The Volokh Conspiracy
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Race Discrimination/Harassment Lawsuit Against Seattle Related to Its "Race and Social Justice Initiative" …
can go forward, says a federal court.
From yesterday's decision by Judge Jamal Whitehead (W.D. Wash.) in Diemert v. City of Seattle:
This is an employment case, in which Plaintiff Joshua Diemert alleges that Defendant City of Seattle, his former employer, discriminated against him and subjected him to a racially hostile-work environment because he is white. Diemert alleges the City retaliated against him when he complained about the way that he was treated, and that when he could no longer take it, he was forced to resign….
The Court accepts all facts as true from the complaint and construes them in the light most favorable to Diemert [as is required in considering a motion to dismiss]….
Diemert began working as a program intake representative for the City of Seattle, Human Services Department ("HSD") in January 2013. Although he does not describe his racial background in the complaint, Diemert alleges the City classified him as white. He claims his race became an "albatross around his neck" as a "deliberate outgrowth of the City's Race and Social Justice Initiative ('RSJI')." In effect since 2005, RSJI is a city-wide program that requires race-based thinking and decision-making, which "is based on the foundational premise that American society has 'internalized and normalized' culture and practices that are 'rooted in white supremacy, colonialism, classism, Christian hegemony, sexism, heterosexism, physical ableism, [and] mental health oppression[.]"
Diemert attended mandatory RSJI trainings. He alleges RSJI applied differently to City employees depending on their racial identity, and that it divided employes into two groups: "Black, Indigenous and People of Color (BIPOC)," on the one hand, and "white folks," on the other. Diemert alleges he experienced severe discrimination and harassment because of the City's pervasive focus on race and "supposed 'white supremacy,'" and that he was consistently treated worse than his BIPOC colleagues.
Diemert alleges he experienced disparate and hostile treatment during his employment until he was forced to resign in September 2021. For example, starting in August 2015, a Youth and Family Empowerment Division Manager, allegedly asked Diemert, "What could a straight white male possibly offer our department?" In 2016, a Director-level employee told Diemert it was "impossible to be racist toward 'white people.'" Another Director-level employee repeated a similar sentiment during a mandatory RSJI training, and added that all white people have white privilege and are racist.
Also in 2016, Diemert claims he received no support from his supervisors while serving in a "lead" position within his department. When Diemert reported his concerns to his supervisor, he alleges she told him he should step down and that he used his white privilege to retain the position and that he was denying a person of color an opportunity for promotion. Diemert alleges he was coerced to resign his lead position and returned to working as a program intake representative.
In 2017, Diemert's coworker called him privileged and labeled him racist, also calling his words "violence" and an invasion of her "safe space."
At some point after he stepped down from the lead position, Diemert alleges Shamsu Said became his supervisor or "team lead." In October 2019, Diemert alleges Said misused his authority by "being aware that his sister was ineligible for [a] program, submitting the application on her behalf, and being directly involved in the business[.]"Diemert reported Said to the Mayor's Officer Operations Manager. On February 19, 2020, Diemert alleges Said "chest bumped" him, got in his face, and told Diemert he had white privilege and racist motives. Diemert informed the Ethics Department about his altercation with Said, causing the City to move Said "a few feet away from [Diemert's] workstation."
Diemert alleges the City required he attend trainings in which he and the other attendees played "privilege" bingo. In 2019, Diemert also allegedly attended an "Undoing Institutional Racism" workshop hosted by El Centro De La Raza, in which the facilitators allegedly stated, "white people are like the devil," "racism is in white people's DNA," and "white people are cannibals." In June 2020, the Office of Civil Rights invited Diemert to attend a training on Internalized Racial Superiority "specifically targeted for white employees." Defendant allegedly promoted "race-specific 'affinity groups' or 'caucuses'" where "people of color and white people … meet separately in order to do … different work."
In 2020, Diemert's supervisor allegedly told him that his coworkers were calling him racist and hateful. At one point, Diemert witnessed a group of employees discussing white privilege and joined their conversation. The members of the group allegedly told Diemert, because he is white, he did not have the right to speak about oppression faced by Black people and, in doing so, he discredited their lived experience.
On December 23, 2020, Diemert filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC). Diemert amended this charge to include retaliation on January 16, 2023. Diemert also filed an additional EEOC charge on June 30, 2022, for discrimination he allegedly experienced between December 23, 2020, and September 7, 2021.
Diemert claims that filing these charges led to harassment. In January 2021, Diemert inquired why the inbox for public emails was not being checked. In response, one of his supervisor's allegedly sent an email asking, "how many applications does [Diemert] have sitting in the drawer … what is the oldest date of his applications and delays?" The same supervisor also cancelled most of her regularly scheduled meetings with Diemert in 2021 even though she continued to meet with other employees. Diemert alleges that, because he could not meet with his supervisor, he did not receive approval to use Adobe PDF software even though "it was crucial for his day-to-day work." The same year, Diemert "experienced issues with an [Family Medical Leave Act (FMLA)] request" and Human Resources gave him incorrect instructions on how to correct his medical certification. In August 2021, because of staffing shortages, the City allegedly told Diemert it could no longer accommodate his request to work from home. Diemert believed employees of color were given priority to telework, and he resigned in September 2021.
Diemert sued, and the court allowed Diemert's case to go forward, generally denying the city's motion to dismiss (except as to "discrete acts occurring before February 27, 2020," as to which the court held the statute of limitations had run).
Diemert alleges enough facts to state a plausible claim for a hostile-work environment based on race.
Diemert alleges the City subjected him to a hostile-work environment because of his race. To succeed on this claim, Diemert must show (1) that he was "subjected to verbal or physical conduct because of [his] race," (2) that the conduct was "unwelcome," and (3) that "the conduct was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment." "'The working environment must both subjectively and objectively be perceived as abusive.'" …
The City argues that Diemert cannot establish a hostile-work environment claim based on the RSJI because the program is aimed at educating the City's workforce about "historical atrocities, systemic bias, and white privilege," as opposed to a targeted campaign of harassment against Diemert in particular. The City frames its argument as a question of law, but offers no legal authority in support of its position. And given the standard of review, it would be inappropriate for the Court to consider any evidence outside the complaint about the operation and purposes of the RSJI to round out the record. The Court need not confront the issue at this time, however, because the City frames Diemert's alleged hostile-work environment claim too narrowly.
Here, it is clear on the face of Diemert's complaint that, beyond any problems he may have had with the RSJI, he alleges his co-workers and supervisors verbally and physically assaulted him because of his race. And that he was the target of potentially offensive comments and other abusive actions, also because of his race. Diemert alleges this conduct was unwelcome, and he has pleaded sufficient factual allegations showing a pattern of race-based harassment of a repeated, routine, or generalized nature that affected his ability to do his job. Whether there is any merit to his claims is an inquiry for another day, but for now, he has stated a plausible claim for a hostile- work environment based on race under Title VII and the WLAD [the Washington Law Against Discrimination].
Diemert alleges enough facts to state a plausible claim for disparate treatment based on race.
… Diemert claims he experienced "a series of adverse employment actions," including:
[L]ess favorable treatment in work/project assignments, hours, and promotions; failure to address his genuine concerns; creating a confidential file about him; subjecting him to increased scrutiny; interfering with his FMLA rights; coercing him into stepping down out of a lead position because of his race; denying him back pay for out-of-class work but requiring him to complete this type of work anyway; and forcing him to continue reporting to the supervisor that had physically accosted him.
The Court finds that Diemert has alleged sufficient facts, which must be taken as true at this early screening stage of the case, to show that he plausibly suffered an adverse employment action; that is, the treatment he experienced at work constituted a material change in the terms and conditions of his employment.
Moreover, as explained above, Diemert has stated a plausible hostile-work environment claim. A constructive discharge may result where, as Diemert has alleged, a workplace becomes so hostile and intolerable that a reasonable person in the employee's position would feel compelled to resign. Deciding whether the alleged hostile-work environment Diemert faced was so egregious that it forced him to quit is beyond the scope of the Court's inquiry on the City's Rule 12(b)(6) motion, but based on the facts asserted, Diemert has stated a plausible constructive discharge claim….
Diemert has stated an Equal Protection claim based on the City's Rase-Based Affinity Groups.
Diemert alleges the City violated the Fourteenth Amendment Equal Protection clause when it subjected him to "intentionally segregated staff meetings by race … [and] promoted affinity groups." … As alleged in the complaint, the RSJI—the City's official policy—promoted caucuses through which white people and people of color would "meet separately in order to do [their] different work."
In June 2020, a coworker allegedly invited Diemert to join an Office of Civil Rights training on Internalized Racial Superiority, "a training for white people[.]" Participation is voluntary—Diemert elected not to attend the available meetings. Diemert alleges that he tried to "sign up for a training reserved only for people of color," but he was harassed and advised that he should not sign up. {Diemert also alleges he was invited to attend a discussion on "white racial literacy" and a discussion about an article entitled "White People Are Cowards." The Court cannot discern from the complaint whether this conduct falls within the statute of limitations period.}
The City counters that Diemert "fail[ed] to allege sufficient facts to support a finding that he was treated differently based upon a protected class," but this is really an invitation to weigh the evidence or "forecast" Diemert's likelihood of success on the merits. This the Court cannot do on a Rule 12(b)(6) motion.
The City argues in the alternative, that even if Diemert does allege sufficient facts to state an equal protection claim, it would not matter because "the RSJI is narrowly tailored to achieve the compelling state interest of eradicating systemic racism within the City's workforce."
The City's policy, as alleged, however, appears to encourage employees to attend different trainings based on their race, so the City must establish these affinity group distinctions are narrowly tailored to achieve the asserted compelling state interest. The Court finds further factual development is necessary regarding the City's affinity group policy and whether it caused Diemert a constitutional injury….
Diemert has stated a plausible claim of retaliation.
Diemert alleges that the City retaliated against him after he engaged in protected activity. To establish a prima facie case of retaliation, a plaintiff must show that (1) they participated in a protected activity; (2) they suffered an adverse employment action; and (3) a causal link exits between the protected activity and the employer's adverse action. A retaliation claim "need not be supported by an adverse action that materially altered the terms or conditions of the plaintiff's employment" instead a plaintiff must allege that "a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
Diemert claims his supervisor retaliated against him for filing an EEOC charge and because he "voiced his objections to the City's RSJI on numerous occasions." Specifically, Diemert alleges his supervisor called him out when he asked why the public email inbox was not being checked by saying, "how many applications does [Diemert] have sitting in the drawer … what is the oldest date of his applications and delays?"
Diemert also alleges that his supervisor cancelled their regular meetings and that the HR department denied his FMLA request for a reduced work schedule and leave for biannual medical treatment in 2021. Although the facts alleged are unclear, it appears the FMLA denial occurred sometime around May 2021, or around five months after Diemert filed his EEOC charge…. Because the FMLA decision allegedly occurred within five months of Diemert's EEOC complaint he has plead a causal nexus sufficient to satisfy the minimal threshold required to withstand a motion to dismiss….
Judge Whitehead was only recently appointed to the bench, but from 2010 to 2014 he was a senior trial attorney at the EEOC.
Andrew Quinio, Brian Hodges, and Laura D'Agostino (all of the Pacific Legal Foundation) represent Diemert.
