« Supreme Court re-argument on employee speech | Main | One million dollars for a hangman's noose »
Racial slurs but no smoking gun
March 20, 2006 by Ross Runkel at LawMemo
Subtitle: Let the judges rather than the jury weigh the evidence.
Sub-subtitle: So long Ash v. Tyson Foods.
Wal-Mart fired Myron Canady. Well, actually, Canady's supervisor's boss' boss fired him.
Canady, an African-American, claimed that race was a factor, and sued under Title VII. He pointed to what looked like a smoking gun: His supervisor had used many of the classic and most offensive racial slurs. "Nigga" and "lawn jockey." He called himself a "slave driver" and said all African-Americans look alike, and said Canady's skin color seemed to wipe off onto towels.
Wal-Mart said Canady was fired because he was insubordinate. He yelled at his supervisor's boss in front of customers and other employees.
On summary judgment motion, a key issue is whether Canady has evidence that insubordination was a pretext, and that race was the true reason.
You might think that the supervisor's continued use of racial comments would do it pretty nicely, especially after the US Supreme Court's decision in Ash v. Tyson Foods (US Supreme Court 02/21/2006) which unanimously chastised the 11th Circuit for ignoring use of the word "boy." Looks a bit like a smoking gun.
Not in the 8th Circuit under these facts. The court seemed to think the wrong guy was holding the smoking gun. The supervisor who made the comments was not the one who made the discharge decision (it was his boss' boss), and the comments were not made in the context of that decision.
Canady also claimed he was subjected to a racially hostile work environment in violation of Title VII.
On this point, the court seemed to think the gun wasn't all that smoky. The supervisor apologized for his "Nigga" comment and did not repeat it. The "slave driver" comment was, in context, not a sign of racial bias but merely descriptive of the supervisor's reputation.
Read all about it: Canady v. Wal-Mart Stores (8th Cir 03/17/2006) (by 2-1 vote).
Can this be? I have to agree with the dissent: There was enough evidence to send the case to a jury to decide what the facts really were.
As for harassment, there was a lot of extremely offensive racial commentary coming from the supervisor during a seven month period.
As for the discharge, the majority runs roughshod over Ash v. Tyson Foods. The dissent points out that reasonable jurors could infer that the supervisor was involved in the discharge decision and could infer that the employer's proffered reason was a pretext. Also, the dissent points out that Canady's affidavit denied any disrespect for Wal-Mart management and denied knowingly engaging in insubordination.
My view: The majority weighed the evidence, rather than letting a jury do that. Summary judgment is not the place for a judge to decide contested issues of fact.
Do I smell a certiorari petition?
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
