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Bias Claim Reinstated Based on Employer’s Finding of Harassment

By Jim Goh and Michelle Muhleisen   5/8/2014
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The 10th U.S. Circuit Court of Appeals reinstated a discrimination claim against Kansas State University (KSU) in which a Hispanic employee claimed that his supervisor regularly subjected him to racial slurs and alleged that an internal investigation concluded his complaints were justified.

Edwin Asebedo, a Hispanic man, complained that while working in KSU’s mail department, his supervisor used racial slurs and made derogatory remarks about him. Even after KSU’s investigation found in Asebedo’s favor and against the supervisor, the harassing behavior continued. Asebedo filed a second internal complaint, resulting in another finding by KSU that the supervisor continued to create a hostile work environment.

Although KSU disciplined the supervisor, Asebedo believed the discipline was inadequate. He responded by filing a lawsuit for race discrimination and retaliation. The district court, however, dismissed the complaint in its entirety, ruling that Asebedo failed to set forth sufficient facts of discrimination and retaliation.

On appeal, the 10th Circuit held that the district court erred with respect to the dismissal of the racial discrimination charge. Although the court agreed that the facts were “sparse,” it found that the allegations were sufficient to establish that Asebedo was a member of a protected class and was repeatedly subjected to unwelcome harassment based on his race. The decision recognized that Asebedo certainly could have set forth additional facts to plausibly demonstrate that his harassment was sufficiently severe or pervasive to constitute a hostile work environment. Nevertheless, he did “plead that KSU’s own investigations concluded, twice, that Asebedo’s supervisor had created a hostile work environment in violation of KSU’s anti-discrimination policies.” These allegations, taken together, were sufficient to state a plausible Title VII racial discrimination claim.

The court also pointed out that, contrary to the district court’s ruling, Asebedo was not required to plead any facts to show that KSU did not respond reasonably to his internal complaints; those facts arise in the context of an employer’s affirmative defense, and a plaintiff has no obligation to plead against affirmative defenses.

The 10th Circuit did, however, uphold the dismissal of the retaliation claim, finding that the complaint was “devoid of any facts that would establish a causal connection between [Asebedo’s] complaints and the allegedly retaliatory actions.” Sheer speculation linking the allegedly retaliatory actions to a discriminatory motive is insufficient to state a plausible claim for retaliation.

Asebedo v. Kansas State Univ., 10th Cir., No. 13-3206 (March 17, 2014).

Professional Pointer: A proper investigation of a workplace complaint followed by prompt remedial action can provide an employer with an effective defense to subsequent litigation.

Jim Goh is a shareholder and Michelle Muhleisen is an associate in the Denver office of Ogletree Deakins Nash Smoak & Stewart, P.C.

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