The United States Court of Appeals for the Fourth Circuit recently affirmed summary judgment in favor of the employer in a case involving an allegation of a racially hostile work environment, which was supported by shocking evidence, including racial slurs, a noose, and even a KKK-style hood. Read on to learn how this employer has – so far* – escaped liability in the face of such egregious evidence.   

The plaintiff, John L. McKinney, Jr., has worked as a security officer for defendant G4S Government Solutions, Inc. at the Radford Army Ammunition Plant since September 2005. Beginning in 2011, McKinney – who is African American – experienced several incidents of racism at the Radford Plant.  In 2011, a janitor used the “n-word” in McKinney’s presence, although it was not directed at McKinney.  Next, in 2012, the fire chief remarked to McKinney that G4S had hired a “colored boy.” Then, on May 23, 2013, the project manager and highest ranking supervisor at the Radford Plant asked McKinney if he knew there was a noose hanging on a nail inside a small, closed cabinet outside the security captain’s office.  Over McKinney’s objections, the supervisor directed McKinney to dispose of the noose.  As McKinney was walking away with the noose, the janitor, the same one who previously used the n-word, remarked, “I know what to do with that. I can use that around my house.”  Because the janitor lived in a neighborhood with a large African American population, McKinney interpreted the janitor’s comment as suggesting he would use the noose on his African American neighbors.  Later that same day, McKinney walked into a supply closet and observed the project manager standing on a ladder, holding a white sheet over an employee’s head so that it resembled a KKK hood.  On May 24, the day after the racially charged incidents, McKinney received two counseling write-ups – which he characterized as “bogus” – for failing to complete paperwork.

Significantly, G4S’s harassment policy required McKinney to “immediately” report any harassment to his supervisor, a manager, or the HR department; however, he failed to do so.   Ultimately, however, on May 31, G4S’s senior vice president learned of McKinney’s concerns via a report made by the receptionist.  The SVP met with McKinney, apologized to him, and promised a thorough investigation, which, indeed, commenced immediately thereafter.  As part of the investigation, an HR representative met with McKinney, and following that meeting, McKinney allegedly suffered from retaliation:  he was excluded from meetings, experienced vandalism of his personal vehicle, was micromanaged by his supervisors, and was asked if he was going to quit.  G4S suspended and subsequently terminated the supervisor involved in the May 23^rd incidents and recommended that the other employees undergo diversity training.  McKinney continues to work at the Radford Plant and — after the May 23^rd incidents — received a promotion.

McKinney sued G4S, asserting claims for hostile work environment, retaliation, and intentional infliction of emotional distress. G4S moved for summary judgment.  The district court dismissed the retaliation and intentional infliction of emotional distress claims.  As to McKinney’s hostile work environment claim, the district court found that McKinney had advanced sufficient evidence to establish his claim.  The court concluded, however, that G4S was entitled to the benefit of the Faragher/Ellerth affirmative defense because McKinney had not experienced any tangible employment action, such as termination or demotion; G4S had exercised reasonable care to prevent and correct any harassing behavior; and McKinney had unreasonably failed to take advantage of the preventative or corrective opportunities that G4S provided.

On appeal, the Fourth Circuit affirmed. The Court agreed that McKinney had not suffered any tangible employment action because his two write-ups, transfer to a new shift (which was associated with his promotion), and alleged exclusion from meetings did not alter his salary, benefits, work responsibilities, or employment status. Likewise, the Fourth Circuit agreed that G4S was entitled to the Faragher/Ellerth defense because: (1) the company had exercised reasonable care to prevent harassing behavior by distributing an anti-harassment policy and promptly investigated and corrected harassing behavior by suspending and then firing the perpetrator-supervisor and mandating diversity training for others; and (2) McKinney had unreasonably failed to take advantage of available preventative or corrective measures because he did not immediately report the incidents to G4S.  Thus, the Court ruled that summary judgment was proper.

This case is a textbook example of why employers should ensure that they: (1) have an anti-harassment policy in place which requires employees to report harassment and directs employees to whom and how to make such a report, (2) conduct swift but thorough investigations upon receiving harassment complaints, and (3) promptly impose remedial action, which may range from training to termination, as appropriate. G4S did all of these things and was able to avoid having to defend against McKinney’s allegations before a jury.

*The Fourth Circuit is currently considering a petition filed by McKinney seeking rehearing en banc.  If granted, the entire Fourth Circuit, as opposed to just a panel of three judges, would reconsider the case.