Wyeth Case: It's Not Race Discrimination That Counts, It's the Retaliation

The race discrimination complaint that was reinstated against Wyeth -- bought by Pfizer (PFE) in 2009 -- shows how hard it is to establish a claim of racism against your employer, but how easy it is to establish a retaliation claim.

The case goes back to federal court for a new trial where the plaintiff, Howard Henry, a former chemist and engineer at Wyeth's Pearl River, N.Y., plant, will now be able to shoehorn his legally weightless allegations of racism into his remaining retaliation case.

Human resources executives should take note: Henry's case still exists even though he does not have to prove that his bosses knew he had complained about discrimination at the company; merely that one of his bosses knew. In other words, the mere arrival of a memo from an employee can start the clock ticking on a successful retaliation claim if the worker is treated differently after writing it.

The case contains plenty of gossip about life inside the famously strange Wyeth plant at Pearl River. This was the same place that employed a murderer, and it's been the subject of at least eight race discrimination suits (most of which were unsuccessful). The new ruling also contains one huge "hold the phone!" item: The plaintiff's cousin was shot by the D.C. Beltway Sniper:

In October 2002, Henry's cousin, with whom he shared a close relationship, was murdered by the "D.C. Sniper." As a result, Henry took two months off from work under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. When he returned to work, he was given his 2002 year-end performance review, on which he again received an overall rating of "four."

The rest of the case contains the kind of gossipy incidents that, on their own, probably aren't cause for concern ... until they're gathered together into litigation:

• Henry's boss, associate director of LCH manufacturing Walter Wardrop, once made a voodoo joke to a black employee. he said: "Daisy, what are you doing at home? Sticking pins in a doll? What have I ever done to you?"
• The same employee was on the end of a voodoo joke from manager Robert Bracco, who said: "Daisy tried to put voodoo on me."
• Wardrop also mocked "Manny Rivera, a Hispanic employee at Wyeth. ... Wardrop pulled down his pants so that his waistband was around his thighs, and made gestures imitating Hispanic youth," according to the ruling.
• And Joe Vitanza, the managing director of the Consumer Health Division, refered to a malfunctioning alarm system as a "tar baby that I just can't get off my back."

Although Henry had been at the facility since 1998, his first racism complaint didn't occur until 2004. In the previous years his performance reviews had consistently said he had trouble meeting deadlines and multitasking. He was placed on a performance review status in 2005, and then he left and filed this suit, claiming that the review was retaliation for his complaints.

The ruling makes it clear that notwithstanding the rudeness of his colleagues, Henry's career was retarded by his own faults, not by his skin color.

The crucial part for HR people is that Henry does not have to establish that the person who put him on performance review knew he had complained about discrimination. Rather, he merely has to prove that there was "general corporate knowledge" that he had complained. That's a remarkably easy thing to establish: Henry had complained internally and Wyeth had done an investigation finding no fault. That on its own might be enough. (In this case, there was also a letter from Henry's attorney and an EEOC case pending.)

Related:

• "Creepy" Pfizer Worker Charged With Murder
• Wyeth Race Discrimination Ruling Highlights Forced Double Shifts at N.Y. Factory