Court Says Hostile Workplace Claim Triable, Despite Worker’s Use of Similar Slurs on Job
By Chris Opfer
A Thai-Hawaiian construction foreman raised a triable question of whether his boss’s use of racial slurs in addressing him created a hostile work environment, even though he occasionally responded by using offensive terms of his own, the U.S. District Court for the District of Arizona ruled June 19 (Christopher v. Spectra Elec. Serv. Inc., D. Ariz., No. 2:12-cv-00345, 6/19/13).
Robert Christopher claimed that Erik White–his direct supervisor at Spectra Electrical Services Inc.–regularly referred to him as “gook, coconut, and pineapple” and sometimes other terms such as “Geronimo” and “Navajo.” Christopher acknowledged that he occasionally responded by calling White, who is white, names such as “honky” and “cracker” after White persisted in using the slurs.
The court denied Spectra’s partial summary judgment motion on Christopher’s race discrimination claim under Title VII of the 1964 Civil Rights Act. Judge David G. Campbell explained that Christopher provided enough evidence for a jury to find that White’s “pattern” of conduct was sufficiently severe and pervasive to create a hostile environment.
Specifically, Christopher claimed that he found the slurs offensive and asked White to stop using them. In addition, Christopher said White’s use of slurs in front of subordinates undermined his authority and ability to work effectively.
The court granted Spectra summary judgment on Christopher’s claim for punitive damages, however, finding that the company did not improperly fail to investigate his complaints, which were lodged after he quit or was fired from his job.
Just ‘Clowning Around.’
Christopher worked as a Spectra contractor for roughly seven months in 2005 and returned to the company as journeyman electrician in December 2006.
He was assigned to work on ASU Towers, a two-building college dormitory project, and promoted to a foreman position in March 2008.
Christopher said he became friendly with general foreman Erik White during this time and the two played golf together outside of work.
Nevertheless, Christopher claimed that White began to address him by using a variety of racial slurs, including “coconut, pineapple, and gook” and Native American names such as “Geronimo, Cochise, and Navajo.”
According to Christopher, White used the offensive terms more than 30 times over a two-month span and often addressed him in this manner while workers Christopher supervised were also present.
White allegedly persisted in using the slurs after Christopher asked him to stop, explaining that he was just “clowning around.” Christopher admitted that he “occasionally reciprocated” according to the court, referring to White as “honky” and “cracker.”
Christopher was assigned to another project for a three-month span in 2008. He saw White at various meetings, during which he said White did not address him using the offensive terms.
When Christopher returned to the ASU Towers project in October 2008, however, White allegedly continued to use the slurs. Christopher did not complain and did not ask White to stop, according to the court.
Noting that the record remained unclear about the precise circumstances of his departure, the court said that Christopher either quit or was fired within a few weeks after returning to the project.
In a deposition, Christopher said he and White argued about the “utter chaos” in which he found the project on his return and that he quit after a particularly heated exchange. Christopher further asserted that he agreed to return to the job the next day when White “begged” him not to quit, but was promptly fired by White when he arrived on-site.
At another point in the deposition, Christopher claimed that he simply quit the job, saying that he was “tired of all the comments … and how come the job wasn’t getting done and all these slurs and stuff.”
Following his termination, Christopher filed a grievance with his union and a charge of discrimination against the company with the Equal Employment Opportunity Commission.
EEOC issued a determination finding reasonable cause to believe that Spectra had discriminated against Christopher. In response, the company cited White for “improper conduct” and instituted a corrective action to ensure his compliance with company policy.
Christopher later sued Spectra for race discrimination under Title VII.
‘Pattern’ of Slurs
The court found that Christopher raised a triable issue as to whether White’s behavior was sufficiently severe and pervasive to create a hostile work environment.
While Christopher admitted that he occasionally engaged in similar name calling, the court noted that he also testified that he did not think that White’s conduct was funny and that he complained to White and asked him to stop. Christopher also said White’s use of the slurs in front of Christopher’s subordinates undermined his authority and made it more difficult for him to run an effective crew, according to the court.
Distinguishing the matter from other cases in which the isolated use of slurs was not considered indicative of a hostile work environment, the court said White’s alleged name calling was “part of a regular and ongoing pattern of communication.”
Specifically, the court said White’s alleged conduct was more severe and pervasive than that at issue in Vasquez v. County of L.A., 92 FEP Cases 1630, 349 F.3d 634 (9th Cir. 2004), in which a supervisor made only two discriminatory statements over a six-month period. Similarly, Kortan v. California Youth Auth., 83 FEP Cases 618, 217 F.3d 1104 (9th Cir. 2000), largely involved a “single outburst” after a workplace dispute, according to the court.
“Unlike the two instances of racially offensive utterances in Vasquez and the instances of sexual harassment in Kortan …, Mr. Christopher testified that Mr. White referred to him by racial slurs at least 30 times over a two month period despite Mr. Christopher’s objections, and resumed doing so shortly after Mr. Christopher returned to work at the ASU Towers,” Campbell wrote.
Punitive Damages Not Warranted
The court further held that Christopher was not entitled to seek punitive damages for the harassment claim, however, because he did not show that Spectra acted with malice or reckless indifference to his rights.
The court noted that Christopher did not complain about White’s behavior to anyone other than White until after he either quit or was fired from his job. There was no evidence indicating that White used the slurs in front of superiors, according to the court.
“Plaintiffs cite no authority for the proposition that an employer has an obligation to investigate complaints made known only to outside parties and only after the aggrieved party is no longer employed,” Campbell observed.
Stephen G. Montoya of Phoenix represented Christopher. Spectra was represented by Charles W. Wirken and Robert D. Haws of Gust Rosenfeld, also in Phoenix.
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Christopher_v_Spectra_Electrical_Services_Incorporated_Docket_No_.