Garmon, Sr. v. Nat'l Railroad Passenger Corp. , 844 F.3d 307 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1803
GREGORY GARMON, SR.,
Plaintiff, Appellant,
v.
NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Christopher J. Trombetta, with whom Law Office of Christopher
J. Trombetta was on brief, for appellant.
Lisa Stephanian Burton, with whom Peter J. Mee, Thomas J.
McAndrew and Morgan Lewis & Bockius LLP were on brief, for
appellee.
December 16, 2016
THOMPSON, Circuit Judge. In this employment
discrimination case, appellant Gregory Garmon, Sr., an African-
American man currently employed by Amtrak, alleges that his
opportunities for overtime were reduced because of his race and
that he was subjected to a hostile work environment in violation
of 42 U.S.C. § 1981. The district court granted Amtrak's motion
for summary judgment and this appeal followed. After careful
consideration, we affirm the district court's ruling.
Background
Gregory Garmon, Sr., has been employed with Amtrak since
1997 when he first began working for the company as a signal
helper. In 2001 he was promoted to his current position as a
lineman in the Electric Traction Department where his
responsibilities include, among other things, construction,
installation, and repairs of the overhead catenary system. In
addition to linemen, Amtrak also employs high rail operators
("HROs") and foremen. HROs perform all the duties of linemen, but
also operate high rail equipment on the railroad.
From 2003 through February 2015, Amtrak organized its
Electric Traction Department into three shifts. The first shift
ran from 6:00 am to 2:00 pm, Monday through Friday, and initially
consisted of Garmon, the sole lineman, and two white co-workers,
Christopher Alves and William Butler, both HROs. In 2008, James
Thackaberry, another white co-worker, was added to the first shift
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as a foreman. Throughout his employment, Garmon admits he was
never interested in seeking a promotion to work as either a foreman
or HRO. Indeed, Garmon stated that he "had no[] desire[]" to work
as an HRO and accordingly, he currently still works as a lineman
in Amtrak's Boston/Providence cost center.1
Garmon's employment with Amtrak is governed by a
collective bargaining agreement (the "CBA") negotiated between the
International Brotherhood of Electrical Workers ("IBEW") and
Amtrak. Despite Garmon's unsubstantiated assertions to the
contrary, Rule 13 of the CBA explicitly governs the distribution
of overtime for Amtrak's IBEW employees. Rule 13 provides, in
pertinent part, that "[o]vertime [is] to be distributed in
conjunction with the duly authorized local committee of the craft
or their representative and local management." The CBA also
provides a procedure for IBEW employees to file grievances within
60 days from the date of the occurrence on which their claims are
based. Garmon never filed a grievance with the IBEW regarding his
overtime discrimination or hostile work environment claims.2
1
Amtrak divides its Electric Traction Departments by
geographical regions, called "cost centers." Electric Traction
Department employees who work out of either Boston, Massachusetts,
or Providence, Rhode Island, are organized under the same cost
center -- fittingly designated the "Boston/Providence" cost
center.
2 Garmon never filed a grievance, in spite of the fact
that Amtrak maintains an Anti-Discrimination and Anti-Harassment
Policy, as well as an Equal Employment Opportunity/Affirmative
Action Policy and provides its employees with a Dispute Resolution
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Garmon did complain to a division engineer, George Fitter, about
the distribution of overtime in 2012, but Fitter concluded that
the overtime policy was being administered correctly.3
In accordance with the CBA, Amtrak overtime needs are
first determined by Amtrak management and then communicated to a
local union representative, who eventually manages the
distribution of overtime amongst IBEW employees. Since February
2011, Michael Poole, who has served as the Assistant Division
Engineer at Amtrak, has been responsible for determining overtime
needs and seeking budgetary approval from Amtrak's senior
management for proposed overtime. Alves, Garmon's co-worker on
the first shift, is also a member of the IBEW and served as the
union representative who oversaw the overtime sign-up process from
2009 to 2013.
Office to resolve complaints and enforce its Anti-Discrimination
policies.
3 Garmon's reliance on Jenkins v. United Airlines, CIVIL
ACTION NO. 93-10092-RWZ, 1995 U.S. Dist. LEXIS 14902 (D. Mass.
July 31, 1995) for his argument that the CBA has no relevance to
his claims because "racial discrimination claims are not subject
to any grievance procedure" is misplaced. In Jenkins, the court
found that an arbitration provision in the CBA did not strip the
court of jurisdiction over the plaintiff's Title VII race
discrimination claims. The court noted that statutory civil rights
claims were not subject to arbitration under the grievance
procedures of the CBA clause. None of the Jenkins facts or issues
are applicable to Garmon's case. Nevertheless, because our ruling
here is not contingent on Garmon's failure to follow CBA grievance
procedures, his argument is inapposite.
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Before Poole was hired as the Assistant Division
Engineer, overtime needs were determined by Amtrak management and
verbally communicated to Alves, who would then create a written
sheet based on the verbal suggestions of an Amtrak supervisor.
After Poole was hired, the process was no longer verbal and an
Amtrak supervisor would create and submit written sign-up sheets
to Alves which identified the specific positions and shifts needed
for overtime by role. Alves was then responsible for overseeing
the overtime sign-up process and would return the filled-out sheets
to Amtrak management.
It is this process of determining Amtrak overtime needs
by Poole and Amtrak management that Garmon seems to take issue
with. Garmon alleges that his supervisor, Greg Brennan, instituted
an overtime plan in the fall of 2012, whereby Amtrak discriminated
in its determination of overtime needs in order to afford white
employees more overtime opportunities than African-American
employees. According to Garmon, under the previous overtime plan,
and prior to Thackaberry's new first shift assignment, he would
essentially take turns opting for overtime hours with the two other
first shift employees -- Alves and Butler. Garmon argues that
Amtrak's overtime system prior to 2012 did not distribute overtime
hours based on position or role and thus he had more opportunities
for overtime. Garmon also alleges that once Thackaberry -- a
foreman -- was added to his shift he was required to share overtime
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opportunities with Thackaberry, while Alves and Butler -- HROs --
were not required to do the same.
In addition to his complaints about overtime denials,
Garmon says that he was also subjected to a hostile work
environment. He presents a list of workplace gripes: (1) he was
denied access to the equipment canister keys; (2) he was not
sufficiently trained regarding Structural Erection Diagrams
("SEDs"); (3) he was not appropriately acknowledged by his
supervisors or other co-workers; (4) he was intimidated while at
work; and (5) he was put in difficult situations in the hopes that
he would fail. Amtrak denies all. First, it says that there was
never a change in its overtime policy. Second, Amtrak adamantly
denies that Garmon was ever subjected to a hostile work
environment.
Concluding that Garmon failed to proffer any evidence
that he suffered an adverse employment action or that he was
subjected to a hostile work environment, the district court granted
Amtrak's motion for summary judgment. Garmon subsequently filed
this timely appeal.
Discussion
"We review the district court's grant of summary
judgment de novo, viewing the facts in the light most favorable to
the non-moving party." Rodriguez-Cuervos v. Wal-Mart Stores,
Inc., 181 F.3d 15, 19 (1st Cir. 1999). Nevertheless, "[a]lthough
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we will draw all reasonable inferences in the nonmovant's favor,
we will not 'draw unreasonable inferences or credit bald
assertions, empty conclusions, rank conjecture, or vitriolic
invective.'" Pina v. Children's Place, 740 F.3d 785, 795 (1st
Cir. 2014) (quoting Cabán Hernández v. Philip Morris USA, Inc.,
486 F.3d 1, 8 (1st Cir. 2007)). "[A] party cannot successfully
oppose a motion for summary judgment by resting 'upon mere
allegations or denials of his pleading.'" Pina, 740 F.3d at 795
(quoting LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.
1993)). Rather, "a plaintiff's ability to survive summary judgment
depends on his ability to muster facts sufficient to support an
inference of discrimination." Bennett v. Saint-Gobain Corp., 507
F.3d 23, 30 (1st Cir. 2007). Therefore, "a nonmovant cannot rely
'merely upon conclusory allegations, improbable inferences, and
unsupported speculation.'" Pina, 740 F.3d at 795 (quoting Dennis
v. Osram Sylvania, Inc., 549 F.3d 851, 855–56 (1st Cir. 2008)).
"A plaintiff claiming employment discrimination based
upon race [may] assert a claim for a racially hostile work
environment, in addition to the classic claim of so-called
'disparate treatment.'" Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 767–68 (1998). Here, Garmon alleges that Amtrak
subjected him to both disparate treatment and to a hostile work
environment because of his race. With regard to both claims, the
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parties dispute whether Garmon has sufficiently made a prima facie
showing. We discuss each argument seriatim.
1. Disparate Treatment
Where, as here, there is no direct evidence of
discrimination, Garmon must rely on the three-stage burden-
shifting framework outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). Under McDonnell, Garmon bears the
initial burden of establishing a prima facie case that gives rise
to an inference of discrimination. Id.; Kosereis v. Rhode Island,
331 F.3d 207, 212 (1st Cir. 2003). To establish a prima facie
case Garmon must show by a preponderance of the evidence that:
"(1) [he is] a member of a protected class; (2) [he is] qualified
for [his] job; (3) [he] suffer[ed] an adverse employment action at
the hands of [his] employer; and (4) [there is] some evidence of
a causal connection between [his] membership in a protected class
and the adverse employment action." Bhatti v. Trs. of Bos. Univ.,
659 F.3d 64, 70 (1st Cir. 2011). "While the burden of establishing
a prima facie case is 'not onerous,' the plaintiff is still
required to prove the prima facie elements by a 'preponderance of
the evidence.'" Del Valle-Santana v. Servicios Legales de P.R.,
Inc., 804 F.3d 127, 131 (1st Cir. 2015) (quoting Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Admittedly,
"[t]he burden of showing something by a 'preponderance of the
evidence,' . . . 'simply requires the trier of fact to believe
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that the existence of a fact is more probable than its
nonexistence.'" Concrete Pipe & Prod. of California, Inc. v.
Constr. Laborers Pension Trust for S. California, 508 U.S. 602,
622 (1993) (citations omitted). However, throughout the McDonnell
burden-shifting analysis Garmon maintains the ultimate burden of
persuasion. Woodman v. Haemonetics Corp., 51 F.3d 1087, 1092 (1st
Cir. 1995).
If able to make such a showing, Garmon creates a
rebuttable presumption that Amtrak engaged in discrimination.
Amtrak may rebut this presumption by pointing to evidence of a
legitimate, non-discriminatory reason for the challenged conduct.
Id. If Amtrak is able to make such a showing, the presumption of
discrimination disappears and the burden of production again
shifts to Garmon, who must offer evidence that Amtrak's explanation
is pretextual and that discriminatory animus prompted the adverse
action. The parties dispute whether Garmon has met his initial
burden of establishing a prima facie case. Specifically, the
parties dispute whether Garmon can establish that he suffered an
adverse employment action or that a causal connection exists
between the alleged action and his race.
a) Adverse Action
The parties first dispute whether Garmon can establish
that he suffered an adverse employment action. Garmon argues that
under an alleged new overtime policy instituted by Amtrak in 2012,
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he "suffered adverse employment events through the denial of
overtime opportunities" and "the associated loss of income."
Amtrak responds that it never instituted a new overtime policy.
According to Amtrak, employees are given the opportunity to sign
up for overtime based on their respective shifts, positions, and
locations. The process, it says, affords first-shift employees
preference over first-shift overtime slots if they are qualified
for the position or role that needs to be filled. If all qualified
employees on the first shift decline an overtime opportunity, other
Electric Traction employees are then allowed to fill the overtime
slot depending on their positions, qualifications, and location.
Amtrak asserts that Garmon was never subjected to a reduction in
his overtime opportunities under any overtime policy change and
that any alleged reduction in overtime does not amount to an
adverse employment action because his overtime hours exceeded
those of two white, first-shift co-workers.
"An adverse employment action 'typically involves
discrete changes in the terms of employment, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant
change in benefits.'" Cham v. Station Operators, Inc., 685 F.3d
87, 94 (1st Cir. 2012) (quoting Morales–Vallellanes v. Potter, 605
F.3d 27, 35 (1st Cir. 2010)). While we have not explicitly
addressed whether a loss in overtime opportunities constitutes an
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adverse employment action within the § 1981 context, it seems
foreseeable that, at least in some contexts, decreased overtime
opportunities could cause a "material" change in the conditions of
a plaintiff's employment. See Gu v. Boston Police Dept., 312 F.3d
6, 14 (2002). To determine whether an action is materially
adverse, we must engage in an objective, "case-by-case inquiry,"
recognizing that "[w]ork places are rarely idyllic retreats, and
the mere fact that an employee is displeased by an employer's act
or omission does not elevate that act or omission to the level of
a materially adverse employment action." Blackie v. Maine, 75
F.3d 716, 725 (1st Cir. 1996). "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.'" Morales-Vallellanes, 605 F.3d at 35 (quoting
Marrero v. Goya of P.R., 304 F.3d 7, 23 (1st Cir. 2002)).
As for Garmon's claim that he was subjected to an adverse
employment action via a discriminatory overtime plan instituted by
Brennan in 2012, the record contains no evidence of such a
discriminatory plan or an actual decrease in Garmon's overtime
opportunities outside of his bare allegations to the contrary.
Accordingly, Garmon fails to meet his ultimate burden of persuasion
here.
A review of the record reveals that Amtrak's overtime
was determined and distributed according to the CBA, which governs
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"the rates of pay, hours, rules, and working conditions" of
Amtrak's electrical workers. Pursuant to Rule 13 of the CBA,
"overtime [is] to be distributed in conjunction with the duly
authorized local committee of the craft or their representative
and the local management. Record will be kept of overtime worked
and men called with the purpose in view of distributing the
overtime equally." To that end, Poole, a supervisor at Amtrak,
first determined Amtrak's overtime needs by considering multiple
factors including "weather conditions, overall operational
budgeting, and any special projects or details that would require
additional manpower from the Electric Traction Department."4 After
that, Poole (or someone else from Amtrak's management) would inform
Alves, IBEW's representative for overtime distribution among
members from 2009 to 2013, of Amtrak's overtime needs. Alves would
then take the needs identified by Amtrak management and distribute
overtime amongst IBEW employees in accordance with this
collaborative process. And despite Garmon's contentions to the
contrary, there is no evidence in the record that this general
overtime policy ever changed.
4 Garmon contends that Poole never took into account these
factors in determining overtime needs and argues that his
supervisor, Gregory Brennan, made suggestions to Poole as to
overtime needs in order to "preserve[] the overtime opportunities
existing on the first shift for the white workers." Garmon relies
on conclusory statements contained in his affidavit in support of
his contentions, which only mirror the allegations of his complaint
without any further factual support.
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The only evidence proffered by Garmon in support of his
contentions is his own affidavit, which in large part contains
unsupported, speculative assertions about the way overtime was
determined and administered at Amtrak. Garmon's unsupported
assertions, however, are insufficient to present a material issue
of fact meriting trial. We have repeatedly held that "[t]o the
extent that affidavits submitted in opposition to a motion for
summary judgment merely reiterate allegations made in the
complaint, without providing specific factual information made on
the basis of personal knowledge, they are insufficient." Santiago-
Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir.
2000); see also Velazquez-Garcia v. Horizon Lines of P.R., Inc.,
473 F.3d 11, 15 (1st Cir. 2007) (noting that "[n]either wishful
thinking . . . nor conclusory responses unsupported by evidence
will serve to defeat a properly focused Rule 56 motion") (quoting
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)); López-
Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000)
(finding that where an "assertion merely repeats the conclusory
allegations in the complaint," it is insufficient because
"affidavits submitted in opposition for summary judgment must be
based on the affiant's personal knowledge").
To be clear, a party's affidavit may be self-serving and
yet, still present genuine issues of fact if it contains relevant
information of which the party has first-hand knowledge. Santiago-
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Ramos, 217 F.3d at 53. Here, however, Garmon's affidavit in large
part fails to meet this basic requirement as he avers facts beyond
the scope of his personal knowledge. For instance, Garmon seems
to take issue specifically with the internal process by which
Amtrak management determined its overtime needs, including its
specific position staffing needs, before communicating those needs
to the IBEW representative for distribution. However, he lacks
any personal knowledge of Amtrak's decision making process or the
policies which governed its determination of overtime needs.
Perhaps the only fact which Garmon avers, of which he
may have personal knowledge, is his bare allegation that his
"overtime opportunities became reduced by at least one-third."5
However, Garmon proffers no evidence of an actual reduction in his
overtime opportunities outside of this assertion and his own say-
so. This is insufficient to meet his burden of establishing a
prima facie case. See Medina-Rivera v. MVM, Inc., 713 F.3d 132,
139 (1st Cir. 2013) (holding that where a defendant relied "on her
say-so" and did "not support her rhetoric with hard proof," "her
severe-work-reduction [retaliation] charge amount[ed] to no more
5 While Amtrak argues (and the record reflects) that
between 2009 and 2013 Garmon worked more overtime hours than two
of his three, white peers on the first shift, this fact does not
by itself tell us one way or another whether Garmon's opportunities
for overtime were somehow reduced. That being said, Garmon
presents no evidence in support of his claim that he suffered lost
overtime opportunities because of his race outside of his
unsupported statements.
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than conclusory speculation, which cannot block summary judgment"
or establish a prima facie case).
In support of his claim, Garmon provides no evidence of
the exact amount of overtime opportunities available to him prior
to the initiation of the alleged discriminatory policy, no evidence
of the amount of overtime shifts available to him after the alleged
policy was initiated, no evidence of an increase in overtime for
his first-shift, white co-workers (Alves and Butler), nor -- as
the district court noted -- any evidence that he ever sought and
was denied any overtime lineman opportunities that he requested.
In fact, even the most generous reading of his brief leaves
numerous questions about the nature of his alleged reduction in
overtime opportunities unanswered. Outside of Garmon's statement
that his overtime opportunities were reduced, the only evidence
concerning overtime opportunities demonstrates that despite
Garmon's contentions that he was denied overall overtime
opportunities, he admits that he chose not to work certain overtime
hours, including overtime that fell on Sundays. Thus, it would
seem that Garmon's real complaint may not be that his overtime
hours were reduced, but that he was not afforded overtime hours on
the days he preferred. And while Garmon alleges that his direct
supervisor, Brennan, initiated the alleged discriminatory overtime
plan in 2012 to give white co-workers as much overtime as possible,
Garmon again proffers no evidence in support of his contentions
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outside of his self-serving affidavit and bald assertions.
Santiago-Ramos, 217 F.3d at 53; López-Carrasquillo, 230 F.3d at
414; Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 226
(1st Cir. 2013) ("[T]he summary judgment stage is the put up or
shut up moment in litigation.") (citations omitted). While not an
onerous standard, a prima facie showing requires more than mere
bald assertions, unsupported by anything beyond personal say-so.
b) Causal Connection
Even if we were to assume that Garmon did suffer a
materially adverse action in the form of a discriminatory overtime
policy, Garmon fails to demonstrate a causal connection between
his membership in a protected class and the adverse action alleged.
Outside of the bare allegations in his complaint and his
unsupported affidavit, Garmon presents absolutely no evidence that
Amtrak decided to designate overtime needs by role, not for
legitimate business purposes, but rather, in order to discriminate
against him or other workers because of their race. To the
contrary, the record demonstrates that at least one third-shift
African-American HRO employee was able to select and work first-
shift overtime hours that he qualified for. This fact weighs
against Garmon's contention that Amtrak sought to make more first-
shift overtime available to white employees at the expense of
African-American employees. See Johnson v. Walgreen, Nos. 92-
1084, 92-1085, 1992 WL 357828, at *5 (1st Cir. Dec. 7, 1992)
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(unpublished) ("the fact that the [appellees] had hired other black
pharmacists suggests that the failure to interview or hire [the
appellant] was for objective reasons . . . . Without 'some
meaningful, fact-specific . . . causal link' upon which a
permissible inference of race-based discrimination could be
premised . . . [the appellant] has failed to make out a cognizable
§ 1981 claim.") (quoting Dartmouth Review v. Dartmouth Coll., 889
F.2d 13 (1st Cir. 1989) (overruled on other grounds by Educadores
Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir.
2004)). And Garmon lacks personal knowledge to support his
allegations that the actual work required of employees working
particular overtime hours in the aftermath of the alleged
discriminatory policy did not require certain qualifications
indicated by designation (HRO, linemen, or foremen).6 Garmon fails
6
We also note that even if Garmon were to make out a
prima facie case and sufficiently show a causal connection, his
claim would ultimately fail at the third step of the McDonnell
analysis, which requires him to provide evidence that Amtrak's
explanation for his alleged reduction in overtime opportunities is
pretextual and that discriminatory animus prompted the adverse
action. At this stage of the litigation, discovery is complete,
the record and evidence that would appear at trial set. However,
most of Garmon's proffered evidence of disparate treatment
consists of his own personal observations which led him to believe
that he was the target of illegal discrimination. But his
"subjective speculation and suspicion" that he was treated
unfairly because of his race is insufficient to establish a
disparate treatment claim or that HROs, linemen, and foremen were
all similarly-situated for purposes of overtime duties and work.
See Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 222
(1st Cir. 2007). Therefore, even if Garmon were to make a
sufficient prima facie showing of this fourth element, he would
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to meet his initial burden of establishing a prima facie case of
disparate treatment discrimination.7
2. Hostile Work Environment
Garmon also alleges that he was subjected to a hostile
work environment and as such the district court erred in rejecting
his discrimination claim. To establish a hostile work environment,
Garmon is required to "show that his work environment was so
pervaded by racial harassment as to alter the terms and conditions
of his employment." Burlington, 524 U.S. at 768. To make a prima
facie showing Garmon must demonstrate:
(1) that [he] is a member of a protected class; (2) that
[he] was subjected to unwelcome [racial] harassment; (3)
that the harassment was based upon [race]; (4) that the
harassment was sufficiently severe or pervasive so as to
alter the conditions of [his] employment and create an
abusive work environment; (5) that [racially]
objectionable conduct was both objectively and
subjectively offensive, such that a reasonable person
would find it hostile or abusive and the victim in fact
did perceive it to be so; and (6) that some basis for
employer liability has been established.
ultimately fail at the pretextual analysis later required under
McDonnell.
7 In February 2015, Amtrak decreased the total number of
shifts for the Electric Traction Department from three to two.
Throughout his responses to Amtrak's Rule 56 Statement and his
brief, Garmon appears to argue that Amtrak has changed the 2012
discriminatory overtime policy since the filing of his suit and
that the changes implemented in 2015 ended Amtrak's alleged
discriminatory practices. Because Garmon fails to provide any
evidence that a 2012 discriminatory policy was ever implemented
and does not claim that the purported 2015 change resulted in any
discriminatory actions against him, the alleged 2015 change in
Amtrak shift scheduling is inapposite.
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Douglas v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir. 2007) (citing
O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001));
cf. Prescott v. Higgins, 538 F.3d 32, 42 (1st Cir. 2008).
In support of his hostile work environment claim, Garmon
alleges that Amtrak subjected him to a variety of hostile
conditions including: (1) failing to provide him keys to the
equipment canister; (2) denying him adequate training on SEDs, and
thus, relegating him to a subordinate role in relation to less
experienced, white co-workers; (3) reducing his overtime
opportunities; (4) subjecting him to intimidation; and (5) placing
him in difficult positions in an attempt to have him make an error
and receive discipline. Garmon also argues that in 2001 Amtrak
assigned him to the night shift and only changed him back to the
day shift after he complained that he had been moved to the night
shift because of his race. Garmon also alleges that his
supervisors and other co-workers failed to appropriately
acknowledge him on multiple occasions. We need not address the
minutiae of each claim8 because even if Garmon's complaints rise
8Nor need we rest our decision on the statute of
limitations impediments which the district court pointed out in
its decision. Section 1981 discrimination claims are subject to
a four-year statute of limitations. See Buntin v. City of Bos.,
813 F.3d 401, 404–05 (1st Cir. 2015) (citing Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 382 (2004)). And hostile work
environment claims may be pursued under Section 1981 (as well as
Title VII). See Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8,
13 (1st Cir. 1999). Here, Garmon's Section 1981 discrimination
claims accrue "when the alleged unlawful act 'has a crystallized
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to the level of a hostile work environment,9 Garmon has not
demonstrated that he was subjected to any of the complained of
actions because of his race. Here, Garmon proffers no evidence
that any of the above-mentioned actions were race related outside
of his unsubstantiated assertions that the actions had to be the
product of discriminatory animus. This is insufficient to create
a material issue of fact or merit trial. See Jakobiec, 711 F.3d
at 226 ("A plaintiff's failure to produce any evidentiary proof
concerning one of the essential elements of his claim is grounds
for summary judgment.").
CONCLUSION
For the foregoing reasons, we affirm the district
court's ruling granting Amtrak's motion for summary judgment with
each party to bear their own costs.
and tangible effect on [him] and [he] has notice of both the act
and its invidious etiology.'" Buntin, 813 F.3d at 405 (quoting
Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 33 (1st
Cir. 2015)). Because Garmon filed suit on July 11, 2013, the
district court observed that all of his hostile work environment
claims would have had to have taken place on, or after, July 11,
2009 to remain viable. Because the record demonstrates that all
of the complained of acts occurred before 2008, the district court
opined that Garmon's hostile work environment claims were
precluded by the applicable four-year statute of limitations.
9 However, we remind the reader that "federal employment
discrimination laws do not establish 'a general civility code' for
the workplace." Quiles-Quiles v. Henderson, 439 F.3d 1, 7–8 (1st
Cir. 2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81 (1998)).
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