Case Law on Workplace Harassment Swinton v. Potomac
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Troy Swinton was employed in the shipping department of U.S. Mat between August 1996 and
February 1997. He was the only African-American of approximately 140 employees
of the Woodinville, Washington company, which manufactures cardboard matting used in
picture frames. Shortly before Swinton was hired, the company was acquired by the
Chicago-based Potomac Corporation. Swinton became aware of U.S. Mat through his fiancée,
whose uncle, Jon Fosdick, worked there as supervisor in the bevel-cutting department. Swinton
listed Fosdick as a reference on his job application. Fosdick would often stop by the shipping
department. While there, he would regularly tell racially offensive jokes in the presence of
Swinton and others.
Among the "jokes". (Jokes listed in court case were removed from this document because they
were extremely offensive).
According to Swinton, Fosdick began telling such jokes soon after he arrived at the company and
continued "whenever he felt like it, all the time."
Pat Stewart, Swinton's immediate superior as supervisor of the shipping department, witnessed
Fosdick telling racial jokes and laughed along. Swinton testified that Stewart "was present at the
table most of the time when [Fosdick] was coming in and saying this [the racial jokes]." Stewart
also acknowledged making "racial jokes or a slur" two or three times, though it is not clear from
his testimony whether such conduct occurred in Swinton's presence. Stewart also overheard one
of the two plant managers make racial jokes on several occasions. Stewart admitted that although
he had an obligation under company policy to report the racial harassment, he never made any
such report and never told Fosdick or anybody else to stop making such jokes. Though Fosdick
was the main perpetrator of the jokes, Swinton's co-workers also told racially offensive jokes in
his presence, and those comments were witnessed by several coworkers. The jokes and
comments ranged from numerous references to Swinton as a "Zulu Warrior" to a comment in the
food line, "They don't sell watermelons on that truck, you know, how about a 40-ouncer?" On
the subject of Swinton's broken-down car, it was suggested "why don't you get behind it and
push it and call it black power" and "why don't you just jack a car. You're all good at that."
Testimony by co-workers underscored the ubiquity of the racist atmosphere at U.S. Mat. One
co-worker said that there were jokes about a wide variety of ethnic groups, including whites,
Asians, Polish people, gays, Jews, and Hispanics. Another testified that the majority of the
people at U.S. Mat had actually witnessed the use of racially offensive language, and a third
employee testified that "just about everybody" at U.S. Mat had heard Fosdick use "racial slurs
and comments." During the short time he was at U.S. Mat, Swinton heard the term "n….." more
than fifty times. Swinton's reactions to the racially derogatory comments included glaring and
walking away, and remarking to coworkers that the jokes were "f***ed up." Swinton testified
that he did not directly ask Fosdick to stop because he knew that Fosdick regularly carried a .22
caliber pistol in his back pocket. Despite Fosdick's regular use of racially offensive language,
Swinton and Fosdick socialized both at work and outside of work. Swinton claimed that he
socialized with Fosdick not because he enjoyed doing so, but only at the urging of his fiancée
(Fosdick's niece), to maintain harmonious family relations. Swinton testified that he did not
immediately quit in the face of the racial comments because he needed the job to support himself
and his fiancée, who was pregnant. He eventually quit on February 27, 1997, stating in his
testimony that he was "fed up . . . with all the name-calling. I was angry. I was mad. I was upset.
I was frustrated. I just couldn't take it no more. I had to get out of there." Potomac's theory
explaining why Swinton quit and brought suit, centers around an alleged breakdown in family
relations. According to Potomac, Swinton brought suit as a means to retaliate against Fosdick
because of comments that Fosdick's wife purportedly made about Swinton and his fiancée.
Upon commencing employment at U.S. Mat, Swinton was presented with an employee manual.
Swinton testified alternately that he "read" and "browsed through” the manual; he did sign a
form acknowledging that he received it. The employee manual included the following language:
If you believe you are being harassed by co-workers or others, notify your Supervisor. If you
believe you are being harassed by your Supervisor, or if this is otherwise inappropriate, notify
the President. No employee will be retaliated against in any way for making a factually
supported claim of harassment. Swinton never availed himself of any formal internal complaint
procedures. He advanced several reasons. According to Swinton, the "Supervisor" to whom he
was supposed to direct his complaint was Pat Stewart, who had already witnessed the joketelling and had actually "laugh[ed] along." Swinton claimed that he did not know the identity of
the"President" (whom the manual identified as an alternative complaint recipient), and thus did
not bring the harassment to his attention. Swinton also feared Fosdick, whom he knew to carry a
gun. Swinton told a co-worker that he feared that he might lose his job if he complained because
he was the"low man on the totem pole" (questioner's paraphrase). Finally, Swinton testified that
"everyone already knew." This answer came in response to a question whether "people in
management" knew of the racially offensive language directed at him. On March 7, 1997,
Swinton filed an application for unemployment benefits with the Washington Employment
Security Department, indicating that he had quit on February 28. In his handwritten responses to
questions on the application form, Swinton referred to "racial slander" and "racial jokes daily by
numerous people," and stated, "Everyday, from one person or another, a racial joke or comment
was thrown my way, and I was sick and tired of it." Swinton identified several of the specific
jokes about which he and others later testified at trial. He noted that he "didn't feel comfortable
going to management because they knew about the problem [and ] did nothing about it."
This case should serve as a reminder to employers of their obligation to keep their workplaces
free of discriminatory harassment. Although much of what happened here was characterized
as "jokes," neither the discrimination nor the jury verdict is a laughing matter. Troy Swinton, had
a jury award him $5,612 in back pay, $30,000 for emotional distress, and $1,000,000 in punitive
damages.