Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D. Neb.: Discovery of noose and ‘scary clown mask’ two years apart not enough to support hostile environment claim, (Apr 15, 2026)

By Kathleen Kapusta, J.D.

The warehouse employee discovered the noose on a machine he used at work and he found the clown mask in a high-traffic area near an employee time clock.

Although a Black Oriental Trading Company employee tried in vain to bridge the gap between his discovery of a miniature noose on the seat of a machine he used at work and his discovery, two years later, of a scary clown mask with a rope in a high-traffic area, he failed to reasonably establish a link between the incidents, said a federal court in Nebraska, granting summary judgment against his Title VII and state-law hostile work environment claims. His retaliation and negligent infliction of emotional distress claims likewise failed on summary judgment (Kirksey v. Oriental Trading Co., No. 8:24CV268 (D. Neb. Apr. 13, 2026)).

Noose. The employee, who worked as a floor specialist with OTC since 2017, noticed a miniaturized string noose on the seat of his machine in June 2020. Distraught and shaken, especially because his uncle had, according to the employee’s father, been “hung from a tree with a noose because he was black,” he reported the incident to security and OTC’s facility management director.

The director immediately drove to the warehouse, met with the employee, apologized for the incident, sent him home that day, and granted him two weeks of paid leave. After investigating the incident, OTC discovered that a coworker had left the noose to intimidate and threaten the employee. It fired the coworker and shared the results of its investigation with law enforcement. The coworker ultimately pleaded guilty to a hate crime and was sentenced to four months in federal prison.

As a result of the incident, the employee “copes with fear and anxiety every time he goes to work at OTC.”

Clown mask. In October 2022, while alone in the warehouse, the employee noticed a scary clown mask with a rope around his neck on an order-picker machine that the employee walks by “during his normal work routine.” The company again investigated and determined that the rope and mask were part of a returned Halloween product that had been separated from the body. It also discovered that another warehouse employee had placed “the mask on the order picker, as part of a longstanding practice of warehouse employees staging damaged or returned inventory throughout the warehouse,” especially at Halloween. Before he moved the mask to the order picker, it had been placed in other parts of the warehouse. Because OTC determined that the placement of the mask was “only a joke,” it did not discipline the perpetrator.

Gun incident. Several days later, some of the employee’s coworkers reported that he claimed he was carrying a gun at work. The employee denied this and OTC, after visually inspecting his car, believed him and took no further action.

Updated form. In June 2023, the employee was asked to sign an updated “Motor Vehicle Record Disclosure and Change in Driving Record.” Although the company told him dozens of other employees were asked to fill out the form, the employee claimed he was unaware of anyone else being directed to sign it.

Altercation. In October 2023, the employee was involved in an altercation with a maintenance staff member who questioned his use of a golf cart in the warehouse. When the employee did not respond to him, the coworker “began yelling at [him] through a two-way radio.” The employee reported the incident, including his belief that the maintenance employee was friends with the coworker who had planted the miniaturized noose and that he harbored ill-will due to the coworker’s termination and prosecution. The maintenance employee was given a final written warning for the unprofessional altercation.

The employee subsequently sued, asserting claims under Title VII and state law for race discrimination, retaliation, and hostile work environment as well as a claim for negligent infliction of emotional distress (NIED).

Hostile work environment. Granting OTC’s motion for summary judgment on the employee’s hostile work environment claims, and denying the employee’s, the court found he failed to show he was subjected to actionable harassment based on his race. While he reached back to the 2020 noose incident to try to tie the clown mask and the unrelated altercation with the maintenance employee to his fired coworker’s admittedly racist placement of the noose on his machine, there simply was no evidence to support a link between the events, said the court, let alone to show OTC was liable.

Also rejected was his argument he was entitled to summary judgment solely based on OTC’s determination that the placement of the clown mask in the warehouse was a prank or joke despite policies prohibiting such activities in the employee handbook. “OTC’s policies and practices—whether ironclad or aspirational—do not ‘conclusively’ redefine state and federal law on hostile work environment,” the court explained, and the employee’s subjective views, while part of the analysis, “are not dispositive as he suggests—regardless of any purported OTC ‘zero-tolerance’ policy to the contrary.”

Nor was the court persuaded by his assertion the continuing violation doctrine applied here as he failed to show the acts were sufficiently similar so as to be considered part and parcel of the hostile work environment. Moreover, his contention that the “Severed Head With Noose” was not an isolated event but part of a broader hostile work environment created and endorsed by OTC was belied by the record, said the court, pointing to OTC’s prompt and proactive response to the noose incident.

Retaliation. As to the employee’s retaliation claims, the court found they likewise fell short. According to the employee, OTC retaliated against him for reporting racial discrimination and a hostile work environment by adjusting his hours, interrogating him, making “baseless allegations against him, including that he was carrying a weapon,” threatening him “with disciplinary action without basis, and attempt[ing] to force [him] to allow OTC access to his personal information and motor vehicle records.”

Here, the court found that even if signing the vehicle form qualified as an adverse employment action, he failed to show OTC singled him out to sign the vehicle form in retaliation for his reports of race discrimination by coworkers. Regarding his claim that OTC falsely accused him of having a gun, the undisputed evidence, said the court, indicated that when his coworkers raised serious concerns about his alleged comments, OTC briefly investigated and quickly believed his denial.

NIED. Turning to his negligent infliction of emotional distress claim, the court found he failed to show any negligent act by the company that proximately caused him to suffer emotional distress “so severe that no reasonable person could have been expected to endure it.” Though he pointed to his coworker’s placement of the noose on his machine, these actions, reasoned the court, were not fairly attributable to OTC in these circumstances. Further, the company’s actions, including firing the coworker, assisting in his criminal prosecution, and giving the employee support and leave from work did not give rise to an actionable emotional-distress claim.

As for the clown mask, even if OTC made the wrong call by accepting the perpetrator’s nondiscriminatory explanation, failed to take sufficient remedial measures, or otherwise breached a duty it owed to the employee, he failed to create a triable issue as to whether OTC’s own actions proximately caused emotional distress so severe that no reasonable person could bear it. Thus, this claim also failed on summary judgment.

The case is No. 8:24CV268.

Judge: Rossiter, R., Jr.

Attorneys: Jason M. Bruno (Sherrets Bruno & Vogt) for Keith Kirksey. Michaelle L. Baumert (Jackson Lewis) for Oriental Trading Co. Inc.

Companies: Oriental Trading Company, Inc.

Cases: RaceDiscrimination Discrimination Retaliation StateLawClaims NebraskaNews