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10-2768 Ellis v. CCA of Tennessee, LLC

By: WISCONSIN LAW JOURNAL STAFF//June 9, 2011//

10-2768 Ellis v. CCA of Tennessee, LLC

By: WISCONSIN LAW JOURNAL STAFF//June 9, 2011//

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Employment
Hostile work environment

The use of the term, “monkeys,” as a metaphor to workplace problems does not create a hostile work environment.

“As to the materials excerpted from THE ONE MINUTE MANAGER MEETS THE MONKEY, we will take as a given that plaintiffs found the material subjectively hostile. Their case founders on the objective component—that is, what a reasonable person would find offensive or hostile. The book is plainly directed at management concerns, and the metaphor employed by the book (monkeys represent workplace problems) is unlikely to cause confusion. Compare, e.g., Patrick White, The Key in ‘Ulysses,’ 9 JAMES JOYCE Q. 10 (Fall 1971). Moreover, the management book is a spin-off of a classic article that was first published in the Harvard Business Review in 1974. See William Oncken, Jr., and Donald L. Wass, Management Time: Who’s Got the Monkey?, 99 HARV. BUS. REV. 178 (1999) (reprinting the article as a ‘classic’ and noting that it ‘has been one of the publication’s two best-selling reprints ever’). In Gregory v. Widnall, the Ninth Circuit concluded that a hostile work environment claim did not raise a jury issue where supervisors had received a ‘single drawing of a monkey on a memo . . . accompanied by the verbal explanation that it was intended to remind [supervisors] not to “get the monkey off their back” by passing their responsibilities to others.’ 153 F.3d 1071, 1074-75 (9th Cir. 1998). That conclusion is sound. The mere presence of THE ONE MINUTE MANAGER MEETS THE MONKEY at the jail not only fails to create a hostile work environment under our case law, e.g., Coolidge v. Consolidated City of Indianapolis, 505 F.3d 731, 734 (7th Cir. 2007) (ruling that ‘brief and not particularly severe’ exposure to pornography depicting necrophilia did not create a hostile work environment at a crime lab), it fails to tend to establish a hostile work environment. Similarly, the stray comments over the jail intercom do not help plaintiffs’ case, at least not on the record before us. It appears only that the word monkey was used over the intercom, but plaintiffs have provided no context. The word might have been used to mock the jail’s administrators, to refer to all workers collectively, or for some other purpose altogether. The vague record evidence tells us only that the word was uttered; no other inference is reasonable. To be sure, we agree with the statement of one of our sister circuits that ‘[t]o suggest that a human being’s physical appearance is essentially a caricature of a jungle beast . . . is degrading and humiliating in the extreme.’ Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006). A reasonable trier of fact, however, could not conclude that such a suggestion was made in this case.”

Affirmed.

10-2768 Ellis v. CCA of Tennessee, LLC

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Flaum, J.

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