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Mich.: Stuffed Gorilla Not Evidence of Hostile Work Environment
 

By Diane Cadrain  7/10/2014

The placement of a five-foot stuffed gorilla on a cubicle wall was not evidence of a racially hostile work environment, the Michigan Court of Appeals decided, reversing an award of $21,000 in punitive damages to the victim of the alleged hostility.

Crystal Perry, a black woman, began working for the Michigan Department of Human Services (DHS) in 2003. In 2009, one of her co-workers, Kelly Morse, placed a five foot high stuffed toy gorilla on a cubicle wall that separated her workspace from common areas and other employee work stations. Perry said that the placement of the stuffed animal happened just as Perry’s supervisor gave her a negative evaluation on her application to a leadership academy for DHS employees. When Perry complained to DHS’s office of Equal Employment Opportunity, James Flanigan of that office immediately told Perry that the gorilla would be removed. This was not done until three weeks later, though.

Perry said that she was "quite distraught" by the presence of the gorilla and that she was humiliated, embarrassed, angry, and hurt that it appeared and was not removed even after she complained. She also said that she had a good relationship with Morse, that they didn’t have any personal issues between them, and that she didn’t connect the gorilla to herself personally.

After being denied opportunities for promotions, working out of class, and training opportunities, Perry sued the department for race discrimination under state law.

The trial court found no evidence of race discrimination, noting that a DHS manager at trial had testified that he thought very highly of Perry, actively helped her to get hired, and actively helped her move out of her department and into his unit when she had problems with her supervisor. The manager also added that DHS closely reviewed hiring decisions for potential discrimination problems, and he found no evidence that Perry was wrongly denied any promotions or other opportunities because of her race.

Finding no adverse actions based on race, the lower court nevertheless pointed to the gorilla incident as evidence of racial harassment or a hostile work environment, even though Perry’s complaint had not specifically alleged such injuries. The judge acknowledged that Perry did not specifically allege them in her complaint, but found the "ape issue," "very troublesome" and awarded punitive damages of $21,000, or $1,000 per day for each of the 21 days that the gorilla was in the workplace. The department appealed.

On appeal, the Court of Appeals of Michigan stated that to prove that she had been subject to a racially hostile work environment, Perry had to have evidence of a work environment so tainted that a reasonable person in her position would have viewed the conduct at issue as interfering with her employment or creating an intimidating, hostile, or offensive employment environment.

Applying that standard to Perry’s evidence, the court noted that she was required to prove that the conduct at issue was inherently related to her race. But, the court said, there was no evidence that the placement of the gorilla was racially motivated. Instead, Morse, a co-worker who was friendly to Perry, took responsibility for its placement on the cubicle wall. As the trial court noted, the stuffed animal could have been directed at another co-worker, and Perry testified that she did not connect the gorilla to herself "whatsoever." There was no evidence of racially derogative comments or threats directed at Perry in connection with the incident, the court said, and Perry did not say that anyone displayed racial prejudice toward her. Although Perry testified that co-workers stopped by the gorilla and laughed and left written comments on it, there was no evidence that any of the written comments were racial in nature or directed at Perry.

Also, the court said, the conduct at issue was isolated in nature. The gorilla was in the workplace for a total of three weeks during the course of Perry’s six-year course employment at DHS.” This does not constitute proof of an intimidating, hostile, or offensive environment toward plaintiff or African Americans in general,” the court stated, reversing the trial court’s decision, including the award of damages...

Perry v. Department of Human Services, Mich. Ct. App., No. 315243 (June 26, 2014).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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