Link to Eighth Circuit Opinion
The Eighth Circuit Court of Appeals overturned a ruling by the United States District Court for the Western District of Missouri granting summary judgment in favor of an employer accused of maintaining a racially hostile work environment. In holding that summary judgment was improper, the Eighth Circuit found genuine issues of material fact as to whether the plaintiffs were subjected to a racially hostile work environment and whether the employer appropriately handled the incidents of harassment.
I. Facts and Holding
CEVA is a shipping logistics company that manages the shipment of automobiles by rail.[2] The two plaintiffs of the case, Alonzo Banks and Gregory Watson, are African-American males who began working for CEVA in a company owned railyard in September 2004 and May 2006 respectively.[3] Banks and Watson worked a variety of jobs at CEVA, including at least one position together.[4] Their allegations of a racially hostile workplace were similar in several respects and are detailed briefly below.[5]A. White Employees Refusing to Work with African-American Employees
Both plaintiffs alleged that white employees routinely singled out African-American employees with whom they did not want to work and asked not to be assigned with that employee.[6] Reasons for these requests were not always provided to the supervisors; however, on at least one occasion, an employee admitted that the request was due to race.[7] In other instances, white employees cited safety concerns with the performance of black employees as reasoning for their requests for reassignment. Yet, this reasoning was in direct conflict with testimony regarding the performance of African-American employees.[8] Supervisor responses to such reassignment requests were generally to reassign the African-American employee, and no further action was taken.[9]B. Racially Themed Graffiti in the Workplace
Racially themed graffiti was reported in multiple locations at CEVA.[10] In the company locker room, one workbench had “KKK” and “I hate n***ers” carved into it.[11] Banks complained to three supervisors about the carvings in 2006 and testified that the carvings had been there for “months and possibly years.”[12] He also complained about the workbench carvings to another supervisor, but the carving were not removed until Banks filed an EEOC complaint.[13] The plaintiffs also alleged that racial slurs were written in the stalls of the bathrooms and on the railcars in the railyard.[14] Banks complained of the graffiti on separate occasions and though CEVA covered up the graffiti, it often returned.[15] When Banks complained of the railcar graffiti in late 2006 and early 2007, including phrases such as “Hang a n***er” and “Kill the n***ers,” he was told by his supervisors that the company could not control what was written on the cars in the yard, given that CEVA did not own them.[16]C. Display of the Confederate Flag and Other Racial Emblems
Both plaintiffs alleged that white employees regularly exhibited clothing and other displays of the Confederate flag, and sometimes in front of supervisors.[17] In other instances, employees wore shirts with swastikas on them.[18] When Banks and Watson complained about these instances, supervisors responded to some but not all of them.[19]D. False Accusations of Safety Violations from Whites Aimed at African-American
While working together from 2006 to 2007, plaintiffs alleged multiple false accusations of safety violations from white co-workers.[20] These accusations, if believed, would have been grounds for termination, which seemed to be the intent of the accusers.”[21] Also, the plaintiffs alleged that co-workers intentionally tried to create dangerous working conditions so that the plaintiffs would be injured or fired.[22] At least one white employee warned them of such purposes, and when the plaintiffs complained, they were told to “tough it out” by their supervisor.[23]E. Disparate Treatment
Watson testified that he and another African-American co-worker were drug tested and suspended after the wheels feel off a shuttle operated by them.[24] Yet, white co-workers in the same situation did not receive any disciplinary action.[25] Banks testified that he was disciplined for wearing a tank top on a hot day and for sleeping on the job but white co-workers were not disciplined for the same actions.[26] Both plaintiffs complained about the disparate treatment to their supervisors.[27]F. Verbal Slurs, Comments, and Other Harassment
Watson testified about multiple instances in which he or other African-American employees were referred to specifically as “n***ger[s].”[28] When Watson reported several of these incidents to his supervisors, he was told that nothing could be done or the supervisor simply took no action.[29] During a six-month review following one of the incidents, Watson’s performance was deemed unsatisfactory because he failed to follow chain of command in reporting the incident.[30]Banks testified that co-workers and at least one supervisor made disparaging comments related to race to himself and other African-American employees.[31] In addition to repeated use of the word “n***er,” Banks testified that multiple co-workers openly stated that they hated African-Americans.[32] He also reported that at least one supervisor falsely accused him of sleeping on the job after Banks had overheard him making a threat using a racial slur.[33]
G. Holding
The district court held that the plaintiffs failed to establish that they were subjected to a racially hostile workplace environment.[34] In particular, it held that the racial slurs and comments were too infrequent and that neither was physically threatened by the actions alleged.[35] The court further found that even if a prima facie case had been made, CEVA responded appropriately once it became aware of the graffiti and comments.[36] The plaintiffs appealed claiming that the court misconstrued the record regarding the severity of the harassment and that CEVA’s responses to the harassment were mixed, at best.[37]II. Legal Background
In order to establish a claim of racially hostile work environment, a plaintiff must show (1) membership in a protected group; (2) the occurrence of unwelcome harassment; (3) “a causal nexus between the harassment and membership in the protected group[;]” and (4) “that the harassment affected a term, condition, or privilege of employment.”[38] Only harassment that is “severe or pervasive” rises to the level of “affect[ing] a term or condition or employment.”[39] Neither “simple teasing” in isolated incidents, nor “mere utterances” that cause offense to an aggrieved party are so “severe or pervasive” that they create a hostile work environment.[40] Instead, the workplace must be “permeated with discriminatory intimidation, insult, and ridicule” so as to cause a negative alteration of the conditions of the work environment.[41] Furthermore, to establish a claim, the alleged harassment must be hostile both to the aggrieved party and to a reasonable observer.[42] Finally, the plaintiff must show that the employer “knew or should have known about the harassment but failed to prevent to take proper action.” [43]The court rejected CEVA’s arguments that the frequency of the alleged harassment and the instances of graffiti did not rise to the level of “severe and pervasive” such that it created a racially hostile work environment.[44] The court noted that frequency of the alleged harassment, while important, is not the only factor in establishing a hostile work environment.[45] The court must consider the totality of the circumstances in analyzing a hostile work environment claim.[46] In the present case, the fact that the slurs and comments were not general banter but comments made directly to the plaintiffs and their African-American co-workers were important factors as well.[47] The fact that the comments were made in front of supervisors implied that the offensive behavior was tolerated and that the workplace was hostile to African-American employees.[48]
With respect to the graffiti, CEVA’s contention that the plaintiffs could not accurately catalogue the number of times that they had seen graffiti was not compelling to the court.[49] Unlike verbal slurs, which are momentary and fade away, graffiti that remains or is repeatedly displayed stays in the viewer’s mind until the employer removes it.[50] Whether or not the plaintiffs could recall the number of times that they viewed the graffiti did not detract from the reasonability that the graffiti’s ongoing presence contributed to a racially hostile work environment.[51]
Furthermore, even if the slurs and graffiti alone were not substantial enough to establish a hostile work environment, CEVA’s inability to adequately justify the presence of other racially insensitive incidents and behaviors weighed in favor of the plaintiffs’ claim.[52] The continual presence of the confederate flag at the worksite without plausible explanation was one such deficiency.[53] While CEVA argued that plaintiffs’ allegations concerned actions that were facially neutral with respect to race, the court determined that the record contained an overall “racially motivated . . . pattern of harassment” at the workplace.[54]
Also, the court found that several of the racial slurs and comments could be viewed as “threatening or intimidating”, given the specific context of such incidents.[55] In particular, a white employee spitting tobacco on an African American employee during a racially charged conversation can be intimidating; likewise another white employee saying, “N***er, go down there and throw that switch” is also an incident in which one might reasonably be afraid for one’s safety.[56] Allegations that white co-workers intentionally tried to sabotage the workplace in efforts to harm or ensure the termination of their African American co-workers was even more alarming to the court.[57] These incidents, combined with Banks voicing concern for his safety to his supervisor, undercut CEVA’s contention that no reasonable person would have felt threatened by the slurs and other racially insensitive actions.[58]
Finally, the court rejected CEVA’s argument that it took “prompt and effective remedial measures” upon learning of the harassment allegations.[59] While measures were taken to correct some of the alleged harassment, a reasonable fact finder could conclude that CEVA supervisors “acquiesced in discriminatory behavior or were at least indifferent to complaints.”[60] Considering the record in a light most favorable to the plaintiffs, the court determined that material questions of fact existed as to whether the plaintiffs were subject to a racially hostile work environment.[61] Ultimately, the court determined that the lower court’s grant of summary judgment to the employer was improper and remanded the case for further proceedings consistent with the opinion.[62]
III. Comment
This case focuses on allegations similar to those reviewed earlier this year in Anderson v. Durham in which the Eighth Circuit upheld the same lower court’s grant of summary judgment in favor of the defendant employer.[63] When viewed in conjunction with Anderson, one can discern a definitive pattern developing in the Eighth Circuit with regard to the test for a racially hostile workplace. In Anderson, the court found summary judgment to be proper noting that the plaintiff’s behavior in response to alleged racially hostile behavior belied the claims made against his employer.[64] Furthermore, the court noted that there was insufficient evidence that Anderson’s supervisors were aware of the alleged racially hostile behaviors.[65]In Watson, however, both plaintiffs complained to multiple supervisors on numerous occasions about the racially motivated behaviors that they experienced.[66] In one of the instances involving Banks, a supervisor allegedly used a racial slur and treated him disparately from his white co-workers.[67] Given the repeated actions of the plaintiffs to notify their supervisors of the racially motivated behavior and the failures by CEVA management to take appropriate remedial measures to correct these behaviors, the Eighth Circuit found summary judgment for the employer to be improper.[68]
Anderson and Watson establish two clear lessons for a plaintiff alleging a racially hostile work environment in the Eighth Circuit. First, the amount of notice given to management regarding the alleged hostility will have great weight in determining if a prima facie case has been established. Second, an employee alleging such a claim with the United States District Court for the Western District of Missouri would be well advised to prepare for an appeal of summary judgment to the Eighth Circuit.
-Ronald K. Rowe II
[1] No. 09-3322, 2010 WL 3385253 (8th Cir. 2010).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at *2.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at *3.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at *4.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at *5.
[39] Id. (citing Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 892 (8th Cir. 2005)).
[40] Id. (citing Arraleh v. County of Ramsey, 461 F.3d 967, 979 (8th Cir. 2006)).
[41] Id. (citing Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 892 (8th Cir. 2005)).
[42] Id. (citing Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002)).
[43] Id. (quoting Williams v. ConAgra Poultry Co., 378 F.3d 790, 794-95 (8th Cir. 2004)).
[44] Id.
[45] Id. at *6 (citing O'Brien v. Dep't of Agric., 532 F.3d 805, 809 (8th Cir. 2008)).
[46] Id.
[47] Id.
[48] Id.
[49] Id. at *7.
[50] Id. (citing Jerome R. Watson & Richard W. Warren, “I Heard it through the Grapevine”: Evidentiary Challenges in Racially Hostile Work Environment Litigation, 19 Lab. Law. 381, 399, 404 (2004)).
[51] Id.
[52] Id.
[53] Id.
[54] Id.
[55] Id. at *8.
[56] Id.
[57] Id.
[58] Id.
[59] Id
[60] Id.
[61] Id.
[62] Id.
[63] Anderson v. Durham, 606 F.3d 513 (8th Cir. 2010). See also http://missourilawreview.blogspot.com/2010/05/anderson-v-durham-d-m-llc1.html.
[64] Id. at 519-20.
[65] Id. at 519.
[66] Watson, 2010 WL 3385253 at *2-10.
[67] Id. at *4.
[68] Id. at *9.
