Tademy v. Union Pacific Corp., No. 06-4073 (10th Cir. Apr. 1, 2008); Holcomb v. Iona College, No. 06-3815 (2d Cir. Apr. 1, 2008)

| Mar 31, 2008 | Daily Developments in EEO Law |

Holcomb v. Iona College, No. 06-3815 (2d Cir. Apr. 1, 2008):  The Second Circuit recognizes anew, based on case law stretching back to earliest days of Title VII, that racial discrimination includes taking adverse action against an employee who associates with persons of a racial minority. 

Craig Holcomb, an assistant basketball coach, charged that two other employees of the college — Shawn Brennan (the Director of Athletics) and Richard Petriccione (a Vice President of the college) — set out to shove Holcomb from his post.  He alleged there was a pattern of combing racial minorities out of Iona, and — even though he himself was white — Holcomb took flak because his wife is African American. 

According to the summary judgment record, black high school students — as well as Holcomb’s spouse — were excluded from alumni fund-rasing events by the Goal Club; Brennan wondered out loud about the black teammates whether the school could “get these colored boys to dress like the white guys on the team”; and Petriccione uttered numerous racial slurs, including that “everybody at Fordham thinks they have these good black kids, and Iona has niggers.” 

Though denied by Petriccione, Holcomb testified “that in February 2000, he asked Petriccione whether he had received the wedding invitation that Holcomb and Gauthier had sent him. According to Holcomb, whose claim is backed up in this respect by a third party, Petriccione replied: ‘[Y]ou’re really going to marry that Aunt Jemima? You really are a nigger lover.'”

When the team’s fortunes began to sag — a losing record, missing the NCAA playoffs, theft by the players,and an NCAA investigation of possible rule violations — Holcomb and another assistant (Tony Chiles, who is African-American) were sacked.  A white assistant coach (O’Driscoll), not in an interracial relationship, kept his job in the purge.

The Second Circuit, joining the Fifth, Sixth and Eleventh Circuits, concluded that Title VII stretched to cover Holcomb’s situation: “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”  The court also found that the record presented a genuine issue of material fact about whether the reasons Iona gave for its firing decisions were merely a pretext for discrimination.

“[A] reasonable jury could first find that Brennan, Petriccione, or both, possessed a racial motive to discriminate against Holcomb. This is obvious in the case of Petriccione, who was apparently in the habit of making racially questionable remarks, and who in particular is alleged to have made a strikingly racist remark to Holcomb about him and his wife. In the case of Brennan, a reasonable jury might conclude that he possessed a more subtle racial motive. Viewing the evidence in the light most favorable to Holcomb, and bearing in mind Brennan’s apparent desire to appeal to Iona’s mostly white alumni base, a rational finder of fact could conclude that Brennan had an incentive, for the purposes of alumni relations, to minimize the number of African Americans involved with the basketball team. Such a motive could be inferred from Brennan’s decree that high school students could no longer come to Goal Club events, a decision taken after a group of black high school students had attended.”

Tademy v. Union Pacific Corp., No. 06-4073 (10th Cir. Apr. 1, 2008):  Tademy was a brakeman for the railroad, an African American in a shop of whites. After eight years of enduring every imaginable racial slur and act of petty malice (such as vandalism of his locker), plaintiff complained to the company without effect, and then to the Utah civil rights agency.  What follows is predictable (but no less horrible for it):

Finally, on July 4, 2003, Mr. Tademy entered Union Pacific’s south shanty and was immediately struck by what appeared to be a life-size hangman’s noose prominently suspended from a large industrial wall clock. The sight of the noose caused Mr. Tademy to become so nauseated that he vomited. He immediately attempted to notify the yard manager on duty. When none was available, he worked his shift, found yard manager Mike Simmons, and reported the noose. He also notified the Union Pacific EEO office as well as his union representative, Blaine Bailey. Mr. Simmons contacted Mr. Scott, who sent Mark Rowley, a Union Pacific special agent, to investigate. After Mr. Rowley and a Union Pacific manager viewed the noose and interviewed employees, Jan Erickson, a Union Pacific employee, confessed to placing the rope above the clock, but denied any malicious intent. Instead, Mr. Erickson explained that he found the rope in the rail yard and placed it over the clock so that he would remember to take it for use on his truck.”

Though the railroad fired Erickson, he grieved and won his job back.  And bizarrely, when the claim came to be litigated, the district court granted summary judgment for the employer, finding that the noose incident did not constitute racial harassment.  The Tenth Circuit reversed: 

“Mr. Erickson testified that he wanted the rope ‘because [he] figured [he] could use this rope with my truck to help my sons move their personal belongings, which was coming up in about a week and two days.’ Aplt’s App. vol. IV, at 688-89. Despite this testimony, a jury could conclude that the rope in question was ill-suited for the stated purpose. According to Mr. Erickson, the rope was ‘four to six feet long’ with the noose and perhaps ‘eight to ten feet’ without it. Id. at 689. The photograph of the noose suggests that six feet is a very generous estimate of the rope’s length with the noose. In addition, the record reveals no reason why a slip knot – especially one that looked like a noose – would be of any utility to this project. Finally, it is not clear why, out of all the lengths of rope potentially available over the nine days between July 4 and his sons’ move, Mr. Erickson would have chosen one that was likely too short and tied in a superfluous knot.”

The panel sensibly connected the noose incident to the larger history of racial violence:

“Like ‘a slave-masters whip,’ the image of a noose is ‘deeply a part of this country’s collective consciousness and history, any [further] explanation of how one could infer a racial motive appears quite unnecessary.’ Johnson v. Potter, 177 F. Supp. 2d 961, 965 (D. Minn. 2001); see also Virginia v. Black, 538 U.S. 343, 388 (2003) (Thomas, J., dissenting) (stating that ‘[i]n every culture, certain things [both ‘sacred’ and ‘profane’] acquire meaning well beyond what outsiders can comprehend’ and discussing cross burning as an example). In light of the potential implausibilities in Mr. Erickson’s story and the fact that a noose is often employed as a racist symbol, we think a reasonable jury could find that Mr. Erickson’s hanging of a life-size noose stemmed from racial animus.”

Finally, the panel held that the employer’s ineffective response to the graffiti, slurs and the noose potentially supported civil liability against it under Title VII and section 1981.

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