Sixth Circuit Rejects Dismissal of Racial Harassment Claim Where Black Supervisor Called Plaintiffs Monkey A--.

Last week, the Sixth Circuit reversed an employer’s summary judgment on a racial harassment claim brought by two former truck drivers.   Smith v. P.A.M. Transport, Inc. , No. 24-5549 (6^th Cir. 9-25-25).   The  Court found that calling the plaintiffs “monkey a__” or ANY derivative of monkey was as racially derogatory as the n-word, even if it was mostly used against them by their black supervisor.   It also refused to find problems with whether black and African-American can be used interchangeably for evidentiary purposes when comparing the plaintiffs to “white” employees.   It rejected the employers’ evidence for an affirmative defense at the summary judgment stage concerning whether it took reasonable steps to prevent harassment when it promulgated an anti-harassment policy without evidence that it was effectively enforced or followed up with management training.  The Court’s majority also found sufficient evidence of comparative treatment to sustain the disparate treatment allegations. 

According to the Court’s decision, the plaintiff truck drivers both worked out of the Nashville terminal and alleged that they were paid a day rate, but were required to drive more hours and miles per week and in damaged trucks than their white counterparts.   One was fired after two negative performance evaluations, but without prior disciplinary warning.  Both alleged that they were “regularly” called “money a__” by their black supervisor, who was otherwise respectful in communicating with white truck drivers.  They alleged that their supervisor threatened to withhold pay or fire them and regularly demeaned them.  They alleged that they complained with “liaisons” about the mistreatment, but that nothing was done to rectify or stop it.    Their supervisor reported to a white manager.   Both sued under  Title VII and Section 1981.   The trial court granted the employer summary judgment on the grounds that they had failed to produce sufficient evidence of a racially hostile work environment or disparate treatment. 

The Court rejected the district court’s conclusion that derivatives of “monkey” were not plainly racist.

We have recognized that, “[g]iven the history of racial stereotypes against African-Americans and the prevalent one of African-Americans as animals or monkeys, it is [] reasonable—perhaps even [] obvious”—to conclude that the invocation of the term “monkey” against an African American is “intended [as a] racial insult.” . . .

Consequently, circuit courts, including our circuit, have overwhelmingly held that the use of the term “monkey” against an African American employee constitutes evidence of race-based harassment sufficient to support a hostile work environment claim. For example, we have found evidence of racial harassment where, among other things, African American firefighters were assigned to workstations labeled “Monkey Island.” . . .

 . . .

 . . . The term “monkey” and its derivatives, while not overtly racial in isolation, have a long and well-understood history as racial slurs when directed at African Americans.  . . . . In this case, two African American plaintiffs have testified that their supervisors directly and repeatedly called them “monkey” and “monkey ass.” The use of the terms in that context raises a reasonable “inference of discrimination on the basis of” race.  . . . . That suffices to show race-based harassment at the summary judgment stage. The district court’s determination that Plaintiffs’ testimony about the use of these terms does not constitute “evidence of the use of race-specific and derogatory terms,” therefore, was plainly incorrect.

The Court rejected as “frivolous” the argument that being called “money a__” was somehow not racist when being called monkey was inherently racist.

[The employer] offers no reason—and we can think of none—as to why the addition of the word “ass” somehow obviates the racialized nature of the term “monkey.” To the contrary, the “use of the term ‘monkey’ or derivative terms” against African Americans constitutes compelling evidence of racial harassment.  . . .  Simply put, there is no meaningful difference between the terms “monkey” and “monkey ass” when used by a supervisor against an African American employee, as alleged here.

The Court rejected the district court’s conclusion that the racist nature of the term was reduced because the speaker was also African-American.  Just as there can be same-sex harassment, there can be same-race harassment.

To be sure, in some contexts, the fact that the alleged perpetrator is within the same protected class as the alleged victim may be material. But on this record, we see no fact or reason why [the supervisor’s] race undermines the conclusion that a reasonable jury could find his (and his supervisor’s) alleged use of “monkey” and “monkey ass” to be racially derogatory.

The Court also rejected the argument that the plaintiffs were required to prove that the terms were not used against white employees.

The Court also rejected as “deeply flawed” the district court’s conclusion that African-American and “black” could not be used interchangeably, meaning that the African-American plaintiffs failed to carry their burden of proof by comparing themselves to “white” employees, who could also be African-American. 

This reasoning is deeply flawed. It starts from the erroneous premise that “African American” and “Black”—and, in turn, “non-African American” and “white”—are rigid categories of identity that can never be used interchangeably. Contrary to that assumption, our Title VII jurisprudence on race discrimination governs, and we have often used “African American” and “Black” interchangeably and compared “African Americans” with “whites.” . . . . The district court attempted to justify its additional evidentiary requirements by pointing to Title VII’s prohibition on discrimination based on skin color, reasoning that “discrimination based on color is distinct from discrimination based on race.”  . . . . But that distinction does not obviate our well-established caselaw recognizing “Black” and “white” as racial identities.

By relying on this narrow conception of racial identity, unadorned by legal precedent, the district court effectively imposed a heightened burden on Plaintiffs beyond what Title VII, § 1981, and the THRA require. Our circuit has never held that a plaintiff must proffer evidence of a comparator’s racial self-identification or genetic composition to survive judgment in a Title VII case. To the contrary, we have routinely accepted, at summary judgment, plaintiff testimony of disparate, race-based treatment grounded in experience and perception. . . .

The Court’s majority also found sufficient evidence of disparate treatment to also support the claims of racially harassment. 

“[F]acially neutral abusive conduct can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”   . . . . Here, given the alleged use of racial slurs by [the supervisor and manager], a reasonable jury could infer that the accompanying (purportedly race-neutral) verbal abuse by both individuals was, in fact, also racially motivated, without regard to Plaintiffs’ testimony that non-African Americans received more favorable treatment.

The Court also rejected the district court conclusion that the evidence was insufficient to show a severe or pervasive ractially hostile work environment.

Our governing precedent, however, requires evaluation of the work environment as a whole, including the broader context in which the terms “monkey” and “monkey ass” were allegedly used.  . . . . As noted, facially neutral abusive conduct, such as screaming, cursing, and threatening, “can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”  . . .  By refusing to consider the use of the slurs in conjunction with the accompanying verbal abuse (or, for that matter, the unfavorable employment-related treatment) when assessing severity and pervasiveness, the district court relied on an incomplete picture of the harassment that Plaintiffs allegedly experienced.

 . . .

 . . . our circuit has recognized that even a single incident of racial harassment, including the use of an egregious racial slur like the n-word, “may be so severe as to constitute a hostile work environment.” . . .  Like the n-word, the term “monkey” is “odious” and “degrading and humiliating in the extreme” when used as an insult against African Americans.  . . . . That is particularly true in this case, where [the plaintiffs] were purportedly called the term directly by their supervisors. The utterance of a slur by a manager “greatly increase[s] its severity,” and “harassment will be more severe if offensive comments were directed at a plaintiff.”

 . . . .

  . . .  [The plaintiffs] testified that they were directly called “monkey” and “monkey ass” by their supervisors on multiple occasions over time. Plaintiffs have also proffered evidence that, at least with respect to [one plaintiff], the term “monkey ass” was used in an overtly threatening manner. For example, [he] testified that [his supervisor] once told him, “you’re going to get your monkey A-S-S out there and do the job or . . . I’m going to write you up.”  . . . . Even standing alone, the evidence of these race-specific and derogatory terms very likely suffices to show severe or pervasive racial harassment.

We do not rely on the use of the slurs alone, however, because our governing cases require consideration of the totality of the circumstances in hostile work environment cases.  . . . . As discussed, [the plaintiffs] testified not only that they were directly called egregious, degrading, and humiliating racial slurs by their supervisors on several occasions, but also that they were subjected to sustained verbal use, in the form of threats, demeaning criticism, cursing, and screaming, while non-African American TRR drivers were spared from that same abuse. Plaintiffs also testified that they were consistently forced to work longer hours, drive lengthier routes with longer wait times, and use damaged trucks, unlike their non-African American counterparts. And both testified that the harassment caused them significant anxiety and diminished morale, which made it more difficult to drive on the road.

Viewing the totality of the record in the light most favorable to Plaintiffs, as we must, we conclude that a “reasonable person would have found [their work environment] hostile [and] abusive.” Id. at 309. In turn, a reasonable jury could find, from the totality of the evidence, that [they] were subjected to recurring, severe, and humiliating racial harassment that unreasonably interfered with their employment.

The Court also found sufficient evidence of employer vicarious liability because the employer failed to produce sufficient evidence to support its affirmative defense. 

While the employer points to the fact that it gave [the plaintiffs] a copy of its Anti-Discrimination and Harassment Policy, our caselaw makes clear that the existence and provision of a harassment policy alone are insufficient to show “reasonable care to prevent and correct promptly any racially harassing behavior.” . . . An employer must also show that the policy was reasonable and “effective in practice.”  . . .  [The employer] points to no evidence, and does not even attempt to argue, that it had an effective policy. It makes no mention of the policy’s “requirements” on supervisors or the “training regarding the policy”— both of which are baseline requirements for establishing the existence of a reasonable harassment policy. Id. at 349-50. The record also does not show that [the employer] took reasonable care to promptly correct the alleged harassment. To the contrary, Plaintiffs have testified that they placed [the employer] on notice of the harassment by reporting it to management-level employees, and P[it] has proffered no evidence that it acted to promptly correct the situation. On this record, we cannot say that [the employer] “exercised reasonable care to prevent and correct promptly any racially harassing behavior by its supervisor[s].”

 

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.

A Tale of Two Age Discrimination Cases in Central Ohio

Last week, a divided Franklin County Court of Appeals issued decisions in two different age discrimination cases.  One has been pending since 1999 and has been up and down the appellate process with a variety of results.  One has had several jury trials, while the other was a reversal of a bench trial.  In the first case, a nurse was terminated in 2009 for violating policies in the NICU at a local hospital after 21 years of service.  Although she appealed the case to an internal review board that recommended a lesser penalty, the president decided to sustain the termination of her employment.  The common pleas judge hearing the case ruled in her favor only to be reversed last week on appeal.  Mittler v. OhioHealth Corp., 2013-Ohio-1634.  In the second case, the plaintiff filed his lawsuit after his 1998 separation from employment.  The case was initially dismissed on summary judgment in 2001, was reversed on appeal, resulted in a jury verdict in 2002 awarding over $700,000 in compensatory (emotional distress) damages and $25M in punitive damages (as well as attorney fees), was reversed on appeal and so on.  More recently, the jury ruled against the plaintiff on his age discrimination claim, but last week a divided court of appeals remanded the case for yet another trial based on evidence it found was improperly excluded. Jelinek v. Abbott Laboratories, 2013-Ohio-1675.  This case is illustrative for a number of points, not the least of which is how unpredictable and how lengthy litigation can be.

To start with the briefer case, in Mittler, the plaintiff was fired following two incidents.  In one, she took a picture of a volunteer holding infant twins without first obtaining the permission of the babies’ mother (who later objected to volunteers holding her babies).  She had given a copy of the photo to the volunteer before obtaining permission and did not self-disclose her alleged HIPAA violation when the mistake came to light. She also mistakenly administered eye drops to the same infants and failed to submit an incident report. The HIPAA violation subjected the plaintiff to immediate termination.  On appeal, the problem review committee unanimous recommended the imposition of a less serious penalty.  However, the hospital’s president upheld the termination. 

The case was tried to the bench (instead of a jury) and the court found that the plaintiff would not have been terminated but for her age.  However, on appeal, the Court of Appeals concluded that she could not prove age discrimination because she could not show that she was replaced by a younger person.  According to the Court’s majority, no new employees were transferred to her shift after her discharge; her duties were merely redistributed among existing employees (some of whom were older than her).  The dissent noted that four older nurses had been terminated in two months and night shift nurses were hired and eight months later a day shift nurse was hired.  Therefore, the dissent agreed with the trial court that the plaintiff’s termination result in the hiring and retention of younger employees.

The plaintiff also could not show that younger employees were treated differently.  Her alleged comparators all reported their mistakes, unlike the plaintiff.  The dissent focused on alleged mistreatment of older nurses in other contexts.  In short, the dissent did not believe that the plaintiff would have been fired, but for her age.

The Jelinek case has had a long and tortured history.  The case was re-filed in 1999 alleging, among other things, that the plaintiff had been constructively discharged in 1998 on account of his age when he had been reassigned to an allegedly less desirable sales territory that included Gary, Indiana instead of to one that included Memphis, Tennessee which had been assigned to a younger peer who had previously worked in Chicago. The plaintiff had worked for the company for more than 30 years and was the oldest of the district managers when all of the district manager positions were eliminated.   The case was first dismissed on summary judgment in 2001, but was reinstated later that year on appeal (in an opinion written by Judge Tyack), on the grounds that the transfer to the smaller Indiana district instead of Tennessee could be discriminatory.  The Court also reinstated his claims for promissory estoppel and constructive discharge, but affirmed dismissal of the plaintiff’s claims for wrongful discharge in violation of public policy and retaliation.  The court denied the plaintiff’s motion for reconsideration and the Supreme Court declined to take his appeal.

Back at the common pleas court, the case proceeded to a jury trial in 2002.  Although the jury found for the employer on the promissory estoppel and constructive discharge claims, it found that the plaintiff had been discriminated against on account of his age, awarded him $700,000 in compensatory damages (for emotional distress), attorney fees, and $25,000,000 in punitive damages.  (This made a lot of news).   After motions for JNOV (judgment notwithstanding the verdict), a new trial and remittitur, the judge made a number of conditional orders in 2003.  First, he granted the defendants’ jnov motions.  Should that be reversed on appeal, he granted the defendants’ motion for a new trial.  Should that also be reversed, he denied the defendants’ motion for a new trial unless the plaintiff rejected a remittitur reducing the amount of compensatory damages to $100,000 and punitive damages to $4,000.000.  The trial judge also denied the plaintiff’s request for attorney fees.

On appeal, the case was remanded for another new trial on the age discrimination claim in 2005.  The Court agreed that there was enough potential of evidence of age discrimination to support the jury’s verdict and, therefore, the trial court had erred in granting the jnov motion.  However, there was insufficient evidence of intolerable working conditions necessary to show a constructive discharge.  The Court also concluded that it was within the trial court’s discretion to condition the grant of a new trial.

Again back at the common pleas court, there were two attempts at new jury trials, but both resulted in mistrials.  That judge then recused himself in 2008 and the case was assigned to a new judge who “issued a decision stating that 'the scope of the new trial is confined to the age-discrimination claim and excludes a retrial of the constructive-discharge claim, including facts or allegations that relate to that claim.'"  The plaintiff attempted to force the trial judge to permit him to again try his constructive discharge theory and filed a mandamus action for force the trial judge to do so.  The Court of Appeals agreed in 2010 that he had not prevailed on the constructive discharge as a separate claim in the last jury trial and the court had previously overruled his only objection to that verdict.   Therefore, the trial court had not manifestly erred.  On appeal to the Ohio Supreme Court, the decision denying the mandamus was affirmed near the end of 2010.  The plaintiff remained free to pursue his argument on appeal from any future verdict based on the trial court’s ruling, just as every party has a right to do.

The case was again tried to a jury in 2011 and this time the jury ruled against the plaintiff and in favor of the defendants.  Prior to deliberations, the trial court had directed a verdict for the defendants on the issue of punitive damages. The plaintiff again appealed and the appellate court again reversed, but this time based on evidentiary rulings against the plaintiff.   In ruling on pre-trial motions in limine, the plaintiff was precluded from introducing evidence concerning his prior claims that had been dismissed:  promissory estoppels, retaliation, wrongful discharge in violation of public policy and constructive discharge.  The Court again overruled the plaintiff’s objection to the exclusion of all evidence related to his constructive discharge theory.   The Court also affirmed the trial court’s directed verdict on the issue of punitive damages.

 According to the Court’s opinion from last week (coincidentally, also written by Judge Tyack),  the plaintiff “was precluded from referring to the crime rate in Gary, Indiana, the quality of the Lake County territory, and any testimony referring to a memorandum allegedly saying that all employees over 50 years old with 20 years of service should take early retirement.”  This evidence had previously been introduced to support the plaintiff’s defunct constructive discharge claim.  However, the plaintiff argued that he should still be permitted to introduce this evidence to explain why this territory was undesirable and why the employer should not be believed in contending that it was equivalent to the territory offered to younger peers.

 

Evidence that the territory was "collapsed" from twelve counties to two shortly before it  was offered to [the plaintiff] addresses both the issue of pretext, and the reason why [the plaintiff] was reluctant to accept the territory. This pretext evidence was critical to [his] ultimate burden of proof and therefore its exclusion was highly prejudicial. By taking the extreme position that any mention of the quality of the territory related only to constructive discharge, the trial court abused its discretion.

The trial court also excluded testimony by a former salesperson that the retired vice-president of sales had discussed with him in 1999 a memorandum written in 1997 that employees over the age of 50 with over 20 years of service (like the plaintiff) should retire.  No such memorandum was ever produced as evidence and the company denied that it even existed.  The defendants objected to this testimony as hearsay because the vice president had retired the year before the alleged conversation.  However, the plaintiff argued and the Court agreed that it could constitute evidence of an admission by a party-opponent because the vice-president was an individual defendant at the trial. “Since the alleged memorandum was never produced, the jury can decide how much weight, if any, to give to [the vice president’s] admission.”

 There were some other interesting evidentiary issues.  Typically (and was true in this case), it is the plaintiff and not the defendant which seeks to introduce evidence about the other party’s wealth.  In this case, however, because the plaintiff’s constructive discharge claim had been rejected in prior proceedings, his only claim for damages for related to the emotional distress of losing his substantial income and having bills to pay.   The defendants showed that he was a millionaire at the time he resigned and had just bought his wife a Mercedes automobile.  They also showed pictures of his home to the jury.  The Court found it was within the trial court’s discretion to allow this evidence because the plaintiff’s:

 

financial situation was at issue because his claim for compensatory damages was based entirely on emotional stress caused by his financial concerns.  [The plaintiff] testified that he had sleepless nights, tossing and turning, worrying about how much money he had in the bank, that he was very stressed about money, and he was concerned about making ends meet.

The defendants argued (and the jury was instructed) that the plaintiff’s position was eliminated in a reduction in force.  However, the plaintiff was denied discovery on the RIF and precluded from introducing statistics.  The company argued that statistics were irrelevant since he had not alleged a disparate impact theory. The Court overruled the plaintiff’s objection at this point as moot, but ordered that “if, when the case is retried, [the company] intends to argue that the elimination of  [the plaintiff’s] position was part of an overall reduction in force in order to receive the heightened jury instruction, [he] should be allowed to rebut [its] claim by means of statistical evidence.”

 The Court agreed that the plaintiff had failed to present sufficient evidence to request the jury to rule on punitive damages.  At best, his evidence showed that there may have been a lack of formal EEO instruction, “but to infer that [the company] exhibited a conscious disregard for [his] right to be free from age discrimination requires a leap of logic not supported by the evidence.”

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.

EEOC Announces $435K Settlement With Jewelry Store When HR Manager Ignored Sexual Harassment of Three Female Employees.

Last week the EEOC announced that “Fred Meyer Stores, Inc. . . . will pay $485,000 to three female victims of sexual harassment and retaliation to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) [at] (EEOC, et. al. v. Fred Meyer Stores, Inc. No. CV08-0208 HA, United States District Court of Oregon) [based on], the company’s [alleged] practice of harassing female employees [in] 2004 through 2005 at the Fred Meyer Oregon City store. The EEOC says the sexually hostile work environment started . . . with illegal conduct by the store director and operations manager. The EEOC further asserted in the litigation that the store director and operations manager repeatedly subjected females to graphic sexual discussions, unwanted touching, and requests for sexual favors.”

In addition, the EEOC’s lawsuit alleged that the store “condoned and accepted this sexually harass­ing behavior, and the [EEOC] obtained testimony from the company’s human resources manager who witnessed the harassing conduct on several occasions and simply walked away. According to the EEOC, the same human resources manager failed to take appropriate action against the store director or operations manager. In addition, the EEOC charged that the company retaliated against the female employees when they complained about the sexual harassment.”

“Under a consent decree filed with the federal court, [the store] agreed to pay $485,000 to the three women who came forward during the EEOC’s lawsuit. The company also agreed to provide anti-discrimination training for the owner, managers, supervisors and employees; establish policies and procedures to address sexual harassment issues; provide information to the EEOC concerning any future discrimination complaints; and allow EEOC to monitor the work site for the next two years."

EEOC Regional Attorney William Tamayo explained, “The evidence in this litigation pointed to an alarming lack of recent workplace, anti-discrimination training for the high level managers involved in this case. It is unfortunate that a sophisticated employer like Fred Meyer Stores failed to recognize the importance of such training for its managers.”

Insomniacs can read the EEOC’s full press release at http://www.eeoc.gov/press/12-11-08a.html.

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.