Opinion
Case No. C2-00-1248
June 3, 2002
OPINION AND ORDER
This matter is before the Court for consideration of Defendants Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. # 24). Plaintiff Ronald Eugene Keaton alleges that his former employer, former supervisor, and the Director of the Ohio Department of Corrections discriminated against him and harassed him based on his race. Specifically, Plaintiff claims violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1981, 1983, 1985, 1986, 1988, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200e et seq, and the common law of Ohio. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367. For the reasons set forth below, Defendant's Motion is GRANTED as to all of Plaintiff's federal claims and Plaintiff's state law claim is DISMISSED without prejudice. .
Plaintiff Barbara Keaton's claims were voluntarily dismissed without prejudice on October 11, 2001. (Doc. #20).
I. BACKGROUND
Plaintiff, an African American man, began his employment with the Ohio Department of Rehabilitation and Corrections, Correctional Reception Center ("CRC") in Orient, Ohio on June 3, 1991. (Pl. Dep. at 11). Plaintiff was employed as a Food Service Coordinator. ( Plaintiff's Memorandum Contra Defendants' Motion/or Summary Judgment, at 2) [hereinafter "Plainiff's Memorandum Contra"]. After several years Plaintiff was promoted to Food Service Manager I. ( Id.; Pl. Aff. ¶ 2). Plaintiff resigned from his job on December 3, 1999. ( Amended Complaint ¶ 14).
Plaintiff's supervisor at the time of his resignation was Defendant Edgar Zillner. Coincidentally, Zillner and Plaintiff began their employment with CRC on the same day. (Plaintiff's Memorandum Contra, at 2). During their years as co-workers, Plaintiff and Zillner were cordial and friendly. ( Id.). They conversed on occasion about their families and business aspirations. ( Id. at 3). Keaton also visited Zillner's house on a few occasions. ( Id.). Zillner was promoted to a supervisory position in 1995 or 1996. (Pl. Dep. at 19-20).
Sometime after Zillner's promotion, in 1995 or 1996, Plaintiff had "a situation" during work with two corrections officers. ( Id. at 19). There was an altercation between the officers and Plaintiff which was described as a "yelling contest" where all parties engaged in "name calling." (Zillner Dep. at 52). After the incident, formal reports were submitted to the Deputy Warden. (Pl. Dep. at 19; Zillner Dep. at 52). Plaintiff claims that the Deputy Warden removed the two officers from the area in which Plaintiff worked because they were responsible for the incident. (Pl. Dep. at 20). Zillner contends that only one of the officers was removed from the area in which Plaintiff worked and the other was not. (Zillner Dep. at 52).
After the incident, Plaintiff was moved to third shift. Plaintiff claims that Zillner "kind of pushed me to third shift, which I didn't want to do." (Pl. Dep. at 20). Zillner claims that after the altercation with the officers he "kind of advised him very strongly that it might be beneficial to him to take that shift and we needed a manager on that shift to get the shift straight or clean it up." (Zillner Dep. at 53). In any event, Plaintiff did move to third shift and worked that shift for eight months. (Pl. Dep. at 24). At the time Plaintiff was moved to the less desirable third shift position he did not believe it was because of his race. (Pl. Dep. at 21). Plaintiff, however, came to believe he was in fact moved to third shift because of his race after the Zillner called him "ignorant." ( Id. at 21-22).
After Plaintiff had been on third shift for approximately three months, he claims that Zillner called him "ignorant" in front of inmates and a correction officer, apparently because Zillner was unhappy about the quality of Plaintiff's work. (Pl. Dep. at 22). Plaintiff and Zillner then had "a few words." ( Id. at 25). Plaintiff and Zillner spoke privately about the incident. ( Id.). Plaintiff was satisfied with the outcome of the private meeting and chose not to lodge a formal complaint. ( Id.).
Plaintiff also alleges Zillner "on several occasions used negative, demeaning and derogatory communications toward Plaintiff that he did not use toward the white employees." ( Amended Complaint ¶ 11). Defendant points out, however, that Plaintiff was aware of Zillner using this type of derogative language "several times" toward non-minority subordinates of CRC. (Pl. Dep. at 24). Specifically, Plaintiff heard or was aware of Zillner making derogative comments to four other employees, three of which were Caucasian. ( Id. at 24-27, 44). Also, one of Plaintiff's co-workers, a Causacian, testified that "Zillner has also degraded me on several occasions, but I learned to deal with Zillner by giving him the same degrading comments back." (Presler Aff. at 3; Pl. Dep. at 44). This co-worker held the same position at CRC as did Plaintiff. ( Id.).
After four or five months Plaintiff requested to be moved back to either first or second shift because he was getting married. ( Id. at 22). A few months later, upon Plaintiff's return from his honeymoon, he was moved off of third shift. ( Id.).
In April or May of 1998, Zillner's daughter brought a black beanie baby gorilla to the workplace and placed it on Zillner's desk. (Zillner Dep. at 34). The gorilla did not bother Plaintiff for the first month it was in Zillner's office. (Pl. Dep. at 30). Plaintiff claims, however, that, for the following year and one-half, Zillner named and referred to the gorilla as Plaintiff. ( Id. at 29-37). Plaintiff also contends that he requested that Zillner not refer to the gorilla in such a way several times over the year and one-half period the gorilla was in Zillner's office. (Pl. Dep. at 33). Further, Plaintiff claims that the gorilla remained on Zillner's desk the entire year and one-half period it was in his office. ( Id. at 36).
Zillner does not dispute that he referred to the gorilla as "Little Ron." Zillner claims, however, that it was Plaintiff who named and referred to the gorilla as "Little Ron," apparently referring to Plaintiff's own son, who is also named Ron. (Zillner Dep. at 36, 38).
After the gorilla was on Zillner's desk for approximately five or six months a few employees suggested that he remove the gorilla because it could be construed as offensive. ( Id. at 40-43). A few weeks after the suggestions, Zillner contends that he put the gorilla in his desk drawer. ( Id.). Zillner claims that he did not believe Plaintiff was offended by his actions. ( Id.).
In August of 1999, Plaintiff contends that Zillner denied him an access code to the food service department computer in order to hinder Plaintiff from carrying out his job duties. ( Amended Complaint ¶ 10). Plaintiff claims that two of his non-minority co-employees were given access codes before he was. Plaintiff claims that Zillner instructed the person in charge of distributing access codes, Steve Bowers, not to issue one to Plaintiff. (Pl. Dep. at 39-43). Plaintiff had to have other employees or Zillner access the computer for him. Zillner contends that he instructed Plaintiff to contact Bowers so that he could obtain a code and that Plaintiff did not do so. (Zillner Dep. at 60).
In approximately September or October of 1999, Plaintiff complained to CRC that his work environment was hostile because he was not given an access code to the computer, that Zillner spoke to him in a derogative and demeaning fashion, and that Zillner called the gorilla beanie baby by Plaintiff's name. (Pl. Dep. at 36). Within one hour of Plaintiff's complaint, CRC removed the gorilla beanie baby from Zillner's office and placed Zillner on administrative leave pending investigation of the charges. ( Id. at 43).
On November 2, 1999, Plaintiff filed a complaint with the Ohio Civil Rights Commission and Equal Employment Opportunity Commission. (Amended Complaint ¶ 15). On November 5, 1999, after CRC's investigation, CRC held a pre-disciplinary conference. ( Plaintif's Memorandum Contra, Ex. 2). On November 19, 1999, the Hearing Officer found that Zillner had violated three of CRC's Institutional Rules. The Officer found Plaintiff guilty of failure to exhibit good behavior and nonfeasance, failure to properly supervise, and discrimination. ( Id.). Subsequently, CRC decided to suspend Zillner for three days and to require him to attend sensitivity classes. (Pl. Dep at 78).
On approximately December 1, 1999, Plaintiff was informed of the results of the pre-disciplinary conference and the punishment and corrective measures to be taken with regard to Zillner. ( Id.). Plaintiff did not feel that CRC's actions were appropriate. ( Id.). On December 3, 1999, before Zillner returned to work, Plaintiff resigned. ( Id. at 78-79). Plaintiff contends that he was forced to resign because of the racially hostile environment in which he worked. ( Amended Complaint ¶ 14). On February 25, 2000, a letter was sent to Plaintiff from the Equal Employment Opportunity Officer who concluded that there was sufficient evidence to support his claim of racial discrimination. (Doc. # 3). The letter also stated that Plaintiff should "be aware that [CRC] has promptly taken action to correct, and hopefully prevent any further inappropriate behavior." ( Id.). On August 10, 2000, Plaintiff received a dismissal of his complaint with the EEOC and a notice of right to sue. ( Id.). On October 25, 2000, Plaintiff filed this action. (Doc. # 1).
II. STANDARD OF REVIEW
The procedure for considering whether summary judgment is appropriate is set forth in Federal Rule of Civil Procedure 56(c), which provides:
The judgment sought shall be rendered forthwith 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.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence 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). Summary judgment is appropriate however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that part's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Matsushita Electronic Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford Co. 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identifies a number of important principles in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a mere scintilla of evidence in order to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
III. ANALYSIS
Plaintiff claims racial harassment, disparate treatment, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200e et seq [hereinafter "Title VII"], racial discrimination and constructive discharge in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, violations of 42 U.S.C. § 1981, 1983, 1985, 1986 [hereinafter "Section 1981," "Section 1983," "Section 1985," and "Section 1986"], attorney's fees under § 1988, and intentional infliction of emotional distress in violation of the common law of Ohio. All Defendants claim immunity or qualified immunity from Plaintiff's claims under Sections 1981, 1983, and 1985. In the absence of immunity Defendants' claim they are entitled to summary judgment in their favor on these claims. Further, all Defendants claim that they are entitled to summary judgment on Plaintiff's claims under Title VII. Finally, Wilkinson and Zillner claim that, as individuals, they cannot be held liable under Title VII.
Plaintiff may recover attorney's fees under Section 1988 only if he prevails under Sections 1983, 1985, and 1986. 42 U.S.C. § 1988 (b). This Section does not create any rights to recovery independent of Sections 1983, 1985, and 1986.
Initially, the Court notes that the Sixth Circuit has held that Title VII provides the exclusive remedy when the only Section 1983 or Section 1985 claim is based on a violation of Title VII. Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 370-78 (1979) (§ 1985(3)); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1204 (6th Cir. 1984) (§ 1983). Whether Plaintiff's remedy is under Title VII or Sections 1983 and 1985 is inconsequential based on the Court's conclusions, infra, that Plaintiff's claims cannot survive summary judgment under any of the three theories.
At the outset, the Court will address Defendants' Eleventh Amendment immunity defense because this defense raises a question of federal jurisdiction. Johnson v. University of Cincinnati, 215 F.3d 561, 570 (6th Cir. 2000); Wilson-Jones v. Caviness, 99 F.3d 203, 206 (6th Cir. 1996). The Court will then discuss each of Plaintiff's claims for relief seriatim.
A. Immunity 1. Eleventh Amendment
With few exceptions, the Eleventh Amendment of the United States Constitution prohibits individuals from suing the states in federal court. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Mixon v. State, 193 F.3d 389, 396-97 (6th Cir. 1999). CRC is an instrumentality of the state of Ohio, protected by the Eleventh Amendment to the same extent as is the state. Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999); Foulks v. Ohio Dep't of Rehab. Corr., 713 F.2d 1229, 1232-33 (6th Cir. 1983). The Eleventh Amendment, however, does not bar suits against state officials seeking prospective injunctive relief to end continuing violations of federal law. MacDonald v. Vill. of Northport, Mich., 164 F.3d 964, 970-72 (6th Cir. 1999); Wolfel v. Morris, 972 F.2d 712, 719 (6th Cir. 1992); Edelman v. Jordan, 415 U.S. 651, 667-68 (1974); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89 (1984); Ex Parte Young, 209 U.S. 123 (1908)).
In the matter sub judice, Plaintiff has brought claims under Sections 1983, 1981, and 1985 against CRC and against Wilkinson and Zillner in their official capacities and in their individual capacities. Plaintiff requests monetary relief as well as prospective injunctive relief.
a. 42 U.S.C. § 1983
The Sixth Circuit has held that "Congress did not disturb the states' eleventh amendment immunity when it passed § 1983" and that "a state is not a 'person' subject to suit under § 1983." Wolfel, 972 F.2d at 718. Thus, CRC is entitled to Eleventh Amendment immunity on Plaintiff's Section 1983 claim for monetary damages. Accordingly, summary judgment is GRANTED to CRC on these claims for monetary damages.
In Hafer v. Melo, 502 U.S. 21, 31 (1991), the Supreme Court held that "state officials, sued in their individual capacities, are 'persons' within the meaning of [42 U.S.C.] § 1983." In contrast, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the state itself." Wolfel, 972 F.2d at 719. Thus, "a suit for damages against a state official in his or her official capacity cannot be maintained pursuant to § 1983." Id. at 718. Nonetheless, Section 1983 claims against the officials sued in their official capacities for prospective injunctive relief are not barred by Eleventh Amendment immunity. Id. at 719. "[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State.'" Hafer, 502 U.S. at 362-63 (quoting Kentucky v. Graham, 473 U.S. at 167, n. 14). See also Ex Parte Young, 209 U.S. 123, 159- 60 (1908).
Thus, Wilkinson and Zillner in their official capacity are entitled to Eleventh Amendment immunity from claims for monetary damages brought under Section 1983; consequently summary judgment is GRANTED to them on this claim. Plaintiff's Section 1983 claims against Wilkinson and Zillner in their official capacities for prospective injunctive relief are not barred by Eleventh Amendment immunity. Summary judgment, however, is GRANTED in favor of Wilkinson and Zillner because Plaintiff is no longer employed by CRC, nor does he request reinstatement to CRC, rendering moot a request for injunctive relief prohibiting Defendants' from discriminating or retaliating against Plaintiff on the basis of race.
To qualify for the Ex Parte Young exception to Eleventh Amendment immunity for claims for injunctive relief against individual state officials in their official capacities, a plaintiff must seek prospective relief to end a continuing violation of federal law. MacDonald, 164 at 970-72 The Sixth Circuit has held "that claims for reinstatement are prospective in nature and appropriate subjects for Ex parte Young actions." Carten v. Kent State Univ., 282 F.3d 391, 395 (6th Cir. 2002) citing Turker v. Ohio Dep't. of Rehab. and Corrs., 157 F.3d 453, 459 (6th Cir. 1998). Plaintiff, however, has not asked for reinstatement.
The individual capacity claim for monetary damages brought against Wilkinson and Zillner under Section 1983 survives the Eleventh Amendment. The Court will address these claims infra.
b. 42 U.S.C. § 1981
Eleventh Amendment jurisprudence with respect to Section 1981 claims tracks that of Section 1983 claims. Allen v. Ohio Dept. of Rehab. and Correction, 128 F. Supp.2d 483, 490 (S.D. Ohio 2001). Thus, for the reasons stated supra, Plaintiff's Section 1981 claims for monetary damages against CRC and Wilkinson and Zillner in their official capacities are barred by Eleventh Amendment immunity and summary judgment is GRANTED to them on these claims. Further, also for the reasons stated supra, Plaintiff's Section 1981 claim for prospective injunctive relief is moot; consequently summary judgment on this claim is GRANTED to Wilkinson and Zillner in their official capacities.
The individual capacity claim for monetary damages brought against Wilkinson and Zillner under Section 1981 survives the Eleventh Amendment. The Court will address these claims infra.
c. 42 U.S.C. § 1985
Eleventh Amendment jurisprudence with respect to Section 1985 claims also tracks that of Section 1981 and Section 1983 claims. McCrary v. Ohio Dept. of Human Services, 2000 U.S. App. LEXIS 19212, * (6th Cir. 2000); Russell v. Clark, 1999 U.S. App. LEXIS 2322, * (6th Cir. 1999). Thus, for the reasons stated supra, Plaintiff's Section 1985 claims for monetary damages against CRC and Wilkinson and Zillner in their official capacities are barred by Eleventh Amendment immunity and summary judgment is GRANTED to them on these claims. Further, also for the reasons stated supra, Plaintiff's Section 1985 claim for prospective injunctive relief is moot; consequently summary judgment that claim is GRANTED to Wilkinson and Zillner in their official capacities.
The individual capacity claim for monetary damages brought against Wilkinson and Zillner under Section 1985 survives the Eleventh Amendment. The Court will address these claims infra.
d. Title VII of the Civil Rights Act of 1964
Plaintiff's Title VII claims against CRC may be brought in federal court notwithstanding the Eleventh Amendment and are permissible against Wilkinson and Zillner in their official capacities. Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000) citing Alden v. Maine, 527 U.S. 706 (1999); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (finding that Congress abrogated the States' sovereign immunity by enacting Title VII under the Enforcement Clause, § 5, of the Fourteenth Amendment).
The claims against CRC and Wilkinson and Zillner in their official capacity survives the Eleventh Amendment and the Court will address these claims infra.
2. Qualified Immunity
Wilkinson and Zillner claim that they are entitled to summary judgment based on the affirmative defense of qualified immunity against Plaintiff's claims brought under Sections 1981, 1983, and 1985 against them in their individual capacities. The Sixth Circuit recently identified a three-prong test for evaluating a claim of qualified immunity:
First, we determine whether a constitutional violation occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.Flint v. Kentucky Dep't of Corrections, 270 F.3d 340, 350-51 (6th Cir. 2001) citing Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) and Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996)).
Because the Court finds that Plaintiff's constitutional rights were not violated, as analyzed below, Defendants Wilkinson and Zillner are entitled to qualified immunity. Summary judgment, therefore, is GRANTED to Wilkinson and Zillner in their individual capacities on Plaintiff's Sections 1981, 1983, and 1985 claims.
B. Title VII Claims Against Wilkinson and Zillner in their Individual Capacities
The Sixth Circuit has unambiguously ruled that employees cannot be held individually liable under Title VII. Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997) (holding "that an individual employee/supervisor, who does not otherwise qualify as an 'employer,' may not be held personally liable under Title VII.").
Consequently, summary judgment is GRANTED to Wilkinson and Zillner in their individual capacities with respect to Plaintiff's Title VII claim.
C. Title VII Claims Against CRC
Title VII provides that it shall be an unlawful employment practice for an employer to discriminate on the basis of race. 42 U.S.C. § 2000e-2 (a). A person aggrieved by such discrimination may bring a civil action against the employer. 42 U.S.C. § 2000e-5 (b).
1. Racial Harassment Claim
Title VII of the Civil Rights Act of 1964 prohibits an employer from "discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e-2 (a)(1). In analyzing a claim of a racially hostile work environment under Title VII, the Sixth Circuit stated that:
The scope of prohibition is not limited to economic or tangible discrimination. Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 126 L.Ed.2d 295, 114 S.Ct. 367 (1993). Discrimination so "severe or pervasive" as to "alter the conditions of [the victim's] employment and create an abusive working environment" violates Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L.Ed.2d 49, 106 S.Ct. 2399 (1986).Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). The "elements and burden of proof are the same, regardless of the discrimination context in which the claim arises." Crawford v. Medina Gen'l Hosp., 96 F.3d 830, 834 (6th Cir. 1996); Allen v. Michigan Dep't of Corrections, 165 F.3d 405 (6th Cir. 1999). To establish a prima facie case of hostile work environment based on race, Plaintiff must establish the following five elements:
1. He was a member of a protected class;
2. He was subjected to unwelcomed racial harassment;
3. The harassment was based on race;
4. The harassment had the effect of unreasonably interfering with the employees work performance by creating an intimidating, hostile, or offensive work environment; and
5. The existence of employer liability.
Seidner, 183 F.3d at 512 citing Risinger v. Ohio Bureau of Workers' Compensation, 883 F.2d 475, 484 (6th Cir. 1990).
Plaintiff seeks to hold his employer, CRC, liable for harassment by his supervisor, Zillner. Employer liability for supervisor harassment is vicarious. Pierce, 40 F.3d at 803. In this regard the Supreme Court has stated that:
In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The Court went also articulated an affirmative defense available to an employer which, if established, may negate vicarious liability:
When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.Id. See also Seidner, 183 F.3d at 513 (applying standard to a claim of racially hostile work environment).
As an initial matter, CRC is entitled to assert the affirmative defense set forth in Burlington and Faragher because none of the actions of which Plaintiff complains constitute tangible employment actions. In analyzing a claim of hostile work environment, the Sixth Circuit set forth the requirements for establishing a tangible job detriment as follows:
The Circuit Court noted that "[c]ourts use the terms 'tangible employment detriment' and 'materially adverse employment action' interchangeably." Bowman v. Shawnee State University, 220 F.3d 456, 461 n. 5 (6th Cir. 2000).
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.Bowman v. Shawnee State University, 220 F.3d 456, 461 (6th Cir. 2000) citing In Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999).
In this case, the actions of which Plaintiff complains are derogative comments comparing him to the toy gorilla, the withholding of a computer access code, reassignment to third shift for eight months, and constructive discharge. Clearly, the derogative comments and withholding of a computer access code do not fall into the category "of a tangible employment action such as discharge, demotion, or undesirable assignment." Further, "constructive discharge is not a tangible employment action for purposes of Faragher and Burlington." Turner v. Dowbrands, Inc., 2000 U.S. App. LEXIS 15733, at *4 (6th Cir. June 26, 2000) citing Candid v. Metro-North Commuter R.R., 191 F.3d 283, 294 (2nd Cir. 1999). And, finally, Plaintiff's transfer to third shift was not a tangible job detriment because it was temporary in nature, did not result in an alteration of job responsibilities, did not decrease his salary or result in a loss of benefits, and did not result in the diminishment of responsibility. Thus, the Court concludes that Plaintiff did not suffer a tangible employment action.
To prevail on this affirmative defense CRC must establish "two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Burlington, 524 U.S. at 765; Faragher, 524 U.S. at 807. The Court concludes that both prongs of this affirmative defense are met for the purpose of Rule 56.
First, CRC exercised reasonable care to prevent harassment in its workplace. CRC has a published anti-harassment policy with an outlined complaint procedure. (Wingard Aff. ¶ 3 and Exs. 1 and 2). this policy and complaint procedure includes methods to bypass an immediate supervisor in making a complaint. ( Id.). Plaintiff testified that he had training in these procedures. (Pl. Dep. at 84). Further, CRC implemented prompt and appropriate action in response to Plaintiff's complaints. Within one hour of the time Plaintiff lodged his complaint, CRC removed the gorilla beanie baby from Zillner's desk and placed Zillner on administrative leave pending an investigation. (Pl. Dep. at 43, 57). After the investigation, CRC suspended Zillner for three days and required that he take a sensitivity class. (Pl. Dep. at 78). Plaintiff never again worked with Zillner before he resigned. (Pl. Dep. at 78-9). Thus, this prong of the affirmative defense is met.
Mavis Wingard is the Personnel Director of CRC.
Second, Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by CRC. Plaintiff did not lodge a complaint against Zillner until October of 1999, approximately three years after he alleges the harassment began, despite his knowledge of the complaint procedure. Plaintiff's explanation for not availing himself of the complaint procedure was not fear of retaliation or reprisal, but instead was because he wanted to "handle the matter himself" and "he did not want Zillner to be fired." (Pl. Dep. at 51, 52). For purposes of this action, Plaintiff acted unreasonably by deliberately failing to take advantage of policy designed to prevent harassment. Further, Plaintiff never gave CRC's remedy a chance for success by resigning prior to Zillner's return to work. Plaintiff does not contend that he was fearful of retaliation from Zillner in any way, nor does he contend that any one else at CRC behaved in a racist manner toward him. ( Id. at 91). Instead, Plaintiff claims that he did not believe Zillner's punishment was sufficient, which prompted him to resign before Zillner returned to work. (Pl. Dep. at 78-9). Consequently, this prong of the affirmative defense is met.
From this, the Court concludes that it is unnecessary to decide whether Zillner's conduct, although clearly rude and derogative, rose to a level that constituted a racially hostile work environment significantly affecting his ability to perform his job. Clearly, Zillner was in need of the sensitivity class CRC required him to attend. The issue is not Zillner's conduct; the question is whether the employer responded appropriately.
Consequently, summary judgment is GRANTED to CRC on Plaintiff's racial harassment/racially hostile work environment claim.
2. Disparate Treatment
In a Title VII disparate treatment case, where no direct evidence of discrimination exists, a plaintiff may establish a prima facie case of discrimination by establishing that: (1) he was a member of a protected class; (2) he suffered an adverse employment action; (3) he was qualified for the position in question; and (4) he was either replaced by a person from outside the class. Hein v. All America Plywood Co., 232 F.3d 482, 489 (6th Cir. 2000); Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 728-29 (6th Cir. 1999); Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1166 (6th Cir. 1996). "[A] plaintiff may satisfy the fourth element by showing either that the plaintiff was replaced by a person outside of the protected class or that similarly situated non-protected employees were treated more favorably than the plaintiff." Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002) citing Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1247 (6th Cir. 1995) (emphasis in original).
If the plaintiff is able to establish a prima facie case of discrimination, the burden of production then shifts to the employer to assert a legitimate, non-discriminatory justification for its action. Ang v. Procter Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991) (relying on Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 313 (6th Cir. 1989), and McDonnell Douglas, 411 U.S. 792, 802 (1973). Once the employer has come forward with evidence of a legitimate reason for its action, the burden shifts back to the employee to establish that the employer's proffered explanation is a mere pretext for unlawful discrimination. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir. 1994).
CRC does not contest that Plaintiff satisfies prongs one and three of a prima facie case of disparate treatment, but does assert that Plaintiff neither suffered an adverse employment action nor was treated differently than similarly situated non-minority employees.
With respect to the second element of the prima facie case, the adverse employment action must be "materially adverse" in order for the plaintiff to succeed on a Title VII claim. Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). The Court has already concluded supra, that Plaintiff did not suffer a materially adverse employment action. Thus, this element of Plaintiff's prima facie case is not satisfied.
With respect to the fourth element of Plaintiff's prima facie case, the similarly situated employee must be similar in all relevant aspects. Ercegovich v. Goodyear Tire and Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). "It is fundamental that to make a comparison of a discrimination plaintiffs treatment to that of non-minority employees, the plaintiff must show that the 'comparables' are similarly situated in all respects. Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). "While the analysis required by Mitchell and Ercegovich is often fact dependent and not amenable to summary disposition, that analysis does not" always preclude summary judgment. Clayton, 281 F.3d at 612 (affirming district court's grant of summary judgment to defendant).
Plaintiff, in this case, has not set forth any evidence that he was treated differently than similarly situated non-minority employees. Plaintiff asserts in his Amended Complaint that Zillner "on several occasions used negative, demeaning and derogatory communications toward Plaintiff that he did not use toward the white employees." ( Amended Complaint ¶ 11). Further, Plaintiff claims that "[t]he fact of the matter is that [Plaintiff] was treated much differently than any of the white employees. The facts will show that the non-white employees were never subjected to the kind of harassment and discrimination that was demonstrated against [Plaintiff]." ( Plaintiff's Memorandum Contra, at 6-7). Plaintiff, however, does not allege what these "facts" might be. The only evidence before the Court establishes that Plaintiff was treated the same as similarly situated non-minority employees. Plaintiff testified that he knew of Zillner using the type of derogative language he used toward Plaintiff toward other subordinates "several times." (Pl. Dep. at 24). Specifically, Plaintiff heard or was aware of Zillner making derogative comments to four other employees, three of which were non-minorities. ( Id. at 24-27, 44). Most telling is the testimony of Dwight Presler, a Caucasian employee who holds the same position as Plaintiff held at CRC. Presler testified that he too was degraded by Zillner on several occasions. (Presler Aff. at 3). Consequently, this element of Plaintiff's prima facie case is not met.
The Court concludes that Plaintiff cannot establish his prima facie case of race discrimination. Accordingly, summary judgment is GRANTED to CRC and to Wilkinson and Zillner in their official capacities on Plaintiff's disparate impact claim.
3. Constructive Discharge
Constructive discharge occurs when an employer, with discriminatory purpose, makes working conditions "'so difficult or unpleasant that a reasonable person in the employee's shoes would feel compelled to resign.'" Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 (6th Cir. 1996) (citations omitted). Constructive discharge from employment is not itself a cause of action. First there must exist an underlying cause of action for employment discrimination. Starks v. New Par, 1999 U.S. App. LEXIS 9145, *15 (6th Cir. 1999) citing Kroll v. The Disney Store, 899 F. Supp. 344, 347 (E.D. Mich. 1995). In addition, there must be proof of other "aggravating factors." Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987) (citations omitted). The court must also inquire into the employer's intent and the reasonably foreseeable impact of its conduct on the employee. Id. (citations omitted).
The Court finds that Plaintiff fails to demonstrate constructive discharge because he failed to satisfy the first element of the claim — an underlying cause of action for employment discrimination. Because the Court concluded supra, that Plaintiff failed to set forth a claim under Title VII, and, the Court concludes infra, that Plaintiff fails to set forth claims under Sections 1981, 1983, and 1985, the Court necessarily concludes that there is no underlying claim to support a claim of constructive discharge.
Further, Plaintiff has failed to establish that Defendants' conduct subjected him to working conditions so difficult or unpleasant that a reasonable person in his shoes would feel compelled to resign. Also, Plaintiff has not set forth any evidence to show that his "discharge" was foreseeable to CRC. Even, the "feelings of a reasonable employee would not be enough to show discharge without at least some foreseeability on the part of the employer." Yates, 819 F.2d at 637 (emphasis added).
Accordingly, summary judgment is GRANTED to CRC on Plaintiff's disparate treatment claim.
D. Section 1983 Claim Against Wilkinson and Zillner in their Individual Capacities
Even if Wilkinson and Zillner were not entitled to qualified immunity from Plaintiff's Section 1983 claims, they would nonetheless be entitled to summary judgment on them. Section 1983 provides:
Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,. . . .42 U.S.C. § 1983.
Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere. Flint v. Kentucky Dept. of Corrections, 270 F.3d 340, 351 (6th Cir. 2001) citing Tuttle v. Oklahoma City, 471 U.S. 808 (1985).
The Sixth Circuit has recognized that "[b]oth Title VII and section 1983 provide relief for discriminatory employment practices of public employers." Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988); Daniels v. Board of Education, 805 F.2d 203, 206-07 (6th Cir. 1986). The showing a plaintiff must make to recover on a disparate treatment claim under Title VII mirrors that which must be made to recover on an equal protection claim under Section 1983. Id. citing Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1011 (6th Cir. 1987); Daniels, 805 F.2d at 207; Grano v. Department of Development, 637 F.2d 1073, 1081-82 (6th Cir. 1980). Thus, a plaintiff asserting a Fourteenth Amendment Equal Protection claim under Section 1983 must prove the same elements required to establish a disparate treatment claim under Title VII. Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000). Plaintiff' disparate treatment claim failed because he failed to establish a prima facie case under Title VII. Because Plaintiff's disparate treatment claim failed, Plaintiff's Section 1983 claims necessarily suffer the same fate.
As to Plaintiff's Section 1983 claim based on a racially hostile work environment, the Court must look to the merits of Plaintiff's claim with regard to Wilkinson and Zillner's actions. The Sixth Circuit recognized in Risinger v. Ohio Bureau of Workers' Compensation, 883 F.2d 475 (6th Cir. 1989), that "the required elements of prima facie proof necessary for a plaintiff to prove a cause of action charging a racially hostile work environment both under Title VII and 42 U.S.C. § 1983 are the same." Id. at 483 citing Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971). See also Boutros v. Canton Reg'l Transit Auth., 997 F.2d 198, 202 (6th Cir. 1993).
Defendants argue that Plaintiff cannot establish the fourth element of a prima facie case of a racially hostile work environment. That is, Plaintiff cannot prove that the alleged harassment had the effect of unreasonably interfering with his work performance by creating an intimidating, hostile, or offensive work environment. Seidner, 183 F.3d at 512. Plaintiff "must allege conduct with [racial] overtones that is 'sufficiently severe or pervasive' to affect a 'term, condition or privilege' of her [employment] and 'create an abusive [employment] environment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993), the Supreme Court explained that the conduct in question must be judged by both an objective and a subjective standard, i.e., (a) the conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive; and (b) Plaintiff must subjectively regard the environment as abusive. The Court went on to explain some of the relevant factors to 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; Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir. 1998). "A recurring point" in the Supreme Court's opinions "'is that "'simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'" and that "conduct must be extreme to amount to a change in the terms and conditions of employment." Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999) citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (citations omitted). Title VII protects employees from "working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. . . ." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citation omitted). Whether the alleged conduct rises to the level of an objectively hostile environment is a question of law for the Court. Blankenship v. Parke Care Centers, Inc., 913 F. Supp. 1045, 1051 (S.D. Ohio 1995), aff'd, 123 F.3d 868 (6th Cir. 1997); Klemencic v. Ohio State Univ., 10 F. Supp.2d 911, 916 (S.D. Ohio 1998).
Initially, the Court notes that Plaintiff has not alleged any racially hostile behavior on the part of Wilkinson. Thus, this claim is brought only against Zillner. As to Zillner, the Court finds that the actions of which Plaintiff complains — derogative comments comparing him to the toy gorilla, the withholding of a computer access code, reassignment to third shift for eight months, and constructive discharge — did not render Plaintiff's working environment so heavily polluted with discrimination as to destroy completely Plaintiff's emotional and psychological stability. While the Court again notes that Zillner surely was in need of the sensitivity classes CRC required him to attend, it cannot conclude that Zillner's conduct was so extreme to amount to changes in the terms and conditions of Plaintiff's employment. Thus, Plaintiff cannot establish a prima facie case of hostile work environment under Title VII. Consequently, Plaintiff's Section 1983 claim cannot survive summary judgment. Risinger, 83 F.2d at 483.
Accordingly, summary judgment is GRANTED to Wilkinson and Zillner in their individual capacities on Plaintiff's Section 1983 claim.
E. 42 U.S.C. § 1981 Claim Against Wilkinson and Zillner in their Individual Capacities
Even if Wilkinson and Zillner were not entitled to qualified immunity from Plaintiff's Section 1981 claims, they would nonetheless be entitled to summary judgment on them. Section 1981 provides:
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.42 U.S.C. § 1981 (a), (b).
The elements of a prima facie case under Section 1981 are the same for those in a Title VII action. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993); Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999). Section 1981, however, differs from Title VII in several respects. First, the plaintiff must demonstrate purposeful discrimination in a Section 1981 claim. General Bldg. Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 390 (1982). The burden of demonstrating purposeful discrimination is present throughout the prima facie case and, if applicable, in the pretextual analysis. Second, the doctrine of respondeat superior does not apply in Secion 1981 actions. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989); Kolb v. State of Ohio, 721 F. Supp. 885, 892 (N.D. Ohio 1989). Third, in contrast to Title VII, defendants can be held individually liable for discrimination under § 1981. Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir. 1986); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir. 1981). To establish individual liability, the individual defendant must have been personally involved in the discriminatory action. Allen v. Ohio Dep't of Corrections, 128 F. Supp.2d 483, 495 (S.D. Ohio 2001) (citations omitted).
Plaintiff's claim under Section 1981 contains all the weaknesses of his Title VII claim, and further suffers due to Section 1981's unique requirements. Although Zillner meets the personal involvement criterion, Wilkinson clearly does not. Thus, on that basis alone this claim fails with respect to Wilkinson. Plaintiff's claim fails with respect to both Wilkinson and Zillner for the same reasons his Title VII disparate treatment claim fails. That is, Plaintiff has failed to establish either that he suffered a materially adverse employment action or that he was treated differently than similarly situated non-minority employees.
Thus, summary judgment is GRANTED to Wilkinson and Zillner in their individual capacities with respect to Plaintiff's Section 1981 claim.
F. Sections 1985 and 1986 Claims Against Wilkinson, Zillner in their Individual Capacities
Even if Wilkinson and Zillner were not entitled to qualified immunity from Plaintiff's Section 1985 claims, they would nonetheless be entitled to summary judgment on them. Section 1985 provides:
[P]ersons [who] . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws. . . .42 U.S.C. § 1985 (3)
To prevail on this claim a plaintiff must prove the existence of a conspiracy among two or more persons to deprive plaintiff's of their civil rights. Voluntary Medical Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 223 (6th Cir. 1991) citing United Board of Carpenters Joiners v. Scott, 463 U.S. 825, 828 (1983).
Plaintiff's amended complaint alleges that "Defendants conspiratorially engaged in a scheme and conspiracy designed and intended to deprive Plaintiff" of his constitutional and statutory rights. ( Amended Complaint ¶ 23). Plaintiff, however, offers no evidence at all in support of this assertion. Plaintiff does not respond to Defendants' argument that they should be granted summary judgment on this issue.
Plaintiff's Section "1985 claims fail because his conspiracy allegations are vague, conclusory, and unsupported by any facts or evidence, and thus are insufficient to state a claim against the defendants." Kensu v. Haigh, 87 F.3d 172, 175-76 (6th Cir. 1996); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Further, to the extent that Plaintiff alleges conspiracy, he only alleges that all Defendants conspired with each other and is thus, barred by the "intracorporate doctrine," which provides that where all of the defendants are members of the same collective entity, there are not two separate people to form a conspiracy. Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. Of Educ., 926 F.2d 505, 510 (6th Cir. 1991).
Finally, Plaintiff's failure to state a claim under Section 1985 is fatal to his claim under Section 1986 because a necessary element of any Section 1986 claim is a proper claim under Section 1985. Braley v. City of Pontiac, 906 F.2d 220, 227 (6th Cir. 1990).
Consequently, summary judgment is GRANTED to Wilkinson and Zillner in their individual capacities on Plaintiff's Section 1985 and Section 1986 claims.
G. Intentional Infliction of Emotional Distress
Defendants do not move for summary judgment on Plaintiff's intentional infliction of emotional distress claim. Because all of Plaintiff's federal claims are disposed of in this Order, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claim pursuant to 28 U.S.C. § 1367 (c)(3).
Consequently, the Court DISMISSES Plaintiff's intentional infliction of emotional distress claim without prejudice. Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants' Motion for Summary Judgment in its entirety. (Doc. # 24). Further, the Court DISMISSES Plaintiff's intentional infliction of emotional distress claim without prejudice. The Clerk is DIRECTED to enter judgment accordingly.