Contractor, Inc. was the general contractor for a construction site in Memphis.Contractor, Inc. managed all aspects of construction of a new hospital.

Contractor, Inc. hired Mo Kellerman, BobbySamuels and Robert Vick to operate a temporary elevator on the site. All three were African-American.

Jim Nelson, who is white, directly supervised the elevator operators.

The Problem

The three elevator operators began working at the site as an elevator operator in September 2019. Shortly thereafter, other workers at the site called Kellerman a "monkey" and a "n***** [racial epitaph]." Kellerman also saw racist graffiti in the portable toilets, including the word "n*****," the phrase "n*****s have to leave," and "a depiction on the toilet walls of a white person holding a shotgun and shooting a black person."

Samuels also heard workers refer to the operators as "n*****s" and "black motherf_____s."

Although Samuels called Nelson each day to report these incidents, Nelson merely told him to tell Nelson's superiors about them.

Other Construction, Inc. workers subjected Robert Vick to racial comments "every single day" after he began work at the Construction site. When the workers thought that Vick took too long to pick them up in the elevator, they would call him racial slurs over the walkie-talkie. A different Construction, Inc. manager could hear the slurs over the walkie-talkie, but apparently did nothing about them.

One day in October 2019, Vick came to work using crutches for a broken leg. A Construction, Inc. supervisor told him to "get the hell off my jobsite" and that "[y]ou n*****s always think you are heroes."

Vick called Nelson, who told Vick that "there was nothing he could do" about it.Vick was fired and never rehired.

On September29, 2019, while Kellerman was operating the elevator, someone threw liquid from a porta-potty onto his arms and into his eyes, which immediately began to swell.

Kellerman told Nelson about the incident and said that he needed to go home to clean himself. Kellerman returned to work on October 1, 2019. Later that day, he had an altercation with another employee. Someone reported the incident to Nelson, who went to investigate. When Nelson arrived on the scene, another employee admitted to using racial slurs towards Kellerman. Neely sent Kellerman home to "calm down."

After the September 29th incident, Construction Inc, executive Mike Robbards wanted to fire Kellerman and Samuels.Robbards told Neely, thatthe employees "did not exhibit what I wanted them to exhibit."Robbards told Kellerman, Samuels, and Neely that when "people come on the job,and see tension between individual employees that work for us . . . or work, you know, under our direction . . . I think you've got to change that."

Robbards took no action at that time, but on October 8th, Construction, Inc. also distributed a documententitled "Elevator Operator Responsibilities"which outlined the operators' work hours, breaks, and duties.It prohibited elevator operators from using a telephone.

Two days later, Construction, Inc. fired Kellerman for using his cell phone while on the job.

Samuels remained at the site, but continued to hear racial slurs every day. He left the site when Construction, Inc, discontinued using the elevator in late 2020 and his services were no longer needed.

Assume for purposes of this question that all of the elevator operators are employees, that Construction, Inc. operates in interstate commerce and has 15 plus employees, and that the employees properly filed their actions in a timely way before the EEOC, and were given right to sue letters.

The Law

The elements of the prima facie case of disparate treatment are:

1.The employee is in a protected class.

2.The employee was qualified for the position.

3.The employee was suffered an adverse employment action -- in other words, the applicants was not hired, or the employee was not promoted or was fired.

4.Evidence strongly suggested that the adverse employment action occurred due to the employee's status in a protect class.For example, employee outside of the protected class was selected for the position, or the employer continued to look for candidates. Or, an employee who claims she was not promoted because she was a women could show that a man was promoted instead, or that the company continued to look for internal candidates after rejecting her.

The elements of the prima facie case of hostile work environment:

1.The employee is in a protected class.

2.The employee was qualified for the position.

3.The employee was subject to unwelcome harassment, that is severe and pervasive and directed at the employee.

4.The harassment unreasonably interfered with the employee's work performance by creating an environment that was intimidating, hostile, or offensive (under the totality of the circumstances, the behavior was sufficiently severe or pervasive to alter the conditions of employment) [This could include actual termination or demotion.]

5.The employer is liable for the harassing conduct - the employer tolerated or condoned the alleged conduct, or that the employer knew or should have known of the alleged conduct and failed to take prompt remedial action

The Questions for Question 1 each sub part is worth up to 5 points.

A.Vick can establish all the elements for a prima facie case of employment discrimination under Title VII based on disparate treatment.Explain how each element is met.

B.Kellerman can establish all the elements for a prima of employment discrimination under Title VII based on disparate treatment.Explain how each element is met.

C.The employer, Contractors, Inc., would have a defense to Kellerman's claim.Explain what that defense is, and whether you believe it is a meritorious defense or pretext.If you think you need more information, explain what additional information would be relevant to help resolve the issue.

D.Samuels would be able to establish the elements for hostile work place harassment.Explain how, in detail.(note, Kellerman could also bring a claim for hostile work place harassment.I am just not asking you to analyze the merits of his claim for purposes of this question.)