Employment Law Daily Coworker’s racist remarks support cat’s paw claim, but being called ‘fat’ not actionable under ADA
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Monday, December 10, 2018

Coworker’s racist remarks support cat’s paw claim, but being called ‘fat’ not actionable under ADA

By Lorene D. Park, J.D.

Given that an employee’s coworker, who had made racist remarks, reported to a manager that the employee violated a policy prohibiting cell phone use while driving, and finding that a jury could conclude the coworker’s bias affected the manager’s decision to terminate the employee based on that first violation, a federal district court in Massachusetts found triable issues on whether the employer could be liable for race and national origin discrimination under Title VII. However, the employee failed to show that her obesity substantially limited a major life activity; as a result, the same coworker’s remarks calling her “fat” and “pig” did not indicate the employee was regarded as disabled, so her ADA disability discrimination claim failed as a matter of law (Barlatier v. Local Motion, Inc., December 3, 2018, Sorokin L.).

Cell phone use policy. Hired in 2011, the employee signed a policy regarding use of cell phones and other electronics. She testified that the policy provided that a first offense resulted in a five-day suspension, but she also averred that she never received a policy stating that a first offense would result in termination. In February 2012, she was driving a van into the employer’s yard while she had a cell phone clipped to her waist. She removed it and it was in her hand for a moment, but she testified that she was not using the phone. In contrast, a coworker stated that she observed the employee holding a cell phone to her ear while driving. Another coworker filed an incident report stating that she too had observed the employee driving while on her cell.

Fired on first violation. Based on these reports and on the advice of an HR manager, the employee’s manager terminated her “for violation of the Zero Tolerance Policy and federal law.” It was undisputed that this was the employee’s first violation of the cell phone policy.

Called a fat, black, pig. Filing suit under Title VII and the ADA, she claimed the policy was really a “two-strike” policy and that she was really fired because of her race, national origin, and obesity. According to the employee, the first coworker who reported seeing her violate the policy had, on a daily basis, made comments about her being “big, Black, fat, [and] a fat pig.” The coworker allegedly told her that this was why her uniform didn’t fit and she thought “Haitians could do whatever they wanted.”

Both parties submitted a signature page signed by the employee but each attached it to a different policy, with the employer asserting that she was fired under a “zero-tolerance” policy and the two-strike policy wasn’t adopted until four months after the employee was fired.

Triable issue on Title VII claims. Denying the employer’s motion for summary judgment in part, the court found that she made out a prima facie case of discrimination based on her status as a “Black woman, born in Haiti.” In addition, while the asserted policy violation would be a legitimate reason for the employee’s termination, she raised a triable issue on pretext. Specifically, one of the employees reporting her cell phone use was the same one who made derogatory comments about her race and national origin. Thus, a jury could find that her animus affected the decisionmaker’s termination decision, supporting Title VII liability.

ADA claim fails. On the other hand, the employee’s ADA claim failed because even assuming she had a physical or mental impairment (obesity) affecting the major life activities of breathing, walking, bending, and sitting for long periods, she did not offer sufficient evidence that her obesity substantially limited those major life activities. Accordingly, she did not have an actual disability. Nor could she support her perceived-as disabled theory because coworker comments calling her “fat” and “big,” while hurtful, did not show she was regarded as disabled.

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