By Kathleen Kapusta, J.D.
Although a stuffed gorilla wearing an African-American employee’s work shirt with his name on it may alone have been enough to deny summary judgment against his hostile work environment claims, the federal district court in Connecticut found additional factors, including the employer’s half-hearted investigation into that incident and another complaint of race bias years earlier, were in combination enough to allow the claims to proceed to trial. His assault claim also advanced as did his retaliation claim, in part (Rogers v. City of New Britain
, May 17, 2016, Underhill, S.).
The city water department employee alleged that on one day in 2004, a white coworker said something to the effect of “What’s up, my ni**a?” The employee complained and during a fact-finding proceeding, in which the employee was not asked to testify, the coworker denied using the slur. He did, however, agree to sensitivity training.
Seven years later, the employee complained that he repeatedly received an undesirable work assignment that was supposed to go through a rotation with other employees. When he accused his supervisor of racial discrimination, his supervisor purportedly became very angry. The employee’s sick leave request was subsequently denied.
The next month, he arrived at work and saw the stuffed gorilla wearing his shirt. His supervisors allegedly laughed at him and told him not to take it personally, that it was the work of a sick person who needed counseling. Although the department director recommended diversity training, it was not clear if that ever took place. The employee subsequently sued, asserting claims under Title VII and Section 1983 for HWE and retaliation along with a claim of assault against his supervisor.
The court first found the employee’s complaint about being called “my ni**a” and his accusation of race discrimination in connection with being assigned to “pipe gang” duty multiple times out of rotation qualified as protected activity. And while the employer argued he was denied sick leave because of a broken water main and lapses in performance led to a bad performance review, it did not explain why he was assigned to pipe gang duty out of rotation. Thus a fact question existed as to this issue and as to whether the employer’s alleged motives were pretexual. The court, however, granted summary judgment on his claim that he was retaliatorily passed over for promotion as there was no evidence he applied for a promotion.
Hostile work environment.
As to the employee’s HWE claim, the alleged use of the word “ni**a,” and the gorilla incident were both shocking and severe. Although the “ni**a” incident might have been too old to constitute a viable independent cause of action (the employer did not raise that argument), it supported the employee’s claim that he was subjected to a racially hostile environment. There was also evidence that investigations into both incidents were half-hearted, if not perfunctory. The employee was not called as a witness in the first incident, and there was apparently no finding of guilt though his account was corroborated. As to the second incident, no culprit was ever identified despite the existence of a video and it was not clear that the recommended diversity training ever occurred.
The court also noted the employee’s allegations of persistent anti-gay hostility directed at other employees, which tended to support the view that the workplace was generally and broadly hostile and antagonistic. The combination of all these factors led to the denial of summary judgment on his HWE claims.
Allegations that his supervisor angrily “slammed” his chair back after the employee accused him of racial discrimination, left his place in order to more closely approach him, and “got in his face,” were sufficient to make out a claim of assault under Connecticut law, said the court, finding that the nature of that interaction created fact questions for a jury.
The court next found that the water department was not a proper defendant and any claim the employee brought against his employer should be a claim against the city. Observing that his Section 1983 claims were equal protection claims, the court pointed out that he argued the conditions of the HWE were “so widespread as to imply constructive acquiescence.” In light of the epithet and gorilla incidents, both of which were complained of, investigated, and resulted in minimal responses (and perhaps supported by allegations of pervasive homophobic humor and jocular abuse), the evidence could support a jury finding that knowledge of the HWE was communicated up the chain of command, that its seriousness was known, but that it was tolerated or handled only perfunctorily, implying constructive acquiescence. Thus, thee employee had a viable Section 1983 claim against the city and his supervisors in their official capacity.
The employee’s claims against two supervisors in their individual capacities, in which he asserted that they were directly complicit in the creation of a HWE and retaliation for his complaint, also survived but his claim against the water department director failed. Finally, the court found the defendants were not entitled to qualified immunity as the right to be free from racial discrimination and abuse in the workplace was clearly established before the events at issue.