US District Judge Miranda Du said during a hearing in Reno last week that Appling's lawyers have failed so far to prove the sort of racial hostility needed to win such a civil rights claim.
She dismissed the original lawsuit that was filed in February but gave them until January 13 to refile an amended complaint seeking unspecified damages from Pickens' nonprofit, Save America's Mustangs. "It takes a lot to prove these allegations," Du told California attorney Willie Williams on Thursday.
Du agreed with Pickens' lawyer, Dora Lane of Reno, that the only comment that specifically referred to race was the reference to "black people food." Lane said categorising foods by ethnicity is commonplace in the restaurant industry. Some restaurants serve Mexican food, others Chinese or Thai food, she said.
The suggestion that such categorisations are inherently offensive is nonsense," Lane argued in earlier court documents. "This is especially true here, given that Pickens' alleged comments actually reflect a preference for 'black people food' rather than a racial animas against 'black people' or 'black people food."'
Williams said Pickens' comments about the fired employees "not fitting in" reinforces a long history of African-Americans not being allowed into elite, private-club settings. Pickens owns the exclusive Del Mar Country Club north of San Diego where Appling worked before she hired him for a five-month stint in Nevada.
"In many cases, the people fighting to keep African-Americans out of these private clubs would use code phrases like 'they do not fit the image,"' Williams said in court documents. He added the use of the words "ox" and "bull" implies ownership of property, given "America's long history of slavery where they were considered personal property of their owners."
Lane argued it was a complimentary reference to physical strength and "was not accompanied by any overtly racial slurs." "Indeed, Appling does not allege that he ever heard any overtly racial epithets, such as the 'N-word,"' she wrote in court documents.
But Williams told the judge last week the comments must be viewed in the context of racial stereotypes.
Du agreed that Lane's arguments focus on the "plain meaning of words" while seemingly ignoring the context of comments made about "African-Americans in history and stereotypes that could give rise to racial animas." "If the alleged comments were not directed at him, but others who look like him, it may affect his work environment," the judge said.
In an unrelated matter Pickens has offered a $10,000 reward for information leading to an the arrest and conviction of the people or persons who slaughtered a number of the wild horses on her ranch.
In a media release on her website she said powers in Congress and the Bureau of Land Management, the federal agency that manages the wild horses, have never supported her ranch and her project.
