Plaintiffs score two wins in the Eighth Circuit today. In the first case, the panel reverses summary judgment in a race hostile-work-environment case with especially corrosive facts. In the second, the plaintiff wins affirmance of a jury verdict in a Title VII case; the panel splits over the question of what kind of record is required to support employee-numerosity for the damage-ceiling provisions in section 1981a(b)(3)(A).
Watson v. CEVA Logistics U.S., Inc., No. 09-3322 (8th Cir. Aug. 30, 2010): The setting was a Kansas City railyard, and the employees mostly white. The African-American plaintiffs reported a host of racially-motivated offenses that alone takes nine pages of the opinion just to summarize: slurs, threats, graffiti, the presence of Confederate flags, uneven discipline, false reports of violations and whites simply shunning or refusing to work with African-American co-workers. (Notably, as to the flags, the panel recognized the racial connotations but dropped a footnote acknowledging the differing significance that white Southerners and blacks invest in the stars-and-bars.) The district court granted summary judgment both because it held that the activities were not severe or pervasive, and that in any event the company had taken adequate steps to correct the harassment once it was reported.
The panel reverses. It first holds that the district court erred in framing the claim as one having only to do with occasionally slurs. It analyzes the record and holds that the district court understated the specificity of the attacks on plaintiffs:
“Regardless of the frequency of the slurs and comments, other considerations lend weight to their severity in this case. ‘[T]his not a situation where racial jokes and innuendo were merely bandied about the workplace with no particular target, or where [the plaintiffs were] called names behind [their] back[s] but [were] unaware of it.’ Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 356 (8th Cir. 1997). Several of the comments were directed at plaintiffs and were made in their presence. Some comments were also directed at the plaintiffs in the presence of others, including Lynn Anderson’s comment, ‘I hate them damn n****rs,’ in reference to Watson, and Ryan Fisher’s reference to Banks as a ‘f**king n****r.’ Additionally, some of the comments were made in a manner that a jury could reasonably conclude would be particularly demeaning or humiliating to the plaintiffs. In that regard, we take note of Martin’s comment, ‘I told your black ass I wasn’t going to do it,’ which was said to Watson in front of a supervisor, rather than another co-worker. Finally, we note that slurs and other incidents evidencing racial animus were directed at co-workers in the same protected group. This relevant in assessing the existence of a hostile work environment, particularly where as here, the plaintiffs were aware of this conduct.”
It addresses the graffiti allegations specifically:
“We are also troubled by CEVA’s arguments concerning the graffiti. Specifically, we reject arguments that the plaintiffs had to articulate with absolute precision the number of times they saw the graffiti and that we should analyze each viewing as a separate instance of harassment. To that end, the ‘key difference’ between graffiti and a racial slur should not be overlooked: ‘the slur is heard once’ and ‘vanishes in an instant, while graffiti remains visible until the employer acts to remove it.’ 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). This particularly true for the workbench carvings, which the record establishes were present for a considerable amount of time, and Bank’s discussion of the bathroom graffiti, which frequently reappeared. A jury could reasonably conclude that the plaintiffs saw this graffiti on numerous occasions and, furthermore, that their mere awareness of its ongoing presence-regardless of the exact number of times they can remember seeing it-could contribute to a hostile work environment.”
The panel also notes threats to the plaintiffs’ physical safety:
“We once more reject CEVA’s narrow view of the record and conclude that several incidents could be reasonably viewed as threatening or intimidating. Banks’s interaction with Kyle is one example: Kyle spat tobacco at another African-American employee who was present during their racially charged conversation. Banks reported to a supervisor that he feared for his safety, and we cannot say as a matter of law that this fear was unreasonable. Watson’s interaction with Steven Alexander after Alexander stated ‘N****r, go down there and throw the switch’ is another. While reasonable minds might differ, a jury could conclude that Alexander provoked a reaction from Watson and then threatened him with physical violence. More bothersome, however, remain the plaintiffs’ statements that co-workers created dangerous situations in an effort to sabotage and potentially injure them. In downplaying this evidence, CEVA would have us overlook testimony that the plaintiffs had received warnings from a co-worker that others might attempt to harm them.”
Finally, the panel finds a fact issue about whether the company’s responses were adequate:
“Although the company did respond to some instances of harassment, including painting over bathroom graffiti, painting over the ‘hang a n****r today’ sign on the railcar, and firing Martin, a reasonable fact finder could conclude that supervisors at other times acquiesced in discriminatory behavior or were at least indifferent to complaints. The record contains several examples of this: Kelne reassigned Watson’s tasks in order to accommodate Terri Anderson; Kelne told the plaintiffs to ‘tough it out’ because they had ‘targets on their backs’ in response to other complaints; and Cox responded to Banks’s complaints about a co-worker by stating, ‘It is what it is’ and referenced the co-worker’s truck emblazoned with the Confederate flag. Further, although the [graffitied] workbench was eventually sanded over, a reasonable jury could conclude that the response was neither prompt nor effective.”
Sheriff v. Midwest Health Partners, No. 09-3367 (8th Cir. Aug. 30, 2010): In a second hostile work environment case, this involving gender, a jury returned a verdict for the plaintiff for $100,000 in compensatory damages. The panel affirms, finding that the plaintiff presented sufficient evidence that the hostile work environment was motivated by sex: “Sheriff testified, however, that [staff physician] Meyer kissed her on the forehead and made physical contact with her on multiple occasions. Most disturbing to her were Meyer’s embraces, particularly when he pulled her against his body and brushed his hand against her breast. Included in the evidence presented to the jury was the document Midwest asked Meyer to sign in which it described his conduct as ‘acts of sexual impropriety and familiarity.’ This evidence was sufficient to show that Meyer’s conduct was based on sex.”
The panel finds that the record also established that the environment was severe or pervasive, as it involved repeated grabbing over a two year period, which did not abate even after the employer imposed corrective measures. “Her concerns were exacerbated when Midwest delayed in confronting Meyer, when he refused its remedial demands, and when he acted in ways the jury could infer were intended to intimidate her-mocking her by holding his hands in the air around patients, taking the seat closest to her at meetings, and once blocking her from leaving an office while admonishing her to ‘put [her] problems aside.'”
It also holds that the attempted corrective measures were inadequate: “Midwest took no action after Sheriff’s first complaint, waited seven weeks to confront Meyer after her second complaint, failed throughout to keep
Sheriff informed, and never identified who was responsible for the investigation. Moreover, Meyer never fully consented to Midwest’s remedial demands, and he continued to harass Sheriff by trying to mock and intimidate her.”
The panel, evaluating the relief, finds that plaintiff’s award for emotional distress could be support by lay testimony:
“Midwest objects that Sheriff failed to prove that she had obtained mental health counseling or that she was forced to increase her antianxiety medication. Sheriff testified, however, that the pastor with whom she underwent counseling was also a licensed psychologist and that a Midwest nurse temporarily increased her antianxiety medication. Midwest’s objection that Sheriff’s emotional distress was not supported by expert testimony is unavailing, however, for ‘ ” [a] plaintiff’s own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff’s burden [to prove emotional damages].” ‘ Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997) (citation omitted).”
Also, under 42 U.S.C. § 1981a(b)(3)(A), a plaintiff must establish a 101-employee threshhold to support an award of $100,000; smaller employers are subject to a $50,000 ceiling. The panel majority affirmed the award over an objection (that the panel held had been procedurally waived) that the plaintiff had established only that the defendant employed 15 or more people.
Here, the dissenting judge (Beam) – while he concurred in the opinion overall – believed that only the minimum $50,000 ceiling applied, as it was the plaintiff’s burden to present some affirmative evidence in support of a higher threshold: “I concede that Midwest did not directly allude in its motion for JAML to the 42 U.S.C. § 1981a(b)(3) limitations. But, the district court was charged with applying applicable law to the case and specific reference to the statute was not required at that point. . . . [S]ubstantial unfairness arises when Sheriff is allowed to avoid adducing easily discoverable evidence in support of the substantial adequacy of a statutory element of her damages claim but is permitted to retain an unsupported judgment because Midwest purportedly waived application of the limitation provisions by failing to rely on them below. This especially true when a search of the record fails to disclose even a hint that Midwest has or ever had the 101 employees necessary to support the $100,000 award.”