The owner of a company tells an employee “I cannot believe you played the race card … when I found out that you played the race card, the first thing I said was for them to fire your ass….” A month later, the company fires the employee. It seems like a clear case of retaliation, right?
Apparently not, according to a decision by the Ohio Eighth District Court of Appeals in a Cleveland employment discrimination case issued today.
James Robinson, an African-American employee at Quasar Energy Group in the Collinwood neighborhood of Cleveland, believed his white supervisor Clemens Halene was mistreating him due to his race. On August 2, 2012, Robinson asked Halene whether he spoke down to Robinson “because he was black.” The next day, Robinson met with human resources to discuss the conversation. When he did, however, he told human resources he did not think race was a factor in Halene’s mistreatment. Robinson later claimed he said that because he feared losing his job.
The same day Robinson spoke with human resources, he got a visit from Quasar’s owner, Mel Kurtz. Kurtz apparently told Robinson: “I cannot believe you played the race card … when I found out that you played the race card, the first thing I said was for them to fire your ass….” About a month later, Quasar Energy did fire Robinson.
Robinson then sued Quasar and Kurtz in Cuyahoga County Common Pleas Court, alleging, among other things, illegal retaliation for complaining of employment discrimination. The trial court granted summary judgment to the defendants, throwing the case out. Yesterday, the Ohio Eighth District Court of Appeals in downtown Cleveland affirmed.
Like federal law, Ohio law makes it an unlawful discriminatory practice to retaliate against an employee who has engaged in what is called “protected activity.” Protected activity can take several forms, but the most common is complaining about employment discrimination. It does not matter whether discrimination has actually occurred. As long as the complaining employee had a good faith belief it occurred, the employee is protected from retaliation. These claims are also sometimes referred to colloquially as “whistleblower claims.”
In the Robinson case decided today, the Court held that Robinson did not engage in protected activity, and so he was not entitled to protection from retaliation. The Court held that Robinson’s inquiry to Halene whether he was being demeaned “because he was black” was not protected activity because it was “too vague.” In addition, the Court found significant Robinson’s statement to human resources that he did not believe race was motivating his poor treatment. Thus, despite Kurtz’s pretty explicit statement that he wanted to fire Robinson for “playing the race card,” the Court held Robinson’s retaliation claim failed.
This case offers a giant flashing warning for Cleveland employees: if you complain about discrimination, be clear that you believe you are being discriminated against on the basis of whatever protected classification you believe is at issue. Had Robinson been more explicit, and had he not backtracked to human resources, I suspect his case would not have been thrown out.
Fear of being fired for speaking up about employment discrimination is understandable. However, Ohio law provides strong protections for employees who do speak out (as long as they do so clearly enough), and serious consequences for employers who retaliate against them. If you feel you have been retaliated against for blowing the whistle on unlawful discrimination, contact an experienced Cleveland employment discrimination lawyer right away.