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Jones v. Evergreen Packaging, Inc., No. 13-1354 (8th Cir. Oct. 28, 2013)

'Twas unfortunate that the Eighth Circuit should choose not to publish this short opinion today, reversing summary judgment in a race discrimination case under Title VII and the Arkansas Civil Rights Act. It illustrates the important point that even seriously misbehaving workers have a right not to be discriminated against in employment. A suspended employee presents a genuine dispute of material fact about whether a white employee who committed a comparably serious work rule violation was treated more lightly.

Jones v. Evergreen Packaging, Inc., No. 13-1354 (8th Cir. Oct. 28, 2013) (nonprecedential): Jones, an African-American pulp mill employee since 1973, supervised a white employee named Conner. The central incidents occurred over three days in 2010:

"On May 8, 2010, Conner's grinder jammed, and Jones asked him to fix it. Conner approached Jones while holding a wood hook (a long wooden pole with a metal hook attached to it), and stopped about eight feet from Jones, moving the wood hook as if he were going to hit Jones with it. Jones reported the incident, and both men received another written counseling ....

"On May 10, Jones was speaking with two other employees he supervised about a meeting he was to attend with Conner and their human resource representative. According to Jones, one of the other employees stated that if Conner got Jones fired, Jones 'might go postal.' According to the other employees, Jones stated that if he were fired he would 'just walk up to people and go bang' (as he mimed pulling a trigger); and according to one of the employees, Jones also said he would 'just go postal.' Jones denied making any threats, but he was placed on leave without pay or benefits, and he could not return to work until he had completed workplace anger classes and signed a last-chance agreement."

In both instances, investigations concluded that neither employee posed an actual threat to anyone's safety.

Reversing the district court, the panel holds that there are several fact issues for the jury to resolve:

"First, a reasonable jury could find that Jones was similarly situated to Conner, as it appears Jones had no disciplinary authority over Conner, both men were subject to the same workplace-violence policy, and they had the same foreman and human resource representative. Second, their conduct was of comparable seriousness to provide evidence of pretext: Conner physically threatened Jones with a potentially deadly tool, and Jones allegedly made a comment to other employees about 'going postal' if he were fired. Third, EPI did not treat Conner and Jones the same in terms of investigations and punishments: each time Jones complained about Conner's misconduct, Conner was given an opportunity to explain himself, and either he was not disciplined or both men were given a written counseling; in contrast, Jones was suspended without pay, and the record indicates EPI had decided to discipline him before hearing his side of the story."  [Citations omitted.]

The lesson is that even for-cause terminations are not insulated from scrutiny if the circumstantial evidence shows that African-Americans (or other protected-group employees) are treated more harshly.

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