BCI COCA-COLA BOTTLING CO. TO PAY $250,000 TO BLACK WORKER FOR RACE DISCRIMINATION

EEOC Settlement Follows Victory in 10th Circuit Court of Appeals Establishing 'Subordinate Bias' Theory

ALBUQUERQUE, N.M. -- The U.S. Equal Employment  Opportunity Commission (EEOC) today announced the settlement of a race discrimination  lawsuit against BCI Coca-Cola Bottling Company of Los  Angeles (BCI) for $250,000 on behalf of an African American former  worker in Albuquerque, N.M. The resolution follows a favorable ruling  by the U.S. Court of Appeals for the 10th Circuit, which established  an important legal doctrine known as “subordinate bias” theory.

“It  is unfortunate that race discrimination still occurs in the 21st  century workplace, as this case clearly demonstrates,” said EEOC Phoenix  Regional Attorney Mary Jo O’Neill, whose district includes northern and central  New Mexico. “In addition to the substantial monetary  relief for Mr. Peters, the injunctive relief contained in the consent decree  will promote a discrimination-free workplace going forward at BCI’s Albuquerque facility.”

The EEOC had charged BCI with  committing race discrimination against Stephen B. Peters, a black merchandiser,  when a supervisor fired him in 2001 for not working his scheduled day off, even  though Peters had called in sick and provided medical documentation. Additionally, the EEOC found that the  supervisor made racist remarks about blacks generally.

“This  case should remind employers that the EEOC will vigorously pursue and eradicate  race discrimination using all the enforcement tools at our disposal,” said District  Director Chester Bailey. “While we  always seek early resolutions out of court with employers as a first resort, we  will not hesitate to litigate when necessary and appropriate.”

The  litigation (Civil Action No. 02-1644) was filed by the EEOC in U.S. District  Court for the District of New Mexico against BCI, doing business as Phoenix  Coca-Cola Bottling Company and Coca-Cola Bottling Company of Albuquerque. The court had previously dismissed the case on  a summary judgment ruling which was subsequently reversed by the Denver-based U.S. Court  of Appeals for the 10th Circuit.

The district court had said that the BCI official who  actually terminated Peters was unaware of his race. However, the 10th Circuit  found that a  jury might reasonably conclude that Peters’ termination was based on his race  because there was evidence that one of his supervisors, Cesar Grado, treated  African Americans more harshly than other employees. The EEOC asserted that Grado made racial  remarks about African Americans.

In a  published opinion, 450 F.3rd 476 (10th Cir. 2006), the  appeals court observed, “In making the decision to terminate...the human resources official relied  exclusively on information provided by Mr. Peters’ immediate supervisor, who  not only knew Mr. Peters’ race but allegedly had a history of treating black  employees unfavorably and making disparaging racial remarks in the workplace.”

The  EEOC’s successful appeal was led by attorneys Lorraine Davis and Susan Oxford of  the Office of General Counsel, Appellate Services, at agency headquarters in Washington, D.C. In reversing the lower court’s decision, the  appeals court established an important legal doctrine applicable in the 10th  Circuit, which includes New Mexico, Colorado, Kansas, Utah, and Oklahoma. Under this legal doctrine, called the “subordinate  bias” theory, an employer may be liable for discrimination when it relies on  comments from a biased subordinate supervisor when taking adverse employment  action against an employee.

After  the 10th Circuit ruling, BCI asked the U.S. Supreme Court to hear  the case via a petition for a writ of certiorari. The high court accepted the case, and it was  fully briefed and set for oral arguments.  However, less than a week before the oral argument, BCI withdrew its  appeal with no explanation and, subsequently, settled the case with the EEOC.

In  addition to $250,000 for Peters, the EEOC’s two-year consent decree contains significant  injunctive relief which applies to BCI and its managing agents at the Albuquerque facility. The injunctive measures require BCI to:

     
• Carry out policies and practices that promote a      work environment free from race discrimination -- including a review of      its existing policies on race discrimination and making any necessary      changes so that those policies comply with Title VII of the Civil Rights      Act;
     
• Distribute its policies to current employees and      to new employees hired during the duration of the decree;
     
• Provide its employees with written policy      statements regarding reporting and preventing racial bias;
     
• Post a Notice with a statement that Title VII      prohibits race discrimination, and provide employees EEOC’s contact      information; and
     
• Hold      training sessions with managers, supervisors and employees of the Albuquerque facility      on Title VII and race discrimination.

The consent decree also  prohibits BCI from retaliating against Peters or any witness in this case, and  converting the official status of Peters’ firing to a voluntary resignation. Peters  commented, “I want to thank everyone at the EEOC offices who worked on my  case. I appreciate their support and  their efforts on my behalf. I hope this  resolution encourages employers to take their responsibilities to protect  employees from discrimination seriously.”

EEOC  Trial Attorney Veronica Molina-Cunningham, who prosecuted the case, said, “It  is rewarding to see justice done in this matter, not only for Mr. Peters but  also for other victims of discrimination who will benefit from the important legal  doctrine that was established.”

On Feb. 28, 2007, EEOC Chair Naomi C. Earp  launched the Commission's E-RACE Initiative (Eradicating Racism And Colorism  from Employment), a national outreach, education, and enforcement campaign  focusing on new and emerging race and color issues in the 21st century  workplace. Further information about the  E-RACE Initiative is available on the EEOC’s web site at http://www.eeoc.gov/initiatives/e-race/index.html.

In  Fiscal Year 2007, the EEOC received 30,510 charge filings alleging race-based  discrimination, an increase of 12% from the prior year and the highest level in  the past 15 years. Historically, race  discrimination has accounted for the most frequent type of charge filing with  EEOC offices nationwide.

The EEOC enforces federal laws prohibiting employment  discrimination. Further information  about the agency is available on its web site at http://www.eeoc.gov.