Opinion
No. 1:00CV1-D-D.
January 23, 2001.
OPINION
Presently before the court is the Defendant's motion for summary judgment. Upon due consideration, the court finds that the motion should be granted in part and denied in part.
A. Factual Background
The Plaintiff, Chris Diggs, was hired by the Defendant, Burlington Northern Santa Fe Railway Company (BNSF), in June of 1992 as a brakeman at BNSF's Amory, Mississippi, facility. He is currently still employed at BNSF's Amory facility in the same position.
Diggs alleges that, during his employment with BNSF, he has been the victim of racial harassment in violation of Title VII of the Civil Rights Act of 1964. Diggs' claim stems primarily from three incidents he alleges have occurred during his tenure with BNSF. The first incident occurred in January of 1993, when one or more of Diggs' co-workers placed an "Aunt Jemima" doll in his work area. Diggs allegedly reported this incident to supervisory personnel, who took no action. The second incident took place in June of 1998, when one of Diggs' co-workers, Joe Benedict, allegedly said the word "nigger" in Diggs' presence. Diggs complained to management at BNSF, and an investigation into the incident was launched. Although Benedict denied using the word, BNSF management concluded that Benedict had used the word. As punishment, Benedict was suspended from work for ninety days without pay, instructed to complete an Employee Assistance Program and warned that any such conduct in the future would result in his termination. The third incident occurred soon after Benedict was suspended, when employees at the Amory facility posted a notice on the bulletin board where employees could indicate if they wished to donate money to Benedict during his suspension. Diggs complained to BNSF management about the notice, and the notice was removed. After this third incident, Diggs notified BNSF that he did not wish to continue working at the Amory facility. BNSF then allowed Diggs to transfer to BNSF's Memphis, Tennessee, facility. Diggs worked at the Memphis facility until he recently voluntarily transferred back to the Amory facility where he now works.
In addition to the events noted above, Diggs also claims that he has, on two other separate occasions, heard white employees refer to African-Americans as niggers. Diggs asserts that he reported these incidents to his supervisor, who told Diggs to keep his mouth shut.
After filing a charge with the EEOC in 1998 and properly exhausting his administrative remedies, Diggs filed the current suit on December 13, 1999, alleging that, during his employment with BNSF, he has been the victim of racial harassment in violation of Title VII of the Civil Rights Act of 1964. In his complaint, Diggs also asserts claims for the negligent and intentional infliction of emotional distress.
After conducting discovery, BNSF filed the current motion for summary judgment on November 15, 2000. For the reasons set forth below, the court finds that the motion should be granted in part and denied in part.
B. Summary Judgment Standard
A party is entitled to summary judgment "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." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to go beyond the pleadings and "by. . .affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. That burden is not discharged by mere allegations or denials. Fed.R.Civ.P. 56(e).
While all legitimate factual inferences must be viewed in the light most favorable to the non-movant, Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 322. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
C. Discussion 1. Diggs' Title VII racial harassment claim
As an initial matter, the court notes that Diggs is primarily attempting to rely on three separate incidents to establish his claim of racial harassment. The first of these incidents, when an Aunt Jemima doll was allegedly placed in Diggs' work area, occurred some five years prior to the latter two events, and was never the subject of an EEOC charge. Because this first incident occurred more than 180 days prior to Diggs' 1998 EEOC charge, it cannot, except under exceptional circumstances, form the basis of a recovery under Title VII.
In order for the 1993 incident to be actionable under Title VII, Diggs must show that it was part of a "continuing violation." The continuing violation doctrine allows liability to attach for acts outside the statutory 180-day time limit provided that at least one incident occurred within the 180 day time frame. Dunn v. Mendoza, 980 F. Supp. 197, 200 (N.D.Miss. 1997). As the name suggests, however, the alleged violations must be continuing and not based on isolated incidents; further, federal courts apply the continuing violation doctrine only in exceptional circumstances. Webb v. Cardiothoracic Surgery Assocs. of North Texas, 139 F.3d 532, 537 (5th Cir. 1998); Dunn, 980 F. Supp. at 200.
In Dunn, the plaintiff attempted to establish a hostile work environment claim based on two incidents of alleged harassment by two different individuals. Dunn, 980 F. Supp. at 198-200. The two alleged incidents occurred fourteen months apart, with only one of the incidents taking place within the 180 day time frame. Id. The court in Dunn held that there was not a continuing violation based on the fact that the alleged incidents of harassment were committed by two different individuals and were fourteen months apart. Id. at 200. In so holding, the court stated:
Dunn might have established a continuing violation if the incidents, even though 14 months apart, involved action by one individual, or if the incidents, even though involving actions by at least two separate individuals, had occurred with less of a time span. Here, Dunn complains of two isolated incidents rather than conduct that was continuing in nature.Id. at 200.
Like the allegations in Dunn, the court finds that Diggs' allegations consist of isolated incidents rather than conduct that was continuing in nature. Diggs complains of separate incidents of alleged harassment that involved action by different individuals separated by a time span of some five years. As such, the continuing violation doctrine does not apply to these events and the court will not consider the 1993 incident in ruling upon BNSF's motion for summary judgment.
Turning to the merits of Diggs' claim of racial harassment in connection with the events occurring at BNSF in 1998, Title VII makes it unlawful "for an employer . . . to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The phrase "terms, conditions, or privileges of employment" has been interpreted by the courts to provide a cause of action to a person who works in a discriminatorily hostile environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 20, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).
To establish a prima facie case of hostile work environment based on race, a plaintiff must prove that:
(1) he belongs to a protected class;
(2) he was subjected to unwelcome harassment;
(3) the harassment was based on his race;
(4) the harassment affected a term, condition, or privilege of employment; and
(5) the employer knew or should have known of the harassment and failed to take prompt remedial action.McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998).
Regarding the fourth factor a plaintiff must prove in order to establish a hostile work environment, not all workplace harassment affects a term, condition or privilege of employment within the meaning of Title VII. Meritor Savs. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986). To establish that harassment affected a term or condition of employment, a plaintiff must prove that the harassment was so severe and pervasive that it altered the conditions of employment and constituted an abusive working environment. Meritor, 477 U.S. at 67; Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996). That requires a plaintiff to "prove more than a few isolated incidents of racial enmity." McCray v. DPC Indus., Inc., 942 F. Supp. 288, 293 (E.D.Tex. 1996). Instead, "there must be a steady barrage of opprobrious racial comments." McCray, 942 F. Supp. at 293. And, the mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee does not affect the conditions of employment to a sufficiently significant degree to violate Title VII; rather, a discriminatorily hostile workplace is one which is permeated with "discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21; Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971). Similarly, racial comments that are sporadic or part of casual conversation do not violate Title VII, and conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview. Harris, 510 U.S. at 21; McCray, 942 F. Supp. at 293. Courts determine whether an environment is sufficiently hostile or abusive by considering all the circumstances, including the frequency and severity of the conduct, whether it is physically threatening or humiliating or merely offensive, and whether the conduct unreasonably interferes with an employee's work performance. Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000).
Here, based upon a totality of the circumstances, the court finds that the incidents upon which Diggs bases his claim of discrimination, while not acceptable in modern society and obviously offensive to Diggs, could not lead a reasonable juror to conclude that Diggs has met the standard for proving that a hostile work environment existed at BNSF. First, the court notes that the incident involving the bulletin board posting does not rise to the level of discriminatory intimidation sufficiently severe to alter the conditions of a work environment. Eaglin v. Port Arthur Indep. Sch. Dist., No. 1:99CV109, 2000 WL 531801, at *2 (E.D.Tex. Mar. 15, 2000). There is no indication that Diggs' co-employees were motivated to post the notice based upon racial hostility. However, even assuming, arguendo, that Diggs' co-employees were motivated to post the notice based on racial hostility, BNSF took immediate and effective corrective action in having the notice removed from the bulletin board. Such remedial action renders Diggs unable to establish the fifth element of his prima facie case. See Skidmore v. Precision Printing Packaging, Inc., 188 F.3d 606, 616 (holding that, as matter of law, there was "prompt remedial action" when offending behavior ceased after employer took corrective action).
Regarding the other incidents, Diggs claims that he heard a co-employee use the word "nigger" in his presence in June of 1998, and that on two other unspecified occasions he heard two other co-employees use the same word. These actions, while not commendable, occurred over an unspecified length of time and are not so numerous and opprobrious as to constitute a hostile work environment. McCray, 942 F. Supp. at 293. Instead, the racial epithets Diggs complains of were sporadic, and "[r]acial comments that are merely part of casual conversation, are accidental, or are sporadic do not trigger Title VII's sanctions." Id. Further, Diggs' work environment was not replete with racial slurs, but rather on these isolated occasions an offensive term was used by different individuals. This behavior, while offensive, was not so severe or pervasive as to alter the conditions of Diggs' employment and create an abusive working environment as is necessary to establish a claim for racial harassment under Title VII.
In sum, the court holds that Diggs' work environment was not permeated with discriminatory insult and intimidation, and the conduct of which he complains was not so pervasive as to create an objectively hostile work environment. As such, Diggs cannot establish that the harassment affected a term, condition, or privilege of his employment, and BNSF is entitled to judgment as a matter of law on Diggs' racial harassment claim.
2. Diggs' claim for intentional infliction of emotional distress
Diggs has asserted a claim for intentional infliction of emotional distress. The statute of limitations for intentional infliction of emotional distress claims in Mississippi is one year. King v. Otasco, Inc., 861 F.2d 438, 442 (5th Cir. 1988); Watkins v. United Parcel Serv., Inc., 797 F. Supp. 1349, 1361 (S.D.Miss. 1993); Air Comfort Sys., Inc. v. Honeywell, Inc., 760 So.2d 43, 47 (Miss.Ct.App. 2000).
Of the acts of harassment that form the basis of Diggs' complaint, none took place later than August of 1998. Diggs filed his complaint on December 13, 1999, some four months after the one year limitations period ended. As such, Diggs' claim for intentional infliction of emotional distress is clearly barred, and BNSF is entitled to judgment as a matter of law on this claim.
3. Diggs' claim for negligent infliction of emotional distress
As for Diggs' claim for negligent infliction of emotional distress, BNSF has failed to show that it is entitled to judgment as a matter of law. Further, the court has the discretion, which it exercises here, to allow Diggs' claim for negligent infliction of emotional distress to proceed to trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) ("Neither do we suggest . . . that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.").
D. Conclusion
In sum, BNSF's motion for summary judgment shall be granted as to Diggs' claim under Title VII and Diggs' claim for intentional infliction of emotional distress. In all other respects, BNSF's motion shall be denied.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that
(1) the Defendant's motion for summary judgment (docket entries 26 31) is GRANTED IN PART and DENIED IN PART;
(2) the motion shall be GRANTED as to the Plaintiff's claim for racial harassment in violation of Title VII, and that claim is hereby DISMISSED;
(3) the motion shall be GRANTED as to the Plaintiff's claim for intentional infliction of emotional distress, and that claim is hereby DISMISSED; and
(4) the motion shall be DENIED in all other respects.
All memoranda, depositions, declarations and other materials considered by the court in ruling on this motion are hereby incorporated into and made a part of the record in this action.