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XOXOXO,

Mark

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The case offers several valuable lessons for employers.  Here are the highlights.

The Facts

Ronald Madden was fired in 2006 by the Chattanooga Public Works Department for setting off a firecracker at work.  Company representatives testified that they were unaware of any similar incidents at the time of Madden’s firing and that they would have taken the same action against any other employee who had done the same thing.

However, Madden and several of his co-workers provided evidence that white employees had set off firecrackers at least twice in the past without incurring any discipline.  In one incident, the employee — who had the same supervisor as Madden — set off firecrackers at work less than a year before Madden’s firing.  Unlike Madden, the only response to that employee’s conduct was an informal admonition that he should “knock off the horseplay.”  There was also evidence that the supervisor himself had set off firecrackers at work and was never disciplined.

In a separate incident, a white employee threw a firecracker into a city truck carrying black employees, causing some of the employees to jump out of the truck while it was still moving.  Again, no discipline was issued and the situation was treated as “humorous and not one warranting discipline.”

The Trial

Despite the employer’s protestations that it was unaware of the prior incidents, the district court found that setting off firecrackers at work was “not uncommon” and that “there was no effort to conceal their use.”  Based on the employer’s disparate treatment of Madden and its willful ignorance of prior incidents, the court found the city liable for race discrimination under Title VII and awarded Madden $52,765 in front pay, $36,935 in back pay and $30,300 for emotional distress.

The Appeal

The employer appealed on the basis that the evidence supported a finding that Madden’s firing was indeed nondiscriminatory.  Among other things, the city argued that all employees were treated equally and that Madden’s conduct posed a greater safety risk than the conduct of the non-terminated employees.  In addition, the city argued that Madden failed to mitigate his damages by rejecting its “unconditional” offer of reinstatement.

The appeals court rejected the employer’s arguments.  First, it found that the reasons offered for Madden’s firing were insufficient to “motivate” the termination.  It pointed to the wealth of evidence that “white employees were not fired — or disciplined whatsoever — despite engaging in substantially identical conduct.” 

As for the “greater safety risk” argument, the court found “substantial evidence that the other incidents involved comparable or even more serious misconduct.”  It pointed particularly to the incident in which the white employee threw a firecracker into the moving vehicle carrying black employees.

The court also found that “discriminatory animus” motivated the white supervisor to turn in Madden but not white employees who engaged in similar conduct.  “By relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of . . . prejudice,’” the court stated.

Last, the court rejected the “failure to mitigate” argument.  The court found that the city’s offer of reinstatement was not truly “unconditional” because it required Madden to dismiss his discrimination claims.

The Lessons

This case graphically illustrates what can happen if an employer applies its discipline policies inconsistently.  Prior to any termination, it’s absolutely critical to conduct a good-faith investigation to ensure that (1) you have all the relevant facts, (2) the penalty fits the “crime” and (3) the decision is consistent with past practice.  Witnesses should be carefully examined to ferret out any potentially discriminatory motives.  It’s never a good idea to go to trial relying on the testimony of a potentially prejudiced witness.

Also, employers should think twice about offering reinstatement conditioned on dropping claims.  Such offers may be found “conditional” and thus insufficient to cut off the employee’s damages.

Tools and Tips

We’re here to help.  For our handy investigation checklist, click here.  For our termination tools, click here.

The Facts

According to court documents . . .

• Pilot Charles Gabbard admittedly smoked crack cocaine sometime between 5:00 p.m. and 7:00 p.m. on February 15, 2007.
• On February 16, Gabbard submitted to a random drug test. 
• On February 17, he piloted a chartered jet.
• On February 21, Gabbard’s test results came back, showing a cocaine metabolite level seven times higher than the regulatory limit.
• Cocaine takes 24-48 hours to clear the system, according to the drug test administrator.

In April 2007, the Federal Aviation Agency (FAA) terminated Gabbard’s pilot’s license based on the positive drug test and the agency’s conclusion that he had piloted the February 17 flight “while having a prohibited drug, cocaine in [his] system.”

After an evidentiary hearing, an Administrative Law Judge upheld the FAA’s decision.  The National Transportation Safety Board also affirmed the decision.

Despite all the above, Gabbard filed a lawsuit, claiming there was inadequate evidence for his termination.

The Court’s Decision

Not too surprisingly, the law doesn’t allow pilots to fly the friendly skies while on drugs.  What is surprising is that Gabbard was able to get his case all the way to the second highest federal court in the land.

Basically, Gabbard’s defense appeared to be:  “Hey, you can’t terminate me.  Sure, I smoked crack and massively failed a drug test but you can’t prove with 100% certainty that I was coked up while I was actually flying that big plane in the sky with lots of people on it.”

After examining all the evidence, the court concluded that a “reasonable mind” could determine that Gabbard flew the plane with coke in his system.  It pointed to the ALJ’s conclusion that Gabbard lacked credibility and that his admitted crack smoking may have taken place closer to takeoff.  Even without that, however, the uncontested evidence showed that Gabbard piloted the jet (at most) 42 to 44 hours after smoking crack — within the 24-48 hour window it takes for coke to clear the system.

Gabbard tried a few other creative arguments, including that (1) he inadvertently smoked a cigarette that — unbeknownst to him — was laced with crack, (2)  the coke may have gotten into his system due to plastic surgery or (3) perhaps he inhaled crack smoke that just happened to waft by his head at some point.

The court rejected each of those arguments, finding that regardless of how the coke got into his system, Gabbard immediately knew he was affected.  Rather than inform his employer about the “accidental” crack ingestion, he instead jumped behind the controls of the plane and took off.

Gabbard’s final argument was that his lawyer was so bad that the decision below should be thrown out.  The court rejected that argument as well, noting that there is no constitutional right to effective counsel in a civil case.

Click here to read the entire decision.