WRONGFUL DISCHARGE
Race-based 'search and seizure' claim tossed
. . . Employer policies help fend off discrimination charge . . .
Under Title VII of the Civil Rights Act of 1964, you may not discipline employees in a disparate fashion based on their protected-class standing, including race. It's also generally inappropriate to physically search employees. So do you violate the
law if you search a protected-class employee and his personal vehicle and then terminate him? Read on to learn how U.S. District Judge Mark Bennett answered that question in a recent case.
'Somebody's smokin' ― and it ain't tobacco'
Christopher Wright was employed by Winnebago Industries from August 1999 to March 2006, when he was terminated for misconduct. After his discharge, he filed a race discrimination claim against his former employer, alleging that as an African
American, he was subjected to an illegal search and seizure that led to a discriminatory termination based on his race.
During the time Wright was employed there, Winnebago had certain work rules, including a rule that employees could not possess, use, or sell any controlled substances on company property. Employees were also required to sign an acknowledgment
agreeing to submit to a search by security personnel if asked to do so when entering or leaving the premises.
In 2006, the head of security at Winnebago, Barry Bendickson, a Caucasian male, received a report that four employees, including Wright, had been returning to work after lunch smelling of marijuana. Bendickson, a small-town resident who admitted in
his deposition that he didn't have any contact with African Americans, had been trained on procedures for searching employees and looking for contraband that might violate company rules. However, he didn't typically document employee misconduct
complaints, nor did he take statements from employees who reported misconduct, based on his feeling that they wouldn't want to get involved in a workplace investigation.
As a result of the reported drug use, Bendickson started watching Wright and his coworkers when they returned from lunch. On two occasions, he believed he smelled marijuana when they passed him. Later, he received a report from another supervisor
that certain employees were coming back from lunch impaired. He didn't keep any records documenting the alleged misconduct, nor did he otherwise verify the claim made by the supervisor.
Pot 'sting' leads to terminations
On March 30, 2006, Bendickson and other supervisors confronted Wright and three coworkers, Patrick Rand, Donald Dalton, and Damon Jacobsen, as they were approaching Wright's car during their lunch hour. The four employees were pulled into the
security department to be searched. Bendickson didn't give specific instructions on how to conduct the searches, although the security employees conducting the search were told to check pockets, hats, socks, and shoes. During the search, a small
container of marijuana was found on Jacobsen, and he admitted that he had been supplying the group with drugs. He was terminated for possessing marijuana on Winnebago property.
Wright was searched by another security officer, who required him to remove his shoes and socks, empty his pockets, show his wallet, and unbuckle his belt and pants. He was also told to pull out his underwear far enough that the security officer
could see if he had any hidden contraband. In contrast, Jacobsen, who is white, was simply asked to remove his socks and wasn't required to loosen his belt. Rand, also Caucasian, testified that he emptied his pockets and was patted down. Dalton, an
African American, took off his coat, removed his socks and shoes, and was also patted down. No marijuana was found on Dalton or Rand, and they were allowed to return to work.
After the physical search of Wright came up empty, the security officers asked to search his car. Bendickson claimed that he had cause to search the vehicle because:
- the employees were stopped just before they got in Wright's car;
- security found marijuana on Jacobsen but no pipe or rolling papers; and
- somebody told Bendickson that Wright was a drug dealer.
Winnebago security and four
city police officers searched Wright's car, in which they found a pipe containing marijuana seeds and stems. None of the other employees' cars was searched. Wright was then terminated for violating the company's drug policy.
In his discrimination lawsuit, Wright argued that he had been treated in a disparate fashion based on his race. He pointed to the fact that his car was searched while the vehicles of other employees weren't, and his physical search was more extensive
than the "pat downs" endured by any of the white employees. He also claimed that the pipe, seeds, and stems found in his car weren't his, arguing that several people, including his niece and the 91-year-old woman who previously owned the car, had
access to the vehicle and they may have been responsible for the drug paraphernalia.
Employer seeks dismissal for lack of evidence
Winnebago asked the district court to dismiss Wright's race claim, arguing that:
- he wasn't qualified to remain employed at the company because he wasn't meeting its legitimate job expectations; and
- there were no genuine issues of fact showing that he was really treated differently than the Caucasian employees
involved in the drug sting.
In evaluating the employer's request, Judge Bennett initially found that Wright had violated Winnebago's rule prohibiting the possession, use, or sale of a controlled substance on company property based on the
discovery of the drug paraphernalia in his car. Given the well-publicized rule prohibiting drug possession, the court found that he failed to raise a genuine question about whether he had violated a legitimate employer rule, despite his claim that
any marijuana found during the search wasn't his. In fact, a security report clearly identified the discovery of the smoking materials in his car and noted that the pipe bowl was approximately half-full of what appeared to be marijuana. The police
report corroborated Winnebago's investigation, and Wright failed to create any genuine factual dispute to support his general denial.
The court also concluded that the search of Wright's automobile wasn't race- related, as he alleged. His car was searched because he and his coworkers were about to get in it during the lunch hour, and Bendickson testified that he had smelled
marijuana on them after they returned from lunch in the past. According to the court, "An employee who violates a significant company policy, such as a prohibition on an employee not using, possessing or selling controlled substances on the
employer's premises, is not meeting an employer's legitimate expectations."
The court also found that the evidence didn't support Wright's claim that the Caucasian employees, Jacobsen and Rand, had been treated more favorably than he. The searches of Dalton and Rand came up empty, and they were permitted to return to work.
While the physical search of Wright may have been somewhat more extensive than the others, the court noted that:
Of the four Winnebago employees stopped and searched, the one African American and the one Caucasian employee who were not found to be in possession of controlled substances were both permitted to return to work while the one African
American, Wright, and the one Caucasian employee who were found to be in possession of controlled substances both had their employment terminated.
Consequently, the court dismissed Wright's claims of race discrimination against his
former employer. Wright v. Winnebago Indus., Inc., 2008 U.S. Dist. LEXIS 36674 (N.D. Iowa, May 5, 2008).
Employment tip
Even though he was subjected to an extensive body and vehicle search, Wright's race discrimination claims were dismissed before trial. His claims were tossed despite the fact that security officer Bendickson didn't even thoroughly document the
company's investigation. What helped Winnebago sidestep this discrimination claim?
Defense attorneys and HR managers alike constantly preach about the importance of having thorough, well-written personnel policies. While supervisors and employees may complain about work rules, clear employment policies, received and acknowledged by
employees, can protect your business, even in the rare case when a drug "search and seizure" sting becomes necessary.
Winnebago had workplace policies that prohibited employees from using, possessing, or selling illegal drugs and allowed the company to conduct searches for substances that violated the policy. The company received sufficient evidence to search Wright
and his lunch buddies according to its published rules, which had been previously acknowledged by the employees. Even though Wright argued that his search was more extensive than the pat downs of the Caucasian employees, the court found that any
differences were a matter of degree, particularly because the employer's rules permitted searches and seizures founded on legitimate business interests.
Maybe your business doesn't need a search-and-seizure rule. But if you have concerns about employee theft, drug use, or similar misconduct, make sure you draft a comprehensive policy, distribute it to your workforce, and then follow it to the letter.
Remember, though, that even if you have a search-and-seizure rule, you should never hold an employee for a physical search against his will. You don't want to be the target of a false imprisonment claim. Make sure your rule also provides that any
employee who refuses to permit a search supported by a valid work rule is subject to discipline, up to and including termination.
Investigate and enforce your work rules
Almost every employer has a no-drugs-at-work rule. Because such a rule can often require the involvement of law enforcement, some employers tend to turn a blind eye to possible evidence of drug possession unless it's flagrant and severe. Winnebago
did the right thing by investigating suspicious activity and enforcing its rule, including bringing in local law enforcement when it conducted the search of Wright's vehicle.
Clearly, work rules aren't worth the paper they're printed on unless they're actually enforced. Never create rules you don't intend to implement, and always implement the rules you create. That's particularly true if a work policy addresses
potentially serious safety and productivity concerns. Remember, your failure to enforce a workplace rule in the face of apparent misconduct sends a message to employees that complying with the rules is optional. Don't have a rule unless you need it
— if you need it, enforce it. If you implement your rules uniformly without regard to race or any other protected classification, you'll avoid employment liability.
Copyright 2008 M. Lee Smith Publishers LLC
IOWA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems nor does it provide legal advice. The newsletter provides general information on current developments on Iowa employment issues. Questions about individual
legal problems should be addressed to the attorney of your choice.
