Discrimination Claim Against Washington Post May Proceed

By Christina S. Capizzi Dec 28, 2016

A 59-year-old black employee may proceed with his claims that he was impermissibly fired because of his age and race. Evidence that an employer's nondiscriminatory reason for termination was "unreasonable" may defeat summary judgment in employment discrimination claims, according to the D.C. Circuit Court of Appeals.

David DeJesus sold ad space in The Washington Post for over 18 years before his termination. In 2011, DeJesus sold a full-page ad to Allstate Insurance about the dangers of texting while driving. Following publication, Allstate's ad agency requested information about the ad's effectiveness, and DeJesus requested an ad study through The Washington Post's Research and Analysis of Media study coordinator. The completed study was delivered to DeJesus and his supervisor, Noelle Wainwright. Wainwright informed DeJesus that she should have been aware of the study request before it went forward and requested DeJesus communicate with her on these types of requests. After DeJesus apologized, Wainwright responded, "No worries. Good story on the results."

Wainwright later instructed DeJesus to deliver the study to the client in person. DeJesus presented the study results to a vice president of Allstate who was integral to the ad campaign. Wainwright was displeased with this, reacting in what DeJesus described as an "explosive" manner. Wainwright meant for the report to be presented to a different Allstate executive, but DeJesus alleged she never directed him to any particular person at Allstate. A few days later, DeJesus was informed he was no longer a good fit for The Washington Post and was presented with a separation package, which he declined. DeJesus was then terminated "for willful neglect of duty and insubordination" for ordering the research study and failing to follow Wainwright's specific instructions concerning the study.

Following termination, DeJesus, a member of a collective-bargaining unit, filed a grievance and successfully arbitrated the termination decision, resulting in an order that his employment be reinstated. In 2013, DeJesus sued The Washington Post for unlawful discrimination, alleging he was terminated based on his age and race.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The district court granted summary judgment in favor of The Washington Post on the grounds that the employer had articulated a legitimate, nondiscriminatory reason for DeJesus' termination—willful neglect of duty and insubordination—and that DeJesus failed to establish pretext.

The D.C. Circuit disagreed, reversed the decision on appeal and sent the case back to district court.

The D.C. Circuit explained that DeJesus had produced sufficient evidence for a jury to conclude that the reason The Washington Post gave for his termination was not the real reason he was terminated. Although the newspaper presented and argued additional nondiscriminatory reasons for the termination, the court rejected these arguments on the basis that the termination memo made clear that the primary reason for termination was related to the Allstate matter. A review of the evidence, including Wainwright's "no worries" response, testimony by DeJesus and other employees regarding Wainwright's allegedly condescending and dismissive nature toward black employees and clients, and testimony regarding specific instances where other employees were forced out due to their age, led the court to reverse the district court. Even if Wainwright honestly believed DeJesus' actions were grounds for termination, a jury may find her interpretation was so unreasonable under the circumstances that it was not the real reason for the termination.

DeJesus v. WP Company LLC dba The Washington Post, D.C. Cir., No. 15-7126 (Nov. 15, 2016).

Professional Pointer: Employers should be cautious when terminating employees without an objective review of the misconduct and reasons for termination. Failing to consider the circumstances surrounding the reasons for termination may lead a court to allow a jury to decide if termination was reasonable or if unlawful discrimination was the true basis for the decision.

Christina S. Capizzi is an attorney with McMahon Berger P.C., the Worklaw® Network member firm in St. Louis.


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