A federal judge from the Southern District of Illinois has granted the Indianapolis Colts’ motion for summary judgment in a case where one of the team’s cheerleaders sued the club for race discrimination after she was fired.
Plaintiff Malori Wampler alleged that the Colts discriminated against her because of her Indonesian heritage when the team fired her after learning she had posed in body paint at a Playboy-sponsored party before joining the Colts.
The Colts based its rationale to terminate her on the fact that Wampler failed to reveal the alleged transgression during the screening process and that such behavior violated its morality clause.
To that point, the court noted Indianapolis Colts Cheerleaders “are, in the club’s view, ‘ambassadors in the community and throughout the state.’ As such, club cheerleaders must abide by the ‘Indianapolis Colts Cheerleader Agreement,’ which contains the following covenant:
“‘Cheerleader agrees not to commit any act that will or may create notoriety (including, but not limited to, posing nude or semi-nude in or for any media or publication whatsoever), bring Cheerleader into public disrepute, or reflect adversely on Club or its sponsors. Cheerleader understands that she will serve as a public representative of the Club from time to time and that it is important to this employment relationship that she be viewed in a positive manner. Cheerleader agrees to behave in accordance with socially acceptable mores and conventions.’”
The court went on to note that during her pre-hire interview, Wampler informed the Club’s cheerleading coordinator that she had been involved with the Playboy organization in the past. Specifically, she was selected to be a ‘Girl of Golf’ (i.e., a host) at various golf scrambles throughout the country sponsored by Playboy Golf. Not surprisingly, Playboy-sponsored parties were often held following the Playboy golf scrambles. Prior to two of these parties, one in 2009 and one in 2010, a Playboy Golf employee asked Wampler to wear latex-based body paint to the Playboy golf parties. But Wampler told the Colts that she had not posed nude for any photographs during her stint with Playboy. “This arguable fib unraveled on November 12, 2010, when the Club received an anonymous letter from a fan, which included photographs,” wrote the court.
Wampler’s discrimination claim triggered the burden-shifting framework inaugurated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The plaintiff’s first challenge was to make her case for a prima facie case of discrimination “by showing that: (1) she is a member of a protected class; (2) she was meeting the Club’s legitimate performance expectations; (3) she suffered a material, adverse employment action; and (4) she was treated less favorably than similarly situated individuals outside of her protected class. Pantoja v. American NTN Bearing Manufacturing Corp., 495 F.3d 840, 845 (7th Cir. 2007).”
“The real dispute … is whether she was treated less favorably than a similarly situated individual outside of her protected class,” wrote the court.
“Relevant factors for making this determination include ‘whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications. . . .’” Bio v. Federal Express Corp., 424 F.3d 593, 597 (7th Cir. 2005).
To satisfy the similarly situated element, Wampler pointed to Breanna Fonner, a fellow Club cheerleader who is Caucasian. “At first blush, Fonner’s circumstances appear quite similar to those of Wampler,” wrote the court. “Fonner posed in lingerie as part of a promotional advertisement for a jewelry store, and the photos appeared on the photographer’s website. Although the photographer for her photo shoot was also the Club’s photographer, Fonner did not get prior approval for the photo shoot, as required by the Colts Cheerleader Agreement. In the photos, Fonner is on top of a bed with one or two men.”
After the club learned of the pictures and confronted her, she informed officials that she thought it was ok because the photographer was the club photographer. For her transgression, the club denied Fonner an all-expense paid trip to the Pro Bowl, but did not terminate her.
The court disagreed with Wampler that the two scenarios were similarly situated, citing two reasons.
“First, Fonner wore lingerie in her photograph, whereas Wampler did not wear any clothing, but wore only body paint,” wrote the court. “From the Club’s vantage point, Wampler’s photos were more scandalous than Fonner’s. Second, Wampler arguably lied about posing nude, whereas Fonner simply did not address the issue with the Club before modeling for the photo shoot. See Spath v. Hayes Wheels Int’l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000) (holding that former employee who lied about misconduct until his termination meeting was not similarly situated to employee who came clean at an earlier time). Perhaps Fonner’s conduct could be construed as a lie by omission, but the ethical disclosure duties of NFL cheerleaders is a question best left for another day. In the end, it might be a close call whether these differentiating variables are enough to defeat the similarly situated element. But, as explained below, the court finds that Wampler’s claim fails for a separate reason. Therefore, the court will assume that Wampler can meet this element.”
Thus, the next step in McDonnell is for the Colts to demonstrate a legitimate, non-discriminatory reason for firing Wampler, which the club did.
Wampler would then need to show that the club’s reasons were pretextual, something the court was unwilling to hold.
“The club clearly had reasonable grounds for terminating Wampler’s employment, and no evidence casts doubt on the honesty of the club’s rationale for its decision,” it held. “Simply stated, the pictures at issue violated the ‘Indianapolis Colts Cheerleader Agreement.’ Moreover, during her pre-hire interview, Wampler arguably lied about posing nude. Whether it was actually a lie depends on your conception of nudity. If a person uses latex body paint to cover his or her private parts, does that constitute nudity? Perhaps reasonable minds could disagree on this issue. (And the answer may turn on the quality and opaqueness of the paint at issue.) The relevant point is that the Club reasonably construed Wampler’s statement as a lie.
“In the end, perhaps the club overreacted by terminating Wampler’s employment. After all, qualitatively, what Wampler did at the Playboy mansion may not be significantly different than posing for a swimsuit calendar in a slinky bikini or performing a titillating dance number while wearing a bra-like top and booty shorts. In this sense, Wampler’s frustration is understandable. But, when it comes to a pretext analysis, ‘we look not at the wisdom of the employer’s decision, but rather at the genuineness of the employer’s motives.’ Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 288-89 (7th Cir. 1999). As the Club notes, it has a legitimate interest in drawing ‘a line between its cheerleaders dressing provocatively and being naked.’
“This is presumably what (Pete Ward, the club’s chief operating officer) was referring to when he professed that the club expects its cheerleaders to be ‘alluring without being trashy.’ In the end, no evidence casts doubt on the club’s stated reason for firing Wampler or suggests that her Indonesian race or national origin was in any way a motivating factor in that decision. In the Court’s view, this case has nothing whatsoever to do with race and everything to do with perceived nudity and perceived lies. Because no reasonable juror could reach a different conclusion, the club’s motion must be granted.”
Malori Wampler v. Indianapolis Colts; S.D. Ind.; Case No. 1:11-cv-0606-TWP-TAB, 2012 U.S. Dist. LEXIS 113605; 8/13/12
Attorneys of Record: (for plaintiff) Kimberly D. Jeselskis, JESELSKIS LAW OFFICES, LLC, Indianapolis, IN. (for defendant) Andrew M. McNeil, Daniel C. Emerson, Jonathan A. Bont, BOSE MCKINNEY & EVANS, LLP, Indianapolis, IN.
