Following the June 23rd newsroom editorial meeting, John Jervay, an African American, wrote an email to Phil Metlin and Leslie Tyler explaining that “during the news meeting the word nigger was used by Tom Burlington.” (Defs.’ Mot. Ex. 18.) Jervay’s email used the word twice more in all capital letters. (Id.)
Defendants argue that Jervay simply “accurately reported and described Plaintiff’s offensive use of the word,” so his use of the word was therefore not as serious as Plaintiff’s. (Defs.’ Mot. 21-22.)
But when Plaintiff was asked during the June 29th meeting to explain what had happened in the June 23rd newsroom editorial meeting, Plaintiff’s use of the word provoked an immediate reaction from Ameena Ali and Phil Metlin. Plaintiff testified that Ali said, “I can’t believe you said it again. . . . Don’t you know you can’t use that word?” (Pl.’s Dep. 214:14-23.)
Mirroring Defendants’ explanation of Jervay’s use of the word, Plaintiff replied that he was simply relating what had happened at the editorial meeting, as Metlin had requested. (Id. at 214:25-215:3.) Metlin suspended Plaintiff, although Plaintiff’s suspension had been ordered by Mike Renda before the meeting. (Id. at 216:17-19; Ali Dep. 138:17-139:8.)
Jervay, by contrast, was never disciplined for using the word under almost the same circumstances as Plaintiff during the June 29th meeting.
General Manager Mike Renda’s explanation of this inconsistency was as follows:
Q. And in this email [Jervay] uses the word—the full word nigger three times?
A. Correct.
Q. And is that a violation of Fox policy for him to have done it?
A. He was quoting Tom Burlington in an investigation.
Q. So that it was acceptable for him to do that?
A. We asked him what was said.
Q. And he—my question is: Was it a violation of Fox policy for him to use the word?
A. Not in the context of this investigation.
Q. Earlier I was talking to you about when Ameena Ali questioned Tom Burlington about what he said in the meeting and Tom Burlington used the full word nigger when he recounted what happened, and you said that would be a violation of policy. [. . .]
Q. Let me ask you again. Would it be a violation of policy for Tom Burlington to have used the full word with Ameena Ali when he was asked about the incident? [. . .]
A. It was inappropriate.
Q. My question is—
A. No.
Q. Okay.
A. Well, wait a second. Let me take that back. The fact is that any time you use the word, it is a violation.
Q. Okay. So then looking at this email, was it a violation for John Jervay to type this word, send it in an e-mail and use it three times?
A. I will repeat what I said. No. He was asked to send this as part of the investigation.
Q. Well, you just said that any time that the word is used, it’s a violation of policy. So that’s not true?
A. I stand by what I said.
Q. Well, it doesn’t make sense. Is it always a violation of policy or are there exceptions?
A. We asked John Jervay what happened, and he reported to us.
Q. My question is different. Is it always a violation of policy or are there exceptions? [. . .]
A. I don’t know.
(Renda Dep. 102:23-105:14.)
A reasonable jury could conclude that Renda’s testimony demonstrates that Defendants were unable to draw a principled, non-race-based distinction between Jervay’s use of the word in describing what happened at the newsroom editorial meeting and Plaintiff’s use of the word when he was asked to describe what had happened at the meeting. Plaintiff’s use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay’s use of the word elicited only Defendants’ defense of his actions.
Plaintiff is white. Jervay is African American. Management’s inability to explain why Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.4