The Tenth Circuit reverses summary judgment and remands in a section 1981 case involving harassment of a call-center's only black employee. The panel reminds district courts and litigants that even non-racial remarks, against a backdrop of racially-offensive chatter, may constitute harassment. It also notes that "whether a workplace environment is sufficiently polluted for purposes of a § 1981 claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense."
Lounds v. Lincare, Inc., No. 14-3158 (10th Cir. Dec. 22, 2015): Shawron Lounds was the sole black employee in Lincare's Wichita, Kansas satellite office, working as a customer-service representative. According to the summary judgment record, she became the immediate target of demeaning remarks, beginning with her supervisor - named Kraft - lampooning her name at group meeting ("I thought your name was Shaniqua!") and advising her to "get ghetto" with a tough customer. The same supervisor later told employees that a company vice president was coming to inspect, and should be address "yes, massa."
Co-workers sometimes talked about the "hood," their word for black neighborhoods, as filthy and dangerous. They also allegedly greeted Lounds by saying "yo" and "what's up."
other comments took on a more threatening tone. One co-worker allegedly told Lounds that a black man who'd made the news for murdering his spouse should be lynched. When she objected, the co-worker rejoined that "I'm not trying to offend you[;] it's not like I said 'let[']s go down [to] 9th and Grove (the Black Neighborhood) and drag every black person with a noose, tie them to a truck and drag them after hanging them.'" An other co-worker chanted "BOOM!" and "Boom, Nigga!" Reportedly, the same co-worker used variations on that expression ("Peace out my Nigga").
After Lounds complained to management about these and other comments, written warnings issued to the offenders, dated January 30, 2012. Nevertheless, harassing comments allegedly followed, and Lounds was compelled to submit addition al written reports to the company. The "nigga" comments continued, a black applicant was referred to as "look[ing] like a convict," and Lounds heard statements like "black people smoke Marlboros" and "you know where the hood is."
On April 20, 2012, she filed a complaint with the Kansas Human Rights Commission. Six days later, she received a "documented counseling" for absenteeism. Though Lounds charged that the timing of the warning was retaliatory - and that she was increasingly traumatized by fresh rounds of harassing conduct - her absences continued to mount. She was also warned about using texting to register her absences, which violated company policy. On September 24, 2012 she was terminated.
Lounds, in her federal lawsuit, alleged both that Lincare maintained a racially-hostile work environment and that she was retaliated against (by disciplinary measures and her eventual termination). The district court held that the activity alleged was not "sufficiently severe or pervasive to sustain a hostile work environment claim under § 1981," and that "the alleged retaliatory actions against [Lounds] neither were not 'materially adverse' or were not caused by [her] protected activity."
The Tenth Circuit reverses summary judgment on the harassment claim. The court begins by noting that the severity and pervasiveness analysis "is inherently fact-found by nature," and thus "particularly unsuited for summary judgment." It also observes that remarks that are otherwise facially-neutral may be racially-hostile in context: "our precedent unmistakably requires us to assess in our analysis comments and behavior that in many circumstances might appear to be facially neutral (i.e., devoid of any actual discriminatory animus)." In this case, even some of the supposedly "neutral" comments identified by the plaintiff had racial overtones: Kraft's comment to Lounds that she herself had black cousins; a remark about singer Nicki Minaj's body; a "question as to whether [Lounds's] hair was a weave."
The panel holds that Lounds presented a genuine dispute about whether the harassing conduct was pervasive (bypassing the question of whether it was also severe). The opinion tweaks the plaintiff for failing to challenge the district court's separation of race-neutral and race-based conduct: "One may certainly question the wisdom of Ms. Lounds's approach in light of our precedent ... We are not, however, in the business of making arguments for the parties." Nevertheless, even the "incidents of racially offensive harassing conduct that the district court identified were sufficiently pervasive to create a genuine dispute of fact regarding the hostility of the environment."
The district court erred in part because "it discounted the offensiveness of key elements of the conduct based on its conclusions regarding the ostensibly benign intent of the alleged harassing actors." In fact, focusing on intent "led [the district court] to minimize the polluting effect on the workplace environment of the alleged harassers' conduct." (Emphasis in original.)
The panel focuses, in particular, on two harassing remarks, "due to their potentially powerful race-based effect": the use of the word "nigga"; and the reference to "lynching." The court recognizes in the first instance that There might be culturally "less offensive" uses of that word, and yet "we are confident that this the kind of question that should be left to the judgment of a reasonable jury."
As for the second remark, "[r]eferences to lynching have frequently been recognized by our sister circuits to be potent evidence of invidious racial discrimination, which lends powerful support to a claim of hostile work environment." The panel notes that even if the message were nothing more than support for "vigilante justice," nonetheless "the effect of his lynching discussion was to trigger mental or emotional associations of 'an egregious act of discrimination calculated to intimidate African-Americans.'"
While remanding the harassment claim, the panel affirms summary judgment on the retaliation claim, holding that There was no genuine dispute of material fact that Lounds was in fact terminated for absenteeism. "[H]aving carefully reviewed the challenged disciplinary actions, we find it pellucid that Ms. Lounds's theory of inconsistent action by Lincare lacks the evidentiary support necessary to create a genuine dispute of material fact. Quite the reverse is true: Lincare distinctly communicated to Ms. Lounds its position that her absences and texting practices were unacceptable."