First Circuit Reinstates Racial Discrimination Case with Disturbing Fact Pattern

Employment lawsuits come in all shapes and sizes, but they tend to have one thing in common: at some point the employer will ask the court to dismiss the case. The employer did just that in Joseph v. Lincare, Inc., and the court granted the request. On March 2, 2021, the First Circuit Court of Appeals reversed that decision and reinstated Mr. Joseph’s case. You can read the appeals court opinion here.

Jeffrey Joseph, a black male, began working for Lincare in January of 2017 as a sales representative. In early March of 2017, Mr. Joseph got into an altercation with Patrick Butcher, the owner of a Lincare customer named Kennebunk Walk-In Clinic, in which Mr. Butcher allegedly got in Mr. Joseph’s face, screamed to him “get out, get out, get out,” and got so close to him that his spit hit Mr. Joseph in the face. Mr. Joseph filed a police report and told Lincare he felt Mr. Butcher was discriminating against him due to his race. Mr. Joseph then called Mr. Butcher in an attempt to repair the relationship. Those efforts were unsuccessful.

Later that day, Mr. Butcher called Dennis Lizotte, a Lincare manager, to complain about Mr. Joseph, allegedly referring to him as a “rasta looking sales rep,” a description that makes Mr. Lizotte feel “taken aback.” Mr. Butcher demanded that Mr. Joseph be fired. Mr. Lizotte refused to accede to that demand because he felt these allegations were likely overblown because they were out of character for Mr. Joseph.

Mr. Butcher furthered his demand by sending a letter to eight Lincare executives. In his letter, Mr. Butcher identified Mr. Joseph by his full name and described him as about 6 feet 4 inches, mid 30's African American with what seems to be a Jamaican accent. Mr. Butcher stated in the letter that he would wait until March 31, 2017, for Lincare to respond, and threatened Lincare with taking legal action, contacting the media if Lincare did not agree to some sort of mutually agreeable settlement.

At that point, Tarrah Filo-Loos, then a division manager for Lincare, intervened and asked Mr. Lizotte why he had not fired Mr. Joseph. Mr. Lizotte explained that he did not believe Mr. Joseph would pose a continuing problem for Lincare in the future and that the alleged conduct was out of character for Mr. Joseph. Nevertheless, Ms. Filo-Loos convinced Mr. Lizotte that Mr. Joseph should be fired. Lincare eventually folded and fired Mr. Joseph. Mr. Joseph filed suit, had his case dismissed, and appealed the dismissal to the First Circuit. The First Circuit reversed the dismissal and corrected the trial court on two important grounds.

First, the First Circuit reversed the trial court’s decision to exclude the following documents from the evidentiary record: (1) a written statement from a Lincare supervisor, (2) email printout from Lincare’s system, (3) handwritten notes, and (4) a document on Lincare letterhead. Lincare did not claim when it produced these documents that they were unauthentic or not what they appeared to be. According to the First Circuit, the trial court erred when it held that Mr. Joseph had not done enough to prove these documents were authentic and had been mistaken when it did not evaluate them when deciding whether to dismiss Mr. Joseph’s claim.

Second, the First Circuit held that consideration of these documents tipped the scale in Mr. Joseph’s favor and ordered the trial court to reinstate his case. In doing so, the First Circuit held that the evidence, when taken as a whole, shows Lincare offered different explanations for Mr. Joseph’s termination, including that he disobeyed a direct order from Lincare not to contact the customer again, noting that an employer’s changing explanations for a termination, in this situation, rendered dismissal inappropriate.

Mr. Joseph will get his “day in court,” where he will try to prove that Lincare acted with racial bias when it agreed with Mr. Butcher’s racially hostile perspective that a 6’ 4” black man with an accent is someone to fear.” In moments like these, I think we all need to ask ourselves: Would Mr. Butcher have acted the same way if Mr. Joseph were white?