Here’s a genuine head-scratcher: a Fifth Circuit unpublished decision that essentially apologizes for affirming summary judgment in a Title VII race-association harassment case, laced with some fairly obnoxious facts.
Wooten v. Federal Express Corp., No. 07-10555 (5th Cir. Apr. 7, 2009): A married, inter-racial couple brought suit against their employer for a racially hostile work environment, among other claims. “From about the time they started dating, and intensifying after their marriage, their work situation deteriorated. They clashed with their co-workers and supervisors more and more often, until the situation came to a head in 2003, with several conflicts with co-workers, attendant meetings with managers, and formal grievance and disciplinary processes. Their status as an interracial couple came up several times in the course of these dealings with co-workers and managers – although, as we will discuss, it was not a prominent component of the tensions, the meetings, the complaints, or the other formal and informal contacts between the Wootens and FedEx.”
Some of the Wootens’ claims eventually went to trial — culminating in a defense verdict. The Wootens appealed a grant of summary judgment on the harassment claims. (The Wootens also raised other discrimination claims and alleged trial errors that supposedly infected the jury verdict, but the panel affirms on all of these without equivocation.)
The district court had granted summary judgment on the ground that the alleged harassment was not severe or pervasive. On appeal, the panel appears to have trouble with this part of his decision. The conduct, which the Wootens alleged occurred daily, might at least be deemed pervasive:
“Many of the allegations that the Wootens claim should have survived summary judgment involve the behavior of their co-worker Tony Garrett, an African-American man who served as freight coordinator at the station (an hourly-paid, non-managerial post). The allegations involve frequent inappropriate comments by Garrett and other individuals in the office, as well as by oppressive actions of Garrett regarding work assignments. Garrett’s comments involve race: ‘jungle fever,’ a phrase made famous by the Spike Lee movie of that name, is a reference to interracial romantic attraction. And in context, especially when Ronnie reports that he asked Garrett to stop, a reasonable juror could see it as more than mere teasing; it can be understood to express a core of virulent and longstanding disapproval of interracial romantic relationships. The butt of such ‘jokes’ would be understandably sensitive, and could reasonably interpret the remarks as hostile, even intimidating.”
The panel salvages the summary judgment by affirming on the alternative ground that there was no basis for imputing liability to the employer. It rejects the plaintiffs’ assertion that Garrett was a supervisor, and holds that by the time the Wootens put the company on notice about the harassment, the behavior was already ebbing. And yet the panel still does a bit of hand-wringing:
“We stand in an uncomfortable but familiar place for courts adjudicating discrimination claims, faced with inappropriate, offensive remarks not legally sufficient to sustain a claim. The difficulty of evaluating discrimination claims at the summary judgment stage is well known and derives from obvious sources, namely the importance of ‘he said / she said’ credibility determinations. We remain keenly aware that ‘[w]hether . . . allegations are too vague to ultimately carry the day is a credibility determination, or requires weighing the evidence, both of which are more appropriately done by the trier of fact.’ That said, there must on the full record of the case at hand be a genuine issue of fact for the jury.”
The legacy of the case, such as it is, may lie in this apology of unease.