By Gerald L. Maatman, Jr., Jennifer A. Riley, Tiffany E. Alberty and George J. Schaller
Duane Morris Takeaways: In Equal Employment Opportunity Commission v. Lakeside Plastics, Inc., No. 1:22-CV-01149 (E.D. Wis. June 3, 20244), Judge William C. Griesbach of the U.S. District Court for the Eastern District of Wisconsin granted Defendant’s motion for summary judgment and denied the EEOC’s motion for partial summary judgment. The Court reasoned that the single use of a racial slur in the workplace without direction to an African-American employee was not sufficient to show severe and pervasive harassment for a hostile work environment claim. The Court also held that a supervisor is not a similarly-situated comparator to a subordinate, regardless if they were subject to the same standards and engaged in similar conduct, dismissing the EEOC’s wrongful termination claim.
Case Background
The EEOC filed suit on behalf of Brian Turner, an African-American worker, for alleged violations under Title VII of the Civil Rights Act of 1964 (“Title VII”) against Lakeside Plastics, Inc. (“Lakeside”). Id. at 1. The EEOC alleged Turner was discriminated against when he was subject to a hostile work environment and his employment with Lakeside was terminated based upon his race, or alternatively that Turner’s employment termination was in retaliation for engaging in protected activity. Id.
Turner was employed by temporary staffing firm QPS Employment Group (“QPS”) and began his employee assignment at Lakeside on June 6, 2010, as a Production Technician I. Id. at 3. On three separate occasions, Turner asserted that he experienced verbal harassment from another production technician named Curt Moraski. Id. at 5-6.
First, during work Turner and Moraski discussed being from Milwaukee and in their conversation Moraski commented racial slurs about his time in the area. Id. at 5. Turner reported this conversation to one of his team leads. Id. Second, in an offsite incident, Turner alleged he was traveling home when Moraski pulled up, threated Turner, and directed racial slurs at Turner. Id. Finally, after the offsite incident, Turner reported to Lakeside that he did not feel comfortable working around Moraski. Id. at 6. Lakeside assigned Turner to label boxes for the day with Moraski; no issues arose at that time. Id.
On July 1, 2019, Lakeside ended Turner’s assignment based on “holistic considerations,” including a review of his attendance records and a note from team lead, Max Berndt, that demonstrated Turner’s poor performance, poor attendance, inability to take direction, and inability to get along with others. Id. at 7-8. That same day QPS informed Turner that he was terminated from his Lakeside assignment. Id. at 8.
Shortly thereafter, Lakeside received a complaint from Alex Adams, a white employee, made about Moraski “threatening [Adams].” Id. at 8-9. Lakeside also received complaints from other employees about Moraski’s behavior. Id. at 8. Moraski denied making any threats against anyone. Id. at 9. Moraski was subsequently terminated on Aug 1, 2019, due to his violation of Lakeside’s workplace violence policy. Id.
On Aug. 1, Lakeside advised a QPS representative that Moraski threatened additional employees, aside from Turner, around the time of Turner’s employment. Id. at 9. QPS inquired whether Turner could return to work at Lakeside, to which Lakeside responded that it was open to rehiring Turner. Id.
Following discovery, Lakeside brought a motion for summary judgment on all of the EEOC’s claims and the EEOC filed a cross-motion for partial summary judgment as to Lakeside’s affirmative defenses. Id. at 1.
The Court’s Decision
The Court granted Lakeside’s motion for summary judgment on the grounds that Lakeside did not subject Turner to a hostile work environment, did not terminate Turner because of his race, and did not retaliate against Turner for his complaints of harassment.
The EEOC asserted that Lakeside discriminated against Turner by subjecting him to a hostile work environment based on his race. Id. at 10. The EEOC argued that Moraski’s exchanges with Turner, at both on-site and off-site locations, created a hostile work environment. Id. Central to the EEOC’s assertions was that “harassment involving the N-Word is sufficiently severe to create a hostile work environment.” Id. at 12. The Court reasoned that “a single, isolated event can be found to create a hostile work environment,” but the EEOC must present evidence “which a factfinder could reasonably conclude that the harassing conduct was severe or pervasive.” Id.
In this instance, the Court disagreed that the EEOC showed Moraski’s alleged use of racial slurs was sufficiently severe or pervasive. Id. The Court determined Moraski “did not direct” racial slurs at Turner during the conversation at Lakeside and the racial slurs directed at Turner off-site were reported to Turner’s lead, who immediately took preventative measures by assigning Turner to a new work location. Id. at 12. Similarly, Moraski’s instruction on labeling boxes did not create “a reasonable inference that any hostility Turner encountered was connected to his race.” Id. at 13.
The Court opined that “Moraski’s conduct was undoubtedly offensive and inappropriate, and he was ultimately terminated by Lakeside based on complaints of similar behavior … but with no racially derogatory component.” Id. Given the totality of the circumstances, the Court concluded that Moraski’s conduct was not severe or pervasive such that a jury could reasonably conclude that Lakeside’s work environment was “permeated with discriminatory intimidation, ridicule, and insult.” Id. Therefore, the Court granted Lakeside’s summary judgment motion as to the EEOC’s hostile work environment claim.
The EEOC next asserted that Lakeside terminated Turner because of his race. Id. at 14. The Court reviewed Turner’s termination under the “holistic approach” standard relied on by the EEOC and focused on whether a reasonable jury could conclude that Turner “suffered the adverse employment action because of his … protected class.” Id. The Court agreed with Lakeside’s legitimate business reason for terminating Turner based on “poor attendance, an inability to take direction, and an inability to get along with others.” Id. In so holding, the Court determined that Lakeside took a holistic approach in reviewing Turner’s performance and took Turner’s attendance into consideration despite the fact that no one recommended to human resources that Turner be terminated based on his attendance. Id. at 15. Accordingly, the Court granted Lakeside’s motion for summary judgment on the EEOC’s wrongful termination claims.
The Court also granted Lakeside’s motion for summary judgment on the EEOC’s alternative retaliation claim and held that Lakeside had an “independently sufficient reason to terminate Turner’s assignment” through Turner’s “violations of the attendance policy on three days.” Id. at 17-18. The Court further found that the EEOC could not establish retaliation on the basis that Lakeside refused to rehire Turner, because Lakeside was open to rehiring Turner, although a position was not extended. Id. at 18.
Implications For Employers
Employers that are confronted with EEOC-initiated litigation involving allegations of race discrimination should recognize this opinion draws a fine line on what courts may consider pervasive in terms of the frequency, location, and direction of discriminatory comments.
Further, from a practical standpoint, employers should ensure workplace policies are in place for employees to report any instance of discrimination, including race discrimination, and provide procedures for employers to promptly investigate those allegations.