Summary
finding that the alleged discrimination was not "pervasive and regular" where plaintiff could only point to seven specific comments during eighteen months of employment
Summary of this case from Phillips v. SeptaOpinion
CIVIL ACTION NO. 01-CV-1262
September 25, 2003
MEMORANDUM AND ORDER
Presently before this Court is Defendants Tribune Company and The Morning Call, Inc.'s Motion for Summary Judgment (Doc. 15). For the reasons set forth below, upon consideration of Defendants' Motion, Plaintiff's Response (Doc. 17), and Defendants' Reply Brief (Doc. 21), this Court will grant the Defendants' Motion for Summary Judgment.
BACKGROUND
From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent facts are as follows. Plaintiff David Barbosa, a Hispanic male, was hired by Defendant, The Morning Call on June 10, 1998, in their packing department. Plaintiff later applied for a position in the Defendant's pressroom, and he was given the position on April 4, 1999. He began to perform his duties on the night shift. Plaintiff alleges in his Complaint that once he began working in the pressroom, his Caucasian co-workers immediately began to make ethnically disparaging remarks to him and others in his presence. These remarks included racially offensive "jokes" and statements that were regularly directed at him, or were repeated in his presence.
Since June 2000, Defendant Tribune Company, a corporation incorporated under the laws of the State of Delaware with its principle place of business in Chicago, has owned Defendant The Morning Call, Inc., a daily newspaper in Allentown, Pennsylvania, incorporated under the laws of Pennsylvania. The Morning Call makes management and personnel decisions on its own, does not have common management with Tribune Company, and does not integrate its operations with Tribune Company.
Plaintiff alleges that, shortly after he began working in the pressroom, during his probationary period, a co-worker, John Paul, slammed a locker near him and called him a "fucking spic." In addition, Plaintiff claims that he was the subject of weekly evaluations for his work in the pressroom, and no other workers were subjected to such constant and frequent evaluation. Furthermore, Plaintiff was told on numerous occasions in 1999 and 2000 by his Caucasian co-workers, supervisors and management personnel that he was not to speak Spanish while on the job site.
Upon the end of a press operator's ninety (90)-day probationary period, Morning Call management can put forward a press operator's name for membership in the Graphic Communications International Union Local No. 160M. The union members then vote whether to accept the press operator into the union. A press operator who is not accepted into the union at the expiration of his 90-day probationary period can be terminated immediately.
Upon the expiration of Plaintiff s probationary period, the union considered Plaintiff for membership, along with co-workers Fermin Ortiz and Jose Hernandez. The union voted to accept Ortiz and Hernandez, but rejected Plaintiff. Oscar Lopez, one of Plaintiffs co-workers, voted to reject Plaintiff because he believed that the Plaintiff was not ready.
Even though Plaintiff could have been terminated at this time, he was retained and provided with additional training and evaluated every week.
Plaintiff alleges that after he was rejected by the union, he accused several of his co-workers of unfairness. Plaintiff alleges that co-worker John Paul called him a "mother fucking spic" or "Puerto Rican spic" in response. Plaintiff then said, "if you mess with me, I'll put your head in the machine." Paul was issued a verbal warning for this incident my management of The Morning Call after Plaintiff reported the incident.
Defendants' claim that the weekly evaluations were a result of Plaintiff not being voted into the union and was to monitor his progress with the weekly training.
The Foreman directly reported to the superintendent and supervised the press operators in the pressroom each day. The foreman prohibited employees from speaking Spanish in the pressroom because he was concerned about safety when some workers could not understand what others were saying around heavy machinery. That policy ended in the spring of 2000. However, after receiving complaints from press operators about some of the Hispanic pressman speaking Spanish and fearing that they were taking about them, the Foreman asked Plaintiff and Fermin Ortiz, both of whom were bilingual, not to speak Spanish. He wanted to try and heal the division that was forming between press operators and also see if the Plaintiff would feel as though his co-workers were giving him a hard time, even if he spoke in English.
More generally, Plaintiff states in his complaint that throughout his tenure in the pressroom at The Morning Call he was subjected to the following: (1) he was unfairly blamed by his Caucasian co-workers and supervisors for almost anything that went wrong, and was reprimanded both privately and publically; (2) he was ignored by his Caucasian co-workers unless it was to say something critical or derogatory; (3) his Caucasian co-workers and supervisors refused to give him proper training or direction, and some refused to work alongside him; (4) he was not given the assignments upstairs that presented opportunities for training, learning and advancement; and (5) his Caucasian co-workers and supervisors would regularly refer to him by using racially offensive words, names and appellations. His Caucasian co-workers would consistently yell and curse at him with no provocation or reason. Plaintiff states in his complaint that if any of his Caucasian co-workers were assigned to work with one of the Hispanic pressmen, they would openly throw things, punch doors, slam doors and otherwise act in an angry and hostile manner.
Plaintiff generally worked in the downstairs area. He claims that the assignments upstairs, where the real opportunities for training, learning and advancement were presented, were given to Caucasian pressmen.
On August 28 through 30, 1999, Plaintiff sent anonymous e-mails to Morning Call publisher Gary Shorts, the Times Mirror Company (which then owned The Morning Call), Vice President of Human Resources Jim Simpson, and Morning Call Vice President of Administration, Stephen Budihas, stating that he felt that he was being harassed because he was Hispanic, but he supplied no further details on who harassed him or how he was harassed. Shorts responded to Plaintiff's e-mail and assured him that he was doing the right thing by reporting the misconduct. Plaintiff sent another e-mail to Shorts on September 6, 1999, reporting the following: (1) John Paul acted in a hostile manner toward him; (2) Paul slammed his locker door while giving Plaintiff a menacing glance; (3) his co-workers did not talk to or cooperate with him; and (4) the union did not vote to make him a member.
The union voted to accept Plaintiff after he worked in the pressroom for approximately one year.
Budihas and Vice President of Operations, Rick Molchany, met with Plaintiff on September 9, 1999. They investigated the matter and issued a verbal warning to Paul for his aggressive behavior. Plaintiff sent a third e-mail to Simpson in early 2000, which contained the same allegations as his late August 1999 e-mails. In addition, Plaintiff stated that he always had someone looking over his shoulder, and that his supervisors had not acted upon his complaints. Budihas and Molchany investigated and interviewed co-workers, the assistant foreman, the foreman, and the press superintendent. As a result of the investigation, Budihas and Molchany issued a written warning to John Paul for a pattern of aggressive behavior toward co-workers and verbal warnings to Pat Yorke and Craig Farkas for kicking a ladder and using profanity toward Fermin Ortiz. Budihas and Molchany warned the foreman and assistant foreman not to use profanity, and to discipline any employees who use profanity. Budihas and Molchany asked the union steward to assist them in monitoring behavior in the pressroom and arranged for mandatory anti-harassment training for all employees, which took place in the summer of 2000.
Defendants' claim that Plaintiff never reported to them that Paul had called him a "spic," but they nevertheless issued a warning.
Defendants' claim that Plaintiff provided few details and did not mention any racial or national-origin based epithets.
Budihas and Molchany concluded that:
[I]nterviews with other minorities in the press department indicate that there is hostility but it doesn't seem to be racially motivated . . . but motivated by the fact that new employees do not deserve the same respect as more senior employees . . . The training programs seems to contribute to the problem of yelling and profanity. Mistakes are not tolerated and there is impatience with those who do not know.
On November 4, 2000, Plaintiff claims to have been harassed by co-worker Al Schmall, when Schmall told him not to speak Spanish. On November 11, 2000, Plaintiff's last day at The Morning Call, Plaintiff suffered a physical reaction to the stress of the workplace and all of the pressure that it entailed. He immediately sought medical treatment for his work-related stress, and is receiving ongoing outpatient treatment and therapy for physical and psychological damage.
"Schmall was suspended for a day, and The Morning Call scheduled anti-harassment training by an employment attorney for pressroom employees in November 2000.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.
DISCUSSION
Defendants seek summary judgment on each count of the four-count Complaint. Specifically, Defendants contend that the Plaintiff does not allege any conduct that is sufficiently severe or pervasive that could constitute a hostile work environment claim, or that is sufficiently extreme or outrageous as to constitute intentional infliction of emotional distress. Further, Defendants contend that they cannot be held liable on Plaintiff's claims because whenever Plaintiff brought any allegations of harassment to the attention of management at The Morning Call, they took prompt remedial action. This Court will review each separate Count in turn.A. Hostile Work Environment
Federal courts will review claims brought under 42 U.S.C. § 1981 for harassment and hostile work environment under the same standard as Title VII claims. Goosby v. Johnson Johnson Med. Inc., 228 F.3d 313, 317 n. 3 (3d Cir. 2000); Lewis v. University of Pittsburgh, 725 F.2d 910, 915 (3d Cir. 1983); Momah v. Albert Einstein Med. Ctr., 978 F. Supp. 621, 633 (E.D. Pa. 1977). Under this standard, harassment is actionable, "only if it is so `severe or pervasive' as to `alter the conditions of [the victim's] employment and create an abusive working environment.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (citing Faragher v. Boca Raton, 524 U.S. 775, 786 (1998)) (other internal quotations omitted); see also Weston v. Commonwealth of Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990).
In order to set forth a successful claim for hostile work environment as a result of racial discrimination, an employee must establish that: (1) he or she suffered intentional discrimination because of race; (2) the discrimination was "pervasive and regular;" (3) he or she was adversely affected by the discrimination; (4) the discrimination would adversely affect a reasonable person of the same race; and (5) that respondeat superior liability applies. Dingle v. Centimark Corp., 2002 WL 1200944, at *2 (E.D. Pa. June 3, 2002).
In determining whether an abusive working environment has been created, the Court must look at the totality of the circumstances. Federal courts have consistently held that "`simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" See, Clark, 532 U.S. at 271 (quoting Faragher, 524 U.S. at 788); see also Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 371 (1993) ("while psychological harm, like any other relevant factor, may be taken into account, no single factor is required."); Cardenas v. Massey, 269 F.3d 251, 261 (3d Cir. 2001) ("discrimination analysis must concentrate not on individual incidents, but on the overall scenario.").
See Clark, 532 U.S. at 270-71 (stating that "[w]hether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."); see also Faragher, 524 U.S. at 787-88.
"`For racist comments, slurs and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racist slurs, there must be a steady barrage of opprobrious racial comments.'" Al-Salem v. Bucks County Water Sewer Auth., 1999 WL 167729, at *5 (E.D. Pa. May 25, 1999) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997)). "Racial comments that are sporadic or part of casual conversation do not violate Title VII." Gharzouzi v. Northwestern Human Services of Pennsylvania, 225 F. Supp.2d 514, 534 (E.D. Pa. 2002) (quoting Al-Salem, 1999 WL 167729 at *5); see also Harris, 144 S.Ct. at 370 ("mere utterance of an . . . epithet which engenders offensive feelings in a employee does not sufficiently affect the conditions of employment to implicate Title VII.").
In this case, Plaintiff points to seven (7) specific incidents that he alleges created a hostile work environment: (1) his co-worker, John Paul, slammed a locker door next to him and called him a "fucking spic;" (2) in another incident, after Plaintiff was denied entry in the union, Paul called him a "mother fucking spic" or "Puerto Rican spic;" (3) his co-worker, Ron Culver, said, "I hate that fucking spic;" (4) his co-worker, Al Schmall, told him not to speak Spanish; (5) he was denied entry into the union; (6) he was asked by foreman, Ken Phifer, not to speak Spanish while working; and (7) he was subjected to weekly evaluations for his work in the pressroom.
A rule requiring employees to speak only English in the workplace does not amount to national origin discrimination. See Kania v. Archdiocese of Philadelphia, 12 F. Supp.2d 730, 733 (E.D. Pa. 1998) ("as applied to multi-lingual employees — and English-only rule does not have a disparate impact on the basis of national origin").
Plaintiff made several general allegations in his complaint, in addition to the seven specific instances of alleged discriminatory conduct. These general allegations are included in the Background section of this opinion. However, Plaintiff cannot rely on conclusory statements to defeat summary judgment. See Robinson v. Natl. Med. Care, 897 F. Supp. 184, 187 (E.D. Pa. 1995) (stating that where plaintiff "could not recall specific incidents. . . . conclusory allegations are insufficient to withstand a motion for summary judgment").
Using the five (5) point analysis to evaluate hostile environment claims, it is clear to this Court that the Plaintiff's claim must fail. The Plaintiff is able to establish the first, third and fourth prongs of the analysis, but fails to meet the second and fifth prongs. Since the Plaintiff fails to meet all five points, Plaintiff's claim, as a matter of law, must fail.
Under the second prong of the analysis, the Plaintiff is unable to show that the discrimination was pervasive or regular. The Plaintiff worked as an employee in the pressroom for eighteen (18) months, and was only able to recount seven (7) instances of alleged discriminatory conduct in his complaint and deposition. Even accepting that all seven instances occurred, this is not enough to demonstrate that the workplace was "permeated with discriminatory intimidation, ridicule and insult."Gharzouzi, 225 F. Supp. at 536. In addition, there is nothing to indicate that after the Plaintiff complained to his supervisors, the conduct from the offending co-workers continued. "`[A]n effective grievance procedure — one that is known to the victim and that timely stops the harassment — shields the employer from Title VII liability for hostile environment'. . . Moreover, when an employer's response stops the harassment, there can be no employer liability under Title VII." Weston, 251 F.3d at 427. As previously stated in the Background facts, the management investigated each reported incident after it was brought to their attention and disciplined the offending employees accordingly.
The Plaintiff claims that he was discriminated against when he was subjected to weekly reviews, when his foreman asked him not to speak Spanish while working, and when he was denied entry into the union. The actions by the management of The Morning Call were all done for legitimate business reasons. The weekly reviews were instituted, after the Plaintiff was denied entry into the union, to monitor his progress. The Plaintiff was asked not to speak Spanish while working for safety reasons, and because it made his non-Spanish speaking co-workers uncomfortable. There is no evidence that the Plaintiff's denial of union membership was based on race. Two other Hispanic employees were voted into the union on that day, and Oscar Lopez, a Hispanic union member, voted to reject Plaintiff because he believed that the Plaintiff was "not ready."
Furthermore, when the Plaintiff brought his problems to the management of The Morning Call, the problems were addressed. "[W]hen the source of the alleged harassment is a co-worker, a Plaintiff must demonstrate that the employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate remedial measures." Weston, 251 F.3d at 427. In this case, the employer took appropriate actions as stated previously. Plaintiff offers no evidence that the problems persisted with the specific employees after the complaint was brought to management. Moreover, there is no evidence that management set him up to fail in his job or that Defendants' management decisions were masked with discriminatory intent. This Court finds that these acts by management, and other co-workers, were not discriminatory, and were not done because of the Plaintiff's race.
See Cardenas, 269 F.3d at 261-62 (finding that the Court must examine the possibility that facially neutral treatment maybe a more sophisticated and subtle form of discrimination).
Next, this Court turns to the fifth prong of the analysis, respondeat superior liability. Under agency principles, liability exists where the Defendant knew or should have known of the harassment and failed to take prompt remedial action. Liability would be per se if the alleged hostile work environment was created by an immediate or successively higher supervisor, which, in this case, it was not. When the complaints were brought to the management, Defendants reprimanded Plaintiffs co-workers and instituted two sessions of anti-harassment training. In the Defendants' memorandum supporting their motion for summary judgment, it is stated that after the complaints were made to management, and management responded with remedial action, Plaintiff reported no further incidents with those co-workers after Plaintiff's co-workers were reprimanded. Consequently, there can be no respondeat superior liability, and Plaintiff has failed to establish the fifth prong of the hostile work environment analysis. Therefore, as a matter of law, Plaintiffs claim for hostile work environment must fail.
Andrews. 895 F.2d at 1486.
"[W]here a hostile work environment is created by an immediate or successively higher supervisor, a prima facie case of vicarious liability by the employer exists per se." Gharzouzi, 225 F. Supp. at 537.
B. Conspiracy to Violate Civil Rights
Plaintiff alleges in his complaint that the Defendants conspired to violate and did violate his Constitutional rights. Since it has been established in the previous discussion that the Plaintiff has not presented sufficient evidence to sustain a claim for violation of his civil rights under Title VII for hostile work environment discrimination, this Court finds that a discussion of conspiracy to violate his civil rights is unnecessary.
C. Intentional Infliction of Emotional Distress
Plaintiff asserts a claim for intentional infliction of emotional distress. To state a claim for intentional infliction of emotional distress, Plaintiff must show that Defendants' conduct was: (1) extreme and outrageous; (2) intentional or reckless; and (3) caused severe emotional distress. Dingle, 2002 WL 1200944 at *8. The conduct, to establish liability, must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."Dingle, 2002 WL 1200944 at *8 (quoting Hoy v. Angelone, 554 Pa. 133, 720 A.2d 745, 754 (Pa. 1998)). The Third Circuit has recognized that "it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress."Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (citingBowersox v. P.H. Glatfelter Co., 677 F. Supp. 307, 311 (M.D. Pa. 1988)).
In this case, this Court finds that the racial discrimination and work-related harassment alleged throughout Plaintiff's complaint does not satisfy the element of extreme and outrageous conduct required to sustain this cause of action. Even though the Plaintiffs alleged emotional distress may be supported by competent medial evidence, the Plaintiff has failed to show that Defendants' conduct was outrageous in character, so extreme in degree as to go beyond all possible bounds of decency, and/or atrocious and utterly intolerable in a civilized society. The Plaintiff's broad and non-specific allegations of harassment and discrimination do not meet the standard required by this Court. See EEOC v. Victoria's Secret Stores, Inc., 2003 U.S. Dist. LEXIS 1290 *5-6 (E.D. Pa. Jan. 13, 2003) (finding that hostile work environment and racial discrimination not enough to sustain intentional infliction of emotional distress claim); Watkins v. Pennsylvania Bd. Of Probation Parole, et al., 2002 U.S. Dist. LEXIS 23504 *25 (E.D. Pa. Nov. 25, 2002) (finding that racial discrimination, retaliation, and work-related harassment were insufficient). Furthermore, in light of this Court's finding that the Plaintiff was not subjected to a hostile work environment, Defendant is also entitled to summary judgment as to Plaintiff's intentional infliction of emotional distress claim.
Plaintiff states in his complaint that after he left his job at The Morning Call, he immediately sought medical treatment for his work-related stress and is receiving ongoing outpatient treatment and therapy for the physical and psychological damage that he suffered at The Morning Call workplace.
D. Punitive Damages
Plaintiff alleges in his complaint that he is entitled to punitive damages for the Defendants' discrimination on the basis of his race. In light of this Court's previous findings and discussion, this Court finds that it is unnecessary to discuss punitive damages.
CONCLUSION
Based on the foregoing reasons, this Court will grant Defendants' Motion for Summary Judgment. This Court will grant Defendants' Motion for Summary Judgment on Plaintiff's hostile environment claim (Count 1), conspiracy to violate civil rights claim (Count 2), intentional infliction of emotional distress claim (Count 4), and punitive damages (Count 5).
In Plaintiff's complaint, Plaintiff asserts four counts against the Defendants. However, Plaintiff misnumbered his counts. Count 1 is Hostile Environment Harassment; Count 2 is Conspiracy to Violate Civil Rights; Count 4 is Intentional Infliction of Emotional Distress; and Count 5 is Punitive Damages. There is not a Count 3 in Plaintiff's complaint.