Labor & Employment Law Daily Jury to decide if discrimination motivated firing of African employee accused of theft of time for prolonged break
Monday, January 14, 2019

Jury to decide if discrimination motivated firing of African employee accused of theft of time for prolonged break

By Marjorie Johnson, J.D.

An African-born Whole Foods employee who was purportedly subjected to supervisors’ derogatory comments about his heritage, denied a promotion, and ostensibly discharged for a single “theft-of-time” incident after complaining about his unfair treatment on the company’s employee tip line defeated summary judgment on his clams of national origin bias, HWE and retaliation. However, he was barred from advancing his claims under state and city human rights laws since he did not dispute that he had pursued them administratively, a federal court in New York ruled in partially adopting a magistrate judge’s report and recommendation (Diallo v. Whole Foods Market Group, Inc., January 9, 2019, Engelmayer, P.).

Hostile supervisors. The employee was hired in 2012 to work in a Whole Foods store’s produce department. He claimed that throughout his tenure, several supervisors made negative comments about African people and sometimes called him names. For instance, he claimed that two supervisors laughed when he said he was hoping to one day becoming a supervisor, asked him if he saw any African team leaders at the store, and told him “don’t think about moving up.” One of the supervisors had also remarked early on that, “I almost forgot you are African . . . that is why you got to stay in the overnight team because you were able to do the work of three people.” When he later asked the supervisor to stop calling him nicknames, he replied, “I am your boss here so I will call you how I want; if you are not happy you can leave.”

Fired after single incident. The employee also claimed that non-African coworkers were routinely allowed to overstay their paid breaks and that he was denied pay raises to which he was entitled. When he complained about the discriminatory conduct to the employee tip line, his situation worsened, leading him to make repeated requests to transfer teams. In December 2015, the supervisor who had been making derogatory remarks filed a report stating that he had overstayed his lunch break. Though he explained that after using the restroom he had gone to pray, he was terminated.

Magistrate’s report. In recommending that Whole Foods’ motion for summary judgment be denied, the magistrate found that the employer failed to show that it consistently terminated workers for theft-of-time as a single infraction, so as to make clear that the infraction (as opposed to national-origin discrimination) had been its basis for terminating him. The magistrate also noted that theft-of-time was not listed as a major infraction in the company’s manual. While it did include “theft of any kind,” such thefts appeared to concern only “property-related misappropriations.” Triable issues also remained as to whether his supervisors had made comments and jokes to him about his African origin and treated him differently from non-African employees and the parties also disputed whether he had applied for a specific position. Finally, he presented sufficient evidence that he suffered adverse actions after complaining about discriminatory treatment.

Questionable motivation. The district court rejected Whole Foods’s contention that the employee’s discharge undisputedly wasn’t motivated by his national origin since he admittedly “took an unauthorized break while on-the-clock” and such “theft of time” or “misrepresentation of time worked” was a major infraction warranting immediate termination. Arguing that it consistently enforced this policy, the company claimed that the magistrate wrongly reached a contrary conclusion “by parsing hairs over semantic questions regarding irrelevant differences between phrases ‘time theft,’ ‘theft-of-time,’ misrepresentation of time, and ‘stolen time.’”

Major infractions? The relevant inquiry was not whether the employee took an unauthorized break but whether that infraction was the basis for his firing. He claimed that a single theft-of-time episode was not a major infraction for which Whole Foods consistently terminated employees, that his supervisor’s hostile attitude toward his African origin was a motivating factor in his termination, and that non-African coworkers were not terminated for the same conduct. On this record, Whole Foods might persuade a jury that it universally terminated workers for this one-time infraction and that this uniform practice was its sole reason for terminating the plaintiff. However, a jury might also find that the practice was less than universal, and that racial animus contributed to the termination decision.

Failure to promote. The court also rejected Whole Foods contention that it was entitled to summary judgment on the employee’s Title VII non-promotion claim since he failed to identify a position for which he had applied and did not receive. Viewing the claim with the “solicitude” due a pro se plaintiff, the court found that triable issues existed as to whether he sufficiently conveyed his interest in the produce supervisor position and if the supervisor who purportedly made racially derogatory comments to him had some say in that decision.

HWE and retaliation. While a “close question,” Whole Foods failed to establish that the employee’s HWE claim was based solely on non-continuous “petty slights or stray remarks.” A jury could find the requisite standard met by the alleged frequent name-calling and negative references to his African heritage, including those that could be read to equate African heritage with “lesser workplace competence and capability.” A triable issue existed as to whether he suffered any adverse action because of his complaint to the tip line since he alleged that afterwards, his “situation went back on deteriorating more and more which explained my multiple attempts to transfer to another team or store.” Moreover, his termination and alleged promotion denial also occurred after his calls to the tip line.

State law claims barred. However, summary judgment was warranted on his claims under New York State Human Rights Law and New York City Human Rights Law since those statutes only allowed a plaintiff to file a complaint in either a court or the State or City Human Rights Divisions unless an exception applied. Here, the employee did not contend that he fell in any exception, nor did he dispute that he had pursued those claims administratively.

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