The Tenth Circuit said a former Walmart employee presented enough evidence for a jury to hear his hostile-work-environment claim, while affirming the dismissal of his other discrimination-related theories.
What happened
The Tenth Circuit on Monday revived a former Walmart employee’s hostile-work-environment claim alleging anti-gay harassment, reversing part of a summary judgment win for the retailer while leaving the rest of the judgment intact.
Jerry Sharpe-Miller sued Walmart under Title VII and the New Mexico Human Rights Act, alleging sexual-orientation discrimination through disparate treatment, retaliation, a hostile work environment and constructive discharge. The appeals court affirmed the dismissal of his demotion- and termination-based disparate-treatment claims, his retaliation claim and his constructive-discharge claim, but sent the hostile-work-environment theory back for further proceedings.
Writing for the panel, Chief Judge Jerome A. Holmes said the district court wrongly excluded or discounted several alleged discriminatory acts and relied on an incomplete view of Tenth Circuit law when it suggested such a claim could succeed only with a “steady barrage” of discrimination. The panel said Sharpe-Miller had “cited enough evidence” for a reasonable jury to find that he was subjected to a hostile work environment.
The opinion pointed to allegations that Walmart supervisors and coworkers mocked Sharpe-Miller’s mannerisms, used anti-gay comments or slurs, and failed to respond meaningfully to a derogatory drawing on a workplace markerboard. The court said a jury could find Walmart knew or should have known of the alleged hostile environment, noting testimony that supervisors either participated in some conduct or witnessed it.
The panel was not persuaded, however, that Sharpe-Miller could proceed on constructive discharge. Even accepting that he faced repeated homophobic words and gestures, the court said he had not shown that an objectively reasonable employee would have been unable to keep doing the job or left with no reasonable choice but to resign.
The EEOC appeared as amicus in support of Sharpe-Miller on appeal, briefing what it viewed as legal errors in the district court’s disparate-treatment and hostile-work-environment analyses without taking a position on Walmart’s ultimate liability. The case now returns to the District of New Mexico for further proceedings on the revived hostile-work-environment claim.