By Joy P. Waltemath, J.D. Fired for slapping a 17-year-old male autistic patient after his caregivers had called for security because they were afraid to enter the patient’s room, a security guard was unable to convince the Seventh Circuit that he had evidence to allow a reasonable jury to infer that he would not have been fired if he were not African American and everything else remained the same (Lane v. Riverview Hospital, August 26, 2016, Hamilton, D.). Security called. The facts of the incident for which the guard was fired were undisputed. Security was called because the young autistic patient was hitting, swinging at, and kicking his caregivers—so much so that they had become afraid to enter his room. When the guard got there, he saw the patient kicking a staff member in the back. He then tried to restrain the patient, who tried to bite him and then spit in the guard’s mouth; when he tried to spit again, the guard slapped him in the face with his open palm, making "solid contact." The patient settled down and stopped swinging and kicking. But the incident was not over after the guard filed a report with the hospital and the sheriff’s department (with whom he was a special deputy) admitting he slapped the patient, they both thought he used poor judgment and overreacted. Following the hospital’s investigation, HR recommended he be fired, and the steering committee agreed, although he was allowed to resign in lieu of firing. Before the district court and on appeal of his Title VII race discrimination claim, the guard relied on four incidents to support an inference of race discrimination: an arguably similar incident involving a white nurse; the HR director’s factually incorrect response to the EEOC about her knowledge of that earlier incident; and one comment and one question the HR director made about race. Like the district court, the appeals court was unconvinced by any of them. Comparable incident? Although the guard tried to compare his slap of the autistic patient to another incident involving a nurse, who allegedly slapped the arm of a patient’s mother but was not disciplined at all, the court found the incidents dissimilar. The fact the two individuals had different jobs and responsibilities was not controlling; both were subject to the same hospital policies against violence and use of restraints to coerce patients. And the HR director, who had the power to recommend discipline, was somewhat involved in both incidents—at least, a reasonable jury could treat her as involved sufficiently in both cases to allow a fair comparison, said the appeals court. But there was a fundamental and undisputed difference between the incidents: here, the guard admitted the slap, but there, the nurse did not admit it, and several other witnesses backed him up. In the Seventh Circuit’s view, the guard admitted to conduct that HR viewed as a serious violation of hospital policies to protect vulnerable patients, making the unadmitted other incident not similar enough to support an inference of discrimination. EEOC charge. The guard also pointed to the hospital’s response to his EEOC charge, which the HR director reviewed and approved, asserting that she had not known about the accusation against the nurse until after she received the guard’s charge of discrimination. He had evidence otherwise, which the court reviewed, as well as the hospital’s argument that this was just an honest mistake. Clearly an employer’s dishonesty in defending or explaining an employment decision can support an inference of illegal discrimination, agreed the appeals court, but there simply wasn’t any substance here. "To go from this factual discrepancy to an inference of racial bias, a jury would have to conclude first that the discrepancy was the result of a deliberate decision to mislead the EEOC and second that the motive of the deliberate decision to mislead was to conceal unlawful race discrimination. Without further circumstantial evidence of unlawful discrimination, a reasonable jury could not take that step." One comment, one question. What the guard provided as further circumstantial evidence was two remarks the HR director had made, one eight months before the incident in question. A white security guard at the hospital had accused an African American guard of theft, and the white guard said that the HR director reacted to the accusation by saying that she "did not want any trouble" because the other guard "was black." The second remark was during her interview of the guard about the incident with the autistic patient, and the guard mentioned a previous encounter when the same patient had yelled a highly offensive racial slur at him. During that same conversation, talking about his reaction to being spat upon, he told the HR director how his brother had reacted when a person spat on him, and the HR director asked about the race of the boy who had spit on his brother. No racial animus. Neither of these comments reflected racial animus. The first comment, eight months before his firing, did not refer to or involve him; it merely acknowledged the potential for race to become an issue in an unrelated incident, which the appeals court found would not support an inference of race discrimination. But although the second remark was tied directly to the firing decision and came from a key decision-maker, it still did not support an inference of intentional race discrimination. It was HR’s job to find out what happened, it was a follow-up question to the guard’s own story, and it did not show racial bias to ask why the guard brought up the story about his brother. Consequently, the appeals court affirmed summary judgment.
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