In order to state a wrongful termination or employment discrimination under Title VII of the Civil Rights Act of 1964, an employee must point to and adverse employment action taken by the employer based on the employee’s protected class. Specifically, Title VII prohibits discrimination and harassment of employees by employers based on the employee’s race/color, religion, gender/sex (including pregnancy and LGBTQ+ status) and national origin. Likewise, the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”) make it unlawful for employers to discriminate or harass based on an employee’s disability and age (over 40 years old) respectively. (Best Law Read: What Laws Protect Employees From Race Discrimination?; Does Title VII Prohibit All Discrimination?; All Hope Is Not Lost: How To Bring An Employment Discrimination Lawsuit).
However, it is not sufficient for an employee to simply be in a protected class. Rather, the employee must show that the manager, boss or supervisor took the adverse employment action because of that protected class. (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?; How Do You Win A Wrongful Termination Claim?; How Do You Win A Discrimination At Work Lawsuit?). With this in mind, we consider the recent United States Court of Appeals for the Eleventh Circuit case, Bailey v. Board Of Regents Of University System Of Georgia, 2022 WL 4517092, at *1 (11th Cir. Sept. 28, 2022). In this case, Sharon Bailey worked as a custodian for Clayton State University (“CSU”) starting in 1991. Starting in 2017, Bailey was caught “sitting in the warehouse during working hours for about an hour before she clocked out,” and “was regularly seen sitting in CSU classrooms outside of break time.” After being and confronted with such conduct, Baily was then caught sitting in a classroom watching a video on her tablet during work hours.
In April, the employer gave Baily verbal counseling for taking an unscheduled break without permission, driving her personal car on campus after while on the clock, and again watching videos while sitting in a classroom. In June, the employer gave Bailey another verbal warning following coworker complaints that she had been walking and sitting in areas on campus that were not within her territory of responsibility and outside of break time. In July, Bailey was caught walking outside her area of responsibility again, left work two hours early without letting her supervisor know, and unilaterally changing her schedule so that she could come in an hour later. Come August, Bailey was twice found sleeping in her car for extended periods while on the clock during working hours, left work twice early without permission, and called in sick four times.
Finally, the employer fired Bailey on August 28, 2017, and the termination letter cited the reason for her termination as “clocking in to work and then going to her car to sleep constituted ‘falsification of time reporting’ and that sleeping while on duty was unacceptable conduct.” Id. at *2. The termination of employment letter further pointed to the repeated counseling regarding timekeeping and performance that Bailey continued to ignore while violating CSU’s policies concerning time reporting honesty, attendance, performance, and conduct. Id.
Bailey then sued for wrongful termination based on her race (Black) and gender (female). Of course, Bailey “conceded below that she has no direct evidence of race or sex discrimination against her.” Id. at *6. This means that the employer never expressly said or did anything that directly implicated Bailey’s race or gender. Bailey’s problems did not end there as she “could not show that she was replaced by or treated less favorably than a person outside her protected class—that is, either a non-African American or a male Building Services employee. … On the contrary, Plaintiff admitted that she had no valid comparator evidence.” Id.
Instead, Bailey argued that her termination was discriminatory for three reasons: (1) she had to participate in a staff photograph despite that not being part of her job description; (2) her supervisors documented her vacation and sick days as well as her break infractions; and (3) the employer fired three other Black employees over a two-year period.
The first of these two arguments have absolutely nothing to do with a protected class. Employers can legally require employees to participate in a group photo – and did so for not only Bailey but also all the employees. As the United States Court of Appeals for the Eleventh Circuit held: “As to the photograph, it is undisputed that the requirement was imposed on all Building Services employees, regardless of their race or sex.” Id. at *7. Obviously, it is not discriminatory to track an employee’s PTO and disciplinary issues. And lastly, Bailey’s third argument came the closest but still failed according the Eleventh District Court of Appeals:
Finally, regarding the three African American employees who were fired between 2016 and 2017, Defendant cites record evidence—unrebutted by Plaintiff—that each of these employees was fired for violating CSU policies regarding time falsification, attendance, and/or other performance and conduct standards. A jury could not reasonably infer a racially discriminatory motive behind these termination decisions in the absence of some evidence showing that Defendant treated non-African American employees who engaged in similar policy violations and misconduct less harshly. There is no such evidence in the record.
Id.
Still not done, Bailey claims that she was retaliated against in violation of Title VII. Importantly, Title VII (as well as the ADA and ADEA) makes it unlawful for an employer to engage in retaliation against any employee who opposes, reports, or participates in an investigation regarding unlawful discrimination. (Best Law Read: Proving Discrimination And Retaliation Claims Under Title VII; Retaliation Is Still Easier To Prove Than Discrimination; Why Retaliation Is The Easiest Employment Claim). To state a claim for retaliation, an employee must present evidence that (1) the employee engaged in the protected activity of opposing, reporting or participating in an investigation into unlaw discriminatory acts or practices, (2) the employer knew of the exercise of the protected right, (3) the employer subsequently took an adverse employment action against the employee, and (4) a causal connection existed between the employee’s protected activity and the employer’s adverse employment action.
The United States Court of Appeals for the Eleventh Circuit held that Bailey’s retaliation claim also had no merit:
Plaintiff’s Title VII retaliation claim falters at the first step of the analysis because there is no evidence Plaintiff engaged in any conduct protected by Title VII—that is, there is no evidence that she opposed an unlawful practice under Title VII, made or assisted in a Title VII charge, or participated in a Title VII investigation or proceeding—prior to her termination. Indeed, and as discussed above, Plaintiff admitted in her deposition that she did not file a grievance or otherwise complain about race or sex discrimination to any individual within Defendant’s organization prior to her termination
Id. at *8.
Although the Eleventh Circuit Court of Appeals did not need to reach this issue, to beat a claim of discrimination under Title VII, an employer can state a legitimate non-discriminatory reason for firing the employee, who then can try to so that such reason is pretext. (Best Law Read: Employment Discrimination Question: What Is Pretext?; How Do I Prove Pretext For My Wrongful Termination?; Yes, Employers And Their Attorneys Lie). The problem for Bailey is that she could not refute that she engaged in bad conduct … repeatedly.
Employees that watch videos and sleep on the job will not be saved because they happen to be in any particular protected class. (Best Law Read: Can I Be Fired For Bad Attendance After Reporting Discrimination Or Harassment?; Can I Be Fired For Poor Job Performance After Using FMLA?; Can I Avoid Poor Performance Discipline By Reporting Discrimination?). Bad employees can be fired regardless of their race, religion, gender, sexual orientation, gender identity, pregnancy, national origin, age, or disability status.
Do I have a claim for wrongful firing?
Best Employment Lawyer Answer: The biggest mistake that Bailey made was not consulting a lawyer that would give her good advice and then likely charged her hourly to bring her lawsuit, conduct discovery, and the appeal to the United States Court of Appeals for the Eleventh Circuit. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). If you think that you may have been wrongfully fired or terminated based on your race, national origin, gender, age, religion, LGBTQ+ status, or disability; your best option is to call the right attorney to schedule a free and confidential consultation. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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