5th Cir. Revives Waitress's Race Bias Claim; Manager Allegedly Said She Was ‘Too Black'

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By Lisa Nagele

Feb. 3 — A casino waitress in Louisiana who wasn't promoted to a managerial position may proceed with her race and color discrimination claims under Title VII of the 1964 Civil Rights Act because her manager's alleged comments, including that she was “too black,” constitute direct evidence of discrimination, the U.S. Court of Appeals for the Fifth Circuit ruled Feb. 2.

Vacating summary judgment for Spanish Lake Truck & Casino Plaza LLC, the Fifth Circuit found that Esma Etienne presented direct evidence of discrimination by supporting her allegations with the affidavit of a former manager, Jeannene Johnson. The former manager said casino general manager Bernard Terradot, who was responsible for filling the managerial position, allocated responsibilities to employees based on the color of their skin.

In her affidavit, Johnson said Terradot wouldn't permit “a dark skinned black person” to handle money at the casino and told her “on several occasions” that he “thought Esma Etienne was too black to do various tasks at the casino.”

“This last statement, if made, is direct evidence that color is likely to have played a role in Spanish Lake's employment decisions,” Judge E. Grady Jolly wrote for the court.

Judges Patrick Higginbotham and Priscilla Owen joined the opinion.

Alleged Discrimination Based on ‘Dark Color.'

According to the court, Etienne worked as a waitress and bartender at Spanish Lake for over three years when she applied for the managerial opening.

Etienne claimed the casino filled the position with a less qualified, white former employee that Etienne had initially trained as a waitress. Etienne argued that she was passed over for the position on the basis of both her race and her dark color.

The U.S. District Court for the Western District of Louisiana granted summary judgment for Spanish Lake, finding that Etienne didn't raise a factual dispute that she was clearly better qualified for the position. The district court also pointed out that before filling the position in question, five of the casino's six management positions were filled by black employees.

But “the district court seemed to pass over Etienne's claim that she was discriminated against on the basis of both race and her dark color,” the Fifth Circuit said in a footnote. “Though we have never explicitly recognized ‘color' as a separate, unlawful basis for discrimination by employers, the text of Title VII is unequivocal on the matter,” it said.

Direct Evidence of Discrimination Shown

The Fifth Circuit held that, for the purposes of summary judgment, Johnson's affidavit constitutes direct evidence of discrimination.

No inference or presumption is required to get from Terradot's alleged comment that Etienne was “too black to do various tasks at the casino” to the conclusion “that race was a basis in employment decisions” the casino made with regard to Etienne, the court said.

Furthermore, the comments explicitly referred to her color, were made by the person responsible for filling the managerial role, and were related to the challenged employment decision because managers are required to handle money, the court said.

Although it isn't clear if the comments were “proximate in time to the challenged employment decision,” the court said, this factor may be established when the comments were “routine,” or “made over a lengthy period of time.”

Johnson said in her affidavit that Terradot made the comments on several occasions, that he determined employees' duties based on skin color, and that he wouldn't allow a dark skinned black person to handle money at the casino.

“Taken together, these statements constitute a justifiable inference that Terradot's comments were not isolated or anomalous, but instead were in keeping with a ‘routine,' ongoing practice of allocating employment duties by skin color,” the court said.

G. Karl Bernard & Associates LLC represented Etienne. Pennington & Martinez represented Spanish Lake.

To contact the reporter on this story: Lisa Nagele in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Esma_Etienne_v_Spanish_Lake_Truck__Casino_Docket_No_1430026_5th_C.