Racial Nicknames, Inconsistent Rule Enforcement Support Discrimination Claim

​A black employee who was called offensive nicknames by supervisors and colleagues and who was fired for smoking in barred areas had a valid discrimination claim that could go to trial, the U.S. District Court for the Northern District of Ohio ruled.

Adalet/Scott Fetzer Co. hired Joe Lumpkin on July 16, 2014, as a foundry custodian. Lumpkin reported to Foundry Supervisor Mark Ambrose. Lumpkin claimed that co-workers and supervisors called him racist nicknames and made derogatory comments. Ambrose called him "Joe Dirt" and "Smoking Joe"; another supervisor called him "Coolio"; and co-workers called him "Michael Jackson," "Cheeto-head," "Django" and "Goldie the Mack."

Lumpkin also alleged in the lawsuit that white employees told him "you clean up real good" and spoke profanely to him.

Adalet had a progressive discipline policy in which four demerits in a 12-month period would lead to termination of employment. In early October 2014, Lumpkin committed two attendance violations. Subsequently, on Oct. 31, 2014, Lumpkin arrived late and left early. This resulted in Lumpkin having two demerits issued against him on Nov. 5, 2014. On April 2, 2015, Lumpkin received two more demerits for smoking in a nonsmoking area while on the clock.

On that morning, Director of Operations Tom James saw Lumpkin smoking in a nonsmoking area and instructed Ambrose to write him up. Later that afternoon, James saw Lumpkin smoking again. Lumpkin received two more demerits, bringing him to a total of four demerits, which resulted in his termination. According to Lumpkin, white employees were smoking with him that day in nonsmoking areas without being punished and Ambrose had even offered Lumpkin cigarettes before.

Lumpkin sued for racial discrimination and harassment under Title VII of the Civil Rights Act of 1964. Adalet sought summary judgment against Lumpkin's claims.

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First, Adalet argued that Lumpkin was justifiably terminated under its discipline policy. Second, it argued that Lumpkin did not show severe and pervasive harassment and that Adalet had an effective anti-harassment policy that Lumpkin did not make use of during his employment.

Lumpkin alleged that the discipline policy was applied in a disparate fashion, as he was punished for smoking in barred areas when white employees were not. While Adalet showed that a few white employees that Lumpkin claimed were smoking with him were not present that day, he did offer uncontested evidence that some white employees also broke the policy by smoking outside of regular break times.

Even though it was James who sought to punish Lumpkin for the smoking violations—and not Ambrose, who had called him racial nicknames—the court found that Ambrose was sufficiently involved and could have prevented the disparate discipline. Thus, a jury could infer discrimination from the alleged difference in discipline.

Lumpkin also argued that the racial nicknames were sufficiently disparaging to create a hostile work environment. He argued that Adalet was on notice of the harassment because Ambrose witnessed it and did not stop it.

The court agreed and particularly found "Django" to be offensive because the film referenced by the nickname involved patently offensive language and violence against black people.

Thus, the court declined to grant summary judgment to Adalet and allowed Lumpkin's claims to proceed to trial.

Lumpkin v. Adalet/Scott Fetzer Co., N.D. Ohio, 1:16-CV-2751 (May 15, 2017).

Professional Pointer: Even seemingly minor differences in rule enforcement or involvement in rules enforcement by an alleged harasser can support a discrimination claim.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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