Lounds v. Lincare, Inc.

Decision Date22 December 2015
Docket NumberNo. 14–3158.,14–3158.
Citation812 F.3d 1208
Parties Shawron LOUNDS, Plaintiff–Appellant, v. LINCARE, INC., Defendant–Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Anne Schiavone, Holman Schiavone, LLC, Kansas City, MO (Sophie A. Woodworth, Holman Schiavone, LLC, Kansas City, MO, with her on the briefs), for PlaintiffAppellant.

Stephanie N. Scheck, Stinson Leonard Street LLP, Wichita, KS (Jesse Tanksley, Stinson Leonard Street LLP, Wichita, KS, with her on the brief), for DefendantAppellee.

Before KELLY, HOLMES, and McHUGH, Circuit Judges.

HOLMES, Circuit Judge.

Shawron Lounds appeals from the district court's order granting summary judgment to her former employer, Lincare, Inc. ("Lincare"), on her claims of a hostile work environment in violation of 42 U.S.C. § 1981 and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part. Specifically, we affirm the district court's grant of summary judgment on Ms. Lounds's claim for retaliation, but we reverse the court's grant of summary judgment on her discrimination claim and remand for further proceedings.

I

On an appeal from a ruling granting summary judgment, " we examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party,’ without making credibility determinations or weighing the evidence." Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 953 n. 2 (10th Cir.2012) (quoting Pinkerton v. Colo. Dep't of Transp., 563 F.3d 1052, 1058 (10th Cir.2009) ). The following facts are recited accordingly.

A

Lincare is a nationwide provider of at-home medical services with headquarters in Florida and, as germane here, a satellite facility in Wichita, Kansas. At all times relevant to this appeal, Lincare employed approximately twenty individuals at its Wichita location. Ms. Lounds began working at that office as a customer-service representative in September 2011. She is African–American and, throughout the duration of her employment with Lincare, was the Wichita office's only African–American employee.

Suzanne Kraft, the Wichita facility manager, hired Ms. Lounds and was her direct supervisor. Ms. Lounds alleges that when she first reported to work, Ms. Kraft asked if her name was "Shaquita" and, after asking Ms. Lounds to introduce herself in a group setting, said, "I thought your name was Shaniqua!" J.A. at 267 (Mem. for Record, dated Feb. 3, 2012). At least one of Ms. Lounds's co-workers has stated that before Ms. Lounds's start date, Ms. Kraft mentioned having interviewed Ms. Lounds, calling her "the cute black girl," id. at 480 (Llamas Dep., dated Oct. 9, 2013), and "Shaniqua or Shanay or something," id. at 487.

In October 2011, a truculent male customer phoned the Wichita office and threatened to harm the employees. Ms. Lounds alleges that when she reported the call, Ms. Kraft instructed her to give the customer "attitude," id. at 271, and to "get ghetto" with him, id. at 111 (Lounds Dep., dated Aug. 21, 2013). Ms. Kraft was overheard commenting about how "mean" this customer was and saying that "by the sounds of his voice she imagined that he was a big African American man." Id. at 506 (Renard Dep., dated Oct. 9, 2013). When the customer later visited the office, Ms. Kraft approached Ms. Lounds and said of him, "No offense, he's a ... little white guy." Id. at 111.

On November 14, 2011, Ms. Lounds happened upon some of her co-workers discussing an African–American man who had recently killed his wife. She listened as Kevin Kunz stated, "[W]e need to bring back lynching, because we have enough trees."1 Id. at 267. According to Ms. Lounds, Mr. Kunz first attempted to clarify that he was "not racist, and there was nothing wrong with lynching," before he approached her to say, "I'm not trying to offend you[;] it's not like I said ‘let[’]s go down [to] 9th and Grove (the Black Neighborhood) and drag every black person with a noose, tie them to a truck and drag them after hanging them.' " Id. When Ms. Lounds objected to his commentary, Mr. Kunz rejoined that she should not be so sensitive.

Ms. Lounds alleges that on January 14, 2012, co-worker Laynee Kempke entered the office, announced that she had "just c[o]me back from the ‘Hood’ seeing a patient," and began chanting, "BOOM!" and "Boom, Nigga!" Id. at 268. After that incident, at least one co-worker relayed to Ms. Lounds that Ms. Kempke had previously "said or used the ‘N Word,’ " most notably by saying "Peace out my Nigga!" Id. Ms. Lounds told Ms. Kempke that remarks of this nature upset her.

During a staff meeting on January 17, 2012, Ms. Kraft asked co-worker Nathan Van Dever—the only male employee in attendance—if he felt "like a minority." Id. at 268. At some point in the course of the meeting, Ms. Kraft explained that company vice president Greg McCarthy was planning to visit Lincare's Wichita office; she directed the employees to address Mr. McCarthy by saying, "YES MASSA." Id. at 269. One employee present during the incident observed that Ms. Kraft's " ‘yes, massa’ did offend [Ms. Lounds] very visually" and that Ms. Lounds "had tears in her eyes" after the meeting. Id. at 506.

On January 26, 2012, during an office pizza lunch, Mr. Kunz "kept saying things like ‘I never go in the ghetto[;] the hood has gangsters.’ " Id. at 273. Shortly thereafter, he approached Ms. Lounds and said, "you know ... the HOOD!" Id. A co-worker standing near Ms. Lounds asked what Mr. Kunz meant; Mr. Kunz replied that there were "a lot of minorities there [i.e., in the ‘ghetto’] and it's dirty, it's run down." Id. at 482.

Mr. McCarthy visited Lincare's Wichita facility on January 27, 2012. While he was attending a staff meeting, employee Amber Renard reported that "there was some racial commentary [involving Ms. Lounds] that needed [his] attention." Id. at 221 (McCarthy Dep., dated Oct. 14, 2013). After the meeting adjourned, Mr. McCarthy spoke privately with Ms. Lounds and learned that she was indeed troubled by some "offensive" statements. Id. He asked Ms. Lounds to put these concerns in writing and indicated that he would contact human resources. Mr. McCarthy then called Paula Adams, Lincare's director of employee relations, to request a follow-up investigation regarding Ms. Lounds's allegations.

Pursuant to Mr. McCarthy's instructions, Ms. Adams called district manager Jeremy Felts later that day to discuss Ms. Lounds's concerns. Mr. Felts then summoned Ms. Lounds and Ms. Renard for a teleconference with Ms. Adams. During this phone call, Ms. Lounds told Ms. Adams that: (1) Ms. Kempke had said "boom nigga," id. at 108, and "peace out nigga," id. at 236 (Adams Aff., dated Nov. 19, 2013), in the office; (2) Mr. Kunz had discussed lynching; (3) Mr. Kunz had said that "Hitler would be proud of him because of his blue eyes, but not ... his black hair," id. at 108; (4) Ms. Kraft had instructed employees to address Mr. McCarthy by saying "yes massa," id. at 236; (5) Ms. Kraft had asked Ms. Lounds why African–American parents choose names like "Roshonda" and "Shawron" for their children, id. at 108, 236; and (6) Mr. Van Dever had asked Ms. Lounds if she smoked Newport cigarettes and "why ... all black people smoke Newports," id. at 108. Ms. Adams and Mr. Felts "mutually agreed" that Ms. Kempke, Mr. Kunz, and Ms. Kraft would be disciplined for their alleged conduct. Id. at 236.

On January 30, 2012, Mr. Felts issued final written warnings to Ms. Kempke, Ms. Kraft, and Mr. Kunz, noting that these individuals had "made inappropriate, racially motivated comments in the [workplace]," id. at 256, 259, 262 (Final Written Warnings, dated Jan. 30, 2012), and that Ms. Kraft had also "witnessed and allowed other individuals who report directly to [her] to make similar comments in the [workplace]," id. at 259. The warning documents advised that subsequent breaches of Lincare's "Anti–Discrimination/Anti–Harassment policy" would result in the "immediate termination of [their] employment." Id. at 256, 259, 262. Also on January 30, Mr. Felts led an in-service training of approximately ten minutes in duration "to make sure everyone was clear on [the] company policy on anti-discrimination and harassment."2 Id. at 131 (Felts Dep., dated Oct. 10, 2013). The sign-in sheet from this training indicates that Ms. Kempke attended, but Ms. Kraft and Mr. Kunz did not. See id. at 265 (In–Service Record, dated Jan. 30, 2012) (reflecting no signatures by Ms. Kraft and Mr. Kunz); see also id. at 468 (Kraft Dep., dated Oct. 10, 2013) (comment by Ms. Kraft that if she had attended, "[her] signature would be on the sheet").

In that same general time period, a picture of a garden hung on the wall behind the desk of employee Jennifer Llamas. A customer visiting the Wichita office remarked to Ms. Llamas that he found the picture "pretty" and thought "[it] probably took a lot of slaves ... to make it [i.e., the garden depicted] look that good, ... but nowadays it's wetbacks that do that." Id. at 482. Ms. Llamas, who is Latina, told both Ms. Lounds and Mr. Felts that the customer's comments offended her. The picture was removed, but only briefly. Ms. Lounds avers that the picture was "a constant reminder to ... [her], everyday ... of what that [customer] said." Id. at 271. Meanwhile, according to Ms. Lounds, "several employees" were habitually approaching her by saying, "YO! Yo what[']s up?" in "a black accent dialect." Id.

On February 3, 2012, Ms. Lounds submitted a document styled "Memorandum for Record" to Lincare's human-resources department. She alleged therein that she felt "bombarded with racial slurs and comments." Id. at 269. Specifically, she stated that: (1) Ms. Kempke had upset her by saying "Boom Nigga" in her presence, id. at 268; (2) a co-worker had informed Ms. Lounds that Ms. Kempke—in addition to saying "Boom Nigga"—had remarked "more than once" the day Ms. Lounds interviewed for the Lincare...

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