Employment Law Daily Racially insensitive comments, including about black employee’s hair, not objectively intolerable
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Thursday, August 29, 2019

Racially insensitive comments, including about black employee’s hair, not objectively intolerable

By Marjorie Johnson, J.D.

A white coworker told her that her natural hairstyle was unprofessional and nicknamed her “Angela Davis.” But she failed to show she suffered intolerable work conditions; in fact, she called the job a “great experience” in her resignation letter.

An African-American employee who had a fairly successful career at International Paper Company, but also claimed that she was subjected to mistreatment by supervisors and racially insensitive comments by her peers, failed to revive her Title VII combined hostile work environment/constructive discharge claim. While “no doubt frustrating and unpleasant,” her working conditions could not be construed objectively as leaving her no choice but to resign. Affirming dismissal of her lawsuit on summary judgment, the Fourth Circuit also found that she failed to show she suffered an adverse employment for purposes of her retaliation claim, and didn’t identify proper comparators to support her Equal Pay Act claim (Evans v. International Paper Co., August 27, 2019, Quattlebaum, A.).

Promoted and recognized. The employee was hired by International Paper Company as a process engineer in 2007 and over the next several years, received several promotions and recognitions. However, despite her successes, she experienced problems at the company that she attributed to her race and gender. Specifically, she asserted that she was treated less favorably than her white, male peers and that those same peers made racially insensitive and offensive comments to her.

Mistreatment. According to the employee, shortly after she was transferred to a different facility in 2009, she heard two coworkers say that they did not want here there. Later, upon a return from maternity leave, she learned that certain white male coworkers had said they thought that they had “run her off.” She also claimed that her supervisor criticized her decisions, yelled at her, and treated her less favorably than her white male peers. When she told him about her peers’ mistreatment of her, he took no action despite acknowledging that she was being mistreated.

The employee also pointed to an instance in 2014 when a subsequent supervisor asked one of her white male subordinates to facilitate meetings and a group dinner with one of her customers. When she asked why she was not facilitating the visit, the supervisor said he thought she was not available and gave her a role in the meeting with the customer. She also claimed that her 2014 annual evaluation was overly critical, even though she received the second-highest rating.

Racially insensitive comments. The employee alleged that in 2012, a white male coworker referred to another African-American female employee as acting like she was “from a shoot em up, bang bang neighborhood.” She complained to her supervisor, who did nothing about it, and also to HR, who encouraged her to speak with her supervisor about her concerns.

Then in 2015 a white coworker told her that her natural hairstyle was unprofessional and nicknamed her “Angela Davis,” after the civil rights and Black Panther activist who he thought had a similar hairstyle and had stirred up a lot of trouble. Her supervisor also told her that her hairstyle was not appropriate for the office, while another white coworker often commented about her hair texture and her different hair styles. He also told her she was using a different dialect and made jokes about her education.

Resignation. In March 2015, the employee submitted her notice of resignation. Her “stunned” supervisor asked if there was anything he could do to help, stating “I am sure we can accommodate your needs.” He also sent her a pen and a letter thanking her for her efforts, hard work and leadership, and wishing her “the best of luck in your future endeavors.” Her team also hosted a farewell lunch for her. In her exit interview, she discussed the racially insensitive comments and mistreatment leading up to her choice to resign.

Hostile work environment/constructive discharge. The employee alleged that she was constructively discharged as the result of her hostile work environment; the U.S. Supreme Court has recognized this type of combined claim as a “hostile-environment constructive discharge” claim. To defeat summary judgment, she was required to show the requirements of both types of claims. The district court held she failed to do so since the conduct was not sufficiently severe or pervasive.

Conditions not intolerable. The Fourth Circuit affirmed dismissal of the combined claim for the “separate and independent reason” that she failed to show that her working conditions were so intolerable that a reasonable employee would have been compelled to resign. The record reflected many positive aspects of her employment and, while “no doubt frustrating and unpleasant,” her working conditions could not be objectively construed to leave her no choice but to resign. Indeed, she stated in her resignation letter that her time at the company, despite challenges, had been “on the whole, satisfying and productive” and a “great experience.”

Retaliation. She also failed to revive her retaliation claim since the district court properly determined that she didn’t suffer an adverse action. Though she pointed to her 2014 evaluation, she acknowledged that she still received a good rating, and that two “exceeds” ratings in back-to-back years was rare. Moreover, the evaluation comments were constructive feedback regarding her communication with some of her peers, with whom she admittedly did not have the best working relationship. Her supervisor’s act of pointing this out as a growth area—whether rightly or wrongly—did not rise to the level of materially adverse.

She also claimed that her coworker made the Angela Davis comment in retaliation for her reporting discriminatory conduct because, when she asked him more about why she reminded him of Davis, he said that Davis “stirred up trouble.” But a one-time inappropriate comment by her peer did not create a triable issue about a materially adverse retaliatory act by her employer. Moreover, her general complaint that she was treated worse than white employees by being ignored and left out of meetings was also insufficient.

Pay discrimination. Finally, the employee’s unequal pay clam was also properly tossed since she did not point to a proper male comparator. Though she listed seven individuals, she failed to produce evidence that they received higher salaries for performing jobs with the same “effort, skill, and responsibility.”

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