Albert ALLEN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee ( 1999 )

COLE, J., delivered the opinion of the court, in which KEITH, J., joined. BATCHELDER, J. (pp. 413-418), delivered a separate opinion concurring in part and dissenting in part.

COLE, Circuit Judge.

Plaintiff-Appellant Albert Allen appeals the district court’s grant of summary judgment in favor of Allen’s employer, the Michigan Department of Corrections (“MDOC”) on Allen’s Title VII claims of racial discrimination, harassment and retaliation for engaging in protected activity. For the reasons that follow, we AFFIRM in part and REVERSE in part, and REMAND to the district court for further proceedings in accordance with this opinion.

I.

Allen, who is African American, has been employed by MDOC in various capacities since 1985. Beginning in 1989, Allen complained of discriminatory conduct directed towards him by white supervisory personnel while Allen was employed on Cell Block Eight at Jackson Correctional Facility (“Block Eight”). Allen’s complaints appear to have started when the three black officers working in Block Eight were transferred out of the block in September 1989 because “[i]t was not customary for black officers to work on Cell Block 8.” Allen filed a grievance objecting to his transfer and was reassigned to Block Eight. After reassignment, Allen was the only black officer on Block Eight.

Allen claims that as a result of filing a grievance regarding the transfer, he was subjected to “numerous acts of haussment, retaliation, and discrimination on account of his race.” Allen’s allegations can be summarized as follows:

12/28/89: A white officer used bolt cutters to cut the lock on Allen’s locker. No investigation or disciplinary action took place.

1/8/90: Allen was disciplined by receiving a “counseling memorandum” for leaving a break box unsecured and a gate opened “when other white officers also had keys to the box and gate and could have been blamed for the occurrence but were not.”

3/3/90: Allen successfully passed the examination for sergeant and was placed in the “first band” of persons passing the examination. However, Allen was never promoted to sergeant despite the fact that white employees in the “second band” were promoted.

10/9/90: Allen was told by Assistant Resident Unit Manager Hilton that “he was lazy like the rest of his people and that is why they are all in prison.”

Late '■RgO/Early 1991: Resident Unit Manager Bailey was advised in writing to allow three white officers who had not passed the sergeant’s examination and had less experience and seniority than Allen to assume the duties of “acting-sergeant” when a sergeant was not present on the shift.

6/27/91: Allen bid and obtained a job on Block Eight. Allen found a note among his possessions that said “Allen IV. Pull bid — if not, you will be looking for a job or die. Nigger out.” The note was written on departmental forms, was signed “KKK” and had a picture drawn on it of a stick figure with a noose around its neck. MDOC investigated this incident by taking handwriting samples and interviewing employees, but the perpetrator was never discovered. Allen claims that MDOC should have fingerprinted the threatening note.

Late 1991: On several occasions, Allen’s notations in the Block Eight sign-in log were improperly changed to reflect that Allen took longer than the allotted thirty-minutes for lunch. Allen received “counseling memoran-da” for these incidents.

10/27/91: Allen was leaving work when told by his supervisor, Sergeant Madery, that he had to return to finish a report. Allen replied that he would finish it on his next work day. Madery then made the following comments to Allen: “I’m writing your black ass up,” “Boy, I told you to get your black ass back into the block and finish your paper work” and “Allen you can’t make sergeanc because you won’t play team ball.” As a continuation of this incident, Madery told Allen that he was transferring him to an area in which he could be watched more closely because “[njiggers can’t be trusted.” Allen reported Madery’s statements to the shift commander.

4/8/93: Allen submitted a resume to MDOC for a sergeant position and was informed that he was not on the list of eligible individuals for the position of sergeant.

In general: Allen complains that he was constantly observed and followed by Madery, Bailey and Hilton, although non-black employees were not so followed.

Allen filed additional complaints regarding these incidents with the Michigan Department of Civil Rights and the Equal Employment Opportunity Commission (“EEOC”). In 1994, Allen went on long-term disability leave because of stress; in addition, Allen now takes antidepressant medication and undergoes counseling, allegedly as a result of Ms employment conditions.

On January 23, 1996, the EEOC issued a “right to sue” letter to Allen. Thereafter, Allen filed a complaint in the United States District Court for the Eastern District of MicMgan, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., and MicMgan’s Elliott-Larsen Civil Rights Act, Mich. Comp. Laws Ann. § 37.2101 et seq. Specifically, Allen’s complaint alleged racial discrimination, harassment, and retaliation for engaging in protected activities. On May 2, 1996, the district court dismissed Allen’s state-law claims.

MDOC then filed a motion for summary judgment on Allen’s Title VII claims, which the district court granted on June 10, 1997. The district court found that Allen: (1) failed to establish a prima facie case of race discrimination because he did not show that he applied for any promotions received by non-black employees; (2) failed to establish a prima facie case of harassment because he did not show that MDOC tolerated or condoned the conduct at issue; and (3) failed to establish a prima facie case of retaliation because he did not show that the defendants were aware of his protected activity or that there was a causal connection between the protected activity and the alleged adverse employment action. Accordingly, the district court entered judgment in favor of MDOC. TMs timely appeal followed.

II.

We review de novo a district court’s grant of summary judgment. See City Management Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir.1994); Adams v. Metiva, 31 F.3d 375, 378 (6th Cir.1994). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(e). When reviewing a motion for summary judgment, the evidence, all facts, and any inferences that may be drawn from the facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)).

III.

In tMs case, Allen raises three Title VII claims: (1) racial discrimination; (2) racial harassment; and (3) retaliation for engaging in protected activities. In general, a plaintiff in a Title VII action “has the burden of proving by a preponderance of the evidence a prima facie case.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). After proving the existence of a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the defendant meets this burden, the plaintiff must then show that the defendant’s articulated reason is a pretext for discrimination. See id. We therefore start by determining whether Allen has established a prima facie ease with respect to each claim.

A. Racial Discrimination

Allen claims that MDOC’s failure to promote him to sergeant was based on racial discrimination. In support of that claim, Allen contends that non-black employees who had not passed the sergeant examination were promoted instead of Allen, who had passed the sergeant examination; in addition, Allen contends that because of his raee, he was not permitted to assume the duties of “acting sergeant,” nor was he on the 'list of employees eligible for promotion to sergeant. Allen also claims that he received disciplinary actions in the form of counseling memoranda because of his race, and that his supervisors referred to him using racial epithets and monitored him more closely than they monitored non-black employees.

In order to set forth a claim of racial discrimination, a plaintiff must show that he has suffered an adverse employment action; that is, he must establish that he has suffered a “materially adverse” change in the terms or conditions of employment because of the employer’s actions. See Kocsis v. Multi-Cere Management, Inc., 97 F.3d 876, 885 (6th Cir.1996) (citation omitted). Despite the fact that the incidents cited by Allen reflect racial animus, these incidents did not, for the most pait, result in a “materially adverse” change in Allen’s employment status or in the terms and conditions of his employment. The exception to this is Allen’s claim that MDOC failed to promote him based on his race.

For purposes of Title VII, a failure to promote is an adverse employment action. See Hale v. Cuyahoga County Welfare Dep’t, 891 F.2d 604, 606 (6th Cir.1989). In order to establish a prima facie claim of racial discrimination based on a failure to promote, a plaintiff must demonstrate that: (1) he is a member of a protected class; (2) he applied and was qualified for a promotion; (3) he was considered for and denied the promotion; and (4) other employees of similar qualifications who were not members of the protected class received promotions. See Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1095 (6th Cir.1996); Brown v. Tennessee, 693 F.2d 600, 603 (6th Cir.1982).

In the present case, although Allen, as an African American, established that he was a member of a protected class and that he was qualified for the position of sergeant, he failed to show that he was rejected in favor of another person who was not a member of his protected class. In his deposition testimony, Allen stated that he could name only one non-black person who was promoted to sergeant — Cerone—but admitted that he did not interview for the position of sergeant at the time that Cerone was promoted. Allen could not name any other individuals who were promoted to sergeant. Accordingly, Allen cannot establish a prima facie case of racial discrimination because there is no genuine issue of material fact regarding whether Allen was denied a promotion while other similarly situated non-blacks received promotions. The district court correctly granted summary judgment to MDOC on Allen’s claims of racial discrimination, and we therefore affirm that judgment.

B. Racial Harassment

Allen alleges various acts of racial harassment by MDOC. These acts include the following: Allen’s lock was cut off his locker; his notations in the log book were altered; he received unwarranted disciplinary action; he was monitored more closely than non-black employees; he was not promoted to sergeant; he was subjected to racial epithets and insults by supervisory personnel; and he received a threatening note signed by the “KKK.” The district court found that Allen failed to establish a prima facie case of racial harassment because the incidents of which he complained were insufficient to form a hostile work environment claim and there was no evidence that MDOC tolerated or condoned the behavior. We disagree on both counts.

In order to establish a hostile work environment claim, a plaintiff must show that the harassment consisted of “severe or pervasive conduct.” See Burlington Indus., Inc. v. Ellerth, — U.S. -, -, 118 S.Ct. 2257, 2265, 141 L.Ed.2d 633 (1998) (citations omitted); see also Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir.1988) (stating that a plaintiff must show “repeated slurs”). With respect to this requirement, we have stated that

all that the victim of racial harassment need show is that the alleged conduct constituted an unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee’s ability to do his or her job.

Davis, 858 F.2d at 349.

Several of Allen’s allegations clearly constitute racial harassment. First, Allen was subjected to derogatory racial insults by two of his supervisors, Madery and Hilton, on separate occasions. Hilton told Allen that “he was lazy like the rest of his people and that is why they are all in prison.” Madery stated to Allen that “I’m writing your black ass up.” Madery also commented to Allen that he was transferring him to an area in which he could be watched more closely because “[n]iggers can’t be trusted.” Bailey, another of Allen’s supervisors, allegedly was informed by his supervisors not to allow Allen to serve as acting-sergeant when a sergeant was not present on the shift, although less experienced white officers were permitted to do so. Allen also points to the fact that his supervisors-never investigated. or disciplined the white officer caught removing the lock from Allen’s locker with bolt cutters.

In addition, Allen claims that his supervisors treated him unfairly based upon his race on a continual, ongoing basis. In support of this statement, Allen claims that he, unlike white officers, was constantly observed and followed by Madery, Bailey and Hilton. Allen also claims that these supervisors monitored his work more closely than that of white officers. This allegation is supported by Madery’s comment that Allen had to be watched more closely because “[n]iggers can’t be trusted.” Allen’s other claims of ongoing harassment include the receipt of counseling memoranda from his supervisors when Allen was several minutes late returning from lunch which resulted, Allen claims, from falsifications of the log book.

Perhaps Allen’s most disturbing evidence of racial harassment is the threatening letter he received telling him to “Pull bid — If not, you will be looking for a job or die. Nigger out.” The note was signed by the “KKK” and contained a reference to lynching, a drawing of a stick figure with a noose around its neck. Although this event could not be directly attributed to Allen’s supervisors, there is a least an inference that the supervisors condoned the action as the perpetrator(s) were never found. Moreover, the supervisors themselves could not be ruled out as the perpetrators, given their racially motivated insults directed at Allen. Allen eventually went on long-term disability leave as a result of stress.

These instances of harassment were neither isolated nor sporadic; we therefore conclude that Allen was subjected to a hostile work environment because these ongoing incidents created an unreasonably abusive or offensive work-related environment which adversely affected Allen’s ability to do his job.

Our analysis does not stop here, however. We previously have stated that if a plaintiff can show that racially motivated conduct constituted a hostile work environment, he then must show that the employer “tolerated or condoned” the harassing conduct in order for the employer to be liable. See Davis, 858 F.2d at 349. In this case, the district court found that Allen did riot establish that MDOC tolerated or condoned the harassing conduct; therefore, Allen did not set forth a prima facie case of racial harassment against MDOC. However, since the time of the district court’s decision, the Supreme Court has modified the “tolerated or condoned” standard to allow the" vicarious liability of employers in harassment cases. See Burlington Indus., Inc. v. Ellerth, — U.S. -, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, — U.S. -, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Although Ellerth and Faragher dealt with claims of sexual harassment, their reasoning is equally applicable to claims of racial harassment. See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 593 (5th Cir.1998) (stating that “it appears that the Court [in Ellerth and Faragher] intended to apply these same agency principles to all vicarious liability inquiries under Title VII for acts of supervisors, including racial discrimination); Wright-Simmons v. The City of Oklahoma City, 155 F.3d 1264, 1270 (10th Cir.1998) (stating that “[a]l-though Burlington and Faragher involved sexual harassment, the principles established in those cases apply with equal force to this case of racial harassment”); Wallin v. Minnesota Dep’t of Corrections, 153 F.3d 681, 687-88 (8th Cir.1998) (applying Faragher to an harassment claim under the ADA); see also Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir.1996) (stating, pre-Ellerth and Faragher, that “[t]he elements and burden of proof are the same, regardless of the discrimination context in which the claim arises” (citation omitted)); Harrison v. Metropolitan Gov’t, 80 F.3d 1107, 1118 (6th Cir.) (stating, pre-Ellerbh and Faragher, that “the elements and burden of proof that a Title VII plaintiff must meet are the same for racially charged harassment as for sexually charged harassment”), cert. denied, — U.S. -, 117 S.Ct. 169, 136 L.Ed.2d 111 (1996).

In Ellerth and Faragher, the Court discussed the vicarious liability of an employer for the actions of a supervisory employee. The Court stated in Ellerth:

In order to accommodate the agency principles of vicarious liability for harm caus ed by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging. forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton ... also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

— U.S. at -, 118 S.Ct. at 2270 (emphasis added).

In the present case, then, MDOC may be subject to vicarious liability for Allen’s claims regarding the actions of its supervisory employees, s ibject to its ability to raise the above-mentioned affirmative defense. MDOC is entitled to the affirmative defense if Allen has failed to establish that he suffered a tangible employment action resulting from the hostile work environment. The Supreme Court defined “tangible employment action” as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at -, 118 S.Ct. at 2268. As we have stated, Allen has not established a failure-to-promote claim, nor has he set forth any other claims of tangible employment actions; accordingly, MDOC may raise the affirmative defense. Because MDOC may be vicariously Hable for the harassing actions of its supervisory employees, we reverse the district court’s grant of summary judgment in favor of MDOC on Allen’s harassment claims and remand to that court for a determination regarding MDOC’s affirmative defense to liability.

C. Retaliation

Allen claims that his supervisors re-taHated against him because he filed grievances with the EEOC and the Michigan Civil Rights Commission. In order to establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in activity protected by Title VII; (2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. See Harrison, 80 F.3d at 1118 (citing Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987)).

Here, Allen clearly engaged in protected activity by filing various grievances against MDOC. The district court found, however, that Allen failed to establish that MDOC was aware of the exercise of his civil rights. Allen now argues that the district court should have inferred that MDOC was so aware.

Allen has not specifically alleged that MDOC or his immediate superiors were aware that he had filed various grievances; however, in Allen’s deposition testimony, the following exchange took place:

Q. At that time how many civil rights complaints had you filed with either the EEOC or with the Michigan Department of Civil Rights?

A. I can’t remember at this time.

■ Q. Okay. Do you know if RUM Bailey was aware of these complaints?

A. More than likely he was.

Q. What do you base that belief on?

A. He’s the Department of Corrections’ supervisor.

Q. Okay. You say that all the black officers were removed from the cell block, is that what we were discussing before, the memo from Captain White?

A. Yes.

Q. And you were the only officer, black officer, who grieved that removal from the cell block?

A. Yes.

Q. And you were the only one that was returned?

A. Yes.

Based on this colloquy, it appears that MDOC in general, and Bailey in particular, were aware that Allen had filed grievances. At the time of Allen’s removal from Block Eight, Bailey was the Resident Unit Manager of that block. We can certainly infer that Bailey, as unit supervisor, was aware that Allen had filed a grievance upon his reinstatement to Block Eight. In addition, MDOC was the defendant in all the suits filed by Allen. It is disingenuous to argue that MDOC was not aware that Allen had filed grievances against it. We therefore believe that Allen has established that MDOC was aware of his protected activity.

Allen also must show that he suffered an adverse employment action. As previously stated, Allen’s failure-to-promote claim is the only adverse employment action alleged.

Finally, Allen must show that there was a causal connection between the filing of his civil rights lawsuits and MDOC’s failure to promote him. In order to show a causal connection, a plaintiff must produce sufficient evidence from which an inference can be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (citations omitted); Jackson v. RKO Bottlers, 743 F.2d 370, 377 (6th Cir. 1984). Although no one factor is dispositive in establishing a causal connection, evidence that the defendant treated the plaintiff differently from identically situated employees or that the adverse action was taken shortly after the plaintiffs exercise of protected rights is relevant to causation. See Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir.1987). In addition, the burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met. See Avery, 104 F.3d at 861.

Despite this easily met burden, Allen has failed to present sufficient evidence in this case to allow us to draw an inference that he was denied a promotion because he previously had filed discrimination actions. As we have- noted, Allen’s allegations regarding MDOC’s failure to promote him are vague and generalized. Allen has not presented any specific dates or incidents in which he was denied a promotion, nor does he show that he was treated differently from identically situated employees. Instead, Allen merely states that he was not promoted to sergeant while non-black employees were promoted to sergeant. Despite the repugnance of the allegations made, such concluso-ry allegations are insufficient to establish causation. Accordingly, we conclude that Allen failed to establish a prima facie ease of retaliation and, therefore, affirm the district court’s grant of summary judgment as to this issue.

IV.

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to MDOC on Allen’s claims of racial discrimination and retaliation, and REVERSE its grant of summary judgment to MDOC on Allen’s claims of racial harassment. We therefore REMAND this case to the district court for further proceedings in accordance with this opinion.