Opinion
Civil No.: CCB-99-451
June 13, 2001
MEMORANDUM
Plaintiff Steven P. Bell, Sr. filed this action under Title VII, 42 U.S.C. § 2000e to 2000e-17, for racial discrimination. Defendant the State of Maryland ("the State") has filed a motion for summary judgment, which has been fully briefed. That motion will be granted in part and denied in part for the reasons stated below.
I.
Bell is a correctional maintenance officer employed by the Division of Correction of the Maryland Department of Public Safety and Correctional Services. Bell works at the Maryland House of Correction and the Maryland House of Correction Annex (collectively, "the Prison") located in Anne Arundel County, Maryland.
From approximately the fall of 1996 through the spring of 2000, Bell allegedly was harassed while at work by Alan Evans. (Bell Dep. at 25-26.) Evans, who is African American, is also a correctional maintenance officer at the Prison. Bell's ethnicity is Filipino and Native American. (Bell Dep. at 51.) According to Bell, Evans repeatedly directed racial epithets towards Bell. Evans' epithets regularly included "white motherfucker," "white boy," "white as rice," and "dumb fucking cracker." (E.g., Bell Dep. at 23-25.) At times, these comments were made on a daily basis.
In addition to the comments, Bell cites two relatively more serious incidents. In the first, which occurred on July 3, 1997, Bell was responsible for coordinating responses to security emergencies. (Bell Dep. at 31-32.) A breach of security occurred in "H-dorm" when a grill would not lock. Bell's supervisor, Richard Hill, told Bell to have Evans fix the lock. When Bell asked Evans for help with the lock, Evans reportedly said, "Fuck you. I don't take orders from no white fucking cracker." (Bell Dep. at 32.)
The second relatively more serious incident occurred in the spring of 2000. Bell confronted Evans about "slamming" white people in front of inmates. (Bell Dep. at 87-88.) According to Bell, Evans got up from his desk and approached Bell in an aggressive manner. (Bell Dep. at 87-88.) Bell spoke with the State Police, but nothing came of the incident.
Bell made several oral and written complaints to his supervisors about Evans' conduct. Various officials at the Prison met with Bell and Evans. The officials asked Evans to stop harassing Bell. The officials also adjusted Bell and Evans' assignments in an attempt to reduce contact between them. These efforts were unsuccessful, and Evans continued harassing Bell.
Based on Evans' harassment, Bell has filed this complaint alleging disparate treatment and hostile work environment. These claims will be addressed in turn.
II.
Bell's complaint alleges disparate treatment under Title VII. Bell alleges that the Prison would have responded more effectively to his complaints of racial discrimination if he had been African American as opposed to Filipino and Native American. To establish a prima facie case of racial discrimination under Title VII, Bell must show: (1) that he is member of a protected class; (2) that he suffered an adverse employment action; (3) that he was performing at a level that met his employer's legitimate job expectations; and (4) that these actions occurred under circumstances giving rise to an inference of unlawful discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227-28 (4th Cir. 1998).
Adverse employment actions include ultimate employment decisions such as hiring and firing. See Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001). Adverse employment actions also include lesser employment decisions if those decisions adversely affect the terms, conditions, or benefits of a plaintiff's employment. See id. Bell has not alleged that he suffered any employment action that adversely affected the terms, conditions, or benefits of his employment. Therefore, Bell cannot state a claim under Title VII for disparate treatment.
III.
To establish a prima facie claim for a racially hostile work environment, Bell must show: (1) that he was subjected to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) that there is some basis for imposing liability on the State. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001); Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998). Bell repeatedly complained about Evans' conduct, clearly indicating that the harassment was unwelcome.
A.
In Childress v. City of Richmond, several white police officers brought suit complaining that their white supervisor had made disparaging remarks to and about black and female members of the police force. 134 F.3d 1205, 1207 (4th Cir. 1998). The officers' complaint was dismissed for lack of standing because the white officers could not complain of discrimination "directed at others." Id.
The State argues that Evans' comments were not based on Bell's race. In harassing Bell, Evans used racial epithets that are disparaging to whites. His regular comments included, "cracker," "white as rice," and "white motherfucker." (E.g., Bell Dep. at 23-25.) Although the comments were clearly racial in nature, the State argues that the harassment was not based on Bell's race because Bell is Filipino and Native American. However, the State misses the point of Childress. Whether Evans was technically accurate in describing Bell's race is irrelevant. The relevant inquiry is whether Evans' racial comments were "directed at" Bell. Childress, 134 F.3d at 1207. Evans' comments were made directly to Bell on a regular basis. Therefore, Bell has standing, and he has shown that the comments were based on his race.
B.
To determine whether harassment is sufficiently severe and pervasive to constitute a hostile work environment, courts must examine the totality of the circumstances. See Spriggs, 242 F.3d at 184. The harassment must be extreme enough that it amounts to a change in the terms and conditions of employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 786-87 (1998). Ordinary tribulations of the workplace, such as sporadic use of abusive language and occasional teasing, are not actionable. See id. at 788.
In considering the totality of the circumstances, courts may 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. See Spriggs, 242 F.3d at 184. The work environment must be objectively and subjectively hostile. See id.
In Spriggs, a supervisor referred to an African American employee as a "nigger" and a "monkey" on a regular basis. 242 F.3d at 182. The same supervisor made other racist comments about other African Americans in front of the employee. Id. At one point, the supervisor put a picture of a monkey in a manual that the employee was using with the notation, "so you'll never forget who you are." Id. The Fourth Circuit held that being subjected to these racist comments on a daily basis was sufficient to create a hostile work environment. Id. at 184-86.
On a daily basis from approximately the fall of 1996 through the spring of 2000, Evans referred to Bell as a "dumb fucking cracker," "white motherfucker," "white boy," or "white as rice." (E.g., Bell Dep. at 23-26.) Evans also stated on occasion that Bell only obtained his job because he is "from Carroll County and he hunts and he fishes and he's white." (Bell Dep. at 28.)
"Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as `nigger' by a supervisor in the presence of his subordinates." Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (quoted in Spriggs, 242 F.3d at 185). While they may be different in character and impact from the terms "nigger" and "monkey," in that they do not invoke centuries of institutionalized racism, the terms "white motherfucker" and "cracker" are nevertheless offensive racial epithets.
I need not decide whether the use of these words alone in a more typical employment setting is enough to create a hostile work environment. Evans and Bell did not work in a typical employment setting; rather they worked as correctional maintenance officers in a state prison. In that setting, physical safety and the ability to trust co-workers are of great concern. As Bell put it:
I don't expect [harassment] from a co-worker because when the time comes down the line, it's [Evans] and I on that tier and the inmates are coming. I want to know I can put my back to his and we're getting the hell out of there together. But with the stuff here, I'd put my back to a wall first. I'm not a fool, you know. (Bell Dep. at 47.)
As Bell's deposition makes clear, Evans' race-based harassment threatened Bell's physical safety and significantly interfered with Bell's employment. See Spriggs, 242 F.3d at 184 (threats to physical safety are a factor to consider in determining whether a hostile work environment exists). Certainly, a jury could find that Bell was reasonable in perceiving that Evans' race-based harassment destroyed the necessary trust between Bell and Evans and that, without that trust, Bell was in greater physical danger. Regular racial epithets such as "white motherfucker" and "cracker" in a prison employment setting, where trusting a co-worker is necessary for physical safety, are sufficiently severe to constitute a hostile work environment under Spriggs.
C.
Employers are not automatically vicariously liable for acts of harassment committed by supervisors. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998); Spriggs, 242 F.3d at 186. Where an employee suffers a tangible employment action, such as hiring, firing, or reassignment with significantly different responsibilities, at the hands of a supervisor, the employer may be held liable on an agency theory. Ellerth, 524 U.S. at 761-63; Spriggs, 242 F.3d at 186 n. 8. Bell has not alleged that he suffered a tangible employment action in connection with his harassment.
The record is unclear, but Evans appears to have been Bell's supervisor during at least some of the relevant time period. Even if Evans was not Bell's supervisor, the State can still be liable because it knew of the harassment and did not adequately respond. See Hall v. Gus Constr. Co., 842 F.2d 1010, 1015-16 (8th Cir. 1988) (employer liable for coworker harassment if employer knew or should have known about the harassment and did not adequately prevent it), cited in Faragher, 524 U.S. at 789.
Because Bell has not alleged a tangible employment action, an affirmative defense is available to the State. An employer is not liable if it can show that: (1) it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807; Spriggs, 242 F.3d at 186.
For example, in Spriggs, the employer promulgated an employee handbook that outlined the employer's policies against discrimination and the procedures for correcting discrimination. 242 F.3d at 187. The harassed employee reported the discrimination to a manager who met with him and the harassing employee. Id. at 187-88. The manager told the harassing employee to stop using racial language, and he told the harassed employee not to report the matter to anyone higher in management. Id. The manager stated that he preferred to resolve the issue within the shop. Id. The harassed employee ignored the order not to discuss the matter with anyone higher in management. Id. However, his further complaints were largely ignored, and the harassing continued. Id. The court held that ineffective oral requests to stop daily harassment did not satisfy the employer's burden to "correct promptly" any harassing behavior.
In Brown v. Perry, as in Spriggs, the employer promulgated an employee handbook that outlined the employer's policies against discrimination and the procedures for correcting discrimination. 184 F.3d 388, 396 (4th Cir. 1999). However, in contrast to Spriggs, the employer in Brown took reasonable steps to implement its policies and correct promptly the workplace discrimination. Once the employee in Brown complained to a supervisor, the supervisor stated that he fully supported her and suggested that she contact an EEO counselor. Id. at 396. The employer also took several successful corrective steps. First, the employer ordered the harassing employee to refrain from contacting the harassed employee. Id. at 396-97. The employer investigated the harassing employee, suspended him, and issued a formal apology to the harassed employee. Id.
Although it has not been mentioned by the parties, presumably the State has a policy against work-related discrimination. However, the State has not discussed whether that policy is readily available to correctional officers or even whether the policy has been adapted to the prison context. In any event, an employer can satisfy the first prong of the defense without a policy so long as it took reasonable care to prevent and correct discrimination. See id. at 396.
Neither party presented a thorough description of Bell's efforts to have his employer stop Evans' harassment. Bell's deposition provides some context, although it is difficult to follow at times. Bell appears to have complained about Evans' harassment on numerous occasions, both orally and in writing. (Bell Dep. at 35-36; 53-54; 83-84 (the written reports were not provided by either party).) Hill and Myers, both prison supervisors, initially tried to resolve the problem "in-house," and they did not involve the assistant wardens or the warden. (Bell Dep. at 36-38.) Their response to Bell's numerous complaints was to tell Evans to stop his harassment and to reduce the amount of contact between Bell and Evans. (Bell Dep. at 28, 36.) These responses were ineffective.
Bell's deposition is unclear as to how many times he complained to his supervisors about Evans' conduct. For instance, when asked whether he reported Evans' more routine racial comments, Bell replied, "I reported them, but not as matter of records . . . because they weren't serious incidents so to speak. It was being done so often . . . that I would have run out of pen, ink, and paper." (Bell Dep. at 35-37.) Even accounting for Bell's hyperbole, it seems clear that he made repeated complaints to his supervisors.
Although Bell and Evans were given assignments that reduced their amount of contact, they continued to work in the same area and continued to have contact. (Bell Dep. at 28-29, 36.)
In addition to oral reprimands, several meetings were held to discuss Evans' harassment. (Bell Dep. at 27-30, 49-53.) After the initial attempt to resolve the matter "in-house," these meetings involved several prison administrators, including the assistant warden and an EEOC in-house coordinator. (Bell Dep. at 36-37, 50, 53.) Bell described these meetings as "a joke." (Bell Dep. at 49.) At the least, they were ineffective in stopping Evans' harassment of Bell. (E.g., Bell Dep. at 81 "[T]hey'd say something to him, smack him on the wrist . . . and the next day he was right back at his game again. . . .") After one of the meetings, the EEOC in-house investigator conducted an investigation into Bell's complaints. (Bell Dep. at 57-58.) A prison administrator, Thornton, said that if the investigation showed discrimination by either Bell or Evans, then whoever was discriminating would be fired. (Bell Dep. at 57-58.) Bell states in his deposition (and the State does not controvert this) that the investigation showed that Evans was harassing Bell, but Evans was not fired. (Bell Dep. at 58.)
In April or May of 2000, Assistant Warden Smith suggested that Bell participate in a program called the Employees Assistance Program ("EAP") to help him deal with Evans' harassment. (Bell Dep. at 93.) However, Lieutenant Green told Bell that he would be blacklisted if he went to the EAP and would not make Lieutenant. (Bell Dep. at 93-94.) Bell decided not to go to the EAP. Instead, his supervisors suggested that he be transferred from the day shift to the evening shift in order to avoid contact with Evans, who was on the day shift. (Bell Dep. 92-95.) As Bell described it, "That's how [the transfer] came about. It was either take EAP and ruin my career or take a different shift. So I did the lesser of two evils." (Bell Dep. at 94; 97-98.) The evening shift proved unworkable for Bell. Due to conflicts with his wife's work schedule, his marriage began to suffer. (Bell Dep. at 94-95.) Eventually he was allowed to transfer back to the day shift.
The response of the prison administrators to Bell's complaints was comparable to, if not worse than, the response by the employer in Spriggs. As in Spriggs, Evans was asked to stop his harassment. But, there was no repercussion when he continued harassing. As in Spriggs, Bell was initially dissuaded from complaining to higher management.
Bell and the employee in Brown both were put into contact with an EEOC representative. However, the investigation into Bell's complaints was ignored. Also, similar to Brown, Bell was reassigned and eventually transferred to avoid contact with Evans. But unlike Brown, the reassignments did not successfully reduce contact or stop the harassment. Moreover, Bell (as opposed to Evans) was forced into a transfer that proved unworkable. Even worse, Bell was effectively denied access to the EAP because he was given the impression that it was "political suicide." (Bell Dep. at 98.)
The employer in Brown took immediate, positive steps to stop the harassment. These steps went beyond merely telling the harassing employee to stop, and they were effective. In Spriggs and this case, the employer's oral requests to stop the harassment were not sufficiently backed by the employer. As a result, the harassing employee was able to continue to harass without fear of repercussion. In Spriggs and this case, the harassing employee did continue to harass for an extended period of time. The oral requests by the employers in this case and in Spriggs did not reasonably prevent or promptly correct the harassment that was repeatedly brought to their attention. As a result, the employer in this case, like the employer in Spriggs, is unable to satisfy the first prong of the affirmative defense to vicarious liability.
Bell stated in his deposition that Evans has stopped harassing him. (Bell Dep. at 92-93.) Whatever Evans' conduct may have become now that Bell has filed suit, nearly four years of being subjected to a racially hostile work environment is unacceptable.
IV.
The State also argues that some of Bell's claims were not presented in his administrative charge and therefore may not be presented in this lawsuit. In general, the allegations contained in an administrative charge will limit the scope of any subsequent judicial complaint. See Evans v. Tech. Applications Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996). An administrative charge does not "strictly" limit a subsequent Title VII action, however; rather the scope of a subsequent action "is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Lane v. Wal-Mart Stores East, Inc., 69 F. Supp.2d 749, 755 (D.Md. 1999) (quoting Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)).In Evans, the employee's administrative charge alleged that her employer failed to promote her because of her sex. 80 F.3d at 963. In her subsequent judicial complaint, the employee alleged that her employer failed to promote her because of her age. Id. The court held that the age discrimination claim was not within the scope of the administrative charge.
Bell's September 5, 1997 administrative complaint alleges a single incident of racial discrimination by Evans. (Def. Ex. # 5.) Bell states that the dates of discrimination were May 1, 1997 through August 22, 1997. (Id.) Bell's judicial complaint alleges racial discrimination that occurred both before and after these dates. The State argues that these allegations are beyond the scope of Bell's administrative charge.
Bell's administrative charge and his subsequent judicial complaint both allege racial discrimination by Evans. A reasonable administrative investigation into the relationship between Evans and Bell would certainly cover more incidents of racial abuse than the single incident contained in the administrative charge. In addition, the administrative charge was sufficient to put the employer on notice of racial discrimination by Evans against Bell. Therefore, the allegations contained in Bell's judicial complaint are not barred by his failure to include all of them within his administrative charge.
A separate order effecting the rulings made in this memorandum is attached.
ORDER
For the reasons stated in the accompanying Memorandum, it is, this ___ day of June 2001 ORDERED that:
(1) Defendant's Motion For Summary Judgment is Granted with respect to plaintiff's disparate treatment claim and Denied with respect to plaintiff's hostile work environment claim; and
(2) the Clerk shall mail copies of this Order and the accompanying Memorandum to counsel of record.