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Supervisors’ use of n-word, inadequate investigation support Title VII claim

By Lorene D. Park, J.D.

Denying summary judgment on an African-American employee’s Title VII hostile work environment claim, a federal court in New York held that a jury could find that the repeated use of the n-word against him by two first line supervisors was severe and pervasive, that the employer’s investigation was inadequate, and that it should therefore be vicariously liable. However, the employee’s remaining discrimination and retaliation claims failed, largely because the record was clear that he was terminated because he failed to turn in FMLA paperwork and he accepted a better-paying job (Holt v. Dynaserv Industries, Inc., September 9, 2016.).

Use of the n-word. The employee worked for a street furniture maintenance company on the evening shift. He claimed his two first line supervisors repeatedly called him “ni**er.” In February 2014, one called him the n-word and said he “should be fired.” He complained to the African-American shift manager, who quickly met with them to discuss the incident. The shift manager told the employee he would inform the company president if the conduct did not cease. When the use of the n-word persisted, and the employee saw one supervisor remove the resume of a black applicant from another supervisor’s desk and tear it up, he again complained.

Investigation. In August 2014, the employee submitted a handwritten letter to the company president, claiming the supervisors harassed and discriminated against African Americans, describing the resume incident, and claiming that one supervisor damaged a company vehicle and tried to blame a black employee. The letter did not mention racial epithets. On September 5, the president met with the employee, the shift manager, and an HR rep to discuss the allegations. The employee also complained to his union rep who conducted a joint investigation with the president. Though the investigation did not find that the supervisors had discriminated, they were issued final warning notices stating that discriminatory behavior would not be tolerated.

Thereafter, the line supervisors allegedly complained about the employee’s performance and campaigned for his dismissal. He also claimed that the harassment continued, but he made no further reports of discrimination to either the company president or the union. In November 2014, one of the first line supervisors was fired for an unrelated incident of insubordination. In May 2015, the other was demoted to repair technician due to poor performance.

Termination. Meanwhile, the employee informed the shift manager that he would need to take medical leave but he never submitted FMLA forms despite repeated requests. In April 2015, the employee was terminated; his union rep informed him that the reason was that the company had learned he obtained employment elsewhere. In fact, the employee had begun training on a new higher-paying job on February 23, the same day he informed the employer he needed medical leave. For his new job, he completed a form stating that he was unemployed.

Discrimination, retaliation claims fail. Granting summary judgment against the employee’s race discrimination claims under Title VII and state law, the court found that the record did not support a prima facie inference of discriminatory intent. The evidence showed animus only by the first line supervisors, but they had no power to fire the employee. Even assuming that they “campaigned” for his dismissal, the chronology of events made it clear they were unsuccessful. The employee continued working until the day he started training for a new job paying almost twice as much. Also, he admitted that he was terminated for failing to turn in FMLA paperwork.

Based on the foregoing, no reasonable jury could find he was fired due to discrimination. Moreover, for the same reasons, he could not make out a prima facie case of retaliation either.

No constructive discharge. The court also rejected the employee’s constructive discharge claim. Nothing in the record suggested his work environment was intolerable because of discrimination between August 2014, when he submitted his complaint letter, and April 2015, when he was terminated. Indeed, the first line supervisors received final warnings in September 2014 and there was no evidence of further discriminatory behavior thereafter.

N-word supports HWE claim. On the other hand, summary judgment was denied on the employee’s hostile work environment claim. Citing the Second Circuit, the court explained that “no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguous racial epithet” such as a supervisor’s use of the n-word. Here, a jury could conclude that the two supervisors’ repeated use of racial epithets directed at the employee were sufficiently severe and pervasive to be actionable.

Vicarious liability. In addition, a jury could find that the employer was negligent in controlling working conditions so as to be vicariously liable under Title VII for the first line supervisors’ actions. The court explained that the employer could have discovered and stopped the harassment earlier and that the investigation could be found inadequate, resulting in insufficient discipline. Although the company and union did a “joint investigation,” the evidence indicated this was nothing more than the company’s interview of the employee and the union’s phone call with one of the first line supervisors about “some complaints” that “have to do with racial.” Nothing suggested an investigation of the employee’s specific allegations, nor any interview of the other first line supervisor, the shift manager, or witnesses to the harassment.

However, under New York law, “an employer is never strictly liable for the conduct of employees,” and the employee lacked evidence that the employer encouraged, condoned, or approved the harassing conduct, so summary judgment was granted on the NYSHRL claim.