Etter v. Veriflo Corp.
| Decision Date | 20 October 1998 |
| Docket Number | No. A077997,A077997 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 78 Fair Empl.Prac.Cas. (BNA) 625, 98 Cal. Daily Op. Serv. 7987, 98 Cal. Daily Op. Serv. 8471, 98 Daily Journal D.A.R. 11,073, 98 Daily Journal D.A.R. 11,742 Robert ETTER, Jr., Plaintiff and Appellant, v. VERIFLO CORPORATION, Defendant and Respondent. |
Louis A. Highman, Bruce J. Highman, for Plaintiff and Appellant.
Littler Mendelson, George J. Tichy, II, Arthur M. Eidelhoch, for Defendant and Respondent.
In this action for racial harassment in the workplace, the sole issue raised on appeal is whether the trial court erred in instructing the jury that "occasional, isolated, sporadic, or trivial" acts of racial harassment are not actionable. We conclude that the instruction was not erroneous, and we affirm the judgment in favor of defendant.
Plaintiff brought an action for damages under the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) alleging that he had been subjected to racial harassment and discrimination while working for defendant Veriflo Corporation. 1 A jury trial was held, and the jury returned a unanimous verdict in favor of defendant. In particular, the jury responded "no" to the following question on the special verdict form: "Question No. 1: Did Plaintiff Robert Etter prove by a preponderance of the evidence that (1) he was subjected to intentional and unwelcome conduct of a racial nature by Anita Grigsby; (2) the conduct complained of was based on race; (3) a reasonable person of Plaintiff's race would have found the racial conduct complained of to be sufficiently severe or pervasive to alter the conditions of the person's employment and create a hostile or abusive working environment; (4) Plaintiff found the racial conduct complained of to be sufficiently severe or pervasive to alter the conditions of his employment and create a hostile or abusive working environment; and (5) the conduct complained of was the legal cause of damages to Plaintiff?"
Plaintiff appeals from the judgment entered in favor of defendant.
Plaintiff, then age 37, was hired on August 28, 1995, by Kelly Services, Inc., a temporary employment agency, and was assigned to work as a stockroom clerk at defendant Veriflo Corporation. Plaintiff worked the swing shift (2:30 to 11 p.m.) as did Anita Grigsby, another worker in the "stores department." 2
Plaintiff testified at trial that Grigsby subjected him to offensive racial comments during the six weeks he worked at Veriflo. Plaintiff testified that Grigsby called him "boy" almost daily; that she called him "Buckwheat" between five and ten times; that she called him "Jemima" twice on one day, and that she called him "Stymie" (another character on The Little Rascals) once or twice. Plaintiff also testified that Grigsby asked him why some Black people pronounce the work "ask" as "axe" and then ridiculed the pronunciation of other Black workers.
Further, plaintiff testified that Grigsby told a joke about two Black girls; commented on the O.J. Simpson trial; and declared her dislike of going to Oakland because of the prevalence of violence by Blacks.
Plaintiff conceded that he never told Grigsby or her supervisor that he found Grigsby's remarks offensive. Just a week before quitting work at Veriflo, plaintiff affirmed his interest in permanent employment at Veriflo.
Plaintiff did, however, complain to Kelly Services. Plaintiff eventually quit working at Veriflo on October 12, assertedly because of the harassment by Grigsby. Plaintiff called Kelly Services on October 13 to complain about Grigsby's conduct.
Anita Grigsby denied that she ever called plaintiff "boy" instead of his name. She conceded that she did use the expression, "oh, boy." But plaintiff testified that he did not find that expression derogatory.
Grigsby denied addressing plaintiff as "Buckwheat," but she testified that once Grigsby also denied calling plaintiff "Jemima" or "Stymie." She denied manipulating conversations with coworkers to make them say "ask," pronounced as "axe." Rather, Grigsby testified that it was plaintiff who mimicked or mocked the other workers' pronunciation of "ask."
when plaintiff talked of cutting his hair, Grigsby replied, "Oh, don't do that. You'll look like Buckwheat." Plaintiff laughed
Grigsby said she did discuss the O.J. Simpson trial, but she never told a joke about Black people. She vaguely recalled a discussion about Blacks killing Blacks with guns.
Thomas Mason, another Black stockroom worker, testified that Grigsby had never addressed him as "boy" and he never heard Grigsby address plaintiff as "boy." But Grigsby did refer to him and plaintiff collectively as "you boys," e.g., "You boys get back to work." Mason did not find the statement offensive. Mason also heard Grigsby tell plaintiff he looked like the picture of " Jemima" on the package box when plaintiff was wearing a bandanna on his head. Plaintiff laughed. Mason never heard Grigsby call plaintiff "Buckwheat" or "Stymie." Mason described the relationship between Grigsby and plaintiff as friendly; he never heard Grigsby say anything derogatory or disrespectful.
Willie Evans also recalled hearing Grigsby tell plaintiff he looked like "Aunt Jemima." And he heard Grigsby use the terms "boy," "Buckwheat," and "Stymie." But he had no specific recollection of the episodes. Evans, too, described the relationship between Grigsby and plaintiff as friendly. He recalled that Grigsby used the term "Buckwheat" when "we were all kidding."
Larry Williams testified that Grigsby used the term "boy" once. She said to him and two other Black employees, "You boys get back to work." He did not consider the remark discriminatory. She might have said "You guys."
Grigsby's supervisor, Marcie Dimaculangan, testified that after plaintiff complained to Kelly Services, Grigsby denied the allegations. Dimaculangan believed from her experience working with Grigsby and observing the friendly bantering between Grigsby and plaintiff that plaintiff's charges of racial harassment were untrue.
In closing argument, counsel for defendant Veriflo argued that plaintiff's testimony was false. Counsel further argued that even if some of the incidents did occur, they were isolated episodes and were not enough to constitute harassment.
Title VII of the federal Civil Rights Act (hereafter "Title VII") makes it unlawful for an employer to discriminate on the basis of race, color, religion, sex, or national origin. (42 U.S.C. § 2000e-2, subd. (a)(1).) The lower federal courts have long recognized that an employee may have a cause of action under Title VII for racial discrimination when the employer has created a working environment heavily charged with ethnic or racial insult and ridicule. (Rogers v. EEOC (5th Cir.1971) 454 F.2d 234, 238; see also Firefighters Institute for Racial Equality v. City of St. Louis (8th Cir.1977) 549 F.2d 506, 514-515; Gray v. Greyhound Lines, East (D.C.Cir.1976) 545 F.2d 169, 176.) The United States Supreme Court has drawn upon those cases involving racial harassment and has extended the "hostile work environment" theory to claims of harassment based on sex. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49, following Henson v. City of Dundee (11th Cir.1982) 682 F.2d 897, 902; see also Faragher v. City of Boca Raton (1998) 524 U.S. 775, ----, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662, 676.) 3
However, the federal courts have also recognized that not all harassing workplace conduct is sufficient to state a claim of discrimination under Title VII. To be actionable, the harassment must be "sufficiently severe or pervasive" to alter the conditions of the victim's employment and create an abusive working environment. (Meritor Savings Bank v. Vinson, supra, 477 U.S. at p. 67, 106 S.Ct. 2399, quoting from Rogers v. EEOC, supra, 454 F.2d at p. 238; accord, Faragher v. City of Boca Raton, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2283, 141 L.Ed.2d at p. 676; Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295.) The "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not violate Title VII, as it would not affect the conditions of employment to a sufficiently significant degree. (Rogers v. EEOC, supra, 454 F.2d at p. 238, quoted with approval in Meritor Savings Bank v. Vinson, supra, 477 U.S. at p. 67, 106 S.Ct. 2399; accord, Faragher v. City of Boca Raton, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2283, 141 L.Ed.2d at p. 676; Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 22, 114 S.Ct. 367.) (Lopez v. S.B. Thomas, Inc. (2d Cir.1987) 831 F.2d 1184, 1189, cited with approval in Faragher v. City of Boca Raton, supra, 524 U.S. at p. ----, fn. 1, 118 S.Ct. at p. 2283, fn. 1, 141 L.Ed.2d at p. 676, fn. 1.)
In its recent decision on sexual harassment, the Supreme Court emphasized that the conduct must be extreme: " 'simple teasing,' ... off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.' " (Faragher v. City of Boca Raton, supra, 524 U.S. at p. ----, 118 S.Ct. at p. 2283, 141 L.Ed.2d at p. 676.) Earlier, in Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 22-23, 114 S.Ct. 367, 126 L.Ed.2d 295, the Supreme Court declared that the "severe or pervasive" standard is not a mathematically precise test, and the court articulated several...
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