In Holmes v. American Home Patient/Lincare, et al, No. 4:21-CV-01683, 2023 WL 4315545 (M.D.Pa. July 3, 2023), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim asserted under 42 U.S.C. § 1981.
During her time employed at defendant, plaintiff was the only African American employed at the relevant location, and the inappropriate conduct was committed by her supervisor, McCoy.
From the decision:
McCoy’s inappropriate conduct toward Holmes began almost immediately after she was hired by AHP in October 2019. During a fit test that month wherein an employee placed a white hood over Holmes’ head, McCoy laughed and asked others to videotape the test because “it’s funny to see a white woman putting a hood on a Black woman’s head.” The following month, McCoy mentioned to Holmes that his uncle had a dark complexion and, therefore, he and his family nicknamed that uncle “Coonie” which a reasonable juror could conclude—given the context of the statement—is a variation of the racial slur “coon.”
These incidents, along with the incident involving Hibbert in October 2019, may be viewed as inappropriate and unfortunate statements made by McCoy without knowledge of the gravity and impact that his words may carry with his employees. However, the final incident was significantly more serious.
That incident, which occurred in March 2020, involved McCoy asking Holmes what she thought about “[t]he use of the ‘N’ word.” After Holmes stated that it was “an ugly word” that should never be used, McCoy responded “well, the ‘N’ word does mean Black people.” Holmes disputed that assertion; McCoy then, incredulously, stated that he would “Google it,” showed the results to Holmes, and stated “look, see, it does mean Black people,” although McCoy had accidentally “spelled it N-I-G-E-R.” This misspelling led Hibbert to inform McCoy that slur he had intended to write was spelled with two g’s before enunciating that word.98 During this incident, McCoy was, shockingly, laughing. Later McCoy stated that “Black people use the [n] word” and he did not “care about stuff like that” because some people call him “a Mick.”
While this presents a close question, the Court concludes that the March 2020 incident alone is sufficiently severe to satisfy Holmes’ burden of proof. The Third Circuit has explained that “it is clear that one such instance [of the use of the n-word in the workplace] can suffice to state a claim” for a hostile work environment, “[a]lthough the resolution of that question is context-specific.”102 Courts have noted that “no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as the “n-word” by a supervisor in the presence of his subordinates.”103 However, a plaintiff must still demonstrate that that the incident was “ ‘extreme to amount to a change in the terms and conditions of employment’ for it to serve as the basis of a harassment claim.”
The question of “whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Here, Holmes’ direct supervisor, who was also the supervisor for the entire State College branch, made reference to a deeply offensive word and asked the only black employee what she thought of that word. He then stated that the word referred to black individuals, attempted to look the word up online, and showed the search results to his black employee. During this time, and while another of McCoy’s subordinates enunciated the slur, McCoy laughed. That conduct is shocking. And that it was delivered by Holmes’ supervisor makes the conduct all the more extreme since, as the Supreme Court has recognized “acts of supervisors have greater power to alter the environment than acts of coemployees generally.”
This conduct had a direct impact on Holmes and her working environment. Holmes had to immediately leave the office and “take a walk outside” because she was upset. Anger and resentment between Holmes and Hibbert over the incident led to a dispute shortly thereafter, which ended with Hibbert screaming curse words at Holmes.108 Holmes then appears to have studiously avoided Hibbert and attempted to sit far away from Hibbert in a meeting. Holmes obviously could not have avoided her supervisor, McCoy, and, for her efforts to avoid Hibbert, Holmes was verbally reprimanded by McCoy. The incident was undoubtedly humiliating and interfered with Holmes’ work, and therefore meets the severity required to demonstrate a hostile work environment.
Moreover, although not legally dispositive, AHP’s response to McCoy’s actions could be viewed by a jury as markedly deficient. McCoy had a history of making, to put it generously, racially insensitive remarks to his only black employee and, at a minimum, condoned racist statements and behavior from Hibbert, who had a pattern of offensive behavior.112 Despite McCoy’s behavior over a period of months, AHP issued only a written warning—one of the mildest forms of discipline that AHP could impose—and this was not in response to McCoy’s racially insensitive behavior but, rather, was in response to McCoy having permitted Hibbert to behave in an unprofessional manner.
A reasonable juror could also view as disingenuous AHP’s reasons for issuing such mild discipline. AHP explained that it issued milder discipline because, inter alia, “we just didn’t feel that there was malicious intent and felt that we could coach him and move him along and help him improve.” But McCoy was laughing as his employee was humiliated with the use of one of the most offensive racial slurs contained in the English language, and could even be viewed as having encouraged the use of that slur. A jury could conclude that no reasonable person would view this behavior as anything other than malicious, and that AHP simply chose to ignore the severity of McCoy’s conduct.
Based on this, the court concluded that plaintiff “adequately demonstrated that the behavior to which she was subjected was severe or pervasive, and has therefore established a prima facie case of a hostile work environment,” warranting denial of defendant’s motion for summary judgment.