The Volokh Conspiracy
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Court Rejects Attempt to Expurgate Racial Slur in Complaint Alleging Racial Slur
From Sharper v. Right Away Maintenance Co., decided yesterday by Magistrate Judge Scott D. Johnson (M.D. La.):
Plaintiff began this litigation pro se on August 16, 2022, drafting and filing his original Complaint without the assistance of counsel. However, Plaintiff recently retained an attorney, who enrolled in May of 2023. The proposed Amended Complaint, which was drafted by counsel, is largely intended to clean-up the original Complaint. The allegations of race discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), see 42 U.S.C. §§ 2000e-2(a)(1) (disparate treatment and hostile work environment), remain unchanged. Plaintiff does, however, include a jury demand for the first time. See Fed. R. Civ. P. 38 (jury demand)….
Defendant objects to the proposed Amended Complaint because it: (1) includes an untimely jury demand; and (2) now spells out the racial epithet allegedly directed at Plaintiff by his supervisor. Defendant considers the inclusion of this racial epithet to be "scandalous," "prejudicial," and "unnecessary." Compare (On "September 5, 2019 … Mr. Adams referred to me as a "stupid f***ing n***er."), with ("On September 5, 2019, Jason Adams called Plaintiff, 'A stupid fucking nigger.'")….
Defendant claims:
RAMCO asserts that Plaintiff's allegations contained in Paragraph 19 of the Amended Complaint, using the fully spelled out "n-word" are scandalous, are highly and unduly prejudicial and defamatory to Defendant and its business reputation, and should be stricken or redacted from the pleading.
The Plaintiff's use of this word is unnecessary, and the allegation could be sufficiently plead by redacting this word so that it does not appear in its full form or by simply redacting the allegation to allege that a racial slur was used.
Based on this argument, Defendant opposes leave to allow the entire Amended Complaint under Rule 15(a)(2), and alternatively moves under Rule 12(f) to strike the racial epithet or the majority of the allegation found in paragraph 19 of the proposed Amended Complaint….
Under Rule 12(f), "a court may strike from a pleading … any redundant, immaterial, impertinent, or scandalous matter." Indeed, striking allegations from a pleading is a drastic remedy to be resorted to only when the stricken allegations have "no possible relation to the controversy." [Details about relationship of Rules 12(f) and 15(a)(2) omitted. -EV]
[I]n deciding whether to permit amendment of the Complaint, the Court must accept the challenged allegation as true:
"On September 5, 2019, Jason Adams called Plaintiff, 'A stupid fucking nigger.' ".
Defendant asks the Court to deny leave altogether or otherwise strike this allegation as "scandalous," "unduly prejudicial" and "unnecessary." Scandalous allegations "improperly cast derogatory light on someone, most typically on a party to the action." But "it is not enough that the matter offends the sensibilities of the objecting party if the challenged allegations describe acts or events that are relevant to the action."
Here, Plaintiff claims that Defendant violated Title VII by terminating his employment and subjecting him to a hostile work environment because of his race (African American). The Fifth Circuit has held that a "[single] incident" of a supervisor calling an employee the N-word could and did create a hostile work environment in violation of Title VII. That is exactly why the allegation contained in Paragraph 19 is critical to this litigation.
The actual words said to Plaintiff "are material" to both his claim for disparate treatment and harassment. Barrow v. Church (S.D. Ohio 2016) ("Plaintiff should have pled the actual racial epithet used by Mr. Daugherty because it is material.") (emphasis added); see Brown v. E. Mississippi Elec. Power Ass'n (5th Cir. 1993) ("[T]he term 'nigger' is a universally recognized opprobrium, stigmatizing African–Americans because of their race. That Pippen usually was circumspect in using the term in the presence of African–Americans underscores that he knew it was insulting. Nonetheless, he persisted in demeaning African–Americans by using it among whites. This is racism."); Brewer v. Muscle Shoals Bd. of Educ. (11th Cir. 1986) (school superintendent's comment that he did not want to appoint plaintiff to an administrative position because he did not want to see the school system "nigger-rigged" is direct evidence of discriminatory animus).
This Court is ultimately charged with finding the truth. And that task cannot be accomplished by censoring Plaintiff's Complaint. See Randall Kennedy & Eugene Volokh, The New Taboo: Quoting Epithets in the Classroom and Beyond, 49 Cap. U. L. Rev. 1, 35 (2021) ("The legal system recognizes that conveying to jurors precisely what was said—even when it is extremely offensive, and when the statements being quoted were originally said in an environment of hatred and violence—is often important to the jurors' fully grasping what had happened. Indeed, it is precisely the association of epithets with horrific acts that makes it important that jurors (and judges) be able to hear what actually happened."); Doe v. Wozniak (M.D. Pa. Mar. 3, 2009) (denying motion to strike offensive language used by police officer in civil rights litigation; "To carry out a full analysis of this case, Defendants Wozniak's and Evans' treatment of Plaintiff is at issue and this includes the officers' language and tone.").
And of course the challenged allegation is 'prejudicial' (in the legal sense) to Defendant. United States v. Bowen (D. Ariz. 2019) ("Defendant's argument is unavailing. It is undisputed that the admission at trial of Defendant's racial slurs is prejudicial to the Defendant. But any evidence that tends to prove the government's case is by its very nature prejudicial."). But nothing about Paragraph 19 is "unduly prejudicial," as Defendant claims.
