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Pryor v. United Air Lines, Inc., No. 14-1442 (4th Cir. July 1, 2015); Stewart v. Rise, Inc., No. 13-3579 (8th Cir. June 30, 2015)

Two decisions this week address racially-hostile work environment claims involving unusual circumstances. The Fourth Circuit addresses the employer's duty to address anonymous race harassment, here a death threat left in a company mailbox. The Eighth Circuit addresses harassment of an African-American supervisor by her Somali staff. Both result in reversals of summary judgment on Title VII and § 1981 harassment claims.

Pryor v. United Air Lines, Inc., No. 14-1442 (4th Cir. July 1, 2015):

plaintiff, a flight attendant, received a threatening, racist email in her work mailbox -

"[S]he discovered in her company mailbox a paper note claiming to be a 'N[****]r Tag - Federal N[****]r Hunting License," declaring that the holder was "licensed to hunt & kill N[****]RS during the open search hereof in the U.S.' J.A. 209. The tag also purported to give 'the holder permission to hunt day or night, with or without dogs.' Id. A hand-drawn image of a person hanging from a pole or a tree appeared on one corner of the document, along with the words "'this for you.'"

This was not the first incident. Executives also were aware of similar racial incidents dating back more than a decade, the most recent being two racist real-estate ads with the legend "no n[igger]s need apply." There had also been rumors circulating that black women employees were part of a prostitution ring.

When Pyror gave the threat to her supervisor (Reyes), he said "he was 'sorry' but that There was 'not much' United could do because There were no security cameras covering the area." Although the company maintained an office to receive harassment complaints (Employee Service Center, or ESC), neither the supervisor nor There executives up the chain made contact with that office or the police.

company security also reportedly failed to interview co-workers or preserve the physical evidence of the threat. The company formally contacted co-workers some two-and-a-half months later with a general e-mail stating that the company was "investigating unspecified 'inappropriate and offensive material,' and it instructed them to notify a manager if they had any knowledge regarding the unspecified activity."

Because of the perceived inactivity, Pryor took matters into her own hands, contacting ESC and the local police. But "[when the police first approached Pryor's supervisors, they were greeted with less than enthusiastic cooperation. Panos told the officer 'that they were in the middle of a situation and this was not the best time to meet.'"

Months later, Pryor and nine There black employees received a nearly identical racist death threat in their mailboxes. Only at this point, at the behest of the police, did the company install temporary cameras in the mailroom and begin gathering fingerprints from employees.

Pryor brought suit under § 1981 and Title VII for hostile work environment. The legal issues presented were whether the anonymous harassment was sufficiently severe, and whether liability could be imputed to the company.

The Fourth Circuit holds that There was a genuine dispute of material fact on both issues. On the issue of severity, the court considered four factors decisive: (1) "the use of "the word 'n[****]r' is pure anathema to African-Americans"; (2) "the offensive language was made still more severe 'by virtue of the presence of a clear element of violence' manifested by the threats inherent in a 'hunting license' and the image of a lynching"; (3) "the location where Pryor discovered the threats" was a supposedly "secure mailroom at a major airport - a space with access ostensibly limited to coworkers and Theres with company authorization"; and (4) the background of There racist comments.

On the issue of the employer's responsibility for the harassment, the panel notes:

"[I]nstances of anonymous harassment pose unique challenges to companies that must work both to identify the perpetrator and to protect victims from a faceless, though ominous, threat. But on the There hand, an employer maintains a responsibility to reasonably carry out those dual duties of investigation and protection. The anonymous nature of severe threats or acts of harassment may, in fact, heighten what is required of an employer, particularly in circumstances where the harassment occurs inside a secure space accessible to only company-authorized individuals."

Pryor conceded that the second round of threats were met by an adequate company response, so the "question is thus whether the airline's actions in response to the first threat were prompt and reasonably calculated to end the harassment." The panel holds that the record would support a finding of negligence by the company:

"Given the severity of the threat, a reasonable jury could find that United's response was neither prompt nor reasonably calculated to end the harassment. United supervisors did not call police, even though police later suggested that they should have. They did not escalate the matter to the ESC, in apparent violation of the company's H&D policy. [fn. omitted] They did not inform corporate security of the racist message on the fliers previously discovered in the break room. They did not promptly install cameras or There monitoring devices. They did not provide Pryor with addition al security or protective measures. They did not obtain fingerprints, do There forensics analysis, or interview co-workers. And they remarkably did not inform Pryor when their investigation closed, an event that occurred without management having sent any correspondence to employees to solicit information and/or put them on notice that the company was being vigilant in monitoring the workplace."

The panel also notes the company's resistance to police involvement and that it is "significant, albeit not dispositive, that United's response to the first threat was ineffectual in stopping the harassing conduct, as the notes reappeared months later in greater number."

The district court also erred in putting the burden on Pryor to prove that addition al measures would have prevent later harassment: "A plaintiff in a hostile work environment case does not bear the burden of making the speculative showing that taking different measures would have necessarily stopped the harassing conduct at issue."

Stewart v. Rise, Inc., No. 13-3579 (8th Cir. June 30, 2015): plaintiff was a supervisor in for the branch office of a non-profit organization that helped connect clients with work opportunities. She claimed that "several male, Somali-born subordinates created a hostile work environment through sexist, racist, and nationalist comments and through physical violence and intimidation, all due to the fact that Stewart was an American-born African-American woman."

The comments and threats, all of which Stewart reported to management, were pervasive and at times horrific: name calling ("bitch"), told that "African-American women have no value," one man blocked her path with his pants unzipped, an office file was thrown at her, threats of physical violence against women, subordinates refused to do "women's work" (like cleaning) that they considered beneath them, comments such as "American women were disrespectful because they were not beaten enough."

The company relied on annual certifications signed by Stewart and There employees which stated that "[t]o the best of my knowledge, I am unaware of any possible violation of the standards described in the attached Code of Conduct and/or potential conflict of interest, either by me, managers, supervisors, or There employees."

In 2012, Rise terminated Stewart for a supposed "breakdown in management and morale at the office," "the office's poor workforce participation rate and the possible [concomitant] loss of funding." Rise brought suit under federal and state law for discrimination in termination, retaliation and hostile work environment. The district court held, among There things, that the events experienced by Stewart were not severe or pervasive, and that the employer had a defense that it took reasonable precautions.

The panel reverses summary judgment on the harassment claim. It holds that There is a genuine dispute of material fact about whether Stewart took adequate steps to notify the company of the harassment. "Rise describes Stewart as a hyper-sensitive micro-manager who could not deal with criticism and failed to adequately report the frequency and severity of the offensive conduct." Yet the panel concludes that the record shows that Stewart "reported many instances of harassment as harassment, and There instances as insubordination and inappropriate behavior."

Though Stewart's testimony on summary judgment was presented in the form of an affidavit, any asserted inconsistency with prior statements did not rise to the level of making the affidavit a "sham":

"The alleged inconsistencies include: (1) the annual certifications as contrasted with the claimed verbal reports of harassment; and (2) the failure to consistently reference animus based on race, sex, or national origin in the claimed verbal reports to [management]. These nuances simply do not reach the level of assertions that 'directly contradict[]' testimony under oath and that might support the discounting of evidence as a matter of law."

Indeed, Stewart's testimony was supported by the managers' own notes, witness depositions, the EEOC charge and testimony of a co-worker named Damani, and inconsistencies in the defense evidence.

Stewart also presented sufficient evidence to establish a hostile work environment. A jury could conclude the comments at issue were neither off-hand nor isolated.

"According to Stewart and Damani, the comments were a consistent pattern of verbal abuse based upon sex, race, or national origin often tied to overt acts of intimidation, violence, or insubordination. Together with the general and open insubordination, the threats against county workers and auditors, the intimidating stances, the throwing of a file, and the grabbing of Damani, the conduct may be viewed as amounting to an actionably severe hostile work environment."

Finally, the panel noted the novelty of the claim: "That is not to say we believe this an easy case. When the plaintiff is a supervisor, and the objected-to conduct originates among her subordinates, a jury may look with great suspicion upon claims that the plaintiff adequately presented her concerns up the chain of command."

The panel affirmed summary judgment on the termination and retaliation claims, finding insufficient evidence of causation and pretext.

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