Banks v. General Motors, LLC

81 F.4th 242

Billie R. BANKS, Plaintiff-Appellant, v. GENERAL MOTORS, LLC; aka GM Components Holdings, LLC; FKA Delphi Automotive Systems, LLC; aka Dph-Das, LLC; FKA General Motors Corporation, Defendant-Appellee.

Docket No. 21-2640

August Term 2022

United States Court of Appeals, Second Circuit

Argued: December 6, 2022

Decided: September 7, 2023

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK(SKRETNY, J.).

Josephine A. Greco, Greco Trapp, PLLC, Buffalo, New York, for Plaintiff-Appellant.

Rebecca J. Bennett (Monica L. Lacks and Samuel H. Ottinger, on the brief), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Cleveland, Ohio, for Defendant-Appellee.

Georgina Yeomans (Christopher Lage, Jennifer S. Goldstein, Elizabeth E. Theran, Gail S. Coleman, on the brief), United States Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae Equal Employment Opportunity Commission.

Before: Chin, Carney, and Robinson, Circuit Judges.

CHIN, Circuit Judge:

In this case, plaintiff-appellant Billie R. Banks, an African American woman, claims that her employer, defendant-appellee General Motors, LLC ("General Motors"), subjected her to a hostile work environment, race and sex discrimination, and retaliation at her place of employment, the General Motors plant in Lockport, New York. In the district court, Banks presented evidence that, for example: a manager called her a "dumb n****r" in front of other employees; racist and sexist words or material were displayed around the plant; sexist comments were directed at her; the Confederate flag was depicted on employees' vehicles and clothing; and nooses were displayed on three separate occasions near the workstations of Black employees.

Banks also presented evidence that when she was ready to return to work after a leave of absence, a General Motors psychiatrist denied her permission to return, opining that she did not have "the conflict resolution skills to handle th[e] environment" at the plant and explicitly referencing the complaints of discrimination she submitted internally as well as to the Equal Employment Opportunity Commission (the "EEOC"). J. App'x at 503. And she presented evidence that after her return to work, she was placed in a different role where she did not have supervisory responsibilities and was assigned to work a less desirable shift.

Despite this evidence, the district court granted summary judgment in favor of General Motors, dismissing initially Banks's hostile work environment and disparate treatment claims and eventually her retaliation claim as well. Because we conclude that Banks presented sufficient evidence on the basis of which a reasonable jury could find in her favor on all three claims, we VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

BACKGROUND

I. The Facts

The facts are construed, as they must be, with all reasonable inferences drawn in Banks's favor. See Howley v. Town of Stratford, 217 F.3d 141, 145 (2d Cir. 2000); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 710 (2d Cir. 1996).

Banks began her career at General Motors in 1985 as a security officer. After leaving to obtain a master's degree, she returned to General Motors in 1996 and began working at the Lockport Plant near Buffalo, New York,¹ where she continued to work until the present litigation.² Banks has been promoted twice during her tenure at General Motors, most recently to the position of Site Safety Supervisor in 2006. Banks held this position until she was replaced in 2014 while on medical leave. She returned to work in October 2014 and took another medical leave in January 2016. Both medical leaves were for the purpose of recuperating from the stress, anxiety, and depression she incurred from working at the Lockport Plant. J. App'x at 555.

A. Workplace Culture at the Lockport Plant

Banks presented evidence of inappropriate conduct directed at her as well as at others.³

1. Incidents Directed Toward Banks

Starting in 2002, Banks was subjected to a series of racially or sexually offensive incidents at the Lockport Plant. For instance, Banks was accused by a supervisor of engaging in disability fraud in 2002⁴ and credit card fraud in 2007; was called a "dumb n****r" by a manager during a meeting with other employees in 2004; observed racist and sexist graffiti around the plant, including the word "n****r" and sexual slurs as well as sexually explicit pinup calendars and posters starting in 2006; and observed depictions of the Confederate flag on employees' vehicles and clothing starting in 2009. Also starting in 2009, at least three different employees directed sexually offensive comments toward Banks. One told her she was "looking good back there." Id. at 302. Another, while looking at her breasts, asked, "Are you cold or just excited to see me?" Id. at 605-06.

In August 2013, after Banks dismissed an outside contractor for violating safety protocols -- a decision within her discretion as a Safety Supervisor -- Tom Rush, a manager, walked into her office with another colleague, began yelling at her, and shook a thick, rolled-up document threateningly in her face. Rush had neither overseen the contractor's work nor inspected the particular safety situation that had given rise to the dismissal. Several of Banks's colleagues, including some who were up to 50 feet away, overheard Rush, and one colleague was so concerned that he was prepared to step in to physically protect Banks from Rush. Rush's conduct was sufficiently intimidating that Banks withdrew her order for the contractor to vacate the premises. Though Banks complained to management about the incident and a subsequent investigation determined that Rush had acted inappropriately, Rush was never disciplined and the incident was not noted in his personnel file.

During a CPR training class in April 2015, the union safety representative leading the class used Banks as an example of an African American who, after using and overdosing on drugs at home, would be in need of CPR. Banks asked the representative not use her as an example and subsequently complained to management, but the representative was not disciplined. During that same class, the union safety representative used an Asian American coworker as an example, directing the class to assume the coworker "gets electrocuted by his wok and rice flies everywhere." Id. at 489. Also in April 2015, a safety representative referred to absorbent materials used on the plant floor as "naps" and joked to Banks that another Black male employee used the materials for his hair.

On one occasion in June 2015, when providing feedback for a document prepared for an upcoming presentation, Banks explained that she had made several changes to make the document appear more professional. Banks's colleague, a White male, responded with an email that read: "Wate a minit. R U sayin us guys is unperfeshonal? I am as perfeshonal as rastlin. [Y]a know what I mean. WWF. Perfeshonal rastlin. Take that to the bank. Billie Bank! lol ... (I couldn't resist) [sic]." Id. at 1636. Banks responded to the colleague to say she believed he was mocking her by using Ebonics, a vernacular associated by some with African Americans. Id.

In addition to these specific incidents, Banks routinely experienced insubordination in her role as a Safety Supervisor not experienced by her White colleagues. She was deprived of support staff while prior Safety Supervisors -- most of whom were White men -- had been given several direct reports. Her directives or assignments were often ignored, and she was routinely denied data or information she needed to prepare monthly safety presentations. During a safety training session in January 2013, a colleague called Banks an "idiot" in front of other employees. Id. at 575. During another training session in May 2013, the same colleague again called Banks an "idiot," told the attendees that she "doesn't know what the hell she's doing," and that she would "cost [General Motors] $7 million" in OSHA fees. Id. at 576. When Banks complained about these incidents, Mike Moresco, a human resources business partner and training manager, replied: "You know why they do this to you? ... Because you are black and female." Id. at 220, 577.

2. Incidents Involving Other Employees

Other employees at the Lockport Plant were also subjected to sexually or racially offensive conduct. Several Black or female employees told Banks that they had specifically been subject to sexually offensive comments or racial epithets. Black colleagues, for example, shared with Banks that they were called a "n****r" or "monkey" by White employees, and that "you hear comments of that nature so often that you don't report them." Id. at 540; see also id. at 598. Another Black employee was referred to as a "silverback" by a manager, an apparent comparison to a type of gorilla. Id. at 599. One Black employee reported that a White colleague referred to work product she considered to be poorly done as "n****rized," id. at 598, and another reported that he was called a "n****r" everyday, id. at 411. Of the approximately 180 salaried employees at the Lockport Plant, six were Black. Of those six, three complained to management about discrimination.

On three separate occasions from 2006 to 2017, Black employees reported that nooses had been placed directly at or near their worksites. The first noose incident occurred in 2006 when David Luchey, a Black male employee, reported finding a noose placed on his toolbox. The noose was approximately three feet long and was made of thick rope. The second noose incident occurred in July 2014 when Luchey again reported seeing a noose, this time hanging from a crane near the plant's weld shop. This noose was also made of thick rope and was hung approximately eight feet from the ground. Another Black colleague, Al Burch, relayed the incident to Banks shortly after it happened, as sh...