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Racial discrimination suit against Facebook reinstated

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A federal appeals court overturned a lower court ruling Wednesday and reinstated a racial discrimination case filed by a Black employee of Facebook Inc. who was denied a promotion based on allegedly racist comments made by a supervisor.

Robert Gary, who began working at a Forest City, North Carolina, Facebook facility as a technician about 10 years ago and remains an employee there, was denied a promotion after a second-half 2013 performance review, according to the ruling by the 4th U.S. Circuit Court of Appeals in Richmond Virginia in Robert Louis Gary and Robert Baron Duffy v. Facebook, Inc.; Wayne Hawkins and James Swenson.

Mr. Gary protested that another employee who had worked there for less time was promoted but was told he had not received the promotion because he was not a strong communicator and lacked initiative, according to the ruling.

About a year later, he was told that Wayne Hawkins, the facility operation manager who sat on the performance review committee, had made several racist comments, including that Mr. Gary was lazy and “wants everything handed to him.”

Mr. Gary, who has since been promoted and received raises, filed suit against Facebook and the supervisor in U.S. District Court in Asheville, North Carolina, charging race discrimination. The court granted Facebook summary judgment, dismissing the case.

The ruling was overturned by a unanimous three-judge appeals court panel. “Facebook attempts to rebut Gary’s prima facie case by claiming that it didn’t promote Gary because he exhibited little initiative and lacked communication skills” whereas the white employee who was promoted instead excelled in these areas, the ruling said.

“As these are legitimate reasons not to have promoted Gary the burden returns to him to establish that they’re pretextual,” the panel said.

Mr. Gary attempted to carry this burden through circumstantial evidence and showing he was better qualified for the promotion. “Construing (as we must) the facts in Gary’s favor, we conclude that a reasonable jury could find either attempt successful,” the ruling said.

“Hawkins’s decisive role in the (promotion) decision provides convincing evidence for Gary’s case, as Facebook does not ( and could not) contest that Hawkins was a racist,” the ruling said.

“And troublingly, Hawkins’s racist remark” about Mr. Gary being lazy “resembles — in despicably graphic terms — comments Hawkins made on Gary’s performance evaluation, in particular his comment that he needed to be more of a self-starter,” the ruling said.

“Thus, even if Hawkins didn’t singlehandedly make the promotion decision, a reasonable jury could conclude that Hawkins’s racism is what caused the committee, which was comprised of Hawkins’s subordinates and high-level managers, not to promote Gary,” the ruling said in vacating the district court’s decision and remanding the case for further proceedings.

Mr. Gary’s attorney, Julie H. Fosbinder, of the Fosbinder Law Office in Charlotte, North Carolina, said, “I’m just appreciative that the 4th Circuit panel that reviewed the grant of summary judgment in the court below took such a good, hard look at the evidence.”

Ms. Fosbinder said, “The key to the appellate decision, in part, was the fact that they recognized there was more than ample evidence from which a jury could conclude that it was the racist manager of the facility, the defendant Mr. Hawkins, who was the one who drove the promotion decision at the time the plaintiff, Mr. Gary, was denied the promotion.”

A Facebook spokesman could not immediately be reached for comment.