Police blotter: Fired over 'Wicked Weasel' photo

An America West employee with multiple sclerosis claims that he was unlawfully fired over pornographic e-mail.

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: An employee at airline America West claimed that he was fired in violation of the Americans With Disabilities Act after the company nabbed him with pornographic e-mail.

When: U.S. District Judge Neil Wake in Arizona ruled on Monday.

Outcome: America West won motion for summary judgment in its favor.

What happened, according to court documents:
Martin Sheville worked for America West as a load planner, calculating aircraft weights and balances, from October 1995 to December 2004. He agreed to the usual corporate boilerplate about not using his company PC for anything "sexual in nature."

But Sheville circulated racy e-mail messages to co-workers and one supervisor, including "Five Ways to Hypnotize a Man," depicting a voluptuous woman gyrating her naked breasts in five different directions. Another was "How to Get Men to Read the Sexual Harassment Policy," depicting a woman in a translucent tank top with, as the judge would later stress, "her nipples visible."

The irony was not lost on America West, which promptly investigated its employee for violations of the company's sexual-harassment policy. The probe unearthed a smoking gun: an e-mail in Sheville's in-box from two years earlier titled "Wicked Weasel," showing scantily clad women with nipples, pubic hair and genitalia visible. (Wicked Weasel is an Australian manufacturer of skimpy bikinis. It is unclear from the court opinion whether the clothing in question was being worn, removed or somewhere in between.)

After scrutinizing the "Wicked Weasel" image and other incriminating evidence, America West fired Sheville and the employee who had sent him the contraband. The airline also disciplined five other employees--but did not fire them--because their e-mail messages "did not contain frontal nudity."

Sending dirty jokes through work e-mail is hardly unusual, though getting fired over it does take some work. What makes this case odd is that Sheville filed a lawsuit claiming that he had been discriminated against because he has multiple sclerosis--he was diagnosed in mid-2000--and alleging that his termination violated the Americans with Disabilities Act.

The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability."

Sheville claims that he was singled out and fired even though "all co-workers sent the same type of e-mails during work hours." He introduced as evidence what the court described as a "multitude of scatological, depraved and sometimes pornographic e-mails that other members of the load-planning department" exchanged.

One of Sheville's former colleagues even testified in a deposition that sending, receiving and viewing pictures of naked women on America West's computers during working hours was unexceptional, since "the whole time (he) was there, everybody was doing it...everybody saw it."

America West's managers, on the other hand, responded that "after reviewing the frontal nudity depicted in the (Wicked Weasel e-mail) and comparing them to the e-mails sent by other members of the department, none of which contained frontal nudity and most of which contained no nudity at all, (we) made the determination to terminate (the Wicked Weasel offenders) and to provide progressive counseling to the other affected members of the department."

The judge agreed with Sheville that America West, which has since merged with US Airways, may have been blind to a certain "locker room atmosphere that pervaded its load-planning department," but he rejected the ADA allegations.

There was no evidence, Wake said, that the airline fired Sheville because of his disability. For one thing, a supervisor with the same medical condition remained an employee. But more importantly, Wake ruled, Sheville "has not adduced sufficient evidence, circumstantial or otherwise," to make anyone believe multiple sclerosis had anything to do with his involuntary departure.

Excerpts from court opinion:
Defendant alleges, and Plaintiff does not deny, that Plaintiff sent the following graphic e-mails from his company computer to various co-workers and one supervisor: (1) "White Elephant" sent November 20, 2004, and depicting women wearing see-through skirts; (2) "Five Ways to Hypnotize a Man" sent October 29, 2004, and depicting a large-breasted woman gyrating her naked breasts in five different directions; (3) "How to Get Men to Read the Sexual Harassment Policy" sent November 20, 2004, and depicting a large-breasted woman in a cutoff, wet, see-through tank top with her nipples visible through the text of a corporate sexual-harassment policy; and (4) "Privates on Parade" sent November 26, 2004, and depicting a male guard clad in a kilt with his genitalia visible.

Plaintiff also retained an e-mail entitled "Wicked Weasel" in his company in-box that had been sent to him by a co-worker on August 25, 2002, and which depicts scantily clad women with nipples, pubic hair and genitalia visible.

In November 2004, America West's director of operations, John Daley, was made aware of employee misuse of company Internet and e-mail systems by one of Plaintiff's co-workers. Daley instructed his Operations Manager, Larry Bowdler, to investigate the report. After reviewing the results of this investigation, Bowdler, Daley and...the senior manager for employee relations decided to terminate Plaintiff's employment "for violations of the Company's policy prohibiting harassment and discrimination in the workplace and the Company's Internet/e-mail usage policy."

Plaintiff's employment discrimination claim is governed by the same three-stage burden-shifting analysis that is applied to lawsuits arising under Title VII of the Civil Rights Act of 1964. Under this framework, Plaintiff shoulders the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence.

Plaintiff identifies two theories in support of his contention that America West terminated his employment on December 1, 2004, because of his disability, rather than for his violation of his employer's computer, e-mail and harassment policies. First, Plaintiff notes that Defendant singled him out for especially harsh discipline after the November 2004 investigation of computer misuse in the load-planning department was completed. "All co-workers," urges Plaintiff, "sent the same type of e-mails during working hours using the Company's computers and e-mail system," yet only he and (another employee) were terminated.

Plaintiff bolsters this claim of disparate treatment by drawing the court's attention to a multitude of scatological, depraved and sometimes pornographic e-mails that other members of the load-planning department, including team leader Noel Thorpe and supervisor Roger Bradley, exchanged during the very time that Defendant's investigation into computer misuse was being conducted.

One of Plaintiff's load-planning colleagues explained that, prior to Plaintiff's termination, sending, receiving and viewing pictures of naked women on Defendant's computers during working hours was unexceptional, since "the whole time (he) was there, everybody was doing it...everybody saw it."

While Plaintiff was terminated for sending similar e-mails, many of his colleagues in the load-planning department did not even receive a warning, much less formal discipline from management. The only explanation for such disparate treatment, contends Plaintiff, is that Plaintiff has multiple sclerosis, while his colleagues do not.

But the essential predicate to Plaintiff's claim of discriminatory discharge under the ADA--that he was terminated because of his disability--is not established by these facts. The record is barren of direct evidence showing that America West's decision to terminate Plaintiff was motivated by his disability.

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