FOR THE EIGHTH CIRCUIT
_______________________
No. 05-2513
_______________________
LINDA GREEN,
Plaintiff-Appellant,
v.
FRANKLIN NATIONAL BANK OF MINNEAPOLIS,
doing business as Franklin Bank,
Defendant-Appellee.
_______________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
Civil Action No. 03-6188 (DSD/SRN)
The Hon. David S. Doty, U.S.D.J., Presiding
_______________________________________________
BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE ON BEHALF OF APPELLANT LINDA GREEN
IN SUPPORT OF REVERSAL
_______________________________________________
ERIC S. DREIBAND SUSAN R. OXFORD
General Counsel Attorney
U.S. EQUAL EMPLOYMENT
LORRAINE C. DAVIS OPPORTUNITY COMMISSION
Acting Associate General Counsel 1801 L Street, N.W., Room 7010
Washington, D.C. 20507
CAROLYN L. WHEELER Tel. (202) 663-4791
Assistant General Counsel Fax (202) 663-7090
TABLE OF CONTENTS
page
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3
A. Proceedings Below. . . . . . . . . . . . . . . . . . .3
B. Statement of Facts . . . . . . . . . . . . . . . . . .3
C. District Court Decision. . . . . . . . . . . . . . . .5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
I. GREEN ALLEGED RACIAL HARASSMENT SUFFICIENTLY
SEVERE OR PERVASIVE TO WITHSTAND SUMMARY
JUDGMENT WHERE HER CO-WORKER CALLED HER,
AMONG OTHER THINGS, "MONKEY," "BLACK MONKEY"
AND "CHIMPANZEE." . . . . . . . . . . . . . . . . . . . . .7
II. GREEN HAS ESTABLISHED A PRIMA FACIE CASE OF
RETALIATORY DISCHARGE.. . . . . . . . . . . . . . . . . . 20
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 31
ATTACHMENTS
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
page
Federal Cases
Al-Zubaidy v. TEK Indus., Inc.,
406 F.3d 1030 (8th Cir. 2005) . . . . . . . . . . . . . . 10
Bailey v. Binyon,
583 F. Supp. 923 (N.D. Ill. 1984) . . . . . . . . . . . . 12
Bowen v. Mo. Dep't of Soc. Servs.,
311 F.3d 878 (8th Cir. 2002). . . . . . . . . . . . 2, 9, 16
Brown v. E. Miss. Elec. Power Ass'n,
989 F.2d 858 (5th Cir. 1993). . . . . . . . . . . . . . . 12
Canady v. John Morrell & Co.,
247 F. Supp. 2d 1107 (N.D. Iowa 2003) . . . . . . . . . . 13
Carter v. Chrysler Corp.,
173 F.3d 693 (8th Cir. 1999). . . . . . . . . . . .8, 16, 17
Cheshewalla v. Rand & Son Constr. Co.,
– F.3d – , 2005 WL 1668341 (8th Cir. July 19, 2005) . . . 28
Clark County Sch. Dist. v. Breeden,
532 U.S. 268 (2001) . . . . . . . . . . . . . . . . . . . 16
Daniels v. Pipefitters' Ass'n Local Union No. 597,
945 F.2d 906 (7th Cir. 1991). . . . . . . . . . . . . . . 13
Daniels v. Essex Group, Inc.,
937 F.2d 1264 (7th Cir.1991). . . . . . . . . . . . . . . 17
Delph v. Dr. Pepper Bottling Co. of Paragould, Inc.,
130 F.3d 349 (8th Cir. 1997). . . . . . . . . . . . . .8, 22
Federal Cases (cont'd) page
EEOC v. Kohler Co.,
335 F.3d 766 (8th Cir. 2003). . . . . . . . . . . . . . . 27
Elmahdi v. Marriott Hotel Servs., Inc.,
339 F.3d 645 (8th Cir. 2003). . . . . . . . . . . . . .5, 10
Eliserio v. United Steelworkers of Am. Local 310,
398 F.3d 1071 (8th Cir. 2005) . . . . . . . . . . . . . . 20
Faragher v. City of Boca Raton,
524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . 24
Feingold v. New York,
366 F.3d 138 (2d Cir. 2004) . . . . . . . . . . . . . . . 19
Foster v. Time Warner Entm't Co.,
250 F.3d 1189 (8th Cir. 2001) . . . . . . . . . . . . . . 20
Haas v. Kelly Servs., Inc.,
409 F.3d 1030 (8th Cir. 2005), pet. for reh'g pending . . 28
Harris v. Forklift Sys., Inc.,
510 U.S. 17 (1993). . . . . . . . . . . . . . . . . . . 8, 9
Hicks v. St. Mary's Honor Ctr.,
90 F.3d 285 (8th Cir. 1996) . . . . . . . . . . . . . . . 22
Jackson v. Flint Ink N. Am. Corp.,
370 F.3d 791 (8th Cir.), modified on reh'g,
382 F.3d 869 (8th Cir. 2004). . . . . . . 2, 6, 7, 8, passim
Jackson v. Quanex Corp.,
191 F.3d 647 (6th Cir. 1999) . . . . . . . . . . . . . . 16
Jeffries v. Metro-Mark, Inc.,
45 F.3d 258 (8th Cir. 1995) . . . . . . . . . . . . . . . 13
Johnson v. Bunny Bread Co.,
646 F.2d 1250 (8th Cir. 1981) . . . . . . . . . . . . . . .8
Kiel v. Select Artificials, Inc.,
169 F.3d 1131 (8th Cir. 1999) (en banc) . . . . . . . . . 26
Landrau-Romero v. Banco Popular de P.R.,
212 F.3d 607 (1st Cir. 2000). . . . . . . . . . . . . . . 17
Logan v. Liberty Healthcare Corp.,
– F.3d – , 2005 WL 1719851 (8th Cir. July 26, 2005) . 25, 28
Lumhoo v. Home Depot USA, Inc.,
229 F. Supp. 2d 121 (E.D.N.Y. 2002) . . . . . . . . . . . 10
Madison v. IBP, Inc.,
149 F. Supp. 2d 730 (S.D. Iowa 1999),
aff'd in relevant part & vacated on other grounds,
257 F.3d 780 (8th Cir. 2001). . . . . . . . . . . . . . . 18
Morgan v. McDonough,
540 F.2d 527 (1st Cir. 1976). . . . . . . . . . . . . . . 12
Oates v. Discovery Zone,
116 F.3d 1161 (7th Cir. 1997) . . . . . . . . . . . . . . 13
O'Bryan v. KTIV Television,
64 F.3d 1188 (8th Cir. 1995). . . . . . . . . . . . . . . 25
Peterson v. Scott County,
406 F.3d 515 (8th Cir. 2005). . . . . . . . . .2, 23, 25, 29
Pope v. ESA Servs., Inc.,
406 F.3d 1001 (8th Cir. 2005) . . . . . . .6, 20, 21, 23, 29
Powell v. Mo. State Highway and Transp. Dep't,
822 F.2d 798 (8th Cir. 1987). . . . . . . . . . . . . . . .8
Reedy v. Quebecor Printing Eagle, Inc.,
333 F.3d 906 (8th Cir. 2003). . . . . . . . . 10, 11, 12, 23
Richardson v. N.Y.S. Dep't of Corr. Serv.,
180 F.3d 426 (2d Cir. 1999) . . . . . . . . . . . . . . . 13
Rocha Vigil v. City of Las Cruses,
119 F.3d 871 (10th Cir. 1997)
(denial of reh'g en banc) . . . . . . . . . . . . . . . . .9
Rodgers v. Western-Southern Life Ins. Co.,
12 F.3d 668 (7th Cir. 1993) . . . . . . . . . . . . . . . 11
Smith v. Allen Health Sys., Inc.,
302 F.3d 827 (8th Cir. 2002). . . . . . . . . . . . . .2, 29
Smith v. Riceland Foods, Inc.,
151 F.3d 813 (8th Cir. 1998). . . . . . . . . . . . . 25, 27
Smith v. St. Louis Univ.,
109 F.3d 1261 (8th Cir. 1997) . . . . . . . . . . . . 25, 28
Spriggs v. Diamond Auto Glass,
242 F.3d 179 (4th Cir. 2001). . . . . . . . . . . . . . . 13
Walker v. Thompson,
214 F.3d 615 (5th Cir. 2000). . . . . . . . . . . . . . . 17
Wallace v. Sparks Health Sys.,
– F.3d – , 2005 WL 1679252 (8th Cir. July 20, 2005) . . . 29
Ways v. City of Lincoln,
871 F.2d 750 (8th Cir. 1989). . . . . . . . . . . . . . . .8
Webb v. Worldwide Flight Serv., Inc.,
407 F.3d 1192 (11th Cir. 2005). . . . . . . . . . . . . . 13
Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62 (2d Cir. 2000). . . . . . . . . . . . . . . . 14
White v. BFI Waste Servs.,
375 F.3d 288 (4th Cir. 2004). . . . . .2, 11, 12, 13, passim
Williams v. General Motors Corp.,
187 F.3d 553 (6th Cir. 1999). . . . . . . . . . . . . . . 16
Woodland v. Joseph T. Ryerson & Son, Inc.,
302 F.3d 839 (8th Cir. 2002). . . . . . . . . . . . . 10, 24
State Cases
Harris v. State, 46 So. 91 (Miss. 1950). . . . . . . . . . . . 13
Taylor v. Metzger, 706 A.2d 685 (N.J. 1998). . . . . . . . . . 14
Constitutional Provisions
U.S. Const., Art. I § 2 cl.3 . . . . . . . . . . . . . . . . . 12
Statutes page
42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . .1
42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . . . . . .3
42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . 2, 3, 20, 24
Miscellaneous
Herbert Alptheker, Vol. I A Documentary History of the Negro
People in the United States (1951). . . . . . . . . . . . 12
Courtland Milloy, The Blinding Racism of His Comment,
Wash. Post, Mar. 6, 1996, at C1 . . . . . . . . . . . . . 14
Jennifer M. Russell, On Being a Gorilla in Your Midst,
or the Life of One Blackwoman in the Legal Academy,
28 Harv. C.R.-C.L. L. Rev. 259, 260 (1993). . . . . . . . 14
Plot Summary for The Silence of the Lambs,
at http://www.imdb.com/title/tt0102926/plotsummary (8/2/05)4
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency established by
Congress to administer, interpret and enforce Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq., and other federal employment discrimination
laws. Title VII has long been construed to prohibit harassment based
on race. In
addition, each of the laws enforced by the EEOC makes it unlawful for a covered
employer to retaliate against persons for opposing conduct they
reasonably believe
violates these laws. Federal anti-discrimination laws rely heavily on
victims of
discrimination for their enforcement. Employees experiencing discrimination are
expected to complain to management, file charges with the EEOC, and
bring private
lawsuits to enforce their rights. If employers were allowed to
retaliate with impunity,
employees would not expose and oppose unlawful discrimination and Title VII's
purposes would go unfulfilled. The prohibitions against retaliation
are, therefore,
central to achieving the purposes of these laws.
The district court's disposition in this case raises important
questions regarding
how racially derogatory and offensive slurs should be evaluated in the
context of
harassment and retaliation claims under Title VII. Because proper
resolution of these
claims is important to effective enforcement of this statute, the EEOC
offers its views.
STATEMENT OF THE ISSUES<1>
1. Whether Green alleged racial harassment sufficiently severe or pervasive to
withstand summary judgment.
Apposite cases:
Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878 (8th Cir. 2002)
Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869 (8th Cir. 2004)
White v. BFI Waste Servs., 375 F.3d 288 (4th Cir. 2004)
2. Whether Green established a prima facie case of retaliation where
she complained
about her co-worker's comments and was discharged approximately three
weeks after
her last complaint.
Apposite cases and statutory provision:
Peterson v. Scott County, 406 F.3d 515 (8th Cir. 2005)
Smith v. Allen Health Sys., Inc., 302 F.3d 827 (8th Cir. 2002)
42 U.S.C. § 2000e-3(a)
STATEMENT OF THE CASE
A. Proceedings Below
Plaintiff Linda Green filed this action against Defendant Franklin National
Bank of Minneapolis alleging hostile work environment based on race, race
discrimination, and retaliatory discharge under Title VII of the Civil
Rights Act of
1964, 42 U.S.C. § 2000e-2(a)(1) and 2000e-3(a). On May 16, 2005, the
district court
granted Franklin Bank summary judgment on all three claims. Green now
appeals the
district court's decision.
B. Statement of Facts Relevant to the EEOC's Arguments<2>
Linda Green, an African American, began working as a teller at
Franklin Bank
in March 2002. Slip op. at 2. In May, Green began working with Jared Howard, a
white male. Id. Howard and Green were the only tellers at the
Washington Avenue
branch. Green deposition ("dep.") at 29-30 (Appellant's Appendix ("Appx.") 8).
On three consecutive days in mid-May, Howard called Green a "monkey."
Slip op. at 2. Green understood the comment to be a racial insult and
told Howard not
to speak to her like that. Id. at 2-3. In her deposition, Green
explained that she
viewed Howard's comment to mean "nigger." Green dep. at 82-83 (Appx. 21) ("back
in the day, they would always call people porch monkeys, and that
meant a nigger.").
Sometime in June, Howard told Green she should wear dreadlocks. Green
found this comment racially offensive and complained to teller
supervisor Kim Reep.
Slip op. at 3. On July 10, Howard called Green a "black monkey."
Green reported
Howard's comment to Reep, who told her to speak to Senior Vice President and
Cashier Wayne Erdman. Green then spoke to Erdman, although the parties dispute
exactly what Green said to Erdman about the situation. See id. at 4 & n.6.
On July 30, Howard told Green he wanted to eat her liver, and
referenced the
movie "The Silence of the Lambs."<3> Id. at 4; Green dep. at 58-60
(Appx. 15). Green
found this comment intimidating, particularly because Howard had told her
previously that he "gets even" with people. Slip op. at 4. Later on
July 30, Howard
sent Green an e-mail that said, "[j]ust wanted to let you know . . .
you got a funny
shaped head." Id. Green also understood this to be a racial insult.
Green dep.
at 183-84 (Appx. 46).
On August 1, Reep spoke to Howard about calling Green a "monkey." Four
days later, Howard called Green a "chimpanzee." Green complained to Bridges and
Reep. Slip op. at 4-5. On August 6, Reep told Howard his comments were
inappropriate and he would be discharged if they continued. The next day, Green
forwarded Howard's July 30 e-mail to Reep. After Reep showed it to Markoe and
Bridges, they terminated Howard's employment. Green did not experience any
further workplace harassment. Id. at 5. Franklin Bank terminated Green's
employment on August 26, allegedly because she refused to work on August 27 and
28, days for which she had previously been granted leave to attend a
class. Id. at 6.
C. District Court Decision
The district court granted Franklin Bank's motion for summary judgment on
all three of Green's Title VII claims.
The district court rejected Green's harassment claim, in part
because of its view
that Green "failed to show that any alleged harassment, taken as a
whole, is severe or
pervasive enough to be actionable." The court reasoned that Howard's
comments to
Green were infrequent (approximately one to two times per month,
according to the
court), and that Green testified that her relationship with Howard
"never deteriorated
to the point that she was no longer speaking to him or wanted to stop
being nice to
him." Slip op. at 9. Conceding that the comments "black monkey" and
"chimpanzee"
"are properly considered offensive," the district court nevertheless
concluded that
"they were not severe enough to be actionable." Id. at 9-10 (citing Elmahdi v.
Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003)
(occasional "boy,"
"black boy" and other racial comments not sufficient); cf. Jackson v.
Flint Ink N. Am.
Corp., 382 F.3d 869, 870 (8th Cir. 2004) (plaintiff's case was "on the cusp of
submissibility" where harassment included extremely derogatory racial
insults and
threats)).<4>
With respect to Green's retaliatory discharge claim, the district
court found it
undisputed that Green had suffered an adverse employment action, but
concluded that
she failed to satisfy the other two prongs of a retaliation claim –
statutorily protected
activity and causal connection. The district court stated that Green
"failed to show
that she engaged in statutorily protected activity" for two reasons.
First, the court
said that "although Green may have complained about the comments and behavior of
Howard and others, the complaints are insufficient to show that she opposed an
unlawful employment practice by Franklin Bank." Slip op. at 15
(citing Pope v. ESA
Servs., Inc., 406 F.3d 1001, 1010 (8th Cir. 2005) (no protected activity because
plaintiff did not explicitly oppose employer's practices based on racial
discrimination)). Second, noting that "a hostile work environment
violation requires
a failure of the employer to respond," the district court concluded
that "Green has
provided no evidence that she opposed Franklin Bank's alleged failure
to respond to
her complaints." Slip op. at 15. The district court also determined
that Green did not
satisfy the third prong, the causal connection between her alleged
protected behavior
and her ultimate termination, because "[a]lmost three weeks lapsed
between her last
complaint and her termination" and "[s]uch a temporal connection is,
without more,
insufficient to establish an inference of causation." Id. at 15-16.<5>
ARGUMENT
I. GREEN ALLEGED RACIAL HARASSMENT
SUFFICIENTLY SEVERE OR PERVASIVE TO
WITHSTAND SUMMARY JUDGMENT WHERE
HER CO-WORKER CALLED HER, AMONG
OTHER THINGS, "MONKEY," "BLACK MONKEY"
AND "CHIMPANZEE."
A plaintiff establishes a Title VII claim of racial harassment in
the workplace
when hostile or offensive race-based conduct is severe or pervasive
enough to affect
a term or condition of the job. See Jackson v. Flint Ink N. Am.
Corp., 370 F.3d 791,
794 (8th Cir.) ("Unquestionably, a working environment dominated by racial slurs
constitutes a violation of Title VII.") (internal citation omitted),
mod. on reh'g on
other grounds, 382 F.3d 869 (8th Cir. 2004). Factors to be considered
include not
only the frequency and severity of the hostile acts and comments, but
also whether
they are "physically threatening or humiliating." See id. at 793
(quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)), mod. on reh'g on other grounds,
382 F.3d 869 (8th Cir. 2004).
This Court has explained that "[s]poradic or casual comments are
unlikely to
support a hostile environment claim." Carter v. Chrysler Corp., 173
F.3d 693, 702
(8th Cir. 1999); see also Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257
(8th Cir. 1981) (Title VII not violated where plaintiff alleged only
"infrequent" use
of racial terms "limited to casual conversation among employees" and
generally not
directed toward the plaintiff); Powell v. Mo. State Highway and Transp. Dep't,
822 F.2d 798, 801 (8th Cir. 1987) (no racially hostile work environment where
plaintiff subjected to only "a few isolated racial slurs").
On the other hand, an unlawful hostile work environment clearly
exists where
a plaintiff has been subjected to "a steady barrage of racial
name-calling." See, e.g.,
Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 352, 354
(8th Cir. 1997); see also Ways v. City of Lincoln, 871 F.2d 750, 754-55
(8th Cir. 1989) (plaintiff identified about fifty examples of racial
harassment).
Situations as flagrant as those in Delph and Ways demonstrate how extreme racial
harassment can become if an employer fails to take effective
preventive and remedial
steps. Such egregious examples of harassment do not, however, "mark
the boundary
of what is actionable" hostile work environment under Title VII.
Harris v. Forklift
Sys., 510 U.S. at 22. This Court has clearly stated that even conduct
that is "not
frequent" can be severe enough to be actionable under Title VII. See
Bowen v. Mo.
Dep't of Soc. Servs., 311 F.3d 878, 884-85 (8th Cir. 2002); see also
Rocha Vigil v.
City of Las Cruses, 119 F.3d 871, 872-74 (10th Cir. 1997) (Lucero, J.,
dissenting
from denial of reh'g en banc) (Supreme Court precedent does not
require a "steady
barrage" of racial slurs for harassment to be actionable under Title VII).
Under Title VII's standards, Green's allegations establish an
actionable claim
of racial harassment. Howard's comments, uttered while he and Green were at the
bank performing their jobs, were indisputably directed toward Green, not other
persons. The explicitly racial references (repeatedly calling Green
"monkey," "black
monkey" and "chimpanzee," and Howard's statement that Green should wear
"dreadlocks") were neither "accidental" nor "limited to casual
conversation among
employees," given that Green testified in her deposition she was not
engaged in any
conversation with Howard when he made these unsolicited and unprompted remarks
to her. Green dep. at 56 (Howard said "you're a chimpanzee" out of the blue),
84 (Howard looked at Green and said the word monkey) (Appx. 14, 21).
Furthermore, although not a "steady barrage," Howard's eight comments
all occurred
within a span of two-and-a-half months. Thus, when Howard's expressly racial
comments are considered along with his statement that he wanted to eat
Green's liver
(referring to the movie "Silence of the Lambs") and his e-mail that Green had a
funny-shaped head, his comments were more than "infrequent," "isolated" or
"sporadic." See, e.g., Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906
(8th Cir. 2003) (five incidents of racial harassment in seven months
actionable under
Title VII); Lumhoo v. Home Depot USA, Inc., 229 F. Supp. 2d 121 (E.D.N.Y. 2002)
(seven racial epithets by managers in five months, including "porch monkey,"
"nigger" and "tar baby," sufficient to defeat summary judgment).
Where this Court has found racial comments too sporadic or infrequent to
support actionable harassment under Title VII, either the plaintiff
alleged fewer
incidents than admittedly occurred here, or a similar number of
incidents occurred
over the course of a much longer period of time. See, e.g.,
Al-Zubaidy v. TEK Indus.,
Inc., 406 F.3d 1030 (8th Cir. 2005) (harassment not "severe or pervasive" where
supervisor made only a few comments in ten months and comments had only a
tenuous connection to any protected status); Woodland v. Joseph T.
Ryerson & Son,
Inc., 302 F.3d 839, 843 (8th Cir. 2002) (five racial incidents in four
or five years
insufficient); cf. Elmahdi, 339 F.3d at 653 (being called "boy" and
"black boy" a
"few" times over a period of years by supervisor, who also once
referred to Africans
as having big penises, not sufficient to support a § 1981 hostile work
claim).<6> Unlike
these cases, Green's allegations of at least eight remarks made within
a relatively
short period of time (only two-and-a-half months) support a finding of race
harassment sufficiently pervasive to withstand summary judgment.
More importantly, the intensely derogatory nature of referring to African
Americans as primates makes the derogatory comments in this case
actionable racial
harassment, even if eight incidents in two-and-a-half months might not
otherwise be
deemed sufficiently "pervasive." See Jackson v. Flint Ink N. Am.
Corp., 370 F.3d
at 794 ("high level of severity compensat[es] for a low level of
pervasiveness and
vice versa"), mod. on reh'g on other grounds, 382 F.3d 869 (8th Cir.
2004). Some
racial slurs, like the term "nigger," are so offensive they support a
racially hostile
work environment even when uttered only a few times. As the Fourth
Circuit recently
observed, the word "nigger" is well-recognized as "[f]ar more than a
'mere offensive
utterance;'" indeed, it "is pure anathema to African Americans."
White v. BFI Waste
Servs., 375 F.3d 288, 298 (4th Cir. 2004) (citing Rodgers v.
Western-Southern Life
Ins. Co., 12 F.3d 668, 674-75 (7th Cir. 1993) ("Perhaps 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 'nigger' by
a supervisor in the presence of his subordinates.")) (other citations
omitted). See also
Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 860 (5th Cir. 1993)
("the term
'nigger' is a universally recognized opprobrium, stigmatizing African-Americans
because of their race"); Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D.
Ill. 1984)
("[U]se of the word 'nigger' automatically separates the person
addressed from every
non-black person; this is discrimination per se.").
Comparing African Americans to primates is akin to calling
African Americans
"niggers" and is "similarly odious." White, 375 F.3d at 298. Indeed, Green
interpreted Howard's "monkey" remarks as meaning "nigger," Appx. 21, and the two
racial slurs are frequently paired. See, e.g., Reedy, 333 F.3d at 909
(picture of ape on
bathroom wall accompanied by phrase "all niggers must die"); Morgan v.
McDonough, 540 F.2d 527, 531 (1st Cir. 1976) (school-desegregation case where
white students intimidated black students by, among other things, chanting,
"2, 4, 6, 8[,] assassinate the nigger apes").
In our nation's past, African-Americans have been referred to as,
and treated
like, subhumans and regarded as intellectually and culturally inferior.<7> In
perpetuation of this historic racial prejudice, African Americans have been, and
sometimes still are, referred to as "beasts," "gorillas," "apes," or
"monkeys." See,
e.g., Webb v. Worldwide Flight Serv., Inc., 407 F.3d 1192, 1193 (11th Cir. 2005)
(plaintiff called "nigger" and "monkey," among other things); White, 375 F.3d
at 297-98 (plaintiff called, among other things, "nigger," "porch monkey," and
"Mighty Joe Young"); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182-83
(4th Cir. 2001) (plaintiff called "monkey," "dumb monkey," and "nigger");
Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir.
1999) (African
American employees called "apes" or "baboons"); Oates v. Discovery Zone,
116 F.3d 1161, 1175 (7th Cir. 1997) (Wood, J., concurring & dissenting in part)
(picture of ape with plaintiff's name printed next to it posted for
one week); Jeffries
v. Metro-Mark, Inc., 45 F.3d 258, 260 (8th Cir. 1995) (plaintiff
called a "monkey");
Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906, 910
(7th Cir. 1991)
(African American workers called "nigger," "porch monkeys," "baboons," and other
epithets in Italian); Canady v. John Morrell & Co., 247 F. Supp. 2d 1107, 1110
(N.D. Iowa 2003) (plaintiff called "nigger" and "monkey," among other things);
Harris v. State, 46 So. 91, 93 (Miss. 1950) (describing African
American defendant
as a "big, black gorilla"); cf. Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d
62, 67 (2d Cir. 2000) (plaintiff called "black sheep," among other
things); Taylor v.
Metzger, 706 A.2d 685 (N.J. 1998) (plaintiff called "jungle bunny").
Given that primate-based slurs are overwhelmingly directed toward African
Americans as opposed to any other group, they are unambiguously racial
in intent.
They are, moreover, without question demeaning and dehumanizing. See
Jennifer M.
Russell, On Being a Gorilla in Your Midst, or the Life of One Blackwoman in the
Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259, 260 (1993) (black law professor
who found a picture of a gorilla placed in her school mailbox
"harbored no doubts
about the loud, unambiguous message conveyed: 'Claim no membership to the human
race. You are not even a sub-species. You are of a different species
altogether. A
brute. Animal, not human.' It was a time-worn message communicated to persons
who are not white.") (Attachment 1); Courtland Milloy, The Blinding
Racism of His
Comment, Wash. Post, Mar. 6, 1996, at C1 (white sportscaster's
reference to a black
Georgetown basketball player as "a tough monkey" is "particularly
egregious because
of a centuries-old effort to dehumanize African Americans by linking them
genetically with primates") (Attachment 2).
As the Fourth Circuit recently explained in White, "To suggest that a human
being's physical appearance is essentially a caricature of a jungle
beast goes far
beyond the merely unflattering; it is degrading and humiliating in the
extreme." Id.
Consequently, the presence of such comments in the workplace can create an
unlawful hostile work environment, even where the harassment does not
include any
express physical threats.
[T]he fact that [the plaintiff] was never physically threatened does not
defeat his hostile work environment claim. As this court held in
Spriggs, some words are so offensive that, when uttered repeatedly, they
can foster "an abusive working environment" even if they are not
accompanied by threat of physical injury. . . . The presence of race-based
physical threats undeniably strengthens a hostile work environment
claim. The absence of such, however, is in no way dispositive, when
there is sufficient evidence from which a reasonable jury could conclude
that allegedly harassing conduct was otherwise "humiliating."
375 F.3d at 298 n.6 (citations omitted) (emphasis in original).
In this instance, Green explained that she was offended when Howard
repeatedly called her "monkey," "black monkey," and "chimpanzee," understanding
the terms to refer to "porch monkey," which she knew to mean "a nigger." Green
dep. at 82-83 (Appx. 21). Green further explained that she felt threatened when
Howard referred to the movie "Silence of the Lambs" in connection with
stating that
he wanted to eat her liver, particularly in light of his previous
comments to her that
he "gets even" with people. Slip op. at 4. Even without this
disturbing "threat,"
however, the five incidents in two-and-a-half months where Howard dehumanized
Green by calling her "monkey," "black monkey," and "chimpanzee" are sufficiently
severe to create a hostile work environment under Title VII.
Howard's other race-based and disparaging comments – telling Green she
should wear dreadlocks and has a "funny shaped head" – further bolster the
conclusion that Green has alleged actionable racial harassment here.
As with any
claim of harassment under Title VII, determining the existence of a
racially hostile
environment depends on consideration of all the attending circumstances. Bowen,
311 F.3d at 883 (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270
(2001)). Incidents are properly viewed not in isolation, but in light of their
cumulative effect. Carter, 173 F.3d at 702 (harm generated by an abusive work
environment "cannot be measured by carving it 'into a series of
discrete incidents'")
(citation omitted); Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999)
(considering offensive events in isolation defeats theory of "hostile
environment").
Moreover, just as "the conduct underlying a sexual harassment
claim need not
be overtly sexual in nature," id. at 662 (citing Williams v. General
Motors Corp.,
187 F.3d 553, 565 (6th Cir. 1999)), each of Howard's derogatory
comments to Green
did not need to have overtly racial overtones in order to contribute
to a hostile work
environment based on race. An action or comment not specifically
racial in nature
may contribute to the plaintiff's proof of a hostile work environment
if it would not
have occurred but for the fact that the plaintiff is African American.
See Jackson,
191 F.3d at 662 (citing Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273
(7th Cir.1991)). The presence of racial epithets, in particular, like
the primate
references here, "create[s] an inference that racial animus motivated
other conduct as
well." See Carter, 173 F.3d at 701 (where plaintiff complained about
quality of a
co-worker's work and other co-workers thereafter repeatedly referred
to her as "black
bitch," among other things, it was for factfinder to determine whether
co-workers'
hostile acts, such as sabotaging her work area, were motivated by
racial or gender
animus or only because she had "reported" another employee).
In this instance, in addition to calling Green "monkey," "black
monkey," and
"chimpanzee," Howard also made the unsolicited statement that Green should "wear
dreadlocks." Although a reference to "dreadlocks" is not an
intrinsically derogatory
comment, Howard's statement that Green should adopt such a hairstyle has clear
overtones of racial stereotyping. In the context of Howard's
racially-derogatory
references to primates, his "dreadlocks" comment can be construed as
intended to be,
and was reasonably taken by Green as, racially-hostile. See Landrau-Romero v.
Banco Popular de P.R., 212 F.3d 607, 613-14 (1st Cir. 2000) (summary judgment
denied where allegations of hostile environment based on race included
reference to
"kinky hair"); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (racial
harassment included derisive remarks about the hair of African
Americans, as well
as comparisons of slaves to monkeys and the epithet "nigger"); Madison
v. IBP, Inc.,
149 F. Supp. 2d 730, 795 (S.D. Iowa 1999) (employee established claim of hostile
environment based on race with evidence that supervisors and co-workers made
offensive comments about race of plaintiff's husband and children, including
referring to family members as "fucking niggers" and joking about the
hair and lips
of her children), aff'd in relevant part & vacated on other grounds,
257 F.3d 780
(8th Cir. 2001).
Finally, during this time Howard told Green that he likes to "get
even" with
people and then later stated that he wanted to eat her liver,
referencing the gruesome
movie "Silence of the Lambs." The same day as the "Silence of the Lambs"
comment, Howard e-mailed Green that she had a "funny shaped head." These
additional harassing remarks – one threatening, the other clearly
derogatory – when
considered in the context of Howard's blatantly racial primate slurs
and "dreadlocks"
statement, further support the conclusion that Green has alleged an
actionable hostile
work environment based on race. The district court erred to the
extent it reasoned
that Green did not establish unlawful harassment because her relationship with
Howard did not deteriorate to the point that she was no longer
speaking to him or
wanted to stop acting cordially toward him. Slip op. at 9. As the
Second Circuit
recently explained, the standard is not whether the harassment has made the
environment "unendurable" or "intolerable," but whether "a reasonable employee
would find the conditions of her employment altered for the worse." Feingold v.
New York, 366 F.3d 138, 150 (2d Cir. 2004) (citations omitted). Consequently,
whether Green chose to continue to act cordially toward Howard cannot be the
measure of whether Howard's actions crossed the line in terms of altering the
workplace for the worse, particularly where it is undisputed that
Green told Howard
repeatedly that she objected to his comments and complained to her immediate
supervisor and other bank officials.
For all of these reasons, the "monkey," "black monkey" and "chimpanzee"
comments – considered cumulatively and in context along with Howard's
other racist
and insulting comments (i.e., his "dreadlocks" statement and "funny shaped head"
e-mail) and his implicit threat (i.e., his reference to the movie
"Silence of the Lambs")
– are severe enough to be actionable under Title VII. The district
court erred in
finding that these allegations, taken as a whole, failed to establish
unlawful racial
harassment in violation of Title VII.
II. GREEN HAS ESTABLISHED A PRIMA FACIE CASE OF
RETALIATORY DISCHARGE.
Section 704(a) of Title VII makes it unlawful for an employer to
discriminate
against an employee because the employee "has opposed any practice made an
unlawful employment practice" by the act. 42 U.S.C. § 2000e-3(a). To
make out a
prima facie case of retaliation in violation of Title VII, a plaintiff
must show: (1) she
engaged in statutorily protected conduct such as "opposing an act of
discrimination
made unlawful by Title VII;" (2) the employer took adverse action
against her; and
(3) "the adverse action was causally linked to the protected conduct."
Eliserio v.
United Steelworkers of Am. Local 310, 398 F.3d 1071, 1078-79 (8th Cir. 2005);
Pope v. ESA Servs., 406 F.3d at 1010. A plaintiff "need not establish
the conduct
which she opposed was in fact discriminatory but rather must demonstrate a good
faith, reasonable belief that the underlying conduct violated the
law." Foster v. Time
Warner Entm't Co., 250 F.3d 1189, 1195 (8th Cir. 2001) (citation omitted).
The district court in this case erred in concluding that Green
failed to establish
a prima facie case of retaliation. It is not entirely clear what the
district court meant
when it stated, in rejecting the first element of Green's retaliation
claim, that
"although Green may have complained about the comments and behavior of Howard
and others, the complaints are insufficient to show that she opposed an unlawful
employment practice by Franklin Bank." Slip op. at 15. By citing Pope v. ESA
Servs., however, the district court appears to be suggesting that
Green's complaints
were not "protected activity" either because, in the court's view, Green did not
explicitly oppose employer's practices as unlawful discrimination or
because she did
not expressly make clear that her opposition stemmed from her belief that the
discrimination was racial in nature. Both views are wrong.
To satisfy the "protected conduct" element, an employee who
opposes unlawful
practices is not required to advise her employer that she believes the
objectionable
practice violates a particular statutory provision. As long as the employee
communicates her objections in such a way that it alerts her employer
to the nature
of the problem, the "protected activity" element of Section 704(a) has
been satisfied.
Green's complaints to Franklin Bank met these criteria. The bank understood the
nature of the problem, because eventually Reep reprimanded Howard for calling
Green a monkey and instructed him to cease. Moreover, the bank
clearly understood
that Green's complaints raised a serious issue, because ultimately the
bank fired
Howard when he failed to heed Reep's reprimand.
Similarly, Green's objections to Howard's comments – calling her "monkey,"
"black monkey" and "chimpanzee," among other things – reflected Green's
perception that these were racial insults, and a reasonable person
would understand
these comments to be racial insults when addressed to an African American.
Cf. Delph, 130 F.3d at 356 n.5 (racial slurs and comments by supervisors such as
"black boy," "token black boy" and "nigger" "were patently offensive and no one,
certainly not a supervisor, should need to be told as much"); White,
375 F.3d at 298
(comparing African Americans to primates is "similarly odious" to calling them
"niggers"). Thus, when Green, an African American, complained about her white
colleague's primate and dreadlock comments, she was clearly objecting
to acts that
disparaged her based on her race, and there was no need for her to
articulate that she
believed the conduct she was opposing was unlawful racial discrimination under
Title VII.
As we explain above, there are compelling reasons for concluding that the
primate references and other harassing conduct in this case, viewed as a whole,
constitute actionable racial harassment. Nevertheless, the conduct to
which Green
objected need not actually have been unlawful under Title VII, as long as it was
reasonable for Green to think it was when she complained. The district court
recognized that "[s]tatutorily protected activity includes challenging
in good faith a
suspected violation of law." Slip op. at 14 (citing Hicks v. St.
Mary's Honor Ctr.,
90 F.3d 285, 292 (8th Cir. 1996)). As this Court recently noted: "The court's
understanding of what constitutes sexual harassment under Title VII is evolving;
plaintiffs who reasonably believe that conduct violates Title VII
should be protected
from retaliation, even if a court ultimately concludes that plaintiff
was mistaken in her
belief." See Peterson v. Scott County, 406 F.3d 515, 524 n.3 (8th
Cir. 2005) (plaintiff
engaged in protected conduct when she complained of offensive comments by her
supervisor because she reasonably believed supervisor's comments – referring
repeatedly to "old ladies," among other things – violated Title VII). The same
standards apply with respect to harassment based on race. See Reedy,
333 F.3d at 908.
Pope, cited by the district court, is distinguishable in that the
plaintiff there did
not clearly "object" to anything, let alone object on the grounds of race
discrimination. In seeking a promotion from his employer, Pope, an African
American, voiced the observation that there were no African American district
managers in his region and commented that having African American district
managers would serve as an incentive for him. 406 F.3d at 1010. Pope
presented no
evidence that these seemingly-neutral comments were actually
accusations that the
absence of African American district managers resulted from race
discrimination on
the part of ESA Services. Id.
There is, likewise, no support for the district court's
suggestion that Green, in
addition to objecting to Howard's comments, also needed to "oppose
Franklin Bank's
alleged failure to respond to her complaints." Slip op. at 15. An
employer is liable
for retaliation if the employer discharged an employee because the employee
undertook some protected activity, such as complaining of unlawful harassment.
See 42 U.S.C. § 2000e-3(a). It is true, as the district court noted,
that in order for an
employer to be liable for a hostile work environment there must be, in
addition to the
unlawful harassment, a failure by the employer to take prompt and
effective remedial
steps. There is, however, no corresponding requirement that an
employee complain
about her employer's failure to respond as an element of a claim of retaliation.
Thus, an employee satisfies the "protected activity" element of a
prima facie
case of retaliation by simply complaining about harassment that the employee
reasonably believes is unlawful under Title VII. An employer that
promptly remedies
the harassment or otherwise establishes an available defense could, on
that basis,
avoid liability for harassment. See Faragher v. City of Boca Raton,
524 U.S. 775,
807-08 (1998); Woodland, 302 F.3d at 844 (finding no liability for
racially offensive
and threatening graffiti because employer took prompt and decisive action). The
employer could nevertheless be liable for retaliation if the evidence
demonstrated
that, in addition to the measures taken to remedy the hostile work
environment, the
employer took some adverse action against the complaining employee because she
had complained. Since an employer's failure to remedy harassment is
not an element
of a retaliation claim, neither is an employee's failure to object to
an employer's
untimely or ineffective response to a harassment complaint. The
district court thus
erred in rejecting Green's retaliation claim on the ground that she
failed to object to
Franklin Bank's delays in responding to her complaints.
Finally, the district court erred in concluding that Green failed
to establish the
third element of a prima facie case of retaliation – the requisite
"causal connection"
– on the ground that the three weeks between her last complaint and
her termination
"is, without more, insufficient to establish an inference of
causation." Slip op.
at 15-16. "[T]he threshold of proof necessary to establish a prima
facie case [of
retaliation] is minimal." Logan v. Liberty Healthcare Corp., – F.3d – ,
2005 WL 1719851, at *3 (8th Cir. July 26, 2005) (citation omitted).
For purposes of
establishing a prima facie case, "[a]n inference of a causal
connection between a
charge of discrimination and termination can be drawn from the timing of the two
events." Peterson, 406 F.3d at 524 (citing Smith v. Riceland Foods, Inc.,
151 F.3d 813, 819-20 (8th Cir. 1998)). Indeed, this Court has found
periods of up to
six months sufficient to infer the requisite causal connection for a
prima facie case of
retaliation. See Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997)
(inference of causal connection found despite six months between University's
reprimand of harasser and harasser's negative recommendation to plaintiff's
prospective employers); see also O'Bryan v. KTIV Television, 64 F.3d 1188, 1193
(8th Cir. 1995) (plaintiff's termination two-and-a-half months after filing
discrimination complaint established causal element of prima facie
retaliation claim).
Decisions of this Court that reject temporal proximity, alone, as
the basis for
establishing causation actually focus, for the most part, on the third
prong of the
retaliation analysis – whether plaintiff has created a genuine issue
of fact concerning
the defendant's legitimate, non-retaliatory reason for the adverse
action. In Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en
banc), for instance,
the plaintiff, who was deaf, was fired the same day he shouted
allegedly insubordinate
comments at defendant's co-owner. The co-owner had just told
plaintiff the company
would not purchase a telecommunications device ("TDD") to enable him to make
business and personal telephone calls while at work, as he had been
requesting for
some time and was in the process of requesting again. Although the
adverse action
(termination) occurred the same day as the protected activity
(requesting, once again,
TDD), this Court held that this temporal connection did not "present a
genuine factual
issue on retaliation." 169 F.3d at 1136. As this Court explained, "[a]lthough
contesting an unlawful employment practice is protected conduct, the anti-
discrimination statutes do not insulate an employee from discipline
for violating the
employer's rules or disrupting the workplace." Id. Thus, the
decision in Kiel does
not turn on the plaintiff's failure to establish a prima facie case of
retaliation, but on
the plaintiff's failure to rebut the employer's proffered
non-retaliatory reason.
This Court made a similar point in upholding the jury's finding
of retaliation
in EEOC v. Kohler Co., 335 F.3d 766 (8th Cir. 2003). There, this
Court stated that
the timing of the employee's discharge (less than one month after he
complained of
race discrimination) was insufficient, alone, to sustain the jury's
retaliation verdict
in plaintiff's favor, although it was sufficient in conjunction with
the EEOC's other
evidence of pretext (i.e., the company's inconsistent enforcement of the policy
proffered as the non-retaliatory reason for discharge). Id. at 774.
This Court made
it clear, however, that since it was reviewing the case after a jury
trial and not after
summary judgment, the question of plaintiff's prima facie case was not
at issue. As
this Court explained: "When the parties have developed a full trial
record, we are not
concerned with plaintiff's prima facie case. What is relevant, at
this point, is simply
whether the plaintiff's evidence permits a reasonable inference of
discrimination or
retaliation." Id. at 772.
Other decisions from this Court finding temporal proximity insufficient in
retaliation claims likewise appear, in fact, to be addressing the
plaintiff's failure to
demonstrate "pretext" after the employer has offered a non-retaliatory
reason for its
actions, rather than the plaintiff's failure to establish a prima
facie case. E.g. Jackson
v. Flint Ink N. Am. Corp., 370 F.3d at 797-98 (discussing at length
plaintiff's failure
to refute defendant's claim that it discharged plaintiff for numerous serious
disciplinary infractions), mod. on reh'g on other grounds, 382 F.3d 869
(8th Cir. 2004); see Smith v. Riceland Foods, 151 F.3d at 819-20 & n.5
(rejecting
notion that prior circuit precedent "stand[s] for the proposition that
timing alone is
never sufficient to establish the third element of a prima facie case
of retaliation").
See also Smith v. St. Louis Univ., 109 F.3d at 1265-66 (finding prima facie case
notwithstanding six month period between protected activity and adverse action;
distinguishing that case, where University had offered no
justification for the adverse
action, from cases where summary judgment was upheld because the employer
countered evidence of coincidental timing with unrebutted proof of
unsatisfactory job
performance); cf. Cheshewalla v. Rand & Son Constr. Co., – F.3d – ,
2005 WL 1668341, at *4 (8th Cir. July 19, 2005) (noting that where
plaintiff failed
to rebut employer's legitimate reasons for laying her off one month
after reporting
co-worker harassment, court's analysis would yield same result whether
evidence was
considered under the third element of prima facie case or under defendant's
legitimate, nondiscriminatory reason). Accordingly, these cases are
reconcilable and
consistent on this point. While temporal proximity, alone, may under some
circumstances be insufficient to demonstrate pretext, it is generally
adequate to
establish the third element of a prima facie case. See Haas v. Kelly
Servs., Inc., 409
F.3d 1030, 1037 (8th Cir. 2005), pet. for reh'g pending (noting
difference in proof
required to establish causation in prima facie case as opposed to
"submissible case
of retaliatory discharge"); Logan, 2005 WL 1719851, at *3 ("employee's
attempt to
prove pretext [in retaliation claims] . . . requires more substantial
evidence [than it
takes to make a prima facie case]") (citation omitted).
At least twice in recent years, this Court has found a prima facie case of
retaliation based on a temporal proximity of two weeks. See, e.g., Peterson,
406 F.3d at 524-25; Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833
(8th Cir. 2002). In Smith v. Allen Health Sys., this Court noted that
such a finding
was "consistent with the overarching philosophy of the McDonnell Douglas [v.
Green, 411 U.S. 792 (1973),] system of proof , which requires only a minimal
showing before requiring the employer to explain its actions." 302 F.3d at 833
(emphasis added). Likewise in this case, the mere three weeks between Green's
protected activity and her discharge is brief enough to establish
Green's prima facie
case of retaliation. Such a ruling would not automatically impose liability on
Franklin Bank, but would simply shift the focus to the defendant's proffered
explanation for its actions. See Wallace v. Sparks Health Sys., –
F.3d – , 2005 WL
1679252, at *5 (8th Cir. July 20, 2005) (requirement that employer
offer legitimate,
nonretaliatory reason for having taken adverse action "is not
onerous"); Pope, 406
F.3d at 1007 (same). Thus, such a ruling would move the inquiry closer toward
resolution of the ultimate question of discrimination, for which the
burden of proof
remains on the plaintiff to demonstrate that the proffered explanation
is a pretext for
retaliation. Id. On the other hand, dismissing a plaintiff's
retaliation claim for failure
to establish a prima facie case notwithstanding such a close proximity
in time would
unduly hinder employment discrimination claims.
In sum, the district court erred here when it concluded, as a
matter of law, that
three weeks between Green's last complaint of harassment and her
discharge was too
long a span of time to support the third element of Green's prima
facie case. The
question of whether Green's retaliation claim should go to a jury or
be dismissed on
summary judgment properly turns not on whether Green has demonstrated a prima
facie case of retaliation – because on this record she has – but on
whether Green's
summary judgment evidence is sufficient for a reasonable jury to conclude that
Franklin Bank's proffered reason for discharging her – that she
declined to work her
scheduled hours on August 27 and 28, 2002 – was a pretext for retaliation.
CONCLUSION
For the foregoing reasons, we respectfully urge this Court to hold that the
district court incorrectly analyzed Green's race harassment and
retaliation claims.
Howard's comments – including calling Green "monkey," "black monkey" and
"chimpanzee" – are severe enough to establish a hostile work environment claim
under Title VII, and Green's allegations, taken as a whole, demonstrate race
harassment severe or pervasive enough to withstand summary judgment.
Furthermore, Green established a prima facie case of retaliation when
she complained
about Howard's harassing comments and was discharged approximately three weeks
after her last complaint.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
DATED: August 3, 2005 SUSAN R. OXFORD, Attorney
U.S. Equal Employment Opportunity Comm.
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4791
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume
limitation set forth in
Fed. R. App. P. 32(a)(7)(B). This brief contains 6,968 words. See
Fed. R. App. P.
32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 word processing
system, in 14-point proportionally-spaced Times New Roman type for text and
14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). The
accompanying diskette has been scanned for viruses and is virus-free.
August 3, 2005 Susan R. Oxford
CERTIFICATE OF SERVICE
I, Susan R. Oxford, hereby certify that on this 3rd day of August, 2005, I
caused two copies of the attached brief and one diskette containing an
electronic
version of the brief in pdf format to be sent by Federal Express,
postage prepaid, to
counsel of record at the following addresses:
Stephen C. Fiebiger, Esq.
Stephen C. Fiebiger & Associates, Chtd.
2500 West County Road 42, Suite 190
Burnsville, MN 55337
John Joseph McDonald, Jr., Esq.
Bradley J. Lindeman, Esq.
MEAGHER & GEER
33 S. Sixth Street
4200 Multifoods Tower
Minneapolis, MN 55402
Susan R. Oxford, Attorney
EEOC / Office of General Counsel
1801 L Street, N.W., Room 7010
Washington, D.C. 20507
Tel. (202) 663-4791
August 3, 2005 Fax. (202) 663-7090
susan.oxford@eeoc.gov
ATTACHMENTS
TABLE OF CONTENTS
1. Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life of One
Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259 (1993)
2. Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar.6,
1996
**********************************************************************
<<FOOTNOTES>>
<1> The Commission takes no position on any other issues in this appeal.
<2> Except when indicated otherwise, these facts are taken from the district
court's summary judgment order and are, for the most part, undisputed.
<3> In this disturbing movie, deranged serial killer Hannibal Lechter boasts
of his cannibalism and threatens the investigator who interviews him in prison
with the same fate. See Plot Summary for The Silence of the Lambs, at
http://www.imdb.com/title/tt0102926/plotsummary (Aug. 2, 2005).
<4> The district court also held that Green failed to show Franklin Bank's
response to her complaints was improper. Slip op. at 10. The Commission
does not address this fact-specific issue.
<5> The district court also held that Green did not establish that the bank's
reason for terminating her [refusal to work August 26 and 27] was pretextual."
Slip op. at 16. The Commission does not address this fact-specific issue.
<6> In analyzing a claim of intentional discrimination brought under § 1981,
this Court applies the same standards as it would apply to a similar Title VII
claim. Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d at 907.
<7> See, e.g., U.S. Const., Art. I § 2 cl.3 (quantifying enslaved African
Americans, for representation purposes, as three-fifths of a person); Herbert
Alptheker, Vol. I A Documentary History of the Negro People in the United
States 58 (1951) (quoting George Lawrence, An Oration on the Abolition of the
Slave Trade (N.Y. 1813)) ("[t]here was a time whilst shrowded in ignorance,
the African was estimated no higher than beasts of burden").
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