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African-American worker harassed by coworker, warned not to wear an Obama shirt, fired after complaining that HR director distributed McCain flyers, advances HWE, reprisal claims

By Marjorie Johnson, J.D.

Summary judgment was erroneously granted against an African-American employee who was allegedly subjected to harassment and fired when he complained about the harassment and the unequal application of the company’s rule against political paraphernalia (the HR director distributed John McCain flyers), the Sixth Circuit ruled in an unpublished opinion (Paasewe v Action Group, Inc, July 17, 2013, per curiam). The employee testified that supervisors and coworkers repeatedly remarked that his car was too expensive for a black man, that a Caucasian coworker warned him never to wear an Obama t-shirt and to take Obama back to Africa, and that the company president called him “boy” and told him to stay out of the company’s business.

Racially charged workplace. The employee worked for less than six months as a grinder for an equipment manufacturer. From the beginning, he was allegedly subjected to racial harassment. He alleged that supervisors and employees repeatedly remarked that his car was too expensive for a black man earning $10 an hour and asked what he did outside of work to afford it. The Caucasian HR director also asked him daily “who he really is” and his “true identity,” remarking that the company would have no choice but to get rid of him if he did not disclose the truth. The HR director also falsely accused him of sexually harassing a white female coworker. Before the allegation was retracted, it spread around work and harmed his reputation.

In mid-August 2008, the employee wore a shirt to work supporting then-presidential candidate Obama. A Caucasian coworker called him “boy” and told him not to wear the shirt again. He also threatened to kill him and Obama if Obama won, and said that the employee should take Obama back to Africa to vote for him. To address the situation, a manager held a staff meeting and the coworker was issued a verbal warning. After the employee threatened to report the company if it refused to report the coworker to the police, several supervisors threatened to fire him for absences that had been previously excused by the HR director.

The coworker continued intimidating the employee, making racist remarks in a low voice while gesturing as if he were shooting him. The employee reported this to management but nothing was done. The next month, two Caucasian workers were called into work despite management’s directive that grinders stay home for a day because there was no work.

McCain propaganda allowed. In response to the August 2008 incident, the employer issued a policy that prohibited political paraphernalia from the workplace. Nonetheless, the HR director brought in pins and flyers supporting candidate John McCain and distributed them to employees. When the employee complained about the inequity, the HR director and the company’s president told him to stay out of company business if he wanted to keep his job. The president allegedly said, “let me tell you something boy. . . . you don’t know what I am capable of doing to anyone who tr[ies] to destroy my company.” A few days later, the HR director gave McCain flyers to an African-American employee to pass out to “his community.” She also refused to sign the employee’s certificate of forklift training unless he agreed not to sue the company for all the allegations he had made against the company.

The employee injured his back on December 5, 2008. He attempted to return to work several days later but was unable to do so. He was fired in early January 2009, with his termination made retroactive to December 17, 2008. He filed suit and summary judgment was granted for the employer on his race-based HWE and retaliation claims under Title VII. The employee appealed.

HWE claim. The Sixth Circuit rejected the employer’s assertion that the coworker’s harassment was not race-based because his comments were politically motivated. Notably, the coworker did not simply deride his support for Obama, but allegedly called him “boy,” threatened his life, and told him to take Obama back to Africa to vote for him. Moreover, the coworker’s racial remarks and threats allegedly continued after the August 2008 incident. On this record, the use of the term “boy” in reference to the employee and in context of his racially-charged statements was sufficient evidence to permit a reasonable jury to conclude the conduct was race-based.

Moreover, the HR director allegedly singled the employee out for a false sexual harassment claim and questioned him about his true identity. He was also repeatedly asked how he could afford his car and the president allegedly called him “boy” and threatened him when he complained about unequal application of the political paraphernalia rule. On the totality of these incidents, a reasonable jury could find discriminatory animus extended to upper management. It could also be inferred that the coworker’s alleged harassment—coupled with management’s unresponsiveness and remarks—created a racially hostile work environment.

Finally, the employee presented sufficient evidence to establish the employer knew or should have known about the harassment and failed to take prompt remedial action. Even assuming the company took reasonable, good-faith steps to address the August 2008 coworker incident by holding a meeting and issuing a verbal warning, it took no action in response to the employee’s subsequent complaints about the coworker’s conduct. There were also triable fact issues concerning the conduct of company management toward him.

Reprisal claim. The employee also presented sufficient evidence to withstand summary judgment on his retaliation claim. First, there was a temporal proximity of only a few months between his complaints and his termination. Moreover, he testified that the HR director and company president made comments to the effect that if he wanted to keep his job, he should stay out of the company’s business, with the president’s accompanying reference to him as “boy.” Although the president’s racially-charged remarks were not made in response to his complaints about the coworker’s harassment, they were made in response to his complaint that the company’s implementation of its political paraphernalia rule amounted to racial discrimination.

The employee also cast doubt on the employer’s assertion that it terminated him because he never returned after the HR director told him to obtain a return-to-work slip. The employee asserted that the HR director told him not to return to work until she called him because he was under “some kind of investigation.” Although he obtained a return-to-work slip that same day, the HR director did not call him and, shortly after, he found out that he had been terminated. Because a triable fact issue existed on this issue, summary judgment was inappropriate.