A rare Title VII “color” discrimination case arises in this non-precedential Tenth Circuit appeal. Although the panel agrees unanimously to dismiss the retaliation and discrimination claims, it splits 2-1 (in the course of a 47-page opinion) over whether the employee’s hostile work environment claim ought to go to trial.
Nettle v. Central Oklahoma American Indian Health Council, Inc., No. 08-6023 (10th Cir. July 1, 2009): The employee is identified in the opinion as “one-half Caucasian and one-half Native American, a member of the Delaware/Caddo Tribes.” She describes herself as “by far” the person with the “lightest skin color” in the workplace, a social service agency providing health services to Native Americans. Ultimately, she was terminated due to alleged trespass, failure to follow orders and misuse of a clinic van. Nettle alleged that she was fired because of her race, color and national origin, as well as in retaliation for filing a prior EEOC charge complaining about harassment. She commenced suit and the district court granted summary judgment on all claims.
In this entry, I discuss just the allegations that occupied the major share of the majority opinion and dissent: harassment on the basis of color. Here are the allegations summarized by the majority opinion:
“The Chief Executive Officer at the Clinic was Terry Hunter, who is part Caucasian and part Native American, with tribal membership in the Kiowa Tribe and with tribal affiliation in the Delaware Nation and the Caddo Tribe. Apple. Br. 6. His skin pigmentation is darker than Ms. Nettle’s. R. 12, 83, 163, 237-38. In her complaint before the district court, Ms. Nettle said that Mr. Hunter would make ‘frequent comments in the workplace about different Native American
tribes whose skin colors were lighter or darker than other Native American tribes,’ and suggested that some employees were too ‘white.’ R. 26. Mr. Hunter also, according to Ms. Nettle, said of her that ‘she thinks she’s Indian, but we wonder’ and ‘on other occasions’ made ‘derogatory statements about the Delaware tribe . . . [such as] that ‘they want to pretend and be like Indians of browner skin.” R. 12; R. 154. Although she knew that some of the comments
might have been in jest, she still found many of them offensive. R. 171.
“Ms. Nettle also accused Robyn Sunday, the Clinic’s Chief Operating Officer, of making derisive comments about Ms. Nettle and her appearance, saying at one point that she wanted to fire ‘white Renee.’ R. 13. And she asserts that patients in the Clinic would call her the ‘white doctor.’ Aplt. Br. 37.
“In addition to the comments directed at her, Ms. Nettle alleges that the Clinic ‘removed several activities for which [she] was responsible and gave them to other employees.’ R. 168. The reason for this, she alleges, was because Mr. Hunter believed that her light skin and Caucasian appearance rendered her a poor representative for the Clinic in the Native American community. Aplt. Br. 5.”
The majority, affirming summary judgment, analyzed the record and found, in turn, that the comments in the record were not intended to be malicious (even Nettle admitted that some of the statements were in jest, while others were innocent statements by patients), not motivated by color (such as the reassignment of work), lacked foundation (Nettle’s testimony being fatally vague and unspecific) or — taken as a whole — were insufficiently severe or pervasive to produce a hostile work environment. As the majority observed:
“Nor do any of the particular comments recalled by Ms. Nettle strike us as sufficiently severe or opprobrious (considered objectively) that a reasonable jury would regard them ‘alter[ing] the conditions of the victim’s employment and creat[ing] an abusive working environment.’ Certainly none of the comments directed at (or around) Ms. Nettle rose to the level of being physically threatening or humiliating. Many of the statements she complains about simply identify her as ‘white’ or as not really an Indian. Ms. Nettle testified that she ‘heard once’ that Mr. Hunter said that the Delaware Tribe ‘was the tribal wannabes.’ R. 241. We can easily understand that it could be annoying and irritating for a person of one racial mix to be mistaken for another, but there is no precedent for regarding a mistaken racial identifier — not employing any epithetical terminology — as opprobrious or abusive.” [Citations, footnote omitted.]
And as the majority summarized, “From the record, we can see that at many points during her employment, the Clinic was not a pleasant place for Ms. Nettle to work. People said crude things, pet projects were taken away from her, and she was made to feel singled out because of her Caucasian appearance. But Title VII’s standard for redress is a hostile work environment, not an unpleasant one.”
The dissent-in-part (by Judge Briscoe) devotes 18 pages to demonstrating that Nettle’s allegations deserved a trial. She decries the majoritiy’s slice-and-dice approach to the record: “The majority . . . implicitly divides Nettle’s allegations into several categories — ‘vague’ statements, comments ‘made in jest,’ specific statements, patient statements, and removed employment duties — and then affirms the grant of summary judgment for each category. While I disagree with the majority opinion’s reasoning for these individual categories, I am more troubled by the majority’s parsing of Nettle’s allegations.”
The dissent would find that (1) Nettle was sufficiently specific about the “frequency, location, content and target” of the offensive remarks; (2) statements deemed “in jest” may still be objectively offensive and alter the conditions of the victim’s employment; (3) racial misidentification (calling someone who identifies as Native American as white) itself may be degrading; (4) comments by patients and their families were relevant to the hostile work environment analysis; (5) removing desirable employee duties could constitute part of a hostile work environment; and (6) the totality of the circumstances warranted a trial.
I genuinely hope counsel will seek rehearing, and that the EEOC appellate division will consider getting involved as amicus. This case is too close and too interesting to slide into unpublished obscurity.