Mobile Prevails in Tattoo-Related Discrimination Case

The US District Court for the Southern District of Alabama has upheld the termination of a Mobile firefighter in 2022. Kay’Ana Adams filed suit last year alleging race, gender, sexual orientation and religious discrimination; hostile work environment; retaliation; and violation of the Equal Protection clause of the 14th Amendment. Here is earlier coverage.

Adams alleges she was subjected to numerous incidents of discrimination and harassment, culminating in her being singled out over a new tattoo that violated department policy. The district court saw it differently, painting a picture of a new firefighter who filed multiple complaints against colleagues and supervisors; who was advised by a mentor not to get the new tattoo until off probation and told the mentor that she was confident she would be able to get another job elsewhere; and just days after being disciplined initially for the tattoo claimed protected status as a Muslim in order to wear a hijab. Quoting from the decision:

• Kay’ana Adams is a homosexual, African American female.
• Adams also alleges she has been a practicing Muslim since early 2022.
• [She was initially found to be in violation of the department’s grooming/tattoo policy on September 8, 2022] and that, as a result, her probationary period [was] extended six months (September 11, 2022, extended to March 11, 2023).
• On September 11, 2022, Adams requested a religious accommodation from MFRD to wear a hijab.
• Adams wanted an “opportunity to actually practice a religion that fascinated [her] the most at that time.”
• Adams began exploring Islam after she acquired some Muslim friends and began practicing Islam in early 2022.
• However, Adams had never been to a mosque and was not able to recall the name of the central religious text of Islam (i.e., the Quran) at the time of her deposition.
• Adams’s complaint alleges seven causes of action: (1) discrimination on the basis of race, sex, sexual orientation, and/or religion under Title VII; (2) hostile work environment on the basis of race, sex, sexual orientation, and/or religion under Title VII; (3) retaliation under Title VII; (4) race discrimination in violation of Section 1981 under Section 1983; (5) hostile work environment on the basis of race in violation of Section 1981 under Section 1983; (6) discrimination on the basis of race, sex, sexual orientation, and/or religion in violation of the Equal Protection Clause under Section 1983; and (7) hostile work environment on the basis of race, sex, sexual orientation, and/or religion in violation of the Equal Protection Clause under Section 1983.
• The City moves for summary judgment as to all claims asserted by Adams.
• [Under the McDonnell Douglas Burden shifting framework] If a plaintiff makes a prima facie showing of discrimination [Step 1], the burden shifts to the defendant [Step 2]. The defendant can rebut the presumption “by offering evidence of a valid, non-discriminatory justification for the adverse employment action.” If the defendant rebuts the presumption, the plaintiff must demonstrate that the defendant’s proffered reason was “merely a pretext for unlawful discrimination.” [Step 3].
• Neither party disputes that Adams is a homosexual, African American female and that she was fired. Neither party disputes that Adams was qualified to be a firefighter. Thus, Adams has shown “(1) that she belongs to a protected class, (2) that she was subjected to an adverse employment action, (3) that she was qualified to perform the job in question.” The remaining burden for Adams on Step One is showing “(4) that her employer treated ‘similarly situated’ employees outside her class more favorably.”
• This requires Adams to present “evidence of a comparator.” A comparator is someone who is “similarly situated in all material respects.” Although this is “a high bar to meet,” “the plaintiff and her comparators need not be ‘similar in all but the protected ways.'”
• “An employer is well within its rights to accord different treatment to employees who are differently situated in ‘material respects’—e.g., who engaged in different conduct, who were subject to different policies, or who have different work histories.”
• The all-material-respects standard “leaves employers the necessary space to make appropriate business judgments.”
• Here, Adams offers evidentiary support for three comparators.
• Because the four [Adams and the three comparators who were disciplined for tattoo violations] were subject “to the same employment policies, we must examine whether their conduct and respective punishments were similar.”
• “An employer is well within its rights to accord different treatment to employees who are differently situated in ‘material respects’—e.g., who engaged in different conduct, who were subject to different policies, or who have different work histories.”
• Adams has failed to show that [any of the other three firefighters were] treated more favorably than her regarding the extension of her probationary period.
• None of Adams’s offered comparators engaged in similar conduct as Adams did before her termination.
• Adams has not presented a prima facie case of discrimination for the termination of her employment.
• Apart from the McDonnell Douglas framework, an employee can still survive summary judgment by presenting a “convincing mosaic” of “circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent.”
• This requires “enough evidence for a reasonable factfinder to infer intentional discrimination in an employment action—the ultimate inquiry in a discrimination lawsuit.”
• In Adams’s argument of a convincing mosaic (and pretext), Adams throws allegations and facts against the wall and leaves it to the Court to try and discern what inferences a reasonable factfinder might make from them.
• This approach is ineffective in meeting Adams’s burden.
• An employee shows pretext by casting sufficient doubt on the employer’s offered nondiscriminatory reason for taking the employment action.
• The City argues that it has articulated legitimate, race neutral reasons for Adams’s termination—her failure to follow City policies, including her visible head and neck tattoo, her insubordination, and her lack of candor.
• Indeed, Adams’s termination letter indicates that she was fired because she violated City and MFRD rules and MCPB Rule 14.2.
• Adams responds that the same evidence that creates a convincing mosaic is evidence that the City’s offered reason is pretextual.
• But for the same reasons that those facts do not show a convincing mosaic of discrimination, a reasonable factfinder could not rely on those facts to find that the city’s reasons are pretextual.
• When viewed objectively, Adams’s alleged incidents do not show severe or pervasive harassment based on her protected characteristics.
• [As for her retaliation claims, even] assuming that Adams could make a prima facie showing of retaliation, the City has articulated a legitimate, nondiscriminatory reason for her termination. Adams was terminated after the City determined that she violated MFRD rules and MCPB Rule 14.2.
• Prior to Adams’s complaint against Rutland, the City had already warned her that a failure to adequately cover her tattoo would lead to termination.
• It was determined that Adams failed to adequately cover her tattoo as she had been directed (by keeping her hair grown out to cover it), and that Adams failed to follow orders when the MFRD investigated her compliance.
• In short, Adams does not have sufficient evidence for a reasonable jury to find that the complaints … were the but-for cause of her termination.

Here is a copy of the decision.