Baseball Bat.jpgA recent employment lawsuit, Ondricko v MGM Grand Detroit, LLC (PDF), for gender and race discrimination, illustrates how an employer can strike out in employment litigation by it’s own inconsistencies in disciplining employees and poor documentation for such discipline.  

Factual Background

Kimberly Ondricko is a white female. At the time she was terminated, she was employed as a supervisor with the MGM Grand Detroit casino (“MGM”). As supervisor, Ms. Ondricko was responsible for supervising the card dealers at the casino. 

The employer claimed she was terminated for violating the employer’s conduct rule in connection with a “bad shuffle.” This bad shuffle involved a blackjack dealer and an automatic card shuffler that malfunctioned, which resulted in the dealer dealing cards previously dealt.

And this is where the problem that inconsistent discipline and poor record-keeping comes into play. Specifically:

  • Since 2004, at least six other supervisors had engaged in misconduct related to card shuffle procedures. Only two were terminated – one before Ms. Ondricko’s termination, one after her termination.  
  • The employer’s human resource department had referenced the same policy as the basis for both the suspensions and terminations arising out of the “bad shuffle” incidents that Ms. Ondricko was fired for violating. No details explained why suspensions were given out rather than terminations.   
  • Ms. Ondricko had a clean discipline record. In contrast one of the two other employees terminated for “bad shuffle” incidents did not. In fact, this employee, a black female employee, actually had a significant history of disciplinary infractions. 
  • The other supervisor, a black male, was also terminated in relation to a “bad shuffle” violation, but this occurred eight months after Ms. Ondricko’s termination, which was around the time that Ms. Ondricko filed her claim with the Equal Employment Opportunity Commission. 
  • Also around the time Ms. Ondricko was fired, the terminated black female employee had retained legal counsel to investigate pursuing claims against the employer. In response to this investigation, an assistant manager – for some inexplicable reason – commented to a vice-president that “do you think I want to fire Kim, I didn’t want to fire Kim, how could I keep a white girl.”      

Following her termination, Ms. Ondricko sued for gender and race discrimination and the trial court threw both claims out on summary judgment. But that decision was reversed on appeal for the following reasons.  

Turning to Instant Reply, the Call at the Trial Court Level is Reversed

  • Direct Evidence of Discrimination – Strike One

There was no dispute that the employer had a written policy in place relating to “bad shuffles” and, therefore, the employer (at least facially) had a legitimate basis for terminating Ms. Ondricko. Accordingly, she argued that her race, i.e., being a “white girl”, was also a motivating factor in her termination. Such a claim is referred to as a mixed-motive case, which happens when a plaintiff claims the adverse employment action is the result of a mixture of legitimate and illegitimate motives. 

The Court easily concluded that the assistant manager’s “white girl” statement was direct evidence of race discrimination as it would be reasonable for a jury to conclude that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to card shuffle violations.

  • Inconsistent Disciplinary Actions – Strike Two 

At this point, the employer could have salvaged its defense and victory at the trial level if it met its burden of showing that the employer would have terminated Ms. Ondricko even if it had not been motivated by impermissible discrimination. But that was not to be.

Specifically, at the time of Ms. Ondricko’s termination, MGM had only terminated one manager (the black female) for the same violation. That manager had a history of discipline issues and Ms. Ondricko did not. The other manager was terminated for the same violation, but eight months after Ms. Ondricko. The other supervisors were only suspended for apparently violating the same rule Ms. Ondricko was fired for violating.  

  • Deficient Documentation for Disciplinary Actions – Strike Three

As to the other supervisors who had only been suspended, the employer claimed that not all shuffle-related offenses warranted the same level of discipline, thus the “legitimate reason” for the different levels of discipline. 

The Court rejected this argument for several reasons. First, nothing in the rule described any such distinctions and corresponding levels of discipline; It provided only: “What in the business judgment of MGM jeopardizes the efficiency or integrity of the gaming operation is prohibited.” 

Second, MGM could not point to no other policy, written or verbal, that delineated the circumstances under which distinctions in the levels of discipline were appropriate.

Third, in most if not all instances, the employer’s own company discipline documents only cited the rule the manager violated, but did not reference any details underlying the offense or to otherwise explain why different discipline was warranted.

Accordingly, the Court concluded there were disputed material facts pertaining to the actual motivation involved in MGM’s decision and reversed the trial court’s decision and allowed Ms. Ondricko’s Title VII race discrimination claim proceed to trial, as well as the gender discrimination claim. Play ball! 

Successfully Defending Discrimination Suits – What Should Employers Work on in the Off-Season?

First, Title VII’s anti-discrimination provision makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In other words and using the words of the assistant manager, Title VII even applies to “white girls.” 

Second, consistency is critical for defending any sort of employment discrimination claim. And the lack of consistency is what doomed the employer’s defense. In essence, the employer made the decision to punish Ms. Ondricko, a white female with no record of discipline issues, more harshly to show its recent termination of a black female with a history of discipline issues was not discriminatory.  

Third, it is essential to properly document the reasons an employee is disciplined. If there were extenuating circumstances why one disciplinary action was taken and not another, such circumstances should be recorded. Otherwise, as was the case here, an employer is left with all the glory of hindsight to explain its actions but without any facts to support why seemingly inconsistent levels of discipline was handed out for seemingly similar infractions. 

Fourth, legal counsel should be consulted immediately when it comes to properly disciplining and investigating employee misconduct. Even the best trained managers may not appreciate the nuances or impact a disciplinary decision may have on the company. And if your managers are not properly trained, an employer may get stuck with having to explain why managers used questions like how we keep a “white girl” after firing a black girl as the reference point for disciplinary actions. Have fun with that. 

For more information about investigating employee misconduct or employee disciplines, contact Jason Shinn. Also, for more information about differences between state and federal law when it comes to reverse race discrimination claims see Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law.