Lufkin Worker Called ‘Boy’ Has Retaliation Claim Revived

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By Patrick Dorrian

A black machinist in Texas who complained about being called “boy” by a supervisor and subsequently was fired for selling pornographic DVDs at work showed that his discharge was illegal job retaliation, a federal appeals court ruled ( Fisher v. Lufkin Indus., Inc. , 2017 BL 41537, 5th Cir., No. 15-40428, 2/10/17 ).

William Fisher’s alleged failure to participate fully in Lufkin Industries Inc.'s investigation of his DVD selling didn’t mean his race discrimination complaint and his termination for “a dubious work rule violation” weren’t connected, the U.S. Court of Appeals for the Fifth Circuit held Feb. 10. When the company sought to search his car for DVDs, Fisher left work, saying his wife had called and needed his help.

“The case is a great reminder” that if the facts unequivocally show that discrimination or retaliation occurred, a trial court shouldn’t be so quick to find another basis to excuse the employer’s conduct, Houston-based attorney Andrew S. Golub said. He is a partner with Dow Golub Remels & Gilbreath, which represents individuals and small businesses in employment-related matters.

The problem with the lower court’s analysis here is that there wouldn’t have been an investigation of any kind if Fisher hadn’t complained about race bias, Golub told Bloomberg BNA Feb. 13. Therefore, it was unreasonable to hold it against Fisher for not participating in the employer’s retaliatory investigation of his alleged violation of a separate work rule, said Golub, who didn’t participate in the case.

In reviving Fisher’s case, the Fifth Circuit said the evidence makes clear that a co-worker and a supervisor were motivated by a desire to retaliate against Fisher when they decided to look into his alleged DVD sales. They were retaliating against Fisher for reporting to the company’s human resources department that another supervisor had called him “boy.”

Other employees apparently possessed pornographic materials at work or sold various items, in violation of Lufkin’s policy, without being disciplined, the court said. Moreover, the co-worker who reported Fisher testified that he agreed to the supervisor’s request that he try to buy DVDs from Fisher to catch him in the act when the supervisor promised, “You scratch my back and I’ll scratch yours,” the court recounted.

‘Sort of Sting Operation.’

The co-worker and supervisor who participated in a “sort of sting operation” against Fisher regarding his alleged selling of pornographic DVDs on Lufkin property didn’t make the decision to fire Fisher, the Fifth Circuit said. Instead, Fisher argued that Lufkin was liable under the “cat’s paw” theory because the bias of the co-worker and supervisor tainted the ultimate decision-maker’s decision to fire Fisher.

Employers generally aren’t liable under the cat’s paw theory for adverse employment actions motivated by the bias of non-decision-making co-workers or supervisors when the employer has done an independent investigation, Judge James L. Dennis said. But finding that employers are shielded from liability when an employee who complained of bias mildly resists a retaliatory investigation in the way Fisher did would “incentivize” managers motivated by retaliatory animus to initiate baseless investigations with the intent of causing the targeted employees to resist them, the judge noted.

A magistrate judge found, and a federal district court adopted the magistrate’s finding, that the co-worker and supervisor acted with retaliation because they didn’t approve of Fisher’s race bias complaint against Fisher’s direct supervisor, Dennis said. The lower court erred in concluding that an independent justification for Fisher’s discharge was provided by the discovery during the separate investigation into the DVDs that Fisher may have been violating a Lufkin rule, the judge found.

Not Superseding Cause

The lesson for employers generally from the Fifth Circuit’s holding is that if you’re making a termination decision, a retaliatory investigation isn’t a superseding cause that breaks the causal link between a worker’s protected bias complaint and the employee’s discharge, Kerry Notestine of Littler Mendelson said Feb. 13.

The case also illustrates the dangers of firing an employee who has complained of bias based on unrelated behavior uncovered after the worker has complained, Notestine added. He’s a partner in Littler’s Houston office and also didn’t participate in the case.

When something problematic is subsequently learned about an employee who has complained about bias, “it’s probably best” to look at that information separately, “after taking a pause,” Notestine said. Treat the situations as separate and have a disinterested investigator lead the investigation into the newly uncovered information, he said.

Judges Jennifer Walker Elrod and James E. Graves Jr. joined the opinion.

Stuckey, Garrigan & Castetter Law Offices represented Fisher. Vinson & Elkins LLP represented Lufkin.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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