ROBERT HENRYDAVIS, SR. v. TIME WARNER CABLE OF SOUTHEASTERN WISCONSIN (July 5, 2011)

Time Warner Cable of Southeastern Wisconsin employs two sales teams. The inside team takes calls from business subscribers and is paid mostly through commissions. The outside team is responsible for landing new customer accounts and is paid principally by salary. In the early 2000s, the inside team was comprised of mostly African Americans and the outside team was comprised of mostly whites. Roberthenry Davis was an African-American member of the inside team. Two women, one African-American and one white, joined the inside team in 2005. The white saleswoman's lack of success created friction on the team and even led to rumors outside the team. The team's manager, a white male, criticized the African-Americans on the team for not being more cohesive. The African-Americans objected to that treatment and Davis complained. In late 2006, Davis erroneously treated a simple service request as a commissionable transaction, even though two of his colleagues disagreed. Time Warner ultimately reversed Davis' treatment of the request and concluded that he had violated employee guidelines. Time Warner fired Davis. After further investigation, however, a human resources manager recommended that the company reinstate Davis with back pay, but with a warning and an improvement plan. Although there was disagreement within the company, Davis was soon reinstated. Davis was unhappy about the way he was treated when he returned and he was also unhappy with a new compensation scheme that reduced commission opportunities for the inside team. Davis filed suit, alleging that Time Warner discriminated against him and retaliated against him when it fired him and when it changed the compensation scheme. Judge Adelman (E.D. Wis.) granted summary judgment to Time Warner on the ground that race was not a motivating factor in the company's actions. Davis appeals.

In their opinion, Judges Flaum, Manion, and Tinder affirmed. The Court addressed each claim (discriminatory firing, retaliatory firing, discriminatory compensation, and retaliatory compensation) separately. With respect to discriminatory firing, the Court agreed with the district court that Davis failed to provide evidence of a causal connection between Time Warner’s conduct and his termination. The Court noted that there was some evidence of his manager's insensitivity, or even bigotry, but no evidence that it was a motivating factor. And there was evidence that Time Warner strictly enforced its guidelines and had fired many employees, both white and African-American, for violations similar to Davis’. Davis' retaliatory firing claim was based on his complaints to his manager about what he perceived as unfair treatment. Again, the Court noted the lack of evidence that it was his complains that led it to his termination. Indeed, the evidence was that the company regularly terminated employees for guidelines violations. Davis classified his discriminatory compensation claim as a disparate treatment claim. In order to succeed on that claim, he had to produce evidence that Time Warner reduced his compensation on account of his race. Here, the revised compensation plan applied to all employees of whatever race on the inside team. That fact, coupled with the fact that a member of the inside team could transfer to the outside team, leads to the inescapable conclusion that the decision was not race-based. Finally, the Court reached the same conclusion with respect to Davis' retaliatory compensation claim. There was no evidence to link his complaints to his manager with the changes in the compensation plan.