M E M O R A N D U M

TO: ABC Corporation

SUBJECT: Employment Law – Racial Discrimination and Retaliation

DATE: May 10, 2015

Proposed Question
Will Samuel prevail in a lawsuit against ABC Corporation (ABC) for racial discrimination and retaliation?
Short Legal Answer
No, Samuel will not prevail in his Racial Discrimination and Retaliation lawsuit against ABC because the actions of ABC did not fall within the statutory definition of Disparate-impact discrimination.
Facts of the Claim
Samuel is African-American who has worked for ABC for three years. All of Samuel’s performance evaluations have been good. He applied for several positions in other departments and was turned down for each one. He believes it is because he didn’t have the experience required to do the job since he does not have experience working in those departments. A coworker, however, has suggested it is because Samuel is African-American. He applied for a supervisory position in his own department, for which he thinks he is qualified. He did not get the position; however, a white male in his same department was hired for the position. All of the supervisors in his department are white and minorities hold all of the menial jobs. When he complains to the Human Resource Department, he does not get a response. His supervisor appears to be retaliating by finding fault in his work after he complained to the Human Resource Department.
Research in Support of My Answer
Appellate Cases
In Carryl v MacKay Shields, LLC, Carryl, the plaintiff and employee, met his burden of proof establishing a prima facie case of racial discrimination in pay; however, MacKay Shields was able to provide legitimate reasons for the non-discriminatory disparity. They stated that the plaintiff’s Caucasian "peer" had more duties and provided the majority of the team’s income. Because the Caucasian peer had more duties and those duties required more work to supply more income to the company, the court found for the Defendant. The court found that “the firm offered legitimate, nondiscriminatory reasons for the disparity” (Rudolph).
In the case of Baldwin v Cablevision Systems Corp, the employee claimed that he was discriminated against when his employer passed over him three times vice president positions for which he felt he was qualified. He was later terminated, which he stated was retaliation for complaining. The employer was able to provide facts that demonstrated their hiring decisions were race-neutral. They also provided legitimated reasoning for the plaintiff’s firing. The appellate court found for Cablevision, stating that they were not being racially discriminatory.
When looking at the appellate case, Moultrie v Penn Aluminum International, Moultrie, which was quite lengthy, the plaintiff claims Penn Aluminum discriminated against him on the basis of his race. He also claims that when he made a complaint about it, he was written up for filing the complaint, which he says was retaliation. In February 2009, Penn Aluminum reassigned Moultrie new duties. Moultrie states the reassignment was a violation of the seniority system. Moultrie was not able to prove a prima facie case or retaliation. “…his on-the-job performance was inadequate, and he failed to point to similarly situated employees who received more favorable treatment” (Moultrie).
The Rose III v. Plastikon Ind., case shows that plaintiff Rose filed for Title VII action against Plaskiton Ind., for racial discrimination. Rose’s position was that of Loader. He was fired on February 26, 2009. Plastikon stated they fired Rose for verbally threatening his supervisor, Neel Prasad. Before Rose was fired, he made a complaint with the human resources department against Neel Prasad for harassment and discrimination. The human resources department investigated the claims, but did not find anything to substantiate them. Rose filed a Charge of Discrimination in September of 2009 with the EEOC. The EEOC was not able to prove discrimination and subsequently closed its investigation in July 2010.
Price v Federal Express Corp was a case where the plaintiff claims that he was denied a promotion in favor of a white applicant. The plaintiff did prove a prima facie case. However, Federal Express Corp was able to provide legitimate information supporting their information; the white applicant had more education and fifteen years in the military in similar positions, which was more education and experience than what Price had obtained. The courts found for the Defendant.
All of these cases demonstrate that while an African-American felt their rights were infringed upon, the evidence did not support illegal or fraudulent behavior. In most cases, it was simply the employee not having all of the facts.
Statutes
Applicable statutes to the case are “Equal Protection Clause,” “Disparate Treatment Discrimination – Prima facie,” and, “Retaliation”.
Regarding the Equal Protection Clause, ABC will need to prove that they are indeed hiring a minimum number of minorities in each state the company resides and that those minorities have equal chance and sufficient placement in supervisory positions.
ABC employees 150 individuals in five different states (Missouri, California, Florida, New York, and Illinois), and they are incorporated in Delaware. This case is held in New York. Even though all of the supervisors in Samuel’s department are white, that does not mean all Supervisors throughout the entire company are white. Samuel would have to prove the company, as a whole is not providing equal opportunity to all minorities.
Samuel may be able to prove a Prima facie case. He is a member of a protected class. He did apply for a position for which “thinks” he was qualified. He was rejected by ABC Corporation for the position. And, ABC did continue to seek applicants and filled the position with an individual who is not in a protected class. There is a high probability that Samuel will not be able to prove he is qualified for the position. He knew that he was not qualified for all of the other positions for which he applied. If Samuel is able to prove a Prima facie case, ABC Corporation has the opportunity to disprove his qualifications.
Retaliation is another applicable statute to the case. New York has state statutes protecting employees from retaliation for reporting discriminatory practices, even if the person making the report was wrong. Samuel many Samuel has the burden of proof
Recent Newspaper and Journal Articles
In the article, High Court to Consider Time Limits for Discrimination Claims, it talks about Marvin Green, an African-American, who claims he was passed over for a promotion because he is “black.” He also claims retaliation and being forced out (constructive discharge) of his job. The courts dismissed the case because they stated he waited too long to file his case, over 45 days. Samuel is threatening to file a lawsuit, which means he may go outside of the 45-day limit. If he does, the Judge will most likely dismiss the case.
The Key Reasons for Job Dissatisfaction and Poor Employee Performance article gives information about why employees are dissatisfied with their jobs and how that dissatisfaction can lead to poor performance and negative attitudes. Samuel was satisfied with his position until a co-worker began to suggest he was being discriminated against. He began to find faults with his company, which led to his poor performance and his supervisor criticizing his performance. Criticizing actual poor performance is not discrimination.
The Supreme Court narrowed the definitions of what a supervisor is and created tougher standards for employees to prove they have faced retaliation as explained in Supreme Court Raises Bar to Prove Job Discrimination, an article written in 2013. The Supreme Court changed the definitions in 2013. Their ruling makes it more difficult more difficult for Samuel to prove retaliation.
If Samuel’s supervisor does not have the ability to fire him, then the courts would view the supervisor as a co-worker, rather than a supervisor with power over him. This would mean that Samuel would not win the retaliation claim.
In the journal article High Court: Judges Can Review EEOC Bids To Settle Job Bias, it shares that judges can now review EEOC bids to settle job bias. This means that if Samuel’s case is handled by the EEOC, a lower court can now review the case. The EEOC has earned a reputation of being bias against companies and this new ruling was created to force the EEOC to be fairer in analyzing cases.
Due to this change, the ABC Corporation has a higher probability of a fair assessment by the EEOC. The courts will see that ABC Corporation has race-neutral in its hiring practices and no retaliation has occurred.
Conclusions
Samuel may be able to prove a prima facie case; however, the issue at question is whether he is truly qualified for the supervisory position. If he is able to prove he is qualified, he will be able to prove a prima facie case. If this happens, then ABC Corporation will demonstrate how the white male hired for the supervisor position was more qualified than Samuel. If Samuel is not able to prove he is qualified, which is highly likely, then he has no case.
Samuel has applied for several positions, which he admits he was not qualified. Just because he works in the department, does not mean he is qualified for the supervisor position. He will have to prove otherwise to the courts to have a prima facie case.
In addition, while all supervisors may be white in Samuel’s department, this doesn’t mean all supervisors throughout the entire company are all white. This would not be a reasonable assumption since the company has locations in Missouri, California, Florida, New York, and Illinois. All states with heavy minority populations. The courts look at the company as whole, not at one particular department or area. They will consider the entire ethnicity of all of ABC’s Corporation’s employees and determined the ratios on the whole. In doing so, it will be found that ABC Corporation is a company that focuses on diversity in its hiring practices.
Regarding retaliation, Samuel may have difficulty with obtaining any restitution if his supervisor does not have the authority to fire him. Many companies have supervisors who supervise a department, but it is only their supervisor or the Human Resources Department that can actually fire employees. If this is the case with Samuel’s supervisor, then, in the eyes of the court, the supervisor will be viewed as a co-worker according to the article, “Supreme Court Raises Bar to Prove Job Discrimination.”
Additionally, Samuel will have to demonstrate his attitude didn’t suffer as a result of the influence from his co-worker who was suggesting discrimination when Samuel didn’t notice any happening. It appears Samuel’s attitude changed after his coworker baited him into thinking ill of the company. This negative quickly caused Samuel’s work performance to suffer, which lead to his supervisor pointing out his faults. He was not written up or fired. Therefore, finding fault is not retaliation, it is constructive criticism to help an employee improve.
Recommendations
Trial Recommendations
It is recommended that ABC Corporation does not settle with Samuel outside of a trial.
This is due to the following issues: * ABC can prove the white male hired for the supervisor position is more qualified that Samuel. * ABC can show that Samuel does not meet the minimum qualifications for the position. * Minorities may hold all menial jobs in Samuel’s department, but minorities do not hold all menial jobs in the entire company. * Even though white individuals hold all supervisory positions in Samuel’s department, some of those individuals are women, who are in a protected minority class. * Samuel will likely file his case outside of the 45-day window, which will cause his case to be dismissed due to the time limits now imposed by the Supreme Court.

Company Recommendations
To prevent future appearance of retaliation, the following recommendations should be put into place: * A grievance policy should be created stating the steps employees must follow when filing complaints, including but not limited to the following steps. * All grievances will be filed with the Human Resources Department * The Human Resources Department will respond in writing within 5 days that grievance has been received * All grievances will be completely answered within 30 days * The company should create a zero retaliation policy * All managers will receive training covering the policy * The entire company employee population should be evaluated every 90 days to ensure Equal Protection laws are being followed. * Each employee should have a Career Development Plan, which would include the following: * Stating the employee directed career path * Listing objective goals with dates for each step * Evaluation giving benchmarks * Solutions for missed objectives * All supervisors and managers should go through leadership and management training. The training should include the following topics: * Positive versus negative leadership * Creating balance between positive reinforcement and teachable moments
Works Cited
Clarkson, Kenneth W., Robert LeRoy Miller, and Frank B. Cross. Business Law: Text and
Cases. 13th ed. Connecticut: Stamford, 2015. Print.
Derosher E Price, Plaintiff – Appellant, v. Federal Express Corp, Defendant – Appellee. 283
F.3d 715; 2002 U.S. App. LEXIS 3776; 88 Fair Empl. Prac. Cas. (BNA) 619; 82 Empl. Prac. Dec. (CCH) P40,972. LexisNexis Academic. Web. Date Accessed: 2015/05/12.
Greenhouse, Steven. “Supreme Court Raises Bar to Prove Job Discrimination.” The New York
Times. The New York Times Company. 24 June 2013. Web. 3 May 2015.
High Court to Consider Time Limits for Discrimination Claims. “abcNEWS.” ABC News
Internet Ventures. 27 April 2015. Web. 1 May 2015.
Hananel, Sam. “High Court: Judges Can Review EEOC Bids To Settle Job Bias.” abcNEWS.
ABC News Internet Ventures. 29 April 2015. Web. 2 May 2015.
Johnson, Rose. “Key Reasons for Job Dissatisfaction and Poor Employee Performance.”
Chron: Small Business: Deman Media. Hearst Newpapers. 2015. Web. 3 May 2015.
Levia Moultrie, Plaintiff, v. Penn Aluminum International, LLC, Defendants. 2013 U.S. Dist.
LEXIS 63047. LexisNexis Academic. Web. Date Accessed: 2015/05/03.
Louis Baldwin, Appellant-Respondent, v Cablevision Systems Corp., Respondent-Appellant.
2007 N.Y. App. Div. LEXIS 8108. LexisNexis Academic. Web. Date Accessed: 2015/05/02.
NYC: Commission of Human Rights. “NYC Resources.” The City of New York. 2015. Web. 9
May 2015.
Rudolph C. Carryl, Appellant, v MacKay Shields, LLC, et al., Respondents. 93 A.D.3d 589; 941
N.Y.S.2d 116; 2012 N.Y. App. Div. LEXIS 2305; 2012 NY Slip Op 2381. LexisNexis Academic. Web. Date Accessed: 2015/05/03.
Willie Rose III, Plaintiff, v. Plastikon IND., Defendant. 2014 U.S. Dist. LEXIS 37790.
LexisNexis Academic. Web. Date Accessed: 2015/05/10.