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Supervalu must counter evidence of its indifference to racial harassment at distribution center

By Brandi O. Brown, J.D.

In a lawsuit brought by two Black Supervalu employees under Title VII, Section 1981, and state laws, a federal district court in Minnesota has determined that a jury’s input is necessary on the racial harassment, retaliation, and negligence claims of one of the employees. One plaintiff described a series of incidents spanning several years, during which he was subjected to various forms of racial harassment and retaliation by white coworkers, including threats and physical acts of aggression. He also presented evidence that the employer failed to respond appropriately, particularly when initial attempts proved ineffective. However, the other plaintiff, who was seriously injured by a white employee who then was fired, will not proceed to trial with his claims (Kpou v. Supervalu, Inc., August 24, 2021, Ericksen, J.).

Both employees worked for Supervalu at its distribution center in Hopkins, Minnesota. Their work generally included loading and receiving. Both employees are of West African descent and were born in Liberia. Both men filed suit alleging they were subjected to a race-based hostile work environment, retaliatory harassment, and negligent behaviors by the employer.

Breakroom brawl. In late September 2015, an argument broke out between a group comprised of white workers and a group of Black, immigrant employees in one of the breakrooms at the distribution center. The white employees were angry about the other group being too loud. During the argument, a white employee threw a glass bottle at the black employees, which missed them and shattered, contending he did so because “‘something had to be done to stand up’ for his rights.”

His “Africans” and “you guys.” The first plaintiff involved in this suit was not in the breakroom or involved in that incident. Nevertheless, he was told by a white coworker just after the incident that “[his] Africans’ needed to stop and that [he] needed to ‘get them under control,’ or words to that effect.” He told the plaintiff “you guys” need to stop. The plaintiff told him that black employees had a right to be loud and that he should take his break outside if he did not like it.

Used forklift as weapon. Another white coworker who was nearby, overheard the conversation and got onto his 9,000-pound forklift and drove it into the plaintiff’s machine, yelling “I have rights too.” He hit and dragged the plaintiff’s machine, slamming it into a rack while continuing to yell. The plaintiff reported the incident and eight days later the coworker was fired.

Threatening notes. Thereafter, things got worse, the plaintiff contended, because in addition to racial harassment there was now retaliatory sentiment because of the white coworker’s termination. Two days after the incident, someone left a note in the plaintiff’s locker that stated, “DIE N****R.” His union representative stated that the note was an insult to every African American. Not long after that, another white employee knocked the plaintiff’s pallet over with a forklift and asked him why he got the coworker fired. Yet another coworker swerved his equipment into the plaintiff’s lane and accused him of costing the coworker his job.

A few days later the same union representative found a note in his locker that stated, “YOU LIE YOU DIE N****R” and contained a picture of guns, the number 2, and the same symbol that had been found on the first note. A third note was waved around by another white coworker, whom everyone already suspected of being the author of all of the notes. That coworker also made additional profane racial statements towards the plaintiff. An investigation was done about the notes, but the suspected author was only disciplined for lying during the investigation. When a Black employee asked why the employer did not make a statement condemning the threatening notes, the HR manager’s response was “He’s another one……ugh.”

In December, the plaintiff reported to HR that he was facing daily comments and threats and that he was told to watch his back. He took the threats seriously because many of the workers carried weapons at work and in their vehicles.

Training. According to the plaintiff and other witnesses, respectful workplace training that occurred in mid-2016 had little impact. One coworker could not recall the training and only remember training regarding violence. He testified that few employees took that seriously—some slept and some made gun sounds on their phone. In December 2016 another white employee threatened to punch the plaintiff in the face. That same employee had a reputation for not liking Black people and using the N-word.

Additional incidents. The employee has experienced other incidents in the years since, including incidents in 2019 with a white coworker who physically bumped into him and tried hit him with a forklift. Surveillance footage was available that supported at least one two of the incidents, including one in which a coworker stepped on his foot, pushed him backwards, and told him, “This is America, we pass on the right.”

Other evidence of race and retaliation problems. Other evidence of race issues at the distribution center was also presented, including a black employee finding nooses blowing in a fan in September 2015, the HR manager stating it was “Just another day at the zoo…..” when she learned that a white employee had cut out a picture of a monkey and told people it was one of his black coworkers. A survey in 2016 indicated that the employer needed to work to ensure employees could report incidents without fear of retaliation and that it should work to ensure that it responded quickly and consistently to misconduct.

Second plaintiff’s shoulder crushed. The second plaintiff described fewer incidents. In the worst of those incidents, however, a white coworker deliberately struck him in the should with the pallets on his forklift and dragged him without stopping, in spite of the plaintiff yelling for help. This caused a crushing injury in his shoulder and sent him to the hospital. Ultimately, the court concluded that his suit could not proceed to trial because, among other reasons, the employer responded appropriately to that incident.

Causal nexus. In this case, the court concluded in response to the employer’s motion for summary judgment, that a reasonable juror could conclude that several of the incidents revolving around the first plaintiff were connected to his race or national origin. For example, there is evidence that a coworker’s threat was racially motivated, because it was known that he did not like people of the plaintiff’s color and used “the ‘N’ word without any hesitation.” There was similar evidence of racial and national origin bias regarding the incidents involving other white coworkers as well.

There was also evidence that incidents involving three of the coworkers were a result of a white coworker’s termination, which in turn was a result of discriminatory animus. Indeed, the employer itself had concluded that the white coworker’s behavior was designed “to instigate or provoke violence between two distinct ethnic groups that were arguing.” A reasonable juror could infer that retaliation for his termination was part of the same discriminatory course of conduct he was fired for. Although the employer argued that one person’s racial motivation should not be projected onto another’s race neutral conduct, the court explained that “race-neutral conduct can satisfy the causal nexus requirement if it is connected to an “obvious or overt racial incident.’” In this case, there was evidence that acts by the three employees stemmed from a fellow coworker’s discrimination.

Severe, pervasive. Regarding the first plaintiff’s claims, the court concluded, “Considering the accumulation of these incidents over the last six years, the frequency of the harassment, the physical nature of the threats, and the physical proximity of Kpou’s harassers could support a finding that the harassment was objectively hostile.” A reasonable juror could find the harassment was pervasive. The plaintiff testified he faced daily comments and threats from coworkers. A reasonable juror could also find it was sufficiently severe, especially in light of the physically threatening nature of many of the incidents, including the use of machinery weighing thousands of pounds, the death threats, the punching, and the shoving. The threats were particularly frightening to the employee because he knew his coworkers carried weapons and he had to work in close proximity to these coworkers for eight hours each day.

Remedial action. Regarding whether the employer took prompt and appropriate remedial action, there was evidence that the employer appeared indifferent to at least four incidents of harassment the plaintiff experienced. It did not investigate incidents of which it was aware involving several of his white coworkers. Although it updated its security camera system, the evidence suggested that it was not because of the plaintiff’s complaints. As to the 2016 trainings, a reasonable jury could find that they were ineffective and that the employer should have recalculated its response. Indeed, the employee continued to report harassment after the respectful workplace trainings occurred. The court also found it “noteworthy” that the employer failed to make any sort of statement condemning the more widely known incidents. In addition to the breakroom dispute, the forklift incident, and the racist death threats, there was also evidence that there were nooses found in the warehouse.

Other claims. Regarding the plaintiff’s remaining claims, the court concluded that his retaliatory harassment claim should proceed, as should his negligent supervision claim, at least as it related to the actions of one of the coworkers. His negligent retention claim could not proceed, nor could the remainder of his negligent supervision claim.