When the Washington Bullets (remember them?) won the 1978 NBA Championship, Coach Dick Motta inspired fans with the phrase “the opera ain’t over till the fat lady sings.” That phrase came to mind this week when I read about a decision reversing a $1.6 million dollar verdict against CSX Transportation in a race discrimination case. Bennett v. CSX Transportation, 4th Cir. No. 12-2477 ( unpublished 1/21/14).
In Bennett, an African-American former conductor-trainee sued CSX after someone spray painted the phrases “stupid n—a” and “stay off the railroad” on her car while she was parked at the train yard. Additionally, Bennett found a female mannequin with its face spray painted black and a noose around its neck in the backseat of her car (the passenger window had been broken to gain access). CSX placed her on paid leave while it investigated, but Bennett resigned and filed suit, alleging racial harassment, intentional infliction of emotional distress, negligent hiring, and other tort claims. A North Carolina jury found in her favor, and she was awarded back pay, front pay, compensatory damages, and almost $800,000 in attorneys fees.
CSX moved for judgment in its favor, notwithstanding the jury verdict. CSX argued that there was no evidence linking her supervisors to the vandalism. Although the trial court denied the motion, CSX appealed. The Fourth Circuit agreed with CSX and reversed the trial court, finding that, at best, the evidence showed only a “possibility” that one or both of her supervisors were responsible for the vandalism. Because the evidence did not rise to the level of a “reasonable probability” that the supervisors were responsible, it was insufficient to support the jury verdict.
So what is the take away for employers? The answer is don’t give up if you really did not do anything wrong. The facts of this case were egregious, and the vandalism is completely unacceptable. But CSX contacted the police and placed the employee on paid leave while it tried to find the perpetrators. The mere fact that this happened on the company premises while Bennett was at work does not make CSX automatically liable. Racist vandalism is never to be tolerated, but employers cannot absolutely guarantee that their employees will not be exposed to it. Rather, all an employer can do is take steps to remedy it when it does happen in the workplace.