In Durand v. Shull, 2022 WL 1184041 (10th Cir. April 21, 2022), the Tenth Circuit affirmed the lower court’s application of qualified immunity to grant defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim.
In sum, plaintiff – a Black female who worked as a Youth Services Specialist at a juvenile detention facility – alleged that defendant subjected her to a hostile and abusive work environment by not protecting her from “John Doe,” an inmate who assaulted her and whom she heard referring to her as “a black bitch and black ass N word.”
In finding that plaintiff failed to establish “pervasive” racial harassment, the court explained:
Durand identifies several instances in which she heard Doe call her a “Black Bitch,” Aplt. App., Vol. II at 55, or a “black ass N word,” id., Vol. I at 125. These racial slurs are undoubtedly offensive. But pervasive harassment requires more than “a few isolated incidents of racial enmity or sporadic racial slurs.” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (internal quotation marks omitted). “Instead, there must be a steady barrage of opprobrious racial comments.” Id. (internal quotation marks omitted).
Nevertheless, “the existence of racial harassment must be determined in light of the record as a whole, and the trier of fact must examine the totality of the circumstances, including the context in which the alleged incidents occurred.” McCowan v. All Star Maint., Inc., 273 F.3d 917, 925 (10th Cir. 2001) (brackets and internal quotation marks omitted). Durand contends that Doe’s racial slurs must be considered alongside his “[f]acially neutral” threatening statements and gestures toward Durand. Aplt. Opening Br. at 24. Indeed, “when a plaintiff introduces evidence of both race-based and race-neutral harassment, and when a jury, viewing the evidence in context, reasonably could view all of the allegedly harassing conduct as the product of racial hostility, then it is for the fact finder to decide whether such an inference should be drawn.” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 960 (10th Cir. 2012) (brackets, ellipsis, and internal quotation marks omitted).
But here, Durand has not identified evidence that a reasonable jury could view as establishing a common thread of racial hostility between Doe’s racially-neutral threats and gestures and his overtly racist statements. To the contrary, the record evidence indicates that Doe’s hostility toward Durand was tied to the assault charges pending against him. See, e.g., Aplt. App., Vol. II at 55 (Durand’s declaration statement that when Doe was in the control room “talking with others” and she walked by, Doe would say “ ‘Black Bitch’ and/or ‘don’t press charges[’]”); id. at 56 (Durand’s declaration statement that Doe asked a counselor whether Durand “was pressing charges against him” and then threatened to “continue to assault [her] and kill [her] if [she] pressed charges against him”).
Further, we cannot overlook the context of this case. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (requiring “careful consideration of the social context in which particular behavior occurs and is experienced by its target”); Lounds, 812 F.3d at 1223 (quoting Oncale and noting this court’s similar requirement of “careful[ ] consider[ation] [of] each instance [of alleged harassment] as a component of the overall workplace milieu”). Lookout Mountain is a “juvenile criminal correctional facility.” Aplt. App., Vol. I at 11. A probability of harassment is inherent in any such setting. See Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677, 678 (6th Cir. 2000) (stating “it is beyond doubt that inmate conduct, without more, is an insufficient predicate for a hostile environment claim” because “[b]y choosing to work in a prison, corrections personnel have acknowledged and accepted the probability that they will face inappropriate and socially deviant behavior”; but finding a hostile work environment because the plaintiff’s coworker “encouraged, endorsed, and even instigated the inmates’ harassing conduct”); see, e.g., Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 550 (8th Cir. 2007) (citing Slayton and declining “[t]o impose liability [for a hostile work environment] upon [a juvenile corrections facility] for the inappropriate sexual expressions of severely troubled youth … without evidence of special circumstances”).
Because this case arises from a corrections environment and involves evidence of isolated racial slurs, with facially-neutral threats and gestures not shown to be the product of racial hostility, we conclude that a reasonable jury could not find that Durand’s work environment was infected with pervasive racial harassment.
The court then assessed whether the alleged harassment constituted “severe” racial harassment. The court held that it was not, noting its determination that “a reasonable jury could not find a racial component in Doe’s facially-neutral threats” and that the racial language (“black bitch and black ass N word”) must be considered in the corrections context in which it was uttered. Further, the inmate made ore or more of the racist remarks to others, rather than directly to her.
Finally, the court held that the individual defendant (plaintiff’s supervisor) was entitled to qualified immunity, since plaintiff did not show that the supervisor violated a clearly-established constitutional right. Notably, plaintiff did not identify a case with similar facts (i.e., one in which a plaintiff sought to “impose personal liability against a state supervising officer for exposure to racial harassment committed by a nonemployee third party, where (1) there is no evidence the supervising officer had racist intent or engaged in any racist conduct; (2) the harassment was accomplished by an inmate in a corrections facility; and (3) the harassment was connected to the inmate’s attempts to avoid criminal charges.”).