Opinion
Case No. 8:01CV368
October 7, 2002
MEMORANDUM AND ORDER
This matter is before the Court upon the Motion for Summary Judgment (Filing No. 18) filed by Defendant Valmont Industries ("Valmont"). Valmont supports its motion with evidence, including the Deposition of the Plaintiff Ernest Brown ("Brown") and the Affidavits of Brown's former supervisors, Gary Stolley and Bill Wilcox. (Filing No. 19, Exs. B, F, G). Brown has filed no affidavits nor other evidence in opposition to Valmont's motion, nor has he submitted a memorandum of law in opposition to Valmont's motion. Several days after the rule time to respond to Valmont's motion had expired, Plaintiff submitted an Objection to Defendant's Motion for Summary Judgment. Even though it was not timely filed, because it is Plaintiff's only submission relative to the pending motion, the Court will treat the Objection as the Plaintiff's brief in opposition to the motion for summary judgment.
Factual Background
Many of the facts recited herein are taken from the "Uncontroverted Facts" contained in the Court's Order on the Final Pretrial Conference (Filing No. 22), and from the evidentiary submissions of the Defendant (Filing No. 19). Brown is an African American who has been employed by Valmont at its Valley, Nebraska, location since 1979, most recently in the Poles Division's paint department. (Uncontroverted Fact at ¶¶ 1-3) The Plaintiff voluntarily resigned his employment with Valmont on February 5, 2000 (Uncontroverted Fact at ¶ 5). In July 2001, Brown filed this Complaint alleging race discrimination in the nature of a hostile work environment in violation of Title VII, 42 U.S.C. § 2000e. Complaint at ¶ 12.
Although Brown testified that his supervisors at Valmont had never treated him in a discriminatory manner, he described several incidents involving harassing and allegedly discriminatory behavior by co-workers. Brown Dep. at 37. There are at least five incidents of allegedly unlawful discrimination by coworkers that Brown relies upon to support the allegations in his Complaint.
First, in approximately February 1995, a white, male co-worker walked behind him while he was working and pulled Brown's pants, including his underwear, down around Brown's ankles. Brown felt humiliated and embarrassed by the incident. Brown reported the incident to his then-supervisor, Bill Wilcox. Brown Dep at 38-39. Wilcox immediately investigated the incident and determined that the employees had engaged in "horseplay." Wilcox addressed the issue with the co-worker, and told Brown to report any additional problems. Wilcox received no additional complaints from Brown. (Wilcox Aff. at ¶ 3)
In a second, separate incident that occurred about four years later, the same co-worker kissed Brown on the mouth, and at other times, the co-worker twisted Brown's nipples. Brown perceived the harassment as sexual in nature, and stated that he did not believe that he was targeted by this co-worker based on his race. Brown Dep. at 43-48, 59-64. At the time of the kissing, incident, his supervisor assignment had changed from Wilcox to Gary Stolley. Brown, who was embarrassed by the incident and believed that the co-worker had a romantic interest in him, did not report the kissing or other offensive conduct to Stolley. Id. at 43-47.
Within a week of this kissing incident, the same co-worker suggested during a company holiday luncheon that Brown put barbeque sauce on Brown's serving of apple crisp. Brown considered the remark racially offensive and asked the co-worker to apologize, which he did not. Again, Brown did not report the incident to Stolley. Id. at 49-50.
On another occasion in August 1997, a different male co-worker made a Haitian Death Stick and brought it into the Valmont workplace in August 1997. Id. at 54. Brown did not report the incident to management because he knew that another Black employee had already reported it to management. Id. at 54-56. In a separate lawsuit brought by Brown's co-worker who reported the incident to management, this Court concluded that Valmont acted reasonably in responding to the incident, including meting out a disciplinary suspension from work to the offending employee and requiring all employees to attend diversity training during the hours of their regular employment. This Court's conclusion was affirmed by the Eighth Circuit Court of Appeals. Robinson v. Valmont Indus. Inc., 238 F.3d 1045 (8th Cir. 2001), attached to Filing No. 19 as Ex. 5.
This description was taken from the then-current news story regarding some New York City police officers who assaulted a Haitian immigrant. See Robinson v. Valmont Indus. Inc., 238 F.3d 1045, 1046 (8th Cir. 2000).
In the fifth incident, a white male co-worker who had spotted a skunk outside the Valmont plant asked Brown whether the skunk was his cousin. Brown felt that the comment was racially offensive and reported the comment to Stolley, who spoke to the co-worker. Then Stolley assured Brown that the situation had been handled and Brown would not have to deal with anymore racial comments. Id. at 56; Stolley Aff. at ¶¶ 3 — 4.
Summary Judgment Standard
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party, in this case Earnest Brown. U.S. ex rel. Quirk v. Madonna Towers, Inc., 238 F.3d 1045, 1048 (8th Cir. 2001). Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted).
Summary judgment should be used sparingly in employment discrimination cases. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). However, the plaintiff must present more than a prima facie case to support a reasonable inference regarding the alleged reason for the employer's action. Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995). Whether the plaintiff's evidence is direct or circumstantial, the evidence "must be sufficient to raise a genuine issue of material fact regarding defendant's reason for the employment action taken." Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 365 (8th Cir. 1994).
Analysis — Hostile Work Environment Claim
Valmont contends that the circumstances alleged by Brown do not support a hostile work environment claim under Title VII, and that it is entitled to summary judgment as a matter of law. "[H]ostile work environment harassment occurs when "the workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted). Bradley v. Widnall, 232 F.3d 626, 631 (8th Cir. 2000). The Eighth Circuit Court of Appeals has set forth a plaintiff's prima facie case alleging a hostile work environment as follows:
To establish a prima facie case of hostile work environment, [a plaintiff] must show: (1) she is a member of a protected group; (2) unwelcome harassment occurred; (3) a causal nexus existed between the harassment and her protected-group status; . . . (4) the harassment affected a term, condition, or privilege of employment[; and . . . i]n cases involving non-supervisor employees, there is an additional element: (5) that the employer knew or should have known of the harassment and failed to take prompt and effective remedial action.
Id. citing Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999) citations omitted.
According to Brown's Complaint, the harassment that he received that created the hostile work environment was based on his race. Complaint at ¶ 12. There is a reference in the Complaint to "sexist" conduct, see Complaint at ¶ 12(b), and Brown also complains about sex-based harassment in his deposition. With regard to the harassment by the co-worker who pulled down Brown's pants, kissed him, and twisted his nipples, Brown stated that he did not believe he was targeted by this co-worker because of his race. Brown Dep. at 47-48. Unlawful discrimination based on his sex or sexual harassment was not pled in Brown's complaint, nor is there evidence that discrimination on the basis of sex was the basis of his charge of discrimination that was filed with the EEOC. Accordingly, the Court will not consider it in connection with Brown's racially hostile work environment claim.
Even if the Court were to allow Brown to assert a hostile work environment claim based on sexual harassment, the Court finds that the sexually offensive behavior directed toward Brown was perpetrated by one individual, and that only the first incident was reported to Valmont's management. Although the Court may disagree with Wilcox's characterization of the first incident as "horseplay," in disagreeing, the Court has the benefit of hindsight and information about two additional incidents of sexual harassment by the same co-worker about which Valmont's management never knew. Valmont had no information about the latter sex-based incidents because Brown never reported them to management. What appeared to be "horseplay" after the first reported incident may have looked more like harassment to Brown's supervisors had the later incidents of harassment been reported. While same-sex sexual harassment is actionable under Title VII, see Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998), this Court finds that the conduct of Brown's co-worker involving three incidents occurring over a five-year period was not sufficiently severe or pervasive to alter the conditions of Brown's employment and create an abusive working environment in violation of Title VII. See Duncan v. General Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002) (holding manager's conduct not severe or pervasive enough to create an objectively hostile or abuse work environment).
The remaining evidence supporting a claim of a racially hostile work environment relates to three incidents: a co-worker's question whether Brown wanted barbeque sauce on his apple crisp; a co-worker's question whether a skunk was a cousin of Brown; and the incident involving the "Haitian death stick." The Haitian death stick incident is a more serious and more threatening type of harassment than the other comments. Brown has admitted that he did not personally report the incident because he knew that it had already been reported to Valmont's management by a co-worker. In a previous action filed by that co-worker, Charles Robinson, this Court considered whether Valmont acted reasonably in responding to the incident, and the Court concluded that it did. The Eighth Circuit Court of Appeals affirmed this conclusion. The Eighth Circuit Court found that:
Valmont promptly and adequately responded to and addressed each incident that Robinson reported to management. After the Haitian death stick incident, Valmont responded by immediately imposing a three-day suspension against the perpetrator and, within two weeks of the incident, requiring the entire department to attend diversity training.
Robinson, 238 F.3d 1045, 1047 (8th Cir. 2001). Accordingly, as to the most serious allegation of racial harassment, Brown cannot satisfy the fifth element of the prima facie case as a matter of law.
The Court will assume for the purposes of this motion that the remarks about the apple crisp and the skunk were intended to be racially derogatory, however, the Court finds that these remarks alone are not sufficient to state a hostile work environment based on racial discrimination. The evidence is undisputed that the apple crisp remark was not even reported by Brown to Valmont's management, and so Valmont had no opportunity to take remedial action against the co-worker for that remark. Moreover, the evidence is also undisputed that when Brown complained about the skunk comment to his supervisor, the supervisor took prompt remedial action in counseling the offending employee and informing Brown that the co-worker would apologize to him. Brown rejected the proposed apology, asking only that the comments cease. His supervisor assured him that they would stop. With regard to this incident, the Court finds that Valmont acted reasonably in responding to Brown's report, and that Brown cannot satisfy the fifth element of the prima facie case.
The Court appreciates that in regard to a hostile work environment claim, the totality of the circumstances may be considered. However, in this case the Court concludes that Brown has failed to present facts demonstrating that there is any genuine issue of material fact remaining to be decided. Brown conceded in his deposition that he did not believe that the co-worker who harassed him by pulling down his pants, kissing him, and twisting his nipples targeted him on the basis of his race. Brown Dep. at 48. With regard to the two other incidents about which Valmont's management had notice, relating to the Haitian Death Stick and the skunk comment, Valmont's management acted quickly and decisively to end the harassment. The remaining incident, involving the apple crisp, was not even reported to management. Standing alone, the apple crisp comment is clearly insufficient to state a claim of hostile work environment. There simply is no evidence that the workplace was so permeated with "discriminatory intimidation, ridicule, and insult" that was "sufficiently severe or pervasive to alter the conditions of [Brown's] employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). For all these reasons, I find that Valmont is entitled to summary judgment as a matter of law.
When a motion for summary judgment is made and supported as provided under the rules of this Court, Federal Rule of Civil Procedure 56(e) establishes that an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Brown has wholly failed in this requirement. See Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 427 (8th Cir. 1997) (summary judgment is proper when nonmoving party offered no evidence in opposition to motion). It is only because Valmont offered Brown's deposition transcript that the Court was able to analyze any facts underlying the Plaintiff's claims.
IT IS ORDERED
1) Defendant Valmont's Motion for Summary Judgment (Filing No. 18) is granted in all respects;
2) All pending motions are denied as moot; and
3) There being no just reason for delay, the Court directs that judgment be entered in favor of Defendant.