Racial harassment, discrimination, and retaliation in the workplace
Sufficient evidence of racial harassment, discrimination, and retaliation in the workplace?
Yesterday, the Ninth Circuit Court of Appeals decided whether an employee had enough facts to prove he was subjected to racial harassment, discrimination, and retaliation. In Reynaga v. Roseburg Forest Prods. (9th Cir. Jan. 26, 2017, No. 14-35028) 2017 U.S. App. LEXIS 1395, Mr. Reynaga alleged that he suffered harassment and discrimination based on his race and retaliation for reporting harassment. His employer denied the allegations.
Efrain and his son Richard Reynaga worked as millwrights for Roseburg Forest Products. They were the only millwrights of Mexican descent. Mr. Reynaga (Efrain) developed a contentious relationship with lead millwright, Timothy Branaugh, who allegedly harassed Mr. Reynaga with racially disparaging comments. Mr. Reynaga made oral and written complaints with Roseburg management alleging racial harassment in the workplace. Roseburg investigated and ultimately rearranged Mr. Branaugh’s work schedule so that he would not be on the same shift as Mr. Reynaga.
But one day, the Reynagas arrived at work to find Mr. Branaugh assigned to the same shift. After notifying Roseburg that they would not work in a hostile environment, they immediately left the premises. A few days later, the Reynagas showed up to work but refused to complete their shift because Mr. Branaugh was also scheduled for work at the same time. After a few more days, Roseburg terminated the Reynagas.
Mr. Reynaga filed suit against Roseburg, alleging hostile work environment, discrimination, and retaliation. The trial court granted Roseburg’s request to dismiss the case for lack of evidence (summary judgment).
On appeal, the Ninth Circuit began with the harassment claim. It was undisputed that Mr. Reynaga was subjected to conduct of a racial nature that was unwelcome. Accordingly, the question was whether the conduct was sufficiently severe or pervasive to meet the legal standard for harassment (hostile work environment). The appellate court determined that there was evidence of repeated racial and national origin comments in the workplace, including,
(1) Mr. Branaugh referred to black people as the n-word and Arabs as “rugheads;” (2) after Mr. Reynaga received hunting tags for a second year in a row, Mr. Branaugh said, “I’m a true believe [sic] that we should close the borders to keep motherf***ers like you from coming up here and killing our elk. I know one motherf**er [sic] who drew tags back to back;” (3) Mr. Branaugh stated, “Minorities are taking over the country;” (4) Mr. Branaugh asked, “Efrain, are all Mexican women fat?” (5) Mr. Branaugh, aware that Mr. Reynaga’s wife is Native American, referred to Native American women as “nasty fat squaws;” and (6) Mr. Branaugh left in the break room a printed email containing an article that claimed President Obama was an illegal alien and that “our borders are like sieves.”
Based on this evidence, the court concluded that a reasonable jury could find that Mr. Branaugh’s alleged conduct would be “highly offensive and demeaning to anyone,” and derogatory remarks that Mr. Branaugh made specifically about Mexicans, including comments about the “border,” were “tinged with racism.” In addition, a jury could decide that the conduct interfered with Mr. Reynaga’s work performance to the extent that it resulted in confrontations with Mr. Branaugh and led Mr. Reynaga to make complaints. And, Mr. Branaugh’s conduct was so extreme that Roseburg had to make sure that Mr. Branaugh and the Reynagas were not scheduled to work on the same shift. Finally, a jury could conclude that the Reynagas felt compelled to leave the workplace because Mr. Branaugh was present. Based on all of this, a reasonable jury could conclude that Mr. Branaugh’s conduct was sufficiently severe or pervasive to create a hostile work environment.
Next, the Ninth Circuit considered the discrimination claim. Roseburg argued that Mr. Reynaga did not have evidence that supported an inference of discriminatory motive, such as other employees who were treated more favorably. The appellate court determined that there was evidence of two non-Latino employees being treated more favorably, and that Mr. Branaugh (a white man) was hardly reprimanded and not terminated after several complaints were made about his hostile behavior. Roseburg also argued that it had non-discriminatory reasons for the termination: walking off the job and refusing to work. The appeals court decided that there was evidence to dispute these reasons. With full knowledge of Mr. Branaugh’s behavior, Roseburg required Mr. Reynaga to work at the same site as Mr. Branaugh and conditioned his employment on his willingness to work with a coworker with a proven history of harassment. Based on this evidence, the Ninth Circuit concluded that the discrimination claim should not have been dismissed.
Finally, the appellate court addressed the retaliation claim. The trial court decided that Mr. Reynaga did not have sufficient evidence to dispute Roseburg’s explanation for the termination, i.e., walking off the job and refusing to work. The Ninth Circuit determined that Mr. Reynaga had a strong “prima facie” case of retaliation because after working for Roseburg for more than five years he was fired barely one month after making a formal written complaint. In addition, there was evidence that Mr. Branaugh
subjected Mr. Reynaga to a hostile work environment but was not seriously punished. In contrast, Mr. Reynaga was terminated for missing just one and a half day’s work, on days that Mr. Reynaga objected to working because Mr. Branaugh was on the same shift. The court of appeals concluded that the trial court improperly dismissed the retaliation claim.