IT worker for credit union fails to advance race bias claim
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Monday, November 9, 2020

IT worker for credit union fails to advance race bias claim

By Wayne D. Garris Jr., J.D.

The employee also failed to show his employer was liable for inappropriate sexual comments and conduct from his female coworkers.

Granting Alabama One Credit Union’s motion for summary judgment, a federal district court in Alabama held that an IT employee did not create a genuine issue of fact as to whether he was not selected for a promotion to Chief Information Officer because of his race. While there was evidence that the employee was qualified for the position, he could not show that he was significantly more qualified than the candidate selected, who had more extensive accounting and management experience. Nor could he prove that his lower performance evaluation or the employer’s refusal to let him work during the two-week notice period after his resignation was due to his race (Thomas v. Alabama One Credit Union, November 5, 2020, Coogler, L.).

The employee, an African American man, worked as an IT Specialist for Alabama One Credit Union. The credit union was taken over by a conservatorship. The conservators fired the employer’s CIO and replaced him, temporarily, with two independent contractors. The conservators also promoted the employee to Network & Systems Specialist. Subsequently. the employee told an HR Manager that he was interested in the CIO position, and the HR Manager told him she would let him know if it became available.

New hire. The CIO position was never filled; however, the employer hired a white employee from another credit union to the position of IT Director. As IT Director, the new hire took over some of the duties of CIO including managing all IT employees. The CIO position was never posted, and the employer never asked the employee if we wanted to apply for the IT Director position.

Performance evaluations. In both 2015 and 2016, the employee received an "Excellent" overall performance rating. Between his 2016 and 2017 ratings, the employer changed its evaluation model and the employee received an "Average" rating. The employer asserted that all IT employees saw a drop in their ratings from 2016 to 2017 due to the new model.

Sexual harassment. The employee also claimed that he was subjected to sexual harassment from his female coworkers. Female employees commented on "the bulge" in his pants, sent him unwanted texts, letters, and emails, complimented his appearance, and one allegedly exposed herself in front of him. He also alleged that a female employee used The Credit Union’s "iPower" system to access his name, address, phone number, and date of birth. The employee reported some the alleged harassment to HR and some to the new IT Director.

Resignation. The employee resigned and accepted a new position with higher pay. Because he had access to sensitive information, the employer did not allow him to work during the two-week notice period, but still paid him for the two weeks.

Failure to promote. The employee filed suit alleging that he was subjected to race discrimination when the employer failed to promote him, lowered his performance evaluation score, and wouldn’t allow him to work during the two-week notice period. He also raised a hostile work environment claim and several tort claims. The employer moved for summary judgment.

The employer’s proffered non-discriminatory reason for not promoting the employee to IT Director was that the selected candidate was more qualified. The selectee had worked for another credit union for ten years, had experience in a credit union’s IT department, and managed an accounting department. In total, the selectee had over six years of management experience and more than seventeen years of credit union experience. The employee, on the other hand, had no accounting experience and had never managed a credit union department.

Qualifications. The employee argued that he was more qualified, but he was not able to show that the employer’s reason was pretextual. The employee had to show that "the disparities between the successful applicant’s and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff."

The employee also argued that since the selectee was hand-picked by management, this was evidence of preselection. The court rejected this argument, noting that even if there was evidence of preselection, there was no evidence of race discrimination. Management testified that they had firsthand knowledge of the selectee’s experience and credentials, which is why they reached out to him.

Performance evaluation. Turning to the performance evaluation, the court found that the employee failed to put forth any evidence that his lower 2017 score was due to discrimination. The employee relied solely on statements from two white colleagues who told him that his score was lower than their scores. The employee’s argument failed because he could not provide evidence that he was entitled to a higher score and the record showed that his comparators also had significant drops in their performance evaluation scores from 2016 to 2017. Thus, he failed to prove that it was his race, not the new scoring model, that resulted in his lower evaluation.

Two-week notice period. According to the employee, the employer racially discriminated against him by not allowing him to work during his two-week notice period. The court concluded that this was not an adverse employment action because the employee was paid during the two-week period and since he had resigned, the employer’s action did not adversely affect his status as an employee. Furthermore, the employer stated, and the employee conceded, that it was a common practice to prohibit IT staff from working after resignation because of their access to sensitive information.

Hostile work environment. Turning to his hostile work environment claim, the employee alleged that multiple female employees made unwanted sexual advances and comments and sent him text messages during his employment. The court concluded that he did face some sexual harassment; however, many of the alleged incidents were not sexual and that over a two-year period, there were only a few incidents. Thus, his allegations were not sufficiently severe or pervasive to rise to the level of actionable sexual harassment.

The court acknowledged that the text messaging and flashing incident with the same employee were arguably severe; however, the record suggested that the employee was a willing participant in both. The employee responded to his coworkers’ messages and never asked her to stop texting him. Lastly, there was no evidence that any of incidents were physically threatening or unreasonably interfered with his employment. Thus, the court dismissed his hostile work environment claim.

Outrage. In Alabama, a plaintiff alleging the tort of outrage must prove three elements: (1) the defendant acted intentionally or recklessly, (2) his conduct was extreme and outrageous, and (3) that conduct caused emotional distress "so severe that no reasonable person could be expected to endure it."

The Supreme Court of Alabama recognized that sexual harassment can rise to the level of outrage in extreme circumstances. Here, the court found that the employee’s allegations did not reach the level of severity recognized by the state high court.

Invasion of privacy. The employee’s invasion of privacy claim arose from a coworker’s use of the employer’s iPower system to access his name, address, phone number, and date of birth. The employee claimed that his coworker’s actions caused him "mental suffering, shame, and humiliation." Even if true, the court held, the coworker’s actions "would not so affect a person of ordinary sensibilities." Thus, the claim was dismissed.

Negligent supervision or training. Under Alabama law, to succeed on a claim of negligent or wanton supervision, training, and retention, an employee must show that an employer committed a common-law tort. Alabama does not recognize an independent tort of sexual harassment, so the court dismissed this claim.

The case is No. 7:19-cv-00407-LSC.

Attorneys: Richard Allan Rice (The Rice Law Firm) for Demetrice Thomas. Jennifer Carin Burford (Ogletree Deakins) for Alabama One Credit Union.

Companies: Alabama One Credit Union

Cases: Discrimination RaceDiscrimination SexualHarassment StateLawClaims TortClaims GCNNews AlabamaNews

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