In an unusual case of “he said, she heard,” a maintenance mechanic at Walgreens was dismissed for using the term “wetback” when referring to a fellow employee of Mexican descent. He got fired, then sued for discrimination under California’s Fair Housing and Employment Act. He claimed he was dismissed because he is a Caucasian American. The trial court granted Walgreens’ summary judgment motion. The plaintiff appealed and now has lost again.

In a unanimous three-judge panel decision issued by California’s Third Circuit Court of Appeal, the court affirmed the summary judgment decision issued by Yolo Superior Court Judge Daniel Wolk. The appellate opinion was written by Acting Presiding Justice Harry E. Hull, Jr. on January 25.

Robert W. Marvel was an at-will employee at a Walgreens store in Woodland Hills, California. The terms of his employment allowed him to quit at any time, while Walgreens could terminate him at will, without either cause or notice. Walgreens has a “zero tolerance” anti-discrimination and harassment policy that “prohibits unwelcome comments based on an individual’s protected class.” Walgreens considers racial epithets to be verbal harassment. Such usage allows the employee to be disciplined or terminated.

The case began on December 3, 2018, when Marvel was contacted by phone at work and asked to clean up an oatmeal spill in aisle C-1. In his deposition, he said the caller wanted someone to bring a “wet vac” to clean up the mess. Marvel said he then called the maintenance department where he spoke with the defendant Irma Moreno, who worked as a janitor. She said she would help, but the caller declined help and just asked for someone to bring a “wet vac” to C-1. Marvel went back to work on another task.

Later that day, Marvel and Moreno met in the Walgreens’ break room. Their accounts of what occurred differed. Marvel said he thanked Irma for her work on the spill. But Moreno said she heard him say, “I just sent any wetback,” three times. She then reported her conversation with Marvel to Human Resources (HR), where she complained that Moreno had called her a “wetback.” Marvel denied ever using that term. He attributed the entire course of events to a “misunderstanding,” when the v in “wet vac” was mixed up with the b in “wetback.”

Later that day, Marvel and Moreno met again. She said she tried to address the “hurtful comment.” She reported that he again called her a “wetback” when he asked her to clean up a water spill. He countered that Moreno had called herself a “wetback” when she discussed her finances that would allow her to retire to Mexico soon. Moreno reported the interchanges with Marvel to HR.

On December 4, Walgreens management met with Brenda Merriweather of HR about Moreno’s complaint. The HR rep was asked to get a written statement from Marvel, and she did so the same day. After their interview and reviewing his statement, Marvel was “suspended pending further investigation.” Throughout his interactions with HR, Marvel insisted he had never used the term “wetback.” Merriweather documented their conversation, however. She wrote that he said he admitted he “may have used the term wetback.” Marvel’s housemate, who said he heard the conversation, disputed this version. Regardless, Marvel was dismissed on December 10 due to “gross misconduct.”

Marvel filed suit against Walgreens, Moreno and Merriweather, alleging discrimination based on race and national origin, intentional infliction of emotional distress and defamation. He also charged Walgreens separately with failure to prevent discrimination or retaliation, and wrongful termination. Merriweather was subsequently dismissed as a defendant.

The trial court on January 14, 2021, found that Walgreens had a legitimate, nondiscriminatory reason for firing Marvel. Judge Wolk also found no defamation due to a lack of malice. Other counts were dismissed because they were based on Marvel’s discrimination claim.

Justice Hull began his opinion by explaining that the standard of review for overturning a summary judgment motion is the requirement that there are no triable issues of material fact. He then reviewed each of Marvel’s allegations. First up was his discrimination claim, which argued that as a Caucasian American he was discriminated against in violation of California’s Fair Housing and Employment Act.

Hull cited precedent said explained that to prevail, Marvel would have to show that he was a member of a protected class, that he was performing competently in his position, and that he suffered an “adverse employment action” such as termination. To prevail, Walgreens had to show a “legitimate, nondiscriminatory reason” for his dismissal. Walgreens met this test by reviewing and affirming Marvel’s use of discriminatory language toward Moreno.

The court also rejected Marvel’s contention that it was discriminatory to dismiss him but not Moreno, who also used the term “wetback” to refer to herself when she talked about her planned retirement. The appellate court concluded that each of them had used the term differently and only Marvel’s use was derogatory, as she used the term “to stand up for herself.”

Marvel’s defamation claims were dismissed because he did not show the four required elements: the statements were published; were about him; were false; and defendants failed to use reasonable care to determine truth or falsity. He could not show that Moreno failed the last part of the test when she “failed to use reasonable care in her representations against Marvel.” The opinion found that she reported what she thought she heard him say.

As to the defamation claims, the court disregarded them as well because they were privileged as part of an investigation into allegations of racial discrimination and harassment in the workplace. HR’s investigation, said Hull, “do not support a conclusion that a jury could find the investigation here was so inadequate that its findings lacked reasonable grounds in reckless disregard of Marvel’s rights.”

Hull concluded that all of Marvel’s allegations about “disputed facts” that should be determined by a jury did not “bear on the central questions of “whether defendant could prove he was discriminated against or defamed.” As a result, the decision of the trial court was affirmed and Marvel will have to look for employment elsewhere.