California’s Northern District Court Denies Recology San Francisco’s Motion For Summary Judgment In a Third Party Race Discrimination Lawsuit

Yarelyn Mena

On December 22, 2015, the California Northern District Court denied Defendant Recology San Francisco’s (“Recology”) motion for summary judgment against its former employee, Daryle Washington, who alleged that Recology discriminated against him based on his race.

On December 10, 2013, Mr. Washington, a material handler for Recology, saw his white co-worker, Jon Peralta, take a noose from the sorting line and place it on the backpack of another black employee, Greg Foster, as if to put it around someone’s neck. Mr. Washington immediately complained of the incident to his superior, Joseph Damele. The following day, Mr. Peralta was suspended without pay pending an investigation, which concluded that his conduct warranted a five-day suspension. Mr. Damele informed all material handlers on Mr. Peralta’s shift of the suspension, emphasizing the company’s “zero tolerance for harassment.”

After Mr. Peralta’s suspension, he was placed next to Mr. Washington on the sorting line. Mr. Washington requested to be moved to another location due to extreme discomfort working with Peralta, but the request was denied. Mr. Washington claimed that he began to have trouble falling asleep and felt depressed due to working next to Mr. Peralta each day.

On January 3, 2014, a co-worker told Mr. Washington that Mr. Peralta removed a copy of “Jet,” one of the oldest African-American magazines in publication, from the sorting line and threw it at an African-American employee. Shortly after the incident was reported, Mr. Peralta was once again suspended without pay. After these incidents, Mr. Washington filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination. On January 23, 2014, after a meeting between Recology’s management, union representatives, and Mr. Peralta, the parties agreed that Mr. Peralta would receive an eleven-day suspension, issue a public apology to his co-workers, and attend sensitivity training through Recology’s employee-assistance program. Also that January, Mr. Washington suffered an off-the-job injury, taking leave from March 2014 until July 2014. Upon his return, Recology finally granted his request to not work with Mr. Peralta.

In November 2014, after receiving a right to sue letter from the EEOC, Mr. Washington commenced a lawsuit alleging race-based harassment in violation of the California Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).

The analysis under FEHA is identical to that under Title VII with respect to an employer’s liability in hostile work environment claims. An employer is liable for fostering a hostile work environment if the employee can show she was subjected to a harassing verbal or physical conduct, the conduct was unwelcome, and the conduct was severe and/or pervasive enough so as to alter the conditions of the employee’s work environment. The environment must also be found both objectively and subjectively offensive, which is determined by whether a reasonable person would find the environment hostile.

Mr. Washington listed three incidents of unwelcome conduct: Mr. Peralta’s use of the noose, Recology’s refusal to move Mr. Peralta after Mr. Washington’s complaint, and Mr. Peralta’s throwing of “Jet” magazine. In deciding whether the noose incident, which was not expressly directed at Mr. Washington, constituted as unwelcome conduct, the court wrote, “The noose is one of the most vile symbols in American history, and it recalls atrocious acts of violence committed against African Americans. The severity of the hostility inherent in a display of a noose cannot be overstated.” As such, the court decided that the incident, although not expressly directed at Mr. Washington, was sufficiently severe to survive Recology’s motion for summary judgment. The court reasoned that the jury may find that Mr. Peralta’s use of the noose on a specific person could communicate a threat of violence to other African Americans at the workplace and thus, “could have unreasonably interfered with a reasonable African American man’s performance.”

If you have felt discriminated against at work, please contact The Harman Firm, LLP.