Employment Law Daily Single use of n-word, months after non-race-based harassment began, didn’t create hostile environment
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Friday, August 23, 2019

Single use of n-word, months after non-race-based harassment began, didn’t create hostile environment

By Marjorie Johnson, J.D.

While the employee had complained for months that his supervisors yelled at him and used profanities, there was no evidence their conduct was based on his race as opposed to his poor performance and unsafe conduct.

An African-American employee could not show he suffered harm from a black supervisor’s single use of the n-word that was distinct from the distress he had been suffering due to months of non-race-based harassment from supervisors unhappy with his performance, the Seventh Circuit held, affirming summary judgment against his Title VII hostile work environment claim. Also rejected was his contention that the district court erred in dismissing his retaliation claim by improperly “cherry picking” negative evidence about his employment record. While he may have received some positive feedback, “a smattering of decent reviews doesn’t overcome the overwhelming number of documented problems—including serious safety issues” (Smith v. Illinois Department of Transportation, August 21, 2019, Barrett, A.).

Rocky probationary period. On August 1, 2013, the employee began his six-month probationary period as an emergency traffic patrol minuteman with the Illinois Department of Transportation. At the outset, his supervisors reported that he had trouble following instructions. He also engaged in unsafe conduct, including stopping short while driving in an express lane, driving away from a gas pump with the nozzle still inserted, and almost hitting a police car. In addition, his failure to follow instructions also caused a supervisor to be pinned between vehicles.

He also received progressively worse evaluations. In mid-September, he received two marks of “unsatisfactory.” In October, a supervisor reported he was “not getting any better” and in November, he was “very behind.” His problems continued into December, with emails describing him as being argumentative, unstable, reckless, and unsafe. His performance evaluation in January rated him unsatisfactory in five categories.

Repeated complaints of bias. Meanwhile, the employee felt he was being treated too harshly. On August 22, he complained about a supervisor’s “abusive language” and that another had threatened to fire him for being confrontational. In October, he complained about illegally withheld pay. In December he complained about being denied assistance with a disabled vehicle, which he claimed was discriminatory and retaliatory, and later that month complained about discriminatory scheduling. Finally, on December 31, he complained to the internal EEO office. Three days later, he received a “statement of charges” that sought to fire him for unsatisfactory work performance.

N-word incident. About two weeks later, on January 16, he had a run-in with a black supervisor who had recently learned about his EEO complaints. The supervisor angrily remarked that there would be “eighty-one of us against one of you when we go to trial,” that the employee was going to lose everything, and that he was a “stupid ass n****r.” After the employee was fired about two weeks later, he brought this Title VII lawsuit.

Properly excluded testimony. At the outset, the Seventh Circuit rejected his contention that the district court erroneously excluded the testimony of his industrial-relations expert witness. The witness had testified the employee’s trainers had created a race-based hostile work environment and opined that he was fired for complaining about race discrimination. However, she never talked to the employee or his supervisors or review their deposition testimony. Such reliance on a one-sided set of facts cast significant doubt on the soundness of her opinion.

An affidavit of a supervisor that said favorable things about the employee was also properly excluded due to a lack a proper foundation and being “replete with generalized assertions.” While the supervisor claimed to have witnessed the employee “being discriminated against on many different occasions by the department and its agents,” he did not state who discriminated, what they did, and when they did it. The affidavit also asserted that the black supervisor called the employee the n-word “frequently,” but did not specify whether he heard these slurs himself or offer any detail about the contexts in which they were uttered.

No retaliation. Turning to the merits, the Seventh Circuit refused to revive his retaliation claim since no reasonable jury could find that he was fired because of his complaints rather than for poor performance, given the extensive evidence that he failed to meet legitimate expectations. Though he claimed the court “cherry picked” negative evidence to create a misleading narrative, ignoring positive feedback that he had received, “a smattering of decent reviews doesn’t overcome the overwhelming number of documented problems—including serious safety issues.”

Harassment not race-based. Also refusing to revive his hostile work environment claim, the appeals court found that most of the harassment was unconnected to his race. He had argued that supervisors unlawfully harassed him by directing profanity at him, such as telling him to “shut the f*** up” and calling him a “stupid dumb mother**.” He failed, however, to connect any of these epithets to his race and acknowledged that one of the supervisors was “equal opportunity” in dishing out profanity.

N-word incident didn’t create HWE. While the incident in which a black supervisor called him a “stupid ass n****r” after learning he had filed an EEO complaint was plainly race-based harassment, and the n-word is an “egregious racial epithet,” it was not enough that the word was uttered. The employee needed to also show the utterance changed his subjective experience of the workplace, which he failed to do.

As early as the first month on the job, he complained of a “hostile work environment,” and by his own account his supervisors made him miserable throughout his tenure. But there was no evidence they berated him because he was black. And by the time the supervisor uttered the n-word, termination proceedings had already begun. While things certainly could have gotten worse after the racially charged confrontation, he offered no evidence that they did. Instead, he presented the confrontation as yet another instance of the same ill treatment that he had been receiving all along.

That was insufficient under Title VII as he needed to point to some evidence that he suffered harm from the black supervisor’s race-based harassment that was distinct from the distress that non-race-based harassment he was already causing him. Without evidence that the supervisor’s outburst changed his subjective experience during his last two weeks of work, a reasonable jury could not resolve the claim in his favor.

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