Dissenting from a 5th Circuit opinion

Is calling an Afrcian American man a "boy" on two occasions enough to create a hostile work environment based in race? On Jan. 7 in Cavalier v. Clearlake Rehabilitation Hospital, Inc., the 5th U.S. Circuit Court of Appeals said "no." James Cavalier, who is African-American, worked for Clearlake Rehabilitation Hospital as the hospital's director of nursing. He claimed that another director-level employee made 12 inappropriate statements, including the "boy" comment twice, and once telling Cavalier that she was going to "beat the tar off of him." The others involved calling him a doofus or a dunce. Cavalier complained to human resources, and an investigation ensued. The employee who conducted the investigation told Cavalier that Cavalier and his co-worker should work together to repair their relationship. Cavalier resigned a week later. The 5th Circuit affirmed the trial court's summary judgment. The court said there was dispute over whether the manager said she was going to beat the tar off of him or out of him. But no mind. To quote the 5th Circuit: “Though Cavalier may believe that all twelve incidents were motivated by racial animus, subjective belief of racial motivation, without more, is not sufficient to show a hostile work environment. Since these three instances do not rise to the level of severity or pervasiveness required to show a hostile environment, the district court correctly [granted summary judgment]." I dissent. A jury reasonably could infer that the purported "doofus" and "dunce" comments were racially based, given the racial context of the word "boy." If there were only offensive comments, without any being racially based, then yes, the case should get tossed. What if the other manager had used the "N" word once or twice and the rest of the comments were "doofus" and "dunce"? Same result? The court went on to say that Cavalier would have lost anyway because the law requires employees to take advantage of any "corrective opportunities" -- here, the offer of human resources to work with them to resolve any conflicts. You know, if that is so, why not skip over the "boy" comments? What is going on? Judges are people. Cavalier did not respond to the offer from human resources. The court may have thought that it was not going to help people who don't help themselves.