Richmond Court Dismisses Discrimination and Retaliation Claims

I’ve been practicing employment law for over 30 years, and one thing I have learned over those three decades is that you can generally predict how a judge will rule in your case by reading the first couple paragraphs of their decision.  In Bowman v. Rescare Inc., Braley and Thompson, Civil Action No. 3:16-CV-601-JAG (10/19/17) , a recent decision from the United States District Court for the Eastern District of Virginia, Richmond Division, Judge John Gibney Jr. began his recitation of the facts of the case as follows:

“The plaintiffs challenge essentially everything at their workplace as some sort of illegal conduct. They find hostility in the most mundane activities, such as the punctuation of emails.  The breadth of their gripes unfortunately requires the Court to delve into the minutiae of daily life at ResCare.”

If you represented the plaintiffs in this case, reading that paragraph would not give you a warm, fuzzy feeling.  Sure enough, Judge Gibney went on to grant summary judgement to the employer on both the discrimination and retaliation claims brought against a provider of foster care, mental health skill building, in-home treatment, and department of juvenile justice programs throughout Virginia.  Although the three African-American plaintiff’s complained they were treated harshly – i.e., they were allegedly required to work in back office space, use a back entrance, and move furniture prior to painting — the undisputed facts showed that white employees were treated the same way. The plaintiffs’ claims of discriminatory termination and demotion failed because it was undisputed that  the programs they worked for lost over $100,000 for two consecutive years, and both white and African-American employees were terminated as part of a company-wide reorganization. The plaintiffs’ retaliation claims were dismissed because the employees could not show that the innumerable complaints they made about their jobs were complaints of racial discrimination.

Judge Gibney’s decision in Bowman reinforces a basic tenet of employment discrimination law: to prevail on a claim of discrimination, it is not enough to simply show that an employee was treated poorly.  Rather, the employee must show that persons outside his or her protected group were situated similarly, but did not get treated as poorly as the plaintiff. Absent that evidence of “disparate treatment” or direct evidence of discrimination (i.e., a manager’s statement that “we’re firing you because you are a woman”), a claim will likely not survive a motion for summary judgement in federal court.



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