By Victoria Moran, J.D., M.H.A.
A plant manager’s post-termination racial slur directed towards a terminated HR employee and specifically related to the termination may be seen as direct evidence of race-based discrimination.
An African-American senior HR employee can proceed with his race-based employment discrimination case after a federal district court in Virginia denied an employer’s motion for summary judgment. The employee provided sufficient evidence, including evidence of a racial slur made by a plant manager after his termination that would permit the conclusion that the employer’s reason his termination, a reduction in force, was pretextual, and the termination was based on racial discrimination. His retaliation claim may also move forward based on evidence of temporal proximity between the time the employee made complaints and his termination two months later, coupled with evidence that the employee’s immediate supervisor suggested he resign. Finally, the employee provided sufficient evidence of race-based animus towards himself and others to demonstrate a hostile work environment (Hairston v. Royal Building Products, Inc., April 12, 2019, Jones, J.).
Only black person in management. The Senior Human Resources Business Partner worked at the employer’s manufacturing facilities in Virginia and Tennessee. At the time, both plant managers were white, and the employee was the only black management-level employee at the plants. Shortly after his hiring, the employee met with black employees of the Virginia plant who expressed experiencing or witnessing racism.
Racial harassment. The employee himself also received harassing phone calls during which the caller stated, “N****r, you need to leave here,” which were reported to the employee’s supervisor. The employee was treated less favorably than his white peers in terms of his ability to use company vehicles. He was also excluded from social activities and meetings by his white coworkers.
At one point the employee informed his supervisor, the Director of Human Resources, that he was being subjected to a hostile work environment by the plant managers. The employee heard of multiple instances where the plant managers used racial slurs directed at himself. There was no evidence that the employee’s supervisors investigated the employee’s complaints of harassment, however.
Reduction in force. Citing a reduction in force (after it was acquired by another company), the employer terminated the employee, stating that he was selected through a slating process using subjective metrics based in part on input from the plant managers. After the employee’s termination, one of the plant managers used the n-word to refer to the employee, expressing relief that he had been fired. The plant manager himself was terminated two months later, based in part on his use of the racial slur.
In his lawsuit, the employee alleged race-based discrimination, retaliation, and hostile environment harassment pursuant to Title VII and Section 1981. The employer moved for summary judgment.
Discriminatory discharge. The employee provided sufficient evidence that a jury could conclude the slating process was pretextual and he was terminated for race-based reasons. Given that this is a reduction-in-force case, the court recognized a slight difference in the required showing under the final prong of the McDonnell-Douglas burden-shifting framework (replaced by a person outside the protected class). To establish a prima facie case, the employee must show his duties were absorbed by employees not in the protected class, or show the employer did not treat the employee’s protected characteristics neutrally when making the determination to terminate him.
N-word direct evidence of race discrimination. In this case, the plant manager’s use of the n-word after the employee’s termination is direct evidence of racial discrimination. The plant manager was part of a group who provided input resulting in a low score subsequently leading to the employee’s termination. Furthermore, the plant manager’s comment related specifically to the employee and directly commented on the termination itself.
Even if the comment itself was not direct evidence of discrimination, the employee satisfied his burden under the McDonnell-Douglas test, the court reasoned. The employee is a member of a protected class and his termination was an adverse employment action. In addition, testimony from the employee’s initial supervisor established that he was performing satisfactorily. Finally, of the four employees considered during the slating process, the two employees who remained employed and absorbed the employee’s duties were outside his protected class.
While the employer provided a legitimate, nondiscriminatory reason for the termination (reduction in workforce), the employee provided sufficient evidence that a reasonable jury could conclude the reason was untrue and a pretext for race-based discrimination.
Retaliatory discharge. The employee also met his burden of establishing a claim for retaliatory discharge. He reported racial harassment to his supervisors (protected activity) and his termination was an adverse employment action. Furthermore, the employer terminated him within two months of his complaints about a racially hostile environment (during which time the supervisor suggested the employee resign). When taken together, the advice to resign and the temporal proximity between the complaints and termination were sufficient to overcome the employer’s motion for summary judgment.
Hostile work environment. Finally, the employee provided sufficient evidence of a racially hostile work environment to overcome summary judgment. During the employee’s two-year tenure, he was told of race-based animus and use of racial slurs by supervisors; excluded from meetings and social activities; treated less favorably related to the use of company vehicles; subjected to race-based jokes; and received an “anonymous racially antagonistic and potentially threatening phone call.” The court was not persuaded by the employer’s attempt to argue the employee had not followed proper reporting channels since the employee clearly testified that he reported to his supervisors on multiple occasions, yet the record was absent of any evidence the employer investigated the complaints.
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