James F. Kilcur, Editor
Saul Ewing LLP

Vol. 18, No. 2
November 2007

RACE DISCRIMINATION

Race lawsuit's three shades: bias, harassment, retaliation

James F. Kilcur

While dismissing a former employee's race-bias case, the U.S. District Court for the Eastern District of Pennsylvania recently addressed a range of issues, including race discrimination, racial harassment, adverse employment actions, and retaliation. The decision provides a helpful analysis of the factors necessary for employees to make out a viable claim based on those legal theories. It also shows the type of analysis that you must do to determine whether your company has any legal exposure for its actions.

Facts

Shanda Killen, a dark-skinned African-American woman, began working for Northwestern Human Services, Inc. (NHS), in 1999. At the time of her termination, she was the company's personal care home administrator. The company provides outpatient and residential services for patients with mental-health diagnoses.

Celestine Washington, a light-skinned African-American woman with green eyes, was NHS' director of client funds. Her primary job was to standardize the company's financial practices and enforce its financial policies at the various residential facilities.

Killen accused Washington of harassment, claiming that Washington "continuously subjected [her] to racially harassing and offensive behavior," including making a comment that Killen "didn't fit the mold to be in the corporate world" because of her dark skin. Killen reported her complaints to NHS' compliance department, which investigated and concluded that the complaints were unfounded.

Washington, meanwhile, audited Killen's operation and raised concerns about her handling of clients' funds. Senior managers decided to place Killen on paid administrative leave while Kevin Dougherty, NHS' internal audit director, conducted a formal audit. The audit couldn't account for more than $49,000 in funds. As a result, Killen was terminated.

Court's decision

Killen sued for race discrimination, racial harassment (and a hostile work environment), and retaliation (along with intentional infliction of emotional distress). The court addressed a number of issues in deciding to dismiss the case at the summary-judgment stage (i.e., without a trial):

• Was placing Killen on paid administrative leave, pending an investigation, an adverse employment action that would support a race discrimination claim? The court concluded that without more, it wasn't an adverse action.
• What about the retaliation claim? The court concluded that "the threat of placement on administrative leave and the threat of a formal audit could have dissuaded a reasonable employee from making a discrimination claim." Therefore, the court found that placing Killen on paid administrative leave could have been an adverse action if it was done to retaliate against her. In this case, however, there was no evidence of "some causal link between her complaint and her being investigated and placed on administrative leave." Therefore, there was no retaliation claim.
• Would Killen's termination support a race discrimination charge? No. First, there was no evidence that Washington ― the only person who Killen alleges demonstrated racial animus toward her ― had any role in the firing decision. Moreover, the facts show that the termination was caused by Killen's financial improprieties and wasn't racially motivated.
• Was the environment racially hostile? No. Washington's comments to Killen about dark-skinned African Americans ― although offensive ― weren't "severe and pervasive" and wouldn't support a hostile work environment claim.

Copyright 2007 M. Lee Smith Publishers LLC

PENNSYLVANIA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Pennsylvania employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Pennsylvania does not certify specialists in labor and employment law, and we do not claim certification in this area.