Burlington v. News Corp., 2:09 cv 01908 (E.D. Pa) (Defense verdict, June 15, 2015)

This week’s Case of the Week is a fascinating case from the Eastern District of Pennsylvania.  The case involves a news anchor at Fox 29, Thomas Burlington.  Mr. Burlington was terminated in 2007 after repeatedly using the word “n*****” at an editorial staff meeting.  The word was used in the context of a discussion of a story in which the “n-word” was being symbolically buried by the local NAACP chapter.  Burlington stated that he believed that they should use the full word rather than referring to the word as “the n-word”.  In doing so, he used the actual word several times.

Several people, including African-American employees, were deeply offended by Burlington’s use of the full word, and the anger intensified as Burlington dug himself deeper by continuing to use the word as he tried to explain and apologize to people who were offended.  Burlington believed that he was trying to be constructive and that he did not mean to offend anyone.  He alleged that he was told that since he is not black he could never know what it is like to be called a n*****.  Ultimately, he was suspended and then terminated from his position.

Burlington filed suit in 2009 alleging race discrimination in that he was terminated because he is Caucasian and used a word that he alleges black people freely use but that white people are not permitted to use.  He claimed that the employer’s discipline created a racially hostile work environment and that the termination was retaliatory.

In December 2010, the Federal Judge heard the defendants’ summary judgment motion.  The plaintiff took the legal position that where a workplace permits one race to use a word that another race is not permitted to use, that is discriminatory and creates a hostile work environment.  The Court quoted an African American professor:

many people, white and black alike, disapprove of a white person saying “nigger” under virtually any circumstance. “When we call each other ‘nigger’ it means no harm,” [rapper] Ice Cube remarks. “But if a white person uses it, it’s something different, it’s a racist word.” Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying “nigger.” He writes that “most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.” Burlington v. News Corp., 759 F. Supp. 2d. 580, 597 (E.D.Pa. 2010).

The Court denied summary judgment, couching the controversy in very interesting terms:

This case presents unique issues regarding an employer’s liability under Title VII for cultural assumptions about a word that is considered by many to be the most offensive in the English language. Plaintiff portrays himself as a victim of political correctness run amok, while Defendants portray themselves as employers who made the only choice they could in response to an employee who repeatedly uttered “the most noxious racial epithet in the contemporary American lexicon,” resulting in problems in the workplace and significant adverse publicity. Whether Plaintiff was a victim of discrimination or his own poor judgment is for a jury to decide. Id.

             On reconsideration, the issue of the “cat’s paw” theory of liability, which was then going to be decided by the U.S. Supreme Court in Staub v. Proctor Hosp., 562 U.S. (2014), was raised.  The District Court agreed to stay the matter pending the Staub decision, which took almost four years.  After the Staub decision was released, the Court denied reconsideration, holding that the plaintiff could establish a cat’s paw theory that his co-workers exercised discriminatory influence upon the decision-makers.

The matter was tried before an all-white jury last week in Philadelphia, and the jury found for the defense, agreeing that the employer had legitimate, non-discriminatory reasons for terminating Mr. Burlington for using the n-word in the workplace.  It is unknown at this time whether there will be further appeals.

These type of cases are very difficult for both sides.  On one hand, there really is a double-standard regarding the use of certain racial and ethnic words.  On the other hand, the use of these racial epithets is deeply hurtful when used by persons who are not part of the ethnic group.  This case demonstrates the difficulty of defending the use of racial epithets, regardless of the reason or motivation.

Plaintiff’s counsel: Laura Carlin Mattiacci, Console Law Offices.

Defendants’ counsel: Jerome A. Hoffman, Dechert, LLP.

District Court Judge: R. Barclay Surrick, U.S.D.J.