By Brandi O. Brown, J.D.
Differential treatment of the employee and a nonblack coworker who had been the subject of similar accusations, along with vastly different assessment of video footage of events precipitating the employee’s termination, led the court to deny summary judgment.
Denying in part Coca Cola Refreshment’s motion for summary judgment, a federal court in Connecticut ruled that the state-law discriminatory termination claim of a black employee, terminated for threatening to harm others, should go before a jury based on evidence of pretext and differential treatment. In determining whether there was sufficient evidence of pretext, the court found “useful in gauging whether Defendant’s conclusion about the events is ‘unworthy of credence’ and therefore pretextual for discrimination,” the decision of an arbitrator who had reinstated the employee. The employee’s retaliation claim failed, however (Donaldson v. Coca Cola Refreshments USA, Inc., May 19, 2020, Bryant, V.).
Called n-word, threatened by coworker. In November 2016, the employee, a union member who had worked in the employer’s Connecticut warehouse for four years, complained about a coworker. Specifically, he complained that she said in reference to him that “this n***** always has my name in his mouth” and told him “You F’in N is going to get it.” He complained up the chain and ultimately was sent to HR. It was disputed whether he reported the verbal threat, but all witnesses agreed that he complained about the racial epithet.
While an investigation was ongoing, he also reported that the same coworker drove her car toward his while they were exiting the parking lot and that that she had also physically bumped into him outside of the men’s locker room (she also complained that the employee had bumped into her). Although the employee was subsequently fired because of her use of the racial epithet, she was almost immediately reinstated.
Accused of threatening conduct. Three months later, an incident arose between the employee and three other coworkers, who accused him of purposefully bumping into two of them and threatening them. Their statements were inconsistent about the language the employee used. The employee contended that he had walked between the two employees, denied that he charged at them, and stated that he had told them, “Next time, I will move you.” When asked to elaborate on that statement, he said, “I’ll push him out of the way or something.” He was fired for harming or willfully threatening to harm others in violation of the CBA. In the termination letter, the employer stated that he bumped his shoulders into the shoulders of the other two men and had made a threatening comment.
Successful arbitration. His grievance over his termination proceeded to arbitration. Ruling against the employer, the arbitrator converted the termination to a written warning for the inappropriate statement about pushing past coworkers in the future and awarded the employee full backpay. The arbitrator held that the employer did not carry its contractual burden of just cause and that its witnesses were “remarkably inconsistent with one another” on several points. The arbitrator’s award was implemented without issue. Subsequently the employee sued under state law for race discrimination and retaliation. The employer moved for summary judgment.
Differential treatment. In arguing that his termination was discriminatory, the employee pointed to two comparators who were not in his protected class. The first comparator was the coworker who had allegedly said about him “this n***** always has my name in his mouth.” While there were disputed facts regarding whether the employer was aware of the verbal threat that accompanied her use of the epithet towards the employee, there was no dispute he reported her for other threatening conduct, including for intentionally trying to hit his car in the parking lot and physically bumping him at work. With regard to the parking lot incident, the employer had viewed video footage and concluded that it was based on a miscommunication between the employees about which car was to proceed first. However, the employee cast doubt on that conclusion, noting that it was dark out at the time and his windows were tinted, leaving no way for the employer to conclude he was attempting to communicate with his coworker.
Further, while the employee was fired after one reported incident, the coworker “engaged in repeated threatening behavior, accompanied by personally targeted racial bigotry” before she was fired. She was then voluntarily reemployed by the employer within a few days, whereas the employer had to be compelled to reinstate the employee after seven months’ time and an arbitration award. With this evidence, the court concluded the employee made out a prima facie case of discrimination.
Pretext evidence. There was also evidence of pretext, said the court. Citing the arbitrator’s decision, the court found it “helpful in considering the totality of the information” that had been available to the employer at the time of the termination decision and, in particular, whether the employer’s conclusions were worthy of credence. The arbitrator reviewed the video footage regarding the incident between the employee and the coworkers he had allegedly bumped into and found that it was “entirely clear” that the employee did not bump the other two workers “in a violent manner almost knocking both men off balance,” as had been asserted. Further, a witness’s statements were inconsistent with regard to what the employee said during the encounter. Given the “wide dissonance” between the arbitrator’s and decisionmaker’s views, which were based on the same evidence, along with the evidence of the differential treatment of the other coworker, a reasonable factfinder could find that the termination was motivated by bias.
The employee’s retaliation claim failed, however. The seven-month time difference between November 2016 and April 2017 was too great. Without additional evidence suggesting a retaliatory motive, causation could not be established.
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