Labor & Employment — Employer Could Be Liable for Racist Death Threats

Pryor v. United Air Lines Inc. (Lawyers Weekly No. 15-01-0685, 26 pp.) (Gregory, J.) No. 14-1442, July 1, 2015; USDC at Alexandria, Va. (Brinkema, J.) 4^th Cir.

Holding: The 4^th Circuit vacates summary judgment for United Airlines in an African-American flight attendant’s hostile environment suit alleging the airlines failed to adequately respond to racist death threat left in her company mailbox; the district court concluded plaintiff was subjected to a racially hostile work environment, but erred in deciding on summary judgment that the airline was not liable for the offensive conduct.

Plaintiff, who worked out of Dulles International Airport, in January 2011 discovered in her company mailbox a paper note claiming to be a “N—– Tag – Federal N—– Hunting License,” claiming to authorize the holder to hunt and kill such persons “during the open search hereof in the U.S.” The tag also purported to give the “holder permission to hunt day or night, with or without dogs,” according to plaintiff’s suit. A hand-drawn image of a person hanging from a pole or a tree appeared on one corner of the document, along with the words “this is for you.” Plaintiff reported the threat to the company. Several months later, the same racist threat was discovered by four other senior African-American flight attendants in their mailboxes. Subsequent daily audits of the company mailboxes revealed copies left for five more employees. Ultimately, the airline contacted police. Plaintiff relocated to an airport in Houston. She sued employer, and the district court granted summary judgment to defendant.

Severe Threat

We agree with the district court’s determination that, although the notes may not have been pervasive, a reasonable jury could find they were sufficiently severe to alter the conditions of plaintiff’s employment and create a hostile work environment. Four considerations support that conclusion. First, the use of the word “N—–” is pure anathema to African-Americas, as it is to all of us. Second, as the district court also persuasively reasoned, the offensive language was made still more offensive by virtue of the presence of a clear element of violence manifested by the threats inherent in a “hunting license” and the image of a lynching. Third, the location where plaintiff discovered the threats added to their gravity; they were left in a secure mailroom at a major airport – a space with access ostensibly limited to coworkers and others with company authorization. Finally, the direct threats against plaintiff were made more severe by the same threats left for several other flight attendants; an additional racist message written on two apartment advertisements on the company bulletin board and racially-tinged prostitution rumors.

In sum, the conduct at issue in this case is far removed from the mere off-hand comments or teasing that courts have found of insufficient severity to engender a hostile environment.

The question of the airline’s liability for the anonymous harassing conduct is a closer one.

Employer Liability

The conduct at issue here is some of the most serious imaginable in the workplace – an unmistakable threat of deadly violence against an individual based on her race, occurring in the particularly sensitive space of an airport. Given the severity of the threat, a reasonable jury could find that United’s response was neither prompt nor reasonably calculated to end the harassment. United supervisors did not call police, even though police later suggested they should have. They did not escalate the matter to the Employee Service Center, in apparent violation of company policy. They did not inform corporate security of the racist message on the fliers previously discovered in the break room. They did not promptly install cameras or other monitoring devices. They did not provide plaintiff with additional security or protective measures. They did not obtain fingerprints, do other forensics analysis or interview coworkers. They remarkably did not inform plaintiff when their investigation closed. In short, a reasonable jury could find that United had done very little to deter future acts of harassment up until the time the airline initially closed its investigation.

A reasonable jury could find that United’s response was reluctant and reactive, intended to minimize any disruption to day-to-day operations instead of identifying a perpetrator and deterring future harassment.

Vacated and remanded.