In Pennsylvania employment discrimination cases, evidence that can be used to establish race discrimination by a terminated employee may take many forms. A recent decision in O’Toole v. Hearst Stations, Inc., W. D. Pa. no. 16-879 (November 18, 2016) (Eddy, M. J.), demonstrates the type of evidence that a Caucasian employee may be able to use to attempt to establish that the true reason for the termination of employment is race discrimination.
In O’Toole, the employee was the main news anchor at a Pennsylvania television station who was repeatedly praised throughout her career for professional expertise, judgment, and work ethic; and she won more than 20 regional Emmy awards for broadcast excellence. As part of the employee’s duties as a reporter and anchor, the employer encouraged the employee to use a Facebook page as a platform to engage and communicate with the television audience about the stories the employee covered. The employee covered a story involving a shooting that resulted in six deaths. The employee wrote on the Facebook page, “you needn’t be a criminal profiler to draw a mental sketch of the killers who broke so many hearts two weeks ago “… they are young black men, likely in their teens or early 20s.” The employee also wrote a second Facebook comment praising a young African-American man who worked in an area restaurant writing, “I wonder how long it has been since someone told him he was special.”
The employee’s Facebook posts caused considerable controversy, and complaints from individuals and organizations purporting to speak on behalf of the African-American community. The employer’s management met with one organization to discuss the employee and issues of racial diversity. The same day, the employer terminated the employee, stating that the employer’s reason for firing was because the employee’s posts were inconsistent with the company’s ethics and journalistic standards.
The employee filed litigation in federal court alleging that she was fired because of her race in violation of 42 U.S.C. §1981. The employee argued that if she had written the same exact comments about white criminal suspects she would not have been fired, and that if the employee was not white but made the same comments, she would not have been fired. The employee also alleged that her Facebook posts were clearly and obviously not intended to be racially offensive and that the employer admitted that she is not a racist and that she was not posting racially offensive material. Thus, the employee alleged that the employer’s publicly stated reason for the termination of her employment, that the postings were inconsistent with the company’s ethics and journalistic standards, is pretextual.
In order to prove a what the law terms as a “prima facie case” of race discrimination, an employee must show that the employee (1) is a member of a protected class; (2) the employee is qualified for the position; (3) the employee suffered an adverse employment action, and (4) that circumstances exist that give rise to an inference of unlawful discrimination. The fourth element can be established through evidence that establishes that other employees outside the protected class were treated differently, or when an employee points to circumstantial evidence that otherwise shows a causal nexus between the employee’s membership in a protected class and the adverse employment action.
In O’Toole, the employee alleged that the evidence of circumstances that give rise to an inference of unlawful discrimination consists of the employer consistently downplaying misconduct by similarly situated reporters and anchors because of their race or gender, and retaining or hiring news reporters and anchors irrespective of their public misconduct. The employee identified two other employees as potential comparators. In denying the Motion to Dismiss, the Court relied upon law in Pennsylvania federal courts that holds that whether individuals are similarly situated is a fact-intensive inquiry which has to be made on a case-by-case basis, rather than in a mechanistic and inflexible manner, and as a consequence, a Motion to Dismiss at the onset of case is not the appropriate stage of the litigation to decide whether an employee outside the protected class who was treated differently is similarly situated. The court also held that evidence that the employer stated that the employee is not racist and that her comments were not racially offensive could be used to establish a reasonable inference of proof of circumstances that give rise to an inference of unlawful discrimination.
Andrew Abramson is a Philadelphia area employment discrimination attorney. For more information about race discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2130158.html.