Employment Discrimination – Race – Hostile Environment – Racial Slur

A Danville U.S. District Court has no jurisdiction to hear plaintiff’s unlawful retaliation claim, which alleges he was fired two days after defendant company responded to plaintiff’s EEOC complaint about defendant’s foreman calling him a “house n__,” because the pro se plaintiff failed to exhaust his administrative remedies.

It is undisputed that plaintiff filed only one EEOC complaint. Whereas plaintiff was fired March 13, 2009, his EEOC complaint was filed on Feb. 20, 2009, and covered only the foreman’s alleged use of racial slurs in July 2008. Plaintiff’s time to file the EEOC complaint as to any retaliation claim stemming from his discharge has long passed – that deadline would have been Jan. 7, 2010. Therefore, any retaliation claim plaintiff may have made cannot be considered because this court simply lacks jurisdiction.

The racially offensive comments allegedly made by the foreman in July 2008 certainly constitute unwelcome harassment based on race and imputable to the employer. The issue for summary judgment is whether there is a genuine issue of material fact as to whether the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere. It is on this ground that plaintiff’s hostile work environment claim fails. In his pleadings, at his deposition and at the Oct. 1 hearing, plaintiff has consistently alleged the slurs were all used during the course of one incident/conversation that took place in July 2008 at a job site.

For purposes of meeting the abusive atmosphere element of a hostile work environment claim, both the 4th Circuit and the district courts in this circuit have long separated general use of epithets from the single use of a slur. Of course, no court in the country has come up with a bright line rule on the number of times a supervisor or employer can use a racial slur while addressing an employee without creating a hostile work environment for Title VII purposes. The case law does make it clear, however, that three uses of a racial slur in the course of one conversation is not sufficient to meet the abusive atmosphere element. Plaintiff simply cannot show the race-based indignities he suffered on one occasion altered the condition of the workplace, creating an objectively abusive and hostile atmosphere.

Summary judgment for employer.

Hampton v. J.W. Squire Co. (Kiser, J.) No. 4:10cv00013, Oct. 5, 2010; USDC at Danville, Va. VLW 010-3-516, 9 pp.