Employee’s Termination Within Days of Complaining to Employer of a Hostile Work Environment Could Be Grounds for Valid Unlawful Retaliation Claim
Melvin v. Barr Roofing Co. - Fifth Circuit Court of Appeals
Facts: Johnnie Melvin (“Melvin”), who is African American, worked at Barr Roofing Company (“Barr Roofing”) as a sheet metal worker on and off from 2001 until 2017. Melvin alleged that beginning in 2012 or 2013, he became the target of racial slurs at work, with his white coworkers (including his direct supervisor and his supervisor’s relatives) calling him racial slurs “on a daily or near daily basis.” In March 2013, Melvin complained to Bryan Galloway (“Galloway”), Vice President at Barr Roofing, about the racial slurs. Melvin was terminated and then subsequently rehired.
In 2016, Melvin was offered marijuana while on the job from a fellow employee. After another employee reported that Melvin and other employees were smoking marijuana on the job, Melvin was asked to take a drug test which he failed. Melvin claimed the co-worker that offered him the marijuana only passed the drug test by swapping out urine samples. Melvin was not fired for the failed drug test.
In April 2017, a white co-worker took Melvin’s tools and threw them out of a window while they were riding together in a car. The co-worker told Melvin that he was a white supremacist and threaten to throw Melvin off a roof when they worked together again. On May 1, Melvin notified Galloway about the incident and was told it would be investigated. Arek Hawkins (“Hawkins”), Melvin’s supervisor approached him the next day and said he did not like snitches. On May 4, Galloway told Melvin that Hawkins wrote him up for poor performance and cussing. Melvin was told to go home for the day. It was alleged by Melvin that his co-workers were not disciplined for similar work performance or cussing. Galloway called Melvin later that afternoon and asked him why he had not shown up for a drug test. Melvin told Galloway he was confused and unaware he was wanted for a drug test. However, as Melvin did not have access to transportation, he could not take the drug test.
When Melvin returned to work, Hawkins reiterated that he did not like snitches and said Melvin would no longer perform work for Hawkins. On May 8, Galloway terminated Melvin for failure to take the drug test. Melvin subsequently filed suit against Barr Roofing and alleged violations of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981 on the grounds he faced “a pattern and practice of harassment and humiliation” at work and the motive for his termination “was racial discrimination and retaliation.” Barr Roofing moved for summary judgment and the district court held that Melvin had failed to sufficiently plead a valid discrimination, retaliation, and hostile work environment claims and failed to allege a prima face case on such claims. Melvin subsequently appealed the granting of summary judgment in favor of Barr Roofing.
Holding: (Note, this case brief only analyzes the discrimination and retaliation portions of Melvin’s appeal.)
Discrimination
In reviewing a plaintiff’s claims of unlawful discrimination, the McDonnell Douglas burden shifting framework applies: At the outset, a Title VII plaintiff must “set forth a prima facie case of race based discrimination.” If the plaintiff meets this burden of proof, “the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” The burden then shifts back to the plaintiff to “offer some evidence that the reason preferred was a pretext for discrimination.”
To meet his initial burden, Melvin must show that he 1) “is a member of a protected class,” 2) “was qualified for the position,” 3) “was subject to an adverse employment action,” and 4) “was related by someone outside [his] protected class or was treated less favorably than other similarly situated employees outside [his] class.
In this case, the Court of Appeals held that Melvin failed to identify a similarly situated comparator who received better treatment. As a result, the Court ended its analysis of this portion of Melvin’s claim and affirmed the granting of summary judgment in favor of Barr Roofing as to Melvin’s discrimination claim.
Retaliation
In reviewing a plaintiff’s claims of unlawful retaliation, the McDonnell Douglas burden shifting framework applies: At the outset, a Title VII plaintiff must “set forth a prima facie case of retaliation.” In order to meet this burden, a plaintiff must show 1) “that [he] engaged in activity protected by Title VII, 2) that an adverse employment action occurred, and 3) that a causal link existed between the protected activity and the adverse action.”
In this case, Melvin reported race based harassment to his supervisor, Hawkins, after a co-worker self identified as a white supremacist and threatened him. Reporting racial discrimination is an activity protected by Title VII. Melvin was subsequently terminated, which qualifies as an adverse employment action. As for showing a causal link, the Court recognized that plaintiffs can rely upon temporal proximity to support a causal nexus when the protected activity and adverse employment action occur “very close” in time. Melvin had alleged he was terminated just facie days after reporting the harassment. In viewing the facts in the light most favorable to Melvin, the Court held that a prima facie case of retaliation could be established.
Shifting the burden to Barr Roofing, the employer was required to produce a legitimate, non-discriminatory reason for Melvin’s termination. The Court held that this burden was met as Barr Roofing stated Melvin was terminated for failing to take the drug test. As the burden shifted back to Melvin, he was required to raise a fact issue as to pretext. In this instance, the record established that Melvin alleged that Hawkins reported him to Galloway for a retaliatory reason: Hawkins was unhappy that Melvin had reported his co-worker’s behavior. A day after Hawkins reported Melvin, Melvin was told to take a drug test. A few days thereafter, Hawkins informed Melvin he would no longer work under his supervision and Melvin was subsequently terminated. Based upon these facts, the Court held that a reasonable jury could infer that Hawkins made negative reports about Melvin’s work in order to trigger an investigation or adverse action against Melvin. The rapidly unfolding events further supported this premise.
Judgment: The Fifth Circuit Court of Appeals affirmed the granting of summary judgment in favor of the employer as to the discrimination claim as the employee failed to meet its burden under McDonnell Douglas, however, reversed summary judgment in the employer’s favor as to the retaliation claim as a reasonable jury could find that Melvin had raised a fact issue as to pretext for his termination.
The Takeaway: While this was a rather short opinion from the Court of Appeals, the Court really packed a lot in here. I will call attention, in particular, to the Court recognizing that just because Barr Roofing presented a legitimate, non-discriminatory reason for why Melvin was terminated, that was not the end of the ballgame. Rather, while the Court did not say that Melvin’s retaliation claim was a “winner” or a “slam dunk”, the Court did find that a reasonable jury could find that based upon the timeline from when Melvin first made his employer aware of a hostile work environment to when he was subsequently terminated a few days later, it was conceivable that Melvin was unlawfully retaliated against. As the standard of review stipulated that the Court analyze the facts in the light most favorable to Melvin, I think this was the correct decision to reverse the granting of summary judgment in Barr Roofing’s favor as to this part of Melvin’s claim.
Majority Opinion Judge: Per Curiam
Date: April 7, 2020
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