Last week, a divided Franklin County Court of Appeals reversed an employer’s summary judgment on racially hostile work environment and retaliation claims. Croley v. JDM Servs., L.L.C., 2025-Ohio-4762. The Court found that the existence of a noose in a vehicle temporarily assigned to a new African-American employee on his second day of work by itself – without any racial comments or other evidence – was sufficient to create a jury question whether it was intended to harass and intimidate him on account of his race. Similarly, the later spontaneous shattering of his assigned vehicle’s windshield – with a pre-existing hole in it – was also sufficient to create a jury question whether it had been shot out without any other evidence of a gun or bullet fragment. Finally, the employer’s termination of the employee for refusing to permit a sample to be taken from the noose to compare to other rope on the worksite during its investigation of his allegations was found create a jury question of retaliation when the employer had not already gathered rope samples before the employee’s refusal based on his mistrust of the employer. The Court conceded that there was sufficient holes in the plaintiff's case for a jury to rule in favor of the employer, but felt that the jury should make the decision instead of the trial court.
According to the Court’s opinion, the plaintiff was hired on
January 10 by the employer’s General Manager and began work on January 13. On
January 14, the GM directed that the plaintiff be trained on the compacter,
which he was by two different employees.
During a ride on the compacter, he grabbed a rope for stability, but did
not find it helpful. Later, while alone
in the compactor, he realized that the rope was a noose hung from the rearview
mirror and it made him extremely fearful.
He took the noose and hung it from the door of the employee trailer. That
night, he reported it to the employment agency and the next day, January 15,
the GM questioned him about it, reiterated that the employer does not tolerate
discrimination and commenced an investigation.
The plaintiff put the noose in his truck for safekeeping and refused to
turn it over to the employer, although he did let them see it and inspect it. The following week, the windshield of the
vehicle he was operating had a small hole in it and then spontaneously shattered
while he was in it. He believed that
the windshield had been shot out by a gun and saw the GM’s vehicle parked up
the hill. A few days later, he was
again requested for the noose or a piece of it so that it could be compared to
other rope at the work site during the employer’s investigation. While he allowed the noose to be inspected in
his presence, he again refused to turn it over or permit a sample to be taken and
was fired for insubordination for impeding the investigation.
After the plaintiff was terminated, the owner reported him
for making criminal threats against a co-worker, but the co-worker told the
police that he did not feel threatened and nothing came of it. The employee filed suit in October. The trial court granted summary judgment to
the employer on the discrimination, harassment and retaliation claims. The Court of Appeals reversed the harassment
and retaliation claims, finding sufficient evidence for a reasonable jury to
evaluate.
While the Court’s majority conceded that many courts would
not find the noose incident – by itself – to constitute a hostile work
environment, it disagreed:
The noose is a symbol of this
nation’s violent legacy against African Americans and brings them “ ‘the grim
specter of racially motivated violence’ that continues today.” . . . . The noose is “among the most repugnant
of all racist symbols, because it is itself an instrument of violence.”
Historically, the noose is forever
“linked to lynching, the Ku Klux Klan (“KKK”), and the murdering of thousands
of African-Americans.” . . .
. . . .
. . . For the reasons above, we conclude the
act of hanging a noose on the mirror of an African American’s vehicle is
undoubtedly an unwelcome form of harassment based on race.
. . . .
. . . The
question becomes whether the act of hanging a noose on the vehicle assigned to
an African American male, on his second day of work at the facility, is severe
enough conduct to support a hostile work environment claim. We unequivocally
answer this question in the affirmative.
. . . .
. . . Even in cases where the noose does not
appear directed at a particular individual, given the noose’s dark legacy, a
reasonable African American employee could be forever altered by such a
visceral symbol in the workplace. African Americans who observe such a heinous
symbol should not be required to explain the violent history of the noose and
how it can invoke fear and anxiety. The threat of a noose is self-evident.3
The Court also believed that the window spontaneously
shattering while the plaintiff was inside could also be considered by a jury as
evidence of harassment even though no shell casings or bb or pellet was found
afterwards that might have explained why it shattered. It also rejected the employer’s explanation
that windshields periodically shatter at the worksite because of the regular
vibrations.
As the window incident occurred
only a week after the display of the noose, we find, considering the evidence
in a light most in favor of the nonmoving party, the incident amounts to
threatening conduct that indicates a willingness to act on the statement made
by the noose incident. Because the window incident amounts to a physical threat
of violence, the implicit threat from the noose is heightened and, based on the
close sequence of events, could reasonably be construed to have a racial
animus. Finally, there is a dispute of fact as to liability as [the plaintiff]
claims that [the GM’s] vehicle was in the immediate vicinity when the glass
shattered.
The dissent, realizing that nooses exist for reasons other
than lynching, required more evidence than the bare existence of a noose:
The dissent contends that “[o]ther
than the noose, there are no credible allegations of any race-based comments or
other activity involving race. The noose is not connected to any threatening
intent or racial animus by [the employer].”
. . . .
. . . At this phase of the case, however, we
are limited to determining whether a dispute of fact exists for trial. Given
the line of cases that have found that the single display of a noose in the
workplace can create a hostile work environment, we find it is the province of
the jury to determine whether the alleged conduct in this case is severe or
pervasive enough to demonstrate a hostile work environment claim. What the
dissent proposes is that, as a matter of law, leaving a noose in the vehicle of
an African American male does not constitute a severe enough act, without more,
to create a hostile work environment. In good conscience, we cannot support
such an approach. While a jury could very well find that the alleged incident
was not severe enough conduct to create a hostile work environment claim, the
argument that hanging a noose in the excavator that [the plaintiff] was
assigned to operate could not, as a matter of law, sufficiently alter the
conditions of employment for an African American is untenable.
The Court then found that the employer could be held liable
for the noose incident because it was alleged (without any evidence) that the
GM had put it there since he was the individual who had assigned the plaintiff
to that vehicle on that date. The Court
refused to credit the employer with conducting an investigation – despite its
employee interviews – because it had delayed a few hours in retrieving and safeguarding the
noose and had not gathered rope samples before firing the plaintiff for
refusing to permit a sample to be taken.
It is the province of the jury to
resolve whether the [the employer] took reasonable steps to correct the alleged
behavior. Furthermore, there is a dispute of fact whether [the plaintiff]
unreasonably failed to take advantage of any preventative or corrective
opportunities that the employer provided. The [employer] commenced an
investigation into the matter and met with [the plaintiff]. [He] agreed to show
them the noose but refused to leave the noose or allow it to be cut for
comparison with other rope at the worksite. [He] explained that he did not feel comfortable
turning over the noose or allowing them to cut a piece of it because he did not
trust [the owner]. It is for the jury to resolve these factual disputes.
The Court rejected certain evidence submitted by the
plaintiff to support his hostile work environment claim because he was unaware
of the incidents until after he had been fired.
For example, he had been written up (without his knowledge) for improper
operation of certain equipment. They
also rejected the police report as part of this claim because it happened after
his termination. ““ ‘Plaintiff
cannot use events that happened after his termination to support his hostile
work environment claim.’ ”
The Court also concluded that he had produced sufficient evidence
that his termination was retaliatory for complaining about the noose incident. While generally employees may be terminated
for refusing to cooperate with a workplace investigation, there are exceptions
and the Court found the plaintiff’s distrust of his employer to be sufficiently
protected conduct in this situation to let a jury decide whether his distrust
was justified and protected.
Considering the evidence in a light
most favorable to [the plaintiff], a jury could reasonably determine that
turning over evidence to a supervisor you do not trust, or allowing that
evidence to be damaged, is a reasonable nonparticipation in the investigative
process. This interpretation is bolstered by the fact that when [he] initially
informed [the GM] of the noose’s location outside the employee trailer, [the
GM] failed to [immediately] retrieve and secure the noose. Furthermore, [the
plaintiff], despite his trepidations, repeatedly allowed the noose to be
inspected. A jury could reasonably believe [his] explanation that his claim
could be hindered if the noose was damaged or not be properly preserved.
Conversely, the [employer] have represented that they wanted the noose to aid
in the investigation. Given the accusation at issue, there is at least a
dispute of fact that [his] fears were justified.
In addition, the plaintiff met several times with the
employer and answered their questions.
His only refusal concerned preservation of the integrity and safekeeping
of the noose. Moreover, his termination
came only days after his protected conduct in reporting the alleged harassment.
We find that the [the employer]
have provided a legitimate, nonretaliatory reason for terminating [his] employment. A reasonable jury could find that failure to turn over the noose,
or allow it to be cut, unreasonably impeded the investigation providing a
legitimate reason for termination.
The Court then required the plaintiff to show that the
employer’s explanation was pretext for retaliation.
[The plaintiff] can demonstrate
pretext by introducing evidence that he provided the noose on multiple
occasions to further the investigation. [He] had also previously allowed [the
GM] to take the noose when he left it outside the employee trailer. [The owner]
had not collected any samples of rope from around the worksite to compare it
with the noose, did not offer to keep the noose in a neutral location, and
never called law enforcement to report the incident. .. . . A jury could reasonably believe [the plaintiff’s]
explanation for not wanting to turn the noose over to the appellees or allow
them to cut a portion of the noose.
There was no discussion in the Court’s retaliation opinion
about post-termination conduct of the employer in reporting the plaintiff for
alleged criminal threats. There was also
no discussion of the same-actor inference since the alleged harasser was also
the same individual who hired him only days earlier. There was no also discussion of the racial composition
of the workforce, which might have put more context in the plaintiff’s paranoia.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
