In King v. UA Local 91 et al, 2024 WL 4437132 (N.D.Ala. Oct. 7, 2024), the court, inter alia, granted defendants’ motion for summary judgment on plaintiff’s race-based hostile work environment claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
From the decision:
The only evidence Plaintiffs cite in the argument section of their brief is their declarations. (See id. at 41). The portions of the declarations they cite are nearly identical; each plaintiff alleges the Confederate flag was kept next to the Out of Work List in the hiring hall and the only way to get on the list was to sign it in person. (See doc. 306-11 at 3 ¶¶ 9–10; doc. 306-12 at 3 ¶¶ 9–10; doc. 306-13 at 4 ¶¶ 11–12; doc. 306-14 at 3–4 ¶¶ 9–10; doc. 305-15 at 3 ¶¶ 9–10). They each state that the flag “was no different than if [Local 91] had strung up a noose on the podium. They stand for the same thing.” (See doc. 306-11 at 3 ¶ 10; doc. 306-12 at 3 ¶ 10; doc. 306-13 at 4 ¶ 12; doc. 306-14 at 4 ¶ 10; doc. 305-15 at 3 ¶ 10). Because each plaintiff makes the same allegation regarding the Confederate flag, the court will address it globally for all Plaintiffs.
Viewing those declarations in the light most favorable to each plaintiff, the court will infer each plaintiff actually saw the Confederate flag, although that was not specifically alleged. The declarations also do not allege how frequently each plaintiff saw the flag; that omission is significant because the frequency of the harassing conduct is a factor in evaluating if a work environment is objectively hostile. (See doc. 306-11 at 3 ¶¶ 9–10; doc. 306-12 at 3 ¶¶ 9–10; doc. 306-13 at 4 ¶¶ 11–12; doc. 306-14 at 3–4 ¶¶ 9–10; doc. 305-15 at 3 ¶¶ 9–10); Adams, 754 F.3d at 1250. Although Plaintiffs mention they signed the Out of Work List “numerous times,” they do not direct the court to any evidence that shows how frequently each plaintiff went to the hiring hall to sign the Out of Work list when the Confederate flag was present. (See doc. 309 at 40–44; see, e.g., doc. 306-11 at 2 ¶ 6).
But even if the court assumes Plaintiffs saw the flag on a weekly basis, that alone would not be enough to establish a dispute concerning their work environments. In Adams a plaintiff failed to create a dispute concerning the objective hostility of his work environment even though he saw his coworkers wear the Confederate flag on a regular basis, saw racist graffiti in the restroom daily, heard people say the N-word occasionally, and heard about a noose in a breakroom. See 754 F.3d at 1254. In particular, the Eleventh Circuit found that the plaintiff’s “exposure to the Confederate flag was not directly humiliating or threatening.” Id. Similarly here, Plaintiffs have presented no evidence that their occasional exposure to the flag was humiliating or threatening, as opposed to merely offensive. See id. at 1250–51 (distinguishing between physically threatening or humiliating conduct and “mere offensive utterance[s]”).
The court thus concluded that even assuming plaintiffs saw the Confederate flag regularly, that fact alone cannot create a triable issue of fact as to a hostile work environment.