Racist remarks about Obamas didn't constitute workplace harassment, appeals court rules
A Black nurse who heard her white co-workers make racist statements about the Obamas and about their patients did not establish a hostile-work-environment claim, a federal appeals court has ruled.
The 11th U.S. Circuit Court of Appeals at Atlanta ruled against nurse Cynthia Diane Yelling, who sued St. Vincent’s Health System for race discrimination and retaliation after she was fired. A federal judge had granted summary judgment to the hospital, and the 11th Circuit affirmed in an Oct. 5 opinion.
Yelling had alleged violations of Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866.
The appeals court said “isolated epithets” by Yelling’s co-workers were not sufficiently severe and pervasive to create an abusive working environment. The 11th Circuit also said there was no evidence of intentional racial discrimination to support a disparate-treatment claim and no evidence of retaliatory intent that would support a retaliation claim.
Yelling had cited comments made by her co-workers in March 2015 after then-President Barack Obama visited a predominantly Black community college in Alabama.
Yelling alleges that the racist comments began when the charge nurse remarked, “What is he doing coming here? Is he handing out food stamps?”
Another nurse allegedly said then-first lady Michelle Obama “looks like a monkey,” and the president is a “piece of s- - -.” Another nurse allegedly said President Obama was “stupid,” was the “worst president ever,” and he “needs to go back to Africa.”
Yelling said she also heard the same co-workers refer to Black patients as “crack heads,” “welfare queens” and “ghetto fabulous.” Other co-workers talked at the nursing station about being “Confederate flag flyers,” owning guns and having “redneck status.”
None of the racial insults were directed at Yelling. When she complained to a supervisor, she also said the charge nurse scheduled only one Black nurse per shift. The complaints were not investigated, and no one was disciplined, according to Yelling.
The weekend after Yelling’s complaints, three nurses reported that she left her area without explanation and came back appearing lethargic and unsteady on her feet. She was suspended but then reinstated when a drug test came back negative. Afterward, nurses reported Yelling for not following care orders; Yelling accused her co-workers of stealing lab orders that she printed and got into a shouting match with one of them.
In one instance, the tracker worn by Yelling showed that she did not enter a patient’s room, even though she wrote on the chart that she had observed the patient. She was immediately fired as a result. She had previously filed a charge with the Equal Employment Opportunity Commission.
Some of the co-workers’ comments about the Obamas were race-based, and some showed political or personal disagreement, the appeals court said.
“But even if we considered these comments race-based, and even drawing all reasonable inferences in Yelling’s favor, we conclude no reasonable jury could conclude these comments evince extreme harassment,” the 11th Circuit said.
“This is true even when considering these comments together with other comments—several of which plainly were racist. Those comments were only isolated epithets rather than extreme harassment,” the appeals court concluded in a per curiam opinion.
The opinion authors were Judges Elizabeth L. Branch, Andrew L. Brasher and Allen Winsor. Winsor is a federal judge for the Northern District of Florida who was sitting by designation. All three judges are appointees of former President Donald Trump.
In a concurrence, Brasher said courts should not ignore the tension between the First Amendment and Title VII harassment law.
“The closer objectionable speech comes to the heart of the First Amendment, the more reluctant a court should be to impose tort liability because of it,” Brasher said.
Hat tip to the Volokh Conspiracy, which published highlights from the opinion.