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Lounds v. Lincare, Inc.

United States Court of Appeals, Tenth Circuit

December 22, 2015

SHAWRON LOUNDS, Plaintiff-Appellant,
v.
LINCARE, INC., Defendant-Appellee

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Appeal from the United States District Court for the District of Kansas. (D.C. No. 6:13-CV-01091-RDR).

Anne Schiavone, Holman Schiavone, LLC, Kansas City, Missouri (Sophie A. Woodworth, Holman Schiavone, LLC, Kansas City, Missouri, with her on the briefs), for Plaintiff-Appellant.

Stephanie N. Scheck, Stinson Leonard Street LLP, Wichita, Kansas (Jesse. Tanksley, Stinson Leonard Street LLP, Wichita, Kansas, with her on the brief), for Defendant-Appellee.

Before KELLY, HOLMES, and McHUGH, Circuit Judges.

OPINION

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HOLMES, Circuit Judge.

Shawron Lounds appeals from the district court's order granting summary judgment to her former employer, Lincare, Inc. (" Lincare" ), on her claims of a hostile work environment in violation of 42 U.S.C. § 1981 and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part. Specifically, we affirm the district court's grant of summary judgment on Ms. Lounds's claim for retaliation, but we reverse the court's grant of summary judgment on her discrimination claim and remand for further proceedings.

I

On an appeal from a ruling granting summary judgment, " 'we examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party,' without making credibility determinations or weighing the evidence." Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 953 n.2 (10th Cir. 2012) (quoting Pinkerton v. Colo. Dep't of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009)). The following facts are recited accordingly.

A

Lincare is a nationwide provider of at-home medical services with headquarters in Florida and, as germane here, a satellite facility in Wichita, Kansas. At all times relevant to this appeal, Lincare employed approximately twenty individuals at its Wichita location. Ms. Lounds began working at that office as a customer-service representative in September 2011. She is African-American and, throughout the duration of her employment with Lincare, was the Wichita office's only African-American employee.

Suzanne Kraft, the Wichita facility manager, hired Ms. Lounds and was her direct supervisor. Ms. Lounds alleges that when she first reported to work, Ms. Kraft asked if her name was " Shaquita" and, after asking Ms. Lounds to introduce herself in a group setting, said, " I thought your name was Shaniqua!" J.A. at 267 (Mem. for Record, dated Feb. 3, 2012). At least one of Ms. Lounds's co-workers has stated that before Ms. Lounds's start date, Ms. Kraft mentioned having interviewed Ms. Lounds, calling her " the cute black girl," id. at 480 (Llamas Dep., dated Oct. 9, 2013), and " Shaniqua or Shanay or something," id. at 487.

In October 2011, a truculent male customer phoned the Wichita office and threatened to harm the employees. Ms. Lounds alleges that when she reported the call, Ms. Kraft instructed her to give the customer " attitude," id. at 271, and to " get ghetto" with him, id. at 111 (Lounds Dep., dated Aug. 21, 2013). Ms. Kraft was overheard commenting about how " mean" this customer was and saying that " by the sounds of his voice she imagined that he was a big African American man." Id. at 506 (Renard Dep., dated Oct. 9, 2013). When the customer later visited the office, Ms. Kraft approached Ms. Lounds and said of him, " No offense, he's a . . . little white guy." Id. at 111.

On November 14, 2011, Ms. Lounds happened upon some of her coworkers discussing an African-American man who had recently killed his wife. She listened as Kevin Kunz stated, " [W]e need to bring back lynching, because we have enough trees." [1] Id. at 267. According to Ms. Lounds, Mr. Kunz first attempted to clarify

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that he was " not racist, and there was nothing wrong with lynching," before he approached her to say, " I'm not trying to offend you[; ] it's not like I said 'let[']s go down [to] 9th and Grove (the Black Neighborhood) and drag every black person with a noose, tie them to a truck and drag them after hanging them.'" Id. When Ms. Lounds objected to his commentary, Mr. Kunz rejoined that she should not be so sensitive.

Ms. Lounds alleges that on January 14, 2012, co-worker Laynee Kempke entered the office, announced that she had " just c[o]me back from the 'Hood' seeing a patient," and began chanting, " BOOM!" and " Boom, Nigga!" Id. at 268. After that incident, at least one co-worker relayed to Ms. Lounds that Ms. Kempke had previously " said or used the 'N Word,'" most notably by saying " Peace out my Nigga!" Id. Ms. Lounds told Ms. Kempke that remarks of this nature upset her.

During a staff meeting on January 17, 2012, Ms. Kraft asked co-worker Nathan Van Dever--the only male employee in attendance--if he felt " like a minority." Id. at 268. At some point in the course of the meeting, Ms. Kraft explained that company vice president Greg McCarthy was planning to visit Lincare's Wichita office; she directed the employees to address Mr. McCarthy by saying, " YES MASSA." Id. at 269. One employee present during the incident observed that Ms. Kraft's " 'yes, massa' did offend [Ms. Lounds] very visually" and that Ms. Lounds " had tears in her eyes" after the meeting. Id. at 506.

On January 26, 2012, during an office pizza lunch, Mr. Kunz " kept saying things like 'I never go in the ghetto[; ] the hood has gangsters.'" Id. at 273. Shortly thereafter, he approached Ms. Lounds and said, " you know . . . the HOOD!" Id. A co-worker standing near Ms. Lounds asked what Mr. Kunz meant; Mr. Kunz replied that there were " a lot of minorities there [i.e., in the 'ghetto'] and it's dirty, it's run down." Id. at 482.

Mr. McCarthy visited Lincare's Wichita facility on January 27, 2012. While he was attending a staff meeting, employee Amber Renard reported that " there was some racial commentary [involving Ms. Lounds] that needed [his] attention." Id. at 221 (McCarthy Dep., dated Oct. 14, 2013). After the meeting adjourned, Mr. McCarthy spoke privately with Ms. Lounds and learned that she was indeed troubled by some " offensive" statements. Id. He asked Ms. Lounds to put these concerns in writing and indicated that he would contact human resources. Mr. McCarthy then called Paula Adams, Lincare's director of employee relations, to request a follow-up investigation regarding Ms. Lounds's allegations.

Pursuant to Mr. McCarthy's instructions, Ms. Adams called district manager Jeremy Felts later that day to discuss Ms. Lounds's concerns. Mr. Felts then summoned Ms. Lounds and Ms. Renard for a teleconference with Ms. Adams. During this phone call, Ms. Lounds told Ms. Adams that: (1) Ms. Kempke had said " boom nigga," id. at 108, and " peace out nigga," id. at 236 (Adams Aff., dated Nov. 19, 2013), in the office; (2) Mr. Kunz had discussed lynching; (3) Mr. Kunz had said that " Hitler would be proud of him because of his blue eyes, but not . . . his black hair," id. at 108; (4) Ms. Kraft had instructed employees to address Mr. McCarthy by saying " yes massa," id. at 236; (5) Ms. Kraft had asked Ms. Lounds why African-American parents choose names like " Roshonda" and " Shawron" for their children, id. at 108, 236; and (6) Mr. Van Dever had asked Ms. Lounds if she smoked Newport cigarettes and " why . . . all black people smoke Newports," id. at 108. Ms. Adams and Mr. Felts " mutually agreed" that Ms. Kempke, Mr. Kunz, and

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Ms. Kraft would be disciplined for their alleged conduct. Id. at 236.

On January 30, 2012, Mr. Felts issued final written warnings to Ms. Kempke, Ms. Kraft, and Mr. Kunz, noting that these individuals had " made inappropriate, racially motivated comments in the [workplace]," id. at 256, 259, 262 (Final Written Warnings, dated Jan. 30, 2012), and that Ms. Kraft had also " witnessed and allowed other individuals who report directly to [her] to make similar comments in the [workplace]," id. at 259. The warning documents advised that subsequent breaches of Lincare's " Anti-Discrimination/Anti-Harassment policy" would result in the " immediate termination of [their] employment." Id. at 256, 259, 262. Also on January 30, Mr. Felts led an inservice training of approximately ten minutes in duration " to make sure everyone was clear on [the] company policy on anti-discrimination and harassment." [2] Id. at 131 (Felts Dep., dated Oct. 10, 2013). The sign-in sheet from this training indicates that Ms. Kempke attended, but Ms. Kraft and Mr. Kunz did not. See id. at 265 (In-Service Record, dated Jan. 30, 2012) (reflecting no signatures by Ms. Kraft and Mr. Kunz); see also id. at 468 (Kraft Dep., dated Oct. 10, 2013) (comment by Ms. Kraft that if she had attended, " [her] signature would be on the sheet" ).

In that same general time period, a picture of a garden hung on the wall behind the desk of employee Jennifer Llamas. A customer visiting the Wichita office remarked to Ms. Llamas that he found the picture " pretty" and thought " [it] probably took a lot of slaves . . . to make it [i.e., the garden depicted] look that good, . . . but nowadays it's wetbacks that do that." Id. at 482. Ms. Llamas, who is Latina, told both Ms. Lounds and Mr. Felts that the customer's comments offended her. The picture was removed, but only briefly. Ms. Lounds avers that the picture was " a constant reminder to . . . [her], everyday . . . of what that [customer] said." Id. at 271. Meanwhile, according to Ms. Lounds, " several employees" were habitually approaching her by saying, " YO! Yo what[']s up?" in " a black accent dialect." Id.

On February 3, 2012, Ms. Lounds submitted a document styled " Memorandum for Record" to Lincare's human-resources department. She alleged therein that she felt " bombarded with racial slurs and comments." Id. at 269. Specifically, she stated that: (1) Ms. Kempke had upset her by saying " Boom Nigga" in her presence, id. at 268; (2) a co-worker had informed Ms. Lounds that Ms. Kempke--in addition to saying " Boom Nigga" --had remarked " more than once" the day Ms. Lounds interviewed for the Lincare position " Peace out my Nigga," and that Ms. Kempke says the " ['N Word'] comfortably as she interacts with other Caucasian employees," id. ; (3) Ms. Kraft had suggested that Ms. Lounds's name was " Shaniqua," id. at 267; (4) Ms. Kraft had asked Ms. Lounds--due to her race--about why African-American people name their children " Roshonda," id. at 268; (5) Mr. Kunz had referenced lynching and admonished Ms. Lounds not to be so sensitive; (6) Ms. Kraft had asked Mr. Van Dever whether he felt like a minority; (7) Ms. Kraft had instructed employees to say " YES MASSA" to Mr. McCarthy, id. at 269; (8) co-workers had used the greeting " YO! Yo what[']s up?" in " a black accent dialect," id. at 271; (9) the customer had referenced

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" slaves" and " wet backs" in relation to the office picture, id. at 271; (10) Ms. Kraft had instructed Ms. Lounds to give a customer " attitude," id. ; (11) Ms. Kraft had said that she thought a customer was a " big black man" and that " his name sounded black," id. at 271-72; and (12) Mr. Kunz had remarked that he never visits " the ghetto" or " HOOD," id. at 273.

In a February 6, 2012, memorandum to human resources,[3] Ms. Lounds alleged the following: (1) she had been called " Sha-nea-nea" and " Shaquita" -- viz., names she considered to be " stereotypical racial trigger[s] for Black American women," id. at 276 (Second Mem. for Record, received Feb. 13, 2012); (2) Ms. Kraft had told a group of employees that she thought Ms. Lounds was named " Shaniqua," id. ; (3) Mr. Kunz had discussed lynching in her presence; (4) Ms. Kraft had said that employees should say " Yes Massa!" to Mr. McCarthy, id. ; (5) Ms. Kempke had a " habit of returning from seeing a black [customer] and stating how she thought she would be raped, and stating in a loud sing-song voice BOOM-Nigga in [Ms. Lounds's] presence, walking away laughing," id. ; and (6) she often heard " [e]thnic slurs and racially based jokes," id. at 277. Ms. Lounds stated that after Mr. McCarthy's visit her co-workers had given her " the cold shoulder." Id. at 277. She further averred that " nothing ha[d] changed" since her January 2012 meeting with Ms. Adams and Mr. Felts. Id.

Midway through February 2012, Ms. Lounds spoke with Mr. Felts and divisional manager Karen Schanbacher, who directly supervised Mr. Felts. Ms. Schanbacher asked " several times" how she could address Ms. Lounds's concerns about the office environment. Id. at 142 (Schanbacher Dep., dated Oct. 22, 2013). In response, Ms. Lounds said she suspected that her co-workers were " always talking about her" behind closed doors, and she complained that she had not been properly trained to perform her job duties. Id. Ms. Lounds told Ms. Schanbacher and Mr. Felts that her " spirit was gone." Id. at 109. Nonetheless, during that conversation, Ms. Lounds did not report any new discriminatory remarks or specifically claim to be in a hostile work environment. Ms. Lounds had another telephone call with Ms. Adams on March 6, 2012, wherein she stated that she " felt like the 'pink elephant' in the room." Id. at 237. Ms. Adams construed the remark as a complaint of awkwardness stemming from the January 2012 discipline of Ms. Kempke, Mr. Kunz, and Ms. Kraft. However,

Ms. Adams recalls that " [n]ever once in the conversation did [Ms.] Lounds report any new racial comments in the workplace, allege that she had been subjected to retaliation, or complain of a hostile work environment," id. --and Ms. Lounds does not dispute Ms. Adams's account of the call. Based on the foregoing discussion, Ms. Adams believed that the corrective actions discussed supra (i.e., the final written warnings and in-service training) " had been effective." Id. She asked Linda Feller, who also worked in human resources, to follow up with Ms. Lounds.

Ms. Feller spoke to Ms. Lounds at the Wichita office on March 14, 2012. Her notes from their meeting reflect that Ms. Lounds complained that: (1) co-workers sometimes warned of her presence by saying, " Shhhhh, here she comes," id. at 282 (Meeting Notes, dated Mar. 14, 2012); (2) there had been " an instance where a black gentleman" applied for a job, but Ms. Kraft did not want to hire him because he

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" look[ed] like a convict," id. at 283; (3) Ms. Kempke had said " Peace out, my nigga," id. ; (4) the garden picture (discussed supra ), which made her uncomfortable, was hanging in the office again; and (5) Mr. Kunz had said, " Shawron, you know where the hood is," and that " black people smoke Marlboros," id. at 285. Otherwise, Ms. Lounds indicated that there had been some tension immediately after the discipline of Ms. Kempke, Mr. Kunz, and Ms. Kraft.

On April 6, 2012, Ms. Lounds filed a complaint with the Kansas Human Rights Commission (" KHRC" ), alleging that she had been " subjected to derogatory racial comments, slurs, and innuendoes." Id. at 287 (KHRC Compl., filed Apr. 6, 2012). Despite claiming therein to have received disparate treatment based on race--treatment which purportedly worsened after she reported it " in retaliation," id. at 288--Ms. Lounds offered no specific averments in either regard (i.e., regarding discrimination or retaliation). Her human-rights complaint simply indicated that she felt she had been " treated in a demeaning manner, ridiculed, and teased." Id. at 287.

B

Ms. Lounds received a " documented counseling" on April 26, 2012, for " excessive absenteeism" --specifically, sixteen unscheduled absences since September 2011. Id. at 334 (Documented Counseling, dated Apr. 26, 2012). The document reminded her of Lincare's policy prohibiting employees from reporting absences via text message.[4] Additionally, it notified Ms. Lounds that further discipline--including termination--could follow if she did not show immediate, sustained improvement. Although corporate officials assisted with preparing the paperwork, Ms. Kraft testified that she personally decided to issue the documented counseling. Ms. Lounds responded by sending Lincare's humanresources department a " letter of rebuttal" that stated (1) that the documented counseling was retaliatory, and (2) that her supervisors and co-workers had " participated in" racial harassment against her. Id. at 290-91 (Rebuttal Letter, dated May 1, 2012).

On May 4, 2012, Ms. Lounds sent Ms. Kraft a text message to advise that she would be absent that day " [d]ue to a hostile workplace." Id. at 293 (Text Message, dated May 4, 2012). In the message, she described an incident from the previous day in which Mr. Kunz slapped a co-worker's thigh. Ms. Lounds alleged that she " couldn't focus," id., and was " really freaked . . . out," id. at 294, but she did not suggest that the episode was racially motivated. She lodged another complaint with the KHRC on May 18, 2012, stating that the documented counseling was " an act of retaliation for having previously filed a discrimination complaint." Id. at 307 (Second KHRC Compl., filed May 18, 2012).

On June 22, 2012, Ms. Kraft issued Ms. Lounds a " documented verbal warning" regarding the " unacceptably large number of unscheduled absences" that Ms. Lounds had accrued since her April 26, 2012, documented counseling. Id. at 309 (Documented Verbal Warning, dated June 22, 2012). The warning underscored Lincare's policy against registering absences by sending text messages. Mr. Felts, Ms. Kraft, and Ms. Feller (who participated by phone) discussed the write-up with Ms. Lounds that day; they urged Ms. Lounds to " plan

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in advance, and request [any] time off" and stressed that " [n]o one is allowed to text in" absences. Id. at 313 (Meeting Notes, dated June 22, 2012). Ms. Lounds rejoined, " There's a lot of things going on with this place. I have doctor's notes." Id. at 312. She indicated that she would " call earlier" to register any future absences. Id.

In July 2012, Ms. Lounds sent Lincare's human-resources department another rebuttal letter concerning the documented verbal warning. The purpose of the letter was to dispute her supervisors' representations about text messaging absence notifications. In that regard, Ms. Lounds averred that " [a]ll employees[] text" message in " their absences and to single [her] out [wa]s disparate treatment." Id. at 315 (Rebuttal Letter, dated July 16, 2012). She thus concluded that Lincare's true motive for issuing the warning was not to address a perceived attendance issue but, rather, to retaliate against her for complaining of discrimination to the KHRC.

Later that month, Ms. Lounds received a " final written warning" that referenced newly accrued, unapproved absences and stated that Ms. Lounds had sent Ms. Kraft an improper text message on July 20, 2012. Id. at 317 (Final Written Warning, dated July 24, 2012). At a meeting to review the final warning,[5] Ms. Lounds reported that she still " fe[lt] like the pink elephant." Id. at 319 (Meeting Notes, dated July 24, 2012). She noted that whenever anyone said the word " boom" in the office, Ms. Kempke would interject, " Boom Nigga!" Id. She also mentioned for the first time that Ms. Renard--who originally brought racist remarks to Mr. McCarthy's attention--" sa[id] 'BON' to her every day," id. , and that Ms. Kraft ignored it. After Ms. Feller ended her participation in the meeting, Ms. Lounds explained that Ms. Renard had upset her by (1) asking " if [Ms. Lounds] knew what a BON was because [Ms. Renard's] boyfriend, who is black, wanted her to call him a Big Ol' Nigger" ; and (2) stating that " [t]he coach of [Ms. Renard's son's football] team ha[d] said something about 'all blackies are stupid.'" Id. at 320.

When Ms. Kraft subsequently asked about the alleged " BON" exchange, Ms. Renard explained:

I was . . . talking to [my boyfriend] on the phone laughing, and I said I will not say that, and he [said] you can just say B-O-N. After I got off the phone, [Ms. Lounds] asked me what did it mean. . . . [I said] Big old N and I did not say the word [i.e., the " N-word" ] because I don't say the word.

Id. at 513. Nonetheless, Ms. Kraft issued Ms. Renard a final written warning for making inappropriate, racially-tinged remarks in the workplace. Id. at 516 (Renard Final Written Warning, dated Jan. 27, 2012).

Ms. Lounds submitted another letter of rebuttal regarding her final warning on July 25, 2012, alleging that the warning was retaliatory and referencing " verbal abuse and negative racial overtones that [she] ha[d] to endure on a daily basis." Id. at 327 (Rebuttal Letter, dated July 25, 2012). Two days later, Ms. Lounds's mental-health counselor, Dr. Joseph Donaldson, sent a letter to Ms. Feller to report that Ms. Lounds had been subjected to " an ongoing onslaught of verbal abuse and harassing racial comments, slurs, epithets, and innuendos" and " blatant racist verbal ...


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