John Deere Cleared on Black Machinist's Race Bias Claims

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By Kevin McGowan

July 14 — A black machinist at a John Deere & Co. tractor plant in Iowa failed to show his suspension for producing a large number of defective parts was motivated by his race, the U.S. Court of Appeals for the Eighth Circuit ruled ( Banks v. John Deere & Co. , 2016 BL 225767, 8th Cir., No. 15-2058, 7/14/16 ).

The decision shows a discrimination plaintiff must produce more than his own speculation that race bias infected an employer's disciplinary decision.

The appeals panel affirmed a district court's dismissal of Lovelle Banks's claims that Deere violated federal and state civil rights laws by giving him a 30-day unpaid suspension after a hearing regarding his alleged failure to properly clean his grinding equipment. The company subsequently reduced the penalty to two weeks without pay after discovering a “bookkeeping” error regarding his prior disciplinary history.

Banks contended Deere violated Title VII of the 1964 Civil Rights Act and Iowa's antidiscrimination law because Deere punished him at least partly because of his race. The company's error in recording Banks's alleged prior infractions is evidence of its racial animus, he said.

But the appeals court found Banks's evidence fails to raise an inference of racial bias. Deere disciplined him only after an investigative hearing at which Banks had a union representative, the court said. The company relied on photographic evidence that metal scraps on Banks's grinder weren't being properly blown away, causing him to produce parts that didn't meet Deere's quality specifications, the court said.

“Put simply, Banks speculates race was a motivating factor in his suspension, but he failed to show it,” Judge William Jay Riley wrote in an opinion joined by Judges B. Loken and Bobby E. Shepherd.

Unsworn Statements Inadequate

Banks also lacked any competent evidence to support his claim of a racially hostile work environment, the court said.

Banks cited three unsworn statements from co-workers who said they had heard Sharm Loy, a white co-worker who complained about Banks, repeatedly refer to him as “that nigger.”

Banks said he planned to call those co-workers as witnesses at trial, but the district court had ruled he lacked any admissible evidence of harassment.

On appeal, the Eighth Circuit said a formal affidavit isn't necessarily required to defeat a summary judgment motion under Rule 56 of the Federal Rules of Civil Procedure.

But the statements on which a party relies must be written, signed, dated and certified as “true and correct under penalty of perjury,” the court said.

None of the statements proffered by Banks met those criteria, the court said.

Banks also “hasn't explained why he couldn't have obtained sworn affidavits, written declarations under ‘penalty of perjury' or other competent evidence from his proposed witnesses,” the court said.

Joseph G. Bertogli in Des Moines represented Banks. Nyemaster & Goode represented John Deere & Co.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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