In Gooch v. Electric Power Board of Metropolitan Nashville and Davidson County d/b/a Nashville Electric Service, No. 3:20-cv-01001, 2022 WL 2196267 (M.D.Tenn. June 17, 2022), the court held that plaintiff presented sufficient evidence to survive summary judgment on his race-based hostile work environment claim under 42 U.S.C. §§ 1981 and 1983.
The court summarized the horrific conditions, as alleged by plaintiff, as follows:
Soon after Gooch started working at NES until the year that he retired, he endured a continuous stream of racial remarks and incidents. These included a co-worker calling him a “nigger” (Doc. No. 38-1 at ¶ 15); slurs and comments about a drawing depicting an African-American being chased by a white man with a whip (Doc. No. 38-1 at ¶ 18); hearing from a co-worker that NES supervisor, Tim Kinkead, used the N-Word (Doc. No. 38-1 at ¶ 19); and hearing his co-workers say: “Blacks need to stay in their place,” “Need to have slaves again to make America great again,” and “Your black ass doesn’t need a promotion.” (Doc. No. 38-1 at ¶ 20).
After summarizing the black-latter law, the court explained its decision to deny defendant’s motion for summary judgment (in part):
Viewed in the light most favorable to Gooch, the record shows that a jury could find that he was subjected to ongoing racial slurs and incidents for many years continuing through the one-year period preceding the filing of this lawsuit. But here, NES has failed to present any evidence of its remedial action.
[The case of Jackson v. Quanex Corp., 181 F.3d 647 (6th Cir. 1999)] supports the Court’s conclusion. There, an employee alleged she suffered a racially hostile work environment after feeling offended by racial graffiti and slurs by co-workers. Id. at 663. Although she did not report every instance of graffiti and slurs, other African-American employees did. Id. Indeed, a supervisor admitted his awareness of such graffiti and conduct. Id. Despite this, management dug in their toes and made no effort to discover the perpetrators. Id. Consequently, the harassing conduct continued during the employee’s work tenure. Id. Taking all the circumstances into consideration, the Sixth Circuit found that the employee offered enough evidence that the environment unreasonably interfered with her work and the employer knew or should have known. Id.
As in Quanex Corp., 191 F.3d at 664, when Gooch began his employment with NES until he retired, racial slurs, comments and epithets were common. (Doc. No. 34-1). He heard the N-Word, repeatedly. He learned about a drawing depicting an African-American man being tortured by a white man. (Doc. No. 38-1 at 9). Gooch then learned that a supervisor used the N-Word, (Id.) and a co-worker. (Id. at 8.) He has also heard NES officials and workers say that we “need to have slaves again to make America great again,” “Blacks need to stay in their place,” and “Your black ass doesn’t need a promotion.” (Doc. No. 38 at 18).
When Gooch filed a grievance about work conditions and his failure to be promoted, he alleged that NES failed to take prompt action to investigate his concerns. (See Doc. No. 38-14). It appears that NES conducted an investigation, but viewing the evidence in favor of Gooch, there is conflicting testimony on whether the investigation was done properly and by who. (See Doc. Nos. 38-13, 38-15). Indeed, Camille Steward [a former HR employee] testified Gooch’s grievance “wasn’t my investigation” but Herb DeBerry [the HR Vice-President] testified Steward told him that there was no discrimination. (Doc. No. 15, 13).
The most disturbing pieces of evidence are the nooses found on NES property. They were found in 2007 and 2019. While the Supreme Court has explained that “simple teasing, offhand comments, and isolated incidents” do not amount to discrimination under Title VII, see Faragher v. City of Boca Raton, 525 U.S. 775, 788 (1998), repeated incidents without any effort to discover the perpetuators do not qualify as isolated. It is clear beyond any reasonable debate that a noose is severe physically and mentally threatening for anyone, especially for African-Americans. Unquestionably, NES was put on notice in 2007, yet here failed to offer evidence of how it sought to rectify the work environment for African-American employees. Surely, NES was made aware once again when a noose was found in 2019 at the Donelson Service Center. (Doc. No. 38-1 at 10). When the totality of this evidence is considered, it provides a basis for a reasonable jury to find NES liable. Indeed, given that NES has failed to respond to Gooch’s “Statement of Additional Facts,” the Local Rule 56.01(f) and Federal Rule of Civil Procedure 56(e) require the Court to take Gooch’s factual assertions as true. See Fed. R. Civ. P. 56(e); L.R. 56.01(f).
Based on this, the court held that plaintiff’s hostile work environment claim under § 1981 and § 1983 passes summary judgment and will proceed to trial.
The court did, however, dismiss plaintiff’s hostile work environment claims asserted under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 since plaintiff failed to exhaust his administrative remedies at the U.S. Equal Employment Opportunity Commission.