Race-Based Comment Found Not To Be "Hostile"

Court Rejects Harassment Claim, Noting Worker’s Inaction

A federal appellate court recently held that an employee who claimed he was subjected to 14 months of racially-motivated comments cannot succeed on his Title VII racial harassment claim. According to the Seventh Circuit Court of Appeals, the case must be dismissed because the alleged behavior was not “severe and pervasive” and the employee failed to adequately pursue his complaint with his supervisors. Ford v. Minteq Shapes and Services, Inc., No. 09-2140, Seventh Circuit Court of Appeals (November 24, 2009).

Factual Background

Dennis Ford was employed by Minteq Shapes and Services, Inc. (MSS) at its Portage, Indiana facility. Ford, who had worked at MSS as a forklift operator for 13 years, was the only African-American employee on site.

Ford claimed that over a 14-month period a co-worker, Joseph Wampler, often referred to him as “black African-American” or “black man.” The behavior stopped when his supervisor, Steve Smith, and co-worker Miguel Altieri overheard Wampler’s comments and reprimanded him.

Ford claimed that he reported Wampler’s comments and several other concerns to Laura Beemsterboer, the Manager of Human Resources. Specifically, Ford alleged: that his supervisor, Ronald Humphreys, once told him that he didn’t have to worry about his job because MSS “wanted to appear integrated”; that another supervisor, Lee Nuzzo, once called him a “gorilla”; and that MSS barred Ford but not oth-ers from bringing their grandchildren to the company’s Christmas parties.

On May 5, 2007, Ford filed suit alleging that MSS had racially harassed him, paid him a discriminatory wage, and retaliated against him in violation of Title VII of the Civil Rights Act. The trial judge granted summary judgment to MSS and Ford appealed.

Legal Analysis

The Seventh Circuit first noted that to succeed on his racial harassment claim, Ford must show that his employer’s conduct was “severe or pervasive enough to create an objectively hostile or abusive work environment.” The court considered each incident and found that Wampler’s comments were not severe enough to alter Ford’s working conditions and constitute racial harassment.

In reaching this conclusion, the Seventh Circuit found it relevant that although Ford reported Wampler’s comments to Beemsterboer, he did so only once in 14 months. Moreover, the court found that during this con-versation with Beemsterboer, Ford’s main concerns seemed to be the raise he was seeking and his treatment at the Christmas party (not Wampler’s comments). According to the court, even when no apparent action was taken on his complaint, Ford did not follow up with Beemsterboer or with
his supervisor.

Because Ford did not take reasonable steps to inform MSS of Wampler’s comments, the court rejected his claim that the comments created a hostile work environment or rose to the level of illegal harassment.

The Seventh Circuit also concluded that neither Humphreys’ affirmative action comment nor the gorilla remark constituted harassment. According to the court, both incidents occurred only once, “did not impair Ford’s job performance, and were insufficiently severe to rise to the level of a hostile work environment.”

Finally, the Seventh Circuit concluded that Ford’s treatment at the Christmas party did not constitute racial harassment because it did not impair Ford’s job performance, happened only occasionally and occurred outside the normal workday. The court
also noted that Ford had not presented any evidence that his treatment at the party was because of his race. Thus, the Seventh Circuit ruled that without regard to whether Ford’s claims were considered separately or in the aggregate, they did not support a legal claim for harassment.

Practical Impact

According to Charles Baldwin, a shareholder in Ogletree Deakins’ Indianapolis office: “This case highlights the importance of adopting and promulgating effective harassment policies and complaint procedures. A thorough and easily-understood policy, coupled with a simple complaint procedure, is critical in defending against claims of unlawful harassment. This case reinforces these strategies by rejecting the employee’s case on the basis of his own inaction. It is also noteworthy that while the Seventh Circuit found the comments at issue to be `rude and offensive,’ it refused to treat Title VII as a `general civility code’.”

Note: This article was published in the January/February 2010 issue of The Employment Law Authority.