Opinion
Civil Action No. 01-2433-KHV
December 17, 2002.
MEMORANDUM AND ORDER
Henry F. Butler brings employment discrimination and retaliation claims against The Boeing Company ("Boeing") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the Kansas Acts Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981. On October 4, 2001, the Court entered partial summary judgment in favor of defendant on plaintiff's Title VII and KAAD claims (Counts 2, 3 and 4). See Memorandum And Order (Doc. #71). In addition, the Court limited plaintiff's Section 1981 claims (Count 1) to acts which occurred after October 21, 1997. The sole remaining issues are plaintiff's Section 1981 claims for discriminatory failure to promote and racial harassment after October 21, 1997. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #153) filed August 16, 2002 and plaintiff's Motion For Leave To File Plaintiff's Certification Of Documents Prepared With The Assistance Of Mr. Cortland Berry Pursuant To The Court's Order Dated September 25, 2002 (Doc. #194) filed November 22, 2002. As an initial matter, the Court sustains plaintiff's motion for leave to file his certification. In addition, for reasons stated below, the Court sustains defendant's motion for summary judgment.
Plaintiff originally asserted a claim under 42 U.S.C. § 1983, but he does not assert such a claim in the Pretrial Order (Doc. #149) filed August 7, 2002, and the Court deems it to be abandoned. See D. Kan. Rule 16.2(c).
I. Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
II. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff:
Plaintiff's response does not comply with D. Kan. Rule 56.1. In responding to many of defendant's fact assertions, plaintiff states that the fact is uncontroverted and goes on to state additional facts in the same paragraph. See Substitute Memorandum In Opposition To Defendant's Motion For Summary Judgment ("Plaintiff's Memorandum") (Doc. #193) filed November 12, 2002 ¶¶ 18, 23, 26, 32, 34, 36. D. Kan. Rule 56.1(b)(2) requires the party opposing summary judgment to set forth additional facts in separately numbered paragraphs, supported by references to the record, in the manner set forth by D. Kan. Rule 56.1(a). In addition, plaintiff does not provide record support for many assertions, see, e.g., id. ¶¶ 9, 21, 22, 24, 26 and 36, and in some instances his record citations do not support his assertions. See, e.g., id. ¶¶ 24 and 29. The Court ignores any assertions which are not properly supported.
Plaintiff, an African American man, has worked for defendant since 1979. Defendant first employed plaintiff as factory clerk C, a grade 2 position. In April 1989, defendant promoted him to factory clerk B, a grade 5 job. Plaintiff was not a union member, but a collective bargaining agreement covered the positions in which he worked. In order to obtain a promotion to another bargaining unit position, the collective bargaining agreement required plaintiff to submit either a category B request (for an in-line promotion to a higher-grade position within the same job family) or a category C request (for a transfer to a position outside his current job family).
A category C request automatically expired after six months. The record does not state whether or when a category B request expired.
In January 1990, defendant promoted plaintiff to first-level manager over factory dispatch. During 1992 and 1993, defendant laid off thousands of employees. As a result, on April 13, 1993 defendant demoted plaintiff back to grade 2 factory clerk C. Defendant told plaintiff that because he had previously worked in a bargaining unit position, the collective bargaining agreement required it to place him in the highest-grade position which he had supervised and which his seniority would hold. Defendant determined that plaintiff's seniority would hold a grade 2 position but not a grade 5 position. Plaintiff claims that he had enough seniority to hold a grade 5 position but he does not know the seniority level of the employees who held those positions.
The record does not explain the procedure for holding a job based on seniority.
Plaintiff states that he "pursued the management position in the first place because similarly situated employees retained high pay grade positions due to having received lateral transfers and special assignments after any reduction that occurred in the workforce." Plaintiff's Memorandum ¶ 8. Plaintiff does not explain his statement. In corrections to his deposition (p. 53), plaintiff maintains that defendant treated other employees with less seniority more favorably by giving them lateral transfers, special assignments and higher grade positions than they had held prior to obtaining their management positions. Plaintiff provides no details, however, regarding his allegation.
In 1995, defendant told plaintiff that he would have to get outside training in order to move to higher grade position. Between August 16, 1995 and January 5, 1996, plaintiff submitted category C requests for four positions at grades 5 and 6: grade 6 numerically controlled router operator, grade 6 numerically controlled drill press operator, grade 5 material man B job and grade 5 spindle shaper operator. Plaintiff did not submit any category C requests after January 5, 1996. Shortly after plaintiff's last request, on February 12, 1996, defendant promoted plaintiff to grade 5 material man B on the second shift. Before the promotion, plaintiff had worked the first shift. Plaintiff believes that based on his seniority, defendant should have allowed him to continue working the first shift. Plaintiff contends that defendant preferentially treated two white former managers, Darryl Pennick and Troy Combs, by letting them advance to grade 5 and remain on the first shift. Plaintiff provides no information regarding the seniority, experience or qualifications of Pennick and Combs or the circumstances surrounding their promotions.
The record does not reflect whether plaintiff received outside training.
Plaintiff also asserts that defendant treated the following white former managers more favorably: Martin Hinkle, Jim Schneiter, Kip Richardson, Jenny Greenlee, Randy Miller, Rodney Moore, Steve Redd, James Jones, Debbie Smith, Darryl Pennick, Troy Combs, Jeny Bruenckner, Tim Goken, Susan Storm, Dave Rogers, Pam Brown, Steve Washington and others. Plaintiff's Memorandum ¶ 27. He provides no record support, however, for this assertion. See id.
In March 1996, defendant implemented the First Level Management Selection Process ("FLMSP") for first level managers. Just before March 1996, defendant hand-picked at least six white employees to fill management positions for which plaintiff was qualified. See Plaintiff's Memorandum ¶ 17. Two months later, in May 1996, defendant combined plaintiff's material man B position with another position. As a result, plaintiff held the highest grade position in his job family and he was not eligible for a category B in-line promotion under the collective bargaining agreement.
Although the record is not clear, it appears that the collective bargaining agreement did not cover first-level management positions. Thus the FLMSP was a promotion process separate from a category B in-line promotion or a category C transfer under the collective bargaining agreement.
Plaintiff does not argue that he was more qualified than the white employees. He does not identify the white employees or provide any information regarding their qualifications.
An employee could submit a category B request to obtain an in-line promotion to a higher-grade position within the same job family. Because plaintiff held the highest grade position within his job family, he was not eligible for a category B in-line promotion.
Before August 19, 1997, plaintiff observed two white employees, Susan Storm and Brad Happy, receive training on the job. Plaintiff has no first-hand knowledge regarding their previous training or experience.
Plaintiff contends that defendant placed two white employees, Debbie Smith and Kip Richardson, in temporary management assignments which turned into permanent assignments. Plaintiff provides no information, however, regarding the job experience or training of Smith or Richardson, their positions in the company, or the dates of their temporary and/or permanent assignments. By contrast, defendant placed plaintiff and three African American employees in temporary management assignments which were sporadic and never lasted more than a week at a time. See Plaintiff's Depo. at 366-67 ll.19-9. Plaintiff provides no information regarding the job experience or training of the other three black employees, their positions in the company, or the dates of their temporary assignments. It appears that plaintiff's temporary management assignments occurred in 1996 and 1997. See id. at 206-07.
Plaintiff does not provide the dates of their promotions. Plaintiff argues generally that between January 1997 and December 1999, defendant placed white employees in temporary management jobs more frequently and for longer periods than black employees. Plaintiff's Memorandum ¶ 21. Plaintiff provides no record support for his contention. See id.
Plaintiff also contends that when defendant demoted white employees from management positions, it gave them training on the job and special assignments so that they could retain higher levels of pay. Specifically, plaintiff contends that defendant retained the following individuals at higher pay after it reduced them from management: Debbie Smith, Martin Hinkle, Jim Schnieter, Randy Miller, Kip Richardson and Jenny Greenlee. See Plaintiff's Memorandum ¶ 16. Other than the temporary management positions of Smith and Richardson, plaintiff provides no record support or details regarding his allegation. See id.
Between September 1996 and August 1997, plaintiff applied unsuccessfully for five first-level management positions. Pam Brown received the last position for which plaintiff applied. On October 14, 1997, defendant informed plaintiff that he did not receive the promotion. Plaintiff testified that he knew the outcome before he interviewed for the position because Brown had told him that defendant had already offered her the job. See id. at 18 ll.3-5, ll.17-23. Plaintiff has not applied for any first-level management positions since September 1997.
On October 20, 1997, defendant granted plaintiff's shift change request and moved him to a grade 5 materials processor on the first shift in shop 3266, reporting to Kip Richardson. The next day, on October 21, 1997, defendant sent him to work on a special assignment in the offload area under Rodney Moore. Whenever plaintiff requested time off, Moore made inappropriate comments that plaintiff was a "part-time worker." Moore also said that plaintiff was "fucking off" when he found plaintiff relaxed with his feet up on a desk after his break had ended. Moore never made such comments to white employees. During the time that plaintiff worked in offload, he observed a confederate flag displayed over a desk that he occasionally passed. The flag was approximately two inches by three inches. Plaintiff did not complain about the flag, but other employees did and the flag was removed.
Plaintiff alleges that Moore threatened to terminate him in May 1998, but he provides no record support for this allegation. See Plaintiff's Memorandum ¶ 35.
For about a year, plaintiff performed hard physical labor under Moore's supervision. His shift, pay and benefits remained the same during this time. After plaintiff completed his special assignment, defendant immediately transferred him and a white female employee to other jobs, but allowed other white employees to stay on the special assignment for at least four months with little work to do. After plaintiff left the offload area, defendant continued to give him unsolicited job assignments. Plaintiff worked a short stint in a tool crib job and a few months in a parts expediter position.
Plaintiff contends that defendant transferred him to shop 3266 as a "pretext" to move him to the offload area. Plaintiff's Memorandum ¶ 29. Plaintiff contends that when he arrived at his first shift, defendant immediately transferred him to offload allegedly because shop 3266 lacked work for him, but then immediately replaced him in shop 3266 with two white employees. Again, plaintiff provides no record support for his allegations.
Plaintiff does not argue that defendant lacked authority to move him to different jobs. Rather, he contends that moving jobs was an unfavorable working condition and defendant did not move white employees as frequently.
On August 19, 1998, defendant informed plaintiff that based on his FLMSP assessment scores, he was no longer eligible to apply for first-level management positions.
Plaintiff states that Linda Ohrt told him that because he was a former manager, he did not have to pass the assessment portion of the First Level Management Selection Process ("FLMSP") in order to be eligible to participate in the FLMSP process. See Plaintiff's Memorandum ¶ 20. Plaintiff contends that Ohrt worked in the FLMSP office, see Plaintiff's Depo. Corr. Shts. at 240, but he does not state her position therein. Plaintiff asserts that Orht made the statement in June 2000, see Plaintiff's Memorandum ¶ 20, but he provides no record support for the date. See Plaintiff's Depo. Corr. Shts. at 240. Plaintiff also contends that he was still eligible for temporary management assignments and that defendant gave such assignments to two white employees who were not eligible under FLSMP. See Plaintiff's Memorandum ¶ 20. Plaintiff's record citations, however, do not support his contentions. See id.
In November 1998, defendant adopted a formal procedure for temporary promotions into management. The new procedure required that in order to receive a temporary management position, an employee be eligible under the FLMSP.
In February 1999, defendant assigned plaintiff to shop 326B, where he remains today.
Plaintiff once heard Tim Ackers, a white manager, say "I hope they've all bathed" in reference to a group of black employees whom he was planning to transport in his car. Plaintiff's Depo. at 320 ll.2-9. Plaintiff provides no time frame for the alleged comment, nor does he allege that he worked under Ackers at any time.
Plaintiff contends that white managers typically made racial comments and slurs, see Plaintiff's Memorandum ¶ 23, but he provides record support for only the comment by Ackers. Without record support, plaintiff alleges that another manager (Scotty Little) stated, "what are we having a riot?" in reference to several African American employees who were involved in a heated discussion. Id. ¶ 23.
Plaintiff asserts that defendant denied him overtime work and states that Brad Happy, a white employee, consistently worked more overtime. Plaintiff provides no evidence regarding Happy's job duties and experience, or the amount of overtime that Happy worked. On June 4, 1997, defendant promoted Happy to materials processor, a grade 8 position. Since that time, Happy has not performed the same job as plaintiff.
Plaintiff worked 325.8 overtime hours in 1996, 443.8 overtime hours in 1997 and 245 overtime hours in 1998. Plaintiff also asserts that defendant treated Debbie Smith and Gary Mills more favorably with respect to overtime, but he provides no record support. See Plaintiff's Memorandum ¶ 24. Plaintiff argues that defendant "has the records and should compare the white employees' overtime to that of plaintiff." Id. Unfortunately for plaintiff, it is his burden to establish a factual issue in this regard. See Applied Genetics, 912 F.2d at 1241.
Plaintiff contends that defendant assigned him more duties and workload than white employees. Specifically, plaintiff states that his manager, Scotty Little, assigned plaintiff the most physically demanding job, while assigning his white counterparts less demanding jobs. See Plaintiff's Memorandum ¶ 27. Plaintiff contends that Little denied his request to rotate positions, stating that it would impede work flow. See Plaintiff's Depo. at 166-68. Also, when plaintiff and Happy both worked as material processors, plaintiff worked a heavier load. See id. at 369-72.
Plaintiff provides no time frame for these allegations. Plaintiff states that after he hurt his back, Little allowed three white employees to perform the job on a rotating basis. Plaintiff provides no record support, however, for this assertion.
Plaintiff has observed that defendant has not given him the same opportunities as his Caucasian peers. Based on his longevity with the company, plaintiff believes that he can identify a pattern in which defendant treats African-American employees differently than Caucasian employees. Because race is the only difference of which he is aware, plaintiff concludes that the difference in treatment must be motivated by race.
III. Analysis
Plaintiff asserts two claims under Section 1981: discriminatory failure to promote and racial harassment. See Pretrial Order (Doc. #149) filed August 7, 2002 at 5-7. Defendant contends that plaintiff cannot establish either claim as a matter of law.
A. Failure To Promote
Defendant asserts that plaintiff's failure to promote claim is barred because the alleged acts occurred before October 21, 1997. Plaintiff responds that defendant failed to promote him to temporary management positions after that date, but the summary judgment record does not support his assertion. See Plaintiff's Memorandum at 13-14. Thus plaintiff has failed to establish that defendant failed to promote him after October 21, 1997. Defendant is entitled to summary judgment on this claim.
Defendant states that plaintiff complains about a temporary promotion that occurred in December 1999. See Memorandum In Support Of Defendant's Motion For Summary Judgment ("Defendant's Memorandum") (Doc. #154) filed August 16, 2002. Defendant does not identify the specific promotion, however, and the Court does not discern any such promotion in the summary judgment record.
B. Hostile Work Environment
Defendant contends that plaintiff has not (1) alleged facts which constitute a hostile work environment, or (2) shown that the alleged conduct stemmed from racial animus. In order to survive summary judgment, plaintiff must allege facts which support the inference of a racially abusive work environment, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986), and support a basis for liability. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1417-18 (10th Cir. 1987). Specifically, plaintiff must show that under the totality of circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions or privileges of employment; and (2) the harassment was racial or stemmed from racial animus. See Meritor, 477 U.S. at 67. In evaluating the first prong, the Court looks to all the circumstances including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1214 (10th Cir. 1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). General harassment is not actionable. Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994). Plaintiff must "show more than a few isolated incidents of racial enmity." Id. (quotation and citation omitted). "Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments." Id.
Plaintiff contends that defendant created a racially hostile work environment by treating white employees more favorably. Specifically, plaintiff contends that defendant (1) gave on the job training to two white employees (Storm and Happy) when it had told plaintiff that he would have to get outside training; (2) allowed two white former managers (Pennick and Combs) to remain on the first shift and advance to grade 5 but forced plaintiff to move to the second shift to promote to grade 5; (3) promoted at least six white employees to management positions for which plaintiff was qualified; (4) placed two white employees (Smith and Richardson) in temporary management assignments which turned into permanent assignments, while plaintiff's temporary management assignments were sporadic and never lasted more than a week at a time; (5) assigned plaintiff to more physically demanding jobs; and (6) consistently gave another employee (Happy) more overtime work.
Construed in a light most favorable to plaintiff, the evidence falls woefully short of establishing a racially hostile work environment. The thrust of plaintiff's claim is that defendant treated similarly situated white employees more favorably. This theory fails, however, because plaintiff has not shown that he was similarly situated to the white employees in question. At most, plaintiff has shown that defendant assigned him more physically demanding jobs and less overtime than Brad Happy. While plaintiff perceives that these actions were unfair, he has not shown that they were pervasive or severe enough to alter the terms, conditions or privileges of his employment. Moreover, plaintiff has not shown that the alleged conduct was based on race. Plaintiff alleges that Moore made two inappropriate comments that plaintiff was a "part-time worker" and that plaintiff was "fucking off." In addition, on one occasion, plaintiff overheard Tim Ackers, a white manager, say "I hope they've all bathed" in reference to a group of black employees. At most, these allegations amount to isolated incidents of racial enmity. They are not sufficient to show a racially hostile work environment. See, e.g., Trujillo, 157 F.3d at 1214-15. Defendant is therefore entitled to summary judgment on plaintiff's harassment claim.
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #153) filed August 16, 2002 be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that plaintiff's Motion For Leave To File Plaintiff's Certification Of Documents Prepared With The Assistance Of Mr. Cortland Berry Pursuant To The Court's Order Dated September 25, 2002 (Doc. #194) filed November 22, 2002 be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that the Clerk fax a copy of this order to all attorneys of record.