By Wayne D. Garris Jr., J.D.
The employee was fired for refusing to take a drug test after an emotional meeting with management about the alleged mistreatment.
A federal district court in Arizona denied an employer’s motion for summary judgment against the Title VII race-based hostile work environment and retaliation claims of its former apartment building maintenance supervisor. The court found that a property manager’s repeated use of racial slurs, as well as evidence that he tampered with chemicals in the apartment’s swimming pool in order to sabotage the employee’s job, was sufficient to support the employee’s hostile work environment claim. Further, the court found a genuine issue of fact as to whether his termination on the same day he complained about the property manager was retaliatory. After a meeting in which the employee became emotional while complaining about the property manager, the employer asked him to take a drug test; it fired him, however, when he refused to submit to the test (Bailey v. P.B. Bell Asset Management Inc., November 12, 2020, Brnovich, S.).
New property manager. The employee worked as a maintenance supervisor at one of the employer’s apartment complexes. His work environment was satisfactory until a new property manager took over. The employee alleged that the property manager repeatedly called him the “N-word”, “monkey,” and “boy.” Further, he alleged, the property manager made inappropriate sexual comments about residents.
Complaints. The employee and one of the residents complained to the employee’s supervisor about the property manager’s conduct. However, the supervisor did not take any action against the property manager. The resident filed a police report against the property manager for sexual harassment.
Sabotage. The employee alleged that the property manager accused him of being a “snitch” and offered the resident $1,000 to help him get the employee fired. According to the employee, the property manager tried to make it appear as though the employee was stealing, and the resident alleged that the property manager tampered with the chemicals in the apartment pool in order create a health and safety violation.
PIP. After the health department shut down the pool for poor maintenance and lack of chemical upkeep, the employer placed the employee on a performance improvement plan. The employee signed the PIP, but denied that he was responsible for the state of the pool and blamed the property manager.
Termination. The employee sought assistance from his previous manager who scheduled a meeting with the employee’s current supervisor and an HR representative to discuss the employee’s issues with the property manager. The employee admitted that during the meeting, he told the HR rep that “you probably think I’m on drugs” and “you probably think I’m crazy” as he communicated his allegations. Several employees asserted that after the meeting, the HR rep asked the employee to take a drug test. The employee was fired shortly after the meeting for refusing to take the test.
The employee filed suit alleging race- and sex-based hostile work environment, retaliation, and a state-law claim for wrongful termination. The employer moved for summary judgment.
Sex-based hostile work environment. The court dismissed the employee’s sex-based hostile work environment claim for failure to exhaust administrative remedies. His EEOC charge failed to list any details or claims of sex discrimination.
Race-based hostile work environment. As to his race-based hostile environment claim, the employer argued that the property manager’s conduct was not sufficiently severe because he only called the employee the N-word five times, called him a “monkey” three times, and referred to him as “boy” several times over an 11-month period. The court rejected this argument, noting that the employee did not allege that the property manager used the N-word only five times, but used a specific phrase that included the N-word “at least” five times.
Furthermore, the court stated that even if it didn’t consider the property manager’s use of those slurs, the employee would have still adequately stated a claim for race-based hostile work environment. The court was persuaded by the resident’s allegation that the property manager offered her $1,000 to “help get this [n***a] fired” and that the property manager tampered with the pool chemicals in order to create a health and safety violation—which did occur.
Retaliation. Turning to the retaliation claim, the court held that the temporal proximity between the employee’s complaint about the property manager and his termination supported an inference of causation. The employee was fired, purportedly for refusing to take a drug test, on the same day that he reported the property manager to HR.
The court concluded that the employee put forth sufficient evidence to show that the employer’s stated reason for the termination, the employee’s refusal to take a drug test, was a pretext for discrimination. Both the employee and the resident asserted that they had made multiple complaints to the employee’s supervisor about the property manager’s conduct and that the supervisor refused to take any action. There was also evidence that the property manager had stated that the supervisor would take his side and believe anything he said.
Lastly, the court noted that the employee had a positive work performance before he started working with the property manager; and he only received negative feedback, regarding the pool, after complaining about the property manager. These facts, along with the temporal proximity, were enough to preclude summary judgment on the employee’s retaliation claim.
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