As Black History Month drew to a close, a federal judge in New Orleans cleared the way for a March 15 trial in an atypical race discrimination suit against Jefferson Parish. The plaintiff, an Italian Jew and former parish sign technician, alleged that his supervisor repeatedly harassed him with Nazi slogans and racial and ethnic slurs at the parish traffic and engineering department. The case settled late last week.
Charles A. "Chuck" Simon Jr. of Metairie brought the lawsuit against the parish for the alleged acts of his former supervisor, Armand Kerlec, 59, of Harahan. Both men are white, and both worked at the parish traffic and engineering department in Harahan. Simon was terminated in 2005, shortly after Hurricane Katrina.
Terms of the parish's settlement with Simon are sealed, but the court record reflects the "he said/they said" nature of most discrimination lawsuits, as well as painful details of this particular case. Simon's attorney, Glenn C. McGovern, declined comment on the case, as did defense attorneys Guice A. Giambrone III and Kelly A. Dugas, who both work at the Metairie law firm of Blue Williams.
In court filings, Kerlec acknowledged using Nazi salutes and saying "Heil Hitler" on the job. The supervisor, a 32-year parish employee, characterized the gestures as "jokes" that were never directed at anyone.
"I never even thought about whether anybody would be offended by it," Kerlec said of the Nazi salute, according to a transcript of his Sept. 8, 2009, testimony in a pre-trial deposition.
Simon's suit predated the unrelated and highly publicized complaint in 2007 by a black parish laborer, whose allegations that white co-workers harassed him with nooses led to the suspension of six parish supervisors.
Federal civil rights statutes permit Jews such as Simon to seek protection from racial discrimination as a "distinct race," according to his lawyer. Defense attorneys representing Jefferson Parish argued in their pleadings that Simon's race and national origin were not a factor in his post-Katrina termination for allegedly abandoning his job as an "essential duty" employee. Simon denied abandoning his job.
Two weeks ago, on Feb. 26, U.S. District Judge Lance Africk issued a split pre-trial decision in the case, denying the parish's request to dismiss all six of Simon's claims. Instead, the judge tossed four of Simon's claims but said two were credible enough to go to trial. The claims Africk dismissed include two for alleged civil rights violations, one for alleged retaliation in response to his complaints, and one for alleged denial of equal protection and due process.
Of the two claims that remained, the judge ruled that Simon produced "credible" evidence to support a wrongful termination claim as well as a claim that Kerlec "repeatedly and continuously used Nazi symbols and racial and ethnic slurs" in the workplace — which fostered a "hostile work environment."
"The use of Nazi imagery is objectively offensive," Africk wrote in his ruling. "Especially in light of his Jewish heritage, [Simon] was subjectively offended and found the workplace to be hostile and abusive."
In his 11-page decision, Africk said sworn statements from other parish employees corroborated Simon's claims of racial animus in Kerlec's department.
Brian G. Johnson, who worked for the parish from 1980 to 1990 — more than a decade before Simon was hired by the parish — gave a detailed account of Kerlec's antics and racial slurs against Jews, blacks and Italians. "Brian Johnson avers that he observed Kerlec make the 'heil Hitler' salute in the work place on 'many' occasions," the judge wrote, adding, "Eric Scott wrote an affidavit stating that Kerlec would call [Simon] 'dumb Dago' and Kerlec would regularly perform a Nazi salute in front of [Simon]. Most significantly, [Simon] testified that, on the night he was fired, Kerlec told him, 'I'm firing your dumb Dago ass.'"
Africk concluded that Simon's testimony was corroborated by testimony from Scott, an African-American who worked in the department from 2001 to 2007 — and who worked with Simon "most days" for about three years before Katrina hit.
Jefferson Parish hired Simon in 2000. He transferred to the engineering department in October 2002. Around that time, Simon alleges, Kerlec told him that his department was the "Jewel of the Nile." Kerlec allegedly added that African-Americans and Jews were not welcome in the department and did not last long there.
In a Jan. 24 memorandum opposing the parish's motion to dismiss all of Simon's claims, Simon's attorney pressed for a trial by jury. "This case involves the palpable mistreatment and denial of due process that the civil rights laws of this nation were designed to counter," McGovern wrote, adding that Simon "was subjected to treatment at the workplace that would be unacceptable outside of Hitler's Third Reich."
In his suit, filed Jan. 23, 2009, Simon alleged Kerlec began harassing him as soon as he transferred to the traffic and engineering department in October 2002, despite Simon's good performance evaluations from his previous assignment.
Simon alleged that Kerlec's Hitler salutes and yells of "Sieg Heil" set an example for other unnamed employees who "taunted, harassed and humiliated him." On one occasion, Simon says, his wife was undergoing breast cancer surgery and Kerlec allowed workers to post an "objectionable picture" in the workplace. A copy of the alleged image filed in court exhibits depicts an unidentified man wearing a box with two curves placed at the level of his mouth and the message: "Free Mammogram: Place Boobs here."
The parish, through its defense attorneys, denied Simon's allegations regarding the illustration. With regard to Simon's wrongful termination claim, defense attorneys argued in court filings that Jefferson Parish had "legitimate, non-discriminatory reasons" for terminating Simon. They also alleged Simon failed to report his allegations of bias against Kerlec until after he was fired, even though Jefferson Parish has a formal grievance procedure for reporting workplace harassment.
In a Jan. 15 court filing, Dugas acknowledged that Kerlec occasionally "made derogatory comments such as a Kike, Dago, Frog and Jew. However, these comments were never directed at Mr. Simon." Dugas added that Simon's own witnesses — including parish employee John Deraix — testified that he never heard Kerlec refer to Simon as a "Dago or dumb Dago" in Simon's presence. "Mr. Deraix further testified that they could remember Mr. Kerlec doing the goose step only four to five times in a period of five years," Dugas argued. "Witnesses have consistently testified that Mr. Kerlec did the Imperial salute or 'Heil Hitler' salute 'not many times' or not in front of Mr. Simon."
Moreover, Kerlec's Nazi salutes were "done as jokes, occasional horseplay, when egged on by other employees" and did not meet federal court tests for "extreme conduct" — a legal requirement for establishing a hostile work environment, Dugas wrote in her filing. "Conduct that amounts to ordinary socializing in the work place, such as occasional horseplay, occasional use of abusive language, tasteless jokes and occasional teasing does not constitute an abuse of the ... work environment." Dugas cited discrimination case law from federal appellate courts to support her arguments.
Africk disagreed and ruled that Simon "has presented evidence that the racially motivated harassment culminated in [him] being discharged by his supervisor."
In dismissing Simon's claims of a racially motivated conspiracy to violate his civil rights, Africk noted that Simon "provided no evidence that Jefferson Parish upheld his termination because of racial animus." Simon also did not provide evidence to support claims that Kerlec's alleged harassment and Simon's discharge were "in any way attributable to official parish policy."
Armand Jude Kerlec, a parish employee for 32 years, gave detailed testimony on his workplace behavior during a Sept. 8, 2009 deposition.
With Simon attorney McGovern and parish lawyers from Blue Williams present, Kerlec said he started working for the parish in January 1977 as a cop for the old Ponchartrain Levee District after working for the Harbor Police for a month. Kerlec said he left the levee district job to earn a bachelor's degree in criminal justice studies at Loyola University. He was promoted to parish sign and marking superintendent a month before Katrina hit in 2005, he said, noting he had never been the subject of an EEOC complaint or state or federal lawsuit.
Kerlec admitted under oath that he attempted to demonstrate the Hitler salute — which he called the "Imperial salute ... from Rome" — while testifying at a Feb. 15, 2006, civil service hearing of Simon's appeal of his termination. He said defense attorney Clem Donelon stopped him from giving the salute, and he gave no further testimony at the civil service hearing. Had he been allowed to continue, Kerlec told Simon attorney McGovern, he would have recounted an exchange with his own supervisor, Doug Robert. Kerlec said he objected to a proposed parking plan for the affluent neighborhood of Old Metairie. "[A]nd I said they were really no different than anybody else and I didn't see a reason to do that, and [Robert] called me a Nazi," Kerlec said in the deposition. "I said, 'Well, if that's a Nazi, I guess I'm a Nazi.'"
Kerlec testified that he then left the meeting with Robert and gave the salute to a passing truck, provoking laughter among unidentified men. Kerlec said he quit using the gesture after someone warned him he could get in trouble. Kerlec then elaborated on his workplace conduct under questioning from McGovern.
Asked if he was offended by being called a Nazi, Kerlec said in his deposition, "I didn't care. It didn't mean a thing to me in that — I mean, if that's what [Robert] is going to call one, then I guess I am one, you know, because ... I don't think anybody should get anything more than anybody else."
Asked if he used the "Heil Hitler" salute in the workplace on more than one occasion, he responded, "Oh, yeah."
Kerlec also admitted under oath that he probably said "Sieg Heil" or "Heil Hitler" when giving out work orders to sign crews. He denied ever clicking his heels or goose-stepping in the workplace, saying, "I have hip problems and back problems. I couldn't do the goose step if I wanted to."
Asked by McGovern if he thought a Jewish person would be offended by a supervisor giving the Nazi salute, Kerlec said, "I don't know whether they would be or not. I mean ... I never even thought about whether anybody would be offended by it. There were so many people (co-workers) egging me on all the time that I just figured — I didn't think about it."
Kerlec also admitted that he probably used the word "n----r" on the job during his 32 years as a parish employee, but not among black workers. He also acknowledged receiving extensive parish training with regard to racial discrimination and harassment in the workplace, including warnings not to use racial slurs to describe Jews and African-Americans. He testified that he did not know Simon was Jewish until Simon told him.
Peter Scharf, a criminologist at Tulane University and a Jewish-American whose parents fled Nazi-occupied Austria in 1937, said the kind of comments found in Kerlec's testimony provoke strong feelings among Jews.
"A goose step for Jews has the same emotional impact as a knotted rope for blacks," Scharf says. "These historical memories that different groups have about oppression, whether it's the Armenians, blacks or the Jews, have an incredible impact on society, especially in the context of the workplace."
Jefferson Parish spokesperson Patricia Borne said: "Jefferson Parish has a firm policy regarding harassment and objectionable behavior in the workplace. We take reports of such behavior very seriously. As this information comes to us, we are investigating it and will take appropriate disciplinary action where warranted."