After appeal revived claim, white jail employee who complained of racial slur gets trial

By Brandi O. Brown, J.D.

After the Third Circuit reversed a district court’s grant of summary judgment against the Title VII retaliation claim of a white employee who alleged he was fired after complaining that a colleague had called his biracial grand-niece a “monkey,” the federal district court in Pennsylvania found his claim should go to a jury. The appeals court determined that the employee had engaged in protected activity and district court found fact disputes prohibiting summary judgment on the remaining aspects of his retaliation claim (Kengerski v. County of Allegheny, October 19, 2021, Ranjan, N.).

Called her a “little monkey.” As described in the Third Circuit’s opinion, in 2015, the employee, a captain at a county jail, complained to the warden that a newly promoted superior previously had made a racist comment about his relative, whom he had stated he might be taking care of in the future. Among other things, the superior asked him if his grand-niece was black and when he responded that she was biracial, she stated that the employee “will be that guy in the store with a little monkey on his hip like” another jail employee who has a biracial child. The employee then “asked her not to speak like that about [his] situation” and left the room. He also contended that she sent racially offensive text messages to him.

Fired, sued. His complaint about the major was referred to the county’s law department and seven months after his complaint, he was fired. He contended that the real reason was that he had reported his superior, a major, and caused her to resign three months before his termination. He filed suit and the district court initially granted the employer’s motion for summary judgment, concluding that the employee’s retaliation claim failed as a matter of law because the employee, who is white, could not maintain a claim for Title VII retaliation.

Judgment for employer reversed. The employee appealed and the Third Circuit reversed. “Title VII protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint,” the appeals court explained, agreeing with its sister circuits that have held that associational discrimination is well grounded in the text of Title VII. It remanded the case to the district court to consider the sole remaining issues—whether there was a causal connection between his protected activity and termination and whether the employer’s given reason for the latter was legitimate or pretextual.

On remand, the district court concluded that the issues of causation and pretext were “overwhelmed by factual disputes” and require a jury to weigh the evidence and witness credibility. It also concluded that the employee presented sufficient evidence to survive summary judgment.

Causation and pretext. Regarding causation, the court considered, as the appeals court had emphasized, “the circumstances as a whole” and whether the employee showed a causal connection with evidence of intervening antagonism, inconsistent explanations, or other circumstantial evidence supporting an inference of a causal connection. “Causation is a fact-specific and contextual determination,” the court explained, as is pretext. To survive summary judgment on pretext, the employee must show evidence from which a factfinder could either disbelieve the employer’s articulated reasons for its actions or believe that a discriminatory reason was more likely than not a motivating or determinative cause of the action.

The evidence showing both could be the same, the court explained, and in this case, there were multiple factual disputes and credibility determinations to resolve in the overlapping evidence. For example, the court noted, the parties disputed whether the warden and deputy warden ignored, because of animus, the employee’s legitimate complaints and requests following his initial complaint. They also disputed whether he became a target in the workplace because of his protected activity and whether the wardens knew about this but ignored it.

Slow, but then quick to investigate him. The employee also pointed to the fact that while the wardens were slow to investigate any of his complaints, they were quick to investigate him when an accusation was made against him. It was disputed whether they investigated him differently from others by not obtaining a pre-termination report or response from him when he was accused of sexual harassment. There was competing evidence regarding whether he was held to a different standard, including whether the “zero-tolerance policies” were enforced more harshly and strictly on him.

Warden’s credibility in question. Moreover, the court noted, the jury needs to assess the credibility of various witnesses, including the warden. In this regard, the jury could conclude that the warden’s account of his decisionmaking was not credible under the circumstances and timeframe. The court emphasized that this was “not an exhaustive summary of the factual disputes material to the issues of causation and pretext” but reiterated that there were genuine disputes and sufficient evidence for the employee’s claim to survive summary judgment.