In Webb v. City of Venice, No. 8:19-cv-3045-TPB-TGW 2022 WL 2967291 (M.D.Fla. July 27, 2022), the court, inter alia, denied defendant’s motion for judgment as a matter of law on plaintiff’s claim of race-based hostile work environment claim.
As to the issue of the existence of a hostile work environment, the court explained:
This is admittedly a close case. However, if Plaintiff’s evidence is believed and all reasonable inferences drawn in his favor, a reasonable jury could find that Plaintiff experienced harassment based on his race which, considered “cumulatively and in the totality of the circumstances,” Reeves, 594 F.3d at 808, went well beyond “ordinary workplace tribulations” and altered the terms and conditions of his employment. In reaching this conclusion, the Court is influenced by a number of factors. These include: (1) the public and humiliating nature of the graffiti and roll call incidents, (2) the use of derogatory racial epithets and symbolism by Gregoire and Long, (3) verbally and physically threatening statements and conduct by Gregoire and Long, (4) Plaintiff’s position as one of only two black officers at the VPD, (5) the stressful nature of police work and the need for trust between officers, (6) the fact that the majority of the incidents specifically targeted Plaintiff, and (7) Plaintiff’s testimony regarding the impact of the incidents on his emotional state and his work.
The Court is also influenced by evidence that supervisory personnel, expressly charged by Defendant with enforcing prohibitions on harassment, personally participated in the harassment or witnessed harassment but did nothing to stop or report it to higher management. This conduct could well signal to a reasonable employee in Plaintiff’s position that his employer has effectively adopted the offending conduct. See Reeves, 594 F.3d at 811 (observing that “an employer’s knowledge and refusal to act may be read as ‘the employer’s adoption of the offending conduct and its results’ ”) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998)).
Defendant argues that only one instance of racial harassment was shown – Sergeant Gregoire’s angrily telling Plaintiff “I hate you, you fucking nigger” – and contends that no reasonable jury could conclude that any of the other incidents could be construed as racial harassment. The Court disagrees. Most of the incidents overtly involved race and could reasonably be construed as involving ridicule or insult. Defendant argues that Gregoire’s offensive remark at roll call that Plaintiff could “suck [his] dick” because “that’s what ya’ll like to do” had no racial implication. But this ignores the fact that the first black VPD officer was gay, and also ignores Gregoire’s other racially offensive conduct. Whether Gregoire intended the remark as a racial insult or, as Defendant would have it, simply as a “crude” remark, presented a question for the jury.
The internal affairs investigation into alleged misconduct by Plaintiff, which Chief Mattmuller ultimately determined to be unsupported, did not expressly implicate race. But it was initiated by Sergeant Gregoire close in time to his involvement in other, racially charged incidents. The Court instructed the jury that Plaintiff was required to prove harassment of Plaintiff “because of his race” and further gave a special instruction – at Defendant’s request and over Plaintiff’s objection – that Defendant could take disciplinary action for any reason, good or bad, fair or unfair, as long it was not based on race. The jury reasonably could have taken into account all of Gregoire’s conduct and concluded that he initiated the investigation targeting Plaintiff because of his race. See Smith v. City of New Smyrna Beach, No. 6:11-cv-1110-Orl-37KRS, 2013 WL 5230659, at *9 (M.D. Fla. Sept. 16, 2013) (holding that where much of the alleged conduct was overtly gender-based, the jury was entitled to infer that other unwelcome conduct was also based on gender), aff’d, 588 F. App’x 965 (11th Cir. 2014).6
The jury, which included individuals with management experience, and training in workplace fairness issues, was entitled to weigh the evidence in this close case, credit Plaintiff’s version of the various events, and reach its own conclusions about the events and about the actors’ intentions and motivations. See Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir. 2002) (explaining that it is the task of the jury, not the court, “to weigh conflicting evidence and inferences, and determine the credibility of witnesses”) (internal quotation omitted). Plaintiff presented sufficient evidence for a reasonable jury, assessing the conduct “cumulatively and in the totality of the circumstances,” to find that Plaintiff was subjected to a hostile work environment. Smith, 588 F. App’x at 987; see also Cooler v. Layne Christensen Co., 710 F. App’x 842, 847-49 (11th Cir. 2017) (holding that a supervisor’s use of the slur “nigger” in a context arguably intended to humiliate the plaintiff, together with other evidence of racial hostility, created an issue of fact as to whether a hostile work environment existed); Adams v. Austal, 754 F.3d 1240, 1250-54 (11th Cir. 2014) (holding that plaintiffs who experienced racial slurs targeting them personally, combined with other evidence, created an issue of fact on the existence of a hostile work environment); Jones v. UPS Ground Freight, 683 F.3d 1283, 1299-1304 (11th Cir. 2012) (concluding that seven incidents of racist acts over a one year period, including incidents involving the placing of banana peels on the plaintiff’s truck, raised an issue of fact on the existence of a hostile work environment).
As to the issue of imputing liability to defendant, the court held that there was sufficient evidence that defendant knew or should have known of the hostile work environment claimed by plaintiff, and that “[t]he evidence, taken as a whole, presented an issue for the jury as to whether Defendant took prompt and appropriate remedial action.”