Brown v. Nucor Corp., No. 08-1247 (4th Cir. Aug. 7, 2009); Porter v. Erie Foods Intl, Inc., No. 08-1996 (7th Cir. Aug. 7, 2009)

| Aug 10, 2009 | Daily Developments in EEO Law |

Two new racial harassment cases featuring nooses found their way into the books last week. In a Fourth Circuit case, the panel reverses denial of class certification in a Title VII racial harassment/promotion case. In a Seventh Circuit case, the panel somewhat reluctantly affirms summary judgment where it appeared that management accomplished what it could in response to the employee’s complaint, despite that the manager herself tacked the noose on her own bulletin board for most of a shift.

Brown v. Nucor Corp., No. 08-1247 (4th Cir. Aug. 7, 2009): At a steel plant in Huger, South Carolina, plaintiffs allege that the African-American employees were subject to atrocious hazing by their white co-workers:

“The allegations that the appellants present in support of their racial discrimination and hostile work environment claims speak for themselves: white supervisors and employees frequently referred to black employees as ‘nigger,’ ‘bologna lips,’ ‘yard ape,’ and ‘porch monkey.’ White employees frequently referred to the black employees as ‘DAN,’ which stood for ‘dumb ass nigger.’ These racial epithets were broadcast over the plant-wide radio system, along with ‘Dixie’ and ‘High Cotton.’ Monkey noises were also broadcast over the radio system in response to the communications of black employees. The display of the Confederate flag was pervasive throughout the plant, and items containing Nucor’s logo alongside the Confederate flag were sold in the plant’s gift shop. addition ally, several e-mails that depicted black people in racially offensive ways, such as by showing them with nooses around their necks, were circulated by various employees. Once, an employee held up a noose and told a black co-worker that it was for him.”

No blacks had been promoted to supervisors until this case was filed. Approximately 100 black employees worked at the plant. A Title VII class action, alleging hostile work environment, disparate treatment and impact (regarding promotion) was filed in 2004. In 2008, the district court denied class certification.

On a Rule 23(f) appeal, the panel reverses and remands with a mandate to certify a Rule 23(b)(3) class.

On the harassment class, the panel holds unanimously that (1) the different production departments should (contrary to the district court’s finding) be treated as one “environment,” because the harassment occurred every, and “the racist acts had plant-wide repercussions and affected all black employees”; (2) for purposes of commonality, the district court erred in denying weight to “affidavits of employees in one department . . . to prove a plantwide hostile environment that affected employees in other departments”; and (3) the claims of named plaintiffs who worked in the beam mill should have been held typical of claims of absent class members outside of their department.

On the promotion claim, the panel splits 2-1.  The majority holds that (1) allegations of “a practice of disparate treatment in the exercise of unbridled discretion . . . rais[es] questions of law and fact common to all [subject] black employees” (quoting Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 333 (4th Cir. 1983)); (2) the district court erred in disregarding direct evidence of a practice of discrimination (admission by supervisor that he would not promote blacks, a pattern of promoting of whites with less tenure), which was sufficient by itself to establish a common issue; (3) the class addition ally “presented valid statistical evidence that independently indicates a disparate impact and disparate treatment in job promotions at Nucor, and . . . that an in-depth assessment of the merits of appellants’ claims at this stage would be improper”; and (4) it was error to hold that a Title VII promotion case presented an inherent conflict of interest among black candidates. (The dissent, in essence, holds that on each point, the district court did not abuse its discretion in making findings adverse to the putative class.)

Porter v. Erie Foods Int’l, Inc., No. 08-1996 (7th Cir. Aug. 7, 2009): The claim begins here, on August 12, 2004, when “sometime after 11:00 p.m., a coworker took Mr. Porter to the ‘H-Line’ production area, where a noose made out of white nylon rope was hanging on a piece of machinery, approximately twelve feet above the ground.” Porter was the sole African-american working the shift. He reported the incident to his boss, Ms. Santos. Instead of removing the evidence and locking it away, though, Santos “hung the noose on the bulletin board in her office; she says that she did this so that she would not lose it. Santos then returned to her rounds. The noose remained on the bulletin board for four hours, where it was visible to employees through a window in her office door.” Around the same time, there were at least two other noose incidents perpetrated by co-workers. After Porter reported the incidents to the police, Porter was subjected to at least one death threat and had a locker pushed on top of him while he was in the changing room. Porter quit his job August 19.

The panel, affirming summary judgment, holds that liability for the harassment could not be imputed to the employer where the employee only reported the first incident to management, and that management took immediate steps to remove the noose, counsel Porters co-workers, investigate the incident and offer Porter a transfer to a different part of the plant. The panel drops a footnote expressing unease with Santos’ display of the noose:

“We do note, however, that one action taken by Santos – the placing of the noose on her office bulletin board – was ill-advised. Although there is no evidence in the record that Santos’ motives were in any way illicit, this action, apparently taken to remind herself to report the matter to her seniors, also demonstrated a lack of recognition of the powerful message of racial hatred that a noose evokes. However, this misstep stands in contrast to Santos’ otherwise diligent actions to bring the harassment to an end. Notably, Mr. Porter never reported this action to the company as a harassing event and, when the record is evaluated as a whole, it is clear that there is no basis for such a characterization.”

(The court also rejects a companion claim for constructive discharge; while agreeing that the harassing behavior was egregious, it holds that the company’s response to the complaints established as a matter of law that the plaintiff had alternatives to resigning.)

Concurring, Judge Rovner observes that the harassment claim failed as a matter of law because Porter failed to report the most awful act (i.e., Santos’ display of the noose in her office) to anyone in management, while company management did investigate the allegation that the employee did report. “Their efforts indeed may have been hampered by Porter’s reticence to co-operate in the investigation and his failure to report all of the incidents that he now claims contributed to the harassment. I agree with the majority that the company’s actions, taken as a whole, were sufficient to allow a rational trier of fact to conclude that the company took reasonable steps to stop the harassment and prevent future harm, despite Santos’ serious error.”

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