Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—W.D. Okla.: Black legislative aid, fired after involvement in BLM protest, cannot advance claim, (Jan 22, 2025)

By Marjorie Johnson, J.D.

She acknowledged that the protestors’ behavior violated Oklahoma law and did not dispute that she posted a video tagging one of the organizers to her Facebook page during working hours.

A Black legislative assistant for the Oklahoma House of Representatives who was terminated ostensibly due to her perceived involvement in an unlawful Black Lives Matter protest during a legislative session as well as her documented performance issues failed to defeat summary judgment on her Title VII race discrimination claim. A federal district court found that she failed to create a triable issue as to pretext, rejecting her reliance on a favorable post-termination letter by the chair of the Black caucus and also finding that a white coworker who watched and recorded the protest was not similarly situated since she did not engage in behavior suggesting she was involved in the protest itself (Kimbro v. State of Oklahoma, No. CIV-22-1003-PRW (W.D. Okla. Jan. 16, 2025)).

Performance issues. The Oklahoma House of Representatives hired the legislative assistant on January 22, 2019. In November, one of her assigned representatives submitted a long and detailed list of complaints about her performance to HR, resulting in her reassignment to two different representatives. A month later, her supervisor sent her an email stating that she had engaged in improper behavior by, amongst other things, taking time off without following the proper procedure and submitting late time sheets. Several months later, the director of operations investigated her (and others) for timecard theft. In addition, at some point a constituent left the director a voicemail complaining about the employee’s attitude and lack of professionalism.

Unlawful BLM protest. On April 21, 2021, protestors supporting the Black Lives Matter (BLM) movement entered the gallery of the House while a legislative session was taking place on the floor. Because they shouted profanities and obscenities, they were asked to leave due to the interruption of the ongoing session. The employee left her office to watch and proceeded to take a video of the protest, and when it escalated, she approached some of the protesters and, referring to them by name, asked them to leave. She then posted the video she had recorded onto her Facebook page and tagged an organizer of the protest, all while on the clock. The director subsequently terminated the employee on June 2, ostensibly due to her documented performance issues and her perceived involvement in the unlawful protest.

Section 1981 claims improper. At the outset, the court dismissed the employee’s Section 1981 claims against the state agency since they needed to be brought under Section 1983. Moreover, amending her complaint to reframe them as Section 1983 claims would be futile since the House would be entitled to sovereign immunity.

Reprisal and associational claims fail. The court also granted summary judgment against her Title VII retaliation claim since she abandoned it and failed to show she engaged in protected activity. Insofar as she appeared to also bring an “associational” discrimination claim, that claim also failed. While the parties disputed whether “associational” claims are viable, her claim could not advance since there was no evidence that the BLM movement was relevant to her termination.

Proffered reasons for firing. Turning to her race discrimination claim, the court found that the House met its “exceedingly light” burden of providing legitimate and non-discriminatory reasons for her termination. The record contained evidence of several performance issues that took place throughout her tenure and showed that she had been involved in a protest that violated Oklahoma law and disrupted a legislative session at the House.

Favorable remarks don’t show pretext. Finding that the employee could not show pretext, the court assumed without deciding that she could establish her prima facie case. She first attempted to create a triable issue as to pretext by pointing to a letter written by the chair of the state’s Black legislative caucus which described her as “a great asset” and urged her reinstatement. She also pointed to an email written by one of her assigned representatives which summarized the qualities that her replacement must have, such as an “excellent work ethic,” which she claimed suggested these were qualities she herself possessed.

Significantly, however, there was no evidence that the director who was the final decisionmaker was aware of either of these opinions since both the letter and email were written after the fact. Moreover, she did not dispute any of the performance issues documented throughout her employment. She also acknowledged that the BLM protestors’ behavior violated Oklahoma law and did not dispute that she posted a video tagging one of the organizers to her Facebook page during working hours.

Lack of discipline. The court also rejected her contention that pretext could be inferred because she was never formally disciplined for the performance issues. There was no evidence that the House formally disciplined other staff members for the same or similar infractions or had a policy requiring formal discipline. Moreover, her supervisors did discipline her by reassigning her following complaints about her performance and sending her an email addressing “areas of concern” regarding her violations of the timekeeping policies.

White coworker not proper comparator. She also argued that a white coworker was not similarly terminated even though she also left her office, recorded the protest, and requested that the protesters leave. However, the court found that the coworker was not similarly situated since there was no evidence that she posted her video on social media while on the clock, referred to any protestors by name, or tagged any of the protest organizers in a Facebook post—thereby creating the perception that she was involved in organizing the protest. In addition, there was no evidence that the white coworker had a similar disciplinary history.

No “unwritten” policy. Finally, the record did not support the employee’s contention that the House did not follow its unwritten policy of conferring with her designated representatives prior to her termination. Though she pointed to a remark in the Black caucus chair’s post-termination letter that that she had been terminated “without the proper notification and consent of her Members and without explanation for her abrupt termination,” the letter went on to state that, “As Members have full discretion in the hiring process, [they] would also like to be included in the discipline and termination process.” Thus, the letter did not demonstrate that representatives were usually consulted with prior to the termination of a legislative assistant as it specifically requested such involvement in future termination decisions.

The case is No. CIV-22-1003-PRW.

Judge: Wyrick, P.

Attorneys: Amber L. Hurst (Hammons Hurst & Associates) for Amari Kimbro. Alyssa N. Lankford (McAfee & Taft) for Oklahoma House of Representatives.

Companies: Oklahoma House of Representatives

Cases: RaceDiscrimination Discrimination Discharge Retaliation Procedure PublicEmployees OklahomaNews