An Employer's Critique of An Employee's Inability to Speak a Foreign Language, Alone, Does NOT Establish Hostile Work Environment Claim

Payan v. United Parcel Service - Tenth Circuit Court of Appeals

Facts:  Charles Payan ("Payan"), who is Hispanic, worked for United Parcel Service ("UPS") since 1991.  Payan was eventually promoted to Security Manager of the Desert Mountain Salt Lake Division in 2006.  In 2009, Charles Martinez ("Martinez"), also Hispanic, became Payan's direct supervisor.  While Payan had been a "Ready Now" candidate (which meant he could be considered for a promotion), Martinez informed him in 2010 that he was no longer a "Ready Now" candidate.  Martinez proceeded to rate Payan as needing additional time to develop at his current level before being promoted.  However, at this time, two other UPS employees with similar credentials were promoted to positions that Payan wanted but was not eligible for as he was no longer a "Ready Now" candidate.

Payan claimed that Martinez constantly harassed him, with some of the interactions raising allegations of harassment concerning Payan's race or national origin.  One such instance involved Martinez saying Payan had an integrity issue and called Payan a "kid who doesn't even speak Spanish."  Payan also claimed that Martinez would correct his pronunciation of Hispanic surnames.  When Payan contacted Human Resources Manager Carl Wesley ("Wesley") to discuss the issues with Martinez, Wesley acknowledged a potential conflict in the performance reviews that had been conducted.  After an investigation was launched, the Human Resources department determined that Martinez had neither discriminated against nor harassed Payan.  Payan declined to participate in the company's Employee Dispute Resolution process.

In 2012, based upon a recommendation by Martinez, Payan was put through a performance improvement process.  Payan was required to meet with Martinez and UPS's Human Resources department to track his progress.  After the second review of Payan, it was determined he was not meeting the performance improvement process plan's requirements.  Payan proceeded to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and was subsequently issued a right to sue letter.

After completing the performance improvement process in late 2013, Payan was transferred to a new position that did not require a change in work locations, came with a pay increase, and removed Martinez as his supervisor.  Regardless, Payan perceived the transfer as a punishment and filed a lawsuit against UPS on the grounds of being subjected to a hostile work environment, disparate treatment, and retaliation under both Title VII and 42 U.S.C. Section 1981.  Payan also alleged state law claims for breach of contract, breach of the covenant of good faith and fair dealing, and violation of Utah public policy.  The district court granted summary judgment in favor of UPS on all of Payan's claims.  Payan subsequently appealed.

Holding:  (Note, this case brief considers only the hostile work environment portion of Payan's claim).

Hostile Work Environment

To prevail on this portion of his claim, Payan was required to show:  "(1) [he] is a member of a protected group; (2) [he] was subject to unwelcome harassment; (3) the harassment was based on race; and (4) [due to the harassment's severity or pervasiveness], the harassment altered a term, condition, or privilege of the plaintiff's employment and created an abusive working environment."

In this case, the Court noted that Payan satisfied the first two elements:  He is Hispanic and was routinely singled out by Martinez in which Martinez was "abusive, critical, and condescending..."

However, the Court held that Payan could not satisfy the third element.  In the Court's view, Payan could not produce evidence that a rational jury would infer he was targeted for harassment because of his gender, race, or national origin.  The Court was unswayed by Payan's argument that Martinez harassed him because he did not speak Spanish.  As the district court noted, "the law provides no special protection for discrimination based on one's poor grasp of a particular language."

Without going too in depth as to the fourth element, the Court pointed out that to survive summary judgment "a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."  However, the handwritten notes that Payan had of his interactions with Martinez were inadmissible hearsay and therefore not evidence of harassment.  Without that evidence, the Court that Payan failed to produce any admissible evidence to establish the validity of the fourth element.

Judgment:  The Tenth Circuit Court of Appeals affirmed the district court's granting of summary judgment in favor of UPS on the grounds that the employee could not establish a valid hostile work environment claim because his supervisor may have referred to the employee as "a kid who doesn't even speak Spanish."

The Takeaway:  I come across several hostile work environment related cases each month and this one in particular is well worth highlighting.  As always, I advise readers to consult the relevant caselaw and precedent in your particular state/jurisdiction...but for the Tenth Circuit, the Court of Appeals was steadfast in its holding that no valid hostile work environment claim exists when an employer or supervisor refers to an employee as being unable to speak a particular language.  It is important to note that in this instance the Court pointed out that it was still possible that a Hispanic supervisor could be biased against a Hispanic employee.  However, that potential bias coupled with the fact that Martinez was critical of the fact that Payan could not speak Spanish was simply not enough for a rational jury to infer that Payan was targeted for harassment because of his gender, race, or national origin.

Majority Opinion Judge:  Judge Seymour

Date:  October 4, 2018

Opinion:  http://hr.cch.com/eld/PayanUPS100418.pdf