Why it matters

The U.S. Court of Appeals, Eleventh Circuit reversed dismissal of a plaintiff’s Title VII suit based on the use of racial slurs, although the court affirmed summary judgment in favor of the employer on claims for discriminatory termination and retaliation. A customer service supervisor, Brenda Smelter, was the only African-American employee in her office and claimed she heard coworkers making racist remarks, some of which were directed at her, on an almost daily basis. The language went on for months and culminated in an altercation where another employee called her a “dumb black n*****.” Smelter was terminated and filed suit. While the Eleventh Circuit agreed with the district court that the plaintiff failed to establish pretext in response to the employer’s legitimate, nondiscriminatory reasons for terminating her, the panel reversed on her hostile work environment claim. Smelter provided sufficient evidence to create a genuine issue of material fact that the harassment she suffered was severe or pervasive enough to alter the terms or conditions of her employment, the panel wrote.

Detailed discussion

Brenda Smelter was hired as a customer service supervisor by Southern Home Care Services, a company that provides personalized home healthcare services. Smelter joined the Perry, Georgia, office of Southern Home, where four other employees worked. She was the only African-American employee in the office.

By her own admission, Smelter struggled with her job duties after she left training and began working in the Perry office. She repeatedly asked the same questions, made the same errors and had difficulty coordinating with caregivers—her primary responsibility. Smelter received an unprecedented level of support from coworkers as well as additional training from the company.

According to Smelter, she was also subject to racist remarks by her coworkers nearly every day. Comments included statements that black men were “lazy” and “the scum of the earth,” as well as that “black women had babies on welfare” and President Barack Obama’s ears made him “look like a monkey.” On one occasion, an employee told Smelter that her hair made her look like a “mixed monkey” from the movie Planet of the Apes; another time a coworker saw black people exiting a bus and commented that it looked like they were “chained together,” adding that she wished she could “send them all back … to Africa.”

Smelter never reported the comments until her last day of employment. On that day, a caregiver complained about Smelter, who responded that she had not made a mistake. A verbal altercation between Smelter and one of her coworkers ensued, with the other employee telling her to “get out of my office … you dumb black n*****.”

When Smelter spoke with her supervisor, she reported the racist comments for the first time while explaining the altercation. The other employees denied making the comments, and Smelter was terminated for yelling in the office and not meeting the employer’s expectations. Smelter was still within her six-month probationary period at Southern Home.

Smelter then filed a Title VII lawsuit, asserting claims for discriminatory termination, retaliation and a hostile work environment. A district court judge granted summary judgment in favor of the employer, and Smelter appealed.

The U.S. Court of Appeals, Eleventh Circuit reached a mixed decision: While the court affirmed summary judgment of the termination and retaliation claims, it reversed on the hostile work environment claim, finding sufficient evidence that Smelter’s work environment was both subjectively and objectively hostile.

Smelter’s subjective perception of her environment was one of stressful and hurtful racist comments, the court said, based on her testimony that it felt like the harassment “never stopped.” From an objective perspective, the court found that Smelter provided “ample evidence” that the racial harassment was frequent and that she heard racist comments “every day” during her employment, offering eight examples that allegedly occurred over a two-month period.

“Even if these eight examples were the only racist remarks made in Smelter’s presence during her two months of employment, this Court has held that harassment was pervasive when it occurred at a similar frequency,” the panel wrote.

A reasonable jury could find that the harassment was severe, the court added. “Southern Home argues that [the] ‘one-time use’ of [the n-word] was insufficient to establish severity as a matter of law,” the Eleventh Circuit said. “We disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner.”

The other comments Smelter alleged “involved obvious racial slurs conveying highly offensive derogatory stereotypes of black people,” the court added, and “[c]omments like these are sufficiently severe to create a hostile work environment.” While Smelter’s evidence of the impact of the harassment on her job performance was “weak,” this failing was not enough to end her claim.

“Considering the totality of the circumstances, particularly the daily frequency and extreme severity of the harassment, including racist remarks made directly to Smelter about her, we conclude that she provided sufficient evidence for a reasonable jury to find that the harassment was objectively severe or pervasive,” the panel wrote.

However, the court found Smelter’s claims for discriminatory termination and retaliation unable to overcome the employer’s legitimate, nondiscriminatory reason for her firing: that she was a substandard employee who required remedial training and had difficulty coordinating with caregivers.

Smelter “failed to cast sufficient doubt on [the reason] that she was a substandard employee who was still in her probationary period,” the panel said. She argued that any shortcomings were the company’s fault by providing her poor training, but the court noted the employer “went to great lengths” to provide Smelter with the resources she needed to succeed, providing supplemental training and help from coworkers.

“Smelter offers nothing that casts any doubt on Southern Home’s explanation that her problems performing her duties were the true reason behind her termination,” the court said. “She has failed, therefore, to establish that Southern Home’s nondiscriminatory reason for firing her is unworthy of belief.”

The Eleventh Circuit reached a similar conclusion with regard to the plaintiff’s retaliation claim.

To read the opinion in Smelter v. Southern Home Care Services, Inc., click here.