In MCAD v. Kahalas, decided Nov. 17 by Massachusetts Commission Against Discrimination Hearing Officer Jason Barshak, complainant Ambroise claimed she was racially harassed and then fired because of her race and because of her complaints about the harassment. (Ambroise was a paralegal at Kahalas's law office; she had graduated from law school, but hadn't passed the bar, in four tries. Ltayf, Ellison, Calloway, and Clancy were other support staff, and Welsh and Bongiorno were lawyers.) Here are the hearing officer's findings of facts:
"HATE NICKELS BECAUSE THEY ARE NOT DIMES COMMENT"
On or about November 3, 2017, Ambroise was working late in the paralegals' room. Kahalas saw her and said to Ambroise that he was going to call her nickels, because she hates nickels, because they are not dimes, and asked if she was trying to get ahead ("hate nickels because they are not dimes comment"). I credit Kahalas' testimony that he was making a joke that he had made for years. Kahalas explained its meaning. The joke was that one who hates nickels because they are not dimes is a person who wants to make more money. Based on Kahalas' credible testimony concerning what he said to Ambroise, I do not credit Ambroise's testimony to the extent it implies Kahalas only said that he was going to call her nickels.
Ambroise did not know what Kahalas meant by his comment. After speaking to a friend, she had an understanding that it was a term relative to the value of an enslaved black person. Ambroise then performed a Google search and one of the results was the Urban Dictionary, a website where people submit their own definition of cultural slang. She searched the Urban Dictionary and found about a page and a half of definitions of "nickels" with five to ten definitions per page. Nowhere under the definitions of "nickels" was there a definition with racial connotation. None of the definitions of "nickels" stated that it meant "nickels n-word" or referenced the n-word. {Witnesses used the term "n-word" to reference the word "nigger" and it is used herein to connote the same.} After the definitions of "nickels", there were words containing the term "nickel(s)" like "nickels n-word" and "nickel dollar" which had their own definitions. According to Urban Dictionary, "nickels n-word" meant a poor black person who pays in change.
At the time Ambroise heard Kahalas' comment, she did not associate it with "nickels n-word." At hearing, Ambroise admitted that she had no reason to believe that Kahalas has ever used the Urban Dictionary. It was only after speaking with a friend, and looking up the term "nickels" on Urban Dictionary that she concluded the comment had racial connotations….
Ambroise discussed Kahalas' comment with Welsh. Welsh was familiar with Kahalas using a phrase that included "nickels" and remembered it was something to the effect of rubbing two nickels to get a dime. Welsh told Ambroise that he was certain that Kahalas did not mean the comment in reference to race. Ambroise told Welsh that she agreed. I do not credit Ambroise's testimony that she did not talk to Welsh about the comment in light of Welsh's credible testimony that they discussed it.
The day after Kahalas made the comment, Ambroise told Aronson about the definition of "nickels n-word" in the Urban Dictionary. Ambroise told Aronson that "nickels" was somewhat connected to "nickels n-word" and she was not comfortable with Kahalas using the term "nickels." She asked Aronson to tell Kahalas not to call her "nickels" again.
Kahalas learned from Aronson that Ambroise had complained about his comment. He could not understand how the joke he had told for years could be interpreted as a racial comment, and was livid that he was being accused of making a racist comment. I credit Kahalas' testimony that he felt Ambroise was trying to make him look like he had said something racist when he had not. Kahalas never used the Urban Dictionary and did not know it existed until after he was told Ambroise looked something up on it.
Kahalas never used the term "nickels" again and told Ambroise that he didn't mean anything other than a joke….
NOVEMBER 13-14, 2017
I credit the following testimony by Ambroise. On November 13, 2017, there was a meeting between Ambroise, Kahalas and Guerriero. During that meeting, Kahalas told Ambroise that she was being hypersensitive for complaining about the "hate nickels because they are not dimes comment" and needed to lighten up; asked Ambroise whether she had a personal issue with Guerriero; and notified Ambroise that she was receiving a warning for leaving the office without notifying a supervisor. I infer that warning was for the November 10, 2017 incident since Kahalas had already notified Ambroise of the warning for the November 1, 2017 incident. I credit Ambroise's testimony regarding the November 13, 2017 meeting for the following reasons: Kahalas was upset over Ambroise's reaction to his comment; the Ambroise-Guerriero relationship had deteriorated by that point (see below); and just three days before, Ambroise had left the office without permission. In light of Ambroise's credible testimony regarding this meeting, I do not credit Kahalas' testimony to the extent it implies that: (a) after November 10, 2017, he did not discuss with Ambroise her leaving the office without permission; or (b) the only conversation he had with her regarding the "hate nickels because they are not dimes comment" was telling Ambroise that he didn't mean anything other than a joke.
The next day, November 14, 2017, Ambroise overheard a conversation in which Kahalas was telling Bergel that Ambroise was accusing him of being a racist; he was not stupid enough to call her anything bad; he gave money to Suffolk University Law School for minority scholarships; and guessed Ambroise received a scholarship. I credit Ambroise's description of what she overheard, as it is corroborated by the following. Kahalas graduated from and donated funds to Suffolk University Law School for minority students who could not afford to attend law school.
Kahalas' comments on November 13 and 14, 2017 made Ambroise uncomfortable.
ALLEGED LUNCHROOM INCIDENT
Ambroise testified that on November 17 or 18, 2017, Ltayf commented that Ambroise's hair looked like a Brillo pad, Ambroise was ugly or "fucking ugly," black women were ugly, and made a sound of disgust regarding Ambroise…. I do not credit Ambroise's testimony, and I find that Ltayf made a joking comment about Bongiorno's hair and not a derogatory racial comment about anyone….
{LTAYF'S ALLEGED COMMENTS
Professional appearance in the office was important to Ltayf. If Ltayf believed an employee's appearance was inappropriate, she would tell the employee. Ltayf told Clancy, when she dyed her hair blue, that her hair was nice but inappropriate for the office. Ltayf believed attire was important to Kahalas and did not want Clancy to get in trouble. Clancy corroborated Ltayf's focus on professional appearance and belief that Kahalas required professional appearance, by testifying that Ltayf told Clancy that her blue hair looked silly and Kahalas would not allow it.
Ltayf considered Ambroise's overall appearance to be disheveled. Ltayf believed Ambroise's hair looked unhealthy and her attire unprofessional as it was not office-wear. Ltayf made comments to others about Ambroise's unprofessional appearance at work.
Ambroise became offended about something Ltayf said about Ambroise's hair. I credit Ltayf's recollection of that incident. On one day, Ltayf noticed there was something, perhaps a piece of lint, in Ambroise's hair, told Ambroise there was something in her hair, and removed it from Ambroise's hair, who "totally took [the situation] out of context."
On another occasion, Ltayf asked Ambroise if she used hair conditioner during a discussion regarding hair products with Ambroise, Ellison and Clancy. Although Clancy did not recall the discussion, I credit Ltayf's testimony that it occurred, because I find persuasive Ltayf's testimony that she and Ambroise did not have the kind of relationship where Ltayf would just walk up to Ambroise and ask her whether she used hair conditioner.
I credit Ambroise's testimony that in October 2017, Ltayf made a comment about Ambroise's skirt in front of Guerriero, who snickered, as it is corroborated by Ltayf's testimony that she considered the things that Ambroise wore to be unprofessional.
At times, Ltayf commented about how beautiful Ellison was, and how nice her hair looked.
I do not credit Ambroise's testimony that early in her employment, at a time when she was looking for supplies in a closet, Ltayf told Ambroise to "come out of the closet already," because Ambroise filed a statement with the Commission within one month after her employment at the Firm ended that did not reference such a comment.
I do not credit Ambroise's testimony that in late September/early October 2017, Ltayf asked her if she ever combed her hair nor do I credit her testimony that in mid-November 2017, Ltayf again asked her if she ever combed her hair. Ambroise testified that she believed both comments were made in front of Clancy's desk and that Clancy overheard them. Clancy credibly testified she never heard such comments.}
The hearing officer concluded that the various comments Ambroise complained about weren't based on her race or color, and thus weren't racial harassment:
I determine that the following comments and actions were not based on race or color. First, as detailed below in the disparate treatment section, the two verbal warnings Ambroise received were not based on race or color. Second, there is no evidence the skirt comment was based on race or color. Third, derogatory comments about physical features linked to race can constitute race discrimination and/or create a hostile work environment, but Ltayf asking Ambroise, as part of a group discussion regarding hair products, if she used a hair conditioner is not a derogatory comment based on race or color. Fourth, Ltayf's comment about Ambroise having something in her hair and taking it out was rude, but under the circumstances in this case, not based on race or color. Fifth, Ltayf's positive comments about Ellison and her hair do not imply derogatory comments about Ambroise's hair or race or color. Sixth, Kahalas calling Ambroise incompetent in the context of her drafting a letter was not based on race or color as evidenced by his expressing displeasure at times regarding quality of work by Ltayf. Because these comments and actions were not based on race or color, they cannot support the hostile work environment claims.
I determine the "hate nickels because they are not dimes comment" itself was not based on race or color. It was a joke about money Kahalas had used for years. Ambroise had no reason to believe he ever used the Urban Dictionary; admitted that nowhere under the definitions of "nickels" in the Urban Dictionary was there any definition with a racial connotation; and agreed with Welsh that Kahalas did not mean the comment in reference to race.
There may be circumstances where an employee being told she was hypersensitive and should lighten up over a comment she thought had racial connotations are not themselves comments based on race. However, under the circumstances of this case, which include Kahalas speculating the next day after he said such comments that Ambroise received a scholarship designed for underprivileged minority students, I determine the hypersensitive, lighten up, and scholarship comments are sufficiently connected to race or color. I shall collectively refer to those three comments as "Kahalas' reactionary comments."
Lastly, I analyze whether the comments connected to race or color, when considered in their totality, were sufficiently severe or pervasive to alter the terms or conditions of employment or create an abusive working environment for a reasonable person in Ambroise's position considering all the circumstances. Even though I determined that the "hate nickels because they are not dimes comment" was itself not based on race or color, it is inherently entangled with Kahalas' reactionary comments, and under the circumstances, I deem it appropriate to consider the combined effect of that comment and Kahalas' reactionary comments in assessing whether there was an actionable hostile work environment.
The n-word is one of the most vile and devastating words in the English language. Its single utterance, by itself, is more than sufficient to establish a hostile work environment by race and color. But in this case, the n-word was not used, and any connotation to it is too attenuated to have meaningful impact. The "hate nickels because they are not dimes comment" was a joke about money that Kahalas had used for years. When Ambroise heard the comment, she did not associate it with "nickels n-word." None of the definitions of "nickels" she found in the Urban Dictionary had a racial connotation, meant "nickels n-word" or referenced the n-word. In the Urban Dictionary, the term "nickels n-word" was a separate term from the term "nickels" with its own definition. Ambroise had no reason to believe Kahalas ever used the Urban Dictionary and agreed with Welsh that Kahalas did not mean the comment in reference to race. Kahalas telling Ambroise that she was being hypersensitive and should lighten up regarding his comment was insensitive. Kahalas complaining to another employee about Ambroise's reaction to his comment and speculating she had received a scholarship designed for underprivileged minority students was insensitive and insulting. However, Kahalas' reactionary comments combined with each other and the underlying "hate nickels because they are not dimes comment" fail to create a sufficiently severe or pervasive hostile work environment to rise to the level of race or color harassment. Thus, the hostile work environment claims of race and color are dismissed….
The court also concluded that there was no evidence that Ambroise's eventual firing was based on her race or on retaliation for her complainants.
Richard M. Welsh, Jr. represents Kahalas.
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