On 2/3/17, a federal court granted an employer’s motion to dismiss claims for race, gender and ADA disability discrimination. The case is striking because the allegations in the employee’s complaint were rejected even though they clearly established (at least in my view) that the supervisor was a jerk. The employee, an African American woman, was employed as a handler for FedEx Ground. On December 18, 2014, her supervisor walked over to her and demanded that she and several package handlers work faster. The employee told her supervisor that they were not behind schedule. The case is Vanderveer v. Fedex Ground Package System, Inc. (E.D. Pennsylvania 2/3/17). 

Shouting and Pointing. The supervisor then pointed at the employee’s face and shouted among other things: “I’ve never taken over your operation, but I’m about to.” The employee asked the supervisor to stop pointing at her face and to lower his voice. The supervisor, still yelling, told her she needed to follow him to his office. The employee asked the supervisor to change his tone and told him that her parents do not yell and disrespect her in this manner and that it was not ok for him to do so. The supervisor responded: “Yea, well I may not be your parent but I am your supervisor and you will listen to me.” The supervisor continued yelling  “You need to come here, right now. You’re going to my office right now! If you don’t I’m going to write you up.”

Employee calls HR; Supervisor becomes irate. The employee took out her phone and called HR. The supervisor asked who she was calling. The employee responded: “don’t worry about who I’m calling, you wanted me to follow you, I’m walking.”   In turn, the supervisor shouted “Who are you calling? You’re going to tell me whom you’re calling or I’m taking the phone. As a matter of fact, give me the phone, it isn’t yours, it’s a company issued phone.” Another employee (whom I will refer to as “the bystander employee”)  came out of her office and asked what was going on. The supervisor told the bystander employee to “mind her business.” Ultimately, the employee reached HR, asked the HR representative to come to where they were, and said “I told you about [this supervisor] and his temper and tone before.” The supervisor said “this is ridiculous” and demanded that the employee go to his office. 

Employee cries & Supervisor continues to shout. At this point, the employee became “extremely upset and began to cry.”  The bystander employee escorted the employee to a conference room in an attempt to calm her down. The supervisor – not to be deterred – walked into the conference room and yelled “I’m still expecting you in my office.” The bystander employee called HR and asked what she should do. A short while later, the supervisor “stormed” into the conference room and said “You still need to come to my office and if you’re not going to come into my office you can leave and if you don’t leave, I’m calling the police.” The employee tried to leave the conference room but the supervisor stood in the doorway and blocked her from leaving.

Employee fired for insubordination. Ultimately, an HR representative asked the bystander employee to take the employee outside to wait in a car until security arrived. While she was outside, the bystander employee told her to calm down so she did not have an asthma attack, and the employee asked the bystander employee to retrieve her asthma pump and get her some water. Shortly thereafter, a security guard arrived and took her statement. HR then told the employee that an investigation would be opened and that she should go home and she would be contacted about when to return, indicating that she would be paid during this time. On December 24th, the employee was told that she was being terminated because she violated a number of policies, including being insubordinate and using foul language. 

The law: Gender, Race & Retaliation.   While the supervisor did not make any overtly racist or misogynist comments, the employee argued that “the severity of [the supervisor’s] behavior, along with the claim that such behavior was never seen directed towards Caucasians or males, raises an inference of intentional discrimination.” The court rejected this argument on the ground that it was based on “conclusory” allegations and that she had not pointed to any specific examples of disparate treatment.  The employee also asserted a Title VII retaliation claim arguing that the supervisor retaliated against her for having called HR. The court rejected this argument noting that the employee had not complained about discriminatory treatment but only about the manager’s temper and tone. The court stated: “Title VII is not a general civility code.” 

Disability Discrimination The employee also argued that she was discriminated against because of her asthma. The court rejected this argument on the ground that there was no evidence that the supervisor knew that she had asthma and that the only mention of asthma in the complaint related to the comment by the bystander employee who told her to calm down before she had an asthma attack and her request to that employee to retrieve her inhaler. The employee argued that the supervisor had actually tried to provoke an asthma attack which the court said “borders on the absurd.” Finally, the court rejected an ADA retaliation claim concluding that her request that her co-worker get her inhaler did not constitute a request for a reasonable accommodation and that there was no evidence that the supervisor knew of the request and no evidence that the request was related to the termination of employment.

Lessons for employers? I first have to say that the court’s discussion of the law was correct, though it is surprising to me that the court dismissed the complaint before the employee was permitted to have discovery. In that regard, the employee may very well have been able to obtain evidence of disparate treatment of Caucasians and/or men, which would have supported race and/or gender discrimination claims.

I note that when I performed training courses on discrimination prevention, I used to tell managers that it is not unlawful to be a jerk. Under the common law employment at will doctrine (followed in all states except Montana), employees have no right to any particular workplace. If they don’t like their boss, they can quit. 

I would follow this message with a big “HOWEVER.” Congress and state and local legislatures have adopted statutes that create rights in certain circumstances.   The most powerful statutes are those prohibiting discrimination against certain legally protected categories. These laws are designed to encourage lawsuits in order to change workplace behavior, and successful employees are entitled to a broad array of damages and an award of attorney’s fees.   However, there is no law prohibiting generalized bullying unrelated to a legally protected category (what lawyers sometimes call the “equal opportunity abuser”). 

Before managers left the training sessions, I would urge them not to walk away thinking they had a green light to be a jerk.   Being a jerk leads to lawsuits (like here, I note), and if the case gets in front of a jury, the jury is more likely to be sympathetic to the employee than to the jerk. Further, it is not unusual for someone who acts like a jerk to also – from time to time – make comments or engage in conduct that could be deemed discriminatory or to treat employees in protected categories more harshly than others.  Employers should strive to ensure that their workplaces are respectful for a variety of reasons, including risk management and employee engagement and retention.