Labor & Employment Law Daily White Commerce Department IT employee advances narrowed race bias claims
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Monday, September 28, 2020

White Commerce Department IT employee advances narrowed race bias claims

By Kathleen Kapusta, J.D.

The employee claimed, amongst other things, that his black supervisor discriminated against him because of his race, subjected him to a hostile work environment, and retaliated against him because he filed an EEO complaint.

Although a white IT officer in the National Weather Service’s Jackson, Mississippi office survived summary judgment in part on his race-based claims, a federal district court in Mississippi narrowed the scope of the Title VII disparate treatment and retaliation claims. While his disparate treatment claim based on his allegation his black supervisor decreased his cash award while increasing awards for black employees and his retaliation claim based on his supervisor’s alleged surreptitious recording of a performance-review meeting can proceed to trial, other claims were tossed. His hostile work environment claim also advanced (Wilson v. U.S. Department of Commerce, September 21, 2020, Jordan, D., III).

Since 2002, the employee worked in Jackson, Mississippi, as an IT officer for the NWS, a component of the National Oceanic and Atmospheric Administration, which is a bureau of the U.S. Department of Commerce. In 2016, a black male took over as the meteorologist in charge and the employee’s direct supervisor. According to the employee, the supervisor discriminated against him because of his race, subjected him to a race-based hostile work environment, and retaliated against him.

Exhaustion and timeliness. The employee sued under Title VII and the court, converting the employer’s motion to dismiss into one for summary judgment, first found the employee failed to timely exhaust several discrete acts of purported discrimination and that other acts were time-barred and, thus, summary judgment was granted as to claims based on those acts.

Disparate treatment. Turning to the employee’s disparate treatment claim, in which he contended that the supervisor’s decision to deny him training constituted an ultimate employment decision, the court noted that for failure to train to amount to an ultimate employment decision, it must directly affect compensation. While the employee argued that being denied the technical training adversely affected his ability to be promoted, he did not identify any promotions he allegedly lost. Similarly, his argument the supervisor allowed a black employee to attend the training also failed to address any lost promotions and thus this claim was dismissed on summary judgment.

Cash awards. The employee also alleged that after the supervisor took over, his cash award plummeted while cash awards for black employees increased. As for this claim, the court noted evidence that in 2017, his cash award totaled $900. From 2007-2016, however, his cash awards ranged from $1,000 to $2,500 annually. Further, according to a worker who helped the supervisor prepare the bonuses, the supervisor favored black employee and gave them “significantly higher monetary performance awards.”

Rejecting the employer’s contention that bonuses are not adverse employments actions, the court pointed out that while the Fifth Circuit has never ruled on that question, district courts within the circuit are split. Further, reducing an employee’s bonus seemingly affects compensation, observed the court, finding a fact question as to whether it was done here for racial reasons. Accordingly, this disparate treatment claim could advance.

Hostile work environment. Likewise, the employee’s hostile work environment claim advanced. His allegation the supervisor gave black employees larger performance awards based on race could be viewed as severe and other alleged conduct, such as heated confrontations, slamming doors, the supervisor telling the employee he would show him who runs the office, moving the employee’s workstation, denying him training, preventing him from attending conferences, providing poor working conditions, surreptitiously recording him and emailing confidential information to others, could be pervasive. Further, evidence regarding the supervisor’s alleged statements created a jury question as to whether the supervisor’s treatment of the employee was based on race.

Retaliation. As to the employee’s retaliation claim, the court first found that only his May 2017 EEO complaint constituted protected activity and there was no evidence the employer knew of it before late September. In addition, there were only two alleged retaliatory acts that occurred after that date. According to the employee, the first occurred when, after he presented a union grievance to the supervisor, the supervisor wadded it up and threw it in his face. However, the court pointed out, not only was this not before it as an independent claim, the court had not seen the grievance and thus did not know whether the grievance asserted Title VII rights. Moreover, this was the type of “‘petty slight[], minor annoyance[], and simple lack of good manners’ that . . . [is] not actionable retaliatory conduct.”

Recorded conversation. The court, however, found the retaliation claim could advance based on the second act in which the employee alleged his supervisor secretly recorded a performance-review meeting with him and then emailed the recording to a NOAA attorney. The employee’s testimony that the supervisor recorded the meeting because he thought the employee had lied in his EEO complaint established that the recording occurred after the supervisor learned about the complaint and would allow a finding of causation. Further, emailing the information violated NOAA policy and potentially the Rehab Act.

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