Robinson v. City and County of Denver

• Decision Date: 17 August 2000
• Docket Number: No. 98CA2566.,98CA2566.
• Citation: 30 P.3d 677
• Parties: Arthur ROBINSON, Plaintiff-Appellee and Cross-Appellant, v. CITY AND COUNTY OF DENVER, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

30 P.3d 677

Arthur ROBINSON, Plaintiff-Appellee and Cross-Appellant, v. CITY AND COUNTY OF DENVER, Defendant-Appellant and Cross-Appellee.

No. 98CA2566.

Colorado Court of Appeals, Div. II.

August 17, 2000.

Certiorari Denied August 20, 2001.

J. Wallace Wortham, Jr., Denver City Attorney, Richard A. Stubbs, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Burns, Wall, Smith and Mueller, P.C., James C. Fattor, Denver, Colorado; Rita Byrnes Kittle, P.C., Rita Byrnes Kittle, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Opinion by Judge DAILEY.

Defendant, City and County of Denver (City), appeals from a judgment entered on a jury verdict in favor of plaintiff, Arthur Robinson. The City claims that the evidence does not support the jury's finding of a racially hostile work environment, that, in any event, a new trial is required because of instructional error, and that plaintiff was not entitled to an award of attorney fees. The plaintiff cross-appeals the trial court's order directing a verdict on one of his claims. We affirm.

I. Background

Plaintiff, a black man, has worked in the City's Wastewater Management Division (WMD) since 1967 and has been a first level supervisor in its quality control section for much of that time. In February 1997, he instituted the present action, alleging illegal discrimination under 42 U.S.C. §§ 2000e, et seq. (1999) (Title VII) and 42 U.S.C. § 1981 (1999) (§ 1981), in that he had been subject both to a racially hostile work environment and to disparate treatment because he was black.

In late December 1994, a letter derogatory toward "dark-skinned people" was taped on the wall near the elevator in the WMD building. WMD management (management) made no response to this letter.

In February 1995, two anonymous letters were posted in the WMD building. The first, supposedly authored by "32 Wastewater employees," complained that, in response to a prior television expose about lax WMD field employees, management required three groups of employees "made up mostly of people of color . . . to call in on radios for every move we make" while not requiring a fourth group of mainly "white people" to do likewise. The second letter was posted approximately a week after, and in response to, the first letter. The second letter stated that the first letter authors' "feeble attempt at writing" showed that the writers of the first letter "don't have enough mental capacity to do anything else but labor" and concluded:

For you to insinuate that racism is involved, instead of sheer stupidity only serves to illustrate that you are a mindless dreg in the bottomless pit of human garbage.

Management did not respond to the letter, other than to remove it.

In August 1995, the restroom walls in the WMD building were marked with racist writings on two separate occasions. The first writing consisted of the words "nigger lover" and a drawing of a woman with large breasts, a large posterior, and three black men with erections; and the second consisted of the words "Leslie = Nigger Lover" and "Leslie is a Nigger Lover." On each occasion, management removed the writing as soon as it was discovered and contacted the Denver Police Department for assistance. Additionally, after the second writing, management issued a memo condemning vandalism — but not racism — in the building.

The plaintiff and another black employee requested that management provide mandatory diversity training for all WMD employees. Although management had previously provided mandatory sexual harassment training when sexual harassment had been identified as a problem, it declined to provide mandatory diversity training, citing, as its reason, the expense involved. Management did meet for about ten minutes with WMD employees to condemn vandalism and spent about approximately thirty seconds also condemning racism.

In September 1995, another racist marking, consisting of a single word, "nigger," appeared upon a restroom wall in the WMD building.

Once again, management removed the writing and contacted the Denver Police Department. Nearly two weeks after the writing was discovered, management issued a memo reminding employees that "any racial overtones, remarks, graffiti and sexual harassment will not be tolerated." At management's invitation, two employees developed a poster promoting racial and ethnic tolerance. However, no copies of the poster were ever produced, and the poster was never put up in the building.

Racial epithets continued to occur. For example, as a member of the plaintiff's crew was taking a sample to the lab, a co-worker complained about being treated "like the low nigger on the totem pole." Although this was reported to the second line supervisor, nothing was done about it for six months, and the offending employee received only a verbal reprimand. According to the evidence presented, this was not an isolated incident, and nothing was done on some other occasions when racial slurs were reported to management.

In February 1997, a post-it note that said "Sucks Nigger Dicks" was left on a woman's lunch bag in the WMD lunchroom refrigerator. In response, two black members of management compared the handwriting on the note to that of all 285 WMD employees, identified two or three possible matches, and provided this information to a handwriting expert.

More racist writings appeared in November 1997 and June 1998 derogatorily referring to sexual relations between an Hispanic woman and two black men. And, WMD's maintenance employee testified that he found approximately ten other racist writings, half of which he reported to management.

Plaintiff presented evidence about the different way management had responded to threats, depending upon the race of the person making or receiving the threats. According to plaintiff, one white employee he supervised had threatened him several times a year over a 25-year period, but nothing was done when plaintiff reported those threats to his manager. When the white employee threatened "to get his gun and blow [plaintiff's] head off," stating, "I will bring my Mach 10 here," management gave the employee only a verbal reprimand.

In contrast, two black employees and an Hispanic employee who threatened or argued with white employees or supervisors were either suspended or placed on administrative leave while the matters were investigated.

However, other evidence (elicited primarily by plaintiff) revealed that a Hispanic employee had been suspended for threatening an Hispanic supervisor; a white contract employee had been terminated for threatening a black employee; and another white employee had been terminated for threatening supervisors.

The plaintiff also presented evidence of: a) a condescending attitude by management towards him during supervisor meetings; b) an instance of racial stereotyping by a member of management; and c) disparate treatment of black employees with respect to working conditions, pay, and promotions.

Plaintiff testified that he felt shocked, demeaned, angered, threatened, and, ultimately, without hope, as a result of the racial slurs, the racist writings, the disparate treatment of blacks, and management's unwillingness to respond effectively thereto.

The City presented evidence why it responded as it did to these racist incidents. It contested plaintiff's evidence regarding some of the racial stereotyping and the number of times he had been threatened at work; and produced evidence that 1) blacks were employed at almost every level (including the number two position) in WMD, 2) on at least one occasion, black employees had received greater pay increases than everyone else, 3) white supervisors had been subjected to the same working conditions as had plaintiff, and 4) diversity training was provided for WMD employees in January 1997.

The trial court dismissed plaintiff's § 1981 claims, concluding that he had presented insufficient evidence that the City promoted racial discrimination through custom or policy. Plaintiff's Title VII claims, however, were submitted to the jury, which found for the City on the disparate treatment claim, but for the plaintiff on the hostile work environment claim. The jury awarded the plaintiff $165,000 in damages and the court awarded him $207,525.86 in attorney fees and costs.

II. Sufficiency of Evidence

The City contends that the evidence is insufficient as a matter of law to support the jury's verdict finding for the plaintiff. We disagree.

A.

According to the City, only the evidence relating to the February 1995 letters, the three instances of restroom markings which occurred in August and September 1995, the racial slur by the co-worker, and the February 1997 post-it note, could be considered with respect to the plaintiff's claim of a racially hostile work environment. This evidence, the City argues, was insufficient to make out a prima facie case on such a claim.

The City's position is premised largely on the contention that evidence of disparate treatment in disciplinary actions, pay and promotions, personal security, and working conditions, is irrelevant in establishing a claim of a racially hostile work environment.

42 U.S.C. § 2000e-2(a) provides that: "It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin."

Among other things, 42 U.S.C. § 2000e-2(a) prohibits discriminatorily hostile or abusive work environments, i.e., environments in which impermissible discrimination detracts from an employee's job performance, discourages employees from remaining, or keeps employees from advancing in their careers. Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

To show a hostile work environment, the discriminatory conduct must...