“[A]lthough words not directly related to race may sometimes constitute racial harassment, there must be a surrounding context in which it is clear that a comment is ‘intended as a racial insult.’” (emphasis added)
How later courts described this case
- “[A]lthough words not directly related to race may sometimes constitute racial harassment, there must be a surrounding context in which it is clear that a comment is ‘intended as a racial insult.’” (emphasis added)
- finding that facing two racist comments or conduct in the workplace over the course of twenty years is insufficient for finding a hostile work environment
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JENNIFER WELLS-MARSHALL, )
)
Plaintiff, )
)
v. ) Case No. 3:22-cv-00086-RAH
) [WO]
AUBURN UNIVERSITY, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer Wells-Marshall was reprimanded and later terminated as
Executive Director for the Family Child Care Partnership, a program within Auburn
University’s College of Human Sciences. Wells-Marshall now sues Auburn
University and Dr. Angela Wiley, her former supervisor, for race discrimination,
retaliation, and fostering a race-based hostile work environment. Before the Court
is the Defendants’1 Partial Motion to Dismiss, which seeks dismissal of the hostile
work environment claim in the First Amended Complaint (Complaint) only. The
motion is ripe for resolution. For the following reasons, the motion is due to be
GRANTED.
1 The Defendants will be collectively referred to as Auburn.
I. BACKGROUND
Wells-Marshall is an African American female who has been employed with
Auburn since 2005. In June 2019, Wells-Marshall was promoted to Executive
Director of the Family Child Care Partnership (FCCP), a program within Auburn’s
College of Human Sciences. (Doc. 16 at 4.) In her new position, Wells-Marshall
was supervised by Dr. Angela Wiley, the former Executive Director. (Id. at 4, 8.)
Wells-Marshall claims that she inherited a “sinking ship” caused in large part by the
mismanagement of Dr. Wiley, who was never reprimanded or held accountable for
the FCCP’s problems and failures. (Id. at 7, 8-9, 17.)
Wells-Marshall’s tenure as the Executive Director was brief and full of
conflict. She claims that Dr. Wiley held black employees to different standards than
white employees, undermined and did not support her, gave her an unjustified
remand because of wrongful accusations by other employees of rude and demeaning
conduct, and allowed her to be treated poorly by other staff. For example, Wells-
Marshall claims that a white subordinate verbally attacked her in front of other
employees in June 2020 after she refused to reschedule a training session. (Id. at 4.)
Wells-Marshall sought to reprimand the employee, but this effort was rebuffed by
Dr. Wiley. (Id. at 4-5.) According to Wells-Marshall, this was because Auburn
would not reprimand white employees, and would only reprimand black employees.
(Id. at 5.)
Then, after complaining about the double-standard toward black employees,
Wells-Marshall was reprimanded in July 2020 for her conduct toward other
employees, including allegedly curt emails, cutting someone off during a
conversation, and being intimidating, aggressive, and threatening towards others—
allegations that she disputed as conflicting with the actual facts and the opinions of
other co-workers. (Id. at 5-6, 13.)
On another occasion, Wells-Marshall sought to remove a poorly performing
managing director from a position, only to be undermined by Dr. Wiley, who
reassigned the employee to another position and refused to properly document the
employee’s poor performance. (Id. at 9–10.) Dr. Wiley, according to Wells-
Marshall, would not give poor performance reviews to white employees while she
would give poor performance reviews to black employees. (Id. at 10–11.)
The FCCP managed Auburn’s Early Head Start program. (Id. at 9.)
Beginning with Dr. Wiley’s tenure as FCCP Executive Director, the Auburn Early
Head Start program was often noncompliant with Alabama Department of Human
Resource’s contractual obligations. (Id. at 12–14.) Wells-Marshall claims that she
was wrongfully accused of not following directives and asking too many questions
about the program, and she was given unreasonable timelines to correct issues that
largely pre-dated her tenure as Executive Director. (Id. at 13-14.) After forwarding
her concerns about the program to Head Start team members, Dr. Wiley counseled
her against upsetting the staff and told her not to discipline any staff members for
failing to meet contractual obligations. (Id. at 14-15.) She also directed Wells-
Marshall not to discuss the issues with the Department of Human Resources. (Id. at
15.)
As it concerned Wells-Marshall’s treatment of her white employees, Dr.
Wiley told her that she should take more time to get to know them, that they would
respond better with honey not vinegar, and that she needed to respond to emails more
quickly. (Id. at 15–16.) According to Wells-Marshall, Dr. Wiley allowed employees
to send inappropriate emails to Wells-Marshall and to yell at Wells-Marshall, yet
told her she should ignore the offending conduct. (Id. at 18.)
Wells-Marshall also says Dr. Wiley instructed her to correct Early Head
Start’s non-compliance issues but did not require white employees to do the same.
(Id. at 16.) Dr. Wiley also gave white employees leniency and raving performance
reviews. (Id. at 16, 18.)
Eventually, Dr. Wiley expressed her disappointment in hiring Wells-Marshall
for the FCCP. (Id. at 17–18.) In October 2020, after Wells-Marshall had contacted
the dean of the College of Human Sciences to address what Wells-Marshall deemed
to be a hostile work environment, she was terminated from her executive director
position, effective seven months later. (Id. at 18.) No reason was given for the
termination other than that it was in the best interest of the college. (Id. at 18.)
II. LEGAL STANDARD
A motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure
tests the sufficiency of a complaint against the legal standard articulated by Rule 8:
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a). A district court accepts a plaintiff’s factual allegations
as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes them “in
the light most favorable to the plaintiff,” Duke v. Cleland, 5 F.3d 1399, 1402 (11th
Cir. 1993).
“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal quotations and citations omitted). To survive a motion to dismiss,
a complaint need not contain “detailed factual allegations.” Id. Instead, it must
contain “only enough facts to state a claim to relief that is plausible on its face.” Id.
at 570. Still, the factual allegations “must be enough to raise a right to relief above
the speculative level.” Id. at 555. A claim is “plausible on its face” if “the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
III. DISCUSSION
Count Two is a claim alleging a racially hostile work environment in violation
of Title VII. Auburn seeks dismissal of this claim, arguing that the factual
allegations, even when assumed true, do not state a plausible claim to relief for race-
based harassment. The Court agrees.
“A hostile work environment claim under Title VII requires proof that the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment.” Fernandez v. Trees, Inc., 961 F.3d
1148, 1152 (11th Cir. 2020) (internal quotation marks and citation omitted). To
plead a hostile work environment claim, a plaintiff must show:
(1) that [she] belongs to a protected group; (2) that [she] has been
subject to unwelcome harassment; (3) that the harassment must have
been based on a protected characteristic of the employee []; (4) that the
harassment was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive
working environment; and (5) that the employer is responsible for such
environment under either a theory of vicarious or of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). “Only
conduct that is based on a protected category, such as race, may be considered in a
hostile work environment analysis.” Jones v. UPS Ground Freight, 683 F.3d 1283,
1297 (11th Cir. 2012).
Auburn argues for dismissal, claiming Wells-Marshall has not plausibly
alleged sufficient facts to establish that the alleged harassment was sufficiently
severe or pervasive to alter the terms and conditions of employment and that it was
based on her race.
To the extent Auburn argues that the alleged harassment has no connection to
race, Auburn is making a causation argument. A defendant does not have to engage
in facially or explicitly racist harassment (like using racial epithets) to be found liable
for creating a hostile work environment. To claim facially neutral conduct rises to
the level of racial harassment, however, the surrounding context must clearly
demonstrate that the conduct was intended as a racial insult. Ambus v. AutoZoners,
LLC, 71 F. Supp. 3d 1280, 1300 (M.D. Ala. 2014) (“[A]lthough words not directly
related to race may sometimes constitute racial harassment, there must be a
surrounding context in which it is clear that a comment is ‘intended as a racial
insult.’” (emphasis added)) (citing Jones v. UPS Ground Freight, 683 F.3d 1283,
1297 (11th Cir. 2012)). Wells-Marshall’s Complaint has not met this standard.
Wells-Marshall’s Complaint is comprised solely of conclusory allegations
that she faced racial harassment at Auburn. For example, Wells-Marshall alleges
that black employees faced a double standard for expectations and discipline, Dr.
Wiley undermined her and did not support her, she was wrongfully accused of
inappropriate conduct toward other employees that resulted in an unjustified
reprimand, she was poorly treated by fellow staff, and she was ultimately terminated
as executive director in October 2020. But even in the light most favorable to Wells-
Marshall, no substantive facts in her complaint create the inference that this
treatment was based on race rather than other plausible reasons, including
differences in management styles and personality conflicts. To simply make the leap
that she was treated poorly in the workplace as compared to other employees because
she was black and her supervisor and her complaining subordinates were white, or
that black and white employees faced double standards, in a conclusory fashion and
without providing specific examples of dissimilar treatment for similar conduct is
insufficient.
But even assuming that Wells-Marshall was harassed based on her race,
Wells-Marshall also has failed to plead sufficient facts plausibly showing that the
alleged harassment was sufficiently severe or pervasive to alter the terms and
conditions of her employment.
When evaluating the objective severity of an alleged hostile work
environment, a court must consider “(1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably
interferes with the employee’s job performance.” Corbett v. Beseler, 635 F. App’x
809, 816 (11th Cir. 2015) (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1246
(11th Cir. 1999) (en banc)). “Title VII is not a general civility code; ‘ordinary
tribulations of the workplace, such as sporadic use of abusive language, [race-
related] jokes, and occasional teasing’ cannot form the basis of a claim for actionable
harassment or hostile work environment.” Corbett, 635 F. App’x at 816 (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation and internal
quotation marks omitted)). “Title VII ‘is not a shield against harsh treatment in the
workplace’; ‘[p]ersonal animosity is not the equivalent of [race] discrimination.’”
Id. (quoting Succar v. Dade Cnty. Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000)
(citation and internal quotation marks omitted)).
Wells-Marshall avers that, over the course of several months, she inherited a
“sinking ship” of a department, she was verbally berated by a subordinate who she
wanted to reprimand but who her supervisor did not, she was unjustly reprimanded,
she faced double standards concerning her supervisor’s treatment of white
employees versus black employees, she was inappropriately accused of threatening
other employees and being curt, aggressive, and intimidating, she was held to a
different standard by her supervisor when compared to others, and she was wrongly
terminated as executive director after complaining of a hostile work environment.
Yet, she only cites to a few discrete incidents in her Complaint. These acts and the
others asserted in the Complaint are certainly rude and unprofessional, if true.
Nevertheless, they do not rise to the level of severe or pervasive harassment or
hostility that would alter the terms and conditions of employment.
The Eleventh Circuit has repeatedly found much more abhorrent conduct to
be nonetheless insufficient to state a hostile work-environment claim. See, e.g.,
Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1254 (11th Cir. 2014) (finding that
a reasonable jury could not find a workplace objectively hostile where a black
employee regularly saw the Confederate flag, regularly saw racist graffiti in the
bathroom, heard people say the n-word a “few times over several years,” and heard
about a noose being placed in the workplace bathroom); Singleton v. Auburn Univ.
Montgomery, 520 F. App’x 844, 848 (11th Cir. 2013) (finding that facing two racist
comments or conduct in the workplace over the course of twenty years is insufficient
for finding a hostile work environment); Barrow v. Georgia Pac. Corp., 144 F.
App'x 54, 57 (11th Cir. 2005) (finding conduct insufficiently severe where a
superintendent would regularly call a black employee “boy,” called him a “n****r”
three times in one year, told the employee three times that he was going to kick the
employee’s “black ass,” and when the employee reported this conduct to his
supervisor, the supervisor responded, “you is a n****r”).
Additionally, when courts have dealt with similar workplace unpleasantness
as here, they have found that the conduct was insufficiently severe or pervasive to
support a hostile work environment claim. See, e.g., Malone v. U.S. Att'y Gen., 858
F. App'x 296, 301–02 (11th Cir. 2021) (finding conduct insufficiently severe where
a plaintiff alleged that his boss “assigned him additional work, subjected him to
discipline after he failed to file a required form after an inmate's death, and verbally
abused him by ‘nitpicking every task’ he completed and ‘harassing’ him for filing
an evaluation late.”); Elite Amenities, Inc. v. Julington Creek Plantation Cmty. Dev.
Dist., 784 F. App'x 750, 753 (11th Cir. 2019) (holding that “a board member’s
uninvited, unpleasant office visits; physical engagement with the employee’s work
papers; and harsh emails are nothing more than ordinary tribulations of the
workplace.”); Hutchinson v. Auburn Univ., No. 3:18-CV-389-ALB, 2020 WL
1905968, at *1–4 (M.D. Ala. Apr. 17, 2020) (dismissing claim where the complaint
alleged that a black employee’s supervisor was more comfortable with white
employees and treated plaintiff rudely compared to his treatment of white
employees, told plaintiff he did not trust her, gave her disciplinary write-ups,
removed some of her duties, scrutinized her time sheets, and protected white
employees); Thomas v. Auburn University, No. 3:21-cv-192-RAH-SMD, 2022 WL
428160 (M.D. Ala. Feb. 11, 2022)(dismissing hostile work environment claim).
In short, Wells-Marshall’s allegations do not plausibly support a claim that
Auburn’s actions constituted sufficiently severe or pervasive harassment based on
race and therefore Wells-Marshall’s hostile work environment claim (Count Two)
is due to be dismissed.
IV. CONCLUSION
Accordingly, it is hereby ORDERED as follows:
(1) The Defendants’ Partial Motion to Dismiss (Doc. 21) is GRANTED;
(2) Count Two for a hostile work environment is DISMISSED;
(3) Counts One and Three shall proceed.
DONE, on this the 3rd day of November, 2022.
/s/ R. Austin Huffaker, Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE