The Volokh Conspiracy
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Case Alleging Race-Based Firing of White Male Manager Accused of Physical Misconduct by Black Female Employee Can Go Forward
From Thursday's decision by Judge Clifton Corker (E.D. Tenn.) in Williams v. Alkermes, Inc.:
Defendant Alkermes, Inc. is a large pharmaceutical company with a principal place of business in Waltham, Massachusetts. Plaintiff Travis Williams worked as Defendant's District Sales Manager in Knoxville, Tennessee for approximately thirteen years, selling a drug known as Vivitrol. In March 2023, Plaintiff and other District Business Leaders ("DBL") attended Defendant's national sales team meeting in Orlando, Florida. At the afternoon session on March 2, 2023, approximately 50 to 60 employees competed in a team-based game. During the game, referred to as the "Amazing Race," each DBL received a small paddle, the host of the game asked questions, the teams wrote their answers on the paddle, and the DBLs raced to an "X" at the front of the room. The goal of the game was to be the first one to stand on the X with the correct answer on the paddle.
Following the afternoon session, Jodi Garcia, a fellow DBL, reported to Michael Bauer, Defendant's Senior Regional Director, that Plaintiff "paddled her bottom" during the Amazing Race game. Ms. Garcia indicated that Johanna Hernandez, a Territory Business Manager, witnessed the incident. Mr. Bauer relayed Ms. Garcia's allegation to Stephanie Walker, Defendant's Director of Human Resources, but advised that he did not witness the alleged incident and did not see any inappropriate act by Plaintiff toward Ms. Garcia.
Four days later, Ms. Walker interviewed Ms. Garcia via telephone. Ms. Garcia stated, "In the hype of the game, we were all having fun running up and trying to beat out their counterparts; some light pushing, and shoving occurred by all the DBLs and the feeling in the room was fun competition" but added, "Travis hit me on the bottom with the white board and I turned to him and said, 'What the [f***] did you just do?' 'If my husband were here, he would [f***] you up.'" Ms. Garcia reiterated that Ms. Hernandez saw and heard what happened. Shortly thereafter, Ms. Walker interviewed Ms. Hernandez, who "claimed to have heard the sound of the paddle strike Garcia on the buttocks, recognizing the noise of the paddle on Garcia's bottom because [she] wore a jumpsuit rather than jeans." Ms. Hernandez also referenced that Ms. Garcia was the "only female DBL in leadership" but made no mention of seeing or hearing any confrontation or any cursing by her.
Within hours of the interviews, 12 of Defendant's executives received an anonymous email with the subject line "Sexual Harassment." The email, from a source named "Very Concerned" and the email address hopeispossible7@gmail.com, addressed the allegations against Plaintiff. The email alleged that Plaintiff "sexually assaulted and groped" Ms. Garcia, "slapped her in the derriere and then grabbed and squeezed her[,]" "put his arms around her neck and pulled her in very close to him," and was "so aggressive in front of a crowd."
The email additionally "taunt[ed] the all-white executives, predicting they would discriminate based upon race because [Plaintiff] was white, and Garcia black." Specifically, it stated, "I am certain that this will be glossed over because Mr. Williams is a white male and part of the 'good old boy Network'" and that Plaintiff "compounded the situation tenfold since Mrs. Garcia is a woman of color" and was "just trying to assert his authority and dominance over her." Although the email claimed to be from a witness, Plaintiff asserts that it was sent by or at the behest or goading of Ms. Garcia. Kimberly Mikitka, Defendant's Human Resources Business Partner, forwarded the email to Ms. Walker and Defendant's legal counsel Paul Dubois. Ms. Mikitka noted, "I know Stephanie is currently investigating this situation. Wanted to share this email. I haven't been able to reach Steve yet."
The next day, Defendants interviewed Plaintiff over the phone. Plaintiff denied doing anything inappropriate, but he alleges that Defendant led him to believe that the allegations involved the jostling, or "light pushing and shoving," during the Amazing Race game and withheld key details of the allegations to shape the result. Defendant announced Plaintiff's termination on the call, but he alleges that the decision had already been made prior to the phone call. On March 7, 2023, Defendant sent Plaintiff a post-interview letter stating that he was "guilty of 'unacceptable and unwanted physical touching of a colleague at a work event.'"
Plaintiff alleges that Defendant relied on "flatly contradictory, exaggerated, unreliable, and inconsistent evidence" in making its termination decision and, in truth, "purposely chose the optics of terminating [him] because he is a white male." Plaintiff further contends that, in the aftermath of George Floyd's death and the rise of Diversity, Equity, and Inclusion ("DEI") initiatives, Defendant "abandoned its race-neutral process in favor of appearances" and "sacrificed [Plaintiff], the white male, instead of addressing the harder known truth of discrimination by a black employee, Garcia." In sum, Plaintiff alleges that Defendant "was baited by race and gender and knowingly acceded to it."
Following his termination, Plaintiff alleges that Ms. Garcia and Defendant tried to ruin his career and reputation. He asserts that Ms. Garcia distributed a hand paddle at the next national sales meeting to mock how she got Plaintiff fired. And he alleges that Defendant fired Mr. Bauer after he made a negative comment on an open call about Ms. Garcia's allegations. Finally, he asserts that he received anonymous Facebook and text messages taunting him and that an unknown user has posted numerous times about him on the CafePharma online message board. He believes that the messages and posts were written or prompted by Ms. Garcia.
Plaintiff sued for, among other things, discrimination, and the court allowed that claim to go forward:
Plaintiff's Amended Complaint contains sufficient factual allegations from which a reasonable inference can be drawn that Defendant did not fully investigate complaints of misconduct and made the decision to terminate him because he was a white male.
The court didn't go into detail on what those factual allegations may be, but here's an excerpt of Williams' response to the motion to dismiss, which describes some of the allegations—remember that at this point they are just allegations, not demonstrated facts, and are relevant because they show the sort of allegation that is seen as sufficient to allow the claim to withstand a motion to dismiss (you can also read Alkermes' brief and reply):
Anticipating Defendant would attempt a motion to dismiss for insufficient factual pleading, in paragraph 51, Plaintiff sets forth facts and inferences leading to the inexorable conclusion that Defendant deliberately chose to honor Garcia's false allegations rather than take the uncomfortable step of addressing false allegations by a black female:
- There was no game interruption whatsoever despite claims of Garcia cursing out Williams and being "so aggressive in front of a crowd."
- Williams and Garcia's superior, Bauer, saw nothing of the sort alleged by Garcia.
- Williams' table was nowhere near Garcia's table. Garcia claimed the events happened at the "front of the room." However, Alkermes failed to speak to more than a dozen personnel at the front of the room, all who deny the false allegations with the paddle, and groping, and putting hands around a neck, and all would have certainly seen and heard Garcia's volatile reaction had it actually occurred (and it did not).
- Human Resources conducted no investigation on site on March 2, 2023, even though Garcia made her false allegation at that time. {The Human Resources Manager, Stephanie Walker, was on site at Orlando.}
- The three "witnesses" consisted of Garcia, a person who reported to Garcia, and an "anonymous" email obviously linked to Garcia. But even then, these "witnesses" told vastly different stories within hours.
- Alkermes ignored, or did not seek, information showing the link of the "anonymous" emailer to Garcia—perhaps because it was so obvious in timing and scope of information.
- Alkermes never returned to Garcia (or Hernandez) to explain the obvious and gross inconsistencies in the information received within hours of their interviews.
- By this point, Alkermes surely realized the discrimination was against Williams, not by Williams.
- Alkermes decided to terminate Williams before even speaking to him. By design, Alkermes was choosing to support a black female it reasonably knew was engaged in discrimination rather than to confront her and face the race-baiting accusations that Alkermes' will bow to the white male.
- Alkermes failed to disclose details to Williams to support its already-made decision by not presenting the actual allegations: the sexual assault, the groping, the squeezing, the grabbing by the throat.
- Thus, Williams was not allowed to present the strident racial views of Garcia, to present evidence to the contrary, to offer witnesses of his own, or photographs, or the Facebook messages, or information bearing on Garcia's lack of credibility….
But the court rejected plaintiff's retaliation claim:
Here, the only protected activity Plaintiff engaged in was filing the EEOC charge. And the only alleged harassment or retaliatory conduct that took place after that filing was a post on CafePharma's online message board stating, "Think they'd hire someone who got fired for assault like T.W?." To the extent the foregoing post could be categorized as retaliatory, it was anonymous. Thus, even if Plaintiff is correct in his belief that Ms. Garcia wrote or prompted the post, there are no facts to support the allegations that Defendant condoned, tolerated, or encouraged the post or that Defendant's response, or lack thereof, was unreasonable.
