Opinion
No. 03-2881 Ml/P.
February 16, 2005.
Sheila L. Robinson-Beasley, Robinson-Beasley Law Firm, Memphis, TN, for Plaintiff.
Jason Fisher, Waller Lansden Dortch Davis, Waverly D. Crenshaw, Waller Lansden Dortch Davis, Charley H. Williamson, Waller Lansden Dortch Davis, Nashville, TN, for Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ORDER DENYING DEFENDANT'S MOTION TO STRIKE AS MOOT
Before the Court is Defendant's Motion for Summary Judgment, filed November 12, 2004. Plaintiff filed an Opposition to Defendant's Motion for Summary Judgment on December 13, 2004.
Also before the Court is Defendant's Motion to Strike Portions of, and Materials Submitted With, Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment, filed December 27, 2004. Plaintiff responded in opposition on January 11, 2004.
For the following reasons, Defendant's motion for summary judgment is GRANTED. Defendant's motion to strike is DENIED as moot.
I. BACKGROUND
The instant case arises out of Plaintiff's termination by his employer, Defendant United Postal Service ("UPS"), for falsification of documents. Plaintiff was employed by Defendant as a feeder driver for approximately twenty-one years until he was terminated on June 24, 2002. The terms and conditions of Plaintiff's employment were governed by the Collective Bargaining Agreement ("CBA") between Plaintiff's union, the International Brotherhood of Teamsters Local 667, and Defendant. Plaintiff is required by the CBA and federal law to pass a Department of Transportation ("DOT") physical every two years and possess a valid DOT card that indicates the date of his last DOT physical.
"Feeder driver" appears to be UPS's term for drivers of its tractor-trailers.
Plaintiff was reinstated to his position by an arbitrator's ruling approximately one year after his termination.
On May 19, 1999, Plaintiff visited Dr. Lloyd Robinson at OccuMed, an approved DOT physician, for a DOT physical. According to Plaintiff, Dr. Robinson issued him a DOT card but left the expiration date blank. At the time of the May 19, 1999, physical, Plaintiff was aware that a DOT card can be valid for no more than two years. Approximately a week after the physical, Plaintiff filled in the expiration date himself. Plaintiff admits that he filled in an incorrect date that was more than two years after his physical. (Appendix to Defendant's Mot. for Summ. J., Ex. 1 (Barnes Dep.) at 396.)
The May 19, 1999, DOT physical was approximately Plaintiff's eighth DOT physical. Plaintiff contends that DOT doctors routinely leave the dates on DOT cards blank, that employees routinely fill in those dates, and that UPS management and/or supervisors had in the past altered or written on employees' DOT cards without their knowledge or permission.
Plaintiff, however, did not recall what date he entered on the card until the card was presented to him and contends that he was not aware that he incorrectly recorded the date on the card at the time he recorded the date.
On June 11, 2002, Feeder Manager Rodel Diggins instructed Feeder Supervisor Mary Patrice Forbes to conduct a supervisory ride with Plaintiff. On that ride, Ms. Forbes recorded the "DOT physical due date" from Plaintiff's DOT card, which was August 15, 2002.
On May 10, 2001, Rod Enochs, one of Plaintiff's supervisors, recorded the expiration date on Plaintiff's DOT card as June 15, 2002. When Ms. Forbes and Mr. Diggins viewed Plaintiff's card in June of 2002, however, the date read August 15, 2002. It is undisputed that the card appeared to be altered. Plaintiff's contends that the card had been out of his possession several times and that he did not know how it became altered.
On June 12, 2002, Mr. Diggins mentioned to Ms. Forbes that Plaintiff needed to take a physical and get a new DOT card because UPS records indicated that Plaintiff's card was to expire on June 15, 2002. Ms. Forbes replied that Plaintiff did not need a new card for another two months.
When Plaintiff reported to work on June 12, 2002, Mr. Diggins asked Plaintiff for his DOT card. Mr. Diggins noted that the expiration date was August 15, 2002. After an investigation, UPS learned that Plaintiff's most recent DOT physical had been on May 19, 1999. UPS obtained a statement from Dr. Robinson, the physician who administered Plaintiff's physical, attesting to the fact that he did not fill in an expiration date on Plaintiff's DOT card. UPS managers met with Plaintiff and his union representative at least twice and asked Plaintiff to explain why his DOT card had the August 15, 2002, expiration date.
Under Article 52 of the CBA, dishonesty is an offense warranting immediate termination. Mr. Dickson decided to terminate Plaintiff after, upon consultation with Mr. Diggins, Feeder Division Manager Tom Ragland and District Security Manager Fred Wojewodka, he concluded that Plaintiff had falsified his DOT card twice by initially filling in the wrong date and later altering the date on the card.
Other employees who had either reported to work with expired DOT cards or driven with expired DOT cards received warning letters rather than termination. However, after investigation, Labor Relations Manager Walt Dickson and Mr. Diggins could not identify anyone else who had falsified a DOT card either by filling in an invalid expiration date or altering the card in some way. Mr. Dickson has discharged at least 18 other employees for falsification of documents since the beginning of 2002.
According to Defendant, the conclusion that Plaintiff falsified his DOT card twice was based upon (1) the implausibility of Plaintiff's explanation for the incorrect date being on the card, given that he had completed several DOT physicals before; (2) the clear evidence that Plaintiff's card had been altered; and (3) Plaintiff's lack of an explanation for how the card was altered and why he did not contact the physician's office or UPS to confirm a correct date.
II. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, and the nonmoving party is unable to make such a showing, summary judgment is appropriate, Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989). In considering a motion for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When confronted with a properly-supported motion for summary judgment, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 250 (6th Cir. 1998). A genuine issue of material fact exists for trial "if the evidence [presented by the nonmoving party] is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In essence, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
III. Analysis
Plaintiff asserts claims of race discrimination, retaliatory harassment and racial harassment under Title VII of the Civil Rights Act of 1964, as amended, 28 U.S.C. 2000e et seq. In particular, Plaintiff claims he was terminated due to his race and singled out for harassment by supervisory personnel due to his race and in retaliation for opposing activities protected under Title VII. Defendant has moved for summary judgment on all of Plaintiff's claims. The Court will address each of Plaintiff's claims in turn.
Defendant also asserts that Plaintiff's claims are barred due to judicial estoppel. However, because the Court grants Defendant's motion for summary judgment regarding all of Plaintiff's claims, the Court does not reach Defendant's judicial estoppel argument.
A. Race Discrimination
Race discrimination claims are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined in Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).
Under this approach, a plaintiff must first establish a prima facie case of discrimination. Burdine, 450 U.S. at 252. Establishing a prima facie case creates a rebuttable presumption that the employer engaged in unlawful discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Once the plaintiff has established a prima facie case, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse employment action.Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. The burden is not onerous. An employer will satisfy its burden as long as it articulates a valid rationale for its decision. Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996).
If the employer meets this burden, the plaintiff may still prevail if he shows that the reasons offered by the defendant are a pretext for discrimination. Burdine, 450 U.S. at 253. To prove pretext, the plaintiff must introduce admissible evidence to show "that the proffered reason was not the true reason for the employment decision" and that racial animus was the true motivation driving the employer's determination. Hicks, 509 U.S. at 508. Throughout the analysis, the ultimate burden of proof remains with the plaintiff. Id. at 511.
In this case, Plaintiff alleges that UPS terminated him because of his race. For the purpose of its motion, UPS has assumed that Plaintiff has adduced sufficient evidence to establish his prima facie case. However, UPS has articulated a non-discriminatory reason for terminating Plaintiff. Specifically, UPS has set forth evidence showing that Plaintiff was terminated for falsifying his DOT card. Accordingly, Plaintiff can only prevail if he shows that UPS's proffered reason is pretext for discrimination.
Plaintiff also contends that another employee, Wayne Tindle, was given vacation benefits to which he was not entitled, whereas Plaintiff was denied vacation benefits to which he was not entitled. However, it is undisputed that Mr. Tindle was required to pay back to the company all vacation benefits to which he was not entitled. Accordingly, no genuine issue of material fact exists for the Jury to consider regarding that claim.
To prove pretext, Plaintiff must show: (1) that the employer's reasons for his termination had no basis in fact; (2) that the employer's proffered reason did not actually motivate the decision; or (3) that the employer's reasons were insufficient to motivate the decision. Manzer v. Diamond Shamrock, 29 F.3d 1078, 1084 (6th Cir. 1994). Plaintiff fails to meet this burden. It is undisputed that the relevant date on Plaintiff's DOT card was incorrect. Accordingly, Defendant's decision to terminate Plaintiff had a basis in fact. Moreover, Plaintiff has not shown that his falsification of the DOT card did not actually motivate or was insufficient to motivate Defendant's decision to terminate him.
Although Plaintiff denies that he falsified his DOT card, the honest belief rule favors UPS. As adopted by the Sixth Circuit, the honest belief rule provides that "as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect." Majewski v. Automatic Data Processing, 274 F.3d 1106, 1117 (6th Cir. 2001) (emphasis added) (citation omitted). "An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made." Id. (citation omitted).
The record shows that UPS based its decision to terminate Plaintiff on the results of its internal investigation, a series of interviews with Plaintiff and other employees, and information from the physician who administered the DOT physical. Therefore, UPS's non-discriminatory reason appears to be predicated on an honest belief that Plaintiff falsified his DOT card. Accordingly, the Court finds that no genuine issues of material fact exist and therefore summary judgment is GRANTED regarding Plaintiff's claim for race discrimination.
Plaintiff also contends that the discipline he received was excessive, since no employee had been terminated in the past for filling in a date on a DOT card or possessing an expired DOT card. However, it is undisputed that no employee at Plaintiff's facility had ever been accused of falsifying his DOT card rather than merely possessing an expired DOT card.
B. Retaliatory Harassment
Title VII prohibits employers from harassing employees because they engaged in an activity or activities protected by Title VII. In order to establish a prima facie case of retaliatory harassment, a plaintiff must prove that:
(1) [he] engaged in activity protected by Title VII;
(2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment.Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (citations omitted) (emphasis in original). "If and when a plaintiff has established a prima facie case of retaliatory harassment, the burden of production of evidence shifts to the employer to `articulate some legitimate, nondiscriminatory reason' for its actions." Id. (citations omitted). "The plaintiff, who bears the burden of persuasion throughout the entire process, then must demonstrate `that the proffered reason was not the true reason for the employment decision.'" Id. (citations omitted).
Plaintiff contends that he was harassed by supervisory personnel because he often spoke up on behalf of other employees' grievances. Specifically, Plaintiff contends that he was told by supervisory personnel to leave the yard after his shift, he was intimidated and overly supervised, the start time of his drive was improperly changed, his delivery runs were cut, he was denied the opportunity to ask questions regarding his check, he received an improper warning letter from his supervisor, his supervisor pointed her finger in his face and yelled at him, he was denied the right to use the bathroom at work, and he was once pushed in the chest by his female supervisor.
Based upon a review of Plaintiff's complaint and amended complaint, as well as his submissions in response to Defendant's motion for summary judgment, Plaintiff does not appear to allege that he was terminated in retaliation for activity protected under Title VII, but only that he was harassed due to such activity.
Having reviewed the record and the parties' submissions, the Court finds that Plaintiff fails to point to sufficient evidence in the record to create a genuine issue of material fact regarding whether he was harassed due to activity protected by Title VII. Even assuming that Plaintiff engaged in activity protected by Title VII and that UPS was aware of that activity, the conduct to which Plaintiff points is not sufficiently severe or pervasive to support a claim for retaliatory harassment.
That supervisory personnel continually monitored the Plaintiff and subjected him to criticism is not adequate to create a genuine issue of material fact regarding whether the purported harassment was sufficiently severe or pervasive to support a claim of retaliatory harassment. See Broska v. Henderson, 70 Fed. Appx. 262, 270 (6th Cir. 2003) (finding purported retaliatory harassment not sufficiently severe or pervasive where employee claimed that supervisors continually monitored him and subjected his work to criticism). Further, Plaintiff does not present sufficient evidence regarding whether there was any causal connection between any protected activity and any alleged harassment. Moreover, even if Plaintiff had adduced sufficient evidence to meet a prima facie case of retaliatory harassment, UPS has asserted legitimate, nondiscriminatory reasons for the activities that Plaintiff claims amounted to harassment. Plaintiff fails to present sufficient evidence to create a genuine issue of material fact regarding whether those reasons were pretext for retaliation. Accordingly, summary judgment is GRANTED regarding Plaintiff's claim of retaliatory harassment.
The Sixth Circuit has found that allegations similar to those that Plaintiff makes are insufficiently severe or pervasive to support a claim for retaliatory harassment under Title VII.See Broska, supra; Akers v. Alvey, 338 F.3d 491, 499 (6th Cir. 2003) (supervisor ignored employee, encouraged coworkers to do the same, criticized her work, and withheld her mail);Diamond v. U.S. Postal Service, 29 Fed. Appx. 207, 213, (6th Cir 2002) (supervisors unjustifiably threatened employee with discipline). Where the Sixth Circuit has found retaliatory harassment to be sufficiently severe or pervasive, the allegations were far more serious than in the instant case. See Morris, 201 F.3d at 793 (finding purported retaliatory harassment sufficiently severe or pervasive where supervisor called employee on the telephone over thirty times to harass her, sat outside her office making faces at her, followed her home from work and made an obscene gesture at her, destroyed a television she watched at work, and threw roofing nails onto her home driveway on several occasions).
C. Racial Harassment
Title VII prohibits harassment that creates a hostile or abusive work environment. Newman v. Federal Exp. Corp., 266 F.3d 401, 405 (6th Cir. 2001) (citations omitted). In order to establish a prima facie case of hostile work environment racial harassment under Title VII, a plaintiff must show:
1) that he is a member of a protected class; 2) that he was subjected to unwelcome racial harassment; 3) that the harassment was based on race; 4) that the harassment had the effect of unreasonably interfering with his work performance by creating an intimidating, hostile, or offensive work environment; and 5) the existence of employer liability.Id. (citations omitted). In determining whether there was a hostile or abusive workplace environment, the Court looks to the totality of 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." Id. (citations omitted). Additionally, the work environment must be both objectively and subjectively offensive.Newman, 266 F.3d at 405 (citations omitted).
Having reviewed the record and the parties' submissions, the Court finds that Plaintiff fails to adduce sufficient evidence to create a genuine issue of material fact regarding whether any alleged harassment was based upon his race. Plaintiff does not point to any overtly racial actions or comments by any UPS supervisors or managers. Although conduct that is not overtly racial may be considered in a hostile environment analysis, Plaintiff must show that, but for his race, he would not have been the object of harassment. Bowman v. Shawnee State University, 220 F.3d 456, 463 (6th Cir. 2000). Plaintiff fails to do so. Plaintiff does not point to any evidence that he held a subjective belief that any actions by UPS employees or supervisors were hostile, offensive or intimidating due to his race. Accordingly, summary judgment is GRANTED regarding Plaintiff's claim of racial harassment.
At his deposition, Plaintiff testified regarding his allegations that he was harassed by his supervisor, Kay Kennedy: ". . . I didn't feel like she was singling me out because I was black. . . ." (Appendix to Def.'s Mot. for Summ. J., Ex. 1, at 228.) Moreover, Plaintiff also admitted at his deposition that numerous other allegedly harassing activities were not due to his race. (Id. at 14-15, 227-28.)
IV. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's case is DISMISSED. Because the Court has granted Defendant's Motion for Summary Judgment as to all of Plaintiff's claims, Defendant's Motion to Strike is DENIED as moot.
D. Judicial Estoppel
Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission on October 8, 2002. On August 6, 2003, Plaintiff filed a Voluntary Petition of Chapter 13 Bankruptcy (U.S. Bankruptcy Court, Western District of Tennessee, Case no. 03-33360). On November 23, 2003, Plaintiff filed his complaint in this case. Plaintiff admits that he did not disclose either that he had filed a charge of discrimination with the EEOC or that he had filed the instant suit in his initial bankruptcy filing. On April 14, 2004, Plaintiff's original bankruptcy case was dismissed. On August 31, 2004, Plaintiff filed a second bankruptcy case. ((U.S. Bankruptcy Court, Western District of Tennessee, Case no. 04-33601). In that case, it is undisputed that Plaintiff properly disclosed his action against the Defendant.
In Plaintiff's petition for bankruptcy, Plaintiff marked "none" in response to a question requiring him to list "other contingent and unliquidated claims of every nature." (Def.'s Mot. for Summ. J., Ex. 7.) On the required Statement of Financial Affairs filed with his petition, Plaintiff marked "none" in response to the requirement to "list all suits and administrative proceedings to which [he] is or was a party within one year immediately preceding the filing of [his] bankruptcy case. (Id., Ex. 8.) Plaintiff signed separate verifications under penalty of perjury that his schedules and statement of financial affairs were true and correct.
Defendant first contends that Plaintiff is judicially estopped from raising his Title VII claims against UPS because he failed to disclose those claims in his original bankruptcy proceeding. "Judicial estoppel is utilized in order to preserve `the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship.'" Browning v. Levy, 283 F.3d 761, 775-76 (6th Cir. 2002) (citing Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990). The Sixth Circuit has noted that "judicial estoppel is inappropriate in cases of conduct amounting to nothing more than mistake or inadvertence." Browning, 283 F.3d at 776. Further, "before the doctrine of judicial estoppel may be invoked, the prior argument must have been accepted by the court." Teledyne, 911 F.2d at 1218. "[J]udicial acceptance means only that the first court has adopted the position urged by the party, either as a preliminary matter or as part of a final disposition." Id.
Defendant cites Jethroe v. Omnova Solutions, Case No. 1:02CV364, May 10, 2004, in the Northern District of Missisippi, for the proposition that inadvertence is not a defense to judicial estoppel. Jethroe, however, arose under the law of the Fifth Circuit and is not controlling here.
Here, Plaintiff contends to have inadvertently omitted his EEOC charge from his initial bankruptcy filing. Additionally, there is no indication that the court adopted Plaintiff's position either preliminarily or as part of any final disposition before the first bankruptcy action was dismissed. Further, it is undisputed that Plaintiff disclosed his current suit in his second bankruptcy filing. Accordingly, the Court finds that Plaintiff is not judicially estopped from asserting his Title VII claims against Defendant.
There was no judicial acceptance in the agreed orders of *1219 any allegations against Stidham and Wheeler for two reasons: because the agreed orders contained no findings against Stidham and Wheeler, and because the district court's entry of the agreed orders did not constitute acceptance of them for purposes of judicial estoppel. Teledyne, 911 F.2d at 1218-19.
The language in Reynolds, however, which noted that other courts have held that an "omission" by a debtor can support a finding of judicial estoppel, is dicta because (1) the IRS in Reynolds had affirmatively urged its conflicting positions upon the courts in both the first and second proceeding, and (2) the IRS was a creditor, not a debtor, in the bankruptcy *776 proceeding. We are not bound by the quoted language in Reynolds because it was not essential to the holding of that case. Brentwood Academy v. Tennessee Secondary Athletic Ass'n, 180 F.3d 758, 765 (6th Cir. 1999) (declining to follow nondispositive statements in a prior Sixth Circuit case because the statements were " dicta and do not have the force of law"), rev'd on other grounds, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001).
[31] This court has stressed that the doctrine of judicial estoppel is utilized in order to preserve "the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship." Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990). In Reynolds, the evil to be avoided is colorfully described as "the perversion of the judicial machinery," "playing fast and loose with the courts," "blowing hot and cold as the occasion demands," and "hav[ing] [one's] cake and eat[ing] it too." 861 F.2d at 472 (alteration in original). Although this court has not addressed whether bad faith or an attempt to mislead the court is a necessary prerequisite to the application of judicial estoppel, other courts have held that judicial estoppel is inappropriate in cases of conduct amounting to nothing more than mistake or inadvertence. See, e.g., United States v. Hussein, 178 F.3d 125, 130 (2d Cir. 1999); King v. Herbert J. Thomas Mem'l Hosp., 159 F.3d 192, 196-97 (4th Cir. 1998); Helfand v. Gerson, 105 F.3d 530, 536 (9th Cir. 1997). We consider this approach to be more consistent with the policy reasons behind the doctrine of judicial estoppel than the Third Circuit's approach in Oneida.
Browning v. Levy 283 F.3d 761, *775-776 (C.A.6 (Ohio),2002)
Judicial estoppel is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement.[FN4] For example, before the doctrine of judicial estoppel may be invoked, the prior argument must have been accepted by the court. Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 599 (6th Cir. 1982); City of Kingsport v. Steel and Roof Structure, Inc., 500 F.2d 617 (6th Cir. 1974). Although this limit allows parties to contradict themselves in court, it threatens only the integrity of the parties, not of the court. See, e.g., Fidelity Deposit Co. v. Hudson United Bank, 653 F.2d 766, 778-79 (3d Cir. 1981) (an answer to an interrogatory in a different suit did not estop the defendant from taking a different position, although the difference could be admitted in evidence at trial). But cf. Hamilton v. Zimmerman, 37 Tenn. (5 Sneed) 39, 48 (1857) (under Tennessee law, courts refuse to allow inconsistent testimony, regardless of judicial acceptance, in order to protect the "sanctity of the oath.") In the federal courts, we rely on impeachment during cross-examination to deter parties from contradicting their prior statements to the court. Fed.R.Evid. 801(d)(1)(A); see also Fed.R.Evid. 613 (even prior inconsistent statements that are not under oath may be used for impeachment). Requiring prior judicial acceptance protects the truth-seeking function of the court, while preserving the court's integrity.
FN4. Some courts have held that a party may avoid application of judicial estoppel if the prior position was the result of a mistake, inadvertence, or fraud. See Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980); Johnson Serv. Co. v. TransAmerica Ins. Co., 485 F.2d 164, 175 (5th Cir. 1973). The reasoning is that if the prior position was false, the danger to the integrity of the courts is reversed, because a strict rule would force the court to continue to adopt a false position. The danger of creating these exceptions to the applicability of judicial estoppel is that they threaten to collapse the entire doctrine; a party inherently argues that a prior position was false if the new position contradicts it. However, we need not reach this question today.
In this case, the Board cannot be judicially estopped unless the district court's acceptance of the agreed orders enjoining Wheeler and Stidham constituted judicial acceptance of the Board's prior allegations, even if the Board's actions against Teledyne contradict its earlier petitions for an injunction to the district court. The district court's acceptance of the agreed orders was not judicial acceptance of the Board's prior allegations against Stidham and Wheeler. We do not imply that judicial acceptance only occurs where a party ultimately prevails on the merits. "Rather, judicial acceptance means only that the first court has adopted the position urged by the party, either as a preliminary matter or as part of a final disposition." Edwards, 690 F.2d at 599 n. 5. There was no judicial acceptance in the agreed orders of *1219 any allegations against Stidham and Wheeler for two reasons: because the agreed orders contained no findings against Stidham and Wheeler, and because the district court's entry of the agreed orders did not constitute acceptance of them for purposes of judicial estoppel.
Teledyne relies on our decision in Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469 (6th Cir. 1988), to assert judicial estoppel, but the differences between this case and Reynolds actually illustrate why judicial estoppel does not apply to the Board. Unlike Reynolds, the agreed orders in this case contain no admissions or findings of law or fact. In Reynolds, the issue was whether the petitioner or the petitioner's former spouse was liable for the tax on a certain capital gain. Id. at 470. The Commissioner of Internal Revenue admitted in a bankruptcy court-approved stipulation in the first case against the wife, that the wife was liable for the tax, implicitly exonerating the husband. Id. at 471-72. In this case, the Board and the Union negotiated settlement stipulations in which Wheeler and Stidham did not admit that they had engaged in any misconduct under the Act. Judicial estoppel cannot apply without some decision or admission in the district court's agreed orders as to whether Stidham and Wheeler actually engaged in the alleged misconduct. NLRB v. Markle Mfg. Co., 623 F.2d 1122, 1126-27 (5th Cir. 1980).
In addition, the stipulation in Reynolds was approved by a bankruptcy court in a bankruptcy proceeding, where the court had a duty to ensure that the agreement was fair and equitable, unlike an ordinary civil case. Reynolds, 861 F.2d at 473; see also id. at 475 (Kennedy, J., dissenting) (arguing that even a settlement approved in bankruptcy court would not constitute judicial acceptance). Here, the district court had no similar duty in accepting a settlement in lieu of considering the Board's original petitions under the Act. Settlements, even in the form of an agreed order, ordinarily do not constitute judicial acceptance of whatever terms they contain. In Reynolds, the court stated, "When an ordinary civil case is settled, there is no `judicial acceptance' of anyone's position and thus there can be no judicial estoppel in a later proceeding." 861 F.2d at 473; see also Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980) ("settlement neither requires nor implies any judicial endorsement of either parties ['] claims or theories, and thus, a settlement does not provide the prior success necessary for judicial estoppel"). Teledyne offers no reason why we should make an exception here. These settlements did not constitute judicial acceptance of any factual allegations under the doctrine of judicial estoppel.
Teledyne Industries, Inc. v. N.L.R.B. 911 F.2d 1214, *1218-1219 (C.A.6,1990)
Judicial estoppel applies when a party "took a contrary position under oath in a prior proceeding" and this earlier position "was accepted by the court." Teledyne, 911 F.2d at 1218. The doctrine does not require a finding that an opponent relied on the position taken by the party in the earlier litigation, and it does not require a showing of mutuality. Id. at 1220. It does mandate a finding of "judicial acceptance", however: judicial estoppel governs a dispute only if the first court "adopted the position urged by the party, either as a preliminary matter or as part of a final disposition." Id. at 1218. The issue we must decide, then, is whether the probate court in 1953 endorsed Mrs. Warda's legal position when it approved the settlement she offered during that litigation. We think that it did.
It is true that a settlement, even in the form of an agreed order, usually does not constitute judicial acceptance of the terms the settlement contains. Teledyne, 911 F.2d at 1219; Reynolds, 861 F.2d at 473. But the approval of a settlement satisfies the judicial acceptance requirement when the court is obliged to ensure that the settlement is fair and equitable, Teledyne, 911 F.2d at 1219, and when the court cannot discharge its *539 duties by acting as "a mere rubber stamp", Reynolds, 861 F.2d at 473. Thus, for example, judicial acceptance occurs in the context of a bankruptcy settlement when the court approves a payment from the bankruptcy estate on the basis of a party's assertion of a given position. Reynolds, 861 F.2d at 473. The similarity between the approval of a bankruptcy settlement and the action of the Michigan probate court forty years ago suggests that judicial acceptance occurred in this case in 1953.
Warda v. C.I.R. 15 F.3d 533, *538-539 (C.A.6,1994)
Title VII prohibits racial harassment that creates a hostile or abusive work environment. See Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). In order to establish a prima facie case of hostile work environment based on race under Title VII, a plaintiff must show: 1) that he is a member of a protected class; 2) that he was subjected to unwelcome racial harassment; 3) that the harassment was based on race; 4) that the harassment had the effect of unreasonably interfering with his work performance by creating an intimidating, hostile, or offensive work environment; and 5) the existence of employer liability. See id. In determining whether there was a hostile or abusive workplace environment, we look to the totality of the circumstances. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Specifically, we consider "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." Harris, 510 U.S. at 23, 114 S.Ct. 367. The Supreme Court has 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." Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (internal quotations omitted). Finally, the work environment must be both objectively and subjectively offensive. See Harris, 510 U.S. at 21-22, 114 S.Ct. 367.
Newman v. Federal Exp. Corp., 266 F.3d 401, *405 (6th Cir. 2001)