Question: Henderson v. Irving Materials, Inc. 329 F. Supp. 2d 1002 (S.D. Ind., Indianapolis Div., 2004)

A black employee was subjected to a number of incidents at work, including racial epithets, threats, greasing of his truck, dead mice placed in his truck, and the buttons cut off his uniform, by two of his white co-workers. Several of the incidents were witnessed by their supervisor. The court found that though some of the events, in isolation, may not qualify as harassment, when taken in the total context of the employee's experience as the first black hired to work there and in the greater context of race in our country, they constituted racial harassment.

Hamilton, J.

To survive summary judgment on his hostile work environment claim against SouthSide, Henderson must come forward with evidence that would allow a reasonable jury to find that:

(a) he was subject to unwelcome harassment;

(b) the harassment was based on his race;

(c) the harassment was sufficiently severe or pervasive so as to alter the conditions of his employment and to create a hostile or abusive working environment; and

(d) there is a basis for employer liability.

A. Target of Unwelcome Harassment The undisputed facts easily support a finding that Henderson was the target of unwelcome harassment, thus satisfying the first required element of his claim.

B. "Based on" Race There is no dispute that plaintiff's evidence of Moistner's racial jokes and comments, Moistner's claims to be a member of the Ku Klux Klan and to know the Klan's grand dragon, and Moistner's calling Henderson a "nigger"at the small claims court were racial incidents and stemmed directly from racial hostility.

As for the remainder of the incidents alleged by plaintiff, the racial connection might appear more attenuated if the incidents were considered in isolation. However, the court may not view those incidents in isolation. Viewing the other acts of harassment by Moistner and Santerre, tolerated by plant manager Taylor, in combination with the incidents involving the more blatant racial hostility, a reasonable jury could find that all were part of a racially hostile environment. Defendants argue that some incidents were not based on race because there was not an explicit racial dimension. Defendants' argument is easily refuted with respect to one incident in particular, the evidence that Moistner threatened to drag Henderson behind his pick-up truck. Defendants' contention that a threat to drag Henderson behind a pick-up truck was devoid of a racial element is blind to history.

In a murder that gained worldwide attention in 1998, James Byrd, a black man, was chained to the back of a pick-up truck by three white men who drove through the streets of Jasper, Texas, dragging Byrd to his death. The murder of Mr. Byrd triggered images of similar past acts of lynching, a tactic used by whites to terrorize and kill members of the black community. The threat by Moistner, a self-proclaimed member of the Ku Klux Klan, that he "would like" to drag Henderson, a black man, down the street on the back of Moistner's pick-up truck has racial connotations that date back to the days when lynching black people in this manner was commonplace. A jury could easily find that Moistner's threat carried as much racist freight as the most vile racial epithets (which Moistner himself also aimed at Henderson), combined with a threat of murder.

A reasonable jury could also draw the reasonable inference that, in light of the explicit racist character of several incidents, the superficially neutral acts of harassment were also all based on race. These forms of harassment include the buttons cut from Henderson's work shirt, the grease slathered inside his truck, the dead mice placed in his truck, the "no one wants you here" comment by Santerre, and Santerre's attempts to hit or frighten Henderson with his truck. The alleged wrongful conduct need not have been explicitly racial in order to create a hostile environment. The complained of conduct must have a racial character or purpose to support a Title VII claim. Plaintiff has set forth sufficient evidence to convince a reasonable jury that the conduct that defendants characterize as not based on race did indeed have a racial purpose and/or character.

C. "Severe or Pervasive" The next issue is whether the conduct was sufficiently severe or pervasive to support a claim under Title VII. To be considered severe or pervasive, the conduct must have been objectively hostile or abusive and must have been subjectively perceived as such. Isolated and innocuous incidents will not support a hostile environment claim. The jury could easily find that Henderson subjectively perceived his work environment to be hostile and abusive. He complained to plant manager Taylor on several occasions. He submitted a detailed letter of complaint to general manager Goins and met with Goins to discuss the incidents that he believed made his work environment intolerable. Henderson also directly told Moistner that he did not appreciate Moistner's racist jokes and comments. To ascertain whether an environment is objectively hostile or abusive, the court must consider all the circumstances, including the frequency of the discriminatory conduct; the severity of the conduct; whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and whether that conduct unreasonably interferes with an employee's work performance.

Defendants also contend that the incidents alleged by plaintiff cannot satisfy the pervasive arm of the "severe or pervasive" test because no specific incident occurred more than once. The argument is specious. The plaintiff need not show that the alleged conduct was both severe and pervasive; either is sufficient. There also is no principle of law requiring the harassers to repeat any particular form of harassment. If we are counting, as defendants suggest, there were a total of at least nine incidents in September and October 2001 alone. A reasonable jury considering the totality of the circumstances in this case could find that the hostile work environment was sufficiently severe and pervasive and that plaintiff worked in a racially abusive environment so severe as to alter the terms and conditions of his employment. Further, although Henderson did not lose his job, proof of termination is not dispositive on the question of severe or pervasive. Conclusion For the foregoing reasons, defendants' motion is denied as to plaintiff's Title VII hostile environment claim against SouthSide.

GRANTED IN PART AND DENIED IN PART.

1. How could the employer have avoided liability here?

2. Why do you think Taylor did as little as he did about the harassers?

3. Does it make sense to you that the black employee was transferred? Explain.