by Carrie Pond
A Kentucky federal court recently dismissed a claim of hostile work environment racial harassment because the employee failed to show the harassment was race-based. Despite allegations that, if believed, demonstrated the employee’s supervisor “treated [her] very badly,” she failed to establish that the treatment was racially motivated. 
Facts
Marilyn Harris, who is African-American, started working for Burger King in November 2005. In December 2006, Gina Priest began to manage the store. According to Harris, Priest subjected her to alleged mistreatment, including:
- Intentionally stepping on her foot;
- Aggressively walking up to her on more than one occasion;
- Yelling at her in front of customers when Priest erroneously believed she had returned to work without a required doctor’s note and when Priest was looking for the store phone, but rarely, if ever, yelling at white employees;
- Refusing to let her go home when she was experiencing unusual menstrual discomfort;
- Never speaking to her, even when Harris spoke to her, but speaking to white employees;
- Ignoring her concerns about heat, leading her to faint from heat exhaustion;
- Giving her and other black employees lower scores on their evaluations; and
- Cutting her hours in favor of white employees.
After Harris complained about the mistreatment, the regional manager investigated but determined there was no discrimination. Because of her conflicts with Priest, however, the regional manager offered Harris a transfer to a different store, which she accepted.
Harris experienced no discriminatory treatment at her new workplace. However, following surgery, she missed work for eight months, and automated timekeeping records coded her as abandoning her position. When the company wouldn’t rehire her, she filed a lawsuit. In addition to other claims, she alleged hostile work environment and racial harassment.
Court’s decision
To demonstrate a racially hostile work environment, an employee must first show that she experienced unwelcome behavior and that the alleged harassment was based on her race. If there is no direct evidence that the harassment was based on her race, the employee can offer comparative evidence showing how the alleged harasser treated members of both races in a mixed-race workplace. Ultimately, the employee must show that the harassing conduct wouldn’t have taken place but for her race.
The court ruled that while Harris demonstrated that her supervisor engaged in unprofessional behavior that was rude or obnoxious, she hadn’t proven that any of Priest’s actions were race-based. In addition, there was no evidence that the evaluation scores were used to determine employee raises, nor did Harris show that her hours were reduced because of her race. The court accepted Burger King’s explanation that other employees were awarded more hours because they had requested them and Harris had not.
Ultimately, Harris’ own subjective belief that the harassment was racially motivated was insufficient to show causation. Harris v. Burger King Corp., Civil Action No. 3:11-CV-708-H, 2014 WL 68089 (W.D. Ky., Jan. 8, 2014).
Bottom line
This case illustrates two valuable points. First, an employee’s “speculation” or “personal belief” about racial animus isn’t evidence. The case won’t make it to trial if the employee merely “believes” she was subjected to discrimination. She must offer proof. Second, having a mean or rude supervisor isn’t evidence that supports a lawsuit. Discrimination laws don’t establish a “general civility code” or “code of manners” for the American workplace. They prohibit discrimination.
Carrie Pond is an attorney with Frost Brown Todd LLC in Louisville, Kentucky. She may be contacted at cpond@fbtlaw.com.