In Stribling v. United Parcel Service, Inc., Case No. 22-CV-495, 2024 WL 1991438 (E.D.Wis. May 3, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim.
Among other things, plaintiff alleged that he was subject to racially derogatory remarks that a reasonable person would find offensive, including being referred to as a “sellout negro,” an “Uncle Tom,” and being told he is not “black enough.”
From the decision:
If the facts were limited only to a few isolated instances, then UPS’s argument that the harassment was not sufficiently severe or pervasive might fare better. The cases UPS relies on for support involve situations where employees experienced isolated remarks over varying periods of time. See Poullard, 829 F.3d at 858-59 (three “arguably race-tinged remarks” over fourteen months did not rise to requisite level of severe and pervasive conduct); Pierce, 355 F. App’x at 31-32 (seven race-related incidents over ten years did not rise to the level of an objectively hostile work environment).
But Stribling alleges frequent verbal harassment over an extended, years-long period. He testified that after the March 2016 incident Dismukes, Watts, and coworkers made racially charged comments to him, and that Dismukes continued to make these comments to him on a weekly basis for a period of seven to eight years until Dismukes retired. (ECF No. 34-8 at 37-38.) The Seventh Circuit has found that similar situations can give rise to a hostile work environment in violation of Title VII. See Passananti v. Cook Cnty., 689 F.3d 655, 669 (7th Cir. 2012) (holding that the evidence was sufficient for a jury to find conduct sufficiently severe and pervasive as to have altered conditions of employment where plaintiff was called “a ‘bitch’ to her face nearly constantly for several years”); Boumehdi, 489 F.3d at 789 (“[a] jury reasonably could conclude from Boumehdi’s testimony, which alleged that Vega made at least eighteen sexist or sexual comments in less than a year’s time and that similar comments were made ‘very often,’ that Vega’s conduct was pervasive enough to create a hostile work environment.”); Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (stating that a reasonable jury could find that work environment was objectively hostile where employee testified that he was repeatedly subject to hearing the “n-word”).
The court acknowledges that Stribling provided conflicting testimony during his deposition regarding when the racially disparaging comments ended. (See ECF No. 34-8 at 26-27, 37-38.) But construing the evidence in the light most favorable to Stribling, issues of fact exist regarding whether the harassment Stribling experienced was objectively severe or pervasive enough to alter the terms of his employment.
The court proceeded to explain that factual issues existed concerning the application of the Faragher/Ellerth defense, in light of its finding that a rational jury could conclude that (1) “while UPS maintained anti-harassment and anti-discrimination policies, it did not take reasonable action to enforce those policies in response to Stribling’s verbal complaints”; and (2) he reasonably took advantage of UPS’s reporting procedures.