Ronny Barrow v. Georgia Pacific Corp. ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
FILED
No. 04-10937 U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
AUGUST 12, 2005
D. C. Docket No. 01-00141-CV-BH-M THOMAS K. KAHN
CLERK
RONNY BARROW,
ROSEMARY FERGUSON,
CURTIS GREEN,
WILLIE JANUARY,
TONY LETT,
RANDY MAYE,
NATHANIEL RICHARDSON,
GEORGIA WILLIAMS,
Plaintiffs-Appellants,
versus
GEORGIA PACIFIC CORPORATION,
Defendant-Appellee.
_________________________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________________________
(August 12, 2005)
Before EDMONDSON, Chief Judge, BIRCH and COX, Circuit Judges.
PER CURIAM:
Ronny Barrow, Rosemary Ferguson, Curtis Green, Willie January, Tony
Lett, Randy Maye, Nathaniel Richardson and Georgia Williams appeal the
summary judgment entered for Georgia Pacific Corporation (“GP”) on their race
discrimination claims under 42 U.S.C. section 1981. We affirm.
Standard of Review
We review a grant of summary judgment de novo. See Evanston Ins. Co. v.
Stonewall Surplus Lines Ins. Co., 111 F.3d 852, 858 (11th Cir. 1997). Summary
judgment is appropriate when “there is no genuine issue as to any material fact and
. . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). “In making this determination, the court must view all evidence and make
all reasonable inferences in favor of the party opposing summary judgment.”
Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995).
Discussion
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The employees join in their complaint and in this appeal a variety of
individual claims of disparate treatment under section 1981. All of the employees
allege a hostile work environment based on race, but Georgia Williams does not
appeal the summary judgment against her complaint of hostile work environment.
Ronny Barrow alleges that GP did not promote him because of his race. Rosemary
Ferguson alleges that she was transferred and constructively discharged because
she is married to an African American. Georgia Williams alleges that she was
transferred because of her race. The district court severed the employees’ claims
for trial and entered separate opinions and summary judgments for GP against
each employee. Although the employees contend that they endured “shared
experiences” and that the harassment they faced was similar, they do not contend
that their claims are interdependent.
A. Hostile Work Environment Claims
A plaintiff establishes a hostile work environment claim by showing “(1)
that he belongs to a protected group; (2) that he has been subject to unwelcome
harassment; (3) that the harassment . . . [was] based on a protected characteristic of
the employee . . .; (4) that the harassment was sufficiently severe or pervasive to
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alter the terms and conditions of employment and create a discriminatorily abusive
working environment; and (5) that the employer is responsible for such
environment under either a theory of vicarious or of direct liability.” Miller v.
Kennworth of Dothan, 277 F.3d 1269, 1275 (11th Cir. 2002). The fourth element,
whether the conduct was “sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment,” is the element that often
tests the legitimacy of most harassment claims; and that test is true here. Gupta v.
Fla. Bd. Of Regents, 212 F.3d 571, 583 (11th Cir. 2000).
To establish that harassing conduct was severe or pervasive, an employee
must meet both a subjective and objective test. See Mendoza v. Borden, 195 F.3d
1238, 1246 (11th Cir. 1999). The employee must establish not only that he
subjectively perceived the environment as hostile, but that a reasonable person
would perceive the environment to be hostile and abusive. See Watkins v.
Bowden, 105 F.3d 1344, 1355-56 (11th Cir. 1997). The “mere utterance of an . . .
epithet which engenders offensive feelings in an employee . . . does not
sufficiently affect the conditions of employment.” Harris v. Forklift Sys., Inc., 114
S.Ct. 367, 370 (1993) (internal quotations and citations omitted). “Racial slurs
spoken by co-workers ha[ve] to be so ‘commonplace, overt and denigrating that
they create[] an atmosphere charged with racial hostility.’” Edwards v. Wallace
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Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995) (quoting EEOC v. Beverage
Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990). Only when the workplace is
“permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the employment and
create an abusive working environment,” is the law violated. Harris, 114 S.Ct. at
370 (internal quotations and citations omitted).
Seven of the employees, Ronny Barrow, Rosemary Ferguson, Curtis Green,
Willie January, Tony Lett, Randy Maye, and Nathaniel Richardson, contend that
the district court erred in granting summary judgment against their hostile work
environment claims. The district court concluded that each employee failed to
establish that the harassment was sufficiently severe or pervasive to alter the
working conditions. We agree.
Green’s allegations are the most substantial and consists of two categories:
racial symbols and racial slurs. About the racially offensive symbols, Green
testified that he saw displays of the rebel flag on tool boxes and hard hats, the
letters “KKK” on a bathroom wall and on a block-saw console, and a noose in
another employee’s locker. About the racial slurs, Green testified that Mike
Faulkner, a superintendent on the first shift, called Green “nigger” three times in
one year, repeatedly called him “boy,” and told him two or three times that he was
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going to kick Green’s “black ass”; that his supervisor, Roland Duke, called him a
“nigger” and told him that if he looked at “that white girl” he would “cut” him;
that the superintendent of the Maintenance department called Green “black boy”
on one occasion; and that Roy Black, another supervisor, once called him a “dumb
ass.”
GP set forth its Equal Employment Opportunity Policy (“EEOP”) in an
Employee Handbook which was distributed to all newly-hired employees. The
Policy encourages employees to report harassment to their immediate supervisor
and, if not satisfied with the response, to successively higher levels of supervision
up to the Plant Human Resources Manager or Plant Manager. The Policy
alternatively permits employees to bypass their supervisors and either 1) report
harassment directly to the Plant Human Resources Manager or Plant Manager, 2)
report to GP's corporate EEO department, or 3) make anonymous complaints
through a toll-free complaint hotline operated by an outside vendor. All this
information is posted throughout the plant, included in an annual letter to
employees, and discussed at periodic plant training sessions.
The record is undisputed that Green failed to use the procedures and
policies of GP for reporting racial harassment and that GP promptly remedied the
offenses that did come to its attention upon the filing of this litigation. Green
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alleges that he complained to his supervisor, Duke, only about the incident that
Faulkner called him a “nigger” and that Duke responded by saying “you is a
nigger.” Green testified that he understood the policy and procedure for reporting
harassment, but Green did not report Faulkner’s conduct to the Human Resources
Manager or the plant manager upon receiving this unsatisfactory response from
Duke, as provided by the harassment policy. Green also did not call the toll-free,
complaint hotline where he could have left an anonymous complaint. Although
GP never received a complaint of harassment from Green about the conduct he
complained of in this lawsuit, Green admits that, after he filed his lawsuit, GP
thoroughly investigated his complaint; and he was satisfied with the results of the
investigation. GP interviewed Duke about his racial comments, and Duke was
subsequently terminated as a result of the investigation. GP also interviewed
Faulkner, who admitted to using the word “nigger,” although not in the manner
alleged by Green. Faulkner was suspended without pay. And, the letters “KKK”
have been removed.
Although the symbols and slurs about which he complains were
discriminatory and offensive, Green has not presented evidence that the workplace
was “permeated with ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of [his] employment and
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create an abusive working environment.” Harris, 114 S.Ct. at 370. Green has
presented evidence of isolated, sporadic instances of racial harassment over his
more than fourteen years of employment with GP. The district court properly
granted summary judgment against Green’s hostile work environment claim.
Upon a review of the record, we conclude that the allegations of the other
employees are less substantial -- both in terms of frequency and offensiveness --
than those of Green. Some allege that they saw the letters “KKK” and confederate
flag decals, and suffered isolated, sporadic racial slurs. Nothing in the record
shows that this offensive conduct occurred on a continuous basis or even for a
short and intense period. Instead, the record reflects that these few comments
occurred randomly throughout the employment. The allegations do not meet the
standard of severe and pervasive harassment. See, e.g., Harris, 114 S.Ct. at 370;
Gupta, 212 F.3d at 583. The district court, therefore, properly granted summary
judgment.1
B. Barrow’s Failure to Promote Claim
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We note that in addition to failing to establish severe and pervasive harassment, most of the
plaintiffs have failed to demonstrate a basis for holding GP liable. Out of these six employees, four
never reported any kind of actionable racial discrimination to GP, although all admitted they
understood the procedure for reporting harassment. And, of the two employees that did complain,
one admitted that GP investigated his complaint and punished the person responsible for the
harassment.
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Barrow contends that he was denied several promotions to a repairman
position because of his race. To prevail on a claim of failure to promote, a
plaintiff must show (1) he is a member of a protected class; (2) he was qualified
and applied for the promotion; (3) he was rejected despite his qualifications; and
(4) other equally or less qualified employees who were not members of the
protected class were promoted. See Lee v. GTE Florida, Inc., 226 F.3d 1249,
1253 (11th Cir. 2000). The parties do not dispute that Barrow is a member of a
protected class, he applied for the promotions, and the positions were given to
white employees.
GP contends that Barrow was not qualified for the position, and it provides
many reasons for his lack of qualification, such as Barrow’s inadequate welding
ability; lack of skills in the areas of hydraulics, pneumatics, mechanical
transmission, and motor line-up; absenteeism; and failure to follow significant
safety procedures. Barrow has not presented evidence of pretext. Barrow
presented only his own unsubstantiated opinion that he was qualified for the
position. Because Barrow did not establish that he was qualified for the position,
the district court properly granted summary judgment.
C. Ferguson’s Discriminatory Transfer and Constructive Discharge Claims
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Ferguson argues that the district court erred in entering summary judgment
against two of her claims of discrimination. The first is a purported transfer claim.
The second is a claim of constructive discharge.
Ferguson contends that she was transferred based on her marriage to an
African-American. Although Ferguson raised this argument in her reply brief in
the district court, her complaint did not allege this claim, and the district court did
not address it. Even if this claim was properly before us and we assumed that she
could establish a prima facie case, Ferguson failed to rebut the legitimate, non-
discriminatory reason advanced by GP for her transfer. See Texas Dep’t of Cmty.
Affairs v. Burdine, 101 S.Ct. 1089, 1094 (1981); McDonnell Douglas Corp. v.
Green, 93 S.Ct. 1817, 1824 (1973). Ferguson held a temporary receptionist
position; when the full-time receptionist returned from medical leave and no
remaining clerical work remained for her to do, GP transferred Ferguson to a
utility position inside the plant.
Ferguson also contends that she was constructively discharged based on the
hostile work environment and racial harassment. To maintain a constructive
discharge claim based on hostile work environment, Ferguson must show that her
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working conditions were “so difficult . . . that a reasonable person would have felt
compelled to resign.” Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197,
1201 (11th Cir. 2001) (internal quotation marks and citations omitted). “The
standard for proving constructive discharge is higher than the standard for proving
a hostile work environment,” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208,
1231 (11th Cir. 2001). Ferguson, as explained, failed to meet even the standard
for a hostile work environment. She cannot, therefore, meet the higher standard
for constructive discharge.
D. Williams’s Ineffective Assistance and Discriminatory Transfer Claims
Georgia Williams, proceeding pro se, alleges that she received ineffective
assistance of counsel and that GP discriminatorily transferred her. Both claims
fail. “[A] . . . party does not have any right to a new trial in a civil suit because of
inadequate counsel, but has as its remedy a suit against the attorney for
malpractice.” Mekdeci By and Through Mekdeci v. Merrell Nat. Laboratories,
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711 F.2d 1510, 1522-23 (11th Cir. 1983) (quoting Watson v. Moss, 619 F.2d 775,
776 (8th Cir.1981)).
Williams also argues that GP transferred her from a Greened utility position
to a Dryers utility position because of her race. She alleges that GP moved a white
woman into her job and paid other employees overtime to perform her job. To
establish a prima facie case of discriminatory transfer, a plaintiff must show that
she 1) was a member of a protected class, 2) was qualified, 3) suffered an adverse
employment action, and 4) was replaced by someone outside the protected class.
Hinson v. Clinch County, Geogia Bd. of Educ., 231 F.3d 821, 828 (11th Cir.
2000). An adverse employment action results in a serious and material change in
the terms, conditions, or privileges of employment. See Davis v. Town of Lake
Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). The employee’s subjective view
of the significance and adversity of the employer’s act is not controlling; the
employment action must be materially adverse as viewed by a reasonable person
in the circumstances. See id. at 1239-40.
Williams cannot establish that she suffered an adverse employment action.
GP contends that Williams’s job duties and responsibilities were essentially the
same in her new position as they were in her previous position. Williams has not
presented admissible evidence to refute this fact. Her bald assertion that her “job
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responsibilities changed substantially” is insufficient to withstand summary
judgment. See Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). The
district court, therefore, properly granted summary judgment on Williams’s
discriminatory transfer claim.
Conclusion
For the foregoing reasons, the judgments of the district court are
AFFIRMED.
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