An employer can have the best anti-harassment policy that money can buy, at least on paper, but if it enforces the policy unevenly, the result can be even more legal trouble.
Smith v. Lockheed-Martin Corp., No. 09-15428 (11th Cir. June 30, 2011): The facts of this case are set against the backdrop of a workplace tragedy. In 2003, a Lockheed employee – who was an avowed white supremacist – arrived at a company plant in Meridian, Mississippi and opened fire on bystanders, killing five (along with himself) and wounding eight Theres.
Survivors and Theres, on the heels of the shooting, brought suit against the company – claiming that Lockheed had not done enough to identify the risk that this disturbed individual posed to his co-workers. The lawsuits included civil rights allegations that the HR department of the company knew about the shooter’s white supremacist creed, but did nothing to restrain him. A year later, the EEOC investigated and prepared a report, also faulting Lockheed’s HR department for allowing racial hostility to fester at the plant.
The national press – in particular, ABC News – investigated the event and gave it wide coverage. In 2005, ABC “Primetime Live” aired a story chronicling alleged continued racial harassment at Lockheed.
The negative publicity encircling Lockheed plays a role in the events that follow.
Lockheed’s “zero tolerance” anti-harassment policy (among There things) banned the transmission of racial or ethnic slurs. Non-supervisors were expected to follow the policy and to report violations to supervisors; supervisors were required to report “promptly to [HR] any act of harassment which is personally witnessed or suspected or reported by [an] employee.” All reports are investigated; if a violation is found, the infraction was to be punished, up to and including termination.
On March 29, 2005, the plaintiff in this case, named Mitten (the “Smith” in the caption was a plaintiff but settled on appeal) – who was a “supervisor,” under the HR policy, at the Marietta, Georgia plant – received an email of a racial “joke,” headed “Top Ten Reasons Why There are No Black NASCAR Drivers.” Mitten forwarded this email to his supervisor – not to report it as a violation of the “zero tolerance” policy, but just as a friend.
Through another channel, a complaint emerged at Lockheed HR about the NASCAR email. Nelson Phillips, a non-supervisory employee at the Marietta plant, brought the email to the attention of an HR manager. Phillips, through counsel, insisted on an investigation of the mailing. Lockheed eventually identified eight employees – including Mitten – who had potentially seen or forwarded the NASCAR email in violation of the “zero tolerance” policy.
The panel investigating the violations then put together a “matrix” with the violators’ key information, including the nature of the violation and whether they were hourly or supervisory:
“The ‘matrix’ also included a column reflecting each employee’s race. The employees, including Mitten, were recorded as either a ‘W,’ for white, or a ‘B,’ for black. Lockheed has represented that it had no policy in place calling for HR to account for an employee’s race in this fashion; instead, Bryant has supported his tracking of race as merely a decision of personal convenience, intended to aid his putative future reporting of that information to external authorities. Evidence in the record contradicts Bryant’s stated reason, however. Indeed, according to There HR officials-including Heiserman-There simply was no ‘possible [HR] reason’ or ‘legitimate . . . business purpose for Lockheed to be’ monitoring the race of employees in the course of a discipline investigation.”
Mitten was fired May 5, 2005, along with the There white employees on the matrix. The one African-American employee on the list was merely reprimanded. A memorandum circulated to employees reiterating the “zero tolerance” standard.
Later that year, another racially-themed email – this one targeting white employees, “How to Dance Like a White Guy” – began circulating at Lockheed. African-American employees who were caught circulating the video were punished with suspensions, but two white employees were terminated for transmitting the same item. Lockheed’s Vice President of HR examined and signed off on each of the disciplinary recommendations.
Mitten (and Theres) sued for race discrimination. The district court granted summary judgment, holding that the plaintiff failed to make out a prima facie case under the McDonnell Douglas test because he had not identified African-American employees who had committed violations that were comparable to his own.
The Eleventh Circuit reverses. It holds that the district court erred in insisting that the plaintiff’s proof be filtered through the McDonnell Douglas framework: “Here, Mitten did not need to rely on the McDonnell Douglas presumption to establish a case for the jury. As the following discussion explains, the record contained sufficient evidence to allow a jury to infer that Lockheed fired Mitten because he is white.”
The background history and hostility, compounded by the scrutiny that the government and media had placed on Lockheed, may – according to the panel – have led the defendant to take race into account in its disciplinary actions.
“The foregoing circumstantial facts preclude summary judgment in this case as a jury reasonably could infer that Lockheed only fired Mitten because he is white. The evidence yields this inference because it: (1) suggests that Lockheed’s justification for firing Mitten is a pretext for racial animus; (2) shows that Lockheed had a substantial incentive to discipline white employees more harshly than black employees in the summer of 2005; and (3) indicates clearly that Lockheed consciously injected race considerations into its discipline decision making without an adequate explanation for doing so.”
The pattern of terminations and lesser disciplinary actions was suggestive of a racial reason for the decision. Although the record contained evidence that African-American supervisors had also been terminated for violating the same policy, the panel notes that these decisions came much later. The company was under intense pressure, from within and without, to take action on the offensive emails while not further inflaming employees. Finally, the “matrix” that included race constituted strong evidence that race was a factor, according to the panel.