Opinion
Case No. 99-4029-DES
February 15, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion for Summary Judgment and Attorney Fees and Costs (Doc. 41) brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff alleges race discrimination in the forms of unequal pay, unequal discipline, discriminatory discharge, and harassment, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the following reasons, defendant's motion for summary judgment is granted as to plaintiff's claims of unequal pay, unequal discipline, and discriminatory discharge, and denied as to plaintiff's claim of racial harassment. Defendant's request for attorney's fees and costs is denied.
I. BACKGROUND
The following facts concerning plaintiff's claims of discrimination are either uncontroverted or, if controverted, are construed in a light most favorable to the plaintiff.
Defendant Topeka Metal Specialties ("TMS") is engaged primarily in the fabrication of steel products. TMS routinely contracts with Bossler-Brown, a temporary employment agency, to obtain temporary employees, who will be considered for a full-time position after sixty to ninety days of work at TMS. On September 11, 1996, twenty-seven year old Demetrius Frazier ("Frazier"), who is black, was assigned to work at TMS by Bossler-Brown. On November 27, 1996, TMS hired Frazier for a full-time general laborer position.
A Collective Bargaining Agreement ("CBA") between TMS and Sheet Metal Workers' International Association Local No. 77 ("Union") governs the wages for Frazier's job classification. Pursuant to the CBA, the starting wage for a Group III General Laborer was $7.00 per hour. The top of the pay scale for that position was $8.45 per hour. Frazier received a base wage of $8.95 per hour, plus $.40 per hour for working a night shift. Frazier's total starting wage was $9.35 per hour. Likewise, Dennis Teel, a white employee, and Leroy Holland, a black employee, both hired on December 1, 1996, were paid $9.35 per hour, the exact wage Frazier was paid. On January 3, 1997, Frazier became a member of the Union. On January 20, 1997, Frazier was promoted to the position of Group II Grinder. Pursuant to the CBA, the starting wage for a Group II Grinder was $8.55 per hour. Frazier was paid $9.55 per hour, plus $.60 per hour for working the night shift, for a total of $10.15 per hour.
Pursuant to the CBA, employees in new positions receive a $.15 per hour wage increase every three months upon receiving a satisfactory employee evaluation. On April 21, 1997, Frazier received a $.15 per hour wage increase. On July 21, 1997, Frazier did not receive his wage increase because he was absent forty-four out of sixty-four days during the proceeding three month period. Under the terms of the CBA, an employee does not receive pay or benefits for any time spent on a leave of absence. The CBA requires employees to file a grievance with respect to the interpretation or application of any of the terms of the CBA within ten days of the grievance. Frazier did not file a grievance concerning the denial of his July 21, 1997, pay increase.
On October 19, 1997, Frazier received a $.15 per hour wage increase, despite his twenty-two absences from work. On January 1, 1998, Frazier received a 2.5 percent contract raise. On January 18, 1998, Frazier was denied the three month wage increase due to a fourteen day absence in the preceding three month period. Frazier did not file a grievance concerning the denial of his January 18, 1998, pay increase. Frazier alleges his starting pay was less than that of white employees, and the period pay raises were improperly denied due to his race.
The CBA included a nondiscrimination policy in which TMS agreed not to discriminate against any individual with respect to the compensation, terms or conditions of employment because of such individual's race, color, religion, sex, age, national origin, or disability. Frazier alleges several incidents of discrimination. First, Frazier alleges that he was not allowed to clean his work area with an air hose, although white employees were allowed to do so. Use of the air hose was grounds for an immediate write-up, and Frazier received a three day suspension for using the air hose. Second, Frazier claims he was subjected to constant racial slurs and comments by supervisors and co-workers. Frazier never filed a grievance alleging he was discriminated against.
TMS's Policy Manual prohibits sexual harassment of fellow employees and states sexual harassment will lead to disciplinary action, including immediate termination. There are several allegations by TMS employees that Frazier harassed Leigh Stranberg ("Stranberg"), a receptionist at TMS. Melissa Lang testified that she observed Frazier talking to Stranberg at least once a week and heard Frazier tell Stranberg, who was noticeably pigeon-toed that he could "help with the knocking of her knees with his manhood." Frazier denies that this occurred. The plant superintendent, Dean Schutter ("Schutter"), received a complaint from Stranberg. On March 20, 1998, Schutter met with Frazier regarding Stranberg's complaint and told Frazier that if it happened again he would be dismissed. Frazier denies that this meeting took place. On April 8, 1998, Frazier called Stranberg on the telephone at work, and in response to Stranberg's asking what he needed, Frazier replied "some lovin." Frazier admits he said these words. On April 9, 1998, TMS fired Frazier for sexual harassment.
From July 1997 to March 1998, Frazier saw a psychiatrist, Dr. Claude Barnhill. Dr. Barnhill originally diagnosed Frazier with paranoid schizophrenia and later diagnosed antisocial personality disorder. Based on Frazier's description of his work environment, Dr. Barnhill's impression was that the men at work were horsing around and trying to include Frazier. Dr. Barnhill testified you cannot joke with schizophrenics, as anything that is considered kidding or horsing around could be taken very negatively. Dr. Barnhill believed Frazier's problems at work were derived from his inability to perceive or process what was going on around him. According to Dr. Barnhill, Frazier's preoccupation with racial issues were influenced by his paranoid schizophrenia. However, Dr. Barnhill was clear that he could not state whether Frazier actually experienced racial harassment.
II. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The substantive law identifies which facts are material. Id. at 248. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The movant need not negate the nonmovant's claim. Id. at 323. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323.
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) ("The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues."). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.
III. DISCUSSION
Frazier presents four types of race discrimination claims. First, Frazier claims he was subjected to unequal pay. Second, Frazier argues he was subjected to discriminatory discipline. Third, Frazier alleges defendant discriminated against him when it terminated his employment. Fourth, Frazier claims he was subjected to racial harassment. Defendant argues Frazier cannot support any of his claims of discrimination and defendant should be awarded attorney's fees and costs.
Frazier also raises additional allegations, that can be summarily disposed of by the court. Although Frazier's response is unclear as to whether he intends to raise these allegations, Frazier appears to allege that he was he was on the probationary period longer than white employees; he had to clean the bathroom when white employees did not have to clean it; and he was not allowed to listen to the music he liked. These allegations are merely conclusory. "A party opposing a properly asserted motion for summary judgment may not rest on mere allegations . . . but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. Frazier has not come forward with specific facts to support these allegations. Therefore, the court grants summary judgment as to these allegations.
Under Title VII, a plaintiff must prove that he or she was the victim of intentional discrimination. Equal Employment Opportunity Comm'n v. Wiltel, Inc., 81 F.3d 1508, 1513 (10th Cir. 1996) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). Frazier may carry this burden in one of two ways: "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (internal quotation marks and citation omitted).
Frazier has not presented any direct evidence of discrimination, i.e., "`evidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption.'" Id. (quoting Black's Law Dictionary 460 (6th ed. 1990)) (alterations in original). Therefore, the court must analyze his indirect evidence of discrimination under the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, a plaintiff has the initial burden of satisfying the prima facie requirements of a Title VII discrimination case. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If the plaintiff can meet this burden, the defendant must offer a "facially nondiscriminatory reason for the challenged employment action." Shorter, 188 F.3d at 1208 (citation omitted). Finally, if the defendant can offer a nondiscriminatory reason, then the burden shifts back to the plaintiff to show that defendant's proffered reason is merely pretextual. Id.
A. Unequal Pay
Frazier claims he was subjected to unequal pay, in that he was paid less than white employees doing the same work who started at the same time and he was denied periodic pay increases provided for in the CBA. Defendant argues Frazier's salary was equal to that of white employees and Frazier's periodic pay increases complied with the CBA.
To establish a prima facie case of discriminatory unequal pay, a plaintiff must show that a co-worker outside his protected class, performing similar work, was compensated at a higher rate. Amro v. Boeing Co., 232 F.3d 790, 798 (10th Cir. 2000) (citing Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1363 (10th Cir. 1997) (discussing the prima facie elements for a Title VII gender-based discriminatory pay claim)). There is no evidence to support Frazier's position that white employees were paid a higher hourly wage. The following chart reflects plaintiff's wage history:
Date Event Wage Night Total Absences
11/27/96 Hired 8.95 .40 9.35 01/01/97 Contract Raise 9.55 .60 10.15 2 01/20/97 Promoted 9.65 .60 10.25 04/21/97 3 Month Inc. 9.80 .60 10.40 1/2; 07/21/97 3 Month Inc. denied 44 10/19/97 3 Month Inc. 9.95 .60 10.55 22 1/18/98 Contract Raise 10.20 .60 10.80 01/18/98 3 Month Inc. denied 14 03/02/98 Assigned 1st Shift 10.20 — 10.20 04/09/98 Fired
Frazier's starting wage was $9.35 per hour, which included $8.95 per hour plus $.40 per hour night differential. Dennis Teel, a white employee, and Leroy Holland, a black employee, both hired on December 1, 1996, were paid $9.35 per hour, the exact wage Frazier was paid. Frazier has not presented evidence that a non-minority employee performing similar work was paid differently. Likewise, Frazier does not point to any section of the CBA to dispute that the his starting wage for his position was inappropriate.
As to Frazier's claim that he was improperly denied periodic pay increases provided for in the CBA, this allegation is also without merit. The CBA provides that "employees in new positions shall be reviewed every three months and receive an increase of $.15 per hour after receiving a satisfactory evaluation." Frazier began his employment with defendant as a General Laborer on November 27, 1997. Before three months had past, Frazier was promoted to the position of Group II Grinder on January 20, 1997, which included a $.80 raise. According to the CBA, the three month period began to run as of January 20, 1997, the date Frazier began the new position. Thus, Frazier was not entitled to a three month pay raise until April 21, 1997, when Frazier did in fact receive a $.15 per hour wage increase. Frazier's argument that he was entitled to a periodic pay raise on February 26, 1997, three months after his starting date with defendant, rather than the starting date of his new position as Group II Grinder, is without merit and goes against the plain language in the CBA. Plaintiff has not identified a non-minority employee who was treated differently as to the way the periodic wage increase was calculated.
Likewise, Frazier's argument that he was entitled to periodic wage increases on July 21, 1997, and January 18, 1998, because his job performance was satisfactory is without merit. Frazier points to the fact that defendant stipulated that his job performance was satisfactory. However, as defendant correctly notes, the CBA provides for a pay raise only upon a "satisfactory evaluation," not simply satisfactory performance. Defendant's employee evaluation forms include sections termed "progress levels," which reflect job performance, and "attendance." Both are considered in a satisfactory evaluation. Defendant argues Frazier did not receive his wage increase on July 21, 1997, due to an unsatisfactory evaluation. Frazier's evaluation was unsatisfactory because he was absent forty-four out of sixty-four days during the proceeding three month period. On October 19, 1997, Frazier received a $.15 per hour wage increase, despite his twenty-two absences from work. On January 18, 1998, Frazier was denied the three month wage increase because he received an unsatisfactory evaluation due to a fourteen day absence. Frazier has not identified a non-minority employee with similar absences who was treated differently.
Under the terms of the CBA, an employee does not receive pay or benefits for any time spent on a leave of absence. Frazier's fourty-four day absence preceding July 21, 1997, was a leave of absence. Defendant argues the $.15 pay raise was forfeited "pay or benefits," and the October 19, 1997, pay raise was actually the postponed July 21, 1997 pay raise. The court does not have before it a sufficient explanation of the way the "postponement process" operated to consider this argument in the court's analysis .
Frazier has failed to establish a prima facie case for any of his unequal pay claims. Even if Frazier established that non-minority employees were treated differently, he has not established that the defendant's explanation for its conduct is pretextual. Pretext may be established by showing either "that a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Defendant's stated reason for Frazier's starting wage, timing of raises, and lack of raises, are all based on defendant's interpretation of the CBA. The CBA provided a procedure for employees to file a grievance with respect to the interpretation or application of any of the terms of the CBA within ten days of the grievance, but Frazier never filed a grievance. Defendant's interpretation of the CBA is reasonable, and Frazier has not shown that his employer's explanation is unworthy of belief.
Frazier argues the defendant's proffered reason for denial of the periodic wage increase, i.e. absences, was pretextual because he received the increase on October 19, 1997, despite his twenty-two absences, but was denied the January 18, 1998, increase due to fourteen absences. Whether or not to grant an employee a pay raise in light of absences is within the employer's business judgment. The court "will not second guess business decisions made by employers, in the absence of some evidence of impermissible motives." Lucas v. Dover Corp., 857 F.2d 1397, 1404 (10th Cir. 1988). It is clear that Frazier did not receive the pay raise due to his absences. Further, Frazier agrees he was absent. In light of Frazier's entire wage history, the fact that plaintiff granted Frazier one pay increase, despite his absences, does not suggest that the refusal to grant a pay increase on another occasion was motivated by plaintiff's race. The timing of the pay raise/denial of pay raise, is not "so idiosyncratic or questionable that a fact finder could reasonably find that it is a pretext for illegal discrimination." Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1169 (10th Cir. 1998). Plaintiff has failed to show the defendant's proffered explanation is pretextual.
Because Frazier has not established a prima facie case of unequal pay or shown the defendant's proffered reason for his pay was pretextual, summary judgment is granted as to Frazier's unequal pay claim.
B. Unequal Discipline
Frazier claims he was subjected to disparate discipline, in that defendant suspended Frazier for three days for violation of a company safety rule. To establish a prima facie case of disparate discipline, Frazier must show (1) he is within a protected class; (2) he was disciplined by the employer; and (3) the employer imposed the discipline under circumstances giving rise to an inference of racial discrimination. Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). The third prong may be met by showing that the employer treated similarly situated non-minority employees differently. Id.
Frazier received a three day suspension when he was caught using an air hose to clean up metal shavings in his work area. Using an air hose to clean the work area was grounds for an instant write-up. Frazier argues the evidence demonstrates that discipline varied from supervisor to supervisor. Frazier testified that white employees who were caught using the air hose to clean did not receive a write-up. Frazier has not presented any evidence, aside from his own testimony, that white employees were permitted to use the air hoses to clean their work areas. In addition, plaintiff has not presented evidence that similarly situated non-minority employees were treated differently.
The evidence shows Frazier's supervisor requested that Frazier not use the air hose to clean his work area because it was a violation of a company safety rule. Plaintiff then shouted obscenities at his supervisor and continued to use the air hose. Frazier received a three day suspension for insubordination, failure to follow instructions, and violation of a safety rule, not simply for a safety rule violation. Frazier has not identified any employees who were disciplined differently under similar circumstances, i.e. employees who used the air hose, were directly told not to use the air hose, shouted obscenities at the supervisor, and continued to use the air hose despite contrary instructions from a supervisor.
Because Frazier has not identified any similarly situated employees who were treated differently, he has failed to demonstrate a prima facie case of disparate discipline. Nor has Frazier presented evidence that a discriminatory reason more likely motivated the defendant or that the proffered explanation is unworthy of credence. See Rea, 29 F.3d at 1455. Therefore, summary judgment is granted as to Frazier's disparate discipline claim. C. Discriminatory Discharge
To establish a prima facie case of discriminatory discharge, Frazier must show: (1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he was discharged; and (4) either the job was not eliminated after his discharge, Kendrick v. Penske Trans. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (citing Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999)), or similarly situated non-minority employees who violated the same rule were treated differently, Elmore v. Capstan, Inc., 58 F.3d 525, 529-30 (10th Cir. 1995) (citing Equal Employment Opportunity Comm'n v. Flasher, Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992)). It is not disputed that Frazier is black and he was discharged for violating a work rule, i.e. a violation of defendant's policy against sexual harassment. Frazier presents no evidence as to whether his position was or was not eliminated. Therefore, Frazier must present evidence that similarly situated non-minority employees were treated differently.
Since the filing of the parties' briefs, the Tenth Circuit has clarified its position that to prove discriminatory discharge the plaintiff need only show that the job was not eliminated after his discharge, not that similarly situated non-minority employees were treated differently. Kendrick, 220 F.3d at 1229. The court has reviewed the record and found no evidence that plaintiff's position was not eliminated. Therefore, the court will analyze the elements of the prima facie case, including the element of "similarly situated," as agreed to by the parties.
Frazier argues that the policy against sexual harassment was not equally enforced because management allowed white employees to make sexually demeaning and derogatory remarks and display pornographic materials. Frazier's argument ignores the fact that defendant did not discharge him for contributing to a generally sexually hostile work environment. Rather, defendant discharged Frazier because he sexually harassed a specific co-worker, Leigh Stranberg, who made a complaint against him. Frazier admits he does not know of any other female making a complaint of sexual harassment against another employee. Likewise, employee Melissa Lange testified that she did not know of anyone, other than Stranberg, making a sexual harassment complaint. Frazier has not identified any employee, who had a complaint of sexual harassment alleged against them, who was treated differently. Defendant has produced evidence which shows Frazier was treated similarly to other employees who had complaints of sexual harassment made against them. Supervisor Dennis Snead was forced to resign in 1994 when a female employee complained about Snead's inappropriate remarks. In 1998, employees Danny Smith and Kevin Allen started inappropriate rumors about a female employee. In response, management warned Smith and Allen that if their inappropriate conduct happened again they would be terminated, however, Smith and Allen did not continue their conduct and termination was unnecessary.
Under these facts, the court finds Frazier has not identified a similarly situated non-minority employee who was treated differently. Frazier has failed to establish a prima facie case of discriminatory discharge and summary judgment is appropriate. However, even if Frazier had demonstrated a prima facie case, his evidence is insufficient on the issue of pretext.
Pretext may be established by showing either "that a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Rea, 29 F.3d at 1455. Frazier appears to argue that the employer's stated reason was pretextual because he did not make any sexually derogatory comments to Stranberg and defendant has failed to come forward with admissible evidence to prove he made the comments. Frazier's challenge to the veracity of the allegations against him "avoids the relevant inquiry — i.e. whether [defendant] believed them, and acted in good faith upon that belief in terminating him." Okoye v. Medicalodge North, 45 F. Supp.2d 1118, 1122-23 (D.Kan. 1999) ("Even if Ms. Mark falsely accused plaintiff of misconduct . . . this fact does not address the relevant inquiry here — whether Cindy Frakes, the sole decision maker, believed the allegations and acted in good faith upon that belief in terminating plaintiff's employment.") (citing Jacobs v. Delta Air Lines, Inc. 156 F.3d 1243, 1998 WL 514620, at *3 (10th Cir. Aug. 13, 1998)). See also Wood v. City of Topeka, 90 F. Supp.2d 1173, 1184 (D.Kan. 2000) (holding the employer's reliance on complaints of sexual harassment as the basis for the employee's discharge is not pretextual, provided the employer believed the complaints).
The evidence demonstrates that plant superintendent, Dean Schutter, received a complaint from Stranberg. While it is disputed whether Schutter discussed the complaint with Frazier and gave him a warning, Frazier admits he called Stranberg on the telephone at work, and in response to Stranberg's asking what he needed, Frazier replied "some lovin." There is no evidence that Dean Schutter, the decision maker, did not believe Leigh Stanberg's allegations of sexual harassment or that he did not act in good faith. Frazier has not come forward with sufficient evidence from which a reasonable fact finder could infer that the defendant's proffered reason for discharge is unworthy of belief or was motivated by Frazier's race.
Frazier argues that he has established pretext because Dr. Barnhill was contacted by defendant prior to his discharge. As evidenced by Frazier's medical record, Dr. Barnhill was contacted by someone at TMS on March 13, 1998. Dr. Barnhill testified that he did not know the name of the person, but was under the impression that the person was an owner of TMS. The person told Dr. Barnhill that TMS wanted to fire Frazier because it thought Frazier was a danger to other employees. However, this conversation does not demonstrate that a discriminatory reason more likely motivated defendant's decision to discharge Frazier. This conversation shows only that defendant was concerned about its employees' safety and the extent to which Frazier posed a danger to the employees. There is nothing in the medical record or Dr. Barnhill's testimony which would suggest that the desire to fire Frazier was related to his race. This evidence is insufficient to establish pretext.
Frazier has not demonstrated a prima facie case of discriminatory discharge, nor has he shown that the defendant's stated reason for his discharge was pretextual. Therefore, summary judgment is granted as to plaintiff's discriminatory discharge claim.
D. Racially Hostile Work Environment
Title VII prohibits racial harassment in the workplace. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987). Frazier claims that the racial harassment he experienced created a hostile work environment. In order to survive summary judgment, a plaintiff must provide evidence which shows that, "under the totality of the circumstances, (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was racial or stemmed from racial animus." Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998) (citing Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994)). To determine whether the harassment was sufficiently severe or pervasive, the court must consider all the circumstances, including such things as the "frequency of the discriminating 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." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). In order to be actionable, a racially objectionable environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Id. at 787.
Frazier's hostile work environment claim is supported primarily by his own testimony that he was consistently plagued by racially derogatory comments from those he worked with. Frazier testified as to the following actions by supervisors:
(1) Richard Dell called Frazier "nigger," "boy" and "punk"; and
(2) Richard Dell, Fred Pinkley and Dean Schutter made racially derogatory slurs, jokes and comments.
Frazier also testified to the following actions by his co-workers:
(1) Mark Howerton constantly called Frazier "oreo," "boy," "nigger," "black ass," and "black mother fucker"; and
(2) Frazier was not allowed to go to the work area because employees were discussing the grand dragon of the Ku Klux Klan.
Plaintiff also offers the following testimony by his coworkers in support of his allegations:
• Mike Spurgeon testified he probably heard the word "nigger" used at work;
(2) Mike Spurgeon testified that he was not present when Frazier was called a "black son of a bitch";
(3) Raymond Roberts testified that Jim Chance used the term "nigger" and told "nigger jokes" in his presence;
(4) Raymond Roberts testified that his coworkers on the first shift called him "token" because he was the only black man on the shift; and
(5) Raymond Roberts testified that other employees used racially derogatory language.
Although the plaintiff's testimony is vague, the court has read the available transcript and determined that plaintiff has met the frequency and severity requirements for a hostile work environment claim. His testimony is supported by complaints he made to his physician, whom he began seeing as a result of the racially hostile work environment. Whether these complaints were valid or the product of Frazier's mental condition and his inability to perceive events around him is a credibility issue to be determined by the jury, not an issue for summary judgment.
An employer is not liable for discriminatory harassment by an employee's peers unless its management level employees, agents, or supervisory employees knew or should have known of the harassment and failed to take prompt and effective remedial measures. See Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 577 (10th Cir. 1990) (citing Equal Employment Opportunity Comm'n v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989)). Essentially, an employer is not liable for racial harassment by a co-worker unless the employer was negligent. Id. (citing Hicks, 833 F.2d at 1418).
Frazier testified that his supervisors heard the co-worker's racial comments and took no action to stop it. Frazier complained to supervisor Greg Steinbock about the grand dragon incident. He also complained to a first shift union steward about racially derogatory language. This evidence, while weak, is sufficient to establish that the employer knew of the racial harassment and failed to remedy the harassment for the purposes of summary judgment. Frazier has sufficiently demonstrated that the racial harassment he encountered was severe and pervasive, and that his employer knew of the racial harassment. Accordingly, summary judgment is denied as to Frazier's racial harassment claim.
E. Attorney's Fees and Costs
Defendant requests that the court award attorney's fees and costs. "[A] district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978). The court does not find the plaintiff's action frivolous, unreasonable, or without foundation.
V. CONCLUSION
Plaintiff has failed to demonstrate a prima facie case of discriminatory discharge, unequal pay, or discriminatory discipline. Likewise, plaintiff failed to demonstrate that defendant's explanation of its conduct was pretextual. However, plaintiff has established a claim of racial harassment. Accordingly, summary judgment is granted as to plaintiff's claims of discriminatory discharge, unequal pay, and discriminatory discipline, and denied as to plaintiff's claim of racial harassment. Defendant's request for attorney's fees and costs is denied.
IT IS THEREFORE BY THE COURT ORDERED that defendant's Motion for Summary Judgment and Attorney Fees and Costs (Doc. 41) is granted in part and denied in part. Defendant's motion for summary judgment is denied as to plaintiff's claim of racial harassment. Defendant's motion for summary judgment is granted as to plaintiff's remaining claims of discrimination. Defendant's request for attorney's fees and costs is denied.