Virginia Lawyers Weekly VA Lawyers Weekly
Where a co-worker told a former African American Army employee that she could not understand African Americans because they cannot speak properly, and a supervisor allegedly made a comment connecting the abuses of chattel slavery to athletes of African descent, the employee plausibly alleged a claim for a hostile work environment.
Background
Marie Laurent-Workman sued her former employer, the United States Department of the Army, alleging that she experienced a hostile work environment due to race-based harassment from a co-worker and retaliation by her supervisors through both discrete acts and a retaliatory hostile work environment. The district court dismissed Laurent-Workman’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Hostile work environment
The district court concluded that Laurent-Workman’s complaint set forth insufficient factual allegations to support a hostile work environment claim. The Army notes that the allegations did not include racial slurs or physical threats, mostly describe conduct by a co-worker (Dorothea Adams) who occupied a different duty location and did not occur daily. Of course, “continuous daily” exposure to racial slurs is both severe and pervasive. But daily hostility is not the essence of a Title VII harassment claim. The focus remains on the discriminatory character, severity and consistency of the harassment.
Laurent-Workman’s allegations describe just the sort of workplace behaviors that Title VII serves to root out — repeated invectives of an overtly racial tenor. Adams’s statements to Laurent-Workman that Adams could not understand African Americans because they cannot speak properly communicated racial enmity by summoning an odious trope about African American speech patterns. Even more demeaning, the alleged comment of a supervisor, connecting the abuses of chattel slavery to athletes of African descent, callously evoked the very “history of racial violence, brutality, and subordination” on which the most execrable epithets prey.
Retaliation
Laurent-Workman also claims that her Army supervisors retaliated against her after she voiced complaints of discrimination. Laurent-Workman argues that the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Company controls and that the appropriate standard to assess all retaliation claims under Title VII requires whether an action is “materially adverse” such that it would “dissuade a reasonable worker from making or supporting a charge of discrimination.” The Army counters that Burlington Northern has no application here because it reaches only private-sector claims of discrete-act retaliation.
In Caldwell v. Johnson, an unpublished decision, this court held that Burlington Northern “applies to federal employees and private employees alike.” Although the Army urges this court to brush Caldwell aside, Title VII’s text, Burlington Northern and Caldwell compel the court to hold that the Burlington Northern “materially adverse” standard applies to private employees and federal employees alike. That conclusion is in line with the majority view of the other circuits to address the question.
Accordingly, a retaliatory hostile work environment must be so severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination. This standard retains the “middle path” set out in Harris v. Forklift Sys., Inc. between accepting “any conduct that is merely offensive” and requiring plaintiffs to show a “tangible” injury. But it also harmonizes that compromise with the goal of the anti-retaliation provision “to provide broad protection from retaliation.”
The district court understandably applied the Meritor/Harris standard to determine the level of adversity Laurent-Workman’s retaliatory hostile work environment claim must show. However, given the Supreme Court and this court’s precedents, a hostile work environment claim based on retaliation must instead allege that the retaliatory conduct (1) was unwelcome, (2) was sufficiently severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination and (3) can be attributed to the employer. Under that standard, Laurent-Workman has stated a prima facie case.
Causation
The district court concluded that Laurent-Workman failed to plausibly allege causation based on the temporal proximity between her last known Title VII complaint on Dec. 2, 2019, and her non-selection for the program coordinator position sometime following her interview on Feb. 7, 2020. The court agrees that Laurent-Workman failed to allege a non-speculative link between her Title VII claim and her non-selection.
Affirmed in part, vacated in part.
Laurent-Workman v. Wormuth, Case No. 21-1766, Nov. 29, 2022. 4th Cir. (Gregory), from EDVA at Alexandria (Trenga). Paula M. Potoczak for Appellant. Peter B. Baumhart for Appellees. VLW 022-2-250. 27 pp.
