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Hostile Work Environment Claim Can Proceed Based Upon Derogatory Comments and Talk of Cross Burning


Hudson v. Leavenworth County Sheriff's Office - United States District Court, District of Kansas


Facts:  Michael Hudson ("Hudson") was an African American employee at Leavenworth County Sheriff's Office ("Leavenworth") beginning in 2006.  Several instances happened during Hudson's employment that formed the basis of his claims against Leavenworth:

In 2009 when Hudson spoke with a supervisor, Sergeant Ed Cummings, about moving to a house in Leavenworth County, Sergeant Cummings said "why don't you move in that house up the street from me so when them boys start burning crosses in your yard I can come help."  Sergeant Cummings was subsequently suspended for three days without pay but remained a supervisor to Hudson.

In 2011, Hudson complained to another African American employee, Officer William Francis, about a confederate flag license plate on an employee's car in the parking lot.  After Francis took the complaint to his supervisor, the employee who had the confederate flag plate agreed to remove it.  However, Sheriff David Zoellner requested that Hudson be issued a written reprimand for going outside the chain of command and causing a potential violation of First Amendment rights.

In 2012, Sergeant Cummings conducted a review of Hudson's work.  Although Hudson had apparently received "exceeds expectations" ratings previously, Sergeant Cummings rated Hudson as "meets expectations". 

In 2013, Hudson requested to take a personal day off work so he could dig his way out of a snow storm since his street had not been plowed.  That afternoon while Hudson was inside his house taking a break, an unmarked patrol car drove down his street.  Hudson learned that it had been Leavenworth checking on whether the street was clear.  A subsequent internal investigation was conducted and Leavenworth found that Hudson had lied to avoid work and recommended Hudson be terminated. 

In March 2013, Hudson was given the choice to resign or be terminated.  Hudson chose to resign. Afterward, Hudson brought suit against Leavenworth and alleged discriminatory termination, hostile work environment, and retaliation.  Leavenworth moved for summary judgment on all of Hudson's claims.

Holding:  The District Court held that Hudson's hostile work environment claim could proceed as there was evidence of a factual dispute as to whether the work environment at Leavenworth was objectively hostile.  In this case, the evidence established Hudson was subjected to racial comments that were more than just isolated events.  Derogatory "Alabama blacksnake" comments were made towards Hudson weekly and the reference to the burning cross was made more than one time.  As a result of these comments, Hudson had previously stated that he felt the need to avoid the co-worker.  Consequently, the Court held that there was a fact issue as to Hudson's hostile work environment claim, sufficient to defeat Leavenworth's motion as to this claim.

However, the Court found that Hudson's retaliation and discriminatory termination claims could not proceed.  In this instance, evidence that Hudson had vacation requests denied, negative notes were placed in his personnel file, and the investigation into his use of a personal day were found to not constitute adverse employment actions.  As well, Hudson's discriminatory termination claim was undermined by the fact that a Caucasian employee was fired for lying to avoid work on the same snow day that Hudson had. 

Judgment:  The District Court denied Leavenworth's summary judgment motion as to Hudson's hostile work environment claim as a fact issue existed as to whether Hudson did indeed suffer from a hostile work environment.  However, there was insufficient evidence for Hudson to proceed on his retaliation and discriminatory termination claims, necessitating the Court's granting of summary judgment in favor of Leavenworth on those two claims.

The Takeaway:  I think it is always tough to read about situations like this where an employee appears to be in a difficult work environment.  Not every case is the same and not every situation warrants a hostile work environment claim...but based upon the facts, it makes sense why the Court allowed Hudson's hostile work environment claim to proceed:  between the derogatory comments that he continually was subjected to and comments about burning crosses, there was enough evidence here to defeat Leavenworth's summary judgment motion.

With that being said, Hudson simply did not have enough evidence to establish a retaliation and discriminatory termination claim.  It did not help that Hudson appeared to lie about his street being snowed in most of the day, even when a Leavenworth unmarked patrol car found out this was not the case. 

Majority Opinion Judge:  Judge Robinson 

Date:  November 4, 2015

Opinionhr.cch.com/ELD/HudsonLeavenworth110415.pdf

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