Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—M.D. Tenn.: Airport authority employee fired after ‘hypothetical’ complaint to HR gets trial on race-based claims, (Feb 11, 2025)

By Kathleen Kapusta, J.D.

The assistant vice president, reprimanded days after requesting intermittent FMLA leave, also advanced his FMLA retaliation claim.

The Metropolitan Nashville Airport Authority must defend at trial the Title VII and state-law race discrimination claims asserted by a Black assistant vice president of risk management who was told he was not a “cultural fit” and fired days after presenting a “hypothetical” question to HR about filing a complaint against a supervisor. The employee’s hostile work environment claim also survived summary judgment as did his FMLA retaliation claim—he was reprimanded less than a week after he requested intermittent leave and was told at the time of his request that it would be difficult for him to “get things done” if he planned to be out of the office regularly (McDonald v. Metropolitan Nashville Airport Authority, No. 3:22-cv-00514 (M.D. Tenn. Feb. 6, 2025)).

The employee began working for the airport authority in April 2019 overseeing its risk management programs. He initially reported to the authority’s general counsel but then began reporting to the CEO and, in September 2019, to the chief administrative officer (CAO). Both the CEO and CAO are white.

Concerns? In fall 2019, the CEO and CAO discussed with the employee concerns about the quality of his work and his compliance with the authority’s attendance and remote work policy. Nonetheless, the employee received a good performance review in January 2020 and was commended for doing “an outstanding job in the risk management area.”

Around that same time, he purportedly told the assistant VP of HR that he felt the CAO was discriminating against him by, among other things, disparately limiting his remote work, telling him he could not attend board meetings unless presenting while allowing his white peers to attend without restrictions, and repeatedly denying his request for additional support while providing more resources to his white colleagues. The employee also complained that the work environment was “not racially friendly.”

Reprimand. About a week later, the CAO issued the employee a written reprimand regarding his work and attendance issues. In a lengthy response, the employee expressed dissatisfaction with his treatment, noting that “The optics are obvious. The inequities are visible.” At a follow-up meeting, the employee told the CAO he felt there were some hostilities due to his race. In response, the CAO replied, “I take offense... it sounds like you are calling me a racist.” In June 2020, the employee received a 3.2 out of 5 in a performance report.

Intermittent leave. In early September, the employee requested and was granted intermittent FMLA leave. When he informed the CAO, she expressed concern about his ability to “get things done” if he planned to be out of the office regularly. Less than a week later, the CAO issued the employee another written reprimand. In his response to this one, the employee noted the “constant harassment, bullying, and hostility” and mentioned that he was a Black professional. The CAO again told the employee she felt like he was “calling her racist.”

Hypothetical. In October, the employee met with the HR manager to discuss a “hypothetical” question about filing a complaint against a supervisor. He also mentioned many of the issues he had already complained about. He was fired three days later, for not fitting with expectations and not being a “cultural fit.” He was replaced by an independent contractor and later by another individual, both of whom were white.

Race discrimination. In arguing that it was entitled to summary judgment on the employee’s race discrimination claims arising out of his termination, the authority pointed out that his job duties were outsourced to a private risk management firm after his termination and that there were no similarly situated nonminority employees because all the assistant VPs who reported to the CAO were also Black.

In response, the employee contended that the head of the firm, who was white, was hired as the consultant and he assumed the risk management job functions. He also argued that he was treated differently than his “white professional peers.” Noting that the employee had to show he was replaced by someone outside the protected class or was treated differently that similarly situated employees, the court found he sufficiently established that he was replaced by someone outside the protected class and, thus, this element of his prima facie case was satisfied.

Pretext. The authority next argued that it terminated the employee based on his failure to meet its expectations for his risk management role. Claiming this was pretextual, the employee pointed out that the authority did not raise any specific performance issues as grounds for termination at the time. Rather, he claimed, the authority told him he was being terminated because he was “not a cultural fit” for the organization and the CAO expressed “concern[s] that [he] viewed [her] as racist.”

Finding fact disputes concerning the reasons given for his discharge at the termination meeting and evidence that the reason given for his termination changed, or at least was fortified, over time, the court denied summary judgment on this claim.

Hostile work environment. As to the employee’s hostile work environment claim, the authority argued that there was no evidence of racial slurs so the employee could not show the alleged harassment was based on race. But rather than basing his claim on racial slurs, the employee pointed to an alleged pattern of conduct to which his white peers were not subjected, including limitations on his remote work, restrictions on his attending board meetings, denial of requests for staff and resources, micromanagement, increased job scrutiny, unjustified written reprimands, and being spoken to in a condescending, hostile, and unprofessional manner.

Denying summary judgment on this claim as well, the court explained that a reasonable jury could find the conduct occurred as described by the employee, it was based on race because nonminority professionals were not subjected to the same treatment, and the cumulative effect of these individual acts resulted in the employee being unable to perform his job.

Retaliation. Arguing next that he had direct evidence he was terminated in retaliation for complaining of race discrimination, the employee pointed to the CAO’s alleged statement during the termination meeting that the authority was moving on because: ‘Well, I had some communication with Chandra … I’m really concerned that you view me as a racist or think I’m being racist.’” Declining to decide whether this was direct evidence, the court found the employee “unquestionably also presents circumstantial evidence of retaliation.”

Indeed, said the court, the employee engaged in protected activity when, in his responses to the letters of reprimand, he raised complaints of discrimination. And even if those complaints were insufficiently specific to constitute protected activity, there was no question his meeting with the HR manager days before his termination qualified. Her subsequent memorandum to the CAO, the court observed, indicated that although the employee presented his complaints as a hypothetical, it was apparent he was talking about himself.

Further, noting that the employee was fired three days after this meeting, a reasonable jury, said the court, could disbelieve the CAO’s testimony that the termination decision had been made months earlier. Accordingly, this claim could also advance.

FMLA retaliation. Nor was the authority entitled to summary judgment on the employee’s FMLA retaliation claim, said the court, noting the written reprimand he received six days after he requested leave would dissuade a reasonable worker from exercising his rights. In addition, the court pointed to the CAO’s comment about the employee’s ability to “get things done” if he planned to use FMLA leave regularly. Further, said the court, a reasonable jury could find that the authority’s proffered reason for issuing the reprimand was pretextual.

The case is No. 3:22-cv-00514.

Judge: Campbell, W., Jr.

Attorneys: Brian Christopher Winfrey (Winfrey Employment & Civil Rights) for Edward K. McDonald. Darius Walker, Jr. (Ogletree Deakins) for Metropolitan Nashville Airport Authority.

Companies: Metropolitan Nashville Airport Authority

Cases: RaceDiscrimination Discrimination Retaliation Discharge EmployeeLeave TennesseeNews