Employment Law Daily Using monkey statuettes to depict directors could support Title VII claim
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Monday, March 4, 2019

Using monkey statuettes to depict directors could support Title VII claim

By Lorene D. Park, J.D.

Use of monkey statuettes to depict African-American directors in a goodbye video for a subordinate employee could, by itself, support one director’s claim of a racially hostile work environment, depending on further discovery into the video-maker’s intent.

Though a dean of the learning university at the Department of Veterans Affairs (VA), claimed that four monkeys used in his goodbye video for an employee to depict four directors under him represented “see no evil,” “hear no evil,” “speak no evil,” and “do no evil,” an African-American director raised triable issues on whether this created a hostile work environment based on race. Given a history of racial stereotypes depicting African Americans as animals or monkeys, it could be reasonable to conclude the imagery was intended as a racial insult, but it was too early to say because the employee had not yet had a chance to obtain discovery on the dean’s intent. The federal court in the District of Columbia therefore denied the employer’s motion for summary judgment (Vance v. O’Rourke, February 22, 2019, Mehta, A.).

The employee worked for the VA starting in 2013, first as a supervisory program supervisor in the VA’s learning university (VALU) and then, after the VALU was disbanded in January 2017, as a director of learning infrastructure in the office of enterprise support services.

Goodbye video. During the reorganization, the employee’s second-line supervisor, who was the dean of VALU, created a farewell video for a departing employee. The dean was seated alone behind a small table, on which sat four monkey statuettes. One had its hands covering its eyes; another its ears; and the third its mouth. The fourth monkey had its hands by its side. In front of those sat a two-foot-long, two-inch-high sign stating: “You Don’t Have To Be Crazy To Work Here… We’ll Train You.” During the 26-second video, the dean stated, in part: “Hi Amber. Several members of the senior staff and I have gathered here today to wish you a fond farewell. Of course you can see some of the Directors here, I won’t name them, you can figure out which ones are which. We want to wish you the very best in your new job….”

According to the dean, the four monkeys represented “see no evil,” “hear no evil,” “speak no evil,” and “do no evil,” and he meant no offense by alluding to the directors as monkeys. The parties disputed whether all four directors serving under the dean were African American or whether two were Caucasian.

Hostile work environment claim. The employee was not present at the farewell video and did not see the video until it became “viral.” However, the video and other incidents formed the basis for his race-based hostile work environment claim.

Exhaustion of remedies. Moving for summary judgment, the employer argued that he failed to exhaust his remedies because he did not file his EEO complaint within 45 days. With respect to the video, in his complaint, the employee alleged that he first saw it on February 10, 2017, after a colleague showed it to him, but in a prior EEO affidavit he represented that his first view was in December 2016. Because there was other evidence suggesting he first saw the video in February, the court refused to toss his race-based hostile work environment claim for failure to exhaust.

Having found the video incident timely, the court considered the other six events that he claimed were part of the same hostile environment, and found only one to be exhausted. Specifically, he claimed that the dean “threatened” him by saying he might be subject to a reduction in force. Because the employee mentioned this comment in his EEO complaint it was exhausted. However, the prior events were no where to be found in the complaint, so he had not exhausted administrative remedies with respect to the prior events (these included being assigned tasks outside his usual duties, being reprimanded based on false accusations, and being required to work while on sick leave, among other things).

Use of monkeys enough to support claim. On the merits, the court considered whether the two exhausted incidents (the goodbye video and the termination threat) were legally sufficient to support a hostile work environment claim. While the threat of being subject to a reduction in force added little to the analysis, the video was enough for a viable claim at this stage.

The court noted that other courts in the district have held that using a monkey to depict African-American coworkers can, by itself, constitute a hostile work environment. Given the racial stereotypes against African Americans and the prevalent one of African Americans as animals or monkeys, it could be reasonable to view the use of monkey imagery as a racial insult.

Because the employer had been quick, in this case, to move for summary judgment, the employee had not yet had the chance to take discovery concerning the dean’s making of the goodbye video. So while the court might ultimately find that the dean harbored no racial animus, it could not yet say so as a matter of law. Summary judgment was therefore denied.

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