By Marjorie Johnson, J.D.
Use of the terms “boy” and “you people” by supervisors and a coworker known as the “grand wizard” suggested racial animus toward an African-American employee, who also claimed that supervisors used the “N-word” to gauge his reaction and forced him to become overheated in a hot shed while a white coworker sat in an air-conditioned truck. However, though he presented sufficient evidence suggesting he was subjected to an actionable hostile work environment, he failed to show that his disciplinary termination was discriminatory or retaliatory. In an unpublished decision, the Eleventh Circuit affirmed summary judgment against him on his Title VII and Sec. 1981 claims of race bias and retaliation, but reversed and remanded as to his HWE claim (Cooler v. Layne Christensen Co., October 10, 2017, per curiam).
Discriminatory treatment. The employee, a driller helper, claimed he was subjected to racial harassment by supervisors and coworkers after he was hired in June 2013. He felt he was given more degrading assignments than his white coworkers, including anything that would get him dirty. On one occasion when he complained of overheating and cramps on a hot day, the site supervisor told him to cool down in a toolshed (a hot metal container) while the supervisor and a white coworker sat in the air-conditioned truck. He was eventually allowed in the truck, but it was too late as he had to be taken to the hospital and treated for dehydration.
Racial slurs. He also claimed that two supervisors told him they had been disciplined for use the “N-word” to see how he would react to their use of the racial slur. And a warehouse worker who was often left in charge, and known as the “grand wizard,” called him “you people” and “boy” and often refused to speak directly to him. This worker also once indicated that blacks were not welcome in the break room by stating, “you people think you can come in here and do whatever you want.” He and a site supervisor also displayed confederate flag decals on their cars.
Supervisors also made comments about the employee’s hair—worn in long braids—by calling him “sugar pants” and saying that “gays,” “faggots,” “sissies,” and girls wore their hair in braids. And when he began dating a white woman, his coworkers increased their hostile treatment and a site supervisor told him that he was being mistreated because of his relationship with a white woman. Though the employee reported the difference in work assignments and “racial treatment” to his supervisors, no action was taken.
Fired after leaving training. The employee was fired in May 2014 after an incident during a multi-day training session in which he left early to pack his bags and check out of his hotel room. Though he claimed that he received permission to leave, the supervisor refused to certify him for the training due to the absence. Afterwards, an African-American manager spoke with the employee about the incident and later submitted a declaration stating that he had refused to acknowledge that his truancy was misconduct or accept any responsibility. Thus, because he “had wasted company time and resources,” the manager terminated him.
No retaliation. The Eleventh Circuit agreed with the district court’s finding that the employee failed to show a causal connection between his protected activity and termination. There was no close temporal proximity and the appeals court rejected his assertion that the he was fired at the “first opportunity” to retaliate against him. Rather, since he remained employed, the employer had a “continuous opportunity” to retaliate against him.
Firing not discriminatory. The district court also correctly found that the employee failed to make out a prima facie case of race bias since he didn’t identify a similarly situated employee who was treated better and failed to show a “convincing mosaic of circumstantial evidence” from which bias could be inferred. Though he presented evidence of racial slurs and discriminatory treatment by certain supervisors, the manager who made the decision to fire him committed none of the discriminatory acts.
HWE claim revived. However, the district court shouldn’t have tossed his HWE claim since a jury could find that he was subjected to sufficiently severe or pervasive harassment. For instance, since he claimed that two supervisors used the “N-word” around him to gauge his reaction, a reasonable person could perceive their intent was to humiliate him. Also, the incident was not isolated since there was much more evidence of other racial hostility. Indeed, one of the supervisors also told him that he was being mistreated because he was dating a white woman.
Another supervisor who drove a car with a confederate flag called him “boy” and the coworker known as the “grand wizard” used “you people” and “boy” to tell him he was not welcome in the break room. In addition to also claiming he was given more degrading assignments than his white coworkers, the employee also described the incident in which he was sent to a hot toolshed when he complained of overheating, instead of allowing him to join coworkers in the air-conditioned truck.
Context of “boy” comments suggest animus. The district court noted that calling a black man “boy” is “not always evidence of racial animus,” adding that white employees were also sometimes called “boy.” However, the lower court ignored the context of the use of the term. For instance, the terms “boy” and “you people” was used by someone known as the “grand wizard.” Others who used the term also used the N-word when speaking with him and/or called him gay slurs, drove cars with confederate flag decals, or refused him (but not white employees) air conditioning. Given that context, it could reasonably be inferred that the word “boy” was meant with racial hostility.
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