Oh Boy!

After a long history of rejection, a plaintiff has prevailed in the Eleventh Circuit, in part because the Court did not again reject, as not probative of discrimination, that a white supervisor referred to him as "boy." We have previously posted about this case here.

Res judicata does not bar subsequent retaliation claim

The 11th Circuit just decided an interesting FLSA retaliation case. The plaintiffs filed suit  concerning overtime violations. Subsequently, after the initial suit was filed, the plaintiffs filed a second suit alleging retaliation occurring after the filing of the original claims. Because there was no amendment or subsequent pleading asserting the second claim in the first suit, disposition of the first suit did not bar the second suit as res judicata.

Hostile environment claim fails

Calling an African-American employee "boy" even on multiple occasions, is not sufficient evidence to withstand summary judgment according to the Eleventh Circuit. Hat tip to the Workplace Prof Blog. More after the jump
Alexander v. Opelika Pub. Schs., No. 08-11014 (11th Cir. 11/10/09) is an unpublished opinion which upholds summary judgment against an employee who claims

that he was called “boy” constantly, but could only recall eight specific instances over the course of two years where he was called “boy.”  Second, in examining the severity of the alleged conduct, the most severe comment was made by his supervisor about how to tie a noose around a person’s neck.  This comment, however, was not directed toward Alexander, and Alexander testified that he did not know whether this comment referred to black people.  Further, none of the alleged racial comments contained threats of physical violence, and he did not demonstrate that the comments interfered with his job performance.

Based upon this showing, the Court concluded there was not sufficient evidence presented for a reasonable person to conclude that the harassment was frequent or severe. This case underscores the hesitancy federal courts have to find intentional discrimination when confronted with workplace insensitivity. It seems the unspoken rule is, that absent some objective showing actual job performance is adversely affected by the alleged harassing event, summary judgment is appropriate. A black worker being called "boy" by his supervisor and co-workers on 8 specific occasions, and additionally on occasions which the employee had no specific memory is not pervasive harassment.