Tabor v. Time Warner Entrtnmt ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60254
Summary Calendar
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BETTY TABOR,
Plaintiff-Appellant,
VERSUS
TIME WARNER ENTERTAINMENT COMPANY, L.P.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:98-CV-273-BN)
_________________________
November 1, 1999
Before JOLLY, SMITH, and BARKSDALE, After she was terminated, Tabor sued for
Circuit Judges. race, age, and disability discrimination
(specifically claiming wrongful termination and
JERRY E. SMITH, Circuit Judge:* hostile work environment), assault, intentional
infliction of emotional distress (“i.i.e.d.”), and
Betty Tabor appeals an adverse summary negligent hiring (and possibly retention) of
judgment in her action for employment some of her black co-workers. Her bases for
discrimination. Finding no reversible error, we these claims are that (1) she was intentionally
affirm. struck in the back of the head by a black co-
worker in July 1995, resulting in an apology
I. from the co-worker and a transfer of that
Tabor, a white female aged fifty-five, worker to a different work area; (2) she was
worked for Time Warner Entertainment subjected regularly to discussion of race
Company, L.P. (“Time Warner”), and its relations by her colleagues, some of whom
predecessor from September 25, 1989, until often expressed the opinion that the black race
she was terminated on March 27, 1997. For was burdened by its color in America and that
some of that time, she was the only white the white race treated the black race unfairly;
employee in her work area but not the only and (3) she was once slapped in the hand by a
one in her department. supervisor and told to place documents on a
different part of that supervisor’s desk.
Tabor did not allege that any racially
*
Pursuant to 5TH CIR. R. 47.5, the court has charged discussion was aimed at her
determined that this opinion should not be specifically, nor could she state for certain that
published and is not precedent except under the she had reported the hand-slapping incident.
limited circumstances set forth in 5TH CIR. R. She called the Equal Employment Opportunity
47.5.4.
Commission (“EEOC”) in April 1996 to and to be regarded as atrocious, and
discern whether the race-related discussions utterly intolerable in a civilized
occurring at work violated, in the EEOC’s community. The liability clearly does
opinion, her constitutional rights; an EEOC not extend to mere insults, indignities,
worker informed her that she had stated a threats, annoyances, petty oppression,
claim. or other trivialities . . . . Furthermore,
damages for intentional infliction of
Tabor lost her job during a reduction in emotional distress are usually not
force in March 1997. One other employee, a recoverable in mere employment
black male, was also laid off. The supervisor disputes. Only in the most unusual
who decided to terminate Tabor’s position was cases does the conduct move out of the
a fifty-year-old white female, who said the realm of an ordinary employment
reason was that Tabor had less experience than dispute into the classification of extreme
any of the other full-time employees in her and outrageous, as required for the tort.
department. This characterization is not
disputed. Brown v. Inter-City Fed. Bank for Sav.,
738 So. 2d 262, 264-65 (Miss. App. 1999)
Tabor and her supervisors agreed that she (internal citations omitted). In Brown, a
was not suited for any positions currently supervisor had harassed an employee by asking
available, but she was encouraged to apply for how old she was and when she was going to
any position for which she was qualified retire, and by commenting to her about the
should it become available. Some of the work need for a younger staff. See id. at 263.
she had done was thereafter performed by a Though this behavior was directed specifically
part-time employee, a thirty-year-old black and repeatedly at the plaintiff and did raise a
female. After Tabor’s termination, there sufficient claim of age discrimination, it yet did
remained no white employees in that section of not rise to the level of i.i.e.d.
the department.
Tabor’s case is likewise deficient. The
II. general discussions about race and whites’
We review a summary judgment de novo. propensity to discriminate against blacks may
See Webb v. Cardiothoracic Surgery Assocs., have been in poor taste, especially after Tabor
139 F.3d 532, 537 (5th Cir. 1998). With had indicated they made her uncomfortable.
regard to the charge of wrongful termination The blow she received to the back of her head,
based on race, age, and disability, and to the and the slap of her hand, were unpleasant and
charge of assault, we affirm, essentially for the inappropriate, if intentional, but do not, even
reasons stated by the district court in its taken together, rise above the level of “insult,
Opinion and Order entered on March 18, indignity, threat, annoyance, or petty
1999. oppression” to the threshold of i.i.e.d.
Because “we may . . . consider alternative
III. grounds for upholding the judgment, provided
Tabor disagrees with Time Warner and the the record supports such grounds,” see Gaia
district court as to whether the statute of Techs. Inc. v. Recycled Prods. Corp., 175
limitations in Mississippi for i.i.e.d. is one year F.3d 365, 371 (5th Cir. 1999), we by this
or three. We decline to reach that issue of reasoning affirm the summary judgment with
state law, because there is no evidence of the regard to the claim of i.i.e.d.
sort of conduct that Mississippi requires in
order to state such a claim. IV.
Regarding the summary judgment on the
[I]n order to prevail, the conduct must claim of hostile-workplace racial
have been so outrageous in character, discrimination, we first note that Tabor errs in
and so extreme in degree, as to go her contention that the court simply refused to
beyond all possible bounds of decency, consider all of her evidence of racial
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discrimination in the workplace as time-barred. discriminatory conduct; its severity;
Rather, the court found that, because Tabor whether it is physically threatening or
must have been aware of the complained-of humiliating, or a mere offensive
actions more than 180 days before she filed her utterance; and whether it unreasonably
charge with the EEOC, the court could not interferes with an employee’s work
apply the “continuing violations” doctrine and performance.
instead could consider evidence only from the
180 days before filing. Given that Tabor, long Harris v. Forklift Sys., Inc., 510 U.S. 17,
before that time, had been advised by an 21-23 (1993) (internal citations omitted). We
EEOC official that she stated a claim, this first note, in parsing that definition, that for an
conclusion is correct.1 action claiming hostile work environment,
there must first have existed discriminatory
The only behavior Tabor alleges that can be conduct. We need not address whether mere
considered to have established a hostile work discussion at the workplace of controversial
environment after December 6, 1997, is the issues related to suspect classifications can rise
race-related discussions going on among two to the level of such discrimination.2 Rather,
co-workers. The question, then, is whether we assume arguendo that the comments
such speech can be understood by itself to constitute cognizable discrimination against
have created a discriminatorily hostile working Tabor.3
environment. It cannot.
We then note, however, that the
The law is that discriminatory conversations occurred between
co-workers, not supervisors. Only two co-
[w]hen the workplace is permeated with workers were involved, and other co-workers
discriminatory intimidation, ridicule, and were as offended as Tabor was and did not
insult, that is sufficiently severe or participate. Tabor complained to a superior
pervasive to alter the conditions of the only once, the superior took at least some
victim’s employment and create an action to quell the discussions, and Tabor did
abusive working environment, Title VII not inform any superior thereafter that the
is violated. This standard . . . takes a actions taken had not successfully righted the
middle path between making actionable problem. While Tabor suspected that the
any conduct that is merely offensive and discussions were aimed in part at her, there is
requiring the conduct to cause a tangible no evidence to suggest that the speakers
psychological injury . . . . This is not, wished to hurt her feelings because she was
and by its nature cannot be, a white, and no evidence that she was ever
mathematically precise test . . . . But we
can say that whether an environment is
2
‘hostile’ or ‘abusive’ can be determined See, e.g., Weller v. Citation Oil & Gas Corp.,
only by looking at all the circumstances. 84 F.3d 191 (5th Cir. 1996); DeAngelis v. El Paso
These may include the frequency of the Mun. Police Officers Ass’n, 51 F.3d 591 (5th Cir.
1995).
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It is far from plain, however, that any
1
Tabor argues that by admitting that she was “discriminatory intimidation, ridicule, and insult”
aware of her rights before she filed the EEOC occurred. Time Warner’s policies were neutral on
complaint, the district court and Time Warner also their face; Time Warner did not monitor and limit
acknowledged that she was justified in her Tabor’s conversations any more than those of the
complaint. If that were so, any defensive employees whose speech Tabor disliked. None of
invocation of the 180-day limit would constitute an the supervisory personnel engaged in the subject
admission of the charges filed. To the contrary, the generalized discussions of race relations. Nor did
response from the EEOC only indicated her all, or even most, of the co-workers participate in
complaint was sufficient to bring a claim, not that the discussions Tabor disliked, nor did any direct
she ultimately would prevail. his commentary at her personally.
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specifically mentioned during any of these
discussionsSSor that anything negative was
ever said about her specifically. Likewise,
there is no evidence that Tabor’s work product
suffered as a result of the discussions, no
evidence that she asked to be transferred to a
non-discriminatory environment (such as the
floor below, on which, according to the
undisputed record, these discussions did not
occur), and no evidence that her life outside
the workplace suffered as a result of the
discussions.
In short, even if we assume the co-workers’
conversations to be discriminatory, they still
rise only to the level of “mere offensive
utterances” rather than severe, humiliating,
physically threatening conduct that materially
affected Tabor’s work performance. The
district court thus did not err in granting
summary judgment on the hostile work
environment claim.
V.
The district court’s opinion deals
appropriately with Tabor’s claim for negligent
hiring of the relevant co-workers. Tabor
argues that she also raised the issue of
negligent retention of those workers.
Assuming arguendo that a negligent retention
claim was adequately pleaded, the claim
cannot prevail on these facts.
Mississippi permits a claim for negligent
retention when an employer “[r]etain[s] in
employment a servant who is, or should be
known to be incompetent, habitually negligent,
or otherwise unfit.” Johnson v. Mississippi
Dep’t of Corrections, 682 So. 2d 367, 370
(Miss. 1996) (citing Eagle Motor Lines v.
Mitchell, 78 So. 2d 482 (Miss. 1955)). Tabor
claims that Time Warner negligently retained
the relevant co-workers, in that their behavior
worked a violation of her constitutional rights.
As we have said, however, the behavior did
not rise to the level of a violation of law.
AFFIRMED.
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