Sixth Circuit Rejects Dismissal of Racial Harassment Claim Where Black Supervisor Called Plaintiffs Monkey A--.

Last week, the Sixth Circuit reversed an employer’s summary judgment on a racial harassment claim brought by two former truck drivers.   Smith v. P.A.M. Transport, Inc. , No. 24-5549 (6^th Cir. 9-25-25).   The  Court found that calling the plaintiffs “monkey a__” or ANY derivative of monkey was as racially derogatory as the n-word, even if it was mostly used against them by their black supervisor.   It also refused to find problems with whether black and African-American can be used interchangeably for evidentiary purposes when comparing the plaintiffs to “white” employees.   It rejected the employers’ evidence for an affirmative defense at the summary judgment stage concerning whether it took reasonable steps to prevent harassment when it promulgated an anti-harassment policy without evidence that it was effectively enforced or followed up with management training.  The Court’s majority also found sufficient evidence of comparative treatment to sustain the disparate treatment allegations. 

According to the Court’s decision, the plaintiff truck drivers both worked out of the Nashville terminal and alleged that they were paid a day rate, but were required to drive more hours and miles per week and in damaged trucks than their white counterparts.   One was fired after two negative performance evaluations, but without prior disciplinary warning.  Both alleged that they were “regularly” called “money a__” by their black supervisor, who was otherwise respectful in communicating with white truck drivers.  They alleged that their supervisor threatened to withhold pay or fire them and regularly demeaned them.  They alleged that they complained with “liaisons” about the mistreatment, but that nothing was done to rectify or stop it.    Their supervisor reported to a white manager.   Both sued under  Title VII and Section 1981.   The trial court granted the employer summary judgment on the grounds that they had failed to produce sufficient evidence of a racially hostile work environment or disparate treatment. 

The Court rejected the district court’s conclusion that derivatives of “monkey” were not plainly racist.

We have recognized that, “[g]iven the history of racial stereotypes against African-Americans and the prevalent one of African-Americans as animals or monkeys, it is [] reasonable—perhaps even [] obvious”—to conclude that the invocation of the term “monkey” against an African American is “intended [as a] racial insult.” . . .

Consequently, circuit courts, including our circuit, have overwhelmingly held that the use of the term “monkey” against an African American employee constitutes evidence of race-based harassment sufficient to support a hostile work environment claim. For example, we have found evidence of racial harassment where, among other things, African American firefighters were assigned to workstations labeled “Monkey Island.” . . .

 . . .

 . . . The term “monkey” and its derivatives, while not overtly racial in isolation, have a long and well-understood history as racial slurs when directed at African Americans.  . . . . In this case, two African American plaintiffs have testified that their supervisors directly and repeatedly called them “monkey” and “monkey ass.” The use of the terms in that context raises a reasonable “inference of discrimination on the basis of” race.  . . . . That suffices to show race-based harassment at the summary judgment stage. The district court’s determination that Plaintiffs’ testimony about the use of these terms does not constitute “evidence of the use of race-specific and derogatory terms,” therefore, was plainly incorrect.

The Court rejected as “frivolous” the argument that being called “money a__” was somehow not racist when being called monkey was inherently racist.

[The employer] offers no reason—and we can think of none—as to why the addition of the word “ass” somehow obviates the racialized nature of the term “monkey.” To the contrary, the “use of the term ‘monkey’ or derivative terms” against African Americans constitutes compelling evidence of racial harassment.  . . .  Simply put, there is no meaningful difference between the terms “monkey” and “monkey ass” when used by a supervisor against an African American employee, as alleged here.

The Court rejected the district court’s conclusion that the racist nature of the term was reduced because the speaker was also African-American.  Just as there can be same-sex harassment, there can be same-race harassment.

To be sure, in some contexts, the fact that the alleged perpetrator is within the same protected class as the alleged victim may be material. But on this record, we see no fact or reason why [the supervisor’s] race undermines the conclusion that a reasonable jury could find his (and his supervisor’s) alleged use of “monkey” and “monkey ass” to be racially derogatory.

The Court also rejected the argument that the plaintiffs were required to prove that the terms were not used against white employees.

The Court also rejected as “deeply flawed” the district court’s conclusion that African-American and “black” could not be used interchangeably, meaning that the African-American plaintiffs failed to carry their burden of proof by comparing themselves to “white” employees, who could also be African-American. 

This reasoning is deeply flawed. It starts from the erroneous premise that “African American” and “Black”—and, in turn, “non-African American” and “white”—are rigid categories of identity that can never be used interchangeably. Contrary to that assumption, our Title VII jurisprudence on race discrimination governs, and we have often used “African American” and “Black” interchangeably and compared “African Americans” with “whites.” . . . . The district court attempted to justify its additional evidentiary requirements by pointing to Title VII’s prohibition on discrimination based on skin color, reasoning that “discrimination based on color is distinct from discrimination based on race.”  . . . . But that distinction does not obviate our well-established caselaw recognizing “Black” and “white” as racial identities.

By relying on this narrow conception of racial identity, unadorned by legal precedent, the district court effectively imposed a heightened burden on Plaintiffs beyond what Title VII, § 1981, and the THRA require. Our circuit has never held that a plaintiff must proffer evidence of a comparator’s racial self-identification or genetic composition to survive judgment in a Title VII case. To the contrary, we have routinely accepted, at summary judgment, plaintiff testimony of disparate, race-based treatment grounded in experience and perception. . . .

The Court’s majority also found sufficient evidence of disparate treatment to also support the claims of racially harassment. 

“[F]acially neutral abusive conduct can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”   . . . . Here, given the alleged use of racial slurs by [the supervisor and manager], a reasonable jury could infer that the accompanying (purportedly race-neutral) verbal abuse by both individuals was, in fact, also racially motivated, without regard to Plaintiffs’ testimony that non-African Americans received more favorable treatment.

The Court also rejected the district court conclusion that the evidence was insufficient to show a severe or pervasive ractially hostile work environment.

Our governing precedent, however, requires evaluation of the work environment as a whole, including the broader context in which the terms “monkey” and “monkey ass” were allegedly used.  . . . . As noted, facially neutral abusive conduct, such as screaming, cursing, and threatening, “can support a finding of . . . animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.”  . . .  By refusing to consider the use of the slurs in conjunction with the accompanying verbal abuse (or, for that matter, the unfavorable employment-related treatment) when assessing severity and pervasiveness, the district court relied on an incomplete picture of the harassment that Plaintiffs allegedly experienced.

 . . .

 . . . our circuit has recognized that even a single incident of racial harassment, including the use of an egregious racial slur like the n-word, “may be so severe as to constitute a hostile work environment.” . . .  Like the n-word, the term “monkey” is “odious” and “degrading and humiliating in the extreme” when used as an insult against African Americans.  . . . . That is particularly true in this case, where [the plaintiffs] were purportedly called the term directly by their supervisors. The utterance of a slur by a manager “greatly increase[s] its severity,” and “harassment will be more severe if offensive comments were directed at a plaintiff.”

 . . . .

  . . .  [The plaintiffs] testified that they were directly called “monkey” and “monkey ass” by their supervisors on multiple occasions over time. Plaintiffs have also proffered evidence that, at least with respect to [one plaintiff], the term “monkey ass” was used in an overtly threatening manner. For example, [he] testified that [his supervisor] once told him, “you’re going to get your monkey A-S-S out there and do the job or . . . I’m going to write you up.”  . . . . Even standing alone, the evidence of these race-specific and derogatory terms very likely suffices to show severe or pervasive racial harassment.

We do not rely on the use of the slurs alone, however, because our governing cases require consideration of the totality of the circumstances in hostile work environment cases.  . . . . As discussed, [the plaintiffs] testified not only that they were directly called egregious, degrading, and humiliating racial slurs by their supervisors on several occasions, but also that they were subjected to sustained verbal use, in the form of threats, demeaning criticism, cursing, and screaming, while non-African American TRR drivers were spared from that same abuse. Plaintiffs also testified that they were consistently forced to work longer hours, drive lengthier routes with longer wait times, and use damaged trucks, unlike their non-African American counterparts. And both testified that the harassment caused them significant anxiety and diminished morale, which made it more difficult to drive on the road.

Viewing the totality of the record in the light most favorable to Plaintiffs, as we must, we conclude that a “reasonable person would have found [their work environment] hostile [and] abusive.” Id. at 309. In turn, a reasonable jury could find, from the totality of the evidence, that [they] were subjected to recurring, severe, and humiliating racial harassment that unreasonably interfered with their employment.

The Court also found sufficient evidence of employer vicarious liability because the employer failed to produce sufficient evidence to support its affirmative defense. 

While the employer points to the fact that it gave [the plaintiffs] a copy of its Anti-Discrimination and Harassment Policy, our caselaw makes clear that the existence and provision of a harassment policy alone are insufficient to show “reasonable care to prevent and correct promptly any racially harassing behavior.” . . . An employer must also show that the policy was reasonable and “effective in practice.”  . . .  [The employer] points to no evidence, and does not even attempt to argue, that it had an effective policy. It makes no mention of the policy’s “requirements” on supervisors or the “training regarding the policy”— both of which are baseline requirements for establishing the existence of a reasonable harassment policy. Id. at 349-50. The record also does not show that [the employer] took reasonable care to promptly correct the alleged harassment. To the contrary, Plaintiffs have testified that they placed [the employer] on notice of the harassment by reporting it to management-level employees, and P[it] has proffered no evidence that it acted to promptly correct the situation. On this record, we cannot say that [the employer] “exercised reasonable care to prevent and correct promptly any racially harassing behavior by its supervisor[s].”

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio General Assembly Amended Employer Notice Requirements to Permit Internet Postings

Over the summer, Ohio’s General Assembly amended most of the state-specific posting requirements of employers to permit employers to permit those notices on the internet when accessible to employees.  This includes:

·       Child Labor Postings, O.R.C. §4109.08(A)(2)(b) – the abstract of the statute prepared by Director of Commerce

·       Ohio’s minimum and overtime wage requirements, as summarized by the Department of Commerce, O.R.C. §4111.09

·       A summary of the Ohio Civil Rights Act, prepared by the Ohio  Civil Rights Commission, O.R.C. § 4112.07

·       Prevailing wage rate information, if applicable, O.R.C. § 4115.07

·       Notice from the employer that the results of or failure to submit to a post-accident drug test may affect their entitlement to workers compensation, O.R.C. § 4123.54(F)

·       Bureau of  Workers Compensation Notices, O.R.C. § 4123.83

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio's New Mini-WARN Act Becomes Effective Next Week

Next week, Ohio’s new mini-WARN Act, Ohio Revised Code §4113.31, will become effective.   While it essentially codifies existing federal regulations under the federal WARN Act and, with some exceptions, requires 60 days advance notice for the employees, it also contains some state-specific provisions which may catch unwary employers off guard, including:

·       The long-form notice is generally always required, including a detailed statement explaining the reason for the layoff/plant closure, the job titles and positions affected, and “information about any available services for an affected employee, including job placement assistance, retraining programs, or counseling services.”

·       In addition to notifying the State and City, the employer is also required to notify the Chief Elected Official of the County and provide a “description of any action taken or planned to mitigate the impact of the plant closing or mass layoff, including any efforts to secure alternative employment or training for affected employees.”

·       While the federal WARN Act requires notice if the 50 employees being laid off at a single site constitute at least 33% of the site’s workforce, Ohio’s statute does not contain that provision.

·       Ohio’s statute also does not contain the 90-day aggregation period of the federal WARN Act.

Ohio’s statute retains the federal exceptions to the full notice requirement for unforeseen circumstances, faltering companies still actively seeking capital, lockouts, natural disasters, etc.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Again Rejects Religious Exemption from COVID Testing By Healthcare Worker

Last week, the Sixth Circuit affirmed an employer’s summary judgment on the Title VII religious discrimination and retaliation claims brought against a hospital by an employee who objected to wearing a mask, being vaccinated and being tested.  Henry v. Southern Ohio Medical Ctr., No. 24-3863 (6th Cir. Sept. 11, 2025).   The Court concluded that the employee’s requested accommodation placed a substantial burden on the employer, which was tasked with providing a safe place for its vulnerable patients.  It was questionable whether the plaintiff had put her employer on notice that she would accept non-invasive (i.e., saliva) testing, but in any event, such results were unreliable and took twice as long as nasal tests, which could be processed inhouse.  “We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship.” The Court also rejected her retaliation claim because her being placed on leave was based on a pre-existing deadline and for legitimate patient care reasons and not on her allegedly protected opposition conduct. 

As many employers did, the Hospital required mandatory vaccination of its staff or regular nasal testing, which it could process inhouse within 24 hours.  A deadline was set to comply.  Every request for a religious exemption from the vaccine was granted, but the plaintiff also requested exemption from testing.  Her position involved direct patient care, including of new born babies.  She objected on religious grounds to any invasive procedures, including vaccines and tests.    After the deadline, she was placed on unpaid leave until the end of the pandemic, but refused to return when offered reinstatement because she had found other employment.   

After she filed suit, there was a factual dispute as to whether the plaintiff communicated her willingness to submit to a saliva test based on her repeated references to invasive testing. The trial court found that the only compromise she offered was to self screen and stay home if she felt sick.   In any event, the Court found that even saliva testing imposed an undue hardship on the employer.  The Court has previously found that it is an undue hardship to refuse all testing in a healthcare setting with direct patient care positions.

Now consider the request for saliva testing. Even this accommodation would place an undue hardship on SOMC by increasing the delay in analyzing [the plaintiff’s] test results. The district court concluded that “[m]ore than doubling the time it takes to learn whether a patient-facing employee is positive for the virus unmistakably compromises SOMC’s mission to serve the community and keep it safe.” . . . . The district court was correct. We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship. . . .

Before the district court, SOMC presented evidence showing that saliva testing was a less effective method of detecting COVID infection than other forms of testing available at the time—thus increasing the risk of the spread of COVID.  . . .  [The plaintiff] introduced no evidence to dispute this. SOMC also presented evidence showing that it did not have the in-house capacity to analyze saliva testing results. Analyzing saliva tests would have required third-party analysis which would have at least doubled the time (from 24 to 48 hours) it took for SOMC to learn whether [she] tested positive for COVID.

The Court also rejected her retaliation claim based on her being placed on unpaid leave when she refused to be tested (i.e., opposed allegedly unlawful requests).   Even if the plaintiff could prove a prima facie case of retaliation, the employer articulated a non-retaliatory reason for placing her on unpaid leave: “exempting her from vaccination and testing could lead to the spread of COVID-19 among its staff and patients.”

The Court rejected her argument that the temporal proximity between her allegedly protected opposition conduct and her being placed on leave was evidence of pretext.

That argument fails, however, because SOMC put [her] on unpaid leave the day after the long-established deadline (September 17) by which every employee had to vaccinate or agree to testing. The preexisting deadline “negate[s] any inferences that may arise from the temporal proximity between [her] protected activities” and her placement on unpaid leave.  . . .

Similarly, the Court rejected her argument that refusing to consider saliva testing also showed pretext because it found that her deposition testimony could not be contradicted by her affidavit when she could not remember during her deposition  putting the employer on notice that she would accept saliva testing and the affidavit also failed to identify when and how she communicated such willingness. 

[The plaintiff] also argues that SOMC’s refusal to provide her with available alternative forms of testing shows pretext. But that argument turns on us accepting the claim that [she] put SOMC on notice during the September 14 call that she would now consider other forms of invasive testing. For the reasons explained above, her deposition testimony and affidavit don’t establish that she provided SOMC such notice.

Finally, the Court rejected her argument that the Hospital’s grant of all other exemptions (to vaccination) meant the refusal to grant an exemption for her (to testing) was evidence of pretext:

Finally, [the plaintiff] argues that SOMC’s granting of all other accommodations shows pretext.  . . . . But the argument would fail in any event because [she] has not shown that any other accommodation recipients were similarly situated to her “in all relevant respects.”  . . .  The uncontested evidence shows that of the “approximately 300” employees who requested an accommodation, all “agreed to weekly testing” except [her] and one other nurse [who resigned].

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Claims After Plaintiff's Public, Profane and Unprofessional Attacks on Colleagues

Last week, the Sixth Circuit affirmed an employer ‘s summary judgment on Title VII, Rehabilitation Act and First Amendment discrimination and retaliation claims brought by a professor after the plaintiff’s request to transfer to the main campus was denied.  Patterson v. Kent State Univ., No. 24-3940 (6^th Cir. Sept 12, 2025).   There was no evidence that plaintiff’s gender identity was ever discussed or considered in the decision.  The sole stray remark about the plaintiff’s mental stability  -- in light of the unprofessional comments being made -- was insufficient upon which to base a disability discrimination claim.   The employer had sufficient reason for its actions in light of the plaintiff’s unprofessional and profane attacks on colleagues, and resignation from service.   There was also no evidence that the decisionmakers were aware of any protected activities at the time of the decisions.  Finally, complaints about colleagues were not matters of public concern entitled to First Amendment protections. “Complaining about and insulting your coworkers simply doesn’t implicate a matter of public concern.”

According to the Court’s decision, the plaintiff tenured professor requested to be considered to Chair a dormant Center that had been suspended pending a reorganization.  Although the position was not open, the Dean agreed to reallocate half of the plaintiff’s teaching load so that the plaintiff could develop new course material for the dormant Center if it were to be resurrected.  The plaintiff was contacted by the Chair of the School where the Center would be housed about joining the planning committee.  The plaintiff was unhappy that the Dean and Chair would be in charge of the Center and began attacking them – using profanity and derogatory terms about their gender – on social media and in emails to other colleagues. “So to sum up, Patterson condemned both Mazzei and Munro-Stasiuk as “transphobe[s]” and “cishet white ladies in charge, with [no] content expertise,” engaged in “F*ckery,” “shit,” “trans antagonism,” and “epistemic violence” who were “quite literally killing [me].”   After a few weeks of this and plaintiff’s refusal to meet and discuss the stated concerns, the Dean cancelled the planned teaching allocation.   The plaintiff did not respond, but cancelled “and instead resigned from university service commitments.”  The Chair issued general invitations to join the gender studies and Center committees, but the plaintiff did not respond.  Instead, the plaintiff bullied those who did join the committee through tweets and applied to transfer to the main campus.  The requisite committees held a joint meeting, discussed the plaintiff's resignation from service, negative interaction with faculty colleagues and the department’s need and voted 12-2 against the transfer request.  The Dean requested that they reconvene and vote separately, which they did.  The result was the same and the plaintiff’s gender identity was never mentioned.

Title VII Discrimination

The Court rejected the plaintiff’s argument that denial of the transfer request was direct evidence of gender discrimination when there was no evidence that the plaintiff’s gender identity was ever mentioned or discussed.   Because an inference of discrimination would be required, the decision could not be direct evidence in and of itself.

[The plaintiff] also points to the committees’ discussion of whether the English department needed more faculty with backgrounds in LGBT studies, claiming that this is direct evidence of discrimination. That argument conflates a professor’s scholarly discipline with a professor’s personal traits.  . . . . An Italian person may offer to teach Italian classes, but if a university doesn’t need more Italian classes, that’s not direct evidence of animus against Italian people. So there’s no direct evidence of discrimination.

The Court agreed that the denial of the transfer request could be an adverse employment action under Title VII because it inflicted some harm.   Nonetheless, the employer clearly had a legitimate and nondiscriminatory reason for its actions in revoking the teaching reallocation and denying the transfer request:

[The employer] had legitimate, nondiscriminatory reasons for what it did. [The plaintiff] sent rude and profanity-laced tweets, emails, and texts insulting [the Dean] and [the Chair], including disparaging references to their race, sex, and occupations. Those messages violated university policy against attacking colleagues or their academic fields. And they easily provided reasonable grounds—having nothing do to with sex or gender—for disciplining or reprimanding an employee. . . .

[The employer] also had legitimate reasons to deny the campus tenure-transfer application. The evidence shows that [the plaintiff’s] lack of collegiality and decision to quit university service committees played a part. The classes [the plaintiff] wanted to teach also didn’t fit with the main campus English department’s curriculum and needs at that time. And the department wanted to preserve its ability to hire a new tenure-track professor the next year; it worried that a lateral hire from a regional campus would use up that spot. This is standard stuff for tenure decisions.

The Court finally concluded that the plaintiff could not show that these explanations were pretextual – or a disguise - - for unlawful discrimination.  “A plaintiff can establish pretext in several ways, such as by showing that the defendant’s articulated reasons had no factual basis, didn’t in fact motivate the action, or could not warrant the action taken.  . . . But there’s no evidence here to support any of those theories.”

[The employer’s] decisions had ample basis in fact. The record contains many disparaging tweets, emails, and texts, which led to a toxic work environment. And that factual basis was more than enough to warrant some kind of response. [The Dean and the Chair] were both originally excited to work with [the plaintiff]. They only changed course after the hostile tweets and texts. The tenure-transfer rejection likewise bears no indicia of pretext. The same English department had voted to unanimously to grant [the plaintiff] tenure less than a year before. If the committee members were biased against transgender people, wouldn’t they have shown it then? What’s more, after the committees voted “no” on the first transfer vote, [the Dean] realized that they hadn’t followed the right procedures. So she had them vote again. If she was biased, why not just leave the “no” vote at that? Why erase the vote and give [the plaintiff] another shot? No evidence suggests that [the employer’s] true motivation was animus against anyone’s sex or gender identity.

Title VII Retaliation

The Court also rejected the Title VII retaliation claim.  It agreed that the plaintiff could show protected opposition activities:

First, an email to a university official, Amoaba Gooden, in which [the plaintiff] resigned as a university DEI representative and complained that [the employer] wasn’t a “safe or welcoming place for trans faculty.”  . . .  Second, an email to Professor M’Baye, the English department chair, in which [the plaintiff] stepped back from service on a university “DEI Strategic Planning Process.”  . . . . Third, an email to Kathy Davis-Patterson, another faculty member, in which [the plaintiff] reported on “inequity” and “transphobes” at [the employer].  . . . . Fourth, an email to Deb Smith, who worked with the faculty union. In this email, [the plaintiff] resigned as a union representative, citing “inequity and discrimination in the workplace” at [the employer]. . . .

However, the second email never mentioned any protected activity or opposition, but instead, cited only health concerns.   Therefore, it could not be a protected activity.  In addition, the plaintiff could not show that the Center position had been filled by anyone, so there was no adverse action there.  Moreover, some of the protected activities took place after the Dean had revoked the teaching reallocation.  Finally, the remaining emails were unknown to the Dean and the tenure committees.  when the teaching reallocation was revoked.    Therefore, they could not have motivated any retaliation.

First Amendment

As for the First Amendment claims, the Court found that the plaintiff’s derogatory tweets did not touch on matters of public concern, but rather  were “complaints about other Kent State faculty members and their workplace decisions—“employee beef,” plain and simple,” which are not entitled to First Amendment protection. “The tweets are insulting, disparaging, and targeted. They use profanities, and they describe [the Dean and Chair] in terms of their race and sex. Complaining about and insulting your coworkers simply doesn’t implicate a matter of public concern.”

[The plaintiff] frames the tweets as publicizing [the employer]s alleged transphobia and exposing discrimination in the workplace. In fairness, a few tweets do make more general references that sound less like targeted insults. For example, one tweet states: “Academia is fundamentally racist, heterosexist, cissexist, ableist, classist & sexist.”  . . . . In isolation, perhaps that qualifies as protected speech.  . . . . But the tweet is swarmed on either side by other attacks on [the Dean and Chair]. Indeed, that same tweet’s very next sentence accuses [the Chair] of “violen[ce].”  . . . . A public employee can’t blend protected speech with “caustic personal attacks against colleagues,” and then use the protected speech to immunize those attacks. . . .

And even if the tweets did involve a matter of public concern, they still wouldn’t receive protection. [The employer’s] interest as an employer in administering effective public services outweighs Patterson’s interest in this kind of trash talk. . ..

There’s a way to raise awareness of discrimination without engaging in profanity-laced and race- and sex-based aspersions against colleagues. The tweets created serious strife within the [the employer] community, causing [the Dean and Chair] to feel harassed and insulted. And it led to a dysfunctional work environment for several months. [The Chair] had to text [the Dean], for example: “I’m really thinking continuing [having [the plaintiff] involved] is unhealthy for the potential program and school, at this point. It’s clearly already having an impact. I have concerns.”  . . . . [The Dean] also testified to how noxious things had gotten. “The foundation of [revoking the offer],” she stated, “was the toxic, hostile tweets that [the plaintiff] had been posting over the course of over a month . . . . [I]t was escalating, continually targeting [the Chair], in particular, continually targeting [other professors], to a certain extent myself.”  . . . . The Dean discussed how [the plaintiff] had “show[n] over, and over, and over again” a refusal to be collaborative or respectful and was “completely trying to undermine the process.”  . . . . In short, [the plaintiff] had compromised any “ability to lead any initiative” and any “ability to work in the Center, or the [major.]”

[The employer’s] business is educating students. When an employee seriously undercuts the university’s power to do its basic job, the Constitution doesn’t elevate the employee over the public that [the employer] exists to serve. All told, “[t]he First Amendment does not require a public employer to tolerate an embarrassing, vulgar, vituperative, ad hominem attack, even if such an attack touches on a matter of public concern.”  . . .  When “the manner and content of an employee’s speech is disrespectful, demeaning, rude, and insulting, and is perceived that way in the workplace, the government employer is within its discretion to take disciplinary action.”

Rehabilitation Act

Finally, the Court rejected the plaintiff’s disability discrimination claim at the prima facie stage because it was based on one stray comment where concern was expressed by another professor about the plaintiff’s mental stability.

This isolated comment is not the kind of evidence that courts have found satisfies the “regarded as disabled” definition. “Personality conflicts among coworkers (even those expressed through the use (or misuse) of mental health terminology) generally do not establish a perceived impairment on the part of the employer.”  . . . . [The professor’s] remark simply expressed her concern about [the plaintiff’s] uncollegial and unprofessional attitude. At most, it is a “mere scintilla” of evidence—insufficient to survive summary judgment.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.