Dion Berryman v. Supervalu Holdings, Inc. ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0053p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
HIGHTOWER; RONALD LANTON; JESSE SMITH, -
DION BERRYMAN; ROBERT BUSH; ANDRE
Plaintiffs-Appellants, --
-
No. 10-3590
,
>
Plaintiffs, -
LEMENZO CLEGG, et al.,
-
-
-
v.
-
-
GUNDERSON; RICK ZOLL; FRED DUNWOODIE; -
SUPERVALU HOLDINGS, INC.; PETER
-
-
CINDY KEYES; JOHN SCHULTZ; TIM DORAN;
SUE ZIMMERMAN; CAROL GIBSON, -
Defendants-Appellees. N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 05-00169—Walter H. Rice, District Judge.
Argued: December 1, 2011
Decided and Filed: February 24, 2012
Before: SILER, McKEAGUE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: James R. Greene III, JAMES R. GREENE III & ASSOCIATES, Dayton,
Ohio, for Appellants. Jennifer R. Fuller, THOMPSON HINE LLP, Dayton, Ohio, for
Appellees. Susan R. Oxford, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF: James R. Greene
III, JAMES R. GREENE III & ASSOCIATES, Dayton, Ohio, for Appellants. Teresa
D. Jones, THOMPSON HINE LLP, Dayton, Ohio, for Appellees. Susan R. Oxford, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Curiae.
McKEAGUE, J., delivered the opinion of the court, in which SILER, J., joined.
STRANCH, J. (pp. 8–11), delivered a separate dissenting opinion.
1
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 2
_________________
OPINION
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McKEAGUE, Circuit Judge. Eleven current and former employees of SuperValu
Holdings, Inc. (“SuperValu”) who are African–American brought suit alleging, among
other things, that they were exposed to a racially hostile work environment in
SuperValu’s warehouses. SuperValu moved for summary judgment as to each
employee. In response, the employees submitted a detailed list of the incidents which
formed the basis of their hostile environment claims. The events listed were scattered
sporadically over twenty-five years. They included vulgar graffiti, overtly racist
comments by coworkers, and racially motivated pranks.1 Although it found these
incidents reprehensible, the district court concluded that they did not amount to a hostile
work environment and granted summary judgment to SuperValu. Five employees
appeal. We affirm.
I. ANALYSIS
We review the district court’s grant of summary judgment de novo. Blackmore
v. Kalamazoo Cty., 390 F.3d 890, 894 (6th Cir. 2004). Summary judgment is
appropriate where there is “no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). SuperValu bears the
burden of showing the absence of evidence to support at least one essential element of
the employees’ claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
1
The district court’s eleven separate opinions listed the various claims relevant to hostile work
environment as to each Plaintiff, having pulled together claims from the Plaintiffs’ depositions. For a
detailed list of those claims considered by the district court as to Plaintiff Robert Bush, see Berryman v.
SuperValu Holdings, Inc., No. 3:05cv169, 2010 WL 1257838, at *3–*4 (S.D. Ohio March 31, 2010). For
a detailed list of those claims considered by the district court as to Plaintiff Dion Berryman, see Berryman
v. SuperValu Holdings, Inc., No. 3:05cv169, 2010 WL 1257848, at *4–*5 (S.D. Ohio March 31, 2010).
For a detailed list of those claims considered by the district court as to Plaintiff Jesse Smith, see Berryman
v. SuperValu Holdings, Inc., No. 3:05cv169, 2010 WL 1257849, at *4 (S.D. Ohio March 31, 2010). For
a detailed list of those claims considered by the district court as to Plaintiff Andre Hightower, see
Berryman v. SuperValu Holdings, Inc., No. 3:05cv169, 2010 WL 1257854, at *4–5 (S.D. Ohio March 31,
2010). For a detailed list of those claims considered by the district court as to Plaintiff Ronald Lanton, see
Berryman v. SuperValu Holdings, Inc., No. 3:05cv169, 2010 WL 1257851, at *3 (S.D. Ohio March 31,
2010).
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 3
employees must then present sufficient evidence through the pleadings and the materials
produced through discovery from which a jury could reasonably find in their favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment is not
appropriate if the evidence would permit a reasonable jury to return a verdict for the
non-moving party. Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009).
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 quotations
omitted). Summary judgment is improper if plaintiff advances evidence of harassment
that is “ongoing,” “commonplace,” and “continuing.” See Hawkins v. Anheuser-Busch,
Inc., 517 F.3d 321, 333–34 (6th Cir. 2008) (quoting Abeita v. TransAmerica Mailings,
Inc., 159 F.3d 246, 252 (6th Cir. 1998)). But “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.”
Harris, 510 U.S. at 21. Likewise, 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.
In granting summary judgment, the district court considered all of the employees’
claims for each employee individually and limited its analysis to those events that were
either perceived by an individual employee or that the employee knew about. The court
based its decision to handle summary judgment in this manner on the totality-of-the-
circumstances test articulated in Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999),
reasoning that an event should only be considered part of the totality of the
circumstances if an individual employee claimed he was aware of it. The plaintiffs on
appeal (“Plaintiffs”) make only one claim of error, contending the district court erred by
choosing not to consider the claims of all employees in the aggregate.2 We disagree.
2
After listing the separate claims it would consider as to each plaintiff, the district court reasoned
that, although reprehensible, the conduct claimed was not “sufficiently severe and pervasive, as a matter
of law, to be said to have altered the conditions of [the plaintiffs’] employment.” E.g., Berryman, 2010
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 4
The district court correctly interpreted Jackson’s totality-of-the-circumstances
test to militate against aggregating the claims of all Plaintiffs. In Jackson, a single
plaintiff sued her employer alleging racial harassment in the form of racist slurs she had
either experienced or heard about, racist graffiti she had seen or learned about, disparate
treatment towards African–American employees that Jackson was told about, and
offensive behavior she experienced or learned of. See, e.g., id. at 651 (stating Jackson
overheard slurs); id. at 652 (stating Jackson saw graffiti in women’s restroom and
learned of it in the men’s room); id. at 654 (stating Jackson was told about disparate job
treatment of an African–American colleague); id. at 654–55 (describing tampering with
the valves Jackson used on the job as well as a physical and verbal assault against her).
The district court in Jackson awarded judgment as a matter of law to Quanex because
Jackson “was neither a witness nor a party” to most of the alleged harassment. Id. at
656. But this court rejected such a “myopic view of harassment” that would limit claims
only to those things that are “directed at or witnessed by” a particular plaintiff. Id. at
660, 659.
Instead, the Sixth Circuit adopted a totality-of-the-circumstances test, pointing
to the Supreme Court’s decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986),
in stating that “an employer may create a hostile environment for an employee even
where it directs its discriminatory acts or practices at the protected group of which the
plaintiff is a member, and not just at the plaintiff herself.” Jackson, 191 F.3d at 661
(citing Meritor, 477 U.S. at 65–66). So, courts should aggregate hostile work
environment claims, considering even those claims that were not directed at a particular
WL 1257848, at *16. The Equal Employment Opportunity Commission filed a brief as amicus curiae
taking issue with the conjunctive way in which the district court articulated the test in parts of its opinions,
i.e., the use of the phrase “severe and pervasive” as opposed to “severe or pervasive.” We agree that a
disjunctive test, i.e., “severe or pervasive,” is proper. Barrett v. Whirlpool Corp., 556 F.3d 502, 514 (6th
Cir. 2009) (observing that “‘severe or pervasive’ is properly considered in the disjunctive”) (citing Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). However, a reading of the district court’s opinions shows
that, in comparing each of the employees’ claims to other cases from this Circuit, the court actually applied
the proper, disjunctive standard even though it articulated the standard conjunctively at times throughout
the opinions. See, e.g., Berryman, 2010 WL 1257848, at *14–16 (comparing Plaintiff Dion Berryman’s
case to several Sixth Circuit cases, including Smith v. Leggett Wire Co., 220 F.3d 752, 760 (6th Cir. 2000),
which articulated the disjunctive “severe or pervasive” standard).
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 5
plaintiff and those claims that a particular plaintiff did not witness. Jackson, 191 F.3d
at 661.
But Jackson does not stand for the broader proposition that a group of plaintiffs
may aggregate all of their claims regardless of whether they were aware of one another’s
experiences or not. Quite the contrary. Implicit in the consideration of the totality of the
circumstances is that a plaintiff was aware of the harassment that was allegedly directed
toward other employees. See id. at 661. The Jackson court said as much. See id. It
based its decision on the fact that the Sixth Circuit, in prior decisions, had “credited
evidence of racial harassment directed at someone other than the plaintiff when the
plaintiff knew a derogatory term had been used.” Id. at 661 (citing Moore v. KUKA
Welding Sys., 171 F.3d 1073, 1079 (6th Cir. 1999)). The Jackson court also reasoned
that “‘the fact that a plaintiff learns second-hand of a racially derogatory comment or
joke . . . can impact the work environment.’” Id. (quoting Schwapp v. Town of Avon,
118 F.3d 106, 111–12 (2d Cir. 1997) (internal citation omitted)). And finally, “evidence
that Jackson learned of these incidents clearly demonstrated that . . . she subjectively
perceived that her work environment was one hostile to her.” Id. In short, a plaintiff
does not need to be the target of, or a witness to harassment in order for us to consider
that harassment in the totality of the circumstances; but he does need to know about it.
It follows that the district court properly declined to aggregate all claims made
by all Plaintiffs if they failed to show they were each aware of the harassment claimed
by the others. In their response to SuperValu’s motion for summary judgment, Plaintiffs
submitted an exhibit which they described as a “detailed list of the incidents which form
the basis for the Plaintiffs’ hostile environment claims.” Although the dissent
characterizes Plaintiff’s list as non-inclusive, this language would tend to indicate that
the list was presented to the district court as inclusive of all hostile environment claims.
Nonetheless, the district court contemplated not only the items listed in that exhibit, but
also additional claims found in Plaintiffs’ depositions. See, e.g., Berryman, 2010 WL
1257848, at *5 (listing the claim that “[o]n one occasion in 2005, Berryman saw the
word ‘nigger’ written on his work machine” and citing Berryman’s deposition).
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 6
However, upon review of the record, the district court concluded that Plaintiffs had
“point[ed] to nothing to indicate that [they were] aware of any of the acts of harassment
alleged by the other Plaintiffs in this litigation, other than those [that were specifically
claimed].” E.g., id. at 13 n.16.
To secure aggregated review of their claims on summary judgment, Plaintiffs
needed to marshal basic evidence to show that they were individually aware of the
harassment experienced by other plaintiffs. See InterRoyal Corp. v. Sponseller, 889 F.2d
108, 111 (6th Cir. 1989). They failed to do so. It may be tempting to assume, as the
dissent does, that due to the public nature of some of the alleged acts of harassment, e.g.,
graffiti in the bathrooms and on warehouse pallets, Plaintiffs may have been aware of
some events they did not mention in their individual depositions. But this assumption
is unwarranted. In a physically large and partitioned workplace like the separated
warehouses in this case, it is inappropriate for us to infer that Plaintiffs perceived events
they did not discuss in their depositions.3 The most illustrative example is the effigy of
an African American supervisor, which was allegedly hung “for all the warehouse to see
it.” We agree that such a display was repugnant, but none of the named plaintiffs on
appeal gave any indication in their depositions that they were even aware of it, despite
its allegedly public location and questions prompting them to disclose all such incidents
they remembered. We cannot assume Plaintiffs were aware of those things that they did
not discuss in hundreds of pages of depositions. Such an assumption would overstep the
reasonable inferences we are obliged to draw in favor of the non-moving party on
summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
On occasion, we have found it reasonable to infer that a plaintiff was affected by
behavior not directed at him or her. See, e.g., Gallagher v. C.H. Robinson Worldwide,
Inc., 567 F.3d 263, 273–74 (6th Cir. 2009). In Gallagher, where a plaintiff claimed a
sexually hostile work environment, the district court overlooked the configuration of the
3
The record shows that there are two distinct warehouses, three separate bathrooms, and pallets
that cycle in and out of the warehouses. See, e.g., R. 70, Gunderson Dep., at 17; R. 77-4, Doran Aff., at
¶ 3.
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 7
workplace, which was such that the plaintiff could not avoid the offensive conduct of her
coworkers. Id. at 273. Not only was Gallagher aware of the offensive conduct, “she was
unavoidably exposed to it.” Id. Here, the district court noted that the record was devoid
of any claim that workers would be unavoidably exposed to the various acts of graffiti,
comments, or jokes. E.g., Berryman, 2010 WL 1257848, at *5 n.16.
Importantly, the district court did consider those instances in which Plaintiffs
gained second-hand knowledge of a particular incident of harassment, precisely as
Jackson requires. See Jackson, 191 F.3d at 661. It contemplated the fact that Plaintiff
Berryman “saw one or two pictures of monkeys, a picture of police cars chasing O.J.
Simpson, and photos of ‘dark people’ drawn on boxes and on poles.” Berryman, 2010
WL 1257848, at *5 (citing Berryman Dep. at 112–13). The court also regarded the fact
that Plaintiff Andre Hightower “saw photographs taken of the word ‘nigger’ written on
the warehouse floor, along with a drawing of people with ‘large lips, nappy hair.’”
Berryman, 2010 WL 1257854, at *5 (citing Hightower Dep. at 30–33).4 That Plaintiffs
described some harassment they learned of from other employees reinforces the district
court’s determination that it could not presume Plaintiffs were aware of events they did
not individually claim.
After pulling together evidence from Plaintiffs’ depositions as well as their
proffered exhibits, the district court properly found that Plaintiffs failed to show they
were aware of the majority of harassment alleged by their fellow employees. It then
correctly concluded that Plaintiffs’ claims should be considered individually. Thus, the
Plaintiffs’ claim of error is denied.
II. CONCLUSION
Accordingly, we AFFIRM the district court’s decision to grant SuperValu’s
motion for summary judgment.
4
In addition, the district court considered evidence that Andre Hightower and Dion Berryman
were told about racist remarks said to other employees. E.g., Berryman, 2010 WL 1257854, at *4.
However, the court noted that “the Plaintiff points to no exceptions to the hearsay rule, which would allow
the Court to consider these assertions” in determining whether the environment was objectively hostile.
Id.No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 8
________________
DISSENT
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JANE B. STRANCH, Circuit Judge, dissenting. I respectfully dissent from the
majority opinion because I believe the record contains sufficient facts to withstand
summary judgment on Plaintiffs’ hostile work environment claims. As the EEOC
summarized in its amicus brief, the record demonstrates ongoing repetition of highly
offensive racial insults—including the words “nigger,” “Buckwheat,” “boy,” “monkey,”
and variations on these offensive racial pejoratives—spanning several decades and
manifested in several different forms, including verbal insults, written graffiti, insulting
caricatures, musical lyrics, and jokes. Much of this conduct occurred in public areas of
the warehouse and was thus either actually seen by many employees or was likely seen
by many employees. For example, an effigy was hung twenty feet from the floor (in an
area “where everybody comes to charge their machines”) with an accompanying
cardboard sign bearing an African-American supervisor’s name and the words “nigger
supervisor.” The effigy was not removed until several days later, “[long] enough for all
the warehouse to see it,” according to one of the employees.
I trust it is uncontroversial that the totality of all the incidents alleged by the
Plaintiffs would be sufficiently “severe or pervasive” to constitute a hostile work
environment. I am troubled, then, that the Plaintiffs are barred from their day in court,
not because of the conduct to which they were subjected, but because their attorney did
not undertake the tedious and seemingly unnecessary task of listing each of the
numerous incidents separately for the five Plaintiffs in this appeal (not to mention the
additional six members of the initial lawsuit), presumably in individual briefs.
I am further concerned because it appears that the Defendant was allowed to
create this repetitive-listing burden by the mere expedient of filing separate motions for
summary judgment as to each Plaintiff. The Plaintiffs did not file separate complaints
and they would not have had separate trials. This case was originally filed as a class
action lawsuit by all the Plaintiffs and it proceeded as an action by a group of Plaintiffs
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 9
concerning their work environment. It begs credulity to suggest that the Plaintiffs were
not well aware of each other’s problems at work. Access to one’s day in court should
not be destroyed by a pleading mechanism that results in a presumption of an individual,
segregated work environment for each Plaintiff when, in fact, those Plaintiffs
indisputably worked together, shared their work environment concerns with one another,
and then joined together to file one lawsuit with the same claims and the same attorney.
This case comes to us at the summary judgment stage at which we need only
consider whether “[u]nder the facts as alleged in this case, viewed in their entirety and
in their proper context, we believe a rational trier of fact could conclude that [Plaintiffs
were] subjected to a hostile work environment.” Williams v. Gen. Motors Corp., 187
F.3d 553, 563 (6th Cir. 1999). A case should not be summarily dismissed if “at
minimum, the allegations raise a question of fact for the jury.” Id. Here, the sheer
number of racially-hostile incidents that the Plaintiffs testified occurred in public areas
at the same company over many years at minimum raised a question of fact as to whether
the Plaintiffs were subjected to a hostile work environment.
This Court has made clear that summary judgment is inappropriate whenever a
plaintiff alleges harassment that is “ongoing,” “commonplace,” and “continuing.”
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333-34 (6th Cir. 2008) (quoting Abeita
v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998)). A plaintiff who
satisfies this standard need not allege each and every incident, much less actual
knowledge thereof, because “when a victim makes allegations of ongoing harassment,
the ‘inability to recount any more specific instances goes to the weight of [the victim’s]
testimony, a matter for the finder of facts.’” Id. (same).
I find the sheer number and duration of offensive incidents on the record
sufficient to be considered “ongoing.” In addition to the specific types of grossly
offensive racial harassment summarized above, the Plaintiffs specifically alleged in their
complaint that they were: (1) “routinely assigned to heavy orders despite assurances that
the assignments are randomly assigned,” (2) “subjected to more drug testing than white
employees,” (3) “routinely ordered back to work while white employees are ignored by
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 10
management, even though everyone started their break at the same time,” (4) “never . . .
approached about having a supervisory position within Supervalu,” (5) “denied training
while white employees with less seniority were given training,” (6) “disciplined for
mistakes or being out of their work area while other white employees are not disciplined
for the same actions,” and (7) “denied overtime or discouraged from signing up for
overtime only to discover that white employees with less seniority worked overtime.”
Examples of this ongoing conduct are reviewed and highlighted elsewhere in the
record. In Plaintiff Berryman’s interrogatory responses, for example, he stated that he
was (1) written up for being out of his work area while white employees were not,
(2) denied training received by white employees with less seniority, (3) “given [a] larger
workload to do by himself while white employees are given [a] smaller workload to do
with assistance,” (4) told to get back to work when talking to a black co-worker while
white employees were allowed to continue talking, (5) subjected to other employees
looking up his work statistics and making comments about his statistics and race, despite
repeated complaints to supervisors, (6) “discipline[d] for using the word ‘bitch’ while
the white employee . . . he was talking to was not disciplined for using the phrase ‘black
ass,’” (7) “approached in the break room and told to go back to work by a supervisor . . .
who did not instruct the white employees in the break room to go back to work,”
(8) aware of “job[s] being held for white employees who are not present at the job
selection meeting when their names are called while black employees are automatically
skipped if not present when their name is called.” I believe that the testimony of these
types of repeated, racially-motived actions in the workplace, which is basically ignored
in the majority’s opinion, should have been sufficient to overcome summary judgment
under the Abeita standard.
To the extent that Jackson v. Quanex Corp. requires a plaintiff to prove
knowledge of events giving rise to a hostile work environment claim, it squarely holds
that a plaintiff must be permitted to introduce evidence from co-workers in order “to
present evidence of events at [a company] giving rise to the hostile environment there”
from which “reasonable jurors” could conclude that the plaintiff “was the victim of”
No. 10-3590 Berryman, et al. v. SuperValu Holdings, Inc., et al. Page 11
such an environment. 191 F.3d 647, 659 (6th Cir. 1999). Such a rule makes good sense
in this context because, as the Supreme Court recognized, “the entire hostile work
environment encompasses a single unlawful employment practice” rather than discrete
isolated events. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-18 (2002);
see also Jackson, 191 F.3d at 660 (quoting Black’s Law Dictionary 534 (6th ed. 1990))
(“[T]he very meaning of ‘environment’ is ‘[t]he surrounding conditions, influences or
forces which influence or modify.’”). The Plaintiffs here are merely trying to do through
their co-Plaintiffs what the Jackson plaintiff was allowed to do with non-plaintiff co-
workers: present evidence of the hostile work environment in order to overcome
summary judgment. And, as the majority correctly observes, courts should consider in
the hostile work environment analysis all incidents about which a plaintiff learns
secondhand. Jackson, 191 F.3d at 661.
It is true that because the workplace at SuperValu included two warehouses and
three bathrooms, SuperValu can dispute whether the Plaintiffs were “unavoidably
exposed” to every incident and had “no means of escaping.” See Gallagher v. C.H.
Robinson Worldwide, Inc., 567 F.3d 263, 273 (6th Cir. 2009). However, given the
number of Plaintiffs, the proximity in which they worked, the public nature of many of
the incidents, and the duration of these events, the size of the workplace does not remove
this case from the category of cases presenting disputes of material fact that must be
decided by the jury. That every event was not specifically mentioned in every
deposition or listed under every name in the non-inclusive summary prepared by counsel
for our convenience does not and should not alter this outcome.
The egregious facts in this record are sufficient to generate a dispute of material
fact as to whether Plaintiffs’ work environment was hostile. That is all that is necessary
to deny summary judgment to the Defendant. Accordingly, I respectfully dissent.