Successfully defend discrimination claims: 5 keys for employers

Anyone can sue for discrimination. But winning? That’s another thing. Here’s an example of how to properly defend a claim of unlawful race bias.

Duncan Giles, who is African American, was a train conductor for Amtrak. His supervisor was trainmaster Michael Hibbert.

One day near the middle of April 2019, Giles was assigned to the outbound crew of a train that was getting set to depart from Raleigh, North Carolina.

Before Giles got on the train, Hibbert told him that a different trainmaster would supervise the trip. That trainmaster was Amy Sine.

Hibbert also told Giles that Sine would already have a crew with her to uncouple a car from the train. Giles took that to mean that she would not need his help to get that job done.

Discipline leads to a discrimination lawsuit

Giles had never met or seen Sine before that day. So when Sine came into a crew room – without an Amtrak uniform or identification – and told him to help with the uncoupling, he refused to do so on the basis that he did not know who she was.

The two argued, and Giles confirmed to Sine that he was refusing to comply with a direct order. Giles got on the phone with Hibbert, who confirmed that Sine was indeed in charge of the train. But even with that information, Giles continued to defy Sine’s order.

Sine then jumped in to help with the uncoupling. At that point, Giles began trying to help.

It was too little, too late for Sine, who told him to stay away. But he kept trying to interfere anyway, causing a scene in front of passengers.

The next day, Hibbert and Giles met to talk about what happened. Hibbert suspended Giles pending an investigation.

After the investigation was complete, Amtrak charged Giles with violating a number of workplace rules.

Insubordination is a terminable offense

One of those rules prohibits insubordination, which at Amtrak is a terminable offense.

As a union member, Giles was entitled to a hearing. He got one, after which a hearing officer concluded that he committed insubordination.

Amtrak terminated his employment, and on appeal a private arbitration panel upheld the termination after concluding that Giles’ conduct was “grossly insubordinate,” “belligerent and argumentative.”

Giles sued, alleging unlawful race discrimination.

A lower court ruled against him, finding that he did not show he was performing his job in a satisfactory manner or that a similarly situated non-African American was treated more favorably in a similar situation.

As to the latter point, he pointed to a white co-worker who was not terminated after he refused to follow an order Hibbert issued regarding his schedule. But Giles relied on hearsay to make that assertion, the lower court said, and the co-worker’s transgression did not implicate workplace safety.

Moreover, the lower court found, Amtrak provided a legitimate reason for its actions: the serious safety issues posed by Giles’ insubordination.

Appeals court affirms

On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s ruling.

Giles did not present a genuine dispute as to whether Amtrak suspended and terminated him based on his race, the appeals court said.

Though he showed he was a member of a protected class who was subjected to an adverse job action, he did not show – as he was required to do – that he was performing his job in a satisfactory manner and was treated differently from a similarly situated employee who is not African American.

As to whether he was doing his job, “'[i]t is the perception of the decision maker which is relevant,’ not the self-assessment of the plaintiff,” the appeals court explained. And here, Amtrak permissibly determined that Giles did not meet its legitimate job expectations.

Giles’ evidence about the white co-worker was not good enough, the court said, because the white co-worker did not create a safety risk. He was not “similarly situated,” as required.

The lower court’s ruling was affirmed.

5 keys

Here are five things Amtrak did right and helped it easily defeat the race discrimination allegation. These are steps other employers can take to successfully defend discrimination suits.

• Investigate first

Before dropping the hammer and terminating Giles’ employment, Amtrak conducted an investigation. Even where it seems fairly clear that job misconduct has occurred, it is advisable to take the extra time to investigate before levying discipline. Note here that Amtrak suspended Giles first to avoid any further safety risks and then proceeded with an investigation of the incident. Sometimes, immediate action is needed because there is an imminent threat of further harm.

• Talk to all witnesses

Always gather as much pertinent information as possible, including by talking to all witnesses and other relevant parties. Question parties who might know about the incident in a private area, and carefully document the questions provided and answers given. Even in situations where what happened already seems quite clear, be open-minded when gathering information.

• Get their side of the story

Unless doing so presents a safety risk, accused employees should be given the opportunity to tell their side of the story. Even where a mountain of other evidence seems to paint a crystal-clear picture of what happened, give the accused employee a voice whenever possible. In unionized settings, this may be a requirement that is built into an applicable collective bargaining agreement.

• Discipline evenly

As the court noted in this case, to win, the suing employee had to show that someone outside his protected class was treated more leniently for committing a similar offense. In other words, he had to show that Amtrak did not apply discipline evenly. Uneven discipline is often the linchpin of a winning discrimination case, and it is a mistake to avoid at all costs for employers. Simply put: Similar offenses must get punished similarly.

• Define consequences beforehand

Here, pre-existing Amtrak policy established that insubordination is a terminable offense. Employers want to do all they can to avoid the “I didn’t know I could get [insert punishment here] for doing that” objection from employees. To do so, make it clear to employees, such as via an employee handbook, what type of conduct is impermissible and what the potential consequence will be for violations.

Giles v. National Railroad Passenger Corp. (Amtrak), No. 21-1887 (4th Cir. 2/10/23).