Labor & Employment Law Daily Although supervisor used the ‘N-word,’ employer gets summary judgment on HWE claim; retaliation claim advances
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Friday, October 16, 2020

Although supervisor used the ‘N-word,’ employer gets summary judgment on HWE claim; retaliation claim advances

By Brandi O. Brown, J.D.

While the court agreed that use of the “N-word” is “severe,” it was not persuaded that the conduct rose to the level of an objectively hostile work environment.

A federal district court in Alabama granted an employer’s motion for summary judgment with respect to a hostile work environment claim brought by three African-American carpenters, but it denied the motion with regard to their retaliation claim. The court found the use of the term “both reprehensive and offensive,” but concluded that the employees did not create a dispute regarding the claim. However, their claim of retaliation, based on their termination six days after complaining about the supervisor’s conduct, will move forward. The employer’s motion for summary judgment was granted in part (Bone v. Alliance Investment Company, LLC dba AIC Concrete, October 8, 2020, Burke, L.).

Complained about supervisor’s slurs. The three employees each worked as a carpenter for the employer, beginning between March and April of 2017. In May, after their previous supervisor resigned, they were placed under a different, white supervisor. Within the first week one of the employees overheard him using racial slurs, around them or to them, and they all heard from coworkers that the supervisor was referring to them as “n****rs” around the building and to coworkers.

They ultimately reported this conduct to a company Vice President, after the General Superintendent (one step below the VP) told them he didn’t believe them. They also had been told that the supervisor told their white coworkers to stop working so hard and to “[l]et those n****rs do the work.” Indeed, they contended that they were left with the more difficult, physical tasks at the job site and their white coworkers agreed that this was the case.

Terminated or not? During the meeting with the VP, the employees told him that they had a video of another employee stating that the supervisor was calling them by the “N-word.” They contended that he did not want to watch the video and there was a dispute over whether he wanted a copy of the video. They contend that he told them on that day that they were being terminated and offered them their paychecks in exchange for possession of the video. Two of the employees stated that they received their paychecks on that day. The employer contended that they resigned and demanded their final checks.

Drug test demanded, then fired? Nevertheless, the next day, the VP allegedly found tourniquets on the ground in the place where the plaintiffs had parked their cars. Four days later, on May 30, the General Superintendent told five workers, including the three employees, to report for a drug screen. Although there was some dispute about whether all three employees reported for a test and whether it happened that day or the next, the evidence showed that on May 31, the General Superintendent texted all three of them, instructing them to turn in their badges for failing to take the drug test the day before. Two of the employees contended that they had already been fired prior to the texts. Thereafter, the employees filed suit, alleging violations of Title VII and Section 1981 for discrimination and retaliation. The employer moved for summary judgment.

HWE claim. Considering the hostile work environment claim of each employee separately and the employer’s argument that they were not “personally subjected to severe and pervasive harassment,” the court granted this aspect of its motion. The employer argued that the employees could only point to “isolated utterances of the slur,” that “second-hand comments did not create a hostile work environment,” and that the circumstances in their totality were insufficient to establish a hostile environment. The court agreed.

While the court noted that the evidence established that all three employees “found the behavior subjectively abusive,” it concluded that the harassment was not objectively abusive. It noted, “The objective severity of the behavior is determined by the totality of the circumstances.” It also noted that none of the employees had contended, or presented evidence, that the conduct was “physically threatening or humiliating.”

Not severe enough. Only one of the employees testified that he had been called “n****r” by the supervisor directly, although there was evidence that he referred to all three employees in that manner outside of their presence. There was evidence that he told white workers not to work so hard and to “[l]et those n****rs” do the work.” There was corresponding evidence, in the form of the plaintiffs’ testimony, that they had in fact been left the most physical, difficult tasks on the job site.

With regard to frequency, the conduct occurred over the course of six days and the court gave the frequency factor “little weight.” The court conceded that the supervisor’s use of the slur, which was “both reprehensive and offensive,” was “severe.” However, it concluded that the conduct did not rise to the level set out by the Eleventh Circuit with respect to what constitutes an objectively hostile environment. It also found that there was no evidence that the supervisor’s words or conduct impacted the employee’s job performance. A reasonable jury, the court concluded, would not find the workplace to be hostile. The same held true for the other two employees, neither of whom had the slur made directly to them, although they heard the supervisor use it.

Retaliation. However, the court denied the employer’s motion with regard to the employees’ retaliation claim. In large part, this was based on the fact that they were fired only six days after making their complaint to the VP. Moreover, the decision to have them go for drug testing was made almost immediately after their meeting with the VP. There were also questions as to whether the employees were required to take the drug test on the same day that it was requested and whether at least one of them in fact had reported for the drug test on that day. Thus, there was evidence that could suggest that the stated reason for their discharge was pretextual.

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