Lynette Barrett v. Whirlpool Corporation ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0065p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LYNETTE BARRETT; W. T. MELTON; TREVA
Plaintiffs-Appellants, --
NICKENS,
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No. 08-5307
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EUGENE JULIEN; LARRY SCHUSTER; DIANA
Plaintiffs, -
SIMMONS,
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v.
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Defendant-Appellee. -
WHIRLPOOL CORPORATION,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 06-00017—Aleta Arthur Trauger, District Judge.
Argued: December 3, 2008
Decided and Filed: February 23, 2009
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Before: COLE and COOK, Circuit Judges; EDMUNDS, District Judge.
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COUNSEL
ARGUED: David W. Sanford, SANFORD, WITTELS & HEISLER, Washington, D.C.,
for Appellants. Adam C. Wit, LITTLER MENDELSON, Chicago, Illinois, for Appellee.
Elizabeth Ellen Theran, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF: David W.
Sanford, SANFORD, WITTELS & HEISLER, Washington, D.C., Kevin H. Sharp,
DRESCHER & SHARP, Nashville, Tennessee, for Appellants. Adam C. Wit, Keith C.
Hult, LITTLER MENDELSON, Chicago, Illinois, Jeffrey S. Hiller, LITTLER
MENDELSON, Columbus, Ohio, for Appellee. Elizabeth Ellen Theran, UNITED
STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Amicus Curiae.
_________________
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 2
OPINION
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COLE, Circuit Judge. Lynette Barrett, W. T. Melton, and Treva Nickens
(collectively, “Plaintiffs”), employees or former employees of Whirlpool Corporation
(“Whirlpool”), appeal a grant of summary judgment in favor of Whirlpool in this race-
discrimination and retaliation case. Plaintiffs allege that they were discriminated against
on the basis of their friendships with and advocacy for certain African-American co-
workers in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. (“Title VII”), and 42 U.S.C. § 1981 (“§ 1981”). The district court found that
Plaintiffs failed to establish the requisite degree of association with their African-
American co-workers to support their claim of discrimination based on such association
and that, in any case, Plaintiffs were not subjected to a hostile work environment or
retaliation. For the reasons set forth below, we AFFIRM the district court’s grant of
summary judgment against Plaintiffs Barrett and Melton and against Nickens on her
retaliation claim, REVERSE the district court’s grant of summary judgment against
Nickens on her hostile work environment claim, and REMAND for trial on that claim.
I. BACKGROUND
Whirlpool’s LaVergne, Tennessee Division manufactures built-in refrigerators,
air conditioners, dehumidifiers, and related products. At any given time, it employs up
to 2100 employees, approximately twenty percent of whom are African-American.
A. Plaintiff Lynette Barrett
Barrett, who is Caucasian, has been employed by Whirlpool since 1984 and is
currently a technician in the built-in refrigerator department. She has worked in a
number of different positions and departments within Whirlpool.
Barrett alleges that in approximately 2001 she heard Dale Travis, a co-worker
with an alleged history of racially harassing behavior, make three (or possibly four)
racist comments. On one occasion, while Barrett was conversing with an African-
American friend, Helen Lust, Travis said about Lust, within hearing distance of
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 3
supervisor Bill Westberry, “the nigger bitch will get what’s coming to her.” (Joint
Appendix (“JA”) 824-25.) When Barrett told Travis she did not approve of his
language, he called her a “bitch” and told her to “mind [her] own business.” (JA 825-
26.) Barrett complained to Westberry, who told her to “leave it alone.” (JA 828.) On
a second occasion, after Barrett had helped an African-American co-worker, Lisa
Majors, obtain a promotion, Travis said to Barrett and Majors’s sister, “[w]ell, she’ll be
an uppity nigger now.” (JA 830.) Barrett reported this comment to Beverly Gordon, her
supervisor, who said she “would take care of it,” but Barrett does not know if Gordon
took any action. (JA 832.) On a third occasion, while in Westberry’s office, Barrett
overhead Travis tell a racist joke, and Westberry “snickered” at the joke. On another
occasion (which may or may not have involved racist comments), Barrett told Travis she
did not like his language, and he responded that he had a nine-millimeter gun. As a
result, Barrett feared that Travis might harm her for reporting his other racist remarks,
though she did not mention the nine-millimeter comment to a supervisor. Travis was
terminated in 2003 for excessive absenteeism.
Other than these several incidents involving Travis, Barrett testified that she
never heard any racial slurs used at Whirlpool, although Barrett also was present in a
group of employees when, around the time of Martin Luther King, Jr. Day, a white
employee named Robert Stanford suggested that there should be a “James Earl Ray
Day.” Barrett believes she informed her then-supervisor, Mark McCool, of this
comment and that McCool said he would take care of it. Barrett does not know what
action he took, if any, but she never heard Stanford make another racist comment.
Barrett saw two instances of racist graffiti in the restroom at Whirlpool—a large
triangle composed of the word “nigger,” and the letters “KKK.” Another employee
reported the graffiti, and it was painted over within a couple of days. Barrett also saw
and reported racist graffiti consisting of the letters “KKK” and a picture of a noose on
a maintenance cart used by an African-American employee. Barrett reported the graffiti
to her supervisor, Buck Bingham, who is African-American. Whirlpool made a report
of the event and repainted the cart.
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 4
Barrett alleges that a manager in the Human Resources Training Department,
Wendy Beam, acted coldly toward Majors, refusing to make eye contact with or sit next
to her. According to Barrett, Beam disapproved of Barrett’s friendship with Majors and,
as a consequence, directed desirable work away from Barrett. Barrett complained to
another supervisor about Beam’s coldness toward Majors, although Barrett apparently
never complained about the alleged redirection of work. Majors did not share Barrett’s
perceptions about Beam, stating that she never felt “shunned” by Beam and often spoke
with and sat next to Beam in meetings.
Barrett was friendly toward black employees on the assembly line, and she
alleges that, as a result, four white employees “gave [her] the cold shoulder,” “snubbed”
her, and would not talk to her. (JA 840-43.) One white employee, a non-supervisory
“group leader” named Mark Watwood, allegedly would “snirl his nose and turn and walk
off” when Barrett said “hello” to the black employees in the area. (JA 841.) He would
also pretend not to hear Barrett’s work-related requests for materials. According to
Barrett, Watwood and three other white employees on the line would turn their backs on
her when she spoke to a black employee but would smile at her when she was speaking
to a white employee. This negative reaction came from only a few white employees, and
no one explicitly said anything to Barrett about her friendliness toward black employees.
Barrett agreed that the “vast majority” of white employees “had no problem” with her
relationships with black employees. (JA 842.)
B. Plaintiff W. T. Melton
Melton, a Caucasian employee, began working at Whirlpool in 1995. She had
two surgeries in 2005 that interfered with her ability to work, and her doctor restricted
her from doing various types of work. Whirlpool eventually placed her on physical
layoff, and her employment ended in late 2006 or early 2007.
Melton alleges that she heard Travis call African-American employees “niggers,”
and according to a response to an interrogatory, Travis said to her “[m]ay the Klan be
with you” approximately once a week from 1995 to 2003. (JA 991.) However, in her
later deposition, Melton did not assert that Travis uttered this phrase directly to her,
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 5
much less that he had said it to her regularly over an eight-year period. On one occasion
when Travis used this phrase, Melton complained to a supervisor, Steven Knight. In
approximately 2003, Travis said to Melton and another employee, “[m]issed you ladies
at the Klan meeting last night.” (JA 652.) Melton was told by a black co-worker that
a supervisor named Charlie Fisher used the term “nigger lover,” though Melton never
heard a supervisor use this term. She also was told that a group leader who treated her
badly had used the term “nigger lover.” Melton alleges that “lots of people” used the
term “nigger lover,” although she did not name any other specific people or state that she
had heard the term firsthand. (JA 970.) Melton said she did not complain about the use
of this term because “it was common knowledge that it did no good and I needed my
job.” (JA 650.) She said that harassment was “pervasive all over the plant.” (JA 650.)
She overheard a manager, a union representative, and several other employees use the
word “nigger,” with one employee using it on a daily basis. She heard Caucasian
employees joke about having a “watermelon day” and a “James Earl Ray Day.” In about
2005, a Caucasian employee asked Melton how she could “stand the smell” of an
African-American woman with whom Melton regularly ate lunch. (JA 653-54.)
Melton claims that after she returned from her surgeries, she was treated worse
than other employees who had returned from medical leave. She was not allowed to
return to the office job she had had before the surgeries but, rather, was placed in a
physically demanding, lower-paying job. She believes that Fred Contreras, an employee
in the Human Resources department, was responsible for this decision, and she thinks
he based his decision on the fact that she “was always defending someone it seemed.”
(JA 939-41.) Melton states that the people she defended were usually of a different race
or did not speak English well. She testified, without elaboration, “[t]he ones that
defended the black people . . . didn’t get by with anything . . . [t]hey had to stay on their
toes.” (JA 972.) Melton claims she suffered “harassment” for being friendly with black
co-workers: in 2005 and 2006, white employees would “walk around” her in the
hallway or give her strange looks because she was being friendly to African-American
co-workers. On several occasions, Melton helped black employees go to the medical
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 6
office when she perceived that they needed medical attention; on two of these occasions,
the employees’ supervisors expressed anger with Melton as a result of her actions.
C. Treva Nickens
Nickens, a Caucasian woman, has been employed at Whirlpool since 1983. She
has primarily worked within the trucking department in a position that involves
packaging materials in cardboard. Nickens has been on medical leave since October
2005.
Nickens testified that, in 2004 and 2005, union official Billy White would “sit
and listen to racial slurs from other employees.” (JA 701.) In the same time period,
another employee, Robert Quiggle, who was often with White, told Nickens two racist
jokes and generally used racist slurs including the word “nigger.” Nickens did not
complain to a manager. From approximately 2002 to 2005, Nickens heard an employee
named Lulu Roper use the word “nigger” about once a week, but Nickens did not
complain to a supervisor. Nickens heard that Quiggle and Roper were later terminated
for making racist comments.
Around 2001 or 2002, Nickens would occasionally fill in for absent employees
who worked in the same area as Travis, and every day that she worked there, she heard
Travis use the word “nigger.” Nickens complained to Travis’s supervisor, Westberry,
but he would just laugh at her. Nickens alleges that, following his termination, Travis
caused two of his friends at Whirlpool, Rob Spivey, Nickens’s group leader, and Barry
Hibdon, her co-worker, to relay a comment to Nickens implying that Travis would
physically assault her for reporting his racially offensive language. As a result, Nickens
feared that Travis would harm her as she exited the plant. She relayed her concerns to
her supervisor, Bingham, and to the union’s grievance coordinator, who then
accompanied her to the Human Resources department to report the incident. Although
Human Resources assured Nickens that it would address the incident, she is not aware
of any action being taken.
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 7
Nickens testified that Spivey, who is African-American, and Hibdon would
harass her for “hang[ing] around with blacks,” particularly for spending time with her
friend and co-worker Henry Beasley. (JA 717.) Nickens alleges that Spivey made a
comment that “he didn’t think it was right[,] Henry hanging around with white women.”
(JA 885.) She stated that a white supervisor, Knight, would tell her that she “need[ed]
to stay with [her] own kind and [Beasley] need[ed] to stay with his own kind.” (JA 718.)
Nickens alleges that a co-worker, Margaret Goins, told Nickens that she did not “date
niggers” and was “not a nigger lover.” (JA 718.) Goins and another co-worker, Linda
Cregger, told Nickens on approximately a weekly basis that she “needed to stay with her
own kind and Henry needs to do the same.” (JA 720-21.) Nickens complained to
Knight “on a daily - - weekly, daily basis” about these comments, but Knight refused to
do anything, explaining that he was a “mean person.” (JA 720.) Eventually, to avoid
the comments, Nickens stopped going to the area where Goins and Cregger worked.
Nickens also stated that she felt that Bingham harassed her because of her relationships
with black employees. Bingham claimed that Nickens never reported to him, or, to his
knowledge, anyone else, that she had heard any racist comments or experienced any
race-related discrimination.
Nickens alleges that when she applied for a higher-paying “Quality Tech”
position that was posted in early 2005, Knight, Beasley’s supervisor, told her that she
“would never get the job” and that he would take down the posting to prevent her from
obtaining it. (JA 729-31.) Nickens suspected that Knight’s objection to her obtaining
the job was due to her relationship with Beasley, and when she confronted him with her
theory, he did not deny it but only responded, “[t]here won’t be another job posted.” (JA
729.) Nickens complained to her co-workers about this incident but did not report it to
any other supervisor. Similarly, Nickens believed that Spivey, her group leader, had
taken down a job posting on which she had listed her name because he wanted to
“outcast[]” her for associating with Beasley. (JA 872, 885). Nickens claims that
eventually the job was re-posted because she complained to the union.
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 8
D. District court opinion
The district court granted summary judgment against all three Plaintiffs. Barrett
v. Whirlpool Corp., 543 F. Supp. 2d 812 (M.D. Tenn. 2008). As to Barrett, the court
held that her Title VII hostile work environment claim was time-barred because no
alleged incident of discrimination took place within the 300 days prior to her EEOC
filing, and one event taking place after her EEOC filing did not revive the prior
incidents. Likewise, her Title VII retaliation claim was barred because the only specific
incidents she alleged fell outside the limitations period. The district court found that her
§ 1981 claim was not time-barred and, reaching the merits of that claim, found that
Barrett had not shown a sufficient level of association with black co-workers to sustain
an associational discrimination claim; rather, she had merely shown that she was friendly
with some African-American co-workers while at work. The court did not reach the
question of whether Barrett had made a sufficient showing of advocacy on behalf of her
African-American colleagues to support a third-party discrimination claim because it
found that the harassment Barrett alleged was not “severe and pervasive . . . under any
circumstances,” but instead was sporadic, isolated, and not directed at Barrett. Id. at
826.
As to Melton, the court found that she also failed to show association with black
employees that rose above the level of workplace collegiality. Again, the court did not
reach the question of advocacy because it found that the harassment alleged by Melton
did not create a sufficiently hostile work environment. The court found that Melton
could not establish a prima facie case of retaliation because she provided no evidence
of a causal connection between her acts opposing discrimination and her alleged adverse
treatment by Whirlpool.
As to Nickens, the court similarly found insufficient evidence of association,
insufficiently “severe and pervasive” incidents of alleged harassment, and a lack of
causation with respect to her retaliation claim.
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 9
II. ANALYSIS
A. Hostile work environment and retaliation standards
1. Standard of review
We review a grant of summary judgment de novo. Miller v. Admin. Office of the
Courts, 448 F.3d 887, 893 (6th Cir. 2006). The moving party is entitled to summary
judgment “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court views factual evidence in the
light most favorable to the non-moving party and draws all reasonable inferences in that
party’s favor. See Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.
2006). Summary judgment is not appropriate if the evidence would permit a reasonable
jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 251-52.
2. Statute of limitations
There is a question of timeliness only as to Barrett. A claim under Title VII is
timely if filed within 300 days of any single act contributing to the hostile work
environment. See 42 U.S.C. § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002). Barrett’s claims were untimely for Title VII purposes because
she did not allege any specific incident of harassment or retaliation within the limitations
period. In her deposition, she stated that she has not experienced “any issues regarding
race” since 2002 or 2003. (JA 549.) She stated that she never heard any racist slur at
Whirlpool other than the specific instances she recounted in her deposition, the most
recent of which occurred outside the limitations period. On the other hand, Barrett’s
§ 1981 hostile work environment claim, to which a four-year statute of limitations
applies, is timely. 28 U.S.C. § 1658(a).
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 10
3. Discrimination against otherwise unprotected employees based on
association with and advocacy for protected employees
Title VII forbids employers from discriminating against any individual with
respect to her “compensation, terms, conditions, or privileges of employment, because
of such individual’s . . . race.” 42 U.S.C. § 2000e-2(a). Here, Plaintiffs are not members
of the protected class but claim they were discriminated against because they were
friends with and spoke out on behalf of their African-American co-workers. Title VII
forbids discrimination on the basis of association with or advocacy for a protected party.
See Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d
988, 994 (6th Cir. 1999) (association); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 575
(6th Cir. 2000) (advocacy). Plaintiffs also bring claims under § 1981, which guarantees
that “[a]ll persons . . . shall have the same right in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.” 42 U.S.C. § 1981. Section 1981 also prohibits discrimination based on
association with or advocacy for non-whites, and we review § 1981 claims under the
same standard as Title VII claims. See Johnson, 215 F.3d at 573 n.5, 574-75.
a. Discrimination based on association
Title VII protects individuals who, though not members of a protected class, are
“victims of discriminatory animus toward [protected] third persons with whom the
individuals associate.” Tetro, 173 F.3d at 994. In Tetro, we held that a white parent
stated a viable claim under Title VII when his employer took adverse actions against him
after learning that his daughter was bi-racial. Id. Although Title VII’s language states
that an individual shall not be discriminated against “because of such individual’s race,”
we held that the discrimination against Tetro was based on his race because the
difference between his race and his daughter’s was a cause of the discrimination: “[a]
white employee who is discharged because his child is biracial is discriminated against
on the basis of his race, even though the root animus for the discrimination is a prejudice
against the biracial child.” Id.; see also Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d
Cir. 2008) (“[W]here an employee is subjected to adverse action because an employer
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 11
disapproves of interracial association, the employee suffers discrimination because of
the employee’s own race.”); Troy v. Suburban Mgmt. Corp., No. 89-1282, 1990 U.S.
App. LEXIS 11901, at *13 n.5 (6th Cir. July 13, 1990) (“‘Where a plaintiff claims
discrimination based upon an interracial marriage or association, he alleges, by
definition, that he has been discriminated against because of his race.’”) (quoting Parr
v. Woodmen of World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986)). Courts have
construed Title VII broadly in this context to accord with Congress’s stated purpose of
ending racial discrimination in the workplace. See Tetro, 173 F.3d at 994; Parr, 791
F.2d at 892.
Here, the district court found an insufficient degree of association between
Plaintiffs and members of the protected class to entitle Plaintiffs to the protections of
Title VII. While the district court correctly read Tetro to state that “a white Title VII
plaintiff must demonstrate an association with a member of a protected class, . . . [but]
that relationship need not necessarily be familial or intimate,” the district court then went
on to conclude, without supporting authority, that Plaintiffs’ associations with their black
co-workers fell short because Plaintiffs provided no evidence that their friendships
“constituted anything other than the casual, friendly relationships that commonly
develop among co-workers but that tend to be limited to the workplace.” Barrett, 543
F. Supp. 2d at 826. Although this Circuit has not addressed the degree of association
required for non-members of a protected class to bring suit under Title VII, the Seventh
Circuit has held, contrary to the district court, that the degree of association is irrelevant,
and that “the key inquiries should be whether the employee has been discriminated
against and whether that discrimination was ‘because of’ the employee’s race.” Drake
v. 3M, 134 F.3d 878, 884 (7th Cir. 1998) (holding that a white employee may sue under
Title VII for discrimination against him resulting from his friendship with black co-
workers).
Whirlpool contends that only a significant association—one that extends outside
of the workplace—can give rise to an associational Title VII violation against a white
employee. It is true that in many of the cases that have found actionable associational
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 12
discrimination, the relationship at issue has been one that extended outside the place of
employment, such as a familial or romantic relationship. See, e.g., Deffenbaugh-
Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), vacated in part on
other grounds by Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999)
(interracial dating); Tetro, 173 F.3d at 988 (interracial parent-child relationship); Parr,
791 F.2d at 892 (interracial marriage). But these cases have not specifically relied on
the degree of the association, and other courts have held that a variety of types of
association entitle a victim of discrimination to bring suit under Title VII. See Drake,
134 F.3d at 878 (friendship with protected employees); Reiter v. Ctr. Consol. Sch. Dist.,
618 F. Supp. 1458, 1460 (D. Colo. 1985) (association with Hispanic community);
Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists, 401 F. Supp. 1363, 1366
(S.D.N.Y. 1975) (casual social relationship with African-American non-employee); see
also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004) (recognizing
that discrimination directed specifically at interracial friendships in the workplace is
impermissible under Title VII).
We adopt the sound reasoning of Drake: If a plaintiff shows that 1) she was
discriminated against at work 2) because she associated with members of a protected
class, then the degree of the association is irrelevant. Drake, 134 F.3d at 884. The
absence of a relationship outside of work should not immunize the conduct of harassers
who target an employee because she associates with African-American co-workers.
While one might expect the degree of an association to correlate with the likelihood of
severe or pervasive discrimination on the basis of that association—for example, a non-
protected employee who is married to a protected individual may be more likely to
experience associational harassment than one who is merely friends with a protected
individual—that goes to the question of whether the plaintiff has established a hostile
work environment, not whether he is eligible for the protections of Title VII in the first
place. Therefore, we conclude that the district court erred in requiring a certain degree
of association before a non-protected employee may assert a viable claim under Title
VII.
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 13
b. Discrimination based on advocacy
Individuals are also protected under Title VII from discrimination because of
their advocacy on behalf of protected class members. See Johnson, 215 F.3d at 575. In
Johnson, the plaintiff stated a viable cause of action under Title VII by alleging that he
was discriminated against, not on the basis of his own race, but because he advocated
affirmative action policies intended to benefit female and minority employees. Id. at
576. In Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1270 (6th Cir. 1977), this Court
addressed “whether or not [a] white plaintiff . . . has standing to sue his former employer
under § 1981 for discharging him in alleged retaliation for plaintiff’s protesting the
alleged discriminatory firing of a black co-worker . . . .” We held that the plaintiff had
standing because although he “was not fired because of his race, it was a racial situation
in which he became involved that resulted in his discharge from his employment.” Id.
at 1268; see also Johnson, 215 F.3d at 587, Kennedy, J., concurring in part and
dissenting in part (“I agree with the majority that individuals are permitted to pursue
claims of discrimination based on their advocacy of . . . specific individuals whose
constitutional rights or Title VII rights have been violated.”).
In this case, the district court did not resolve whether Plaintiffs were able to show
that they had acted as advocates for their black co-workers because the court found that
they had failed to establish an objectively hostile work environment. As with the
question of association, the key questions are whether Plaintiffs were discriminated
against, and whether the reason for the discrimination was their advocacy for protected
employees. Cf. Drake, 134 F.3d at 884. And, as with association, severe or pervasive
discriminatory harassment is more likely to correlate with more vigorous advocacy, but
as long as a plaintiff offers proof that she was, in fact, discriminated against because she
advocated for protected employees, she may state a discrimination claim under Title VII.
See Johnson, 215 F.3d at 575; cf. Crawford v. Metro. Gov’t of Nashville & Davidson
County, Tenn., __ U.S. __, 172 L. Ed. 2d 650, No. 06-1595, 2009 U.S. LEXIS 870, at
*7-11 (Jan. 26, 2009) (overruling Sixth Circuit decision that retaliation is not actionable
under Title VII unless the employee’s opposition was “active” and “consistent”).
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 14
Discriminatory harassment is impermissible whether it is based on the victim’s
association with protected employees or on the victim’s advocacy for protected
employees; both types of harassment contribute to a hostile work environment.
Therefore, we consider instances of both types of impermissible harassment in the
aggregate to determine whether they were so severe or pervasive as to be actionable
under the established hostile work environment standard.
4. Hostile work environment standard
Title VII offers employees protection from a “workplace [] permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment . . . .” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal
citations and quotation marks omitted). “Conduct that is not severe or pervasive enough
to create an objectively hostile or abusive work environment -- an environment that a
reasonable person would find hostile or abusive -- is beyond Title VII’s purview . . .
[l]ikewise, if the victim does not subjectively perceive the environment to be abusive,
the conduct has not actually altered the conditions of the victim’s employment, and there
is no Title VII violation.” Id. at 21-22; see also Jackson v. Quanex Corp., 191 F.3d 647,
658 (6th Cir. 1999) (“[C]onduct must be severe or pervasive enough to create an
environment that a reasonable person would find hostile or abusive, and the victim must
subjectively regard that environment as abusive.” (citation and quotation marks
omitted)).
The district court described the relevant standard as severe “and” pervasive, not
severe “or” pervasive. (JA 260-61, 265, 271). However, “severe or pervasive” is
properly considered in the disjunctive. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d
321, 333 (6th Cir. 2008) (noting that the Supreme Court has chosen to use this phrase
in the disjunctive); Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 435 (5th Cir.
2005) (requiring conduct to be both severe and pervasive would impose an overly heavy
burden on plaintiffs).
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 15
To defeat a motion for summary judgment in a discrimination case, a plaintiff
must adduce direct or circumstantial evidence of discrimination. DiCarlo v. Potter, 358
F.3d 408, 414 (6th Cir. 2004). Direct evidence is evidence that, if believed, dictates a
finding, with no need to draw inferences, that “unlawful discrimination was at least a
motivating factor in the employer’s actions.” Amini v. Oberlin Coll., 440 F.3d 350, 359
(6th Cir. 2006).
Where a plaintiff relies on circumstantial evidence, the McDonnell Douglas
burden-shifting framework applies. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To
establish a prima facie case of a racially hostile work environment, a plaintiff must
demonstrate that (1) she was a member of a protected class; (2) she was subjected to
unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment
unreasonably interfered with her work performance by creating an intimidating, hostile,
or offensive work environment; and (5) the employer is liable. Hafford v. Seidner, 183
F.3d 506, 512 (6th Cir. 1999). A plaintiff, though not within a protected class, may
satisfy the first prong of this test based on her association with or advocacy on behalf of
protected employees. By introducing evidence that she was subjected to unwelcome
racial comments as a result of her association with or advocacy for protected employees,
a plaintiff satisfies the second and third prongs.
To assess the fourth prong of an asserted prima facie case, we must examine the
totality of the circumstances. Harris, 510 U.S. at 23; Thornton v. Fed. Express Corp.,
530 F.3d 451, 455 (6th Cir. 2008). In doing so, we consider “the frequency of the
discriminatory 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.” Harris, 510 U.S. at 23; see also Williams v. GMC, 187 F.3d 553,
560-62 (6th Cir. 1999). “[C]onduct must be extreme to amount to a change in the terms
and conditions of employment . . . .” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). “[S]imple teasing, . . . offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 16
of employment.” Id. (internal citation and quotation marks omitted). We do not limit
our analysis to the narrow set of incidents directed at the plaintiff or occurring in the
plaintiff’s presence, Jackson v. Quanex, 191 F.3d at 660, but comments or conduct of
which a plaintiff had no knowledge cannot be said to have made her work environment
hostile, see Hawkins, 517 F.3d at 335-37 (similar acts of harassment occurring outside
of plaintiff’s presence may be evidence of hostile work environment if plaintiff was
aware of them during her employment) (citing cases); Abeita v. TransAmerica Mailings,
159 F.3d 246, 249 n.4 (6th Cir. 1998) (instances of harassment of other employees
irrelevant if “there is no evidence that plaintiff was aware” of them).
In assessing the fourth prong in this case, we cannot treat all incidents of
harassment of African-Americans as contributing to a hostile work environment; rather,
only harassment that was directed toward Plaintiffs themselves or toward others who
associated with or advocated on behalf of African-American employees is relevant to our
analysis, and only to the extent that Plaintiffs were aware of it. See, e.g., Bermudez v.
TRC Holdings, 138 F.3d 1176, 1180 (7th Cir. 1998) (in a third-party discrimination case,
only acts of discrimination against the third party are actionable—a white plaintiff may
not sue simply based on discomfit or “unease at observing wrongs perpetrated against
others”); cf. RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1055 (9th Cir. 2002) (“A
white plaintiff generally does not have standing under Section 1983 solely for the
purpose of vindicating the rights of minorities . . . [b]ut plaintiffs who are not members
of the protected class have standing to challenge racially discriminatory conduct in their
own right when they are the direct target of the discrimination.”) (citation and quotation
marks omitted); Blanks v. Lockheed Martin Corp., 568 F. Supp. 2d 740, 744 (S.D. Miss.
2007) (collecting cases in which white plaintiffs have been permitted to sue under Title
VII and § 1981 based on the loss of the benefit of interracial association in the
workplace). In other words, only harassment that specifically targeted those who
associated with and advocated for African-Americans will result in an actionable hostile
work environment claim for such individuals.
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 17
To satisfy the fifth prong of the prima facie case, employer liability, what a
plaintiff must show differs depending on whether the harassment was carried out by co-
workers or supervisors. Employer liability for co-worker harassment stems directly from
the employer’s actions, or lack thereof, in response to the harassment: The plaintiff must
show that the employer “‘knew or should have known of the charged [racial] harassment
and failed to implement prompt and appropriate corrective action.’” Hafford, 183 F.3d
at 513 (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 804 n.11 (6th Cir.
1994)). In contrast, employers are vicariously liable for harassment by supervisors, and
the employee need not show that the employer had knowledge of the harassment. Id.
However, an employer can raise an affirmative defense to liability for supervisor
harassment by establishing: (1) that it exercised reasonable care to prevent and correct
promptly any racially harassing behavior by its supervisor, and (2) that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to otherwise avoid the harm. See id. (citing
Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998)).
5. Retaliation standard
Title VII protects employees from retaliation for having opposed an employer’s
unlawful actions. 42 U.S.C. § 2000e-3(a). A plaintiff must demonstrate that her
opposition was reasonable and based on a good-faith belief that the employer was acting
in violation of Title VII. See Johnson, 215 F.3d at 579. An employee has engaged in
opposing activity when she complains about unlawful practices to a manager, the union,
or other employees. Id. at 579-80. Retaliatory harassment by a supervisor is actionable
in a Title VII case. Morris v. Oldham Country Fiscal Ct., 201 F.3d 784, 792 (6th Cir.
2000).
To establish a prima facie case of retaliation, a plaintiff must demonstrate that
(1) she engaged in activity protected by Title VII; (2) the defendant knew of her exercise
of her protected rights; (3) the defendant subsequently took an adverse employment
action against the plaintiff or subjected the plaintiff to severe or pervasive retaliatory
harassment; and (4) there was a causal connection between the plaintiff’s protected
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 18
activity and the adverse employment action. See Morris, 201 F.3d at 792; Allen v. Mich.
Dep’t of Corr., 165 F.3d 405, 413 (6th Cir. 1999). In response to allegations of
retaliation by a supervisor, the employer may assert the same affirmative defense that
is available to hostile work environment claims. Morris, 201 F.3d at 793. In
determining whether there is a causal relationship between a plaintiff’s protected activity
and an allegedly retaliatory act, courts may consider whether the employer treated the
plaintiff differently from similarly situated individuals and whether there is a temporal
connection between the protected activity and the retaliatory action. See Allen, 165 F.3d
at 413.
B. Application of standards to Plaintiffs’ claims
1. Barrett failed to establish a triable issue of fact on her hostile work
environment claim
Of the discriminatory comments and acts that Barrett claims she witnessed in her
time at Whirlpool, few were directed at her or toward those who associated with or
advocated for African-Americans; rather, they were harassing toward African-Americans
themselves. Barrett testified that she heard three racist epithets used at Whirlpool, all
by Travis. (After her deposition and after Whirlpool had moved for summary judgment,
Barrett swore in an affidavit that she heard the word “nigger” on a regular basis at the
plant, but such statements, which contradict her prior deposition testimony, do not create
a genuine issue of material fact at the summary judgment phase. See Reid v. Sears,
Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986)). Barrett testified that she saw several
instances of racist graffiti and heard an offensive comment about “James Earl Ray Day;”
while these, and the remarks by Travis, were highly offensive toward African-
Americans, and while two of the comments referred specifically to friends of Barrett’s,
none of them was directly harassing toward Barrett. Barrett reported nearly all of the
racist incidents she witnessed but, other than one reaction from Travis, suffered no
adverse consequences for doing so.
Barrett alleges several instances of harassment that were directed toward herself.
First, Travis called Barrett a “bitch” and warned her to “mind [her] own business,” (JA
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 19
825-26), after she confronted him about a racist comment. This constituted direct
harassment of Barrett based on her advocacy on behalf of a protected co-worker.
Second, Barrett claims that her former supervisor, Beam, directed desirable work away
from Barrett because of Barrett’s friendship with Majors. While this allegation is
serious, there is little evidence to support it: Beam never made any comment or
statement that could substantiate Barrett’s perceptions of Beam’s animus toward Majors,
Majors herself contradicted Barrett’s claims that Beam treated Majors poorly, and
Barrett introduced no evidence other than her own impressions that Beam directed
desirable work away from her. Third, Barrett claims that she received the “cold
shoulder” from three Caucasian employees when she worked on the assembly line and
that her group leader would ignore her requests for materials she needed in the course
of her work because she was friendly with African-American employees. While such
conduct could contribute to a finding of a hostile work environment, and while it
allegedly resulted from Barrett’s friendliness toward African-Americans, it is not, on its
own, objectively severe conduct. Cf. Konstantopoulos v. Westvaco Corp., 112 F.3d 710,
716 (3d Cir. 1997) (“mute gestures” such as squinting and shaking one’s fists “cannot
itself be characterized as particularly severe”). For example, no one on the assembly line
ever actually said that they disapproved of Barrett’s interactions with black co-workers.
Barrett made a number of comments suggesting that she did not view her work
environment as particularly hostile, including that she was never told and did not feel she
had to conform or act in a certain way toward African-American co-workers. She
admitted in 2006 that she had not “had any issues regarding race or people’s conduct or
attitudes towards [her] since” 2002 or 2003. (JA 549.) Upon consideration of the
totality of the circumstances, the single comment from Travis, the perceived diversion
of desirable work by Beam, and the receipt of the “cold shoulder” from a few co-workers
is insufficient evidence of severe or pervasive harassment to allow a reasonable jury to
find that Barrett was subjected to a hostile work environment. And, as discussed above,
Barrett’s retaliation claim is untimely.
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 20
2. Melton failed to establish a triable issue of fact as to her hostile
work environment and retaliation claims
As with Barrett, most of the comments and other instances of racism cited by
Melton were not related to her association with or advocacy for black employees.
Melton often overheard several employees use the word “nigger” at work, but, offensive
as it may be, this does not suggest discrimination toward or harassment of Melton
herself. Similarly, a Caucasian employee asked Melton how she could “stand the smell”
of an African-American friend of Melton’s. Although this comment deeply offended
Melton, it was primarily directed toward Melton’s friend, and it does not, on its face,
suggest any intent to discriminate against or harass Melton herself. It provides, at best,
only weak evidence of harassment based upon Melton’s association with her protected
co-worker. Melton asserts that the comments Travis made about the Ku Klux Klan are
discriminatory to whites because the Ku Klux Klan often targets whites who sympathize
with blacks. While there is some logic to this, blacks are, of course, the primary targets
and victims of the Ku Klux Klan, and there is no evidence suggesting that the graffiti and
comments pertaining to the Ku Klux Klan at Whirlpool were intended to threaten white
employees.
On the other hand, Melton knew that some employees at Whirlpool used the term
“nigger lover.” This term, on its face, constitutes racial harassment of employees who
associate with or advocate for African-Americans. However, Melton never heard a
manager or supervisor use the term “nigger lover,” she was ambiguous about whether
she had ever actually heard the term used by a non-supervisor, and she implied that she
had never heard it used in reference to herself. Her awareness that the term was used at
Whirlpool contributes to a finding of a hostile work environment, though less so than if
the evidence had established that she was subjected to the term herself. Melton also
claims that two supervisors became angry with her for accompanying black co-workers
to the medical office when they were injured, but she offers no evidence to support her
claim that their anger was racially motivated.
Melton makes a general claim that “[t]he ones that defended the black people
. . . didn’t get by with anything [and] had to stay on their toes,” (JA 972), but she fails
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 21
to provide any evidence to support this claim. Melton claims that unspecified employees
in the halls at work gave her odd looks or passed her without saying hello because she
was friendly with African-American co-workers, but the harassment, as Melton has
alleged it, was neither severe nor pervasive. Melton does not allege hearing a single
remark that reflects discrimination directly toward her as a result of her associations with
or advocacy on behalf of blacks. She has not offered sufficient evidence to establish a
prima facie case of a hostile work environment.
Melton also fails to offer evidence in support of her retaliation claim. She alleges
that she received unfavorable treatment upon returning to work after undergoing
surgeries. But Melton only guesses that human resources employee Fred Contreras was
responsible for her treatment; she only guesses that his decision was based on her
“defending” certain employees (in a manner she does not adequately explain); and she
only guesses that what Contreras, who is Hispanic, found objectionable about Melton’s
conduct was the fact that many of the employees she allegedly defended belonged to
protected groups. See Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1984) (conclusory
statements, subjective beliefs, or intuition cannot defeat summary judgment). The
district court correctly found that Melton failed to offer any evidence of a causal
connection between her various advocacy activities and her reassignment and layoff
following surgery.
3. Nickens established a genuine issue of material fact as to
hostile work environment but not retaliation
As with Barrett and Melton, many of the racist comments Nickens heard, such
as two racist jokes and the regular use of the word “nigger,” do not support her claim
that she was discriminated against. However, more than Barrett and Melton, Nickens
was the victim of direct harassment resulting from her associations with black
employees.
Nickens complained about Travis’s racist language, and after he was fired, Travis
allegedly caused a threat of physical violence to be relayed to Nickens by two co-
workers. Nickens complained to her supervisor and the union about this threat and
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 22
alleges that she was deeply frightened by it. Nickens’s co-workers, Spivey, Hibdon,
Goins, and Cregger, as well as a supervisor, Knight, frequently made racially derogatory
comments criticizing her association with Beasley. Nickens complained to Knight
regularly about these comments, and he refused to take any action. Nickens also felt that
her African-American supervisor, Bingham, harassed her because of her relationships
with black employees. Nickens alleges two instances in which a supervisor and a co-
worker attempted to prevent her from applying for job advancements because of their
disapproval of her friendship with Beasley.
Nickens also alleges that in 1988, a white employee named Jim Jones grabbed
her around the neck and said he did not think she should be “hanging around any
niggers.” (JA 698.) The factual circumstances of the incident are unclear from the
record, and while it may be considered as “background evidence,” it is too far removed
in time from the other incidents alleged by Nickens to be part of “the same actionable
hostile work environment practice” at issue here. See Morgan, 536 U.S. at 120.
The district court erred in granting summary judgment against Nickens. While
Whirlpool contests the facts surrounding many of her allegations, a reasonable jury could
find that Nickens was subjected to a severe or pervasive hostile work environment that
altered the conditions of her employment: she received a threat of physical violence for
reporting racist language, she was subjected to a regular stream of offensive comments
about her relationship with an African-American co-worker, and the same relationship
was allegedly used as a reason to prevent her from applying for improved job positions.
Nickens has alleged facts giving rise to Whirlpool’s liability in that she reported nearly
all of the relevant incidents involving co-worker harassment to one of two supervisors,
Bingham and Knight, and they failed to take corrective action. Furthermore, Nickens
has alleged that both of these supervisors, particularly Knight, harassed her directly.
Nickens has not established a claim for retaliation, as the bulk of the instances
of discrimination and harassment against her were based on her association with black
employees, not on opposition to any unlawful conduct. Cf. Moore v. City of
Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (“With respect to ‘protected activity,’
No. 08-5307 Barrett, et al. v. Whirlpool Corp. Page 23
the anti-retaliation provision of Title VII protects those who participate in certain Title
VII proceedings . . . and those who oppose discrimination made unlawful by Title VII.”).
Nickens argues that Whirlpool’s actions would have dissuaded a reasonable worker from
making a complaint of discrimination, but none of the alleged acts of harassment, other
than Travis’s relayed comment, was in response to her opposition to discrimination.
Nickens cannot establish that her oppositional activity was causally connected to any
tangible adverse employment action.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision in all
respects, except as to Plaintiff Nickens’s hostile work environment claim. As to that
claim, we REVERSE and REMAND for trial.