Opinion
Docket No. 1:99-CV-109
Opinion Filed March 15, 2000
ATTORNEYS FOR BRETT SCOT THOMAS, PLAINTIFF BUSH LEWIS ROEBUCK, BEAUMONT TX
ATTORNEYS FOR MELODY G. THOMAS, DEFENDANT WELLS PEYTON GREENBERG HUNT, BEAUMONT TX
MEMORANDUM OPINION
I. BACKGROUND
This racial discrimination case comes before the court on defendant's Motion for Summary Judgment. The plaintiff, Tracy Eaglin, is the foreman of the Heating, Venting and Air-Conditioning department [HVAC] at the defendant school district. Mr. Eaglin is African-American. Mr. Eaglin has worked for the defendant since 1980. Mr. Eaglin alleges that he has been subjected to a hostile environment at work and that he has received disparate treatment because of his race. Mr. Eaglin asks for both compensatory and punitive damages under Title VII.
On January 25, 1999, Mr. Eaglin filed a discrimination charge with the EEOC. He received his right to sue letter on February 22, 1999. Shortly thereafter, he filed the instant suit. During the time period of this suit, the Port Arthur Independent School District had no written policies regarding hostile work environments.
Mr. Eaglin points to a variety of acts committed by employees of the school district to support his charges of discrimination. Primarily, Mr. Eaglin claims that he was not evaluated with written performance evaluations by his immediate supervisor, Gary Phillips, who is white. These evaluations are useful in providing merit based pay increases. The only other employee who was not evaluated by Mr. Phillips was also African-American. Mr. Eaglin claims that another one of his supervisors, Keith Movant, admitted to him that Mr. Phillips discriminated against him because he was black.
During his employment, Mr. Eaglin was not invited to go to lunch with the other foremen. Additionally, Mr. Eaglin claims that he was not informed of computer training which would have been helpful to him. In late November, a racial slur was written on a bathroom wall that was directed to Mr. Eaglin. The writing said "Tracy have no balls, your wife got a nig." It was later determined that Dale Girouard wrote the derogatory statement. Mr. Girouard has no supervisory authority over Mr. Eaglin and he was demoted from his position as foreman after he admitted he wrote the racial slur.
The defendant moves for summary judgment on the hostile environment claim, the disparate treatment claim, and the request for punitive damages. Because there are no issues of material fact with respect to Eaglin's claims of hostile environment or disparate treatment those claims are dismissed.
II. DISCUSSION
A. Standard of Review
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Libery Lobby. Inc., 477 U.S. 242, 248 (1986). When ruling on motions for summary judgment, courts are required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine issue of fact. Matsushita, 475 U.S. at 586. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support plaintiffs' opposition to defendant's motion. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1993); Skotak v. Tenneco Resins Inc, 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992).
B. Hostile Work Environment
In order to establish a claim of hostile work environment discrimination, Mr. Eaglin must prove the following elements: (1) racially discriminatory intimidation, ridicule and insults, which are (2) sufficiently severe or pervasive that they (3) alter the conditions of employment, (4) create an abusive working environment, and (5) there is some ground to hold defendant liable. See DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993));Ferdinand v. Broden Chem Plastics, No. Civ. A. 97-2496, 1998 WL 564258 at * 6 (E.D. La. Sept. 1, 1998).
Courts determine whether an environment is sufficiently hostile or abusive by considering all the circumstances, including the frequency of the conduct or utterances, whether they are physically threatening or humiliating or merely offensive, and whether it unreasonably interferes with an employee's work performance. Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Furthermore, the Fifth Circuit recognizes that the Supreme Court has "contrasted physically threatening or humiliating conduct, which will support a claim for hostile work environment, from a `mere offensive utterance,' which will not." Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996) (citing Harris, 510 U.S. 17, 22 (1993)).
The analysis of this claim is made difficult in the present case because Mr. Eaglin has not been able to clearly articulate what instances he is relying on to support his theory that a hostile environment exists in the Port Arthur School District. When asked repeatedly during his deposition what made up the hostile environment, Mr. Eaglin responded that three things did. First, being excluded from lunch by his co-workers. Second, a co-worker spread rumors about Mr. Eaglin that Mr. Eaglin was untrustworthy. Finally, Mr. Eaglin relies on the racial epithet that was scrawled on the bathroom wall. In his response to the motion for summary judgment, plaintiff adds that the failure to receive written performance evaluations, the failure to provide computer training, and the failure by Mr. Morvant to take action against Mr. Phillips for his discriminatory actions all constitute the hostile work environment.
In this case, Mr. Eaglin cannot establish that the defendant, Port Arthur School District, is liable for any of the above actions under a hostile environment claim. Not being included in co-workers lunch plans does not rise to the level of discriminatory intimidation sufficiently severe to alter the conditions of a work environment.See Oncale v. Sundowner Offshore Servs., 118 S.Ct. 998, 1002 (1998) (Title VII should not "expand into a general civility code. . . ."). Spreading rumors about an individual without any allegation of racial motivation likewise does not constitute a hostile environment.
An employer may be liable for a hostile environment only if it knew, or should have known, of the harassing conduct and did not take appropriate remedial action. Williamson v. City of Houston, 148 F.3d 462, 464 (5th Cir. 1998); Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 397 (5th Cir. 1996). It is undisputed that shortly after the racial slur was discovered the defendants took measures to locate the culprit. The Superintendent of Schools, Dr. Glenn Smith, personally inspected the graffiti the day after it was discovered. He then sent letters to employees asking that the responsible party to come forward. Later, Mr. Girouard turned himself in. Mr. Girouard was School District and Mr. Girouard issued an apology to Mr. Eaglin for the racial slur. The School demoted from his position as paint foreman to painter. Mr. Girouard's pay was decreased by the District quickly investigated the incident and took measures to rectify it. As a matter of law, that was prompt and appropriate remedial action. See Skidmore v. Precision Printing Packaging Inc., 188 F.3d 606, 616 (5th Cir. 1999) (holding that there was a "prompt remedial action" as a matter of law when the offending behavior ceased after the employer's actions).
Mr. Girouard claimed that he made the statement because he suffered from a nervous breakdown.
Mr. Eaglin is dissatisfied with this remedial action. He claims that Mr. Girouard should have been fired because he did not come forward within the time frame provided in Dr. Smith's letter. However, the fact that Mr. Girouard was not fired does not create a hostile environment. Since the remedial actions taken by the School District, there has not been another incident of racial graffiti. Therefore, the remedial actions taken by the School District were successful in putting an end to the use of racial epithets by employees. Id.
Mr. Eaglin also claims that there has also been an insignificant change in Mr. Girouard's salary.
Furthermore, even if this is not prompt remedial action Mr. Eaglin's claims still cannot survive a motion for summary judgment. All of Mr. Eaglin's evidence, with the exception of the racial slur, are not indicative of a racially hostile environment under Title VII. A single racial slur by a co-worker and not a supervisor is not enough to create a hostile environment. Schwapp. v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be "more than a few isolated incidents of racial enmity.") (quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986 see also Richardson v. New York State Dep't. of Correctional Serv., 180 F.3d 426, 437 (2d Cir. 1999) ("Although `isolated minor episodes of harassment do not merit relief under Title VII, even a single episode of harassment, if severe enough, can establish a hostile work environment.'"). This is especially true when the slur is not ratified by one of plaintiffs' supervisors.
Mr. Eaglin's claim that the failure to give him a computer class, and the failure to discipline Mr. Phillips for his discriminatory conduct, also do not support a claim for hostile environment. First of all, there has never been an allegation by Mr. Eaglin that the failure to give him a computer class was racially motivated. After Mr. Eaglin filed a grievance about not being given the computer class, the School Board promptly agreed to let him take the class.
At this same time, Mr. Eaglin brought seven grievances to the attention of the School Board. The Board ruled in his favor on six of the seven grievances. The only request the School Board turned down was to return Mr. Eaglin to his old office.
Second, Mr. Eaglin has not claimed that he suffered any adverse employment actions as the result of Mr. Phillips "discriminatory" conduct. Mr. Eaglin has not alleged that Mr. Phillips has ever subjected him to any racially motivated ridicule, insults, or intimidation that are sufficiently severe as to alter the conditions of Mr. Eaglin's employment. All Mr. Eaglin has alleged is that Mr. Phillips has failed to perform written evaluations of plaintiffs' work. The court fails to see how the lack of written evaluations can constitute a hostile work environment. Therefore, Mr. Eaglin's claim for hostile environment cannot withstand the defendant's motion for summary judgment. See Harris v. Forklift Sys., 510 U.S. 17, 23 (1993) (detailing the factors courts should consider in determining severity).
Courts have been consistent in granting summary judgment in cases such as this where there is little evidence of racial hostility. See. e.g., Hawkins v. Pepsico. Inc., No. 98-2193, 2000 WL 159903 at *7 (4th Cir. Feb. 15, 2000) (holding that when there is no showing that problems at an office are racial in nature summary judgment is appropriate on a hostile work environment claim); Williams v. County of Westchester, 171 F.3d 98, 101 (2d Cir. 1999) (holding that a feeling of general discomfort falls well short of the proof required to show a hostile work environment); Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (noting that vague or conclusory allegations of harassment are not enough to survive summary judgment); Haynes v. Bluecross Blueshield of Texas, No. 3:97-CV-2881-R, 2000 WL 140744 at *12 (N.D. Tex. Feb. 4, 2000 (granting summary judgment when there was no evidence that any harassment was severe enough to change a term, condition, or privilege of a plaintiffs' employment); Nelson v. Star Enterprise, No. Civ. A. 98-1557, 1999 WL 596259 at * 5 (E.D. La. Aug. 5, 1999) (random instances from the 70s through the 90s could not support a claim for hostile environment).
After examining the totality of the circumstances, there is insufficient evidence that would allow a reasonable person to find plaintiff's work environment to have been hostile or abusive. There can be little doubt that Mr. Eaglin has been the recipient of an unacceptable racial slur that should long be absent from modern society and that he is quite upset about this. However, there is insufficient evidence to indicate that his employer did nothing to rectify the situation. The conduct that Mr. Eaglin was subjected to was absolutely reprehensible but it was not so severe or pervasive as to alter the conditions of his employment and create an abusive working environment.
Mr. Eaglin's attorney claimed in his response to the motion for summary judgment that "[i]n order to establish prompt remedial action, the employer should have an anti-harassment policy in the workplace and a prompt effective response to a complaint of national origin harassment. Only then may the Defendant preclude liability." The only citation provided for this broad statement was Ward v. Bechtel Corp., 102 F.3d 199 (5th Cir. 1997). However, in that case there was absolutely no mention of an anti-harassment policy. Furthermore, the Fifth Circuit in Ward affirmed the district court's granting of summary judgment on a hostile environment claim since the employer took a prompt and remedial action in response to the plaintiffs' allegations of harassment. Id. at 202-203. The court agrees that anti-harassment policies are helpful in deterring racial harassment. However, the court was unable to find any case law indicating that the failure to have one automatically prohibits courts from granting summary judgment in cases such as this.
B. Disparate Treatment
Eaglin's Title VII disparate treatment claims are governed by the burden shifting framework of McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252- 54 (1981); Walton v. Bisco Ind., Inc., 119 F.3d 368, 370 (5th Cir. 1997). Under McDonnel Douglas' burden shifting framework, Mr. Eaglin must prove "by a preponderance of the evidence a prima facie case of discrimination." Burdine, 450 U.S. at 252-3. However, "[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Id. Moreover, there is not a fixed formula to establish a prima facie case for every employment decision. See McDonnell Douglas, 411 U.S. 802 at n. 13; Burdine, 450 U.S. at 253-4, n. 6.
In the present context, these cases require Mr. Eaglin to establish, as his prima facie case that (1) he belongs to a protected group, i.e. African-American; (2) that he was qualified for the position in question; (3) that he suffered an adverse employment action; and (4) that the defendant sought to replace him with a similarly qualified non African-American.
Again, this analysis is clouded by the fact that the plaintiff has not adequately responded to the issues presented in the defendants motion for summary judgment. It is absolutely unclear what instances Eaglin is relying on to establish his claim of disparate treatment. Since Eaglin has not suffered an adverse employment action in the past 10 years, the only two instances he could rely on are his being passed over for promotion in 1981 and being required to take an exam in 1989 prior to his promotion as foreman.
Mr. Eaglin cited being required to take a written exam prior to his promotion as foreman as an instance where he suffered discrimination. However, Mr. Eaglin received the promotion after taking the test. Furthermore, he admitted during his deposition that all applicants for that position were required to take the test. The court fails to see how this is an instance of racial discrimination but will consider it as such nonetheless in an abundance of caution.
In a state, like Texas, that provides a state or local administrative mechanism to address complaints of racial discrimination, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged. 42 U.S.C. § 2000e-5 (e)(1); Messer v. Meno, 130 F.3d 130 n. 2 (5th Cir. 1997). There is an equitable exception to this requirement-the continuing violations doctrine.
The Fifth Circuit has explained this doctrine as follow:
The continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period. . . . The core idea of the continuing violations theory, however, is that equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated. The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. At the same time, the mere perpetuation of the effects of time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period. Thus, a plaintiff can avoid a limitations bar for an event that fails to fall within the statutory period where there is a persisting and continuing system of discriminatory practices in promotion or transfer that produces effects that may not manifest themselves as discriminatory except in cumulation over a period of time.Messer, 130 F.3d at 134-35 (citations, quotation marks, and brackets omitted). Plaintiff does not explain how this theory applies to his case. See Pl's Resp. at 6. In fact, plaintiff does not even cite Fifth Circuit authority on this point. He merely makes the broad conclusory statement that it applies in this case.
The record in this case demonstrates that the continuing violations doctrine is not applicable. The Fifth Circuit has recognized that there is no set standard for determining when the continuing violation doctrine applies. Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998). It is clear, however, that a plaintiff "must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action. Id. (citations omitted). Several factors assist in making this determination:
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring . . . or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?Id. (citing Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983)). After applying these factors, it is evident that the continuing violations doctrine is not applicable here.
In order to extend the statute of limitations under this doctrine, Mr. Eaglin must show a series of related acts, one or more of which falls within the limitations period. Martin v. The Kroger Co., 65 F. Supp.2d 516, 531 (S.D. Tex. 1999). Mr. Eaglin cannot do this. There is no semblance of related acts in this case. Eaglin was denied a promotion in 1981. Eight years later he had to take a written exam prior to his being promoted to foreman. Even giving Mr. Eaglin all reasonable inferences, it simply cannot be said that these two acts or any others are related.
In making the inquiry whether the doctrine applies, "the focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights." Webb v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998) (citation omitted). If Mr. Eaglin was passed over for a promotion in 1981, then this should have alerted him then to protect his rights. Filing a suit in 1999 was way too late.
"The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past." Delaware State College v. Ricks, 449 U.S. 250, 256-57 (1980). Making an exception to this policy based on the "continuing violation" doctrine requires a showing of equitable considerations that are not present in this case.
C. Punitive Damages
Mr. Eaglin has requested that punitive damages be awarded if he prevails on his claims. Since the court has granted the defendants motion for summary judgment, the claim for punitive damages is irrelevant. The court notes though that the defendant has made the incorrect statement that "[p]unitive damages are not available under Title VII of the Civil Rights Act." Def. Mot. for Sum. Judge at 14. Punitive damages have been available under Title VII since it was amended in 1991. Civil Rights Act of 1991, PUB. L. 102-166, TIT. I, § 102, 105 STAT. 1072 (1991) (codified at 42 U.S.C. § 1981a).
However, the right to recover punitive damages under the amended civil rights laws is limited: Governments, government agencies, and political subdivisions remain immune from liability for punitive damages, even after the 1991 amendments. 42 U.S.C. § 1981a(b)(1). Courts have held that school boards and boards of regents qualify as political subdivisions and governmental agencies under § 1981a(b)(1).Biggs v. State of Florida Rd. of Regents, No. 1:96-CV-185-MMP, 1998 WL 344349 at *2 (N.D. Fla. June 11, 1998); Marcus v. St. Tammany Parish Sch. Rd., Civ. A. No. 95- 3140, 1996 WL 514970 at *3 (E.D. La. Sept. 10, 1996); Garrett v. Clarke County Bd. of Educ., 857 F. Supp. 949, 953 (S.D. Ala. 1994) (citing cases); see also Cleveland v. Runyon, 972 F. Supp. 1326, 1330 (p. Nev. 1997) (holding that a post office qualifies as a government agency). Since a school district is exempt from punitive damages under § 1981 a, the plaintiff's request for punitive damages would be dismissed as a matter of law anyways.
III. CONCLUSION
In this action, Eaglin has submitted insufficient evidence to withstanding summary judgment. The racial epithet directed towards Eaglin was highly offensive and inappropriate. It does not however establish that a hostile environment existed in the Port Arthur School District. Likewise, Mr. Eaglin's disparate treatment claim must also be dismissed since he has not suffered any adverse employment actions in the 300 days since he filed his complaint with the EEOC. Accordingly, the defendant's Motion for Summary Judgment is GRANTED.