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Criticisms of Obamas (Including Racist Ones), Plus Other Speech, Didn't Qualify as Race-Based Workplace Harassment
So holds an Eleventh Circuit panel; Judge Andrew Brasher's concurring opinion that notes the potential First Amendment problems with imposing liability for such speech.
From Yelling v. St. Vincent's Health System, decided Thursday by the Eleventh Circuit, in an opinion by Judges Elizabeth Branch and Andrew Brasher and District Judge Allen Winsor (N.D. Fla.):
In March of [2015], President Obama visited Lawson State Community College—a predominantly black school Yelling [a nurse at St. Vincent's] had attended. While nurses were chatting one day at the nurse station, charge nurse Jimmy Wilhite remarked, "What is he doing coming here? Is he handing out food stamps?"
After that, as Yelling explains, the CDU "got really kind of heated with … racially disparaging comments." Yelling overheard white pool nurse Sandy Sheffield say, "Michelle Obama looks like a monkey" and that the "President is a piece of shit." White staffer Tiffany Hardy made similar remarks. So too did white weekday nurse Linda Powell, who said President Obama was "stupid," was the "worst president ever," and "needs to go back to Africa."
Yelling also heard these three coworkers refer to black patients as "boy" or "girl," "crack heads," "welfare queens," or "ghetto fabulous." And three other white coworkers … talked at the nurse station about their "redneck status," owning guns, and being "confederate flag flyers."
Yelling does not remember having any racial insult or slur directed at her personally. Still, Yelling reported the comments as offensive to the house supervisor on June 14, 2015. She also complained that Dubose maintained a "quota" of only staffing one black nurse per shift. St. Vincent's did not investigate Yelling's complaints or discipline any CDU staff for racist comments or staffing practices.
Yelling was later suspended and eventually fired, based on other allegations; she sued alleging retaliation and discrimination (read the opinion for more on that) and racial harassment:
To succeed on a racially hostile work environment claim under Title VII or § 1981, Yelling must prove: (1) she belongs to a protected class, (2) she experienced unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment, and (5) employer responsibility under a theory of vicarious or direct liability.
Yelling has certainly provided evidence from which a jury could find she satisfied the first two elements. (St. Vincent's does not contend otherwise.) But Yelling has not provided sufficient evidence from which a jury could conclude the CDU was "permeated with 'discriminatory intimidation, ridicule, and insult, … sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.'"
Showing that harassment is sufficiently severe or pervasive requires showing both a subjective and objective component. Specifically, "[t]he employee must 'subjectively perceive' the harassment as sufficiently severe and pervasive … and this subjective perception must be objectively reasonable." Yelling has met her burden as to the subjective showing; she presented evidence clearly showing she subjectively perceived her coworkers' conduct as severe or pervasive. But she falls short as to the objective component.
"[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" The Supreme Court, this court, and other Circuits have identified a nonexhaustive list of factors "to delineate a minimum level of severity or pervasiveness necessary for harassing conduct." Those factors are (1) the conduct's frequency, (2) its severity, (3) whether it was physically threatening or humiliating, rather than "mere offensive utterance[s]," and (4) whether it unreasonably interfered with the employee's job performance….
We conclude that Yelling has not presented evidence that would allow a reasonable jury to find in her favor…. Yelling has not cited evidence that her coworkers' conduct was so extreme as to make up for the infrequency.
We begin with the comments about the former President and First Lady. We cannot say that all of these comments were race-based—as opposed to political or personal disagreement. For example, comments that the President was "stupid," the "worst," or a "piece of shit" are not inherently racial. But even if we considered these comments race-based, and even drawing all reasonable inferences in Yelling's favor, we conclude no reasonable jury could conclude these comments evince extreme harassment.
This is true even when considering these comments together with other comments—several of which plainly were racist. Those comments were only isolated epithets rather than extreme harassment. The mere fact that a supervisor (Wilhite) uttered at least one does not automatically transform the conduct (still inexcusable) from boorish or crude to extreme. And Yelling does not cite any evidence that her coworkers aimed these or any comments at her personally. To be sure, Yelling need not be the intended target of harassment to succeed. But overhearing offensive comments is less severe or humiliating than being the intended target of direct harassment….
Yelling also points to the Larimore, Calvert, and Laroe comments about being "confederate flag flyers" or "redneck" gun owners, which the district court did not view as race-based. She argues at length that we must view these statements as racial harassment because of the context in which they were made. But the problem is that Yelling does not cite evidence adequately illuminating the context she says we must consider. She instead relies heavily on generalizations about changing "societal norms"—such as recent civil rights protests and confederate monument removals—that shed no light on what she experienced at St. Vincent's.
The evidence that Yelling does cite to that end is that she was regularly the only black nurse on her shift and that coworkers other than Larimore, Calvert, and Laroe made racist statements about the Obamas and patients. But that does not speak to the context of the conversations in which the statements were uttered. Nothing cited suggests, for example, that a coworker called herself a "confederate flag flyer" in conjunction with a racial slur or in the same discussion as one.
We cannot conclude that the comments about the confederate flag or being gun-carrying rednecks were racial harassment since Yelling only offers them in a vacuum. But even if we agreed with Yelling that they were race-based harassment, the comments still would not—alone or with everything else Yelling offers—be sufficient to show a hostile work environment.
There is no question that Yelling overheard race-based comments that do not belong in any workplace. But it is a "bedrock principle" that not all subjectively offensive language in the workplace violates Title VII. Title VII only prohibits harassment that is "so objectively offensive as to alter the 'conditions' of the victim's employment." On this summary judgment record, no reasonable jury could conclude Yelling experienced that….
Judge Andrew Brasher joined the panel opinion, but added:
I write separately to discuss the First Amendment implications of Ms. Yelling's request that we hold her employer liable under Title VII for failing to censor her co-workers' speech. To be clear, a private hospital can (and probably should) discourage its nurses from disparaging politicians and discussing divisive social issues in the hallway. But this case is ultimately about whether Title VII requires employers to adopt that kind of policy.
As many judges have noted, a Title VII hostile work environment claim is "unusual." Title VII bars discriminatory treatment in the terms, conditions, or privileges of employment. But a harassment claim isn't based on "inequality in hiring, firing, promotions, or duties;" instead, it holds an employer liable because of "abusive behavior by [a plaintiff's] coworkers in the workplace." Because an employer's liability for harassment sometimes turns on an employee's speech—what they said, how often they said it, and what they meant by it—avoiding liability for harassment requires an employer to prohibit certain kinds of speech in its workplace.
Although a private employer can adopt a speech code if it wants, the government usually cannot force people to speak in a particular way. For this reason, Title VII harassment law has always had an uneasy coexistence with the First Amendment. The government can penalize speech when that speech is merely incidental to tortious conduct. And nonexpressive conduct is often the root of a workplace harassment claim. But "[w]here pure expression is involved, Title VII steers into the territory of the First Amendment." DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995). After all, when a plaintiff brings a Title VII "harassment claim[ ] founded solely on verbal insults" or other speech, she is necessarily asking a court to impose "content-based, viewpoint-discriminatory restrictions on speech,", and these kinds of restrictions are subject to strict judicial scrutiny.
To be clear, not every application of harassment law raises free speech concerns. As I've already noted, the government can regulate non-expressive conduct, even if doing so has an incidental effect on speech. The First Amendment also "permit[s] restrictions upon the content of speech in a few limited areas." Most relevant to workplace harassment, the government may ban: (1) obscenity, (2) "true threats" of violence, and (3) "fighting words"—"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." …
The EEOC—which filed a thoughtful amicus brief in support of Yelling's position—says we should disregard any free-speech implications [in this case]. Its position at oral argument, which is contrary to decades of precedent, was that the First Amendment has no role to play in tort litigation between private parties. That's the wrong answer. A court cannot enforce a law in a dispute between private parties if doing so requires it to "impose invalid restrictions on [a person's] constitutional freedoms of speech and press." New York Times Co. v. Sullivan (1964); e.g., Snyder v. Phelps (2011) (noting "[t]he Free Speech Clause of the First Amendment … can serve as a defense in state tort suits"); Hustler Mag., Inc. v. Falwell (1988) (same).
For my part, I don't think we can ignore the tension between the First Amendment and Title VII harassment law. Instead, I think the objective prong of our hostile-work-environment standard must be applied consistent with First Amendment principles. That means that the closer objectionable workplace speech is to conduct or to traditionally unprotected areas of speech, the more leeway a court should have to find an objectively hostile work environment. But the closer objectionable speech comes to the heart of the First Amendment, the more reluctant a court should be to impose tort liability because of it….
I would hold that speech on public matters is inherently less likely to create a hostile work environment than speech on private matters. "[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous." But we give the highest degree of protection to speech on matters of public concern—that is, speech that can "be fairly considered as relating to any matter of political, social, or other concern to the community." For this reason, "even those commentators who conclude the First Amendment generally permits application of harassment laws to workplace speech recognize exceptions" for "debate on issues of public concern." Avis Rent A Car Sys., Inc. v. Aguilar (2000) (Thomas, J., dissenting from denial of certiorari) (citing Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark (1994)). See generally Eugene Volokh, Freedom of Speech and Workplace Harassment (1992).
In any event, these principles are one reason I agree with the Court that Ms. Yelling's hostile work environment claim fails as a matter of law. As Justice Sotomayor recently reminded us, "First Amendment vigilance is especially important when speech is disturbing, frightening, or painful, because the undesirability of such speech will place a heavy thumb in favor of silencing it." Counterman v. Colorado (2023) (Sotomayor, J., concurring). I think we should apply the objective element of workplace harassment law consistent with that idea.
I have more on the free speech vs. workplace harassment question here; for more appellate opinions noting this issue, see the DeAngelis (5th Cir.) (cited above) and Rodriguez v. Maricopa County Comm. Coll. Dist. (9th Cir. 2010).
Tammy Lynn Baker and Shannon L. Miller (Jackson Lewis, PC) represent St. Vincent's.
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Three Trump nominees and Federalist Society members (two from Alabama) figure comments about the Confederate flag in a professional medical setting is not necessarily racial, and that bigots' racial comments aren't so bad . . .
and I would wager that Prof. Eugene Volokh agrees with his fellow white Federalist Society members on those points.
Carry on, clingers. Until . . . you know.
I was expecting something like this -- be careful what you ask for Kirkland as you might just get it, and not like it.
How bad do you figure it could get?
John Eastman as attorney general?
Jesus appears . . . and bets on the Cowboys, Knicks, Yankees, Capitals, Penn State, and Baylor?
Prof. Blackman brings back Today in Supreme Court History?
I am forced to attend a Jonas Brothers-Morgan Wallen show?
Judge Cannon awards Donald Trump a comprehensive (retroactive, future, federal, state, spiritual) pardon -- and the Supreme Court affirms?
A locust plague?
UCLA takes Prof. Volokh back?
I think he's threatening to come throw his keyboard through your window.
The clingers at this blog are all-talk cowards, top to bottom.
Well if there's one thing Coach Sandusky knows about, it's "Bottoms"
Et tu, Whinus?
You talk more than anyone on this blog, cowering behind a pseudo. I'm not scared for my real name to be associated with my opinions. What's your excuse?
Excuse? My real name is "Frank Drackman" and what the fuck kind of name is "Kleppe"??
Prof. Volokh talks more than I do at this blog, cowering . . . at least for a bit longer . . . behind tenure.
How many more racial slurs and how much more general bigotry can we expect to observe at the Volokh Conspiracy when the proprietor's checks are being signed by fellow wingnuts, diminishing concern about what decent people (outside the bigot-hugging clingerverse) think of this blog?
Come on, Dr. Ed 2, you're usually not so reticent. Are you threatening civil war, murder of liberals, or what?
They are not "liberals" nor are they bright enough to learn from history.....
That's a "yes", then, followed quickly by Dr. Ed 2 spilling a pitcher of water in his pants and running from the room.
until what? you boo-fu everyone??
After all, when a plaintiff brings a Title VII “harassment claim[ ] founded solely on verbal insults” or other speech, she is necessarily asking a court to impose “content-based, viewpoint-discriminatory restrictions on speech,”, and these kinds of restrictions are subject to strict judicial scrutiny. … The EEOC says we should disregard any free-speech implications [in this case]. Its position was that the First Amendment has no role to play in tort litigation between private parties.
This really is a Gordian Knot situation, isn’t it? I guess my inclination is that while typically the First Amendment isn’t implicated in disputes between private parties, it can be forced into it, as here.
To me, this illustrates rather well how limited the scope of the law is in resolving disputes between people. Most legal outcomes don’t seem to me to be very “satisfying” in the sense of being worth the agony and the expense. Not to be too harsh about it, but almost any outcome other than actually winding up in a court of law is probably better for all concerned.
I understand the need to demonstrate that you are prepared to go the distance, to suffer the pain and the expense, if only to impress upon your opponent that you are willing to fight. But, still.
I always thought that the "effectively altering the conditions of employment" prong was the fix for the First Amendment tension.
In other words, the employer doesn't have to impose a speech code. The other alternative is to make putting up with pervasive harassment from coworkers an explicit job requirement. Maybe it comes with higher pay or other perks.
But if the employer hires someone for a role that requires tolerating persistent harassment but doesn't make that requirement clear in advance, that's on the employer and a Title VII violation... not because of the speech so much as because of the bait-and-switch.
If courts construed “harassment” and "altering the conditions of employment" as broadly as you do, an awful lot of employer conduct would be illegal. How many people started a job five years ago expecting to be lectured about the supposed white supremacy of timeliness or hard work?
You should bring a Title VII claim if you feel like your DEI trainings actually rise to the level of race-based harassment and you reasonably believe they’re not a “condition of employment.”
I don't share your ridiculously broad idea of what those terms mean. The bounds of the First Amendment are not defined by the whiniest snowflakes in the land.
That is a good point — and one religious claimants and other clingers seem destined to learn the hard way.
I don't think they're broad at all. I'm 100% sure your DEI training isn't harassment. You just like to whine.
There was no persistent harassment. In fact, the plaintiff didn't allege that any co-worker directed any harassment at her at all. She was simply upset that her co-workers don't like the Obamas and that the hospital didn't impose a speech code prohibiting employees from discussing politics.
One employee tried to use the coercive power of government to control the speech of her coworkers via Title VII. At the point she made that claim in the lawsuit, she made it a First Amendment issue and no longer merely a dispute between private parties.
Nice nonsense string of legal jargon, I love how you somehow got “coercive power of government” in there.
It’s like Lawyer Madlibs!
Invoking Title VII in federal court against another private party is precisely an example of using the coercive power of government against that party.
The courts seem to apply this principle very selectively. For example, SCOTUS ruled in Shelley v. Kraemer that private contractual restrictions on whom you can sell your house to can violate the 1st Amendment, as the court, a state actor, would have to enforce the contracts.
I don't see why Title VII litigation is any different. Talking negatively about Obama and even blacks in general is talking about matters of public concern, which are at the heart of 1st Amendment protected speech.
Would Yelling have been able to respond by calling her co-workers "racist crackers" (for example) without being herself being sanctioned one way or another?
FWIW my ex was a legal secretary at Jackson Lewis, who were known for corporate defence, and I once joked that their advertising slogan should be "Jackson Lewis, the firm for the discriminating client"
Clingers are becoming accustomed to benefitting from a "heads we win, tails you lose" standard -- religious claimants can discriminate against anyone and everyone else, for example, but no one can discriminate against a religious claimant. Because . . . just because!
It's superstition!
This phase of American law seems destined to be reversed.
Not just “because”. Because uncounted hundreds of millions have died in religious wars over the millenia, including several hundred more yesterday. the detente of the First Amendment is a great experiment.
Update: 600
More dying today.
Since no one (including Yelling) alleged that anyone called her anything, she can't "respond" regardless.
The parallel to what is alleged above would require Yelling to talk to her own friends, making disparaging comments about politicians she doesn't like and calling herself by a negative epithet.
If this had gotten to the deposition stage, I imagine the opposing attorney could have had a lot of fun quizzing her about any disparaging comments she made in front of her coworkers about Trump.
Which law school is responsible for your level of legal analysis?
I've asked you the same question, never get an answer, I think because best I can tell, Coach Jerry Sandusky never went to law school
What Montessori school taught you to put your ramrod into the wrong holes?
No one's buying your spin. These weren't "disparaging comments about a politician." They were racist comments about a politician.
What racist comments about Trump have you ever heard? Yet we get racist commentary about Obama right here on VC on practically a daily basis!
You mean like being amazed that Barry Hussein was "Clean"? "Articulate"? I mean, that's a "Storybook"! (man)
and it was the Hillary Rodman Clinton Cam-pain (emphasis on "Pain" she lost to "44" and "45") who released the photos of Barry in his "Native Garb" back in 08'
Frank
Orange man is just as much race based as anything said about ObaMuslim.
No it's not. "Orange man" isn't an insult that works on any old white person. It's an insult to his misguided, spray-tan-based vanity, not his race.
Now if people were calling him this you'd have a point:
https://youtu.be/KVN_0qvuhhw
Only whites would be affected by spray-tan, so it has a disparate impact on whites.
It's a racist comment.
By your reasoning, would taunting a black person because of their afro be fine, because not every black person wears an afro?
It depends on the taunt. For example, if people were taunting Trump like:
"Your skin doesn't have the right amount of natural pigment and so you're forced to supplement with spray tan!" then that might be racist.
"Your afro is crooked" would not be racist.
It is just me or is the opinion just bizarre. From the complaint:
After that, as Yelling explains, the CDU "got really kind of heated with … racially disparaging comments." Yelling overheard white pool nurse Sandy Sheffield say, "Michelle Obama looks like a monkey" and that the "President is a piece of shit." White staffer Tiffany Hardy made similar remarks. So too did white weekday nurse Linda Powell, who said President Obama was "stupid," was the "worst president ever," and "needs to go back to Africa."
Yelling also heard these three coworkers refer to black patients as "boy" or "girl," "crack heads," "welfare queens," or "ghetto fabulous." And three other white coworkers … talked at the nurse station about their "redneck status," owning guns, and being "confederate flag flyers."
From the opinion:
We begin with the comments about the former President and First Lady. We cannot say that all of these comments were race-based—as opposed to political or personal disagreement. For example, comments that the President was "stupid," the "worst," or a "piece of shit" are not inherently racial. But even if we considered these comments race-based, and even drawing all reasonable inferences in Yelling's favor, we conclude no reasonable jury could conclude these comments evince extreme harassment.
This is true even when considering these comments together with other comments—several of which plainly were racist.
So a long history of racist comments. Then a bunch of explicitly racist comments interspersed with negative racial stereotypes... but we can't really say those negative racial stereotype comments were racist.
But even if we agreed with Yelling that they were race-based harassment, the comments still would not—alone or with everything else Yelling offers—be sufficient to show a hostile work environment.
So three white co-workers with a pattern of making explicitly racist remarks and making references to be confederate flag flyers within earshot of black employees (you think that's accidental?). And then the employer (which limits the number of black nurses) doesn't even bother to investigate and eventually fires the complainant.
And this is apparently not a "hostile work environment"?
I wonder who appointed these judges? Oh, Trump, Trump, and again Trump (in fairly party line votes).
I voted for Biden and will again, but I don't think ambient racist chatter rises to the level of a hostile work environment. I feel like it has to have a personal element to it, which in the case of racist speech, would be racist speech directed to the victim.
I suppose here you're saying that the comments may have been implicitly directed toward the victim and that for the purposes of summary judgement, we should assume they were? Hmmm.... I haven't read the whole case, but from the post's excerpts, I'm unconvinced... I think you'd need at least one example that suggested as much in order to reasonably infer that the comments were directed at her. Or some corroborating evidence, like a sympathetic coworker who could testify that the racist commentary generally corresponded with the presence of a Black person around to hear it.
"will again"??
so you'll vote for a Corpse?? I guess it's happened before, the swearing in might be interesting.
"Weekend at Bernie's" Brandon edition.
Or, maybe the first VR President.
If only! I'd rather he not die, but I'd love it if he didn't run.
He can hardly walk.
He can ride a bike, you think Trump can pull that off?
I'll take the actuarial tables on the fit 80 year old over the obese 77 year old (not that either is a great bet).
It would not be the first time a dead person has been elected to political office.
Sounds like a really bad hospital, given the apparently undisputed racism of the nursing staff. The amicus brief of the EEOC states there was more to the case than the District Court considered.
The amicus brief of the EEOC also claimed the First Amendment had nothing to do with this case, so it's not exactly a reliable source.
It a religious hospital in Alabama.
I voted for Biden and will again, but I don’t think ambient racist chatter rises to the level of a hostile work environment. I feel like it has to have a personal element to it, which in the case of racist speech, would be racist speech directed to the victim.
I suppose here you’re saying that the comments may have been implicitly directed toward the victim and that for the purposes of summary judgement, we should assume they were?
If you're making explicitly racist comments in the presence of a black co-worker you're either doing it purposefully (ie, implicitly directed), or the racism is so normalized that it doesn't even register. Either case means hostile working environment to me. The fact that the employer didn't even investigate is further evidence of the hostility.
I think you’d need at least one example that suggested as much in order to reasonably infer that the comments were directed at her. Or some corroborating evidence, like a sympathetic coworker who could testify that the racist commentary generally corresponded with the presence of a Black person around to hear it.
We may be getting a biased view of the details, the panel didn't seem to dispute the facts but it was my impression that they thought it wouldn't matter even if the facts were exactly as she described. Therefore I think it's fair game to assume her account is completely accurate.
My judgement does change a bit if the comments were made with a belief that she couldn't hear them, but I don't see evidence of that.
This black woman can go work somewhere else. Why should whites have to employ, house, and serve blacks? Why can't blacks who don't like the poor treatment they supposedly get at the hands of whites patronize businesses owned exclusively by blacks?
If they hate us so much, why not leave us alone?
So are you trolling for lulz or are you really that racist?
I'm asking a question.
He's really that racist.
So is the Volokh Conspiracy.
Until replacement.
Well Jerry, Speaking of “Replacement” Two of your Supposed “Bettors” got “Replaced” last week, 1: Josh Kruger, LGBTQT activist in Filthydelphia murdered in his home by a White MAGA race-ist from Bug-Tussel Alabama, Nah, just kidding, his killer looked just like you’d expecthttps://www.yahoo.com/entertainment/philadelphia-police-issue-arrest-warrant-011128942.html and because I’m Psychic, I’m predicting the killer will claim Kruger molested him,
and 2: Brooklyn “Activist” Ryan Carson murdered by a Mormon missionary, Again just kidding, looks like you’d expect a Brooklyn murderer to look like https://www.msn.com/en-us/news/crime/18-year-old-charged-with-murder-in-stabbing-death-of-social-justice-advocate/ar-AA1hKhWT Carson’s Girlfriend wouldn’t give a description to the cops because she didn’t want to “Perpetuate Stereotypes”, you know, those hordes of violent Morman missionaries, not realizing she was perpetuating a Stereotype
I’m watching the news, you know these things always happen in threes,
Frank
These bigots are the Volokh Conspiracy's target audience, ardent fans, and diehard supporters . . . and the reason movement conservatives with bigot-hugging blogs are no longer welcome (although tenure inhibits action) on strong, reason-based, mainstream law faculties.
Likely both. But does it really matter which?
I'm sure the racism is so normalized it doesn't even register. In fact I'm sure none of the people accused even think that they or the comments are racist. Which is why they don't think twice about saying this kind of thing in front of Black people.
You obviously are never around any Black peoples, because they'll kick your ass if you say anything that remotely resembles the "N-word" joke about "Martin Lucifer King", try to speak in a "Black Dialect" (Unless you're Hilary Rodman Clinton) Seriously, I've seen fistfights break out just because some "FIN" (HT Jimmy Buffett) misheard the word "Bigger"
"No! I said Michael Jordan was "Bigger" not that he was a umm, you know"
https://www.bing.com/videos/riverview/relatedvideo?q=south+park+naggers&mid=9483EFE4AFA7B52A6FF49483EFE4AFA7B52A6FF4
Frank
Assuming one of the two wins, the Baby Boom generation, 20 years wide, will have held the presidency for 36 years. Now that's what I call the Me Generation.
Yes, I know Biden is technically barely pre-Boomer. Not helping the case.
So, the remarks supposedly took place in March, and we're reported in June. I'm amazed at the detail of her recollection.
I can remember negative interactions at work in fair detail from longer ago than three months. Would it be better or worse if she wrote them down at the time?
Is this some sort of gross and misguided attempt at victim-blaming or what?
Wouldn't there have to be a victim, in order to engage in victim blaming? I'm not seeing the victim here, and neither did the court.
Yelling got fired for well documented and perfectly adequate reasons. If she'd just done here job, presumably she'd still be there whining about overheard private conversations.
Wow, a full-throated defense of racism from Brett!
Who would've guessed?
I would.
As demonstrated, you'd guess that even if I didn't defend racism.
Which I didn't. I just noted she wasn't a victim of it.
So what is it that you're trying to imply without saying it explicitly?
I didn't imply anything; I have excellent visual recall, but I'd be doing good to remember what somebody said to me five minutes ago. I'm amazed that she would recall in detail overheard conversations that she wasn't even part of.
Based on your history I'd expect you to disagree with her complaint.
And, when someone who disagrees with someone says something like "I’m amazed at the detail of her recollection". They're generally not giving a compliment. They're usually implying that the recollection is flawed and there may even be confabulation going on.
So. It is your position that her version of events corresponds with her recollection and her recollection is accurate. Or, do believe her account contains significant inaccuracies, and if so, do you believe those inaccuracies to be intentional or not?
I'm certainly open to the possibility that she recalled correctly what they said.
Like the court, I think that beside the point, because her employer provided objective evidence of an adequate reason for firing her.
Ok, so you where just randomly complementing her on her excellent memory with no ulterior motives.
As for the "objective evidence of an adequate reason for firing her" I'm curious what that is since you've referenced that a few times but I saw nothing in the summary and wasn't motivated to dig around otherwise.
I guess you weren't all that curious, then, were you? It was detailed in the court record linked to above.
The nurses wore personal tracking devices while on shift, and Yelling was claiming to be making rounds taking care of patients at times when she just stayed in the lounge.
Tracking data, and Yelling's own log entries. Objective enough for you? Certainly more objective than Yelling's months old recollections of overheard conversations.
Which raises two questions :
1. Why are some people here asserting Yelling’s case invalid because of a separate reason for her termination ( Brett: “Like the court, I think that beside the point”). Per my reading of the OP above, the court’s conclusions (correct or incorrect) were independent of that fact.
2. As for those grounds for firing, the plaintiff suggested retaliation. That raises the question whether other nurses could have been fired for the same cause and Yelling was singled out for an offense excused with her coworkers. I’m not saying that was the case, because I don’t know. I’m not here to make-up narratives out of whole-cloth like Joe_dallas. But it’s happened many times in the past to “troublemakers”, so can’t be discounted here. That would have been a subject for the trial if there’d been one.
"Why are some people here asserting Yelling’s case invalid because of a separate reason for her termination?"
It's explained in the ruling. You're not, legally, being fired "in retaliation", if the employer can establish that you would have been fired regardless. Complaining about harassment doesn't immunize you against being fired.
Ok, you made me curious, from the record:
Friction between Yelling and her coworkers continued. On
January 10, 2016, Yelling had another heated argument with a
nurse. It began while Yelling was at the nurse station talking to the
son of a patient in Room 610. The other nurse approached and ac-
cused Yelling of not taking care of the Room 610 patient, forcing
that nurse to step in and do Yelling’s job. (The patient was assigned
to Yelling.) Yelling filed a workplace violence complaint against the
nurse over the incident, although it involved no violence.
When investigating her complaint, Yelling’s supervisors
checked her tracking report. The report showed that Yelling did
not enter Room 610 any time after 4:01 p.m. Yelling, though, had
written on the patient’s chart that she observed the patient be-
tween 7 and 8 p.m. Six CDU employees separately reported that
they saw Yelling at the nurse station after 4:01 p.m., but not in
Room 610.
In February 2016, Yelling met with Dubose, another super-
visor (who was black), and a human-resources representative to
discuss the investigation. These supervisors told Yelling about the
tracking report, about its inconsistency with her written reports,
and about their belief that she falsified the patient’s record. And
citing the alleged falsification, they fired Yelling effective immedi-
ately. Yelling professed her innocence, telling them that her tracker
did not always work, which she said she had told them before. But
Dubose and her colleagues stuck with their decision to fire Yelling.
Although Yelling had not progressed through all four steps
of St. Vincent’s disciplinary process, her supervisors told her falsi-
fying patient records prompts automatic termination. Before Feb-
ruary 2016, white CDU staffers Felicia Parrish, Michael Pike, and
Powell had failed to document making patient rounds or did so in-
accurately. St. Vincent’s disciplined these employees but did not
immediately fire them.
Nursing station, not lounge.
So she was certainly confrontational, and perhaps negligent (though I wouldn't be shocked if the tracking devices were error prone). Though I will note that if you're looking at complaints, even justified ones, you're selecting for fairly confrontational people. Non-confrontational folks often let things slide.
But it does raise the question of how similar were her falsifications to the white staff members who were only disciplined but not fired.
Those three staffers had "failed to document making patient rounds or did so inaccurately."
So, while they'd gotten the paper work wrong, what it doesn't say is that they hadn't actually done the patient rounds, which is, after all, their job. They'd just done a bad job of documenting having done it.
Yelling had failed to do patient rounds, then falsified the log to show that she had. That's a rather more serious offense. We're not talking mistake here, we're talking fraud; She could hardly have been unaware that she hadn't done the work she was writing in the log.
Bellmore, the FBI trains agents to understand that recollections vary, with some recollections amazingly faithfully remembered because they were associated with intensely emotional experiences. An example is the weather on your wedding day. I do not remember weather from typical days 40 years ago, but I remember vividly the weather on the day I got married. I'll bet you do too.
I don't even know the day you got married.
Really, DN ?!?
The government shouldn't be trying to resolve these trivial disputes. If you don't like your employer or the idiots that you work with, go work somewhere else where you'll be happy. The courts shouldn't be used to determine which party in a dispute has a better personality.
And they shouldn't be forcing employers to hire these water buffalos.
The government should not insert itself in the employer / employee relationship in any way. The employer should be free to hire (or not hire) whoever it likes (or doesn't like), for whatever reason. If the employee feels they're being "harassed," or "underpaid," or mistreated in any other way, they're free to look for other employment. The "liberal" idea that it's the government's job to "rectify" the situation is, like most "liberal" ideas, deeply misguided.
I'd repeal the portions of the 1964 Civil Rights Act aimed at private employers, as well as all "minimum wage" laws. Let freedom reign.
Should reason-based educational institutions be entitled to fire all employees (or refrain from hiring anyone) gullible and dumb enough to believe (or disingenuous enough to claim to believe) fairy tales are true?
Or do superstitious hayseeds get special snowflake treatment in your world?
This was a terrible decision. What stands out is lack of detailed commentary to show what would qualify as a hostile work environment in some similar instance. Instead of detailed hypotheticals to illustrate what does break the law, we get vague generalizations and assertions that whatever happened in this case, that's not it.
There seems to be a lot of missing details and context. The comments made seem directed at the plaintiffs, which would be good indication that there was racist behavior on both sides. Also likely that this was a long running personal dispute as compared to a one time unprovoked tirade.
I certainly dont condone the behavior, just noting that there is probably much more to the story.
My impression is that the court basically said "even if Yelling's account is completely accurate we don't think it was race based harassment".
There's no indication that there was "racist behavior on both sides" and even if there is "much more to the story" I don't think the court checked. The court looked at the racist remarks and one black nurse quota and decided it was fine.
Absolutely nothing in the account suggests there was "racist behavior on both sides". Joe_dallas just made that up. I'm guessing he can find excuses for racism and White victimhood whenever and wherever he needs.
I live in the real world
In this day and time, it very rare that there are unprovoked racist comments in the workplace. Its going to be even more rare that two or three employees make racist comments in the workplace directed at a particular individual. Thus it is very likely that is some history of between the parties involved.
I will further note that the complaining nurse was the one that got fired. Another indication that the complaining nurse was the problem , not the nurses that made the racist comments.
Is it actually a given that the nurses really made the comments, though? The court took the comments as having happened for procedural reasons given the legal situation. Was there any evidence beyond Yelling's word that they took place?
By contrast, the evidence that led to Yelling's firing was objective tracking data and log entries.
Or an indication that the supervisor was either racist or didn't see the other nurse's racism as a problem.
The relative openness with which the three nurses made their comments and the "black nurse quota" would both seem to support this version.
From the opinion - " But the problem is that Yelling does not cite evidence adequately illuminating the context she says we must consider. She instead relies heavily on generalizations about changing "societal norms"—such as recent civil rights protests and confederate monument removals—that shed no light on what she experienced at St. Vincent's"
Again it was yelling that was fired. Yelling resorting to her comments about social norms etc gives us hints that she was the problem employee.
Now three separate responses and you’ve produced nothing to suggest a single reason for your “racist behavior on both sides” assertion. You’ve said :
1. Racist comments are “rare” in the workplace unless “provoked”. Let’s set aside your tenuous statistical claim to focus on the second half of that. I personally don’t know how I could be provoked into calling Michelle Obama a monkey, saying Obama “needs to go back to Africa”, or refering to black patients as “boy” or “girl,” “crack heads,” “welfare queens,” or “ghetto fabulous.”
Probably you’re easily “provoked” into that kind of talk, Joe_dallas, but not me. Perhaps you can explain what kind of provocation forces racist trash talk?
2. I don’t see why you think Yelling’s behavior had to be the cause of her coworker’s bigoted filth about the Obamas. Whenever they appear in the news, I can go to Fox and read the same same garbage in hundreds and thousands of comments. Monkeys and gorillas usually play a big roll. Pretty strange, since all those commenters haven’t been abused by Yelling. You think they were still “provoked”?
3. Your last response is a treasure. The court can (I guess) parse whether racist trash openly voiced by coworkers creates a “context” for determining a racially hostile work environment claim under Title VII. That’s what courts do, correctly or incorrectly. But God alone knows what that has to do with the crap you’re peddling.
GRB - I am going to repost a comment above -
As I stated - strong indications of Yelling being the racist and problem employee.
Pretty much devastates your critique of my comments.
myself 16 hours ago
Flag Comment Mute User
Ok, you made me curious, from the record:
Friction between Yelling and her coworkers continued. On
January 10, 2016, Yelling had another heated argument with a
nurse. It began while Yelling was at the nurse station talking to the
son of a patient in Room 610. The other nurse approached and accused Yelling of not taking care of the Room 610 patient, forcing that nurse to step in and do Yelling’s job. (The patient was assigned to Yelling.) Yelling filed a workplace violence complaint against the nurse over the incident, although it involved no violence.
When investigating her complaint, Yelling’s supervisors
checked her tracking report. The report showed that Yelling did
not enter Room 610 any time after 4:01 p.m. Yelling, though, had
written on the patient’s chart that she observed the patient be-
tween 7 and 8 p.m. Six CDU employees separately reported that
they saw Yelling at the nurse station after 4:01 p.m., but not in
Room 610.
In February 2016, Yelling met with Dubose, another super-
visor (who was black), and a human-resources representative to
discuss the investigation. These supervisors told Yelling about the
tracking report, about its inconsistency with her written reports,
and about their belief that she falsified the patient’s record. And
citing the alleged falsification, they fired Yelling effective immedi-
ately. Yelling professed her innocence, telling them that her tracker.
GRB there is much more facts - bottom line the racist in the story is the african american nurse name yelling that you chose to blinding defend.
I hope the court had a good reason for taking this case away from a jury. The Seventh Amendment should be observed.
Changing the topic a little, I suppose it would be illegal if the supervisor required the black nurse to attend “training” in which she was blamed for stuff other black people did?
That would certainly be severe and pervasive, I assume.
Happily for everyone, no workplace requires such racist “training” of any class of employees.
Summary judgment: how does it work?
I loathe Obama because of his complicity in destroying the Black community but I am pro-Black.
Again, why is someone talking automatically a 1A matter.
All the mgmt has to say is "STOP OR YOU"RE GONE"
Even a general announcment. Now, yes, some folks are testy and take an admissible comment in the wrong way. But those kind usually violate the same standards themselves.
So let mgmt fire the provokers who don't or won't stop.