November 18, 2021

Manager who referred to mask as "KKK hood" lawfully terminated for "cause"

On November 16, 2021, Employment Law News from WK WorkDay posted the following item by Ronald Miller, J.D.

A manager for an automobile repair business, who referred to respiratory masks as a “KKK hood,” and asked a Black employee if he were offended by the name and whether he wanted to try it on, was lawfully terminated under the terms of an employment agreement, a Florida District Court of Appeal ruled. In so ruling, the appeals court reversed a trial court’s award of damages to the employee for improper termination. Contrary to the trial court, the appeals court determined that the employee’s intent was irrelevant since he was also discharged for his conduct. Accordingly, the employer properly exercised its right to terminate the employee under its harassment policy (Master Collision Repair, Inc. dba Gerber Collision v. Waller, November 3, 2021, Roberts, C.).

“KKK hood” reference. The employer is in the automotive collision repair business. It hired the employee as a market manager responsible for the management of several locations. On March 7, 2018, he was in one of the employer’s stores to conduct fit testing for respiratory masks certain employees had to wear when performing tasks like sanding and painting. While there, the employee repeatedly referred to the respiratory mask as a “KKK hood.” He then asked a Black employee, who worked in the front office and was not part of the fit test group, if he would be offended if the mask was referred to as a “KKK hood” and if he wanted to try it on.

Senior management and human resources were made aware of complaints about the employee’s behavior. HR immediately began an investigation and the store’s general manager confirmed that the employee had asked other employees to put on the “KKK hood.” The employee himself admitted referring to the mask as a “KKK hood” and admitted that he asked the Black employee to try it on, but claimed he was joking. A few days later, the Black employee tendered a resignation letter detailing the employee’s conduct and the distress it had caused him.

After determining that the complaints against the employee were substantiated, the employer notified him that he was terminated for cause under his employment agreement.

Breach of contract claim. The employee sued the employer for breach of contract, arguing he was improperly terminated because he had not received written notice and a 30-day cure period under the terms of the employment agreement. Following a bench trial, the trial court entered judgment in favor of the employee and awarded him severance pay and health benefits for a six-month period. This appeal followed.

The appeals court concluded that the trial court erred in finding the employer improperly terminated the employee without first providing him notice and an opportunity to cure. The employment agreement plainly defined “cause” to mean willful failure and/or gross negligence in the performance of duties or the material breach of the terms and conditions of the agreement. Clearly, the employment agreement provided two separate avenues for the employer to terminate an employee for “cause” based upon a violation of the terms and conditions of the employment agreement. The second provision gave the employer leeway to terminate the employee immediately with written notice of the violation of the terms and conditions of the employment agreement without providing an opportunity to cure.

Under the agreement, the employee was responsible for performing his duties in accordance with employer policies, including the harassment policy contained in the employee handbook. Thus, the trial court erred in concluding that the employer failed to properly terminate the employee.

Employee intent. Similarly, the appeals court concluded that the trial court erred in finding that the employer did not conduct a good faith investigation or assess the ability to cure before terminating the employee. The trial court found the employer failed to investigate the employee’s intent, and without intent, his use of the term “KKK hood” might not be racial harassment. This was error. Rather, the record was clear that the employee was not terminated for words alone, but also for his conduct—he invited a Black employee to try on the “KKK” hood. At any rate, the employee’s intent was irrelevant to the employer’s determination that his conduct constituted harassment as defined under the employer’s harassment policy.

Accordingly, the judgment of the trial court was reversed.

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