from the United States District Court for the Middle District
of Georgia D.C. Docket No. 5:14-cv-00358-LJA
WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PRYOR, Circuit Judge.
Smelter, a black woman, was hired by Southern Home Care
Services, Inc. d/b/a/ ResCare Homecare as a Customer Service
Supervisor. She was the only black person who worked in her
office, and she often overheard her co-workers making racist
comments, some of which were directed at her. The severity of
these racist comments peaked on the last day of her
employment when a co-worker called her a "dumb black
nigger" during an argument. According to Smelter, she
was fired for reporting this epithet, along with her
co-workers' other racist comments, to her direct
supervisor. She sued Southern Home under Title VII and 42
U.S.C. § 1981, asserting claims for discriminatory
termination, hostile work environment, and retaliation. The
district court granted summary judgment for Southern Home on
each of Smelter's claims, and Smelter appealed.
careful review, and with the benefit of oral argument, we
affirm in part and reverse in part. We agree with the
district court that Smelter's discriminatory termination
and retaliation claims fail as a matter of law because she
provided insufficient evidence of pretext in response to
Southern Home's legitimate, nondiscriminatory reasons for
terminating her. But we disagree with the district
court's conclusions that, as a matter of law, the
harassment Smelter suffered was not severe or pervasive and
Southern Home lacked notice of that harassment. We therefore
reverse the grant of summary judgment for Southern Home on
Smelter's hostile work environment claim and remand that
claim to the district court for further proceedings.
Southern Home and Its Perry Office
Home provides personalized home health care services for
people of all ages, physical conditions, and cognitive
abilities. Its caregivers travel to clients' homes to
provide personal care services and other assistance as
requested. These home visits are managed by Southern
Home's Customer Service Supervisors, who coordinate with
clients and caregivers to schedule the visits and to ensure
that clients receive the requested services.
Service Supervisors coordinate with caregivers in two ways.
First, they provide caregivers with client care plans and
other information pertaining to their scheduled visits. If a
client cancels or reschedules a visit, or if a caregiver is
added to or removed from a schedule, the Customer Service
Supervisor is responsible for relaying that information to
the caregiver, usually by calling the caregiver directly.
Second, Customer Care Supervisors ensure that caregivers'
work time is accurately reported for payroll purposes.
Caregivers are supposed to report when their client visits
begin and end by calling in to an automated system called
Telephony. Sometimes, however, caregivers fail to use
Telephony and have to call a Customer Service Supervisor, who
then records the caregivers' time manually. Regardless of
how the caregivers report their time, Customer Service
Supervisors are responsible for "linking" the
reported time with the master client schedule to ensure that
the caregivers are properly compensated. Because linking is
easier for the Customer Service Supervisors if the caregivers
use Telephony, the Customer Service Supervisors are
responsible for making sure they do so.
the time period relevant to this case, Southern Home operated
out of several branch offices in Georgia, including one in
Perry. Executive Director Kelly McDougal oversaw operations
at Southern Home's branch offices across middle Georgia,
including the Perry office. Although McDougal provided
general oversight, the Perry office fell under the direct
management of Branch Manager Brandi Talton. Prior to
Smelter's hire, in addition to Talton, four other
employees worked at the Perry office: Connie Raleigh, the
Office Manager; Catherine Smallwood, a Customer Service
Supervisor; Vanessa Lind, another Customer Service
Supervisor; and Mary Noll, a nurse. McDougal, Talton, and all
of the other Perry office employees are white.
addition to her duties at the Perry office, Talton also
supervised marketing and helped with operations at the Macon
office. This meant that she often was absent from the Perry
office while working in Macon or out in the field developing
April 2013, Southern Home accepted applications to fill a
vacant Customer Service Supervisor position in the Perry
office. The vacant position had been occupied by Lind, but it
opened up when Lind went on maternity leave. Smelter applied
for the open position, and McDougal hired her. Smelter's
employment was subject to a six month probationary period.
began a week of orientation and training on July 2, 2013.
Even though Smelter was hired to work in the Perry office,
her orientation and training took place in the Macon office,
as was customary for all new hires. Typically, new Customer
Service Supervisors would receive step-by-step training on
payroll, timesheets, and Telephony. This would include a full
week of one-on-one training with Southern Home's lead
Customer Service Supervisor, Merri Jo Hortman. According to
Hortman, Smelter received the customary amount of training
and indicated that she was comfortable with the requirements
of her new position before leaving training in Macon and
taking up her position in Perry. Smelter, in contrast,
testified that she received "no training in Macon at
all" because the employees were in the middle of payroll
and "didn't have time." Doc. 27 at 144,
Smelter was in training at the Macon office, she claimed that
$100 was stolen from her purse while it was stored in a
co-worker's desk. Although Smelter did not know who was
responsible, she accused the co-worker and notified McDougal
and Talton. McDougal investigated Smelter's claim but was
unable to determine who, if anyone, stole the money. McDougal
told Smelter that she would be fired if she continued to talk
about the alleged theft.
Smelter's Post-Training Performance
Smelter's own admission, she struggled with her job
duties after she left training and began working in the Perry
office. She testified that she did the best she could to
learn Southern Home's computer system, but did not
"g[e]t it" until Raleigh started helping her.
Id. at 158. Even then, she "still had some
issues" with caregivers failing to clock in and out
using Telephony. Id. at 158-59. In late July, a few
weeks after she began working at the Perry office, Smelter
told Talton that she still was struggling with Telephony and
felt that she had not received enough training. Because of
Smelter's difficulties, Talton asked Hortman to travel to
the Perry office to provide Smelter with supplemental
training. This was the first time that Hortman had been asked
to provide a Customer Service Supervisor with additional
training beyond orientation.
supervisors and co-workers observed Smelter continuing to
have performance issues. In particular, Smelter was having
trouble understanding how to do linking, so Talton asked
Raleigh to help her. Raleigh explained that, of all the
Customer Service Supervisors with whom she had worked,
Smelter required the most retraining. At times, Raleigh would
do some of the Customer Service Supervisors' linking for
them, but Smelter needed the most help. Raleigh testified
that Smelter never "totally" understood Southern
Home's computer system and that her skills on that system
"were not that good." Doc. 33 at 133, 139.
Raleigh, Talton observed Smelter struggling with her core
duties like linking and scheduling. Smelter repeatedly asked
Talton the same questions and made the same errors, even
though Talton had instructed her to take notes so that she
could remember what she had learned. McDougal was aware of
Smelter's performance problems because Talton
communicated "[e]verything" to her, and both Talton
and Raleigh were "[c]onstantly" reporting
Smelter's errors. Doc. 32 at 15, 26. McDougal testified
that none of the other Customer Service Supervisors under her
direction struggled with linking as much as Smelter did.
addition to her struggles with Southern Home's computer
system, Smelter also had difficulty coordinating with
caregivers. In early September-two months into her
employment-Smelter caused a caregiver to be late to an
appointment with a new client because she failed to timely
provide the caregiver with the client's address. Smelter
received a written warning as a result of this incident. The
very next day, Smelter failed to inform the same caregiver
about a client's schedule change, which caused the
caregiver to arrive at the client's house three hours
Smallwood's and Raleigh's Racist Comments
endured racist remarks by her co-workers nearly every day
that she worked in the Perry office. Smallwood made most of these
remarks. For example, Smallwood told Raleigh that black men
were "lazy" and "the scum of the earth."
Doc. 27 at 190. Smallwood also said that "black women
ha[d] babies on welfare," President Barack Obama's
"big ears" made him "look like a
monkey," and she did not know that black people could be
buried on Sundays. Id. at 190, 297. On one occasion,
Smallwood said that Smelter's hair made her look like a
"mixed monkey" from the movie Planet of the
Apes. Id. at 296.
made racist remarks, too. She once described an occasion when
she saw black people exiting a bus at a Wal-Mart store and
commented that it looked like they were "chained
together." Id. at 193. Raleigh added that she
wished she could "send them all back . . . to
never reported any of these comments to McDougal, Talton, or
any other supervisor at Southern Home until the last day of
her employment. But she testified that Talton overheard at
least some of the remarks. According to Smelter,
Smallwood's and Raleigh's racist comments were
"funny to everybody that worked in the Perry
office" with her, "even Brandi Talton."
Id. at 34.
final day of employment with Southern Home was September 9,
2013. On that day, a caregiver reported that Smelter again
had failed to notify her about a client's schedule
change. Smelter insisted that she had reported the schedule
change to the caregiver and asked Smallwood to confirm
because she believed that Smallwood had overheard her
conversation with the caregiver. But Smallwood told Smelter
that she did not remember it. A verbal altercation between
Smelter and Smallwood ensued. Smallwood told Smelter to
"shut up and get out of my office." Id. at
249. Smelter tried to explain that she was "just trying
to make sure that [she] got everything documented," but
Smallwood "jumped up . . . in a rage" and said
"get out of my office . . . you dumb black nigger."
Id. As Smallwood stood up, she "hit the
desk" like she was about "to charge at"
Smelter. Id. The altercation ended when Smelter left
who was out of the office, learned about the incident from
Raleigh, who emailed Talton to report that Smelter was
"in the back [of the office] yelling at
[Smallwood]." Doc. 35 at 77-78. Talton then called the
Perry office and spoke with Smelter and Smallwood in turn.
Afterward, Smelter spoke with Talton for a second time and
explained that it was Smallwood, not herself, who was being
difficult. Smelter testified in her deposition that she told
Talton "everything that went on." Doc. 27 at 250.
Although during the deposition she did not explain what she
meant by this, she clarified her testimony in a declaration
filed after Southern Home moved for summary judgment:
When I said "everything that went on" I meant that
I told Ms. Talton about the all [sic] racial statements made
in the office including, but not limited to, the comments
about black men being lazy and black women being on welfare
to [sic] [Smallwood] telling me to get out of ...