North Carolina Lawyers Weekly
The repeated use of a racial epithet by the 6-year-old grandson of the owners of an assisted living facility was sufficient to support a former employee’s hostile work environment claim, a unanimous panel of the 4th U.S. Circuit Court of Appeals has ruled, reversing summary judgment in favor of the employer.
An African-American female, Tonya R. Chapman, worked at the Oakland Living Center (OLC) in Rutherfordton for two periods of time. From 2004 to 2015, she worked as a housekeeper, cook and personal care aide at the assisted living facility. She claimed that during this 11-year span, she experienced racial harassment and other discrimination perpetrated by members of the white family that owned the facility.
According to Chapman, the Smith family – Arlene and Michael, who own OLC; their son Steve, who served as a supervisor while training to take over the business; and three of Steve’s sons – made comments about giving her a “slave number,” complained “there were too many Blacks at Myrtle Beach” and gave her a cake arguably depicting a Black figure hanging from a noose at a monkey-themed party for Steve’s sons.
Based on these incidents and a lack of advancement, Chapman quit.
But in 2018, she returned to OLC as a weekend cook. One day, one of Steve’s sons – who were present at the facility all the time – kicked her and told her, “My daddy called you a lazy [expletive] Black [n-word], because you didn’t come to work.” Chapman reported the incident to her supervisor.
The following month, the same 6-year-old yelled at her “[n-word, [n-word]. Get to work, [n-word].” When Chapman reported it, Steve brought the boy into the kitchen to apologize, but he cried and refused. Steve left and the boy said to Chapman, “Tonya you are a [n-word].”
Chapman quit and filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), which didn’t include information about the discrimination she allegedly experienced during her first time at OLC. She then filed suit pro se, accusing OLC of a hostile work environment and constructive discharge.
OLC moved for summary judgment. The district court – considering only the three n-word incidents – granted the motion. Chapman appealed.
Judge Robert B. King reversed, finding the three incidents sufficient to move her claims forward and further holding that the district court should have considered the earlier alleged harassment.
“[T]he fact that the three n-word incidents were perpetrated by a six-year-old boy does not preclude a finding that those incidents are sufficiently severe or pervasive to alter Chapman’s conditions of employment and create an abusive work environment,” he wrote. “[D]ue consideration must be given on remand to the racial harassment and other discrimination allegedly perpetrated against Chapman during her earlier period of employment. At minimum, it is relevant background evidence in support of the hostile work environment and constructive discharge claims premised on the three n-word incidents.”
‘Purpose or effect’ of interfering with work
King began with Chapman’s hostile work environment claim, focusing on the third and fourth elements.
The third element of a hostile work environment claim requires a showing that the environment would reasonably be perceived, and is perceived, as hostile or abusive.
While OLC argued that the repeated use of the n-word was not objectively severe because it was uttered by a young child, Chapman countered that it was uttered by the grandson of OLC’s owners and the son of a supervisor being groomed to take over the family business.
Moreover, the first time he used the slur, the boy attributed it to his father, along with a negative commentary on Chapman’s work performance.
“[A] reasonable person in Chapman’s position could ‘fear that the child had his relatives’ ear and could make life difficult for her,’” King wrote. “Whether or not the boy was being truthful, the invocation of his father can reasonably be seen as further amplifying the severity of the boy’s comment to Chapman.”
Importantly, King emphasized that it didn’t matter if the boy was too young to understand the force of his words or if he lacked intent to harm Chapman, because “harassment based on a protected characteristic may be actionable where it ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.’ Indeed, a reasonable person in Chapman’s position could perceive the boy’s comments to be ‘especially humiliating’ because of his young age, and his ‘constant presence in the [assisted living facility’s] kitchen’ to pose a threat ‘that another incident could occur at any time.’”
Turning to the fourth element, King noted that the district court failed to address whether OLC had constructive knowledge of the alleged harassment. The record indicated that OLC failed to provide reasonable procedures with regard to workplace harassment, he said, and as a result, a reasonable jury could charge OLC with constructive knowledge of all three n-word incidents.
He also found that a question remained as to whether OLC had actual knowledge of the n-word incidents.
King disagreed with the district court that Steve Smith was immediately alerted and appropriately responded to the second n-word incident and that Chapman’s resignation deprived OLC of an opportunity to deal with the third incident, finding a genuine dispute of fact.
It was unclear whether Steve’s response – “spanking his young son, dragging the boy to the assisted living facility’s kitchen to apologize to Chapman, and then abruptly leaving the boy crying and recalcitrant with Chapman and [her supervisor], without even offering his own apology” – was “reasonably calculated to prevent further harassment,” he said. “Furthermore, it is significant – although not dispositive of the adequacy of Steve Smith’s response – that the response proved ineffective and that the second August 2018 n-word incident quickly followed the first. Finally, a jury could also be swayed by this point made by Chapman: that Steve Smith’s ‘response would have been inadequate even if the child had apologized.’”
First work period must be considered
Still considering only the three n-word incidents, King then reversed summary judgment on Chapman’s constructive discharge claim, as the district court applied the incorrect standard.
The 4th Circuit used to require a showing that the employer “deliberately” made the working conditions intolerable in an effort to induce the employee to quit, but after the U.S. Supreme Court’s 2016 decision in Green v. Brennan, the standard no longer requires a showing of “deliberateness,” he explained.
Finally, King found the district court erred in excluding any consideration of Chapman’s evidence from her work at OLC between 2004 and 2015.
“[U]nder Supreme Court precedent, Chapman is entitled to ‘us[e] the prior acts as background evidence in support of [her] timely claim[s],’” he wrote. “Thus, notwithstanding the district court’s rulings, the trier of fact ‘would still be entitled to consider [the 2004-2015 evidence] to assess witness credibility and to decide other issues, such as whether OLC had notice of the environment and whether it would be reasonable to expect Ms. Chapman to pursue further complains for the 2018 incidents.’”
The jury could conclude that a reasonable person in Chapman’s position could have perceived past discriminatory incidents involving the child’s grandparents and parents as confirmation that challenging the three n-word incidents could lead to unwelcome consequences, or that viewing the child’s conduct through the lens of his family members’ prior actions rendered the three n-word incidents more severe.
King vacated the judgment of the district court and remanded, noting that due consideration must be given to the harassment allegedly perpetrated during Chapman’s first period of employment.
Judges James Andrew Wynn and Senior Judge Barbara Milano Keenan joined the opinion.
On appeal, Chapman was represented by members of the University of Virginia School of Law’s Appellate Litigation Clinic. Professor Scott Ballenger, who leads the clinic, said he was “extremely pleased with the very thoughtful decision, which did a great job of analyzing an unusual set of legal and factual problems.”
The case “sort of fell between the seams” of different legal doctrines, he said, because the harassment at issue came from a 6-year-old relative of the company’s owners and primary employees – not a customer or supervisor.
Despite the atypical fact scenario, the case provides an important lesson, Ballenger said: “Supervisors can have responsibility in these cases for more than just their own statements and actions.”
Jonathan Yarbrough of Constangy, Brooks, Smith & Prophete in Asheville, Va., who represented OLC, did not respond to a request for comment.
The 26-page decision is Chapman v. Oakland Living Center, Inc. The full text of the opinion is available online at nclawyersweekly.com.
