A court in South Carolina ruled for the first time last month that telling co-workers that a supervisor engages in racial discrimination is a protected activity under Title VII of the Civil Rights Act.
The ruling came in the case of two security guards for the South Carolina Ports Authority who claim they were fired in retaliation for something they say they never did—telling their subordinates that the Authority’s police chief discriminated against African-Americans. On Feb. 14, a federal judge ruled that the officers’ lawsuit against the Authority can go forward.
The Authority says it fired Toby Cason and Robert Stewart, lieutenants who had worked there for 15 and 21 years respectively, in 2009 for insubordination and violating the Authority’s harassment policy. Cason and Stewart claim that this reason was only a pretext, and that their firings were really motivated by Police Chief Lorinda Rinaldi’s belief that they had told their subordinates that she was discriminating against black employees. But before the court could consider the reasons for the officers’ firing, U.S. District Court Judge Richard Gergel had to determine whether they had engaged in a protected activity.
Under the Civil Rights Act, an employer may not take adverse employment action against an employee for opposing discriminatory practices in the workplace. In deciding whether an employee has engaged in protected opposition activity, the 4th U.S. Circuit Court of Appeals applies a test balancing the need to protect employees who oppose discrimination against a desire not to tie the hands of employers in the objective selection and control of personnel.
The 4th Circuit has found that complaining to an employer, participating in informal grievance procedures or voicing an opinion in order to bring attention to discriminatory activities all constitute opposition activity. Applying that balancing test, Gergel said that complaints to co-workers should be treated the same way, so long as they get passed on to management.
“In either case, the employer knows the same information, [that] the employee has complained of discrimination. To protect the employee who is willing to directly complain to superiors but not the one who complains to a co-worker who reports the complaint to superiors does not seem to advance the purposes of the anti-retaliation laws,” Gergel wrote, quoting a Kansas court that had reached the same conclusion.
A revealing question
The circumstances that led to Cason’s and Stewart’s firing are certainly unusual. A white employee, as he resigned, wrote a letter harshly critical of the Authority and made a directly opposite claim: that Rinaldi treated black employees more favorably than white ones. (Rinaldi is white; Cason and Stewart are black.) As a result, Rinaldi began holding meetings with employees to discuss workplace issues.
Based on what they heard at these meetings, Rinaldi and other supervisors interviewed Cason and Stewart. Both denied inappropriate conduct. They were also asked whether they had made racial comments, such as that they had told subordinates that Rinaldi and her staff discriminated against black officers. At a follow-up, Cason and Stewart agreed to take a polygraph test. At Cason’s exam, he was asked only three relevant questions, one of which was again about comments to subordinates that the Rinaldi discriminated against black officers. None of the questions involved sexual harassment.
Gergel also noted that no sworn witness statements or deposition testimony mentioned such comments, which came up in just one employee interview. That, combined with the fact that other officers were also accused of making inappropriate sexual comments but were not terminated, was enough to allow a reasonable jury to infer that the Authority’s offered rationale for firing Cason and Stewart was merely a pretext.
“The Court does not believe that a reasonable jury could infer Plaintiffs were terminated for retaliation based solely on the fact that they were asked about their comments in an interview by the Police Chief,” Gergel wrote. “[However] in the light most favorable to Plaintiffs and taking all inferences in their favor, a reasonable jury could find that the protected conduct ‘was the tipping point that swayed the Defendant to terminate Plaintiffs’ employment instead of imposing some lesser punishment.’ ”
Armand Georges Derfner of Derfner Altman and Wilborn in Charleston represented the plaintiffs. Eric Schweitzer and Lucille Nelson of Ogletree Deakins in Charleston represented the Port Authority.
The nine-page decision is Cason v. South Carolina State Ports Authority (Lawyers Weekly No. 002-048-14). A full opinion digest is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan
david.donovan@sclawyersweekly.com
A court in South Carolina ruled for the first time last month that telling co-workers that a supervisor engages in racial discrimination is a protected activity under Title VII of the Civil Rights Act.
The ruling came in the case of two security guards for the South Carolina Ports Authority who claim they were fired in retaliation for something they say they never did—telling their subordinates that the Authority’s police chief discriminated against African-Americans. On Feb. 14, a federal judge ruled that the officers’ lawsuit against the Authority can go forward.
The Authority says it fired Toby Cason and Robert Stewart, lieutenants who had worked there for 15 and 21 years respectively, in 2009 for insubordination and violating the Authority’s harassment policy. Cason and Stewart claim that this reason was only a pretext, and that their firings were really motivated by Police Chief Lorinda Rinaldi’s belief that they had told their subordinates that she was discriminating against black employees. But before the court could consider the reasons for the officers’ firing, U.S. District Court Judge Richard Gergel had to determine whether they had engaged in a protected activity.
Under the Civil Rights Act, an employer may not take adverse employment action against an employee for opposing discriminatory practices in the workplace. In deciding whether an employee has engaged in protected opposition activity, the 4th
U.S. Circuit Court of Appeals applies a test balancing the need to protect employees who oppose discrimination against a desire not to tie the hands of employers in the objective selection and control of personnel.
The 4th Circuit has found that complaining to an employer, participating in informal grievance procedures or voicing an opinion in order to bring attention to discriminatory activities all constitute opposition activity. Applying that balancing test, Gergel said that complaints to co-workers should be treated the same way, so long as they get passed on to management.
“In either case, the employer knows the same information, [that] the employee has complained of discrimination. To protect the employee who is willing to directly complain to superiors but not the one who complains to a co-worker who reports the complaint to superiors does not seem to advance the purposes of the anti-retaliation laws,” Gergel wrote, quoting a Kansas court that had reached the same conclusion.
A revealing question
The circumstances that led to Cason’s and Stewart’s firing are certainly unusual. A white employee, as he resigned, wrote a letter harshly critical of the Authority and made a directly opposite claim: that Rinaldi treated black employees more favorably than white ones. (Rinaldi is white; Cason and Stewart are black.) As a result, Rinaldi began holding meetings with employees to discuss workplace issues.
Based on what they heard at these meetings, Rinaldi and other supervisors interviewed Cason and Stewart. Both denied inappropriate conduct. They were also asked whether they had made racial comments, such as that they had told subordinates that Rinaldi and her staff discriminated against black officers. At a follow-up, Cason and Stewart agreed to take a polygraph test.
At Cason’s exam, he was asked only three relevant questions, one of which was again about comments to subordinates that the Rinaldi discriminated against black officers. None of the questions involved sexual harassment.
Gergel also noted that no sworn witness statements or deposition testimony mentioned such comments, which came up in just one employee interview. That, combined with the fact that other officers were also accused of making inappropriate sexual comments but were not terminated, was enough to allow a reasonable jury to infer that the Authority’s offered rationale for firing Cason and Stewart was merely a pretext.
“The Court does not believe that a reasonable jury could infer Plaintiffs were terminated for retaliation based solely on the fact that they were asked about their comments in an interview by the Police Chief,” Gergel wrote. “[However] in the light most favorable to Plaintiffs and taking all inferences in their favor, a reasonable jury could find that the protected conduct ‘was the tipping point that swayed the Defendant to terminate Plaintiffs’ employment instead of imposing some lesser punishment.’ ”
Armand Georges Derfner of Derfner Altman and Wilborn in Charleston represented the plaintiffs. Eric Schweitzer and Lucille Nelson of Ogletree Deakins in Charleston represented the Port Authority.
The nine-page decision is Cason v. South Carolina State Ports Authority (Lawyers Weekly No. 002-048-14). A full opinion digest is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan