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Firing Was Nontortious Even If Employer’s Perception Was Erroneous, C.A. Declares
Discharged Worker Insists He Referred to ‘Wet Vac’ Not ‘Wetback’
By a MetNews Staff Writer
The Third District Court of Appeal yesterday affirmed a summary judgment in favor of Walgreens in an action brought by a man who was fired as a senior maintenance mechanic for allegedly calling another employee, who was born in Mexico, a “wetback” when, he insists, he specified he wanted a “wet vac”—a vacuum cleaner capable of suctioning liquids—to be used in removing spilled oatmeal from a floor.
The discharged employee, Robert R. Marvel, sued under the California Fair Employment and Housing Act, contending that Walgreens discriminated against him based on his race—Caucasian—and his national origin, the United States. Judgment was awarded to Walgreen Co. on that and other causes of action by Yolo Superior Court Judge Daniel Wolk.
Acting Presiding Justice Harry E. Hull Jr. said in an unpublished opinion affirming Wolk’s decision:
“Walgreens has proffered a legitimate nondiscriminatory reason for its termination of Marvel: after an investigation into Marvel’s reported use of discriminatory language, it concluded that Marvel had used the word ‘wetback’ when speaking with [Irma] Moreno, an employee of Mexican descent, in violation of Walgreen’s employee policies.”
‘Incorrect or Mistaken’
He added that Walgreens’s “perceptions may have been incorrect or mistaken” but that “does not mean they served as a pretext for discrimination.”
But Walgreens did discriminate, Marvel insisted, because it fired him for supposedly using the term “wetback” but continued to employ Moreno who admittedly used that term in a later conversation that day. Moreno said in a declaration:
“To emphasize that I had heard what Mr. Marvel had called me and that I did not like it, I sarcastically referred to myself as a ‘wetback,’ saying ‘This wetback is waiting for her retirement. I’m going to go to Mexico. This wetback is going to sign some documents for my third house in the United States.’ ”
Different Treatment
Hull responded:
“It is not difficult to see why an employer, on the one hand, would find an employee who, unprovoked, used a racial epithet to refer to Mexicans should be subject to zero tolerance discipline, while, on the other hand, an employee who repeated that epithet sarcastically to stand up for herself should not be subject to the same consequences.”
The jurist also said there was no error in finding that neither Walgreens nor Moreno had defamed Marvel.
The case is Marvel v. Walgreen Co., C093806.
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