13 F.4th 493
6th Cir.2021Background
- DeAnna Johnson, an African American process coach hired by Ford in June 2018, was supervised in training by Nick Rowan, a longtime production supervisor.
- During a ~4-month period Rowan repeatedly made sexual and race‑tinged comments, demanded nude photos, sent pornographic images (including an erect penis photo), and ultimately sexually assaulted Johnson by grabbing her breast.
- Johnson told Senior Process Coach Richard Mahoney and Team Manager William Markavich about Rowan’s conduct, showed Mahoney some texts/pictures, later reported the assault to Crew Operations Manager LaDawn Clemons, and then to HR (Les Harris); Rowan was suspended and later terminated.
- Johnson sued Ford asserting (inter alia) a § 1981 racial harassment/hostile‑work‑environment claim; the district court struck portions of her post‑deposition declaration as sham and granted summary judgment on the § 1981 claim for failure to show objectively severe or pervasive racial harassment.
- The Sixth Circuit held the district court abused its discretion in striking ¶ 20 of Johnson’s declaration and erred in granting summary judgment on the § 1981 hostile‑work‑environment claim, reversing and remanding for further proceedings (including assessing employer notice in the first instance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the district court properly strike portions of Johnson’s post‑deposition declaration under the sham‑affidavit doctrine? | The declaration filled gaps and clarified testimony; Ford’s counsel did not ask about race‑related texts at deposition. | The declaration contradicted deposition testimony and improperly created factual issues after summary judgment briefing. | Court: Striking ¶ 20 was an abuse of discretion—¶ 20 did not directly contradict deposition and was permissible supplementation. |
| Was Rowan’s race‑based harassment sufficiently severe or pervasive to create an objectively hostile work environment under § 1981? | Rowan’s racial comments and race‑infused sexual demands occurred daily and repeatedly for months and interfered with job performance and wellbeing. | Isolated references and primarily sexual context render the conduct not objectively severe or pervasive. | Court: Reversed summary judgment—evidence of constant, race‑tinged sexual demands and conduct could be severe/pervasive under the totality of circumstances. |
| Did Johnson forfeit arguments about severity/pervasiveness by raising them late (motion for reconsideration)? | Arguments were presented in the summary‑judgment response and the record; issue is legal and sufficiently developed to decide. | Arguments were first fleshed out on reconsideration and thus forfeited. | Court: Excused any forfeiture and reached the merits, finding full briefing and potential miscarriage of justice justify review. |
| Should the Court decide whether Ford had notice and failed to act, or remand that issue? | (Implicit) Evidence shows managers were told; ¶ 20 supports notice. | (Implicit) Plaintiff failed to develop notice argument below. | Court: Declined to decide employer‑notice element on appeal and remanded for the district court to determine in the first instance. |
Key Cases Cited
- Aerel, S.R.L. v. PCC Airfoils, LLC, 448 F.3d 899 (6th Cir. 2006) (sham‑affidavit framework and factors for striking affidavits)
- Reich v. City of Elizabethtown, 945 F.3d 968 (6th Cir. 2019) (narrow construction of what constitutes direct contradiction between affidavit and deposition)
- Reid v. Sears, Roebuck & Co., 790 F.2d 453 (6th Cir. 1986) (may not create factual issue by filing affidavit contradicting prior sworn deposition)
- Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) (ongoing, commonplace comments can be sufficiently pervasive to survive summary judgment)
- Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) (§ 1981 hostile‑work‑environment principles and considering totality of circumstances)
- Harris v. Forklift Sys., 510 U.S. 17 (1993) (objective/subjective test and relevant factors for hostile‑work‑environment analysis)
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (isolated/offhand comments generally insufficient; totality matters)
- Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999) (totality of incidents must be considered together)
- Hawkins v. Anheuser‑Busch, Inc., 517 F.3d 321 (6th Cir. 2008) (continual harassing acts more likely to be pervasive)