Takeaway: Employers can have a zero-tolerance policy toward racist statements but should enforce it equally against members of different races. Had the plaintiff presented comparator evidence showing that members of other races made racist statements and were not fired, his claim might have survived.
A white director of training development for a Chick-Fil-A franchise who was fired for commenting that a Black employee might be a “protester” shortly after George Floyd’s death did not assert a valid legal claim, a federal district court ruled.
After the plaintiff was hired as a team member, the franchise provided him with its Team Member Policy Handbook, which included a Civility, Equal Employment Opportunity & Non-Harassment Policy. The plaintiff later became the director of training development.
On June 3, 2020, the plaintiff saw a Black employee standing outside in the rain. In the presence of other non-white team members, the plaintiff said, “He looks like a protester.” This comment came just days after the death of George Floyd and subsequent protests. Employees who heard the comment filed a complaint with the franchise’s management. On July 6, 2020, the plaintiff was fired because the comment was deemed “insensitive, unprofessional and inappropriate.”
The plaintiff filed a complaint with the Equal Employment Opportunity Commission. He received a right-to-sue letter on May 11, 2021. On Sept. 3, 2021, the plaintiff filed his complaint in state court, alleging:
- Race discrimination in violation of Title VII of the Civil Rights Act.
- Retaliation in violation of Title VII.
- Common-law wrongful termination.
- A claim for attorney fees and punitive damages.
The franchise removed the case to federal court and filed a motion to dismiss the complaint in its entirety. It argued that the plaintiff was not fired because of his race, but because he made a racially insensitive remark about a Black employee. It also argued that the plaintiff failed to plead any facts to support an inference of discrimination. The plaintiff failed to offer any comparator evidence that other employees not in the plaintiff’s protected class were treated more favorably than him.
The defendant also argued that the plaintiff failed to allege any protected activity in support of his retaliation claim, and that Pennsylvania, where the case arose, does not recognize a wrongful termination claim when there is an at-will employment relationship. Because the plaintiff failed to allege other valid claims, the defendant argued that the attorney fees and punitive damages claim should also be dismissed.
In reviewing the pleadings, the court noted that both parties admit that the plaintiff made the comment that resulted in his firing. They disagreed, however, as to whether the remark was racially insensitive. The plaintiff claimed that his termination “was a knee-jerk reaction to the political climate of the summer [of] 2020” and thus, his claim should not be dismissed.
The court considered the standard for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). That standard requires that the complaint contain sufficient factual matter to state a claim to relief that is plausible on its face. The plaintiff had to plausibly state facts to show that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII.
The court found that all that the plaintiff had alleged was that he was wrongly accused of being racist. The court cited a decision by the 8th U.S. Circuit Court of Appeals finding that accusations of racism do not equate to race discrimination under Title VII. Rather, such an assertion wrongly conflates the ideas of race and racism.
The court also rejected the plaintiff’s retaliation claim because he did not allege that he complained about an unlawful employment practice and was fired because he opposed the practice. Rather, he claimed he was fired because his comments were mischaracterized as racist. The plaintiff’s wrongful termination, attorney fees and punitive damages claims could not survive because they depended upon a violation of Title VII, which the plaintiff did not plausibly assert.
As a result, the court dismissed the plaintiff’s claims.
Lacontora v. Geno Enterprises LLC d/b/a Chick-Fil-A, E.D. Pa., No. 21-03948 (March 23, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.