Employment Law Daily Supervisor’s use of N-word to deny he was racist helps revive officer’s hostile environment claim
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Wednesday, July 11, 2018

Supervisor’s use of N-word to deny he was racist helps revive officer’s hostile environment claim

By Joy P. Waltemath, J.D.

Vacating and remanding in part, the Seventh Circuit revived the hostile environment claim of one university police officer who was called the N-word by his supervisor and the retaliation claim of another officer who, after refusing to implement the supervisor’s retaliatory treatment of the first officer, was slapped with unwarranted disciplinary notices and then demoted for his trouble. There was plenty of admissible evidence to send these claims to a jury, said the appeals court, finding they should not have been dismissed on summary judgment. Although the district court refused to award any attorneys’ fees to the first officer, whose retaliation claim against his supervisor was the only claim to get to a jury, the appeals court now revived two claims, and if either a trial or a settlement resulted in more than nominal damages, the attorneys’ fee analysis would need to be revisited as well (Robinson v. Perales, July 2, 2018, Rovner, I.).

The litigation. Two police officers employed by the University of Illinois at Chicago sued the university’s board of trustees and four individuals for race-based discrimination, harassment, and retaliation. All but one of the claims were dismissed on summary judgment. One officer, Robinson, then prevailed at trial on his retaliation claim against his supervisor, Perales, but he only recovered nominal damages of $1. Robinson unsuccessfully sought a new trial and to alter the judgment; he also sought attorneys’ fees and he didn’t get them either. Perales also moved for judgment as a matter of law; it too was denied. Both officers and Perales appealed.

Supervisor’s use of “N-word.” After four years on the force, Robinson (who identifies as biracial; his father is black) was asked by Perales why he did not shave in conformity with the department’s grooming policy. Robinson brought in a doctor’s note citing his folliculitis (a skin condition affecting some black men that is exacerbated by shaving), but it was deemed inadequate, and he was required to go to the university’s health services to obtain an exemption.

In a follow-up meeting between the two also attended by an African-American lieutenant, Perales told Robinson that his inquiry about the shaving requirement was not based on race. Telling Robinson that he was Hispanic, also a minority, and that he had past experiences with racism, the supervisor repeatedly used the N-word to explain that he was “not like that.” The African-American lieutenant testified that he believed the supervisor’s use of the word with a subordinate under the circumstances was inappropriate, which he told Perales. A month later in another meeting, when Robinson showed Perales the bumps and scars on his neck caused by shaving, Perales responded “yeah, I see it, it must be the n****r in you.” Another officer overheard the comment.

Payback. This time, Robinson complained, and eventually internal affairs recommended a five-day suspension, which the chief found inadequate; he imposed a 20-day suspension instead. Robinson contended, and other officers testified, that as a result Perales scrutinized him much more closely; Spangler, the second plaintiff in this appeal who had been a sergeant with some authority, was told by Perales to “get some shit” on Robinson and his partner, not to give them anything they wanted, and that it needed to come from Spangler so Perales would seem uninvolved. When Spangler refused, he received two unwarranted notices of infraction (one the very next day), both of which were ultimately dismissed by the chief. However, Robinson was passed over for promotion that year, and Spangler was demoted.

The appeal. There were a number of issues raised in the appeal. Among them were that the appeals court found Robinson failed to present to the jury any theory of imputed liability to the Board based on Perales’ behavior; he did not request any jury instructions to that effect and so waived that claim. He also waived any challenge to the special verdict forms, which allowed the jury to find that his damages did not have a monetary value.

N-word as a hostile environment. Without considering the circumstances as a whole, the district court had concluded that a few instances of the use of the N-word “were not significant enough to meet the standard for hostile environment.” Disagreeing for a number of reasons, the Seventh Circuit noted that this was generally a fact question for a jury. Perales’s multiple uses of the word n****r in combination with his heightened scrutiny of Robinson and asking others to take action against Robinson were sufficient to create a triable jury issue. First, the district court misstated the applicable legal standard, declaring that the conduct at issue must be “severe and pervasive” rather than “severe or pervasive.” Second, in light of its threatening use throughout American history, the N-word can be highly disturbing in its impact.

Apophasis. Third, Perales was not simply a coworker; he was a supervisor with direct authority over Robinson, and he directed the slur at Robinson. The appeals court did not agreed that the first time Perales used this racial epithet, he was merely quoting the language of other officers in “apparent disapproval.” Instead, the supervisor was employing apophasis, the rhetorical device of denying one’s intention to speak of a subject that is at the same time mentioned or insinuated, which “has the effect of emphasizing the subject while maintaining plausible deniability,” said the Seventh Circuit. Here, Perales denied that he was racist or that he used the N-word “by using the highly objectionable term multiple times as part of his purported denial,” and the trial court should not have construed that in the supervisor’s favor on summary judgment. The second instance in which he used the term directly correlated Robinson’s failure to shave to being a “n****r.” Construed in the officer’s favor, these two instances were intended to disparage and humiliate Robinson.

In totality. Fourth, the district court failed to consider the totality of Perales’s conduct, dividing out some conduct as retaliation instead of including it as harassment, but a jury could consider all of the supervisor’s conduct towards Robinson, including increased scrutiny, his directives to others to “get shit” on Robinson in order to write him up and deny him time off or special assignments, as well as his use of the N-word. That the officer was able to continue preforming his job well is not dispositive: “Resilient employees who manage to perform well in trying circumstances may still prove a hostile environment claim,” concluded the appeals court, sending this claim to a jury.

Refusal to retaliate is protected. Revisiting the retaliation claim of the second officer, the Seventh Circuit stressed that context matters. Here that context was that, shortly after Robinson filed a grievance complaining about Perales’s use of the N-word, Perales called Spangler (the second officer in the litigation), Robinson’s watch commander at the time, into a meeting, telling him to follow Robinson and his partner around and “get some shit on them, and write them up”; “write him up for anything [he] could find”; and deny them any special assignments and time off that they requested. Spangler asserted that Perales said this while he was complaining about Robinson’s grievance and said Robinson was a “threat to all supervisors.” Spangler was told that everything had to be accomplished through Spangler so that Perales would seem uninvolved, but Spangler refused.

Materially adverse actions. The very next day, Spangler was given an unfounded disciplinary notice; he was issued another one two months later. Although both charges were ultimately dropped after the police chief deemed them unfounded, Spangler was soon demoted from watch commander, a position he had held for four years, down to street sergeant; his pay rate was reduced. According to Spangler, Perales told him directly that Perales made the decision to demote Spangler, but another officer claimed the decision had been his. And, although the district court found material fact issues about protected activity and materially adverse actions (refusal to retaliate certainly constitutes protected activity, and false notices of infraction, plus the demotion from watch commander to street sergeant, clearly qualify as materially adverse, noted the Seventh Circuit), but the district court found inadequate evidence of causation.

No causation? Granting summary judgment, the district court had found that another officer, who was not aware of Spangler’s protected activity, alone made the decision to demote him. It characterized as inadmissible hearsay Spangler’s testimony that Perales admitted that he had made the demotion decision. But this admission was not hearsay, the appeals court explained: Perales is a party and he purportedly made the statement to Spangler, who offered Perales’s statement against Perales, and it was sufficient to create a genuine issue of material fact regarding who made the decision.

Cat’s paw. Additionally, the other officer conceded that he consulted Perales before deciding to demote Spangler, so even if the other officer had been the ultimate decisionmaker, a jury could conclude that Perales used him as a cat’s pay to demote Spangler. Spangler also presented additional evidence of causation, including the timing of the retaliatory acts and pretext evidence. The first false disciplinary notice came within a day of Spangler refusing to make false charges against Robinson; the second false notice followed soon after, and then Spangler, who had been a watch commander for four years, was unceremoniously demoted, said the Seventh Circuit, findings enough to send Spangler’s retaliation claim to a jury as well.

Robinson’s retaliation claim to jury. As to the supervisor’s appeal of the denial of judgment as a matter of law on Robinson’s retaliation claim, the appeals court agreed that this was not simply a case of heightened scrutiny applied to the employee’s performance. The jury was entitled to believe evidence that “Perales actively planned to damage or perhaps even end Robinson’s career as a UIC police officer and that he attempted to enlist others in that effort.” The fact that Robinson made additional complaints was not relevant to the objective test regarding the effect the supervisor’s actions would have on a reasonable person, said the appeals court, agreeing that there was an adequate basis for the jury to find in favor of Robinson on his retaliation claim.

Attorney’s fees. Nor did the appeals court disagree with the district court’s decision to deny attorneys’ fees because of the extremely limited success Robinson achieved in relation to the relief he sought: All but one of his claims were defeated on summary judgment, and at trial, the board of trustees was vindicated and Perales was ordered to pay only one dollar in damages—a negligible recovery, the court concluded. Given that Robinson’s counsel suggested figures ranging from $50,000 to $300,000 in compensatory damages and $500,000 or more in punitive damages, the district court did not abuse its discretion in “gauging the one dollar award” against those figures. But on remand, because summary judgment was being vacated on two counts (Robinson’s hostile environment claim and Spangler’s retaliation claim), if a trial or settlement resulted in more than nominal damages, the district court would have to revisit its analysis of attorneys’ fees.

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