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A Black journalist who called a local school board member a white supremacist, then accused white leadership at the Anderson newspaper of engaging in race and gender discrimination, will have one more chance to amend her civil rights complaint after a federal judge dismissed it Tuesday without prejudice.
Rebecca Bibbs, a former reporter for the Anderson Herald Bulletin, sued the CNHI media group and three Herald Bulletin managers last September for race and gender discrimination, retaliation, and creating a hostile work environment. She later filed an amended complaint, which Senior Judge Sarah Evans Barker of the Indiana Southern District Court dismissed Tuesday for failure to state a claim.
A reporter for the Herald Bulletin from April 2015 to October 2022, Bibbs was initially assigned to cover the schools beat, including Anderson Community Schools. She also reported on events and activities related to the African American community.
Bibbs worked for Scott Underwood, who was editor-in-chief; Beverly Joyce, who was the publisher; and Jim Meyer, who was her immediate supervisor.
In February 2021, Underwood instructed Meyer to speak with Bibbs about her reliance on a man named Lindsay Brown as a frequent source for her columns. Brown is a Black community activist, and Meyers told Bibbs that Brown “had become too frequent a source of information and public comment when other reliable sources are available.”
The issue of using Brown as a source had previously come up during the November 2020 election, when Brown was a candidate for the local county commission. Underwood had told Bibbs that Joyce was concerned Brown was volunteering to be a source frequently to boost his political profile.
About one week after her meeting with Meyer, Bibbs sent an email to Meyer, Underwood and Joyce accusing CNHI of engaging in race-based discrimination against her. She wrote that their comments about Brown were racially motivated and opined that their concern “arose not out of CNHI’s legitimate journalistic concerns but out of a fear of negative feedback from the public.”
Specifically, Bibbs believed the concerns came from complaints made to CNHI by Diane Airhart, a member of the Anderson schools board of trustees. Bibbs had referred to Airhart as a “white supremacist.”
Further, in her complaint, Bibbs argued that she had used Brown as a source five times between December 2020 and February 2021 while another reporter, who is a white male, used Brown as a source once in that same time but was not asked to limit his use of Brown as a source. She also claimed she relied on 35 other members of the African American community as sources during that time.
Meanwhile, Airhart sent an email to Bibbs accusing her of responding unprofessionally in previous communications, including calling Airhart a white supremacist. Underwood told Airhart the newspaper would conduct a review of the communications, but Bibbs said she “felt no need to justify to white employers why [she] thought something was white supremacist [sic] or that [she] confronted someone about it. [She] also let them know that [she] would consider any attempt to discuss it the creation of a hostile work environment.”
A series of meetings and phone calls ensued, with Bibbs alleging that CNHI management were engaging in “tone policing” against her.
Bibbs was ultimately reassigned in March 2021 to no longer cover Anderson schools, a shift that was to continue until the situation between Bibbs and Airhart was resolved. Bibbs’ other duties did not change, and she was never reprimanded.
Bibbs filed a complaint with the Equal Employment Opportunity Commission on May 20, 2021, raising claims of race and gender discrimination and retaliation. She received a Notice of Right to Sue in June 2022 and filed her complaint that September.
Bibbs’ employment with CNHI ended Oct. 28, 2022, with Bibbs saying “it was no longer sustainable for [her] to be there.” According to Barker’s order, “The Amended Complaint does not include any further information as to the circumstances leading up to her departure.”
In dismissing the amended complaint, Barker first found that Bibbs failed to establish an adverse employment action.
According to Barker, the “minor shift in (Bibbs’) assigned job duties was not sufficient to constitute an adverse employment action.”
“Whether this shift that allegedly damaged Ms. Bibbs’s journalistic reputation, CNHI’s criticism of her sourcing and communication style, or its removal of her covering ACS constituted an adverse employment action is unavailing as a matter of law,” Barker wrote. She cited Spring v. Sheboygan Area School District, 865 F.2d 883 (7th Cir. 1989), which held that “public perceptions were not a term or condition of [the plaintiff’s] employment.”
“We find this rationale convincing here as well,” the senior judge wrote. “Ms. Bibbs has failed to sufficiently allege an adverse employment action, such that her discrimination claims under both Title VII and (42 U.S.C. § 1981) necessarily fall short of being claims upon which relief may be granted.”
Likewise, “Because Ms. Bibbs fails to allege a viable adverse employment action, her retaliation claim does not achieve liftoff,” Barker ruled.
Finally, in rejecting Bibbs’ hostile work environment claims, Barker noted Bibbs did not raise that claim in her EEOC complaint. Thus, the hostile work environment claim under Title VII was dismissed for failure to exhaust administrative remedies.
“As for her hostile work environment claim pursuant to § 1981, CNHI contends that (Bibbs) has failed to alleged anything rising to the level of a hostile work environment,” Barker wrote.
Agreeing with that argument, the judge ruled, “Ms. Bibbs has provided nothing beyond bare assertions of a hostile work environment without including any legally actionable harassment. She repeatedly invokes the words ‘hostile work environment’ but fails to specify what form the unwelcome harassment took, how it was based on her race or sex, or the extent to which it was severe or pervasive.
“By generally characterizing her employer’s actions as ‘harassment’ — including such things as the requirement that she attend an HR meeting after she had reported her discrimination, her removal from covering the ACS beat, scheduling a meeting to discuss her communication style after she accused an ACS Board Member of being a ‘white supremacist,’ or challenging her sourcing decisions — does not make it so,” Barker concluded. “None of these actions are objectively abusive, threatening, or otherwise of the sort that would lead a reasonable person to conclude that it unreasonably interfered with her job performance.”
In dismissing the case without prejudice, Barker gave Bibbs 40 days from Tuesday to file an amended complaint.
“… (F)ailure to do so will result in the dismissal of this action with prejudice, which means it will be gone for good,” the senior judge wrote.
The case is Rebecca R. Bibbs v. CNHI, LLC, et al., 1:22-cv-01819.
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