In Mack v. J.M. Smuckers Co., No. 22-3195, 2023 WL 5217705 (10th Cir. August 15, 2023), the court, inter alia, affirmed the summary judgment dismissal of plaintiff’s race-based hostile work environment claim.
Disturbingly, this case involves the alleged use of a vile racial slur. However, this case illustrates that the mere use of the “n-word” is not necessarily sufficient, in and of itself, to give rise to an actionable hostile work environment claim.
After summarizing the black-letter law, the court applied it to the facts as follows:
Mr. Mack alleges (1) he was criticized by an unidentified line leader for not wearing appropriate personal protective equipment, while a white employee was not required to wear such equipment; (2) two unidentified white employees called him names (including “boy”) for not walking within yellow safety lines, then attempted to block Mr. Mack from an exit; (3) he felt that he was followed around the plant, though he does not know by whom or how often; (4) an unidentified employee knocked some things off a table where Mr. Mack was sitting; and (5) he once heard the n-word in an FWM trailer, though he does not know who said it.
The last incident is most concerning because “[t]he n-word is a powerfully charged racial term.” Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202, 1234 (10th Cir. 2022) (internal quotation marks omitted). “Its use—even if done with benign intent and undirected at anyone specific—can contribute to a hostile work environment.” Id. But a showing of “severe or pervasive” harassment must amount to more than “sporadic racial slurs.” Lounds, 812 F.3d at 1223; see Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (“there must be a steady barrage of opprobrious racial comments” (internal quotation marks omitted)). “The important question is whether the repeated utterance of [the n-word] had the effect of contributing to the creation of a racially hostile work environment.” Lounds, 812 F.3d at 1230 (emphasis added); see also Savage v. Maryland, 896 F.3d 260, 277 (4th Cir. 2018) (“[A]n employer’s repeated and continuous use of that slur, among others, to insult African-American employees and customers, even when not directed specifically at the complaining employee, is sufficiently severe or pervasive … to create an unlawful hostile work environment.” (emphasis added; internal quotation marks omitted)). Here, Mr. Mack has not alleged repeated and continuous utterances, nor has he alleged a supervisor used the offensive language. See Lounds, 812 F.3d at 1230 (single use by a supervisor might be sufficient).
The court concluded that while the alleged incidents were “understandably distressing,” it could not be said that “a rational jury could find that [his] workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter [his] conditions of employment.”