A factory worker sued her employer, alleging the company discriminated against her based on her race by allowing a hostile work environment to pervade its manufacturing plant. She also claimed it retaliated against her for accusing a coworker of tampering with her machine. Let’s take a look at how the U.S. 4th Circuit Court of Appeals (whose rulings apply to all South Carolina employers) decided the issue.
Facts
Laverne McIver, a black female, worked for Bridgestone Americas Tire Operations in Wilson, North Carolina, beginning in 1996. During her employment, several incidents of clear racial bias/discrimination occurred. One involved a noose being found on the machine of two black employees in another department in 2006. McIver didn’t see the noose personally but did see a picture of it. The person who hung it, however, was a white coworker on her team.
In 2008, McIver alleged that one of her coworkers caused the machine she worked on to malfunction. She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) in 2009.
Between 2009 and 2013, McIver didn’t personally experience any more racial animus, but other racial incidents occurred at Bridgestone. In either 2012 or 2013, two racist caricatures of Trayvon Martin were drawn in bathrooms. The first drawing appeared in the men’s bathroom of the MTS department. She viewed the drawings after someone told her about them. At another point, two monkeys made of tire tubing were found hanging from machines in Bridgestone’s tubing department. The exact date of those incidents is unclear, but both occurred much earlier than 2018.
In 2013, McIver filed a complaint with Bridgestone’s company complaint line alleging someone was tampering with and sabotaging the MTS machine she worked on. She believed someone was changing the settings on her machine overnight to make them incorrect. She filed a second EEOC charge in 2014.
Like her internal claims from 2013, McIver alleged the settings on her machine were often incorrect at the beginning of her shift, and she accused the workers on the prior shift of configuring the settings incorrectly to mess her up. Then in 2018, on three occasions, she found grease on the buffer arm of her machine (where grease shouldn’t appear).
Company Discipline
Unrelated to the racist incidents, Bridgestone management and HR personnel met with McIver in April 2018 to deliver Phase 1 coaching. Phase 1 coaching is the lowest level of corrective action at the company and serves only to identify areas of improvement. It doesn’t involve any punishment.
McIver refused to sign a document acknowledging the Phase I corrective action. Bridgestone was concerned about her conduct during the coaching meeting and didn’t feel comfortable allowing her to return to work. Management decided to suspend her—with pay—for several days while it determined the best response. The company believed her teamwork issues would be resolved if she worked on a one-person machine, so seven days after suspending her, it gave her two options: transfer to another department, where she wouldn’t need to work with a teammate, or resign and receive three months’ severance pay. McIver accepted the transfer.
In October 2018, McIver filed an EEOC complaint related to her transfer. The agency granted her a right-to-sue letter.
Court’s Decision
McIver filed suit, alleging Bridgestone created a hostile work environment and retaliated against her. The district court ruled in the company’s favor without a trial. She appealed.
On appeal, McIver argued the district court wrongly concluded that her hostile work environment claim wasn’t supported by evidence of severe or pervasive racial harassment. She also argued her retaliation claim was based on a reasonable belief that the tampering of her machine was because of her race and her transfer in 2018 was causally related to her complaints.
McIver’s arguments largely failed. According to the appeals court, she presented no evidence that would allow a jury to conclude any tampering that occurred in 2018 was based on her race.
The 4th Circuit outlined the standards employers must be aware of when addressing reprehensible conduct not committed by a supervisor. A hostile work environment claim will succeed only when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
Unlike a typical claim of intentional discrimination based on a discrete act, a hostile work environment claim’s very nature involves repeated conduct. The severe or pervasive conduct that gives rise to an abusive work environment must be both objectively and subjectively hostile and abusive.
Objective analysis of whether a workplace is hostile and abusive looks at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or just a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. And the ultimate inquiry is whether the conduct is so extreme that it amounts to a change in the terms and conditions of employment. Even conduct that would objectively cause hurt feelings or offense isn’t enough to be severe or pervasive. The inquiry into objectively severe or pervasive abusive conduct must focus on the events the employee personally experienced.
Experiences of third parties about which the employee was unaware shouldn’t be considered in evaluating a hostile work environment’s severe or pervasive requirement. But conduct directed at others is relevant if the employee knew of the conduct.
The status of the harasser is also a significant factor to consider. Harassment by a supervisor tends to be more serious, while harassment by a coequal is less serious.
Large temporal gaps between allegations undermine a hostile work environment claim. When allegations are remote in time relative to each other and to the adverse employment action, the evidence doesn’t prove the conduct is pervasive enough.
Ultimately, the 4th Circuit determined McIver failed to show that any tampering, if it occurred, was based on her race. It affirmed the lower court’s dismissal of her lawsuit. Laverne McIver v. Bridgestone Americas, Inc., No. 20-2310 (4th Cir., 2022).
Bottom Line
Unlike obviously racist comments or imagery, tampering isn’t inherently race-based—and therefore couldn’t contribute to a hostile work environment claim. McIver failed to make that connection. As the 4th Circuit concluded in its opinion, the “vestiges of racist conduct in the workplace do not transform every workplace disagreement into a cognizable [discrimination] claim for all time.”
Richard J. Morgan is an attorney with Burr & Forman LLP in Columbia, South Carolina. You can reach him at rmorgan@burr.com.