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A Better Partnership


Mar 2013
March 12, 2013

A Risk-Free Termination?

Let’s assume you just fired a white, male employee in his twenties. The employee – let’s call him Sam – has no health issues and signed a clear at-will statement when he was hired. You’re thinking that this is a pretty safe termination. But then you receive a lawsuit in which Sam claims discrimination because his race (Caucasian) was taken into account in his termination.

The lawsuit confuses you. After all, the three decision makers – the supervisor, the manager and the HR Director – are all white, too. In addition, Sam doesn’t dispute the misconduct that led to his termination. Instead, Sam claims that he was treated differently than non-white employees who committed similar offenses.

The federal Sixth Circuit Court of Appeals recently addressed this issue in Martinez v. Cracker Barrel Old Country Store, Inc. The plaintiff was a white, female retail manager who was discharged for making racial comments. Some of her comments were about the Michigan Bridge Card, a government-issued debit card that recipients can use to purchase food or get cash benefits. The plaintiff referred to it as a “ghetto card.”

The plaintiff admitted making the comments. But, she claimed, other African-American employees, albeit in lower positions, had made similar comments and had not been terminated. The employer argued that managers such as the plaintiff were held to a higher standard due to their leadership positions.

The court analyzed the plaintiff’s claim under both federal and state law. With respect to federal law, the court noted that the plaintiff had to “demonstrate background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” But under Michigan state law, the court found that the plaintiff was only required to show that she was qualified for her position (which she was), suffered an adverse action (such as being fired) and was treated differently than similarly situated non-Caucasians. Accordingly, the issue became a question of what constituted “similarly situated.”

The court went on to identify a number of factors for consideration:
  • Whether the plaintiff and the employee receiving more favorable treatment were similarly situated “in all relevant respects” (an exact correlation was not necessary)
  • Whether the plaintiff and the employee receiving more favorable treatment engaged in acts of “comparable seriousness” (the degree of the misconduct must be considered)
  • Whether the plaintiff and the employee receiving more favorable treatment shared the same supervisor and were subject to the same standards
  • Whether differentiating or mitigating circumstances existed
The plaintiff lost her case. The court found that her claim was sufficiently different because she held a higher position in the management structure and her conduct was more pervasive and severe. The court noted that, “the plaintiff’s role as a manager at Cracker Barrel could reasonably justify holding her to a more stringent standard of conduct than that applied to [her proposed comparator], who holds the position of assistant manager.”

There are three take-aways from this case:
  • Just because an employee is white and at-will does not mean that the termination is risk free.
  • When a white employee is discharged and claims discrimination, a court applying Michigan law will look at whether similarly situated non-white employees committing the same offense were treated the same.
  • In assessing whether the employees are similarly situated, the court will take into account a number of factors. Accordingly, an employer taking more severe disciplinary action against an employee is well advised to carefully document the reasons, including the employee’s position, the seriousness of the event and whether there any were unique facts or circumstances taken into account.

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