Labor & Employment Law Daily Supervisor’s remark about ‘new policy’ of ‘no more Cuban people’ not direct evidence of discriminatory discharge
Thursday, June 11, 2020

Supervisor’s remark about ‘new policy’ of ‘no more Cuban people’ not direct evidence of discriminatory discharge

By Marjorie Johnson, J.D.

Though the worker argued that the comment directly showed that the supervisor no longer wanted to have Cubans working for the employer as a new company policy, it only provided direct evidence for a failure-to-hire claim and not his firing claim.

A supervisor’s comment that there was a “new policy in the company, no more Cuban people” did not constitute direct evidence that a Cuban foreperson’s discharge was discriminatory, and because the employee did not attempt to prove his claim of national origin bias through circumstantial evidence, summary judgment against him was affirmed. However, the Eleventh Circuit reinstated his hostile work environment claim since a jury needed to decide whether the supervisor’s near-daily derogatory remarks to Cuban workers over a two-month period—including calling them “shitty Cubans,” “f*cking Cubans,” and “crying, whining Cubans”—were sufficiently severe or pervasive (Fernandez v Trees, Inc., June 9, 2020, Pryor, W.).

Derogatory remarks. The employee worked for the company from 2015 to 2016 as a crew foreperson and his duties included driving a company truck to job sites and operating machinery to trim trees located along powerlines. He worked without incident until his supervisor started making derogatory comments about the Cubans he supervised after being involved in a physical altercation with a Cuban worker. The remarks were purportedly made on a near-daily basis and included “shitty Cubans,” “f*cking Cubans,” and “crying, whining Cubans.” The supervisor also declared a “new policy in the company, no more Cuban people.”

Complaints ignored. The employee expressed displeasure with the comments at a team meeting and asked the supervisor not to make general negative statements about Cubans but instead address his concerns with workers’ performance to those specific workers. Though his coworkers also complained about the offensive remarks, the supervisor’s behavior continued.

At-work suicide attempt. About two months after the initial altercation which spawned the supervisor’s offensive remarks, the employee attempted to commit suicide at the jobsite by dousing himself with gasoline and reaching for a lighter. A coworker tackled him before he succeeded, and the parties dispute whether he was subsequently terminated or resigned.

SJ granted to employer. The employee subsequently brought this lawsuit asserting hostile work environment and national origin bias claims under Title VII and the Florida Civil Rights Act. The court dismissed both claims on summary judgment, ruling that he supervisor’s misconduct was neither severe nor pervasive enough to create a hostile work environment and that he failed to establish a prima facie case of bias.

Hostile work environment claim revived. Since the employer did not dispute that the employee’s work environment was subjectively hostile, at issue was whether he presented sufficient evidence that the harassment that he suffered was sufficiently severe or pervasive to create an objectively hostile work environment. Viewing the evidence “cumulatively and in the totality of the circumstances,” the Eleventh Circuit found that a triable issue existed on this issue for the jury to decide.

Pervasiveness. First, he provided ample evidence that the harassment was frequent. He testified that his supervisor made the derogatory remarks on a near-daily basis and his coworkers also identified more than 10 specific examples of discriminatory remarks made during the two-month period. Even if these examples were the only discriminatory remarks his supervisor made, the Eleventh Circuit has held that harassment which occurred at a lower frequency was sufficiently pervasive. Moreover, he and his coworkers gave specific examples of his supervisor’s belittling of Cuban workers, including the supervisor’s describing them as “crying, whining Cubans” and announcing a “new policy” of “no more Cubans.”

Sufficiently severe. Finding that a reasonable jury could also conclude that the harassment was sufficiently severe, the Eleventh Circuit rejected the employer’s contention that the employee was only subjected to “a few instances of offhanded comments.” Rather, the supervisor “continually—often in vulgar terms—disparaged, ridiculed, and insulted all the employees in a protected class and persisted in doing so despite [their] complaints and specific requests that he stop.” Thus, the misconduct went beyond the “mere utterance of an epithet.”

Other factors. There was also sufficient evidence that the supervisor’s conduct was highly humiliating, particularly since the employee and his coworkers testified that the supervisor frequently degraded Cuban workers in meetings and in front of other teams at job sites. And while the Eleventh Circuit was hesitant to find that his on-the-job suicide attempt was “wholly unrelated to his job performance,” his claim would not fail simply because he provided somewhat “attenuated evidence on the impact of the harassment on his job performance.”

Comment not direct evidence. However, the appeals court refused to revive his discriminatory discharge claim, rejecting his contention that the supervisor’s comment, “new policy in the company: no more Cuban people,” was direct evidence of national origin bias. Though he argued that the comment directly showed that the supervisor no longer wanted to have Cubans working for the employer as a new company policy, the statement only provided direct evidence for a failure-to-hire claim and not the employee’s firing claim.

Required inference. To prove that the employer terminated him because of national origin discrimination, his supervisor’s statement required the inference that the “new policy” extended beyond hiring “no more Cuban people,” but also to firing those Cubans who were already employed. As a result, the statement—although reprehensible—was circumstantial rather than direct. And because the employee relied solely on his direct evidence argument to support his discriminatory discharge claim, he failed to establish that summary judgment was inappropriate.

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