Citing “Vulgar Racial Language” and More Lenient Treatment of White Employees, Court Denies Summary Judgment on Plaintiff’s Race Discrimination and Hostile Work Environment Claims

In Kemp v. CSX Transp., Inc., the Northern District of New York recently denied defendant’s motion for summary judgment on plaintiffs’ racially hostile work environment and disparate treatment claims.

As to plaintiffs’ hostile work environment claims, the court held:

Plaintiffs allege that they were subjected to vulgar racial language throughout their employment and often viewed racial slurs and Confederate flags displayed prominently on walls of regional offices. They also point to several specific employees who used racial slurs in their presence on specific occasions. Some of these allegations involve the repeated and abusive use of vulgar slurs in the presence of supervisors who did nothing to stem the use of such language. These allegations are supported by plaintiffs’ deposition testimony as well as declarations from non-party witnesses.It is undisputed that CSX had harassment policies in place and an Ethics Hotline through which plaintiffs could have lodged complaints of racial discrimination. However, there is evidence in the record suggesting management failed to take appropriate remedial action after learning of incidents of harassment and instead punished minority employees who complained of discrimination. Indeed, former employee Timothy Muttari claims that he overheard Assistant Terminal Superintendent Gene Payne, Jr., tell a co-worker that he planned to charge an African–American employee with a minor infraction and have him terminated because that employee complained of Payne’s racist remarks.

Plaintiffs further allege that they were suspended and/or terminated while non-minority workers were not punished as severely for similar infractions. Finally, McKay and Burkett have detailed incidents of physical violence in the workplace, which they suggest was influenced by racial animus (or at least the response to such incidents was allegedly influenced by discrimination).

Viewing the totality of the circumstances in the light most favorable to plaintiffs, there is sufficient admissible evidence in the record to establish issues of material fact as to whether they were subjected to a hostile work environment of which CSX management was aware but failed to mitigate. Accordingly, defendant’s motion for summary judgment on plaintiffs’ hostile work environment claims will be denied.

The court also ruled in plaintiffs’ favor on their race-based disparate treatment claims, holding that there was sufficient evidence to establish issues of material fact on the issues of whether defendant’s proffered reasons for the adverse actions were merely a pretext for discrimination, and whether one plaintiff was constructively discharged.

For example, one plaintiff, Kemp, “identified several white co-workers with allegedly comparable absenteeism records who either were not terminated or were granted a leniency reinstatement”, which “presents an issue of fact as to whether CSX treated similarly situated white employees more leniently than Kemp and whether his termination for absenteeism violations was merely a pretext for discrimination.”

The court also denied defendants’ motion to preclude plaintiff’s expert, Jamie Modesitt, ruling that defendant’s challenge went to the weight, rather than the admissibility, of his testimony. It observed that defendant’s counsel “can subject Modesitt’s methods and conclusions to rigorous cross-examination, attempt to highlight any alleged bias, question the propriety of his application of the IDPAP and Absenteeism Policy, and make appropriate objections to his testimony at trial.”

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