A terminated African-American security officer sued his former employer for race discrimination. Despite having admitted that his employer was justified in terminating him for violating company policy, the employee later claimed that a Caucasian security officer received more favorable treatment in violation of Title VII of the Civil Rights Act. (Johnson v. Western Hotel & Casino, D. Nev., No. 10-cv-01590, 10/19/11).

In an opinion authored by Judge Philip M. Pro, the court denied, in part, the employer’s motion for summary judgment, finding that the black security officer was similarly situated to the white security officer who was not terminated for allegedly similar conduct. The court held that the black officer established a triable issue of pretext with the evidence that the white security officer was not terminated for a similar violation of company policy. The court also granted an unopposed request to limit Johnson’s potential back pay remedies.

Black Supervisor Terminated for Improper Use of Force

Welton Johnson worked for Western Hotel & Casino as a security officer from 2003 through his voluntary resignation in 2005. During that time, he was disciplined twice – once for keeping the volume on his radio turned down during breaks and once for balling his fist at a guest in response to that guest’s use of an obscenity. In May 2006, Western Hotel’s security manager encouraged Johnson to reapply for a security supervisor position – a promotion from Johnson’s prior position as a security officer.

On December 2, 2006, Johnson, who was a security supervisor at the time, approached a guest and asked him to stop cursing and disturbing other guests. The guest directed a number of obscenities and racial epithets at Johnson, who in response raised his hands to ask the guest to calm down. The guest in return hit one of Johnson’s hands. Taking the hit as an aggressive move, Johnson pushed the guest into a corner and then physically forced the guest to the floor. Johnson further stated that he told the guest “I will beat your ass even in handcuffs.” The following day, Johnson was suspended pending an investigation. During the investigation, Johnson admitted that he crossed the line but he was not going to “take it anymore.” He acknowledged that he needed to be calmer. Five days later, Johnson was terminated for violating company policy, specifically for assaulting a guest. Johnson later admitted that Western Hotel was justified for terminating him for violating company policy.

White Supervisor Demoted After Using Force

Following Johnson’s termination, Caucasian security supervisor Brian Smith was involved in an incident with a guest. On December 26, 2006, Smith was dispatched to the ladies room where he came upon a male urinating in the female restroom. Smith and a second security officer escorted the intoxicated guest to the south doors of the casino and followed the guest outside. Per security management, the officers should have stopped at the casino doors rather than following the guest outside. Once outside, the guest began “mouthing off,” Smith “put his hands on the guest first” and a fight ensued. The guest was handcuffed, escorted to the security office and the Las Vegas Metropolitan Police Department was called.

Following the incident, the second security officer filed an incident report. However, no further action was taken with respect to the incident. Months later, Western Hotel management learned of the incident only following an Equal Employment Opportunity Commission (EEOC) investigation. Because three months had passed, there was no longer surveillance video available, and the managers believed a complete and fair investigation could not be completed. During the EEOC investigation, it was determined that Smith had three prior disciplines (for losing $300 in quarters, excessive absences and losing an original fill ticket) but had no prior discipline related to use of force or threats against guests.

After management learned of the incident with Smith, he was suspended on March 15, 2007 pending an investigation. Security management then decided to bring Smith back to work, but ultimately demoted him from security supervisor to officer.

Title VII Race Discrimination Standard

As the plaintiff in this action, Johnson was required to show that he: (1) belongs to a class of persons protected by Title VII; (2) performed his job satisfactorily; (3) suffered an adverse employment action; and (4) was treated differently from a similarly situated employee who is not a member of the same protected class as the plaintiff. Although the parties did not dispute the first and third elements, they contested whether Johnson performed his job satisfactorily and was treated differently than a similarly situated employee, namely Smith.

The Two Officers Are Similarly Situated

While “similarly situated” employees need not be identical, they must be similarly situated in material respects, such as holding similar jobs, having the same supervisor and being subjected to the same standards. Courts also consider whether the employees engaged in similar conduct and have similar disciplinary records. An employee is not required to have a flawless personnel file at all times during employment, but an employee who openly violates company policy and continues to do so, despite warning, cannot show satisfactory performance. An employee need only offer evidence of satisfactory job performance prior to the alleged unlawful discrimination.

The court held that Johnson was similarly situated to Smith. Both were security supervisors, both reported to the same security manager, and both were subject to the same security department operating procedures. Johnson “engaged in an inappropriate use of force with a guest” while Smith followed a guest off company property. While the two incidents were not identical in nature, the court found that “Western [Hotel] has failed to offer evidence that the nature of Smith’s offense is a mitigating circumstance that distinguishes Smith from Johnson.” The court noted that the EEOC determined that Smith’s violation was more serious than Johnson’s.

The court found that the two officers’ disciplinary records were similar; both were counseled to keep the volume on their radios up and both had additional incidents of misconduct. Interestingly, the court largely disregarded the fact that Johnson had a prior discipline for similar conduct, explaining that Western Hotel’s conduct in rehiring and promoting Johnson “suggest[s] Western [Hotel] did not consider Johnson’s prior infraction serious.” The court noted that the standard at the prima facie stage is minimal, and there were no material distinctions between Smith and Johnson. Thus, Johnson will now have an opportunity to have his case determined by a jury.

What Does This Mean for Employers?

This case serves to highlight the need for thorough and fair investigations, as well as to be sure the employer considers the seriousness of any offenses committed as compared with others. Moreover, subsequent retention decisions must be systematic. As this case shows, even an employee who has admitted his employer was justified in his termination may later find a way to muddy the waters and develop a potentially merited termination case.

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