Labor & Employment Law Daily Lone black employee, ‘harassed’ and excluded by Hispanic coworkers, advances disparate treatment, hostile environment claims
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Monday, July 22, 2019

Lone black employee, ‘harassed’ and excluded by Hispanic coworkers, advances disparate treatment, hostile environment claims

By Kathleen Kapusta, J.D.

The harassment, she claimed, started because her Hispanic coworkers were agitated by her efforts to obtain a student services position over an Hispanic applicant.

Denying summary judgment against the Title VII and Section 1981 claims of the lone African-American employee in a school’s front office, who alleged she was treated differently than her Hispanic coworkers, a federal court in Arizona found fact issues as to whether Spanish fluency was required for a job for which she was not selected as well as to her conduct in the workplace as compared to that of her coworkers. Her hostile work environment claim advanced as well (Lucas v. Tempe Union High School District, July 15, 2019, Teilborg, J.).

When she began working as a high school receptionist in 2014, the employee was supervised by a Hispanic assistant principal. She received good performance evaluations and her contract was renewed for the following two years. In March 2016, she applied for a student services position but a Hispanic applicant was selected instead.

Harassed. According to the employee, immediately after she applied for the job, her Hispanic coworkers began harassing her. Her complaints led to several stressful meetings with superiors, she began suffering negative health events, and she started seeing a therapist. The harassment, which included false notes to her superiors from her coworkers about her alleged workplace behavior, continued, she claimed, and she eventually filed an EEOC charge. She was then placed on a performance improvement plan and at the end of the school year, her contract was not renewed.

Disparate treatment. Although the employer argued that the employee’s performance began to decline beginning in 2016, she claimed the negative evaluations she received were based on false statements from her coworkers, who were upset by her efforts to obtain the student services position over an Hispanic applicant. This, said the court, created a fact issue regarding her level of performance.

Adverse actions. The employer conceded that she alleged three actions that could qualify as adverse employment actions: she received unfair write ups and was placed on a PIP; she was not selected for the student services position; and her contract was not renewed.

Similarly situated? Claiming that Spanish fluency was a job requirement for the student services position and that the employee did not speak Spanish, the school district argued she was not similarly situated to the Hispanic applicant. The employee, however, countered that the district “advertised the job as Spanish preferred but not required,” the individual hired did not speak fluent Spanish, and the predecessor in that position also did not speak Spanish. Pointing to the district’s statement that the selectee was “nearly” fluent in Spanish, the court found it did not meet its own purported fluency requirement and thus there were disputed fact issues regarding the job requirements and qualification distinctions between the employee and the selectee. Accordingly, the employee made out a prima facie case that she was treated differently than the successful candidate.

As for her placement on the PIP, the district argued that it was in part because the employee socialized constantly at work and was always on her cell phone. Finding disputed fact issues regarding workplace conduct, the court noted the employee’s contention that her coworkers could socialize and freely use their cell phones without being disciplined.

Pretext. And while the district argued that the employee was not selected for the position because she lacked the required skills possessed by the selectee, the court again pointed to the employee’s contention that Spanish fluency was not required and the selectee was also not fluent in Spanish. Unable to conclude which position was more credible, especially without a copy of the job description, the court found a fact issue regarding pretext. Similarly, the employee’s claims that she acted no differently than her Hispanic coworkers who were not placed on PIPs and that her performance was satisfactory and the complaints about her were based on false information provided by her coworkers also called into question the district’s stated reasons for placing her on the PIP and not renewing her contract.

Hostile work environment. As to the employee’s hostile work environment claim, she alleged her coworkers excluded her from office events, spoke Spanish to each other and looked at her and laughed, and left a photograph of Hispanic coworkers on her desk labeled, “Smile every day, 100 Burrito Nation.” The photograph, she claimed, was part of a plan to get rid of her by delineating who was not part of the group.

But much of this conduct, the court observed, was not actionable employment discrimination. That her coworkers made fun of her by speaking Spanish to each other and laughing did not rise to the level of a Title VII violation. Nor does excluding a coworker from office events, in isolation, rise to the level of actionable discrimination.

Burrito Nation. Being repeatedly singled out as the only member of her race in the office contributed to a hostile work environment, the employee claimed, and the “Burrito Nation” incident was a turning point in her employment experience because it was an act of bullying. Noting that the district did not provide an alternative explanation, the court found it could not conclude that the photograph would not be seen as discriminatory to a reasonable person in the employee’s position.

Further, she claimed, after she complained about the Burrito Nation incident, the associate superintendent only “half-heartedly” investigated, failing to interview principal actors who were members of his same race. Her coworkers then began keeping false notes on the employee, which turned into complaints against her, “hostile meetings” with supervisors, and placement on the PIP. “All together,” said the court in denying summary judgment, “the confluence of circumstances demonstrates the pervasiveness of the allegedly discriminatory conduct.”

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