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Black Employee Fired After Stormy Meeting Lacks Retaliation or Bias Claims, Court Rules

Friday, December 21, 2012
Curtis v. Earnest Mach. Prods. Co., S.D. Ind., No. 11-951, 11/20/12

  • Key Holding:Plaintiff lacks retaliation claim because email containing general complaints about supervisor but not mentioning race or national origin bias is not Title VII protected activity.

  • Key Takeaways:General complaints to management about supervisors are not protected activity absent discrimination claim, and supervisors typically are not “similarly situated” to subordinate employees for Title VII analysis.


By Kevin P. McGowan

An African American employee terminated for alleged misconduct and performance issues after complaining to management about his supervisor lacks triable retaliation or race and national origin discrimination claims under Title VII of the 1964 Civil Rights Act, the U.S. District Court for the Southern District of Indiana ruled Nov. 20 (Curtis v. Earnest Mach. Prods. Co., S.D. Ind., No. 11-951, 11/20/12).

The court granted summary judgment to Earnest Machine Products Co. It said plaintiff Calvin Curtis cannot show he engaged in statutorily protected activity Jan. 26, 2011, when he sent an email to the human resources manager and two other managers in Earnest's Indianapolis warehouse complaining about Walter Blunt, Curtis's immediate supervisor.

In the email, Curtis complained that a male employee made “sexual gestures and overtones” in a break room in front of other employees, including a female employee. But Curtis said after he told Blunt “something had to be done” about the alleged sexually offensive behavior, Blunt delayed doing anything until he “finally agreed it was disrespectful.”

The email also included general complaints about Blunt's management style and alleged shortcomings as a supervisor.

The HR manager, Sally Reynolds, subsequently arranged a meeting with Curtis and Blunt, but Curtis and his supervisor apparently argued during the meeting. The company terminated Curtis Feb. 9, 2011, citing his alleged unacceptable conduct during the meeting, multiple unexcused absences, tardiness, and incorrect work performance.


Fails to Show 'Protected Activity'
Curtis claimed he was fired in retaliation for his “voiced opposition” to what he reasonably believed was race and national origin discrimination, but the court pointed out that his Jan. 21 email never mentioned either race or national origin.

“The email complains about Blunt's management style and work habits, such as inappropriately leaving the warehouse, failing to show up for portions of his shift, forgetting [Curtis's] work schedule and inappropriately assigning work,” Magistrate Judge Tim A. Baker wrote. “General allegations such as these are insufficient to trigger protected activity protections.”

“While the email asserts that Blunt has personal issues with [Curtis] and continues to single [Curtis] out, the email does not assert those issues were related to plaintiff's race or national origin,” the court said.

Curtis's informing Reynolds he had contacted a lawyer about his personal issues with Blunt does not make his conduct protected activity under Title VII, the court said.

“Simply put, the email does not mention race or national origin in any manner,” the court said. “Therefore, [Curtis] failed to engage in a statutorily protected activity related to race and national origin, which is the type of retaliation [Curtis] alleges in his complaint.”

Curtis emphasized that in a deposition, Reynolds testified she responded to Curtis's email by launching an internal investigation that included asking employees about discrimination.

The court, however, said Reynolds did not indicate she was investigating allegations of race or national origin bias. Rather, Reynolds testified she did not know whether Curtis felt he was being discriminated against because his email “really doesn't claim any kind of discrimination.”

“Considering Reynolds's testimony, it is unreasonable to infer that Reynolds's investigation was related to race or national origin discrimination,” Baker wrote. “Thus, even assuming that evidence outside the email is permitted for clarification, Reynolds's deposition fails to clarify that [Curtis] was complaining about race or national origin discrimination.”

Curtis's email does raise “a significant allegation related to sexual harassment,” which could be protected activity, but Curtis's retaliation claim is unrelated to sexual harassment, which was never mentioned in his Equal Employment Opportunity Commission charge or court complaint, the court said.

“Despite complaining about sexual harassment, [Curtis's] retaliation claim only alleges that he complained of race and national origin discrimination--an allegation not supported by his email complaint,” Baker wrote. “If [Curtis] wanted to assert a retaliation claim related to sexual harassment, the proper approach would have been to raise the issue before the EEOC and in the [court] complaint rather than inappropriately raising the issue for the first time in response to summary judgment.”


Not 'Similarly Situated' to Supervisor
Curtis's failure to engage in protected activity means he cannot state a retaliation claim under either the “direct” or “indirect” method of proof used within the Seventh Circuit, the court said.

Curtis cannot make a prima facie case of retaliation under the indirect method because he lacks evidence that a similarly situated employee outside his protected class was treated more favorably, the court said.

Although the Seventh Circuit recently has relaxed its test somewhat for “similarly situated” under Title VII, a plaintiff still must show that any differences between himself and a proposed comparator are not “material in that they go to the heart of why [the plaintiff] received different treatment,” the court said.

Curtis argued that while he and numerous co-workers were seeking work elsewhere, Blunt only sought to replace him. “This assertion is too vague to make any meaningful comparison,” the court said. “[Curtis] fails to identify specific employees, whether these employees held similar positions or possessed similar qualifications, whether these employees' attempts to seek other employment were similar to [Curtis's] attempts, and whether these employees were African American.”

Curtis also argued that HR manager Reynolds treated Curtis and Blunt differently, as Reynolds admits she got upset after reading Curtis's email but she took no actions against Blunt.

But the court said Curtis's apparent attempt to cast Blunt as a “similarly situated” employee given more favorable treatment “fails at several levels.” Significant “dissimilarities” exist between Curtis's and Blunt's asserted misconduct, as Curtis allegedly was fired for blowing up in the meeting and preexisting absenteeism and work performance problems, the court said.

Blunt ultimately was terminated also, but for alleged lack of communication with his supervisor and inability to lead his team, the court said.

More fundamentally, Curtis's “comparison is problematic because he is attempting to compare himself to his supervisor,” the court said. And even if Blunt were “similarly situated” to Curtis, the supervisor was one of 13 former employees the company also fired for misconduct, the court said.

Curtis failed to address in any meaningful way the defendants' evidence that other employees were fired for cause, the court said.

“[Curtis] directs only two short paragraphs to any actual discussion of similarly situated employees, but even this meager analysis is devoid of any mention of the [identities of] supposedly comparable employees and whether they are African American,” Baker wrote.

“[Curtis] abruptly concludes this truncated portion of his brief by proclaiming, 'Curtis has shown that similarly-situated employees of [Earnest Machine Products] were treated more favorably than him in establishing his prima facie case in this matter.' [Curtis] has shown nothing of the sort, and this shortcoming further supports granting summary judgment for defendant.”


No Race or National Origin Bias
For similar reasons, Curtis cannot establish a prima facie case of race or national origin discrimination, the court decided.

“[Curtis] has not even come close to satisfying his burden due to his undeveloped and seemingly absent disparate treatment analysis,” Baker wrote. “Moreover, as discussed with the retaliation claim, [Curtis's] email does not provide any evidence of race or national origin discrimination and [Curtis] otherwise does not provide any adequate examples. Under the indirect method, [Curtis] also has failed to sufficiently identify a similarly situated employee who was treated more favorably.”

Joel S. Paul of Ramey & Hailey in Indianapolis represented Curtis. Robert M. Kelso of Kightlinger & Gray in Indianapolis represented Earnest Machine Products Co.

By Kevin P. McGowan


Text of the opinion is available at /uploadedFiles/Content/News/Legal_and_Business/Bloomberg_Law/Legal_Reports/curtis2(1).pdf.

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