder, dirtier jobs; that certain white employees talked back to Thompson and were not disciplined; and that Savanick did not permit Thompson to evaluate or discipline white employees, despite her supervisory role.”
Thompson’s job was eliminated in a reorganization, but some or more of her duties were assumed by a white employee named Hart. According to the plaintiff:
“Following Thompson’s termination, Hart started work as Chef 1. Hart was employed directly by Sodexo. Thompson alleges that Hart replaced her and that he was unqualified for the Chef 1 position because he could not perform ordering due to a learning disability, lacked formal culinary certification, and had less experience than Thompson. Thompson claims that after her employment ended, Savanick told Hart that she was a trouble maker. Thompson also claims that after her employment ended, Savanick told Hart to ‘get rid’ of three other black employees because they were also trouble makers.”
After her termination, Thompson sued for violations of Ohio civil rights law and § 1981– discrimination, harassment and retaliation — as well as the FMLA. The district court granted summary judgment on all claims. While the Sixth Circuit largely affirms, it remands the wrongful termination claim, finding sufficient evidence of unlawful racial intent to warrant a trial.
First, the court treats this case under the rubric of “failure to transfer,” because she was denied a warning to look for other work in anticipation of the coming reorganization. “Thompson has pled sufficient facts to create a genuine dispute as to whether she was qualified for both the Food Production Supervisor position – from which she was fired – and the Chef 1 position – to which she was not transferred. Thompson was certified, had completed courses in food service sanitary management, had on-the-job training, and had over twenty years experience at the Hospital.” The panel also held that there was enough evidence to establish that she was, in effect, replaced by the Chef 1 (Hart), because he took over her principal duties.
The panel also finds a genuine issue of material fact about pretext. It finds that the record supports an inference that the reorganization was carried out in such a way as to eliminate Thompson’s job and to discourage her from applying from the new position. It credits the evidence that black employees were treated more shabbily than non-blacks. Finally, it notes that Savanick allegedly told Hart that he wanted to get rid of “troublemakers.” The panel notes:
“Hart asserts that Savanick told him to “get rid of” certain black employees whom Savanick called ‘troublemakers’ and that he also referred to Thompson as a ‘troublemaker.’ The District Court found this assertion to be of little weight. We disagree. In discrimination cases, evidence of animus is difficult to demonstrate. That Savanick referred to plaintiff, and other black employees, as ‘troublemakers’ and wanted to ‘get rid of them’ can be evidence of pretext.”
As a nice touch, Thompson apparently sued Savanick individually as well.