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Fuller v. Fiber Glass Systems, L.P., No. 09-2732 (8th Cir. Aug. 25, 2010)

| Aug 24, 2010 | Daily Developments in EEO Law |

In the Eighth Circuit today, a plaintiff keeps her jury verdict and $65,000 emotional distress award following a Title VII/§ 1981 trial, in a case demonstrating that some racist tendencies persist in the workplace.

Fuller v. Fiber Glass Systems, L.P., No. 09-2732 (8th Cir. Aug. 25, 2010): An African-American employee doing inside sales on th phone caught grief from her co-workers —

“Fuller worked alongside Patty L. Holmes and Yolanda Erasmus, both white females. Holmes was charged with training Fuller. Fuller testified that on her first day ‘[Holmes] informed me that she had attended a predominantly all-black school in Memphis and that she didn’t like blacks, but she said that if I didn’t cause her any stress or any tension, that she would try to tolerate me.’ Holmes also suggested that she had the power to determine if Fuller kept her position. Holmes maintained a hostile attitude toward Fuller, telling her ‘we really don’t need you, you know,’ that the job was too hard for her, and that Fuller really didn’t want it. Holmes asked Fuller
many mornings, ‘Why did you come back?’ Although a person in Fuller’s position would normally answer the phone, Holmes told Fuller not to speak to customers on the phone because they were not used to hearing a ‘black voice or ethnic voice.'”

Fuller’s supervisor, A. Dale Smith, joined in the hostile work environment: “Smith stood behind Fuller as she worked, making ‘monkey or gorilla gestures’ while Holmes laughed.” When she attempted to report the behavior to her former supervisor, she was told to “hang in there, ignore the abuse, and hopefully things would get better.”

The jury found the company liable for a racially hostile work environment and awarded Fuller $65,000 in damages based substantially on her own testimony: “as a result of the emotional distress, she could not sleep, could not eat, and was so stressed that she felt sick to her stomach. She testified that she went to her doctor and was prescribed Wellbutrin, facts confirmed by her medical records. Also, plant manager Winfrey
testified that Fuller had tears in her eyes when they met, and he gave her time off because of her emotional distress.” The jury deadlocked on punitive damages and Fuller dropped the claim for that relief.

The panel affirms the verdict and award of attorney’s fees. The court holds that the record presented sufficient evidence of an objectively severe or pervasive, racially-hostile work environment where the racist remarks continued over a two-month period. Notably, “[o]n [Fuller’s] first day at the corporate office, her co-worker/trainer told her she didn’t like black people.” The panel also finds that the employer did not prevail, as a matter of law, on its Faragher/Ellerth affirmative defense, because Fuller did raise complaints under the company’s anti-harassment policy: “Fuller testified that within the first week, she complained to Smith, her supervisor, about how Holmes treated her, but Smith took no remedial action, and in fact told Holmes about her complaint. Fuller testified that she then went, more than once, to her old boss, Marsenburg, and told him about the racial harassment, but he told her to ‘hang in there.’ Finally, she met with the plant manager and filed a formal complaint about two months after starting in the corporate offices.”

The panel also affirms the compensatory award based on lay testimony (finding also that it is not “clearly excessive”), rejects a claim of possible juror prejudice, affirms admission of a manager’s statement over a defense objection that it was obtained by improper ex parte communications, alleged instructional errors, and an alleged defect in allowing the magistrate judge to preside briefly over part of the trial. Finally, the panel rejected cross-appeals of the attorney’s fee award.

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