I usually try to blog about a new case as soon as I hear about it, but last month was the time of year when I am on the lookout for final examination fact patterns, and so I have put off blogging about Stroder v. Commonwealth of Kentucky Cabinet for Health and Family Services, 2012 Westlaw 1424496 (W.D.Ky., April 24, 2012), for almost a month, as I quickly decided to base a final exam question on the facts of this case for my Sexuality Law class. So, here it is belatedly, an interesting and provocative ruling by U.S. District Judge John G. Heyburn, II, find that a government employer violated the 14th Amendment Equal Protection Clause by discharging a probationary employee for misusing his office email account… and therein lies a tale of two probationary employees, who began working on the same date.
Milton Elwood Stroder and Shannon Duncan both began working as claims Adjudicators for Kentucky's Health and Family Services Cabinet on August 1, 2008. As far as one can tell from Judge Heyburn's opinion, there were no problems with their job performance and both were likely to pass probation and become permanent employees on August 1, 2009. Stroder was discharged on July 30, but Duncan passed probation. The difference between the two? Stroder is an openly-gay man, while Duncan is a heterosexual married woman.
The filing of a race and sexual harassment suit by a former employee, Bader Ali, against his supervisor, Perry Puckett, led to a document production request including email, as a result of which a staff attorney was set to work reviewing email and internet traffic of the employees. The review, by Amber Arnett, focused first on emails to and from Puckett that "were already available as a result of document production" for the discrimination case. Arnett found "rampant violations" of the employer's "Internet Usage Policy" within the department where Stroder and Duncan were employed. Among the offenders were two probationary employees, Stroder and Duncan. The Department purportedly had a "zero tolerance" policy concerning misconduct by probationary employees, so Stroder and Duncan became likely candidates for discharge.
Arnett reported what she had found to Michelle Kent, "former Executive Staff Advisor, who was charged with recommending employment actions within the Cabinet." Kent advised that Arnett focus on Stroder and Duncan, the probationary employees, although Arnett had turned up violations by many permanent employees as well. The employer's policy was not to discipline employees for email misuse until reviewing a "snapshot" consisting of all sent, received, and deleted emails currently in their accounts. The snapshout would have to be ordered from the technology support department and would take several days to prepare. Kent submitted a request for "snapshots" on Stroder and Duncan on July 20, less then two weeks before the end of their probationary period.
On July 30, Kent had not received the "snapshots," but that morning "initiated a conversation with Arnett about whether Stroder's emails that had surfaced during the review of Puckett's account contained violations sufficient to justify termination." Those emails included messages that referenced Stroder's same-sex partner and included "homosexual slang." Kent and Arnett decided that based on these emails there had been a policy violation. They did not focus comparable attention on Duncan's emails at that point. Kent then drafted a memo recommending discharge of Stroder based on his email exchanges with Puckett, probably without having reviewed the "snapshot," which did not arrive until later that day. Kent sent the memo to Stroder's supervisor, who promptly discharged Stroder.
Kentucky does not have a statute banning sexual orientation discrimination, and federal law doesn't address it either. Stroder filed suit making various other allegations, including a claim of violation of his Equal Protection rights under the 14th Amendment, which was the subject of Judge Heyburn's opinion. After a bench trial, Heyburn ruled that Stroder was the winner, despite the lack of any direct evidence of discriminatory intent. Having noted that 6th Circuit precedent required him to treat this as a "rational basis" case where the employer's action was presumptively constitutional and all the burden fell on the plaintiff to prove discriminatory intent, Judge Heyburn found that such intent was proven through circumstantial evidence.
He found that the defendants were "undoubtedly correct" in arguing that Stroder's violation of the agency's Internet Usage Policy "could be a very legitimate nondiscriminatory reason for terminating a probationary employee," but he found that there were two almost exactly comparable probationary employees involved in this case, Stroder and Duncan, and that the employer provided no explanation why it acted against Stroder and not Duncan. They started work on the same date, they were employed in the same job title, they had comparable records, and the examination of Puckett's emails showed similar violations of the policy by both of them. (Indeed, in some respect's Duncan's violation may have been more offensive, forwarding sexually-charged images by email to other employees.)
While Judge Heyburn found that the employer "is entitled to enforce its own internal policies," he found it "striking…that the Cabinet's sudden enforcement of the Internet Usage Policy focused disproportionately on homosexual employees and, more particularly, friendly homosexual bantering within emails."
"Despite the strikingly similar actions of Stroder and Duncan, the Cabinet handled their potential violations of the Internet Usage Policy in dramatically different ways," wrote the judge. Although Arnett had advised Kent that both Stroder and Duncan seem to have violated the policy based on reviewing the Puckett emails, Kent asked her to focus on Stroder in the final days of his probationary period. In their exchanges about whether the policy was violated, they concentrated on Stroder, and ignored Duncan. Had they focused on Duncan, they would likely have reached the same conclusion as they reached as to Stroder. "Kent never adequately explained why she contacted Arnett only concerning Stroder."
Heyburn concluded: "In the context of a court trial, different treatment of similarly situated employees permits but does not require a finder of fact to conclude that an employment decision was based on discriminatory animus. It is difficult to reconcile, however, that two employees, in such strikingly similar circumstances, could be treated so differently. The evidence suggests that Kent was determined to act on Stroder based upon the homosexual nature of his email interactions, leaving the Court to disbelieve that Kent decided to proceed with Stroder's termination first as a matter of mere happenstance. The Court therefore finds by a preponderance of the evidence that Defendants discriminated against Stroder because of his sexual orientation. As a consequence, Stroder was terminated; another who did the same things was spared. This is unfair and unequal treatment."