Missouri Supreme Court will not hear appeal of TAMKO employee fired for making racist remarks

The Missouri Supreme Court last week rejected an attempt by a former TAMKO employee, who was fired for making racist remarks at a company picnic, to get unemployment benefits.

The court refused to hear Darwin Holly's appeal. The case, as noted in an earlier post, involved th eonly judicial ruling in recent memory that  included references to President Obama, watermelons, choking the chicken, and breasts.


iIn July the Southern District Court upheld the Missouri Division of Employment Security's decision not to allow Holly, who had worked for the Joplin company for nearly 16 years, to receive unemployment benefits.

The appellate court decision indicates Holly was fired after he told an inappropriate joke at the TAMKO company picnic:

The Commission found that a comment by Appellant that he was eating "Obama fruit" while holding a slice of watermelon at the company picnic of his employer, TAMKO Building Products, Inc. (“TAMKO”), violated TAMKO’s racial harassment policy; therefore, it amounted to misconduct related to work disqualifying him for unemployment benefits. We affirm the Commission's decision.

During an appeals tribunal hearing, the case against Holly was laid out:

TAMKO submitted two exhibits which were written statements made by two other TAMKO employees who heard Appellant's comment. The first statement, by Matt Parrish, recited that he was preparing food
for a company picnic when Appellant asked if he could sit down by him. Parrish answered in the
affirmative and then Appellant said, “I'm going to sit down and eat my 'Obama fruit.'” Parrish asked Appellant if he had said "Obama fruit," and Appellant answered in the affirmative. Parrish then "shook [his] head and said something to the effect of, 'That isn't right.’ . . . [Appellant] then told a story regarding antique cars and left a few minutes later." The second statement, by Larry W. Prewitt, Jr., also stated that Appellant sat down and said "Obama fruit." Prewitt stated further that "[n]othing was mentioned about the comment until Monday when [Parrish] asked me if I heard any derogatory comments from [Appellant] on the previous Friday at which point I confirmed that I had heard the statement." The Appeals Tribunal also heard testimony from Appellant and Bennett Cole Williams, TAMKO's Human Resources Manager. Williams testified that the term "Obama fruit" was a racially derogatory comment, and Appellant’s use of the term violated TAMKO's policy against racial harassment. Appellant testified that he did make the comment "Obama fruit," but stated that "in my mind I was calling the president a melon head, no reference to racial whatsoever, I'm not a racist, but it was just a political statement in my mind."

The review panel issued the following ruling, which was included in the appellate court decision:
The claimant made a comment that he was going to eat ‘Obama fruit.’ The term ‘Obama fruit’ taken alone is not a racially derogatory comment. But, the comment was made while the claimant was eating a slice of watermelon at a company sponsored cookout at the plant. In that setting, the claimant's comment
violated the employer's policy. Therefore, the claimant committed misconduct which resulted with the termination of his employment.

The appellate court rejected Holly's attorney's argument that it should follow the ruling from another case in which someone was fired after making an inappropriate remark about food. In that case, Dolgencorp, Inc. vs. Zatorski, the court ruled that comments about "choking the chicken" and "breasts" did not amount to sexual harassment.

Zatorski signed an agreement that he would "abide by Dolgencorp's sexual harassment policy." Id. Zatorski sought to organize a union. Id. at 815. At a lunch provided by the company, Zatorski decided to complete a demonstration and "selected a fried chicken leg to represent a union worker and a baked chicken leg to represent a non-union worker." Id. At some point, Zatorski "grasped the baked non-union chicken leg with a strangling or choking motion and squeezed the chicken between both his hands. As he did this, he said he was 'choking the chicken.'" Id. Several employees complained that this act was sexual in nature because it referred to masturbation; Zatorski was fired for violation of Dolgencorp's sexual harassment policy. Id. The Appeals Tribunal ruled that Zatorski’s action did not rise to the level of misconduct and found that he was not disqualified for benefits and Dolgencorp appealed. Id. at 816. The Court recognized that "Zatorski may have violated Dolgencorp's sexual harassment policy resulting in discharge, yet still qualify for unemployment compensation if his conduct is not proven to rise to the level of misconduct." Id. at 818. The Court also stated that "[i]t is not sufficient that other employees perceive that the actions of the employee are contrary to the employer's rules. The violations must be intended." Id. The Court noted that "no documents were in the record with the actual sexual harassment policy." Id. at 819. The Court also noted that the Commission did not "make findings on the issues of whether Mr. Zatorski's comments included the statement that he liked breasts and what he intended in making the gesture and comment about choking the chicken." Id. The Court then reversed the finding of the Commission because it "did not resolve all of the disputed factual issues . . . ." Id. at 820.

In this case, unlike Zatorski, there was a copy of TAMKO's harassment policy in the record, the Commission did not rest its conclusion solely on the perception that others concluded Appellant's comment violated the rules, and there are no unresolved factual issues. Here, the Commission resolved the factual dispute regarding Appellant's intent. The Commission found that he admitted to making the comment regarding “Obama fruit.” The Commission found that he did so while eating a slice of watermelon. Thus, the Commission concluded that the comment violated TAMKO's racial harassment policy in the context in which it was made.