St. Louis Record

Thursday, October 17, 2019

Judge denies move to dismiss hostile work environment claim filed by woman who alleged worker with Tourette's syndrome used racial slur

Federal Court

By Charmaine Little | Sep 17, 2019


ST. LOUIS – A district federal court in Missouri has denied a motion to dismiss claims of a hostile work environment in a suit filed by an employee who alleged a co-worker with Tourette’s syndrome repeatedly called her a racial slur.

On Aug. 29, Judge Audrey G. Fleissig of the U.S. District Court for the Eastern District of Missouri’s Eastern Division granted in part and denied in part Orthopedic Associates LLC’s motion to dismiss or judgment on the pleadings in plaintiff Tiffany Evans’ case against it.

Evans, who is an African-American woman, sued via Title VII of the Civil Rights Act and the Missouri Human Rights Act, alleging that she suffered a hostile work environment when a colleague, S.B., constantly yelled inappropriate slurs. She alleges S.B. would call her a derogatory slur several times a day. She alleges she recorded an instance when S.B. called her the slur 18 times in 6 minutes. 

Evans said she complained to Orthopedic Associates, which responded by separating the two employees and giving them separate lunch breaks. But Evans alleged that it wasn’t enough, and the alleged harassment continued until she was eventually discharged in February 2018. She later sued, and Orthopedic Associates responded and said Evans failed to prove she suffered a hostile work environment and retaliation. 

Fleissig only partially agreed.

Regarding hostile work environment claims, Fleissig pointed out that Evans said she was called the slur several times on the job.

“Court fails to see how such language could derive from something other than race, whether consciously or unconsciously, and regardless of the speaker’s filter or lack thereof,” she wrote. "S.B.’s disability did not make the word any less subjectively offensive to plaintiff."

The judge also noted that the plaintiff alleged the defendant excused S.B.'s conduct, told the plaintiff not to take it personally, and failed to resolve the matter.

"Defendant fails to cite precedent for its suggestion that, in order to survive a motion to dismiss, plaintiff must specifically identify what remedial action should have been taken," Fleissig wrote. "Plaintiff has sufficiently pleaded that defendant knew of S.B.’s conduct and failed to respond in an effective manner."

The judge agreed with the defendant on the retaliation claim as Evans failed to prove it properly. While Fleissig disagreed with the defendant’s argument that S.B’s conduct was not racially motivated, Fleissig added that she “must agree that plaintiff’s complaint fails to sufficiently plead that defendant deliberately created intolerable conditions in reaction to her reports to management, with the intention of forcing her to quit."

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