A recent case has shown the importance of making sure that supervisors and managers are properly trained on documenting performance problems and personnel decisions.
Turner, who is African American, was hired by McGraw-Hill Global Education Holdings, LLC, in February 2007. As a sales representative, he sold educational products, including textbooks, to instructors and administrators at colleges in Florida. His base salary was $59,384.
Seeking a promotion, he applied for three internal learning solutions consultant (LSC) positions. He was interviewed for a position in St. Louis, Missouri, by Maya, the vice president of Learning Solutions, and Emma, the Learning Solutions manager for the Central Region. Turner left the interview with the impression that he would receive a starting salary of $95,000.
Eventually, he was offered the position—but at a salary of $85,000. When he questioned whether the reduction was due to his race, Emma told him to “[t]ake it or leave it.” He accepted the offer.
Three of the other five LSCs who reported to Emma had starting salaries ranging from $83,600 to $85,000. The remaining two started at a higher salary. All five were white.
While transitioning to his new position, Turner was expected to continue performing his sales representative duties. His request for a “spot bonus” to compensate him for the dual role was denied.
McGraw-Hill noted that the LSC with the $83,600 starting salary also had worked both her sales and LSC jobs during her transition to LSC—without additional compensation. Turner later alleged that there was no evidence that she was required to perform both jobs, and even if there were, he had to travel more and his workload was heavier because of the time of year he was promoted.
Turner told HR about the alleged reduction in salary and the requirement to continue in his sales rep duties while transitioning to LSC.
McGraw-Hill found Turner’s work as an LSC to be deficient. Emma said sales reps complained to her about Turner’s arrogant and offensive manner and his tardiness.
Maya and Emma discussed the alleged performance deficiencies with Turner on January 7, 2012. In a follow-up e-mail, Emma directed Turner to be punctual to meetings with sales reps and customers, to work all day on college campuses with the reps, and to respond to reps’ phone calls and e-mails within 24 hours, among other things.
On March 8, 2012, Turner received a written warning. It identified specific examples of his problems communicating and working with others, including his “hostile and condescending tone” and belligerent behavior. The warning also listed punctuality and attendance issues, delays in responding to phone calls and e-mails, failing to complete trip reports, and relying on others to complete large projects.
Specified actions to improve his performance included copying Emma on all of his communications with customers and colleagues and checking in with her on his plans for the upcoming week and his accomplishments each day. The warning noted that failure to meet the outlined expectations would lead to additional disciplinary action, including possible termination. Turner was subsequently informed in phone calls and e-mails that he was not meeting those expectations.
Turner provided explanations for his behavior, refuted some of the allegations against him, and said some of the expectations were overly burdensome.
He claimed that he had overheard Emma talking about him on January 31, 2012, when she allegedly said, “I wish I had never hired his black a**.”
Emma denied having made that comment. Turner also contended that Emma and his direct supervisor intentionally interfered with his working relationships with sales reps.
McGraw-Hill fired Turner on April 26, 2012, citing “poor performance.” In filing suit against the company, he alleged that he was unfairly compensated, subjected to a hostile work environment, and wrongfully discharged due to race and in retaliation for protesting about disparate treatment. The district court granted McGraw-Hill’s motion for summary judgment. Turner appealed to the U.S. Court of Appeals for the 8th Circuit, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
What The Court Said
The appeals court affirmed, agreeing with the lower court that even if Turner could establish a prima facie case of discrimination based on two white LSCs being paid a higher starting salary than his, he did not show that the LSCs were “similarly situated” to him, because they had prior experience in that role at competitor organizations and were assigned to different territories within McGraw-Hill. In addition, the court said Turner did not show that the company’s proffered reason for firing him (i.e., poor performance) was pretext for discrimination.
The appeals court also disagreed with Turner’s contention that the district court had erred in ruling in favor of McGraw-Hill on his hostile work environment claim, noting “the one race-related comment that … [Turner] allegedly overheard does not constitute harassment sufficiently severe and pervasive to support a hostile work environment claim.”
Stone v. McGraw-Hill Financial, Inc., et al. (No. 15-3299) (U.S. Court of Appeals, 8th Cir., 5/15/17)
This case demonstrates how employers can successfully defend themselves in court when performance problems and promotion decision