This fall the Supreme Court will hear the case of EEOC v. R.G. & G.R. Harris Funeral Homes, in which it will decide whether Title VII prohibits discrimination on the basis of gender identity. The case is on appeal from a 2018 decision of the Sixth Circuit Court of Appeals. EEOC v. R.G. &
Ondricko v. MGM Grand Detroit, LLC (6th Cir. Aug. 8, 2012), is a Title VII race and gender discrimination case that has it all – gambling, direct evidence of discrimination, vague employment polices, employer arguments that are directly inconsistent with its evidence, and a big lesson for employers: Don’t lose sight of the ball. Every adverse employment decision can expose an employer to liability if done wrong, even ones against "white girls."
Kimberly Ondricko, a white female, was employed as supervisor with the MGM Grand Detroit casino ("MGM") when she was terminated for allegedly participating in a "bad shuffle." Ondricko had been employed by MGM since 2003. She worked her way from Dealer-Trainee to Dealer 1, to part-time Floor Supervisor, to full-time Table Games Supervisor in October 2005. As supervisor, Ondricko was responsible for supervising the dealers in the Pit.
In April 2008, Ondricko was supervising Vivian Baran, a dealer, who had one customer playing blackjack. Baran had an issue shuffling the cards due to a malfunction with the card shuffler that caused Baran to deal cards she had already dealt, which was not supposed to happen. Ondricko never left the table during the shuffle and informed her supervisor, the Pit Boss, about what had occurred. She was immediately suspended pending an investigation. The next day, Ondricko was terminated for violating an ambiguous conduct rule that provided: "What in the business judgment of MGM jeopardizes the efficiency or integrity of the gaming operation is prohibited."
So here’s where it get complicated for MGM. Since 2004, at least six other supervisors had engaged in misconduct related to shuffle procedures – only two of whom were terminated. After MGM decided to terminate Ondricko, but before it informed Ondricko of its decision, Mike Hannon, Tables Games Assistant Shift Manager, spoke to Mike O’Connor, Vice President of Operations, about Ondricko and asked why Warren Black, a black male, was given a three-day suspension based on the violations of the same policy for approving a bad shuffle, but Ondricko was being terminated. O’Connor claimed it was because Black did not approve a bad shuffle, like Ondricko had. Black had approved a shuffle, stepped away from the table, after which a dealer sought to put unshuffled cards into play. Before the cards were dealt, however, a new dealer showed up, noticed the error and informed Black who advised the dealer to put shuffled cards into play.
During the conversation, O’Connor also brought up Nakeisha Boyd, a black female, who had a much worse disciplinary record than Ondricko, and who was terminated after supervising a mini-baccarat game where the dealer had trouble removing cards from the shuffler. Boyd assisted the dealer by removing the unshuffled cards and gave unshuffled cards back to the dealer to be put back into play. O’Connor brought up Boyd because he had just fielded questions from Boyd’s attorneys who wanted to know how MGM intended to discipline Ondricko. Then, and for whatever reason, O’Connor added, "do you think I want to fire Kim, I didn’t want to fire Kim, how could I keep a white girl."
Ondricko sued for gender and race discrimination and the trial court threw both claims out on summary judgment. On appeal, the Sixth Circuit Court of Appeals reversed and remanded the case back to the trial court.
Ondricko’s Race Discrimination Claim:
Ondricko argued that her race was a motivating factor in her termination, even though other factors, like the bad shuffle, also motivated her discharge. Therefore, the court reviewed Ondricko’s claims using a mixed-motive analysis, which applies to cases where a plaintiff claims the adverse employment action is the result of a mixture of legitimate an illegitimate motives.
The court picked apart O’Connor’s statement and concluded that a reasonable jury could conclude that Ondricko’s race was a motivating factor in MGM’s decision to terminate Ondricko. The statement was made by the decision maker; it occurred right after fielding questions from a fired black female employee’s attorneys; and O’Connor flatly admitted that he did not want to fire Ondricko, but "how [could he] keep the white girl." Thus, it was reasonable for a jury to conclude that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling, and held that the statement was direct evidence of race discrimination.
With this, the burden shifted to MGM to prove that it would have terminated Ondricko even if it had not been motivated by impermissible discrimination. The court found that MGM failed to meet its burden because it based its decision to terminate Ondricko on an ambiguous policy and because it applied the guideline inconsistently to people of different races.
In coming to this conclusion, the court went back to the MGM’s records regarding Black’s three-day suspension for his shuffling issue and MGM’s argument that Black was merely suspended because he did not "approve" a bad shuffle, like Ondricko did. The problem … MGM’s own company documents stated that Black was disciplined for "approving" a bad shuffle. (That’s a big uh oh).
MGM attempted to further distinguish Ondricko’s situation from Black by arguing that she actively participated in a bad shuffle. This argument, however, was just not logical. It rewarded Black for walking away from the table during a shuffle, which just so happened to also violate MGM’s policy requiring supervisors to observe the entire shuffle, and disciplined Ondricko who stayed at the table. With this, the court reversed and remanded the case.
On Tuesday, the U.S. Supreme Court heard oral argument on Wal-Mart’s appeal of the Ninth Circuit’s en banc decision upholding the certification of a class action gender discrimination lawsuit in Dukes v. Wal-Mart Stores, Inc. As noted by a number of commentators (among them The Wall Street Journal, Forbes, The Christian Science Monitor, and CNN), the tone of the Court’s questioning indicates that the Court is likely to rule in Wal-Mart’s favor.
This appeal stemmed from a federal court’s certification of a nationwide class of female employees of Wal-Mart who were allegedly subjected to discriminatory pay and promotion policies. The class seeks injunctive relief and money damages (back pay) for all women employed since December 1998 in positions ranging from entry-level hourly employees to salaried managers. The class certified in 2004 included 1.5 million women; it currently is estimated to include 3 million women. The district court and Ninth Circuit certified the class after concluding that statistics and sociological expert testimony could allow Plaintiffs to show that Wal-Mart’s culture, when combined with its decentralized decision-making structure, resulted in discrimination against Wal-Mart’s female employees. Those courts approved class certification despite (1) Wal-Mart’s written policy of anti-discrimination, (2) evidence that there was no gender-based pay disparity at 90% of Wal-Mart’s stores, (3) an admission by plaintiff’s expert that he could not say whether discrimination was happening .05% or 95% of the time, and (4) a class that included at least 544 female store managers who would have been both victim and discriminator, under the plaintiffs’ theory.