The Volokh Conspiracy

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The Most Meritless Claim Based on Allegedly Offensive Speech that Resulted in a Jury Verdict for Plaintiff?


Eugene's post today about the dismissal of a case involving the use of an OK sign supposedly being used as a symbol of white supremacy is a good reminder that most dubious cases based on offensive expression get dismissed. Indeed, one significant critique of my book, You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws is that while I documented many very dubious civil rights claims based on offensive speech, many were dismissed before trial, and many others settled. In the latter situations, critics suggested, the problem may have been less the underlying law and more risk-averse defendants and their insurance companies, who settled meritless cases rather than taking them to trial.

Of course, as I (and Eugene) like to point out, even meritless cases can have significant chilling effects if it costs significant resources to defend and/or settle them.

But in any event, there is one incident that stands out in my memory as an especially egregious case that actually not only made it past a motion to dismiss and summary judgment, not only made it to the jury, but resulted in a six-figure jury award to the plaintiff:

[The case] involved Allen Fruge, a white Department of Energy employee based in Texas. Fruge unwittingly spawned a harassment suit when he followed up a southeast Texas training session with a bit of self‐​deprecating humor. He sent several of his colleagues who had attended the session with him gag certificates anointing each of them as an honorary "Coon Ass" — usually spelled "coonass" — a mildly derogatory slang term for a Cajun. The certificate stated that "[y]ou are to sing, dance, and tell jokes and eat boudin, cracklins, gumbo, crawfish etouffe and just about anything else." The joke stemmed from the fact that southeast Texas, the training session location, has a large Cajun population, including Fruge himself.

An African American recipient of the certificate, Sherry Reid, chief of the Nuclear and Fossil Branch of the DOE in Washington, D.C., apparently missed the joke and complained to her supervisors that Fruge had called her a "coon." Fruge sent Reid a formal (and humble) letter of apology for the inadvertent offense, and explained what "Coon Ass" actually meant.

Reid nevertheless remained convinced that "Coon Ass" was a racial pejorative, and demanded that Fruge be fired. DOE supervisors declined to fire Fruge, but they did send him to "diversity training." They also reminded Reid that the certificate had been meant as a joke, that Fruge had meant no offense, that "Coon Ass" was slang for Cajun, and that Fruge sent the certificates to people of various races and ethnicities, so he clearly was not targeting African Americans. Reid nevertheless sued the DOE, claiming that she had been subjected to a racial epithet that had created a hostile environment, a situation made worse by the DOE's failure to fire Fruge.

Reid's case was seemingly frivolous. The linguistics expert her attorney hired was unable to present evidence that "Coon Ass" meant anything but "Cajun," or that the phrase had racist origins, and Reid presented no evidence that Fruge had any discriminatory intent when he sent the certificate to her. Nevertheless, a federal district court allowed the case to go to trial, and the jury awarded Reid $120,000, plus another $100,000 in attorneys' fees. The DOE settled the case before its appeal could be heard for a sum very close to the jury award.

It's been over twenty years since my book came out, and I haven't followed this area of law as closely as I did when I was writing the book. That said, in the meantime I don't think I have come across another civil rights case as weak as this one based on allegedly offensive speech that resulted in a plaintiff's jury verdict.

For those interested, you can read the district court's denial of the defendant's motions for summary judgment and to dismiss on Westlaw at 1996 WL 411494. And by the way, for the record, I contacted the plaintiff's linguistics expert and got ahold of and read his report. The report's inability to document any evidence that "coonass" was a racially derogatory term should have led to the motion for summary judgment being granted.

FWIW, there are also some hostile environment cases, involving race or sex, that involve truly vile behavior that would seem to at least meet the threshold for the "severe and pervasive" standard for hostile environment to get past summary judgment, but that courts nevertheless dismiss.