Not Safe for Work?

Selling Pornos at Work Might Not be Fatal to Employee’s Claim of Retaliation

You might think that firing an employee for selling pornographic DVDs at work is a pretty air-tight, legal reason to fire someone. But think again.

It is all well and good to have workplace rules and standards. But when those rules and standards are not enforced equally, or when you only care about the “rules” after an employee complains about discrimination, watch out. It is highly suspect when you only take action against a black employee for selling porn videos after he complains about racial harassment from his supervisor and after a concerted, internal sting operation.

That is the lesson of Fisher v. Lufkin Industries, Inc., 847 F.3d 752 (5th Cir. 2017).

Lufkin Industries hired William Fisher in 1991. He received regular merit raises and never received any disciplinary actions. He was promoted in 2005.

Mr. Fisher is black. That should not matter, but apparently it did matter to his supervisor, Steve Saxton. In March 2009, Saxton lashed out at Fisher, angrily yelling, “Boy, I don’t know why every time I come over here it’s a hassle!” Fisher complained to HR that Saxton’s use of the word “boy” was racial harassment. Lufkin investigated, but did not do anything about it because the investigator decided Saxton did not mean anything by it.

But one of Fisher’s white co-workers, David Rhoden, did not like the fact that Fisher complained. A month after Fisher’s complaint, Rhoden took it upon himself to complain about Fisher’s complaint to a supervisor. He also told the supervisor that Fisher was selling DVDs, some pornographic, out of his lunch box at work.

Rhoden and the supervisor decided to play detective. They set up a “sting” operation. The first time Rhoden bought a DVD from Fisher, it turned out to be blank. But the sting must go on! At the urging of this supervisor, Rhoden tried again, and this time there was something on the DVD, which the supervisor said he “thought” was pornographic.

That supervisor, accompanied by Saxton (the one who called Fisher “Boy”), then confronted Fisher. Fisher did not admit or deny selling DVDs on company property, but said he had none that day. And he was curious why it was coming up now. The supervisors searched Fisher’s locker and found a manilla envelope of five DVDs in his locker, including one labeled “Interracial Cherry Poppers XXX,” Fisher pointed to broken hinges on the locker and said that the DVDs must have been planted. When the supervisors asked to search his car, Fisher initially agreed but then said he had to leave to go tend to his wife, who was ill. That day, Fisher was suspended and then fired soon after for “a serious violation of company policy.”

Even though Fisher sold may have sold DVDs at work and lied about it, it turns out that lots of employees had porn at work without any complaint, warning, or discipline. And other employees sold all manner of goods at work without a problem. Plus, there was no clear work rule against what Fisher had done. This evidence, along with the fact that Rhoden made the effort to go back a buy a second DVD showed “an unusual interest” in Fisher’s behavior.

The trial court concluded that Lufkin’s actions were intended as retaliation against Fisher for his protected activity. Still, the court threw Fisher’s case out, saying the termination was justified because he “resisted the investigation by leaving before his car could be properly searched and by lying to his supervisors about his activities.”

By Bobak Ha’Eri (Own work) [CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons

The Fifth Circuit Court of Appeals reversed this decision earlier this year. All that Fisher said and did about the DVDs did not erase the fact that, when this sting operation was put into place, it was for the purpose of getting back at Fisher for making a racial harassment complaint about his boss. The fact that Fisher resisted the investigation did not change that reality – it was entirely foreseeable that he would not cooperate when confronted with the accusation. And so it was not an independent, innocent reason to fire him.

Lesson Learned: The devil is in the details. Mr. Fisher’s lawyer saw the injustice that resulted from an unlawful desire to retaliate against someone who complained about discrimination. Instead of giving up when faced with what seemed to be pretty bad facts, he diligently pursued evidence to show that what his client allegedly did was not outside the norm in this workplace.