Lamberton Law Blog

Racist jokes supported a verdict against the employer in a  race-based hostile work environment claim under Section 1981, along with an award of compensatory and punitive damages, but judge knew better than jury what the damages should have been.  A tale of Fulmore v M & M Transport Services, Inc, April 29, 2014 (Pratt, T).

During the four years the plaintiff worked for his employer, he heard many racially offensive jokes, including use of the word “n***er,” every week. He also testified that coworkers made racial comments about President Obama, including that “the day that a black man became the president, it would be a cold day in hell, and that’s probably why it’s so cold out there today” and “when a black man becomes president, that would be when pigs fly, so that’s why we have swine flu.” He also presented evidence from coworkers regarding racial jokes and comments, including comments about President Obama having spinners on his limo and about fried chicken and watermelon being served at the inauguration. The racially offensive jokes even went to top levels, including a joke told by an executive vice president with a punch line that implicated the stereotype that African-American men want to rape white women. The employee and coworkers complained but his supervisor believed the “Obama stuff” and other complaints were “overblown.”

The jury returned a verdict in the employee’s favor for $400,000 in compensatory damages and $2,850,000 in punitive damages. The employer filed a motion for stay of execution of the judgment, which was granted; then it moved for judgment as a matter of law and for a new trial or, alternatively, remittitur of the damages award.

The employer argued that the employee failed to satisfy two elements of the HWE claim: (1) severity or pervasiveness and (2) basis for employer liability. The court noted that the evidence of racial comments and jokes fell into three categories —statements directed at the employee, statements that he overheard, and statements that he did not overhear, but that were made to other employees. It noted the many comments regarding President Obama. The jury heard “ample testimony” that those jokes were prevalent near election times. The plaintiff also testified that the word “n***er” was used on a weekly basis and that numerous offensive jokes and statements were made every week. The court noted that it did not have to “carve up” and analyze separately the incidents of harassment and while “second-hand racial comments” overheard by the employee might not be enough, alone, to rise to the level of severe and pervasive, “the frequency of the overheard statements and the jokes made directly to” the employee was sufficient evidence.

Moreover, he showed that the environment was objectively severe or pervasive. While there was no physical behavior, he testified that the comments were not isolated and continued throughout his employment. “The content of the comments are certainly offensive, such as frequent use of the word ‘ni**er,’ calling an African-American driver ‘Buckwheat’ and ‘Buttwheat,’ and the myriad of distasteful jokes including those told by” an executive VP at annual meetings. There was evidence that the employee and other African-American drivers felt “uncomfortable and embarrassed” to the point that they withdrew from the environment.

The employee and others complained to the supervisor about the racial jokes and statements, including use of the “N word” and the Obama remarks. The supervisor testified that another dispatcher told him about the “Obama stuff” and he spoke to one employee about it, but he did not say that he told him to stop the comments. He also testified that “it was overblown.” Thus, the court explained, a rational jury could find that the employer was on notice. Moreover, there was no evidence that the supervisor told anyone to stop the behavior or that any disciplinary actions were taken. Indeed, the employee contended that any talks the supervisor had with the employees only incited them to make more racially charged statements, such as “These motherf***ers are always complaining” and “[t]hese ni***rs always complain.” Comments other than jokes were made frequently and multiple employees complained to the supervisor. For example, two other employees had complained about one employee being called “Buckwheat” and “Buttwheat,” and others complained about the route assignments.

Furthermore, the employer could not “ignore the undisputed evidence” that its own executive vice president made a racially offensive joke at an annual meeting. Added to that, the record was “sparse” regarding the employer’s anti-harassment policy and its implementation. A rational jury could conclude that the employer was “negligent in its discovery and response to the alleged racial harassment.” For all of these reasons, the court found that the record supported the jury verdict and denied the motion for judgment as a matter of law.

An award of punitive damages was warranted, the court ruled. Liability was imputed to the employer where evidence supported the conclusion that the supervisor knew about the harassment and would have known about the employer’s antidiscrimination policies. A punitive damages verdict could have reasonably been based on evidence that the employer “did not engage in good faith efforts to implement” that policy. Under that policy, when a complaint is made, a “prompt investigation” was supposed to commence, including interviews and prompt remedial action. Nevertheless, “[t]he record is nearly void of evidence regarding any efforts to implement the policy.” In fact, the behavior continued after the employee left the company. A coworker even received a video via text from a dispatcher depicting “a cornflakes cereal box titled ‘coonflakes’ and when opened, played the song ‘jiggaboo, jiggaboo where are you.’” Moreover, the fact that the executive vice president told “egregiously offensive jokes at company-wide events on an annual basis” suggested that “the company as a whole does not in good faith follow or implement its antidiscrimination policies.” In fact, the court noted, “[t]he entire management team’s condoning of racially offensive jokes is particularly offensive and creates an environment that is severe and pervasive.”

The Court nonetheless found that the actual compensatory and punitive damages awards were excessive. The Court cut the pain and suffering damages to 1/8 the jury's award, and cut the punitive damages award by nearly 93% to $250,000.00.  The Court told the plaintiff that if he didn't accept these lower numbers, the Court would order a new trial.