North Carolina Lawyers Weekly
Mosby-Grant v. City of Hagerstown (Lawyers Weekly No. 10-01-1238, 21 pp.) (Gregory, J.) No. 09-2161, Dec. 20, 2010; USDC at Baltimore (Legg, J.) 4th Cir. Click here for the full text of the opinion.
Holding: The 4th Circuit reverses summary judgment for the city on an African-American female police recruit’s sexual harassment claim, but affirms summary judgment on her claim alleging race discrimination.
Plaintiff presented enough evidence for a reasonable jury to conclude she was exposed to a hostile work environment because of her sex. Plaintiff, as the only female recruit, was consistently made to feel like an outsider by her classmates and some instructors, with one instructor even referring to her as a “bitch.” Plaintiff felt ostracized in part because of her classmates’ “juvenile behavior,” including their constant use of sexist language and disparaging remarks about women. In her presence, recruits would regularly sing sexually explicit lyrics, and describe women as “bitches,” “prostitutes,” “crazy” and “dope fiends” and denigrate the female victims of domestic violence.
Although the sexist language was rarely directed at plaintiff herself, her classmates explicitly told her they felt she was “asking for special treatment because [she is] a woman.” The male recruits also noticeably singled out plaintiff for special scorn during trainings. Given these facts, a reasonable jury could find plaintiff was targeted because of her sex.
Plaintiff also suitably established that some of the unpleasant encounters between her and the other recruits were the result of race-based enmity. The references of recruits to the historical lynching of African-Americans, in particular, the brutal murder of James Byrd Jr., and their use of derogatory terms like “f- Mexicans,” “honky” and “ghetto” demonstrates there was a level of racial hostility at the academy. These comments are enough to suggest the recruits’ conduct was motivated by race.
The work environment was severe or pervasive enough to sustain plaintiff’s sex claim, but not her race claim. Sexist comments were pervasive at the academy and were frequently made to plaintiff or in her presence. Throughout the short period plaintiff spent at the academy, she heard fellow recruits brazenly and repeatedly described a sexual encounter with a 16-year-old girl, who was described as “homeless” and “crazy.”
On at least one occasion, instructors had to intervene to prevent the male recruits’ behavior from having an adverse effect on plaintiff’s work performance. It may also be reasonable for a jury to infer that the male recruits’ snickering during firearms testing was directed at plaintiff and, but for that harassment, she would have succeeded on qualification day.
Plaintiff presented adequate evidence for a reasonable jury to find the work environment was infected with a severe or pervasive air of sex-based hostility that affected her conditions of employment. However, plaintiff lacks sufficient evidence to proceed on her race-based claim.
Following the single incident wherein plaintiff overheard racist comments, the offending recruit immediately apologized and explained he and a biracial recruit had been joking with one another.
Although another recruit did openly disparage Mexicans, his repugnant remarks were made only two times in five months and, although not dispositive, were never directed at plaintiff. The evidence of the pervasiveness of racial animus at the academy is too isolated and too minimal to survive summary judgment.
Finally, in light of plaintiff’s repeated complaints to the academy director about the harassment, the conduct was imputable to the employer.
Summary judgment on the hostile environment claim is reversed, summary judgment for employer on the race claim is affirmed.
Dissent
(Niemeyer, J.) A review of the record discloses only a few isolated incidents occurring “because of” plaintiff’s sex. As such, they are not severe and pervasive, as required to establish liability. Of these isolated incidents, only three or four were brought to the attention of the academy director.
In sum, the aggregation of incidents that may arguably be considered a violation of 42 U.S.C. § 2000e-(2)(a)(1) present a work place environment far less severe and pervasive than those addressed in Hartsell v. Duplex Products Inc., 123 F.3d 766 (4th Cir. 1997), and Hopkins v. Baltimore Gas & Elec. Co., where we ruled against the complaining plaintiffs on the ground the incidents were too isolated and too few to be severe and pervasive.
In this case, I would likewise rule against plaintiff for the same reasons. Because I would affirm the judgment of the district court, I respectfully dissent.
