TALLAHASSEE – A company that fired one of its managers for calling a face mask a “KKK hood” won’t be held liable in court.
Florida’s First District Court of Appeal on Nov. 3 reversed a Duval County judgment in favor of Michael Waller, who argued he wasn’t given written notice and an opportunity to cure his behavior in 30 days prior to his termination from Gerber Collision.
The auto repair business terminated Waller after finding in March 2018 he referred to respiratory masks used by employees while sanding and painting as a “KKK hood.”
“Mr. Waller then asked a Black employee who worked in the front office and was not part of the fit test group if he would be offended if the mask was referred to as a ‘KKK hood’ and if he wanted to try it on,” Judge Clayton Roberts wrote.
The next day, senior management and the human resources department were hit with employee complaints. Waller claimed he was joking, but the Black employee submitted his resignation letter that cited Waller’s conduct as his reason for quitting.
Six days after the comment, Waller was told he was being terminated for cause. He subsequently sued, claiming the terms of employment required written notice and a 30-day cure period.
Duval County Judge Gary Wilkinson agreed, but the First District ruled he failed to properly understand the employee agreement. One section of it calls for written notice and a cure period while another says the employee can be fired for a violation of the terms and conditions of the employment agreement.
The existence of “or” between those two sections means the written notice and cure period don’t apply to the latter, the court ruled, adding Waller’s words and offer to try on the “KKK hood” to a Black employee constituted harassment in violation of the employment agreement.
“Employer’s Harassment Policy prohibited employees from making racially offensive comments and from making ‘rude, derogatory or demeaning comments; (or) unwelcome jokes,’” Roberts wrote.
“The circuit court improperly interjected a requirement for Employer to prove its ‘good faith investigation’ when the Employment Agreement simply required Employer to make a determination ‘in good faith and in the exercise of its reasonable judgment.’
“Employer performed an investigation, corroborated the allegations against Mr. Waller, who did not deny them, and determined Mr. Waller’s words and conduct violated its policies. Employer properly exercised its right to terminate Mr. Waller for cause under section 5.2.4(b)(3) of the Employment Agreement.”