Can a supervisor’s racist comments — after a firing — support a plaintiff’s bias claim?


What would happen if you punched your boss in the face?

Wait! Don’t answer that.

Ok, allow me. You’d get fired.

But, what if, after you get fired, your boss calls you an awful racist/religious/sexist/”you name it” slur? Could it be reasonably inferred retroactively that bias motivated your firing? According to this recent opinion in Heaven v. Skinner Tank Co. (opinion here), yes.

Plaintiff argues that he was terminated from his employment under circumstances giving rise to an inference of discriminatory termination because he was not terminated until an employee of Defendant left a vulgar voicemail message. Although Plaintiff’s employment was terminated sometime between noon and one o’clock…Jones’ voicemail at 2:49 p.m., the same day, is arguably evidence of Jones’ state of mind at the time he fired the Plaintiff. It may reasonably be inferred retroactively that Plaintiff’s termination was based on his race.

Defendant has proffered a legitimate non-discriminatory reason for terminating the Plaintiff – his fighting on the job, contrary to the Defendant’s safety rules. However, Plaintiff has submitted some evidence of pretext in the form of testimony that fighting on the job was not uncommon and that fighting did not usually result in termination.

So, unless you’re Frank and Lorenzo Fertitta, who run the Ultimate Fighting Championship, you want to have work rules prohibiting fighting and enforce them. But, more importantly, make sure that your decisionmakers fire fast and then cut all ties with the former employee.

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