Myron Canady v. Wal-Mart Stores, Inc.

LAY, Circuit Judge,

dissenting.

I respectfully dissent. The majority opinion sets a new and dangerous precedent for this circuit. It should be overruled. The majority overlooks that summary judgment is a disfavored standard which “should seldom be utilized” in employment discrimination cases. Pope v. ESA Servs., Inc., 406 F.3d 1001, 1006 (8th Cir.2005). As long as a reasonable jury could find that Canady was the victim of a racially hostile work environment and was terminated under circumstances that create an inference of unlawful discrimination, we are obligated to allow both his claims to be submitted to a jury. Id. In this case, there is more than ample evidence to submit both claims to a jury.

*1036Regarding Canady’s hostile work environment claim, this is not a case where a singular, isolated comment is the source of plaintiffs action. The facts show that Ca-nady’s immediate supervisor, Assistant Manager Paul Smith, a Caucasian, repeatedly called Canady a “lawn jockey” and used the word “nigger” in front of Canady and other employees. The term “lawn jockey” is especially offensive and, given Smith’s “repeated” use of this term, coupled with his use of the word “nigger,” there is enough evidence to demonstrate Canady was the victim of a hostile work environment. See Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 357 (8th Cir. 1997). Smith also engaged in further racially inappropriate behavior. On one occasion, Smith greeted Canady with the phrase, “What’s up my nigga?” in an apparent attempt to make a joke by quoting a movie line. During his initial meeting with Canady, Smith described his management style as that of a “slave driver.” Smith also told Canady and another African-American employee that a black man’s skin color rubs off on a towel when he sweats. Finally, Smith remarked to another African-American employee that “African-Americans all look alike.”2 Although this statement was made outside Canady’s presence, hostile work environment claims are assessed based on the totality of the circumstances, taking into consideration the nature of the workplace environment as a whole. Therefore, “evidence of harassment directed at other coworkers can be relevant to an employee’s own claim of hostile work environment discrimination.” Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2d Cir. 2001).

In Ross v. Douglas County, 234 F.3d 391 (8th Cir.2000), this court upheld a jury’s hostile work environment finding where, during the final two years of plaintiffs seven-year employment tenure, his supervisor repeatedly addressed him as “nigger” and “black boy.” Id. at 396-97; see also Ways v. City of Lincoln, 871 F.2d 750, 755 (8th Cir.1989). Similarly, Canady was repeatedly called a racially humiliating epithet by his supervisor. Harassment by a supervisor “has a greater power to alter the environment” than similar actions of mere co-workers. Hocevar v. Purdue Frederick Co., 223 F.3d 721, 728 (8th Cir. 2000). In contrast to the plaintiff in Ross, Canady was the victim of Smith’s racial harassment from the very onset of his short employment with Wal-Mart, when Smith first described himself to Canady as a “slave-driver.” Although this comment, by itself, may be innocuous, Smith’s subsequent statements suggest this remark may well have been tinged with a racial animus. Finally, Smith’s harassment was concentrated over a seven-month period.

I take issue with the majority’s conclusion that Smith’s apology to Canady for saying ‘What’s up, my nigga?” in some way absolves Smith for making this improper remark. Although apologies, to be sure, must be factored into the hostile work environment calculus, they are by no means a panacea for harassment that has already occurred. Moreover, the significance of Smith’s apology in this instance is minimal. In addition to this statement, the record indicates, and I have already highlighted, how Smith repeatedly made reference to Canady using highly inappropriate and offensive racial remarks. Yet at no time did Smith apologize for these statements. Therefore, I respectfully disagree with the majority. Smith’s apology, in this instance, does little to change the severity or pervasiveness of the racial harassment Canady was forced to endure.

*1037Regarding Canady’s racial termination claim, the above-mentioned facts provide enough evidence to make out both a prima facie case of discrimination and to show that Wal-Mart’s proffered legitimate, nondiscriminatory reason for Canady’s termination is merely pretextual. The “burden of establishing a prima facie case of disparate treatment is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The majority assumes Canady has failed to demonstrate a prima facie case because he did not show that similarly situated white employees were treated differently than he. However, “evidence of disparate treatment is not the exclusive means by which a plaintiff may establish an inference of discrimination.” Allen v. Interior Constr. Servs., 214 F.3d 978, 982 (8th Cir.2000). Instead, this court may properly consider “any credible evidence tending to establish that an employer acted adversely to an individual ‘on account of his disability.’” Id. Here, the allegations detailing Smith’s racially discriminatory conduct provide enough evidence from which a reasonable jury could infer that Canady was terminated under circumstances giving rise to an inference of unlawful discrimination.

There is also enough evidence to show that Wal-Mart’s allegedly legitimate reason for Canady’s termination was pretex-tual. Canady may “rely on the same evidence to prove both pretext and discrimination.” Brandt v. Shop’n Save Warehouse Foods, Inc., 108 F.3d 935, 939 (8th Cir.1997). The nature, frequency, and gravity of the facts alleged are sufficient, in my opinion, from which a reasonable jury could infer pretext. The majority’s decision also runs contrary to a recent unanimous opinion by the United States Supreme Court, where the Court held that a supervisor’s use of the word “boy,” given the proper context, inflection, and tone of voice used, could be offered as evidence to infer pretext even though the word was not used with any accompanying modifiers or qualifications. Ash v. Tyson Foods, Inc., 546 U.S. -, 126 S.Ct. 1195, 1196, 163 L.Ed.2d 1053. Here, the record is replete with evidence of racially malign terms uttered towards Canady that are significantly more serious than those used to show pretext in Ash. The majority also errs by concluding that Canady fails to demonstrate pretext because Smith was not involved in the decision to terminate Canady. A reasonable jury could infer, however, that Smith, as a supervisor and member of management at Wal-Mart was, in some capacity, involved in the decision to terminate Ca-nady. For example, according to Cana-dy, he requested that Wal-Mart relocate him to another department due to Smith’s behavior. Canady frequently asked the store manager, Marian Kirch, about the status of his transfer request. Mr. Kirch was the manager who ultimately fired Canady for the “orange incident.” Finally, the factual underpinnings of the “orange incident,” upon which the majority relies to show that Wal-Mart’s termination of Canady was legitimate, are disputed in Canady’s affidavit. Canady denies disrespecting any member of Wal-Mart management. He also denies knowingly engaging in any form of insubordination. Such denials are sufficient to create genuine issues of material fact, the resolution of which lies within the exclusive domain of a jury.

I respectfully dissent.

. The instances of misconduct cited in this dissent involve either specific instances of Smith's misconduct or a corroborated pattern of misconduct by Smith.