EEOC Claims Against Bass Pro Outdoor World Survive Motion to Dismiss

In 2011, the EEOC commenced a proceeding against Bass Pro Outdoor World for racial discrimination.  The EEOC has alleged a wide range of racial remarks and slurs, but the cornerstone of the lawsuit is a comment by the owner of BPOW (Johnny Morris) in 2004 or 2005 at a meeting of Store General Managers.  When asked about racial quotas, Morris allegedly said "this company will never have a quota system because that's not the kind of people I want working in my stores."  The EEOC alleges that this hiring preference was followed by Store Managers nationwide, who discriminated against black and Hispanic applicants.

BPOW moved to dismiss the lawsuit on the ground that the EEOC had not pleaded sufficient facts to show a "plausbile" violation of Title VII.  Judge Ellison disagreed and denied the motion to dismiss, except for the retaliation claims relating to two specific applicants.  EEOC v. Bass Pro Outdoor World, LLC, 2013 U.S. Dist. LEXIS 36711 (S.D. Tex. March 18, 2013).  Judge Ellison ruled as follows:

  1. With respect to individual disparate treatment claims, Judge Ellison ruled that Morris' statement in 2004 or 2005 did not constitute direct evidence of discrimination against any individual applicant because the statement was too far removed in time from the applications, and because it was not linked to any specific applicant.  With respect to circumstantial evidence (the McDonnell Douglas framework), the court noted that the EEOC had identified 199 potential claimants, but had not pleaded a prima facie case with respect to those claimants.  Nonetheless, Judge Ellison found that the EEOC could likely obtain the necessary information for a prima facie case through discovery.  In light of the specificity of the EEOC's other allegations, Judge Ellison denied the motion to dismiss.
  2. With respect to the retaliation claims, the EEOC identifed five specific claimants.  Judge Ellison found that the EEOC had not shown a sufficient adverse employment action for two of the five claimants, but gave the EEOC leave to amend with respect to those claimants.  Judge Ellison denied the motion to dismiss with respect to the other three claimants.
  3. With respect to the systemic disparate treatment claim, Judge Ellison had previously found that the EEOC's statistical evidence was deficient because the EEOC's statistical evidence was based on BPOW's managers (only 10-15 of 600 were black).  Judge Ellison found that such evidence might support a claim with respect to black managers, but it does not support a claim with respect to BPOW's overall hiring practices.  After the prior ruling, the EEOC provided additional statistical and anecdotal evidence.  Judge Ellison ruled that, while the statistical analysis provided by the EEOC was not sufficient standing along to establish a claim, the combination of the statistical evidence and the anecdotal evidence (in other words, specific instances of overtly racist hiring decisions) was sufficient to survive a motion to dismiss.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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