In Willis v. CLECO Corp., No. 13-30217, (5th Cir. 4/8/14), the Fifth Circuit panel reverses summary judgment regarding a disciplinary write-up, but affirms summary judgment regarding the termination of an African-American worker. Gregory Willis' lawyer did not do him any favors in failing to point to specific pages from Mr. Willis' deposition. Those pages identify stark, repugnant racism in a small Central Louisiana town.
Mr. Willis worked for CLECO starting in 2000. He was promoted to a senior position in the Human Resources department several years later. He overhead a discussion between a co-worker and the General Manager of the HR department, John Melancon. The co-worker said to Mr. Melancon that she did not understand why the GM would go to Grambling University, a historically black college, to recruit employees. They were, she said, as "lazy" and "dumb" there as are the black employees at CLECO. The General Manager did not respond to her racist comments.
Mr. Willis reported this conversation to corporate executives and indicated it was racist. Mr. Melancon, according to a co-worker, was furious about his report. He said he would not forget this and that he would "terminate that nigger." Jerome Ardoin heard Mr. Melancon mention this threat. He also testified that he heard the General Manager refer to black employees as "niggers" and "coons" frequently over the years. CLECO Corp. is the publicly owned and traded utility supplier for Central Louisiana.
But, in responding to summary judgment, Mr. Willis' attorney did not point out these specific statements with specific page numbers. Apparently, he referred to them globally but did not include the particular page numbers. The majority two judges on the Fifth Circuit panel faulted the lawyer for this failure. They cited case law saying a court is not required to ferret out evidence. That is, a judge is not required to pore through pages and pages of deposition transcripts.
But, the dissent, Judge Dennis, apparently did pore through the deposition transcript. He did dig out the facts and included them in his lengthy dissent. He presents a compelling chronology of blatant racism and reprisal.
Mr. Ardoin is white. Another white co-worker, Patrick Lacour, testified that the General Manager once told him that he (the GM) would not allow his family to live in Alexandria, which is right across the river from Pineville, Louisiana, because there were too many black people who lived there. See decision here.
Comment: I have lived in Alexandria. At least when I was there, yes, there were many black citizens of Alexandria. Pineville was probably predominantly white. But, there were also plenty of white people in Alexandria, in case someone is counting beans.
These statements are obviously racist. It is surprising that the majority of the three judge panel would not give this some weight or at least, accept the hard work performed by Judge Dennis in digging this information out. The panel majority simply sits on precedent which states that a court is not required to sift information. But, no case prohibits a court from sifting evidence. When a judge does so voluntarily, there is no harm to the adversarial system. It is disingenuous of the panel majority to then disregard that evidence off clear racism.
The court faults the plaintiff's lawyer for not formally appealing the finding that he did not make out a prima facie case of discrimination. Thus, said the panel, the plaintiff waived that argument. The plaintiff's lawyer may not have mentioned this, but the prima facie case does not apply when the employee presents direct evidence. Here, a dis-interested witness testifies that the General Manager specifically said he would get rid of the person who made the complaint of discrimination. That is direct evidence of retaliation. There is no need of a prima facie case.
The panel majority allowed Mr. Willis to proceed forward with claims about his written warning. But, since that written warning resulted in no loss of income, Mr. Willis is left with a lawsuit which has little teeth. When there is no lost income, many, perhaps most juries would award no damages. And, I have to add, that finding lawyers who represent employees in discrimination lawsuits is very difficult in even the largest cities. Finding such lawyers in a relatively remote area like Central Louisiana is next to impossible. One has to wonder if the majority judges on this panel are not playing some sort of judicial "hear no evil, see no evil."