The United States Court of Appeals for the Third Circuit recently decided the case of Ellis v. Bank of New York Mellon Corp., a case involving claims of racial discrimination brought by Lisa Ellis, a former senior control analyst for BNY Mellon.  The case arose after BNY Mellon fired Ellis for social media posts she made on her personal Facebook account.

Specifically, on June 30, 2018, Ms. Ellis commented on a Facebook post related to a local news story involving a suburban Pittsburgh municipal council member who had been arrested for driving his car into a group of demonstrators protesting a police shooting.  Ms. Ellis utilized her personal device to make the social media postings rather than a device owned or controlled by her employer.  Ms. Ellis commented that the council member “should have taken a bus to plow thru” the protestors.  Ms. Ellis’s Facebook account was public, and the account identified her as a “vice-president for BNY Mellon.”  BNY Mellon indicated that it was inundated with complaints over the post.

Following publication of the post, Ms. Ellis was terminated for violating BNY Mellon’s social media policy and code of conduct.  Of particular interest is the fact that Ms. Ellis was terminated for making social media posts on her personal time, separate from her employment with BNY Mellon.  After she was terminated, Ms. Ellis claimed that she was the victim of reverse race discrimination under Title VII.  The District Court granted summary judgement to BNY Mellon, holding that Ms. Ellis introduced no evidence of discrimination.  Ms. Ellis appealed this determination to the Third Circuit.

As part of her appeal, Ms. Ellis argued that the District Court ignored evidence that two other, non-white, BNY Mellon employees made controversial social media postings but were not terminated for same.  The Circuit Court determined that the two comparator employees were not “similarly situated” to Ms. Ellis in that neither employee made comments as extreme as Ms. Ellis.  The Circuit Court found that “[o]ne expressed frustration with a white co-worker but did not threaten that co-worker with violence, let alone serious bodily harm or death, [t]he 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, [t]hus, no reasonable jury could find Ellis’s conduct comparable to that of her former colleagues.”

The Circuit Court further found that the two comparator employees “worked in different positions, in different departments, had different responsibilities, and reported to different supervisors than Ellis did.”  Although Ms. Ellis argued that this was not relevant, as all employees were bound by the same social media policy, the Court found that the social media policy did not outline standard punishments, but instead gave decision makers broad discretion over how to discipline employees.  According to the Court, this left “open the possibility that Ellis’s position, department, or responsibilities factored into BNY Mellon’s decision to fire her, [a]nd it is Ellis’s burden, not BNY Mellon’s, to dispel this possibility and establish that the purported comparators are, in fact, comparable.”

The decision in Ellis seems to suggest that it is more advantageous for a company to adopt broad policies regarding employee discipline which provide the employer with discretion in disciplining employees based on a number of factors.  However, employers must be cognizant of the possibility that racial discrimination claims could be brought against them, and as a matter of best practice should document their rationale for adverse employment actions against employees.  The Ellis decision does not foreclose discrimination actions, it merely reiterates the principle that the employee has the burden to prove discrimination and that the employee must show that a potential comparator is truly similarly situated.

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