LUFKIN, Texas – Let’s say, hypothetically, you’re a mid-level management figure at a firm that manufactures equipment for use by the oil and gas industry, and it comes to your attention one of your subordinates is selling porn DVDs around the office as a side business. Presumably, firing the office porn-slinger would be a straightforward matter of termination for cause, right?
Well….
In a case that proves the truth of the old saying “the devil is in the details,” Lufkin Industries, an oil-and-gas subsidiary of General Electric, appears poised to learn the hard way firing an employee can be a tricky endeavor.
It gets even trickier, of course, if the facts at hand make it look like an act of retaliation or the company’s policies don’t specifically prohibit the act for which the employee was terminated — or, as in this case, both.
According to a summary of the case contained in the decision of the Fifth Circuit Court of Appeals, the employee in question, William Fisher, set the ball rolling towards his eventual termination not by selling porn DVDs, but by filing a complaint against his boss.
In a lawsuit contending his firing was unlawful, Fisher alleged Lufkin violated Title VII of the Civil Rights Act of 1964 “by discharging him in retaliation for his complaint that his direct supervisor racially harassed him.”
Let’s back up for a moment here, because it’s also important to note precisely how Lufkin’s selling of porn DVDs at work first came to light.
It all started when Fisher’s supervisor, Steve Saxton, told Fisher he had to take his break when everyone else did, rather than on his own schedule. Fisher responded he “could not take breaks when his machine was running during certain operations.”
The response clearly agitated his supervisor.
“Boy, I don’t know why every time I come over here it’s a hassle,” Saxton said, reportedly raising his voice in anger.
“If you’re going to harass me, we need to get a steward,” Fisher responded, triggering a complaint process that necessitated the involvement of the union.
About a month after the incident, Fisher’s coworker, David Rhoden, complained to Saxton’s supervisor, David Jinkins, saying he was offended by Fisher’s initial complaint and Fisher’s subsequent statement he wanted to see Saxton fired over the alleged harassment.
At trial, the witnesses gave differing accounts of what happened from there.
“Jinkins testified that during this conversation Rhoden mentioned that Fisher had long been selling DVDs out of his lunch box and that some of them were pornographic,” the court wrote. “Rhoden, however, testified that it was Jinkins who raised the question of whether Fisher sold DVDs out of his lunch box.”
The discrepancy is significant because of what it indicated about whether the subsequent investigation into Fisher was retaliatory or routine.
“Jinkins thereupon came up with a plan for Rhoden to conduct a ‘sort of sting operation’ by buying DVDs from Fisher,” the court continued. “Rhoden testified that he had never bought a DVD from Fisher and did not want to buy one even after Jinkins asked him to do so, but he nevertheless agreed to comply after Jinkins told him, ‘You scratch my back and I’ll scratch yours.’”
To make a long story short, Rhoden ultimately purchased two DVDs from Fisher, one of which was blank, the other of which apparently did contain porn.
Fisher filed a lawsuit alleging his termination was a retaliation for filing the complaint against Saxton. After holding an evidentiary hearing on Fisher’s claim, the presiding magistrate judge issued a recommendation to the district court stating “although the initial complaint by Fisher that his supervisor racially harassed him by addressing him as ‘boy’ was meritless, Lufkin’s subsequent investigation and ultimate discharge of Fisher were motivated by the desire of a coworker and a supervisor to retaliate against him for his protected activity.”
The magistrate also found, however, because Fisher “lied to his supervisors during the investigation and did not fully cooperate in it,” Fisher’s termination was justified, “independent of any other proffered reasons.”
Thankfully for Fisher, the appellate court saw things differently.
“We conclude that Fisher has shown a sufficient causal connection between his protected activity and his termination to warrant reversal,” the court wrote in its decision. “The magistrate judge’s conclusion that Fisher’s lack of cooperation with Lufkin’s retaliatorily motivated investigation, based on a dubious work rule violation, severed the causal chain between Fisher’s protected activity, for which Rhoden and Jinkins retaliated against him, and his ultimate termination by Lufkin is thus implausible in light of the record read as a whole, and the district court clearly erred in accepting it.”
An important facet of the above paragraph not directly related to Fisher’s complaint about his supervisor or the company’s retaliatory actions thereto is indicated by the phrase “dubious work rule violation.”
To be clear, the problem isn’t that Lufkin doesn’t specifically prohibit the sale of porn in the workplace; such precision likely isn’t necessary to fire someone over selling porn at work. The problem here stems from what the Lufkin workplace policies say about the process of terminating employees for breaking the relevant rule. The appellate court spelled out its perspective on this point clearly in a footnote within its ruling.
“Although the magistrate judge did not cite, quote, or describe the rule he referenced, the record indicates that he was referring to Plant Rule 14,” the court wrote, going on to quote the rule at length. “At his deposition, Jinkins testified that although Rule 14 technically prohibited the distribution and sale of articles without company authorization, an employee was supposed to receive a written warning for his first infraction; a written warning and layoff for remainder of his shift for the second infraction; a 3-day disciplinary suspension for the third infraction; and a 5-day suspension for the fourth infraction. Only after the fifth infraction is the employee supposed to be terminated.” (Emphasis added.)
As you can see, there’s more than one moral to the story here.
First, if you’re going to fire an employee after he or she alleges discrimination under Title VII of the Civil Rights Act of 1964, you’d best have a damn good reason to do so — ideally, one that can’t be easily connected by fairly clear dots leading back to managerial butthurt over being called a racist as the actual cause.
Second, if you’re going to establish a policy that specifies workplace offenses for which you might want to fire someone after a single infraction, it’s probably best not to specify they get four freaking strikes before the umpire gets to call them out.
