Recent race rulings reflect rival reactions

Marshall H. Tanick, BridgeTower Media Newswires

“I have a dream that my four little children … will not be judged by the color of their skin, but by the content of their character.”
—Martin Luther King, Jr. (August 28, 1963)

The memorable words of Martin Luther King, Jr. at the landmark civil rights March on Washington 58 years ago this month continue to resonate.

The more recent and widespread awakening in a number of quarters to systemic racism, accompanied by efforts to inject “critical race theory” into school curricula, is disputed by many others. While the denouements of those debates are unresolved in many places, there is no debating that the claimants of racial discrimination in the workplace have generally not fared well lately in litigation around here.

That reality was reflected in a quartet of cases recently decided by the Eight Circuit Court of Appeals, which upheld lower court determinations dismissing three of the lawsuits, while barely allowing one to survive. The victorious parties were, naturally, pleased with the outcomes, while the defeated litigants reflected rival reactions.

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Burden battle

The battle over the burden shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) yielded a favorable outcome for the defendant in a race discrimination lawsuit for wrongful termination; failure to promote; and a hostile work environment in Carter v. Atrium Hospitality, 997 F.3d 803 (8th Cir. May 17, 2021). The lawsuit was brought by a discharged desk clerk, a Black man, at a hotel in Iowa, after he was fired for allowing a hotel key card to be obtained by unauthorized guests.

The U.S. District Court for the Southern District of Iowa dismissed the lawsuit on summary judgment, and the Eighth Circuit affirmed. In doing so, it rejected the assertion by the claimant to use the less onerous “causal standard” under applicable Iowa state law, which he deemed pertinent because the case was removed from state court to federal court due to diversity of citizenship.

But utilizing the Federal McDonnell Douglas burden-shifting standard, the court held that the claimant did not establish a prima facie case, based upon absence of the vital fourth element, whether there was an “inference of discrimination” because similarly situated white employees who were not within a protected class had been treated more favorably.

There was no evidence that “warrants an inference of discrimination” as the claimant did not show that other similarly situated” employees who were not Black were treated better. The claimant’s case failed because he relied only upon racial slurs made by maintenance workers, a fellow clerk, and other employees whose jobs did not require them to have “exercised authority” over employment decisions.

Disposition of the wrongful termination claim paralleled the similar treatment of failure to promote claim, which was predicated on promotion of others that the claimant deemed were less qualified. But there was no evidence that the other employees who had been promoted had lesser qualifications, as the claimant alleged, or that the company’s position that the promotions were based upon their superior qualifications was “not the true reason” but “rather a pretext for discrimination.”

Lastly, the claimant failed to establish a claim of hostile work environment because the claimed harassment he experienced was not so “severe as to alter the conditions of his employment.” Although that issue presents a “close question,” based upon racial slurs that he experienced that were “inexcusable,” the claimant did not show that he “did subjectively perceive the environment to be abusive, offering no description of how the misconduct impacted his subjective experience in the workplace.”

Accordingly, all three of the claims in the lawsuit for wrongful termination; failure to promote; and hostile workplace based upon race, were properly dismissed.

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Dual dismissals

Dual claims of discrimination also failed in a pair of cases involving a public entity and a nonprofit organization aiding the poor.

A race discrimination claims by a Black woman who was working as a medical records for the Veterans Affairs medical facility in Kansas City, was unsuccessful in Watson v. McDonough, 996 F.3d 850 (8th Cir. May 6, 2021).

The claimant resigned and brought a discrimination claim after having received a “counseling memorandum” that criticized her for failing to timely submit work assignments and improve her communications with others, including a supervisor with whom she had an “increasingly strained” relationship.

The trial court dismissed the claims of racial discrimination, hostile work environment, retaliation and constructive discharge and the Eighth Circuit affirmed. The racial discrimination claim was based on the assertion, as in the Carter case that she was treated less favorably than other white employees who held similar positions by being assigned additional work, limiting her opportunity through training, and  stifling her ability to become eligible for promotion. But these features do not, under prevailing Eighth Circuit law, constitute “adverse employment actions” for purposes of a claim under Title VII of the Federal Civil Rights Act, which forms the basis of the discrimination charge.  While failure to promote “can constitute an adverse employment action,” the claimant had not “identified any specific position she expressed interest in and was passed over for” to buttress support of her claim.

The hostile work environment claim also failed because the evidence did not establish that any harassment she suffered “materially affected many of the conditions of her employment,” and the unpleasant interactions she had with her supervisor did not affect any common term, condition or privilege, of her employment since her pay grade and salary remained the same, therefore, a retaliation claim for raising concerns about a hostile work environment to her union representative also was unsuccessful because there was “no evidence of an adverse employment action.” The constructive discharge claim also was not actionable because while the conditions of her employment were “far from ideal … they were not “intolerable.” She was not subject to predicate a hostile environment claim.

Therefore, as in the Carter case, all of the race discrimination claims lacked merit and were properly dismissed by the trial court.

A discrimination claim brought by a Mexican American against a county nonprofit organization in Arkansas that provides community based services to low income individuals and families, was unsuccessful in Towery v. Mississippi County Arkansas Economic Opportunity Commission, Inc., 1 B.Th. 570 (8th Cir. June 10, 2021).

The claimant, a program director, was terminated because of his refusal to comply with his request from a supervisor who provided company passports to various programs and documents maintained by the agency. Claims for race and national origin discrimination and retaliation were dismissed by the trial court and the appellate court affirmed. There was no “direct evidence” that she was fired for “illegal reasons” or that the agency had a “discriminatory animus” in firing her. There was no evidence that clearly points to the presence of an illegal motive in terminating her, her discrimination claim lacked direct evidence and she did not provide any circumstantial evidence to create an inference of unlawful discrimination. Her claims, therefore, were properly dismissed by the lower court.

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Disparate decision

One claimant managed to survive a lower court dismissal by having “plausibly alleged” that the company that discriminated against him by virtue of a policy of restrictive hiring of applicants with felony convictions, like the claimant, had a disparate impact on Black applicants who were excluded from employment at a higher rate than white job applicants in Carson v. Lacy, Fed. 2021 WL 1526433 (8th Cir. April 19, 2021) (unpublished).

The claimant, who brought the case pro se, was entitled to proceed with his lawsuit under Title VII and the parallel provision of Arkansas state law because his pro se pleading asserted a “disparate impact” on the basis of race, based upon statistical data which indicated a higher rate of incarceration on Black than White individuals in the state, which was sufficient to overcome a dismissal on the pleadings. These “basic” allegations and statistical comparisons suffice to overcome dismissal at the early stage of the proceeding.

A partial concurrence and partial dissent by Judge Steven Michael Colloton would have dismissed the case in its entirety because the complaint did not include sufficient factual content to support a reasonable inference that [the company] is liable for unlawful discrimination. He noted that the statistical disparities relied upon by the claimant were from 2007 and “outdated by more than a decade by the time he was denied a job in 2020.”

When he joined O.J. Simpson’s criminal defense Dream Team, the late attorney Johnnie Cochrane’s response to a reporter’s question whether race would be an issue in the case was both unequivocal and prescient: “Race is always an issue in America.”

While race is not uniformly an issue in workplace discrimination cases, it arises not infrequently. This recent quartet of Eighth Circuit cases reflects the continued difficulty that racial discrimination claimants face, particularly in this Circuit.
Once a haven for rights of plaintiffs in employment cases, over the years it has developed into one of the more problematic places for plaintiffs to pursue them.

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 Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.