On April 30, 2014, the United States Court of Appeals for the Ninth Circuit reinstated a lawsuit filed by Plaintiff Ronald El-Malik Curtis against the City of Oakland, and several individual city officials on the ground that facially-neutral conduct could support a finding of racial animus sufficient to sustain a hostile work environment claim when other racially-discriminatory conduct is present. (Curtis v. City of Oakland, No. 12-15831, per curiam.)

Plaintiff, an African-American firefighter and paramedic filed a lawsuit in 2010 claiming that he and several of his African-American colleagues working for the Oakland fire department were being harassed and subjected to a hostile work environment on the basis of their race.  Of the three shifts that comprised Plaintiff’s particular fire department unit – referred to as Shifts A, B, and C – all African-American firefighters in the unit were staffed to Shift B.  Plaintiff alleged that firefighters working Shifts A and C would frequently make disparaging comments about the firefighters working on Shift B, often referring to Shift B employees as “the brothers.”  In addition, on more than one occasion Shift B employees found their personal items missing or vandalized, their food tampered with and, on one occasion, a dead bird was found underneath Plaintiff’s bed at the station house.

District Court Judge Susan Illston granted summary judgment to defendants on the grounds that even if Plaintiff’s allegations of pervasive mistreatment were true, there was no evidence to suggest that the abusive treatment Plaintiff suffered was racially-motivated.  Indeed, the events alleged by Plaintiff were facially race-neutral, aimed more at humiliating Plaintiff’s shift generally than at Plaintiff particularly, and several actions — such as the food-tampering and dead-bird incidents — lacked a known perpetrator.  Under these facts, the District Court determined that Plaintiff could not sustain a claim for hostile work environment race discrimination.

The Ninth disagreed, finding that a reasonable jury could interpret the behavior alleged by Plaintiff may have unlawfully targeted Shift B on race-related grounds. The Court reasoned that “although some of the conduct appeared to be directed at Curtis’s shift, in general – as opposed to African Americans, specifically – the circumstances suggest that Curtis’s shift may have served as a proxy for the animus particularly given that it was predominantly made up of African-Americans and there were no other African-Americans on the other shifts during the relevant time period.”  On these grounds the District Court’s summary judgment ruling was reversed and the case remanded.

The Curtis decision arguably broadens the scope of liability for hostile work environment claims brought federal courts within the Ninth Circuit.  Employers should be mindful that repeated antagonistic behavior aimed a particular shift or other work segment predominantly comprised of protected classmembers — even if facially race-neutral — may provide a sufficient basis to withstand summary judgment proceedings if a hostile work environment claim is ever litigated.