Employment Law Daily African-American janitor unable to show race or age discrimination based on manager’s old Facebook posts
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Wednesday, November 21, 2018

African-American janitor unable to show race or age discrimination based on manager’s old Facebook posts

By Harold S. Berman J.D.

An African-American male employed as a janitor at a Ford dealership, who was later transferred to a lower-paying position when a Caucasian general manager outsourced janitorial work, could not claim race discrimination under Title VII, age discrimination under the ADEA, or retaliation, ruled a federal district court in North Carolina. The manager’s ostensibly racially provocative Facebook posts were made years before he began working at the dealership, and the employee offered no evidence he made any racially inappropriate remarks while at work. Further, the outsourcing was part of a larger effort to cut costs. Accordingly, the court granted the dealership’s summary judgment motion, finding no evidence that the general manager’s decision displayed racial animus (Neal v. Green Ford, LLC, November 15, 2018, Schroeder, T.).

Facebook posts. The employee, an African-American male, worked as a janitor for a Ford dealership. In May 2016, the dealership hired a new general manager, who was Caucasian. Before the new general manager started, the employee looked up his Facebook page, which contained posts he considered to be racist. The posts allegedly included statements critical of President Obama, a joke about Mexican immigrants, and anti-Muslim and other anti-minority statements.

Outsourcing. Shortly after he began, the new general manager restructured the janitorial department’s hours and work schedule. He demoted the employee’s supervisor, an African-American, assigning his supervisory responsibilities to a Caucasian. Shortly after, the general manager decided to eliminate the janitorial department, and instead outsource janitorial work, both because of complaints about the quality of the work, and to save costs. The employee was offered and accepted a position in the dealership’s detailing department, which paid less. His former supervisor also was given a new position.

The employee told HR he intended to file an EEOC complaint. He asked the HR director why he was not considered for “predominantly Caucasian departments” and was told he had no experience performing the work of those departments. Three weeks after moving to the detailing department, the employee resigned. He sued under Title VII and the ADEA, alleging race and age discrimination, and retaliation. The dealership moved for summary judgment.

Race discrimination. The court dismissed the employee’s race discrimination claim, first rejecting his contention that the general manager’s Facebook posts evidenced race discrimination. Regardless of the content of the posts, the employee could not show any connection to the general manager’s employment decisions. The posts dated back to 2013, years before the manager’s decision to outsource janitorial work and reassign the employee.

Nor was there any evidence the manager either spoke about the posts or made similar posts while at the dealership. The employee looked up the posts independently, and otherwise would not have known about them as the manager never sent any posts to the employee or asked him to look at any posts. Nor did the employee observe the manager make any racially inappropriate comment while at work at the dealership.

The employee also alleged that when the manager gave him a raise while still a janitor, he commented that he could get Hispanics to work for less. Although the remark may have been insensitive, it did not show racial animus, but rather concern about costs.

Transfer. Even if the employee was performing his job satisfactorily when he was transferred to the detailing department, which was disputed, he brought no evidence that his transfer was discriminatory. The Caucasian worker whom the manager tasked with supervising the janitorial department, did not assume the responsibilities of the employee’s African-American supervisor who worked as a janitor. The Caucasian merely checked to ensure the work was completed. Additionally, the manager had given the employee a raise only a few weeks earlier.

Nor could the employee show that his position was filled by an individual outside his protected class. His position was outsourced to an agency comprised of numerous individuals, and there was no evidence the dealership knew of or controlled the racial make-up of the agency’s workers.

There also was no evidence showing that the dealership failed to eliminate the employee’s janitorial position in a racially neutral manner. The dealership’s outsourcing of janitorial work was one of several measures it took to cut costs. The only other member of the janitorial department, who also was African-American, was given a new position with the same pay. The employee’s conclusory allegation, unsupported by evidence, that the dealership should have cut costs instead in other departments with higher salaries, was insufficient to show pretext.

Age discrimination. The court also granted summary judgment on the employee’s age discrimination claim, rejecting his argument that the dealership practiced age discrimination by outsourcing his work to an agency that used younger workers. The agency was independent, and so its use of younger workers without more, was not evidence of age discrimination.

Although the employee, at 45 years old, fell within the ADEA’s protections, he could not show that he was replaced by a substantially younger individual. He was unfamiliar with the arrangements between the dealership and the agency, and brought no evidence of the age of the agency’s workers. As with the employee’s race discrimination claim, he could not show the dealership’s stated reason of cost-cutting was pretextual.

Retaliation. The employee’s retaliation clam also failed. He told HR of his intention to file an EEOC complaint only after his janitorial position was eliminated and he already had been reassigned to a new position. Consequently, there was no causal connection between any protected activity and his adverse employment actions. Nor did the employee offer evidence that the general manger was aware of his stated intent to file an EEOC complaint.

Hostile work environment. Further, the employee could not successfully claim a hostile work environment that led him to resign. He produced no evidence that he suffered any unwelcome harassment based on his race or age.

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