Labor & Employment Law Daily Tone of voice, context in calling subordinate ‘boy’ supported Title VII race bias claim
Tuesday, May 29, 2018

Tone of voice, context in calling subordinate ‘boy’ supported Title VII race bias claim

By Lorene D. Park, J.D.

Considering the “context, inflection, tone of voice, local custom, and historical usage” of the term “boy” when speaking to a black employee, a federal district court in Utah denied summary judgment on Title VII claims by an apprentice electrician who testified that a manager persisted in calling him “boy” and did so with an angry tone after the apprentice objected that the term is racist. The manager then terminated the apprentice from the project during the same interaction. On these facts, a reasonable jury could find unlawful discrimination and retaliation, concluded the court. There was insufficient evidence of malice to support punitive damages, though (Evans v. Coates Electrical & Instrumentation, May 23, 2018, Kimball, D.).

“Boy, you work for me.” The plaintiff in this Title VII suit was placed through a staffing agency to work for Coates Electrical as an apprentice electrician starting in April 2015. On April 8, he was sent by his supervisor to retrieve a tool from the toolshed. A project manager saw him in the toolshed and asked what he was doing. The plaintiff said he was looking for a tool as directed by his supervisor and the project manager replied, “Boy, you work for me.”

Though the plaintiff asked him to not use the word “boy,” the manager persisted. The plaintiff then said he was going to complain of race discrimination. In response, the manager allegedly said: “Boy, take off that harness. You are out of here. You’re fired.” The plaintiff complained of discrimination but nothing was done and he was not given any further projects with Coates.

Lawsuit. Filing suit against Coates, the plaintiff claimed that it discriminated against him when the manager called him boy and terminated him, and retaliated against him when he objected to the racial slur. He also claimed Coates is liable for punitive damages because it acted with malice or reckless indifference. In prior proceedings, the court denied in part Coates’ motion to dismiss, finding among other things that the plaintiff plausibly alleged that Coates was his joint employer.

When does the word “boy” show racial animus? Now moving for summary judgment, Coates argued that the plaintiff could not make a prima facie showing that he was treated less favorably than non-black employees or was terminated under circumstances raising an inference of bias. Analyzing the issue, the court explained that the Supreme Court in Ash v. Tyson Foods, Inc. listed five non-exhaustive factors which may indicate the word “boy” is evidence of racial animus: “context, inflection, tone of voice, local custom, and historical usage.”

The plaintiff in Ash claimed he was denied a promotion because of his race, as evidence by the multiple times his supervisor called him “boy.” On remand from the High Court, the Eleventh Circuit applied the Ash factors and found insufficient evidence to conclude the employer’s reason for the adverse action was pretext for discrimination. The context of Ash included a person with superior qualifications and experience being promoted over the plaintiff and the usage of the word “boy” was not ambiguous and did not coincide with the decision at issue.

Context and tone suggested racial animus. Here, though, the context was different than in Ash. Finding this case “easily distinguishable,” the court noted that after the employee told the manager that the term “boy” was derogatory, the manager allegedly responded: “Boy, take off that harness. You are out of here. You’re fired.” Moreover, the employee testified in deposition that the manager also “took 2-3 aggressive steps” toward him to confront him, that the manager’s “voice was in a sarcastic tone,” and that the manager’s “face was consumed with extreme anger.”

Neither party cited cases applying the local custom and historical usage factors, but the company argued the term “boy” is not racist in Utah, which is mostly Caucasian and does not have a long history of the term being derogatory. The company contrasted Utah with Alabama. Unconvinced, the court explained that the key point was that the plaintiff told the manager that the word “boy” was racist, which should have put the manager on notice. There was also evidence of racial animus in that the manager allegedly became angry and terminated the plaintiff when he complained of discriminatory conduct. This established a prima facie case.

Context also suggested pretext. Coates Electrical next argued that it the plaintiff was fired not due to race but because he was insubordinate to the manager and should not have talked back. It asserted that hierarchical management is necessary to run its projects smoothly and insubordination could not be tolerated. In response though, the employee raised a triable issue on whether this was pretext based again on evidence that the manager called him “boy” in an aggressive and derogatory manner after the plaintiff told him to stop, and then the manager proceeded to terminate him from the project. In the court’s view, a reasonable jury could infer from this context that the adverse employment action was based on race, not insubordination.

Retaliation claim also proceeds. Also denying summary judgment on the retaliation claim, the court again pointed to the context, finding that the plaintiff engaged in protected activity when he protested the use of the term “boy” and that there was sufficient evidence of a causal link to his termination during the same interaction.

No punitive damages though. That said, and though the manager’s actions may have been discriminatory, the court found insufficient evidence of malice or reckless indifference to the plaintiff’s federally protected rights to support a claim for punitive damages. Summary judgment was therefore granted in part.

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