Employment Law Daily Black casino worker fired for accepting tip can’t show white coworker who also took tip was similarly situated
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Tuesday, November 20, 2018

Black casino worker fired for accepting tip can’t show white coworker who also took tip was similarly situated

By Kathleen Kapusta, J.D.

Even though a black employee who was fired for violating her casino employer’s no-tip policy had the same job title, duties, and supervisors as her white coworker, who was only given a warning for violating the same policy, they were not similarly situated for purposes of the employee’s Title VII race discrimination claim, a federal district court in Louisiana ruled, granting her employer’s summary judgment motion. Although there was no formal written policy, the employee, who had been employed for seven months when she accepted three $20 bills on behalf of herself and her two coworkers, was aware of the policy while her coworker, who had only been working there for two weeks, had not yet been trained on the policy (Nathan v. PNK (Baton Rouge) Partnership, November 14, 2018, Dick, S.).

Hired in a guest services position by the casino/hotel, the employee was directly supervised by another African-American woman and her second-level supervisor (SLS) was white. The SLS, the employee claimed, habitually targeted, harassed, and intimidated minorities. Not long after she began working, the employee alleged, she was offered a piece of candy by the SLS’s friend, who was also a manager, and when she did not accept, she was verbally reprimanded. Afterward, she claimed, the SLS instructed her supervisor to write her up for coming in late when her schedule had been previously changed and for using Facebook during work even though other employees routinely did the same thing.

Tipping incident. Seven months after she was hired, a customer left tips for the employee and two others on a counter where they worked. Although she insisted they could not accept tips, he walked away. According to the employee, she picked up the three $20 bills and attempted to give one to her African-American coworker, who refused it. The employee then took the money to the back room where she placed one bill in the coworker’s purse, gave one bill to her white coworker, and kept the other for herself. She was subsequently terminated for violating the no-tip policy while, she alleged, neither coworker was disciplined for the incident. The SLS was on the team that made the termination decision.

Not similarly situated. At issue in her Title VII race discrimination claim was whether her white coworker was a proper comparator. The employer did not contest that both were similarly situated in terms of job title, duties, and supervisors. Rather, it argued that the coworker, who had only been employed for two weeks at the time of the incident, had not yet been fully trained. Nor, it contended, did they have comparable violation histories. For her part, the employee claimed that she also had never been formally trained on the policy but only knew about it from others. Thus, she asserted, they both lacked formal training on the policy.

Finding that the coworker was not a similarly situated comparator, the court noted it was undisputed the employee had been employed seven months at the time of the incident as compared to the coworker’s two weeks. It was also undisputed she was fully aware of the policy. Her supervisor testified that the employer maintained a tipping policy and confirmed that managers trained employees on the policy within their department rather than provide a formal written policy for an employee’s signature. And despite knowledge of the policy, the employee took the tips and distributed them to her coworkers and herself.

Surveillance video. Particularly fatal to her claim, observed the court, was the surveillance video that captured the entire incident. While that video showed the white coworker accepting a $20 bill from the employee, it also showed the African-American coworker refusing to take any of the money. Nonetheless, the employee placed a bill in purse, which she did not discover until after she left work. Thus, considering the alleged comparator’s lack of training and experience on the job and the employee’s primary, culpable role in the incident, the court found they were not disciplined differently under nearly identical circumstances.

Pretext. Nor was there any evidence of pretext. While the employee argued there was no written proof the tip policy was furnished to guest services workers, written proof was irrelevant where she admitted she knew accepting tips violated company policy and her supervisor testified that she trained the employee regarding the policy. And given the video surveillance evidence, the court also rejected her claim that her employer could not prove she “incited” anyone to accept a tip. As to testimony from the HR director that you would not be disciplined or terminated if you reported a tipping incident, the court also noted the HR director’ testimony that the employee returned the tip the next day only after “she got caught.”

Further, said the court, there was absolutely no evidence any of the employer’s actions were based on the employee’s race. Both her direct supervisor and the HR director were African American and both were involved in the termination decision along with the SLS.

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