Lockheed Must Defend Discrimination Claim

     (CN) – The 11th Circuit vacated the dismissal of a reverse discrimination claim against the Lockheed-Martin Corporation, finding that a white supervisor fired for distributing an offensive and racially-insensitive email may in fact have been a victim of discrimination himself.

     The three-judge panel remanded the case to the Northern District of Georgia, after holding that the record contained “sufficient circumstantial evidence from which a jury could infer that Lockheed displayed a racially discriminatory animus toward [plaintiff Anthony] Mitten when it fired him in May 2005.”
     Mitten and six other white employees were fired for distributing an email that was offensive to black employees. Among other things, the email discussed why there are no black NASCAR drivers and stated comments such as “because a pistol won’t stay under the seat” and “there’s no passenger seat for the ho.”
     A month after his termination, Mitten learned that black non-supervisory employees forwarded an email video called “How to Dance Like a White Guy,” were only suspended. Once that email was sent, the employee Sharron Jones, was reminded by a recipient that the email – which referred to whites as “cracker[s],” “honk[ies], and “homo[s]” according to the court record could be offensive.
     Jones quickly reported herself, apologized to the recipients and asked that they delete the offensive email. Lockheed said these employees were suspended because it was self-reported and they were not supervisors.
     The incidents occurred about two years after Doug Williams, a self-proclaimed white supremacist who worked for Lockheed, went on a shooting rampage at its Meridian, Mississippi location. Williams killed five black workers and wounded eight others before killing himself.
     The incident prompted a special report on ABC primetime news that focused on the two-year anniversary of the “hate crime”, and Lockheed’s human resources department soon came under fire for knowing about Williams’ hatred for blacks.
     According to the report, the HR team received reports on Williams’ threats and nasty comments to blacks before the shooting. In one instance Williams told a black employee, “You know, one of these days, I’m goin’ to come in here and kill me a bunch of niggers and then I’m goin’ to kill myself. You’re on the list too.” But Williams remained employed and little was done about the complaints.
The perceived tolerance had Lockheed concerned about its financial and public relations position. Lockheed is the largest defense contractor in the country and it feared its $25 billion in government contracts were in jeopardy, according to the ruling.
     Several civil lawsuits against Lockheed came after the 2003 shooting where the victims’ families sought compensatory damages. The complaints stated that Lockheed had “failed to provide a safe working environment [free from hostility] by protecting them.”
     When Mitten was fired in 2005, the civil lawsuits were still looming. This created reasonable inference that Lockheed favored black employees during the time closest to the 2003 shooting and 2005 news special, according to Mitten.
     Of the 21 people involved in the distribution of the “NASCAR email”, only eight, including Mitten, were found to have violated the zero tolerance rule for sending racially insensitive emails. Seven of the eight were white.
The burden of production fell on Lockheed, who had to prove the employees were fired because of a legitimate reason that had nothing to do with race.
     The District Court ruled in favor of Lockheed on the basis that Mitten wasn’t fired because he is white but because he is a supervisor. Supervisors are held to a higher standard and expected to be proactive, according to the zero tolerance policy.
     To prove discrimination four elements must be true. The plaintiff is in a protected class, the plaintiff is qualified for his or her position, the plaintiff was terminated and the plaintiff was treated unfavorably compared to other similarly situated employees of a different race.
     But in Mitten’s case, the other employees who weren’t fired were not similarly situated.
     Mitten could not identify a black supervisory employee that was treated more favorably than him. He could only identify the blacks in non-supervisory positions.
     Mitten said he believed he did not need a supervisory comparator because there was enough circumstantial evidence that created a triable issue showing the employer’s discriminatory intent.
     Lockheed HR officials and top supervisors prepared a spreadsheet or “matrix” to show how the discipline decisions were made. The matrix included the name of the employee, the position held, the actions taken after receiving the email, the specific policy violated and the recommended discipline.
     There was a column in the matrix that included the employees’ race but only for future reporting purposes, according to the senior HR manager, Calvin Coolidge Bryant.
     The district court granted Lockheed Martin summary judgment, prompting Mitten’s appeal.
     On review, the 11th Circuit panel found that evidence inferred that Lockheed’s justification for firing Mitten was pretext for racial animus and had incentive to discipline white employees more harshly than blacks in 2005.
     The matrix also indicated that Lockheed consciously considered race in its discipline formula without a reasonable explanation.
     In a footnote, Judge Gerald Bard Tjoflat described that assertion “implausible” because it would effectively require decision-makers to “close one eye” while reviewing a potential disciplinary action with the matrix.
     Lockheed argued that it fired two black supervisors in March of 2008 for sending similar emails. But reasonable inference suggests that since this was nearly three years after the news report and five years after the shootings, the same pressures were not in play, the appellate court held.

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