DeJesus v. WP Co. LLC, No. 15-7126 (D.C. Cir. Nov. 15, 2016)

| Nov 15, 2016 | Daily Developments in EEO Law |

The D.C. Circuit holds that even facially benign statements about an employee – in a given context – can constitute evidence of discriminatory intent. The panel finds that a supervisor’s alleged compliment to a Black employee for “speaking well,” and later telling the same employee that he was not a “good fit” for the organization, might be evidence of racial stigmatizing. It also discusses that an employer’s “honest belief” must also be reasonable under the circumstances.

DeJesus v. WP Co. LLC, No. 15-7126 (D.C. Cir. Nov. 15, 2016): “for over eighteen years, DeJesus sold ad space [for the defendant] in the Washington Post. In August 2011, he was terminated by his then-supervisor, [Ms.] Wainwright.”

Mr. DeJesus, a Black man who was age 59 at the time of termination, testified to interpersonal conflict with Ms. Wainwright. “[A]s compared to his white and under-forty colleagues, [Ms.] Wainwright treated [Mr. DeJesus] in an ‘edgy’ and ‘condescending’ manner.” This allegedly included “remarks that DeJesus interpreted as coded language with racial undertones, such as describing him as ‘speaking well,'” treating other Black employees in a haughty manner (such as not responding to them), and dismissing Black client representatives as (among other things) “opinionated” and not “a good use of time” to pursue.

The plaintiff also cited evidence that older and Black employees (supposedly) were being replaced gradually in the organization by younger, white staff.

The trigger that led to plaintiff’s termination was his ordering a study (an RAM) of the effectiveness of a print ad placed by an insurance company. Ms. Wainwright complained about not being included “on these types of requests,” and that she “should have been aware of this before we decided to move forward.” Yet after Mr. DeJesus apologized, she concluded, “No worries. Good story on the results.”

Ms. Wainwright later criticized the plaintiff for submitting the report to the (supposedly) wrong client representative – also a Black professional, named Sharpe:

“In the past, [plaintiff] had invited Sharpe, who is African-American, to an event hosted by the Washington Post. Upon learning of the invitation, Wainwright allegedly remarked that Sharpe was ‘not a good fit for the event,’ and when DeJesus invited Wainwright to sit with him and Sharpe, Wainwright declined.”

“A few days later, DeJesus was informed that he was ‘no longer a good fit for The Washington Post’ and was offered a separation package.” Yet a labor arbitrator later found that the employer “failed to prove that the grievant engaged in ‘willful neglect of duty and insubordination[,]'” as defined by the collective-bargaining agreement, and ordered that DeJesus be reinstated.

plaintiff filed an action challenging his termination under Title VII, section 1981, and the ADEA. The district court granted summary judgment, holding that the employer demonstrated (as a matter of law) that it honestly believed Mr. DeJesus had engaged in “willful neglect of duty and insubordination.”

The panel reverses. It begins by underscoring that an employer’s “honest belief” in its reasons for termination will not win the day if the belief is unreasonable.

Here, There was sufficient evidence of unreasonableness for a jury to weigh in the plaintiff’s favor. The employer fired the plaintiff in part for conduct that the supervisor initially admitted, in an email, presented “no worries.” “Such an unperturbed reaction to a purportedly dischargeable offense, by itself, could cast doubt on the Washington Post’s proffered reason.” Further, the plaintiff was fired for doing precisely what the supervisor told him to do, i.e., pass the RAM along to a client representative. Finally, “characterizations contained in Wainwright’s termination memo offer an account of DeJesus’s actions that a reasonable jury could find misleading, even mendacious,” because they offered contradictory accounts of Sharpe’s role.

Bolstering this record were Ms. Wainwright’s alleged comments about and treatment of Black professionals.

“She made comments susceptible to being interpreted as race-inflected code, such as describing both DeJesus and Sharpe as ‘not a good fit,’ J.A. 574, complimenting DeJesus for ‘speaking well,’ J.A. 228-29, and dismissing an African American client representative as ‘opinionated,’ J.A. 230. Several African-American colleagues corroborated DeJesus’s account, testifying that Wainwright was especially condescending to and dismissive of them, refusing to respond to an African-American colleague even if the colleague spoke first. These accounts may be false, or it may well be that Wainwright was an equal-opportunity bully. But it is the province of a jury to credit, or not credit, this testimony.”

The panel holds that even if these comments did not directly concern the challenged employment decision ( otherwise dismissed as “stray remarks”), a “jury could treat evidence of a decision maker’s broad-based racial animus or bias as corroborating evidence that such animus or bias infected a particular employment decision.” Moreover, the jury could consider “four specific instances in which top-level management purportedly ‘forced out’ older employees due to their age.”

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