Bourini v. Bridgestone/Firestone North American Tire, LLC

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0231n.06
Filed: March 30, 2005
No. 04-5441
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEVE BOURINI,
Plaintiff-Appellant,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE MIDDLE
BRIDGESTONE/FIRESTONE NORTH DISTRICT OF TENNESSEE
AMERICAN TIRE, LLC,
Defendant-Appellee.
/
Before: MARTIN, GILMAN, and FRIEDMAN*, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. This case involves the appeal of the district court’s
grant of summary judgment for the defendant, Bridgestone/Firestone, on Steve Bourini’s hostile
work environment claims based on his national origin and religion, in violation of Title VII, 42
U.S.C. § 2000, et. seq., and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq.
For the following reasons, we AFFIRM the judgment of the district court.
I.
Steve Bourini, a Muslim native of Jordan, immigrated to the United States in 1989. In 1998,
Bourini began to work as a tire builder at Bridgestone/Firestone’s tire manufacturing plant in
LaVergne, Tennessee. The claims at issue here arise out of what Bourini alleges is a pattern of
*
The Honorable Daniel M. Friedman, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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discriminatory treatment sufficient to constitute a hostile work environment under Title VII and the
Tennessee Human Rights Act. In support, Bourini points to eight alleged incidents of harassment.
First, Bourini claims that within the first few months of his employment at Bridgestone/Firestone
in 1998, an unnamed “set-up technician” at the plant told him: “Steve, I don’t want to go outside and
see your camel tied to my wheels.” Bourini apparently ignored this comment and did not mention
it to any supervisor. Second, Bourini alleges that in 1999 another coworker, Mike Jones, called
Bourini a “camel jockey.” This time Bourini complained to his supervisor, and Jones was counseled
not to make any derogatory comments to Bourini. Bourini admits that Jones never made any
subsequent inappropriate comments and that he and Jones “became good friends.”
Third, approximately two years later, Bourini claims that on September 21, 2001, soon after
the September 11 attacks, Bourini was subjected to another incident of harassment. Bourini alleges
that a co-worker, Scott Sharber, attempted to back over him while reversing a forklift truck. Bourini
concedes, however, that Sharber did nothing to indicate that he was aware of Bourini’s presence.
The incident was investigated by the company’s labor relations manager, Roger Smith. Smith
interviewed Sharber, who claimed that he did not try to run over Bourini. A witness to the accident,
Bonnie Walden, also told Smith that she did not believe that Sharber had intentionally tried to run
over Bourini. Consequently, Smith concluded that he had no basis on which to conclude that
Sharber had acted intentionally, or that his actions were motivated by discriminatory animus.
Fourth, Bourini points to two statements that another co-worker, William Burkett, allegedly
made over two weekend shifts on November 24-25, 2001. On November 24, Bourini apparently
overheard Burkett say, “If it were up to [me], they would put [Bourini] back—put [Bourini] in a box
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and send [him] back to [his] country.” The next day, Burkett allegedly told Bourini, “[I]f you’d get
the sand out of your ears you’ll hear me better.” After an investigation into the incident, during
which Burkett denied saying anything to Bourini because of his national origin or religion, Smith
reminded Burkett of the company’s anti-harassment policy and told him that the company would
not tolerate harassment. However, citing a lack of evidence to substantiate the allegations, Smith
concluded that he could not discipline Burkett. Bourini transferred to a different crew on January
13, 2002.
On February 28, 2002, Bourini filed a charge with the Equal Employment Opportunity
Commission, claiming that he had suffered harassment because of his national origin and religion
based on these four initial claims of unfair treatment.
Bourini alleges that he was subjected to further harassment on several additional occasions
after his charge was filed. In March 2002, an unknown co-worker apparently mocked Bourini’s
voice over the intercom system after Bourini had used the intercom to request materials for his
machine. In June 2002, Bourini claims that he witnessed slurs painted on the wall of one of the
plant’s restroom stalls. Apparently, someone had written that the “I” in “Islam” stood for “idiots,”
the “s” for “shit bags,” the “l” for “losers,” the “a” for “assholes,” and the “m” for “morons.” Smith
investigated the graffiti, but was unable to match the handwriting to any writing sample.
Management subsequently painted over the graffiti.
After this claim was filed on November 22, 2002, two other alleged incidents of harassment
occurred. In December 2002, Bourini claims that he found a pamphlet at his work station entitled
“For my Muslim Friend.” While Bourini did not read the pamphlet, he apparently assumed that it
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was Christian proselytizing material. In February 2003, Smith sent an e-mail message to all
employees at the plant advising them that some of them needed to visit the human resources
department to receive information about a change in federal immigration laws. Bourini was
disturbed by the message because he felt that it should have been directed to him privately.
On November 22, 2002, Bourini filed this complaint against Bridgestone/Firestone, alleging
that the instances described above constituted harassment based on his national origin and religion
in violation of Title VII, 42 U.S.C. § 2000, et. seq., and the Tennessee Human Rights Act, Tenn.
Code Ann. § 4-21-101, et seq. Bridgestone/Firestone moved for summary judgment on November
3, 2003, which was granted by the district court on all of Bourini’s claims on March 18, 2004. The
court held that two incidents—the comments made by the set-up technician in 1998 and those by
Jones in 1999—were time-barred. As for the remaining incidents, the court concluded that Bourini
failed to meet his burden of establishing a prima facie case of a hostile work environment. Bourini
timely filed his notice of appeal of that decision on April 9, 2004.
On appeal, Bourini concedes that the district court accurately summarized the facts in the
record and recited the applicable law correctly. However, Bourini claims that the court, “in ruling
on both the Statute of Limitations and the significance of the eight undisputed episodes of
discriminatory, harassing conduct, . . . impermissibly invaded the province of the jury.” According
to Bourini, the district court erred in granting summary judgment because “the parties legitimately
advance differing inferences from known facts” and employer intent is at issue, thus suggesting that
there are genuine issues of material fact.
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III.
We review de novo the district court’s award of summary judgment on Bourini’s
discrimination claims. Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004). 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 a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We
consider all facts and inferences drawn therefrom in the light most favorable to the nonmoving party.
Peltier, 388 F.3d at 987.
The only issue presented in this appeal is whether the district court erred in granting
Bridgestone/Firestone’s motion for summary judgment on his claims under Title VII and the
Tennessee Human Rights Act. As a preliminary matter, the district court dismissed, and thus did
not address, two of Bourini’s alleged incidents of harassment because they were time-barred. We
need not consider whether the district court erred in finding these incidents time-barred because the
incidents, considered along with those that occurred within the limitations period, do not constitute
the grounds for a cognizable hostile work environment claim.
Under Title VII, a plaintiff establishes a prima facie case of hostile work environment based
on race or religion by demonstrating the following five elements: (1) that he was a member of a
protected class; (2) that he was subjected to unwelcomed racial and/or religious harassment; (3) that
the harassment was based on race or religion; (4) that the harassment had the effect of unreasonably
interfering with the plaintiff’s work performance by creating an intimidating, hostile, or offensive
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work environment; and (5) that the employer was liable for the harassment.1 Hafford v. Seidner, 183
F.3d 506, 512 (6th Cir. 1999). In our view, the district court was correct to conclude that Bourini
is unable to satisfy the fourth prong of this test.
A hostile work environment occurs “[w]hen the workplace is 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 quotation marks and citations omitted). In determining whether there
was a hostile work environment, this Court looks to the totality of the circumstances. Faragher v.
City of Boca Raton, 524 U.S. 775, 787-88 (1998). The conduct must be severe or pervasive enough
to create an environment that a reasonable person would find hostile or abusive, and that the victim
must subjectively regard as abusive. Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir.
2000). “Appropriate factors for the court to consider when determining whether conduct is severe
or pervasive enough to constitute a hostile work environment ‘include 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.’”
Id. (quoting Harris, 510 U.S. at 23). “The Supreme Court has consistently held that ‘simple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.’” Newman, 266 F.3d at 405
(quoting Faragher, 524 U.S. at 788).
1
Because the merits of Bourini’s claims under the Tennessee Human Rights Act are analyzed
under the same framework that applies to Title VII claims, we do not consider those claims
separately. See Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001).
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The district court concluded that Bourini did not make “a prima facie showing from which
a reasonable juror could find that he suffered harassment because of his national origin or religion
that was so pervasive or severe as to create a hostile work environment.” We agree with that
conclusion, as Bourini’s allegations of discrimination are insufficient to create a genuine issue of
material fact. First, the incidents were not sufficiently pervasive to establish an abusive working
environment. The eight alleged incidents were spread out over a period of five years, starting in
1998 and ending in 2003. These relatively infrequent and isolated incidents are thus insufficient to
constitute discriminatory changes in the terms and conditions of employment. See, e.g., Marshall
v. Fed. Express Corp., No. 99-6732, 12 Fed. Appx. 186, 2000 WL 1801275, at *2 (6th Cir. Nov. 30,
2000) (unpublished) (holding that a plaintiff could not establish a hostile work environment where
“[t]he alleged acts of harassment were isolated incidents spread out over a four-year period”).
Second, while several of the incidents were offensive and highly inappropriate, the incidents
collectively do not arise to the “threatening” or “humiliating” level of severe conduct required to
create an objectively hostile or abusive work environment under Title VII, especially in light of their
infrequency. Cf. Jackson v. Quanex, 191 F.3d 647, 662 (6th Cir. 1999) (holding that a plaintiff’s
allegations of regular and persistent racial slurs and graffiti, physical attacks, and tampering with
acid valves in area in which the plaintiff worked, were severe enough to survive summary
judgment).
We also note that even if we concluded that Bourini presented sufficient evidence of a hostile
work environment to survive summary judgment, Bourini is unable to satisfy the fifth prong;
namely, that Bridgestone/Firestone was liable for the harassment. In order to hold an employer
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directly liable in this context, the plaintiff must show “that the employer knew or should have known
of the conduct, and that its response manifested indifference or unreasonableness.” Id. at 663
(citations omitted). “Generally, a response is adequate if it is reasonably calculated to end the
harassment.” Id. (citations omitted). Here, there is no substantive evidence in the record suggesting
that Bridgestone/Firestone failed to respond appropriately to the alleged discriminatory incidents.
Thus, summary judgment for Bridgestone/Firestone was appropriate.
IV.
For the aforementioned reasons, we AFFIRM the district court’s grant of summary
judgment.