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White worker could show retaliation after 'monkey' comment - 3rd Circ

3 minute read

REUTERS/Andrew Kelly/Illustration

  • White officer reasonably believed comments about Black people were directed at him
  • Superior had called his biracial grandniece a "monkey"
  • Plaintiff backed by DOJ, EEOC

(Reuters) - A U.S. appeals court on Thursday revived a white former correction officer's claim that he was fired in retaliation for complaining about a superior calling his biracial grandniece a "little monkey."

A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals said Jeffrey Kengerski had shown that he reasonably believed he had faced a hostile work environment based on his association with his grandniece, and that was enough for him to pursue a retaliation claim under Title VII of the Civil Rights Act of 1964.

Kengerski, who was a sergeant at the Allegheny County, Pennsylvania, jail, claimed that after his superior made the comment, she began sending him racially insensitive text messages including stereotypical depictions of Black and Asian people.

Given the comment about his grandniece, "Kengerski could reasonably believe that McCall’s texts — particularly those with racist innuendos about Black persons — were at least in part directed at him," Circuit Judge Thomas Ambro wrote.

The U.S. Department of Justice and Equal Employment Opportunity Commission backed Kengerski in an amicus brief, saying the judge who tossed out the case was wrong to find that because Kengerski is white, he could not claim he had faced a hostile work environment based on race.

Margaret Coleman of the Law Offices of Timothy P. O'Brien, who represents Kengerski, did not immediately respond to a request for comment. Nor did the Allegheny County Law Department.

According to court filings, Kengerski in 2014 was discussing with coworkers that he and his wife were preparing to take his grandniece under their care because her mother was unable to care for her.

He said that Robyn McCall, a white captain at the jail, laughed upon hearing the girl's name and asked whether she was Black. Kengerski said she was biracial, to which McCall replied that Kengerski “will be that guy in the store with a little monkey on his hip," according to court filings.

Kengerski filed a complaint against McCall a few months later. He said that in addition to the comment, McCall had sent a series of offensive text messages.

McCall was placed on leave and resigned a few months later. In the aftermath, Kengerski claims he was harassed by other jail employees. He was fired several months after McCall resigned for what the jail claimed was his mishandling of a sexual harassment complaint against other employees.

Kengerski sued the jail's warden and the county in 2017 and after several amendments, his only remaining claim was that he had faced retaliation in violation of Title VII.

U.S. District Judge J. Nicholas Ranjan granted the county’s motion for summary judgment last year, finding that Kengerski had not shown that he believed he had faced a hostile working environment. Because he is white, he could not reasonably believe that comments about Black or biracial people were directed at him, the judge said.

He appealed, and the 3rd Circuit on Thursday reversed. McCall's comment and her text messages sufficed to make Kengerski believe he was being harassed for associating with Black people, Ambro wrote.

The panel remanded the case to Ranjan to consider whether the county fired Kengerski because of his complaint.

The panel included Circuit Judges Stephanos Bibas and Jane Roth.

The case is Kengerski v. Harper, 3rd U.S. Circuit Court of Appeals, No. 20-1307.

For Kengerski: Margaret Coleman of the Law Offices of Timothy P. O'Brien

For the defendants: Frances Liebenguth of the Allegheny County Law Department

For DOJ: Katherine Lamm

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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