Racial Language And Racial Harassment

Zerlean Cooper, an African-American, worked for the California Department of Corrections and Rehabilitation. On October 5, 2005, a Ms. Sanchez (who was an ex-felon) visited the prison and called another lieutenant to complain that Cooper would not let Sanchez’s children enter the prison. Sanchez had not followed the appropriate procedure. Sanchez used the term “nigger” twice while referring to Cooper during the call.

Neither the lieutenant nor any other individual remonstrated against Sanchez about using the term “nigger” in reference to Cooper. On October 19, 2005, the prison refused to accept Cooper’s complaint against Sanchez for discrimination. However, on December 26, 2006, the prison’s EEO Coordinator notified Cooper that the Department would not accept her complaint about Sanchez because Cooper allegedly failed to establish that she “suffered a specific harm based partly or wholly upon a protected group basis.”

On December 30, 2009, Cooper, who suffered from a series of performance problems, retired early after 22 years of service. She then sued the Department, alleging that she was subjected to a hostile work environment based upon her race. Cooper primarily pointed to Sanchez’s comments and the Department’s response to them.

A federal court dismissed Cooper’s complaint. The Court found that “there is no doubt that the term ‘nigger’ is an invidious, demeaning, and unacceptable racial slur. Nevertheless, the failure of the Department to do anything about ex-felon Sanchez’s isolated, irate telephoned comment is itself an isolated, singular incident. It is recognized that isolated and sporadic instances in which offensive language is used, including racial epithets, are by themselves insufficient to constitute a racially hostile work environment.

“Cooper is correct that it is possible for an employer to be liable under Title VII for a hostile work environment created by customers/third parties. However, the facts must indicate a subjectively and objectively hostile work environment created through multiple discriminatory occurrences.

“Cooper has alleged conduct that created an uncomfortable working environment for her. She also alleges that a reasonable African-American in her position would have found a racially hostile work environment. Despite this legal conclusion, the allegations do not indicate that any harassing conduct was because of Cooper’s race or that any racial harassment was sufficiently severe and pervasive. The only events that are related to race are isolated and sporadic events, those events did not alter the terms or conditions of employment, and the persons responsible for those events (speaking the offensive comments or not remonstrating) did not do or say anything further against Cooper. A reasonable African-American would not find the alleged work environment to be sufficiently hostile.”

Cooper v. Cate, 2012 WL 1669353 (E.D. Cal. 2012).