PINETOP LAKESIDE — On July 2, a federal appeals court reinstated two of five counts initially thrown out by Arizona District Court Judge Susan Bolton in an employment-related case brought by Johnny G. Mack against the town . Named in the suit are a former elected official and staff who then served as mayor, town manager, public works director and a town employee. Two judges of the three-judge appellate panel of the Ninth Circuit Court of Appeals in San Francisco agreed that the grant of summary judgment in October, 2017 was proper as to three counts, but reversed the judge’s ruling on two others and sent them back to the trial court.
In 2016, Mack filed his complaint alleging a hostile work environment regarding race, infliction of emotional distress and three claims for retaliation against some or all the defendants. Mack is African American with a Native American wife. It is alleged that he is terrified of snakes — a significant point described below. He claims that the former director of the town’s public works department, Kenneth Patterson, used racial slurs in Mack’s presence such as characterizing certain machinery repairs as having been “n-rigged” and “afro-engineered” and described Natives as “dirty Indians.”
Mack not only sued the individuals, but also their spouses. Arizona is a community property state meaning that any assets or liabilities incurred during the marriage is shared by the spouses. By suing both, if the plaintiff wins, he or she can collect from community property, not just the half that belongs to one of them.
Besides the racial slurs, Mack claims that a high school buddy of Patterson, an employee named David Davis, hid a garter snake in Mack’s street sweeper and told Mack to go get a spray bottle from a compartment of the sweeper, which resulted in Mack unwittingly grabbing the snake. Mack says that while Patterson and Davis were both laughing about it, Mack began having chest pains and suffered a heart attack, says his cardiologist. At the time, he was 58 years old and in poor health. Mack claims that Patterson knew what Davis was planning and didn’t stop it.
Mack sued, alleging that the town and various combinations of the defendants, in violation of federal law, created a hostile work environment, retaliated against him for reporting the incidences, and under Arizona law, for intentionally inflicting emotional distress on him with the snake incident. The suit does not specify an amount of damages sought, but Mack’s February, 2106 Notice Of Claim to the town (a precurser to the lawsuit) asks for $2 million.
The rules of civil procedure allow a court to grant “summary judgment” to either side if there is no material facts in dispute, if there is nothing for a jury to decide regarding the facts of a dispute. For example, say a driver sues another driver for injuries caused by running a red light. The defense produces evidence that the person who was sued wasn’t driving the car. If that can’t be refuted, defendant wins “as a matter of law” because the law says the one responsible is the one who drove through a red light.
In Mack’s case, defendants argued that there wasn’t any retaliation for Mack reporting the incidents; in fact, Patterson was reprimanded and got a two week suspension for the slurs, and Mack suffered no adverse effects to his employment. The judge agreed, and the appeals court said she was right when she gave the defendants summary judgment and threw out those three retaliation-related claims.
However, with regard to the other two counts, Mack requested and is entitled to a jury trial. The appeals court found that there were material facts in dispute that a jury, not the judge, has to figure out with regard to the hostile work environment.
The appeals court wrote that “Because Patterson used such severely offensive language in the presence of an African American person three times within one year, a reasonable jury could conclude that Mack’s environment was objectively and subjectively hostile,” but they removed Davis from that count because he didn’t make any racial slurs and there wasn’t evidence of a racial motive with the snake incident.
Likewise, with regard to the emotional distress issue, the court said that “reasonable minds could differ” as to whetter the snake incident by Davis was a harmless prank or amounts to “extreme and outrageous conduct,” which would entitle Mack to damages. Notice that the court didn’t decide these issues — it’s not the court’s job to do that. They sent those counts back to the trial court for a jury to decide, and the town is still on the hook.