Thursday, April 9, 2015

5th Circuit Holds SIngle "Hitler Comment" and Subsequent Complaint Are Not Protected Activity Under Title VII

The plaintiff, Courtney Satterwhite, was hired by the City of Houston in 1993 as an Assistant City Controller I.  As of March 2010, Satterwhite had made her way to Assistant City Controller V.  Her coworker, Harry Singh, was the Deputy Director of the Controller's Office, but was not Satterwhite's direct supervise in March 2010.

During a March 22, 2010 meeting attended by Singh, Satterwhite, and others, Satterwhite asserts that Singh used the phrase “Heil Hitler,” while Singh maintains he said, “you know, we’re not in Hitler court.” After the meeting, Satterwhite informed Singh that another city employee, Daniel Schein, was offended by Singh’s remarks. Although Singh apologized to Schein and Schein declined to file a formal complaint, Satterwhite reported the incident to the Deputy Director of Human Resources, who reported it to the City’s Chief Deputy Controller, Chris Brown. Brown verbally reprimanded Singh. After his verbal reprimand, Singh approached Schein to inquire why he had reported the incident to Brown. Schein informed Singh that Satterwhite had reported the comment.

In June 2010, Singh was promoted to Acting Deputy City Controller and then became Satterwhite's direct supervisor.  In response to Singh's promotion, the City Controller’s Office and the City Office of Inspector General (OIG) received identical letters from two individuals claiming to be members of the Anti-Defamation League. The letter complained of the “Heil Hitler” incident involving Singh and Singh’s later promotion.  The OIG investigated and concluded Singh's comments violated an executive order of the mayor of Houston prohibiting city employees from using “inappropriate or offensive racial, ethnic or gender slurs, connotations, words, objects, or symbols.”

After becoming Satterwhite's direct supervisor, over the following several months, he disciplined Satterwhite on multiple occasions.  On September 21, 2010, Satterwhite sent Singh an email expressing his belief that Singh’s reprimands were retaliation for having reported the “Heil Hitler” incident. Shortly thereafter, Singh, pointing to Satterwhite’s verbal and formal reprimands, recommended to City Controller Ronald Green that Satterwhite be demoted.

Satterwhite was allowed to defend himself against the demotion recommendation at a hearing.  At this hearing, Satterwhite argued that Singh was retaliating against him for reporting the “Heil Hitler” incident.  However, Satterwhite was still demoted.  

Satterwhite subsequently filed a complaint with the EEOC, and after receiving notice of his right to sue, brought suit in the district court alleging unlawful retaliation under Title VII and the TCHRA. The district court granted summary judgment to the City because Satterwhite could not establish that his reports of the “Heil Hitler” incident were a but-for cause of the demotion.  The Court of Appeals for the Fifth Circuit Agreed and Affirmed.

The 5th Circuit's Decision

To set out a prima facie case of retaliation under Title VII, an aggrieved employee must show: “(1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action.” 

The district court granted summary judgment because they held Satterwhite could not establish the third element: a casual link between the protected activity and the adverse employment action, but the 5th Circuit affirmed because they held Satterwhite had not shown the first element: he engaged in an activity protected by Title VII.

Satterwhite asserts that he engaged in two distinct protected activities: (1) making an oral report to human resources that Singh used the phrase “Heil Hitler” in a meeting, and (2) answering questions in connection with the OIG’s investigation of the “Heil Hitler” incident. While Satterwhite’s actions could qualify as opposing under 42 U.S.C. § 2000e-3(a),  for his actions to be protected activities Satterwhite must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII. 

The 5th Circuit held that "no reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII."  As case law has made clear in the past, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII.  

The case is Satterwhite v. City of Houston, No. 14-20240, Fifth Circuit Court of Appeal (March 3, 2015).

No comments:

Post a Comment