By Matt Phifer, J.D.
A Caucasian employee failed to show a racial component to an African-American group leader’s “boo” comment that could put it in the same category as the employee’s “monkey” comment and make the group leader an appropriate comparator.
A long-time Mercedes-Benz employee who was fired after admittedly saying a group of mostly black contractors sounded like “wild animals” or monkeys swinging from a vine had his retaliation claim tossed by a federal district court in Alabama. The employee was unable to establish he was fired for a complaint he made about being called “boo” by an African-American group leader. He failed to demonstrate that it was objectively reasonable to conclude that use of the term was racially motivated. Accordingly, the employee failed to show that he engaged in protected activity such that he would make out a prima facie case of retaliation (Gamble v. Mercedes-Benz U.S. International, Inc., September 24, 2019, England, J., III).
Racial slur. Mercedes-Benz operates an automotive manufacturing facility in Vance, Alabama. The employee began working there on March 1, 1999, and worked as a maintenance team member. Prior to the incident at issue, he had never been disciplined. Mercedes has an Equal Employment Opportunity Policy that prohibits discrimination or retaliation. Among other conduct, the policy prohibits “engaging in harassment of any kind.” Although the employer generally followed a progressive discipline policy, it had a zero-tolerance policy with respect to some behaviors, such as bringing a weapon to work, substance abuse, violence, and using racial slurs.
On September 4, 2015, the employee heard what he described as “an eruptive multiple people at one time screaming and cackling and making noise.” The noise was from a group of employees of a subcontractor who were primarily black. Someone asked the employee what the people were screaming about and he responded: “sounds like a bunch of monkeys in the jungle or monkeys on a vine.” Three days later, a black employee who witnessed the incident sent an email to a group leader about the incident. Thereafter, HR began an investigation and Mercedes suspended the employee. Based on the fact that the comment was found to be offensive and was corroborated by witnesses and the employee’s own admission, Mercedes terminated his employment.
“Boo” Comment. The employee filed suit for retaliation under Title VII and 42 U.S.C. §1981. Specifically, he alleged that he was terminated because he had complained about a black female group leader who referred to him as “boo.” After the employee was terminated, coworkers asked if he was terminated because he complained the African-American group leader called him “boo.” The employee had complained about the term in a meeting, but did not use the word “racial” at the meeting even though he felt it was a term aimed at white employees.
Mercedes contended that the employee could not establish a prima facie case because any report he make regarding being called “boo” was not protected activity. It further argued that he could not show a causal connection between his firing and the “boo” complaint. Finally, it denied that the employee could show pretext for the legitimate, non-discriminatory reason it had for firing him—racially offensive remarks.
Protected activity. An employee alleging he engaged in protected activity must “at the very least, communicate his belief that discrimination is occurring to the employer and cannot rely on the employer to infer that discrimination has occurred.” Here, Mercedes pointed out that at no time did the employee indicate to anyone at its facility that he perceived “boo” as racially motivated. Moreover, whatever belief the employee entertained that “boo” was a racial slur directed at Caucasians was objectively unreasonable. The undisputed evidence was that the team leader addressed the term “boo” to people of multiple races.
Further, he offered no basis to conclude that “boo” had a racial element. While the employee contended that “a person could easily take offense” to a slang term with an unknown provenance, he failed to demonstrate that it would be objectively reasonable to conclude that its use was racially motivated. Accordingly, the employee failed to show that he engaged in protected activity such that he would make out a prima facie case of retaliation.
Causal connection. Because the employee failed to show that the decision-maker was aware of his complaint about the “boo” comments, the employee was unable to establish the third element of his retaliation claim. Here, the employee argued that had HR investigated the “boo” comments, the decision-maker would have known about his complaint and “a different decision would have been likely reached.” However, the employee’s burden was to show actual decision-maker awareness of his protected activity leading to an intent by the decision-maker to terminate him for it. Thus, the employee could not show anyone’s retaliatory intent based on what might have happened.
“Cat’s paw” theory. Further, the employee argued that regardless of whether any decision-maker had a retaliatory motive (or awareness of the protected activity), they were simply acting on the motives of a team relations representative, whom he claimed was “the key instrumental investigator in both incidents. However, the court pointed out that nobody above the team relations representative knew about the “boo” complaint and that person did not make recommendations. Since the representative didn’t make recommendations, the cat’s paw theory failed.
Pretext. Finally, the employee complained about pretext regarding his termination, saying that Mercedes only had one reason for terminating him. He also argued the employer’s policy does not allow harassment of any type and does not distinguish between racial and sexual harassment. He pointed to several employees accused of sexual harassment who weren’t fired. However, Mercedes contended it never claimed to have any reason other than the racial comment to terminate the employee.
The court said the lack of distinction between racial and sexual harassment did not take into account testimony that the employer has a zero-tolerance policy related to racial harassment. Undisputed evidence showed Mercedes treats racial harassment harsher than sexual harassment. This meant the less harsh punishments toward employees accused of sexual harassment were not comparable to the employee bringing the case.
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