Unal v. Los Alamos Pub. Sch., No. 15-2055 (10th Cir. Jan. 29, 2016)
Abstract: A U.S. Court of Appeals for the Tenth Circuit three-judge panel has ruled that a teacher of Turkish origin has stated a valid Title VII hostile work environment claim based on national origin. However, it rejected her retaliation claims under Title VII, § 1981, and the New Mexico Human Rights Act.
The panel concluded that the workplace harassment was based on the teacher’s national origin and that it was sufficiently severe or pervasive to demonstrate a hostile work environment. It found that the facts as alleged supported the “inference that the administration at Aspen Elementary maintained a culture of animus towards foreign-born individuals.”
With regard to the retaliation claims, the panel, in agreement with the federal district court, held that each claim failed on separate grounds.
Facts/Issues: Zeynep Unal, who is of Turkish extraction and Muslim, was employed by Los Alamos Public Schools (LAPS) as an elementary school teacher. She began working at Aspen Elementary School (AES) in 2006. In 2008, LAPS hired Katheryn Vandenkieboom as the principal of Aspen Elementary School. As principal, Ms. Vandenkieboom was Ms. Unal’s supervisor from 2008 to 2012.
Unal alleges that during her tenure at AES, Vandenkieboom encouraged a culture of racial and ethnic insensitivity. She claims Vandenkieboom and AES staff not only engaged in slurs directly about Unal’s nationality, but also made insensitive remarks about other nationalities.
In addition, Unal, who was the only foreign-born teacher at AES, alleges she was subjected to disparate treatment because of her national origin. According to Unal, Vandenkieboom also excluded her from certain work-related communications in which Unal had previously participated.
Unal reported what she perceived as discriminatory conduct. In the spring of the 2010–2011 school year, Unal wrote a letter to the Assistant Superintendent, Paula Dean. In the letter, Unal expressed her belief that Vandenkieboom was biased against her and that Vandenkieboom seemed to have a problem with Unal’s culturally different background.
Subsequently, Vandenkieboom, the Human Resource Coordinator, and Assistant Superintendent Dean entered Unal’s class unannounced, pulled Unal out of the classroom, and told her that Vandenkieboom would remain her supervisor and that the school was moving her class from the building to an outside portable classroom, effective immediately. This incident happened within a month of the end of the school year. Neither Vandenkieboom nor LAPS provided an explanation for the move.
Unal then applied for and received medical leave, which she remained on for the duration of the 2011–2012 school year. In January 13, 2012, while she was on leave, Unal filed a charge of discrimination against defendants with the Equal Employment Opportunity Commission (EEOC). The EEOC eventually granted Unal a right-to-sue letter.
Several months later, in accordance with Unal’s teaching contract, LAPS sent her a notice of intent to rehire for the 2012–2013 school year. Per the terms of the notice, Unal was required to return the signed notice within fifteen days to renew her contract. The notice was dated May 7, 2012. Unal received the notice on May 19, 2012, and hand delivered the signed notice on May 23, 2012.
Despite Unal having returned the notice within fifteen days of receiving it, LAPS attorneys did not initially accept the notice, thereby effectively terminating Unal. After Unal’s attorneys became involved, however, LAPS conceded that Unal’s response was timely and rescinded the termination. Unal entered a contract with LAPS to teach at a different elementary school for the 2012–2013 school year.
Unal filed this lawsuit against LAPS, Superintendent Eugene Schmidt, and Vandenkieboom alleging, among other things, a hostile work environment and retaliation in violation of Title VII, § 1981, the Equal Protection Clause to Fourteenth Amendment, and the New Mexico Human Rights Act.
Unal alleged three separate instances of retaliation: (1) Vandenkieboom’s issuance of three disciplinary letters shortly after Unal sent a letter to the district complaining of discrimination; (2) Vandenkieboom and Assistant Superintendent Dean’s conduct in entering her classroom unannounced, reneging on their commitment to assign Unal a new supervisor, and ordering her class to relocate to a portable trailer shortly after she filed her formal grievance; and (3) the district’s initial decision to terminate Unal for allegedly failing to timely respond to the notice of intent to rehire.
Defendants moved for summary judgment on all counts, and the district court granted the motion in whole. With regard to the hostile-work-environment claim, the district court reasoned that the evidence failed to show Vandenkieboom’s and her staff’s conduct was sufficiently severe or pervasive to support a claim for hostile work environment.
As to the retaliation claims, the district court rejected each on separate grounds. It concluded that (1) Unal failed to demonstrate Vandenkieboom knew of Unal’s letter to the district at the time she issued the disciplinary letters, (2) the relocation of Unal’s class to the portable classroom outside the building did not constitute a materially adverse employment action, and (3) no causal connection existed between Unal’s EEOC action and LAPS’s initial decision to terminate her.
Ruling/Rationale: The Tenth Circuit panel reversed in part and affirmed in part the district court’s decision. Addressing the hostile work environment claim, it pointed out that under Title VII an employer may not “discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race . . . or national origin.” The panel said that in order for an employee to state a prima facie case, she must show:
“(1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on [national origin]; and (4) due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of [her] employment and created an abusive working environment.”
Because the defendants conceded Unal had satisfied the first and second elements of a hostile work environment claim, the panel focused on the questions of whether the harassment was based on Unal’s national origin and whether it was sufficiently severe or pervasive to demonstrate a hostile work environment. Turning to the issue of whether Unal had shown national-origin based harassment, it noted that she must “show harassment stemming from animus toward her national origin.” It also emphasized that “courts evaluating a hostile-work environment claim must avoid viewing individual instances of hostility in isolation but instead must look to the ‘totality of the circumstances.’”
According to the panel, Unal was asserting three categories of evidence that she contends create a genuine issue of national-origin-based harassment: “(1) comments or conduct that were overtly based on her nationality, (2) hostile comments made about people of other nationalities, and (3) facially-neutral conduct demonstrating she was treated differently than her U.S.-born peers.” In regard to the first category, it found that while only one comment was directly attributable to Unal’s nationality, a number of other comments, when taken in context, “were intended to emphasize negatively Ms. Unal’s status as a foreigner.” As a result, the panel concluded “a jury could reasonably infer from this comment that Ms. Vandenkieboom harbored animus toward Ms. Unal because of her national origin.”
As to the second category, the panel stated Unal’s “evidence of harassing comments directed at other nationalities will support an inference of a national-origin-based hostile work environment if Ms. Unal was present when they were made or otherwise became aware of them ‘during the time that she was allegedly subject to a hostile work environment.’” After reviewing the evidence, it was persuaded “that the comments directed at other nationalities of which Ms. Unal was aware support an inference that the administration at Aspen Elementary maintained a culture of animus towards foreign-born individuals.”
Turning to the third category, the panel concluded Unal had “presented evidence of various facially neutral incidents that a jury could view as products of national-origin hostility.” It said, “The relevant circumstances here include Ms. Unal’s status as the school’s only foreign-born teacher, Ms. Vandenkieboom’s disparate treatment of other teachers, and evidence showing a culture of animus towards individuals of different national origin.” The panel concluded: “Viewing all the evidence together, in context, a reasonable jury could conclude that these facially neutral incidents were products of a larger environment of hostility toward foreign-born individuals like Ms. Unal.”
The panel next took up the issue of whether due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of [her] employment and created an abusive working environment. While noting Unal had alleged no single incident that was sufficiently severe to satisfy this element of a hostile work environment on its own, it pointed out Unal contended that she “was the direct recipient of three harassing comments based on her national origin; heard or became aware of insensitive comments made about Asian students and people who speak with accents; and experienced numerous incidents of disparate treatment that could reasonably be viewed as intended to isolate, disregard, or undermine her because of her national origin.”
Based on Unal’s evidentiary allegations, the panel was “persuaded that the harassing conduct occurred with enough frequency that a reasonable jury could conclude Unal experienced a pervasively hostile work environment.” It concluded that a reasonable jury could find this conduct was both objectively and subjectively hostile. It stated, “When viewed in the light most favorable to Ms. Unal, this evidence demonstrates she subjectively felt a “steady barrage” of harassing conduct.”
In sum, the panel concluded: “Although this is a close case, viewing Ms. Unal’s allegations in context and considering the totality of the circumstances, we conclude her hostile work environment claim should have survived summary judgment.”
In regard to the retaliation claims, the panel said, “Applying this framework to Ms. Unal’s three claims of retaliation, we conclude the district court properly granted summary judgment on each claim.”
Unal v. Los Alamos Pub. Sch., No. 15-2055 (10th Cir. Jan. 29, 2016)
[Editor’s Note: In January 2016, Legal Clips summarized an article in The Daily Record reporting that Mabel Smith, who is employed by Prince George’s County Public Schools (PGCPS) as a teacher, is suing the school district claiming that Amin Salaam, the principal of Kettering Middle School, retaliated against her because she is of Jamaican origin. The suit alleges that Smith was “singled out” for harsh treatment by Salaam, which led to her having to take an extended medical leave.]