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Section 1981 Protects Employee Witness in Employer’s Internal Bias Investigation

By Mary Walsh Dempsey  12/19/2013

An employee who supports a co-worker’s allegations of discrimination by participating in an employer’s internal investigation is acting to vindicate the rights of minorities and is entitled to the same protections under Section 1981 of the Civil Rights Act of 1866 as his co-workers who maintained the original complaint—even if the participating employee is not a minority himself, the 8th U.S. Circuit Court of Appeals ruled.

Riceland hired Tony Sayger, who is white, as a maintenance employee in 1999. In May 2009, Sayger participated in an internal investigation into a complaint filed by two black co-workers alleging that a supervisor, Ralph Crane, had made inappropriate racial comments. The investigation centered on Crane’s frequent use of offensive language about black employees. Riceland dismissed prior grievances filed against Crane as unfounded, because of a lack of witnesses. In the May grievance, however, Sayger supported his two colleagues, testifying that Crane directed racial epithets at them, denigrated their work and made other inappropriate remarks. At the investigation’s conclusion, Riceland found that the supervisor acted inappropriately and used derogatory racial language; thus, it ordered him to take diversity training. Even so, the employer took no other disciplinary action against him. The following month, Riceland issued a layoff notice to Sayger and terminated the two other employees who brought the initial complaints against Crane. The company defended the layoffs as part of an overall cost reduction.

Sayger filed a lawsuit under 42 USC, Section 1981; Title VII; and Arkansas state law, alleging retaliatory discharge as a result of his testifying in Riceland’s internal investigation into Crane’s conduct. The district court granted summary judgment to Riceland on the Title VII and state law claims but allowed the Section 1981 claim to proceed to a jury trial. Sayger obtained a verdict of $60,000 in compensatory damages and back pay. On Appeal, the 8th Circuit affirmed the award, noting that Sayger testified that, before the layoff, Crane made statements indicating that the company planned to get rid of “troublemakers.” The 8th Circuit also credited Sayger’s evidence that Riceland’s reason for his layoff was “pretextual,” observing that a Riceland superintendent had testified at trial that he had never before seen maintenance workers laid off, because they are considered to be “essential to the production,” and that Riceland’s failure to investigate the previous complaints about Crane, as well as its failure to punish his conduct beyond mandating diversity training, permitted an inference that the company viewed employees who complained as “troublemakers.”

Sayger v. Riceland Foods Inc., 8th Cir., No. 12-3301 (Nov. 18, 2013).

Professional Pointer: All participants in internal investigations into claims of harassment or discrimination are entitled to anti-retaliation protection, even if those employees are not members of a minority group. In an effort to avoid a retaliation claim, an employer should always make sure that all participants in company internal investigations, including witnesses, are advised of these protections and that any participant’s subsequent separation from employment, soon thereafter, is supported by a legitimate and genuine business reason.

Mary Walsh Dempsey is an attorney at Ufberg & Associates, LLP, the Worklaw® Network member firm in Scranton, Pa.

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