Anderson v. Durham D&M LLC, No. 09-1758 (8th Cir. May 26, 2010)

By Paul Mollica

An Eighth Circuit decision, affirming a summary judgment in a reverse-race and age claim, represents yet another instance where a harassment plaintiff loses out primarily because he was too unspecific in his complaints to management about the abuse he allegedly suffered from his co-workers.

Anderson v. Durham D&M LLC, No. 09-1758 (8th Cir. May 26, 2010):  Richard Anderson, a Missouri school driver (age 75 and white), was terminated after three accidents deemed “preventable.” He alleged, in addition to his termination claim, that he was subjected to a hostile work environment and offered the following record:

“According to Anderson’s testimony, a group of five to seven African American employees stood outside Durham’s office and called him names as he passed by nearly every time he saw them for almost his entire employment. These individuals called him racial slurs, including at times ‘white bitch’ and ‘cracker,’ on a number of occasions, as well as other profane names such as ‘motherf***er’ and ‘a**hole’ on a more regular basis. It is undisputed that he complained to Chapman at least once in fall 2006 that employees were calling him names. However, he acknowledged at deposition that he told her that the employees were ‘foulmouthed’ and that he was being called names, but did not repeat the ‘dirty’ words used or tell her the name calling was racially inappropriate.”

Understandably, the panel – though prepared to assume that the co-workers’ behavior was severe or pervasive – affirmed that the employee was too vague in his complaint to put the employer on notice of a racial incident:

“On appeal, Anderson has primarily focused his arguments on the name calling by the group of African American employees who stood outside Durham’s office. Even assuming the conduct
was objectively severe, we agree with Durham that there is insufficient evidence management was aware of the racial nature of the harassment. The record does not establish that any manager was physically present when the name calling occurred; any subjective belief on Anderson’s part that [manager] Chapman heard the language from the office cannot defeat summary judgment on this point. Anderson acknowledged that he told Chapman he was being called names and that the employees were ‘foulmouthed.’ He has failed to point to any evidence indicating that he even suggested to her these comments were racially motivated. [Citation omitted.] Even considering Anderson’s testimony that he complained to Chapman about Owens’s racial comments, we cannot say on this record that Chapman should have realized that the name calling, by different employees under dissimilar circumstances, was racially motivated as well.”

The lesson, as always, is that registering a complaint about hostile treatment is not the same as complaining about racially hostile treatment. Incidentally, the plaintiff also complained about age harassment, but the epithets – “fuzz ball” and “Spongebob Square Pants.” – were considered by the panel to be at most speculatively related to age.