Title VII Race Discrimination Dismissal Affirmed; Termination For Controversial Social Media Posts Was Not Unlawful Discrimination

A recent case, Ellis v. Bank of New York Mellon Corp., 2021 WL 829620 (3d Cir. March 4, 2021), involves an increasingly-common scenario: an employee of a (non-public) employer suffers a negative job action due to their outside-work social-media posting(s).

In this case, the plaintiff (who is white) was terminated following her alleged Facebook post concerning protests in light of the Antwon Rose shooting.

While the National Labor Relations Act may protect private-sector employees who use social media to engage in conduct protected by that law, the plaintiff here pursued her claim under Title VII of the Civil Rights Act of 1964, which required her to demonstrate that she suffered an adverse employment action because of her race.

In general, in order to prevail under Title VII, courts apply a three-step burden-shifting framework. First, the plaintiff must establish a prima facie case of discrimination; if they do so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer’s action; if they do so, the burden shifts back to the employee to demonstrate that the stated reasons were a “pretext” for discrimination.

To make out a prima facie case, plaintiff was required to show: (1) she is qualified for her position, (2) she suffered an adverse employment action, and (3) the adverse employment action gave rise to an inference of unlawful discrimination.

Plaintiff failed to make out a prima facie case; while the first two elements were undisputed, this case turned on the “inference of unlawful discrimination” element.

Plaintiff attempted to meet this burden by relying on “comparator evidence,” namely, by identifying two black BNY Mellon employees who, like plaintiff, shared controversial social media posts. She reasoned that the employer’s decision to retain those two employees, while firing her, was evidence of discrimination.

The court rejected this argument, reasoning:

But to support an inference of discrimination, a comparator must be “similarly situated” to Ellis in all material respects, and neither purported comparator satisfies that standard. In re Tribune Media Co., 902 F.3d 384, 403 (3d Cir. 2018) (citation omitted). What matters most is that Ellis’s social media post was far more egregious—and far more likely to harm BNY Mellon’s reputation. In response to a news story about a man who faced criminal charges for driving his car into a crowd of protesters, Ellis commented: “Total BS. Too bad he didn[’]t have a bus to plow thr[ough].”

Neither supposedly-similar employee said anything as extreme. One expressed frustration with a white co-worker but did not threaten that co-worker with violence, let alone serious bodily harm or death. The other opined that men who hurt women should commit suicide. Though inappropriate and ill-advised, neither post encouraged mass violence against protesters, as Ellis’s did. Thus, no reasonable jury could find Ellis’s conduct comparable to that of her former colleagues.

Other material distinctions further separate Ellis from the supposed comparators. As the District Court recognized, the two black employees “worked in different positions, in different departments, had different responsibilities, and reported to different supervisors than Ellis did.”

Ellis counters that none of these differences matter because all BNY Mellon employees must adhere to the same social media policy. This argument might carry some force if the policy prescribed standard punishments, regardless of who a violator is or where she works, but instead it gives decision-makers “broad discretion” over how to discipline employees. That leaves open the possibility that Ellis’s position, department, or responsibilities factored into BNY Mellon’s decision to fire her. And it is Ellis’s burden, not BNY Mellon’s, to dispel this possibility and establish that the purported comparators are, in fact, comparable. Having failed to do so, and having presented no other evidence of discrimination, Ellis cannot support a prima facie case. [Citations omitted; paragraphing altered; cleaned up.]

Accordingly, the court affirmed the district court’s grant of summary judgment in the employer’s favor.

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