It is not enough for an employee who was fired to prove that he is a member of a protected class to establish an employment discrimination claim. On December 3, 2013, the New Hampshire federal court entered summary judgment for Tyco Integrated Cable Systems, Inc. against Greg Hubbard’s claims of employment discrimination and retaliation. The judge provided a thorough analysis of what it takes for an employee to reach a jury on a claim of employment discrimination.
Hubbard spent his childhood in England and speaks with a British accent. He claims the discrimination was based upon his national origin. In the Fall of 2007 he began working for Tyco as a T3 Operator, which is an entry-level position. By November 2007 he had been promoted to the position of a T1 Inspector. Hubbard claimed that the reason for his firing for insubordination was a pretext for discrimination against him because he was English. The Court pointed out that it defies logic to argue that the same company that hired Hubbard and rapidly promoted him while knowing him to be English would then discharge him because he was English. The Court noted that Hubbard’s insubordination was because he made contact with an employee after being given direct instructions not to do so and for what the company deemed as inappropriate, intimidating remarks to a member of management. Hubbard was unable to provide evidence that those who decided to terminate his employment would not have done so but for his contact with that employee after being instructed not to contact that person.
There was evidence that fellow employees of Hubbard, in large part because of his supervisory capacity as an inspector, did make derogatory remarks about his national origin referring to him as “an English idiot” and similar negative comments which referred to his national origin. The Court did find that evidence of the co-workers’ remarks were sufficient to allow a claim of hostile work environment by co-workers to go to the jury, but not to allow Hubbard to argue that the decision makers at Tyco fired him due to their discriminatory animus against people of English origin. The Court noted that it was a close call as to whether or not his co-workers’ national origin slurs were actually based upon him critiquing their work because he was an inspector and therefore were based upon his supervisory role rather than his national origin. In other words, the judge left it to a jury to conclude whether or not Hubbard was harassed because he was an inspector and his national origin was simply a tool his harassers could use to intensify their verbal attacks against him. The Court was asked by Tyco to rule that the alleged abuse/hostile work environment was not so severe or pervasive that it altered the conditions of employment or created an abusive work environment. The Court noted that employment discrimination laws did not create a general civility code for the workplace and noted that the workplace is not a cocoon and those who labor in it are expected to have reasonably thick skins and to survive the slings and arrows that workers routinely encounter in a hard, cold world. In this case, Hubbard for a span of several months was subjected to daily verbal abuse from one of his co-workers and then physically confronted “chest to chest” by that co-worker. Hubbard produced evidence that after that confrontation he began taking half days off from work due to the stress engendered by the harassment he was enduring. The Court noted that Hubbard’s ability to demonstrate that he was subjected to severe, pervasive harassment that altered the conditions of his workplace was a close call, but that he would allow it to go to a jury. However, the wrongful termination claims that he was fired because of national origin discrimination and/or retaliated against through the firing based upon his complaints of national origin discrimination would not go to a jury leaving Hubbard a smaller case for the jury to consider.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].