By Marjorie Johnson, J.D.
An African-American employee claimed that after he complained about the incident—which the court found sufficient standing alone to create an HWE—management merely gave a lecture to its workers on the importance of not defacing company property and barely investigated.
An African-American mine worker who accused his employer of engaging in a shoddy investigation after he reported seeing an etching of a clansman on equipment containing the words “KKK” and “Grand Wizard” defeated summary judgment on his state law and Sec. 1981 racial harassment claims. A federal court in Pennsylvania found that while the single incident in the “already dangerous” mine setting could alone be sufficient to create an actionable HWE, a jury could also consider many other alleged instances of racially charged conduct over the years, including a hangman’s noose. A triable issue also existed as to the adequacy of the company’s response since, among other things, it was undisputed that a supervisor interviewed only two workers who admittedly knew about the etching, that HR never conducted its own investigation, and that nobody was disciplined (Robinson v. Consol Pennsylvania Coal Co. LLC, November 27, 2019, Ranjan, J.).
KKK “Grand Wizard” etching. The employee was one of only a handful of African-American workers who worked in the employer’s mine. During his shift in November 2017, he found a racially charged illustration etched into a dust tank of a KKK clansman figure labeled the “Grand Wizard.” He reported the incident to the foreman, who ground off the etching. The employee claimed that the company then only lectured its work crews on the importance of not defacing company property and conducted a half-hearted interview that failed to identify the culprit.
N-word, hangman’s noose. This wasn’t the first instance of racism that the employee experienced in his 13-year tenure. At least twice before, other employees, including two supervisors, used the n-word in his presence. On two other occasions, his coworkers portrayed offensive illustrations or items in the mines—one was a cartoon that depicted black people with “larger lips” and “funny” dress and the other was a “hangman’s noose.”
PHRA questionnaire. Following the KKK etching, the employee submitted a questionnaire to the Pennsylvania Human Rights Commission (PHRC) and after receiving a right to sue letter, filed this lawsuit. He alleged a myriad of federal and state-law claims for employment discrimination and HWE, which the employer sought to have dismissed on summary judgment.
Failed to exhaust Title VII claims. At the outset, the court held that while the employee exhausted his administrative remedies for his Pennsylvania Human Rights Act (PHRA) case, he failed to exhaust his Title VII claims. It was undisputed that he never submitted anything to the EEOC and never received or even requested a right-to-sue letter from the federal agency.
No adverse actions. The employee also failed to advance his PHRA and Sec. 1981 claims of intentional discrimination since he didn’t demonstrate that he suffered any tangible adverse employment actions. He vaguely alleged that at some unspecified time, he was passed over for a promotion to a management position and that he was given less opportunistic assignments that deprived him of bonuses. Noting that he never applied for a supervisory position and never took the test required to become qualified for such a position, the court found these allegations “far too speculative.”
Actionable HWE. Allowing his PHRA and Sec. 1981 HWE claims to advance, the court rejected the employer’s contention that he wasn’t subjected to sufficiently severe or pervasive conduct. Notably, the Third Circuit held in Castleberry v. STI Group that even one isolated incident can be enough in certain circumstances. That case involved an African-American plaintiff who was working on a fence-removal project when a supervisor told him and his coworkers that if they had “nigger-rigged” the fence, they would be fired. The appeals court found that the supervisor’s single use of the “n-word” was adequately “severe” to state an HWE claim, citing to an Eleventh Circuit’s decision where a racially offensive carving was deemed severe enough to create a HWE.
Single incident in “dangerous” setting. Here, the KKK etching was like—and maybe worse than—the use of the n-word and the offensive carving in the circuit court cases, and standing alone could allow a reasonable jury to find that the employee’s work environment was objectively hostile. But a jury could also consider the many other alleged instances of racially charged conduct, including the hangman’s noose. It would also be reasonable to conclude that the racial hostility of the incidents was enhanced, since within the “already dangerous” mine setting, a jury could find that coworkers and supervisors “depicting racially violent items and images would create a particularly hostile and threatening environment.”
Was employer’s response adequate. Triable issues also existed as to whether the employer’s response was sufficient to eliminate its potential for liability. Looking solely at the KKK etching and its aftermath, it was questionable whether the supervisor reacted appropriately and took “prompt and adequate remedial action.” For one thing, it was disputed what he said to his work crews—did he discuss the company’s anti-harassment policy or just the defacing company property? It was also questionable whether his interview of just two individuals who operated the dust tanks was sufficient to justify clearing them of wrongdoing.
Indeed, even the undisputed facts could lead a reasonable jury to determine that the employer was negligent in its remedial measures. In particular, it was undisputed that the supervisor only interviewed the two men and that HR never interviewed even those two. It also undisputed that these men admitted to having seen the progress of the KKK etching over time, that no perpetrator was found, and that nobody was disciplined as a result of the incident.
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