In today’s world, employers may be tempted to react quickly and with force to complaints of discrimination before allowing a complete investigation to run its course. A new decision from the U.S. District Court for the District of Maryland serves as a reminder to employers of the importance of uniformly following their investigation processes when faced with discrimination complaints.

In Wethje v. CACI-ISS, Inc., the Court held that an employee gets to go to trial on her reverse race discrimination claims under Title VII and 42 U.S.C. § 1981 because she presented sufficient evidence suggesting that her position was eliminated as part of a reduction-in-workforce (“RIF”) to “make a statement” about discrimination rather than for any legitimate business reason. During her tenure, Wethje, a white woman, was an excellent employee and received glowing performance reviews. In March 2017, one of Wethje’s reports, an African American woman, complained that Wethje over-assigned work to on-call employees and had made a racially derogatory remark to her. Within a week, her employer, CACI-IAA (“CACI”), received an influx of other racially charged complaints – aimed not at Wethje, but at Wethje’s supervisor. The company’s Executive VP urged that CACI send “a strong message that we will not tolerate discrimination.” As part of this messaging effort, the Executive VP took immediate steps to terminate Wethje, notifying upper management of his plans and directing that HR “find a way to make it happen” as soon as possible.

The Company’s HR Department investigated the complaints about Wethje and determined that she had not violated company policy through her use of on-call employees. It also determined that firing Wethje for her racial comment was not appropriate, as it was an “isolated incident” that warranted counseling, not termination.  The Executive VP’s demands that a “strong” message be sent through the termination of Wethje occurred before HR’s investigation. CACI, though, did not fire Wethje and instead followed the HR Department’s recommendations to implement a lesser discipline for this “isolated incident.” Around the same time, however, the Executive VP eliminated Wethje’s position as part of a larger RIF.

After being laid off as part of the RIF, Wethje filed a race discrimination action against CACI, alleging violations of both § 1981 and Title VII. When CACI moved for summary judgment, the Court applied the McDonnell Douglas analysis and denied the company’s motion. CACI attempted to argue that Wethje could not state a prima facie case because she should not show: 1) she was performing at a level that met CACI’s expectations; and 2) that CACI was influenced by her protected characteristics (race in this instance) when eliminating her position as part of a RIF.  The Court found there was ample evidence that Wethje performed to expectations. The Court also rejected the employer’s argument that its decision to terminate her was race neutral, reasoning that  a jury could find that the real reason she was fired was exactly what the Executive VP had demanded – because the Company wanted to appear responsive to the race discrimination complaints by making an example out of her, i.e., because she was white.

The Court also found the Executive VP’s instructions to HR to “find a way to make [Wethje’s termination] happen” before any investigation, and HR’s own determination that such a course of action was inappropriate, to be evidence of pretext.  The Court reasoned that a jury could conclude that CACI scapegoated Wethje to send a “strong” message to employees that it was drawing a hard line on discrimination, not because of the RIF explanation proffered by the employer. The company’s alternative reason for wanting to fire Wethje – her alleged misuse of on-call employees – further muddied the employer’s defense, as it was undermined by the fact that the Executive VP could not have known about that issue when he discussed terminating Wethje, and the evidence suggesting that HR had found that Wethje had, in fact, not misused on-call employee assignments.

This case highlights several important issues for employers to keep in mind following a complaint of discrimination. First, employers should not only ensure that they are conducting an effective investigation, but that such investigations proceed uniformly, regardless of who is making the complaint or the nature of the complaint. Second, Employers should also be prepared to implement the findings that arise from their investigation – a “zero tolerance” policy may feel right, in theory, but can create fertile grounds for a “reverse discrimination” claim when not appropriately applied. Third, no one at the company, especially a person in senior leadership, should be campaigning for a specific outcome before the investigation is complete. Finally, this case should serve as a reminder to employers that reverse discrimination claims can be viable claims. Employers must think critically about whether even a well-intentioned attempt to send the “right message” could be seen as discriminatory towards other employees. This can be a difficult undertaking, and employers should consult employment counsel when delicate situations arise.