Playing the Race Card

Apparently, shuffling is a big deal in casinos since dealers are not infrequently discharged for shuffle-related misconduct.  One of those was a white plaintiff who sued MGM Grand for race discrimination, among other things, in Ondricko v. MGM Grand Detroit, LLC. 

Lest you not be a habitué of casinos, correct shuffling is not as subjective as an amateur might think since dealers use an “automatic shuffle device” and different color cards for each shuffle  to ensure an adequate mix. In the incident in question, plaintiff was Floor Supervisor in the Black Jack pit and detected a bad shuffle by a dealer (albeit apparently not quickly enough since the unshuffled cards had been put back in play for 90 seconds before the matter was resolved).

Prior to plaintiff’s discharge, there were six other incidents of shuffle-related misconduct, two of the most recent of which involved black dealers – a black male who was disciplined and a black female, Kim Boyd, who was fired and who had retained attorneys. In the context of discussing plaintiff’s termination, one of the casino’s decisionmakers said “do you think I wanted to fire Kim, I didn’t want to fire Kim, how could I keep the white girl.”

The Sixth Circuit found that this statement sufficed to create a jury question as to whether plaintiff’s race was a motivating factor in the decision to terminate her. Now, there was other evidence (although not as much as one might think), including issues about whether the black male’s misconduct was as bad as plaintiff’s, but the obvious question was whether, taking the statement literally, it could be interpreted to reflect more than a commitment to treat all races equally. Literally, that’s certainly one meaning.

Of course, the statement was made in the context of a potential discrimination suit, which might mean that the manager was more concerned about potential liability than compliance with the law per se, but it’s not clear why that should make any difference if the statement merely reflected a commitment to equal treatment.

But maybe plaintiff’s misconduct was less serious than Kim’s, and the statement indicated a felt necessity to avoid giving Kim any ammunition in her suit.   Plaintiff in fact had a much better disciplinary record than Kim, which might suggest that she could have been given lesser discipline without violating the disparate treatment model, and perhaps allow the inference that the action was taken as insurance against being second-guessed on this in court, not because of a balanced assessment of whether the misconduct warranted discharge. This may be what the court meant when it wrote: “in light of the fact that Boyd had a much worse disciplinary record than Ondricko, it is certainly reasonable to conclude from O'Connor's statement that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.”

Interestingly, even aside from the “motivating factor” analysis, there might have been a basis for going to the jury on plaintiff’s claim. There were apparently six potential comparators and blacks seemed to do better than whites – three blacks were disciplined but not discharged, while one was discharged; counting plaintiff, two whites were discharged and one disciplined. Of course, the conduct of the various workers wasn’t identical, but perhaps (as the court recognized) a jury could find that some of the disciplined workers conduct was in fact worse than that of plaintiff.

I’m usually a fan of letting cases go to juries to sort out, so I’m not critiquing the result. But I would have liked a more robust discussion of what intent was permissible and what impermissible in this situation, if only to guide the jury. This reminds me a bit of Johnson v. Santa Clara County where I was never sure whether the plaintiff was preferred because of her gender or whether, given the anti-woman bias displayed previously by lower-level decisionmakers, the employer was just leveling the playing field. 

By the way, Ondriko is reminiscent of another one, in which a white football coach could go to the jury on motivating factor liability because of statements by school board members to the effect that "You got the black, now you are going to get the white" and "what is fair for the goose is fair for the gander." Wilkerson v. Columbus Separate Sch. Dist., 985 F.2d 815, 818 (5th Cir. 1993).

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