I recently told the students in my Employment Discrimination class that we don’t see many claims brought under Section 1981 of the Civil Rights Act of 1866. As if to prove me a liar, the Eighth Circuit just this week affirmed a grant of summary judgment in a retaliation case under that very Civil War era statute.
Richard Gacek worked for Owens & Minor Distribution in its warehouse. In 2008, one of his black co-workers sued the company for race discrimination and Gacek, who is white, provided deposition testimony supporting his claim. Several months later, following an investigation into another employee’s complaint about him, the company fired Gacek for “violations of company policy, including but not limited to creation of a hostile and intimidating work environment and engaging in unsafe work practices.” Gacek filed a lawsuit under 42 U.S.C. § 1981 alleging that he had been fired in retaliation for “attempting to vindicate the rights of minorities” protected by the statute when he gave favorable deposition testimony.
Section 1981 claims are analyzed under the same McDonnell-Douglas framework as Title VII cases. Owens & Minor claimed that it terminated Gacek for legitimate reasons unrelated to his deposition testimony: his multiple violations of company policies. Gacek argued that this reason was pretextual because other employees who had violated the same policies were not terminated. The Court rejected Gacek’s argument, however, finding that these other employees were disciplined for single incidents, whereas he was terminated for accumulating multiple violations. “Because none of the proffered single incidents is of comparable seriousness to the litany of violations accumulated by Gacek, the purported evidence of disparate treatment fails to meet the ‘rigorous’ test at the pretext stage for determining whether employees who were treated differently are similarly situated to the plaintiff.” As Gacek presented no evidence from which a jury could conclude that the employer’s proffered reason for his termination was pretextual, summary judgment was appropriate.
Other than serving as a reminder that section 1981 is still a viable cause of action, this case illustrates the difficulty of finding similarly-situated employees when a plaintiff is terminated for multiple reasons.