Alan Schorr’s Employment Case of The Week ending January 24, 2014

Mitchell v. City of Pittsburgh, 2014 U.S. Dist. LEXIS 6119 (W.D. Pa., Jan. 17, 2014)

An employee who was accused of sexual harassment and subsequently terminated survived summary judgment where other employees outside the protected class who committed other kinds of serious misconduct were not terminated. Albert Mitchell, the plaintiff in Mitchell v. City of Pittsburgh, was a 61 year old African-American who had worked in the EMS division for 32 years and had been a crew chief for 14 years.

Mitchell alleged that, during a patient transfer which involved a total of five employees, a female nurse walked in front of him. Mitchell alleged that he said “I got this,” and when the nurse did not respond, Mitchell put his hands on her waist area and moved her to the foot of the bed. The nurse stated, however, that as the patient was about to be moved, Mitchell walked up behind her and brushed up against her, which took her by surprise. She stated that seconds later Mitchell grabbed her buttocks, and placed his fingers “very close to [her] private area.” The nurse stated she objected immediately, and Mitchell responded: “That was for Valentine’s Day, they call me walking chocolate.” Mitchell denies touching the nurse in this way and denied saying anything about “Valentine’s Day” or “walking chocolate.”

The nurse reported the incident to her supervisor, who reported it to the Office of Municipal Investigations. It was referred for criminal investigation, which did not result in criminal charges, partially because there was no corroboration and partially because the nurse did not press charges. The City, however, conducted its own incredibly shabby investigation. None of the three eyewitnesses saw Mitchell touch the nurse inappropriately nor did they hear him say anything about “Valentine’s Day” or “walking chocolate”. Despite the lack of corroboration and the fact that Mitchell had a 32 year employment record devoid of any such conduct, the investigator conferred with two psychologists who concluded that Mitchell could not be rehabilitated because he would not admit to his behavior. Mitchell was suspended and then terminated. Mitchell filed with the EEOC, who found in his favor and issued a Right to Sue. Mitchell sued, alleging race and age discrimination. After discovery, Pittsburgh and the individual defendants filed for summary judgment.

The first three prongs of the discrimination analysis, (1) that he belonged to a protected class, (2) he was qualified for the position, and (3) he was subjected to an adverse employment action, such as termination, were not in dispute. The summary judgment argument revolved around the fourth prong, whether the circumstances of the adverse action “give rise to an inference of unlawful discrimination.” To satisfy this burden, Mitchell argued that the City treated similarly situated employees outside the protected class more favorably by disciplining them less harshly for similar conduct. Specifically, Mitchell argued that three other white EMS employees were investigated but not terminated for striking patients.

The Court rejected two of the comparators as being substantially similar. One of the employees was a police officer and not an EMS employee. One was an EMS employee, but the investigation concluded he was innocent. One of the Caucasian employees, however, was an EMS employee who admitted striking the patient, and was suspended for three days and ordered to attend anger management. The Court found this to be a sufficient comparator because it was the same position and of a “comparable seriousness”. Accordingly, the Court found that a reasonable jury could find in favor of the plaintiff and accordingly denied summary judgment against the City and Mitchell’s two supervisors. Two individuals, the personnel person and the Director from OMI, were dismissed from the case.

This case is interesting in two respects. First, this case can be used as a good example of where a comparator does not have to engage in the identical behavior, so long as they are in the same position and engage in conduct of “comparable seriousness.” This issue always creates great confusion for judges, who many times read the law very narrowly and require comparators to be identical in almost every respect.

The second interesting part of this case is how similar it is to another case reviewed in this column in June 2012, Lowe v. Medco Health Solution of Willingboro, LLC, 2012 U.S. Dist. LEXIS 59137 (D.N.J. 2012). In Lowe, the African-American plaintiff had been terminated after allegedly slapping the butt of a female employee. Another Caucasian manager had engaged in similar butt touching conduct and was not disciplined. Like here, summary judgment was denied.

The lesson here for employers is that if there is a zero tolerance policy, it must be enforced with zero tolerance or else they leave themselves open to these types of claims. For employees, I am not sure what the lesson is, but there sure does seem to be a lot of butt-grabbing cases. Employees would be well-advised to not “get behind” in their work.

Plaintiff’s Counsel: David F. Weiner, Carlin & Weiner.

Defendants’ Counsel: Michael E. Kennedy, Daniel D. Regan, Luca M. Giorgi, City of Pittsburgh Department of Law.

United States District Judge: Joy Flowers Conti, Chief United States District Judge.