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‘Boorish conduct’ may not mean ‘hostile’ on the job, judges say

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DENVER – A Native’s light skin color may play a role in offensive workplace remarks, but the questionable interchange doesn’t violate the law, an appellate court has ruled.

A three-judge panel of the 10th Circuit Court July 1 upheld, with one dissent, a lower court in a case involving an Oklahoma City Indian Clinic worker who said she was harassed because of her light skin color and then fired when she filed a complaint about it with the Equal Employment Opportunity Commission.

Renee Nettle, identified as Delaware/Caddo, filed an unsuccessful anti-discrimination lawsuit against the clinic where she had received positive evaluations during employment in child and youth services from 1993 until 2004, when she was terminated.

“Most people to look at me they don’t see me as Indian – identifiably Indian,” Nettles said in the court record, which notes that she is “half-Caucasian,” and that she said she was “by far the person with the ‘lightest skin color’” in her work area.

The clinic, an IHS facility, is headed by Terry Hunter, who is “part Caucasian and part Native American with tribal membership in the Kiowa Tribe and tribal affiliation in the Delaware Nation and the Caddo Tribe,” according to the court, which notes that “his skin pigmentation is darker than Ms. Nettle’s.”

In her complaint, Nettle said the director made “frequent comments in the workplace about different Native American tribes whose skin colors were lighter or darker than other Native American tribes and suggested that some employees were too ‘white.’”

According to Nettle, he also said, “She thinks she’s Indian, but we wonder.”

Affidavits from other employees allege that those who did not appear “Indian” were treated differently at the clinic, where a federal Indian preference hiring practice is in place for purposes of furthering tribal self-governance and meeting the government’s federal trust responsibilities.

Nettle filed in 2004 with the EEOC, alleging discrimination based on race, color and age, stating that she and others were treated differently because of tribal affiliation or skin color and a “hostile work environment” was created. She contended her subsequent firing was retaliatory, filed a second EEOC complaint, and then filed suit against the clinic in federal district court.

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The appellate court said there was no admissible evidence showing the clinic had received notice of Nettles’ EEOC charges before it fired her for misconduct, charging she continued counseling patients after she had been told to stop.

Further, a hostile work environment as defined by law is “one that a ‘reasonable person would find hostile and abusive’” and generally entails a “steady barrage of opprobrious comments” while Nettles’ allegations constitute “sporadic slurs.”

The court said Nettle gave few details about the frequency and content of discriminatory comments, some of which she said were directed at Comanches, Cheyennes, and Cherokees – tribes not of her affiliation. Some of the comments were “made jokingly,” she said, according to the court record.

“We can see that at many points during her employment, the clinic was not a pleasant place for Ms. Nettle to work,” the appellate justices said. “People said crude things, pet projects were taken away from her, and she was made to feel singled out because of her Caucasian appearance.”

But, the court concluded, “unpleasant and boorish conduct does not create a hostile work environment” within the meaning of the law, and “incidents spread out over many years, and which indicate mostly poor taste and lack of professionalism, do not rise to the level of a hostile work environment.”

Circuit Judge Mary Beck Briscoe dissented in one area from the opinions of Circuit Judges Paul J. Kelly and Michael W. McConnell, noting she did not regard Nettle’s workplace “as merely ‘unpleasant’ and not ‘hostile.’”

“Nettle does not allege simply boorish conduct or behavior in bad taste. She alleges conduct that ‘singled (her) out because of her Caucasian appearance,” Briscoe said, “including frequent racially-based comments, jokes, and decisions that impacted her job duties.”

Nettle’s allegation that she was prevented from representing the clinic in the community because she did not “look Indian” gives weight to her charge of hostile work environment, the justice said.

Nettle’s allegations as a whole raise the factual issue of whether “her workplace was permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of (her) employment,” Briscoe said, noting that she would reverse the lower court’s decision granting summary judgment to the Oklahoma City Indian Clinic.