William Carpenter v. Con-Way Central

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2732
___________
William Carpenter, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Con-Way Central Express, Inc., *
*
Appellee. *
___________
Submitted: January 12, 2007
Filed: March 28, 2007
___________
Before LOKEN, Chief Judge, BYE and SHEPHERD, Circuit Judges.
___________
BYE, Circuit Judge.
William Carpenter appeals the district court's1 adverse grant of summary
judgment on his race discrimination, hostile work environment, and retaliation claims
brought under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C.
§§ 2000e to 2000e-17 (Title VII) and the Iowa Civil Rights Act of 1965, Iowa Code
ch. 216 (ICRA). After a de novo review, we affirm the judgment of the district court.
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
I
Carpenter, who is Caucasian, was married to an African American from 1994
through December 2001. He worked as a driver/sales representative for Con-Way
Central Express, Inc. (CCX), a freight trucking company, from May 1993 through
August 2004. Carpenter claims he was subjected to discrimination because of his ex-
wife's race and suffered pervasive harassment giving rise to a hostile work
environment. He also argues CCX retaliated against him after he opposed
discrimination at CCX by testifying in another employee's race discrimination lawsuit
against CCX.
Carpenter's allegations center on the actions of Rick Hardy, a non-managerial
employee at CCX, who made racially charged remarks to CCX employees. A number
of Carpenter's co-workers testified Hardy used the term "nigger" on different
occasions. One co-worker testified Hardy once stated "everybody should own" a
"nigger." J.A. 201. Another co-worker testified Hardy told him Carpenter had
referred to his ex-wife as "Jamaican," but in Hardy's view she was "nothing but a
nigger." J.A. 258. He testified Hardy "was always calling [Carpenter] a nigger lover
and stuff like that behind his back." J.A. 259. Hardy stated "[Carpenter] makes the
rest of us look bad by doing stuff like that." Id. Hardy "was constantly raging about
[Carpenter] being married to a black gal." Id. Another co-worker stated he heard
Hardy call Carpenter a "nigger lover to the core." J.A. 39. Hardy did not make any
of these comments in Carpenter's presence. Carpenter's co-workers told Carpenter of
Hardy's "nigger" and "nigger lover to the core" comments for the first time in May or
June 2004. J.A. 128. Carpenter testified, "There were no racial comments, but
[Hardy] was just always being a smart ass." J.A. 128. Carpenter testified he never
told anyone in management at CCX about Hardy's "nigger," "nigger-lover," or "nigger
to the core" comments. J.A. 128. Carpenter states Hardy did make one racist
comment in his presence. Carpenter testified when he and his ex-wife were divorcing,
Hardy commented, "That's what you get for marrying those type." J.A. 104.
-2-
Carpenter asked, "What do you mean by 'those type?'" Id. Hardy responded, "You
know what I mean." Id.
Carpenter alleges Hardy continually harassed him at work. Hardy made
antagonistic, although apparently not racist, comments such as "why don't you just
quit?" to Carpenter on a weekly basis. Carpenter testified Hardy intentionally
misloaded his trailer on an estimated twenty occasions between 2000 and 2004,
placing the wrong freight on the trailer, putting early deliveries in the front (rather
than the back) of the trailer, or loading the trailer so it was not balanced. J.A. 98.
Carpenter also testified he saw Hardy put trash and debris (e.g., plywood, dunnage,
and garbage cans) in his trailer on four occasions over a couple of years. He alleged
he found trash and debris on his trailer on twenty occasions. Another coworker
testified he saw Hardy put trash in Carpenter's trailer approximately once a week.
Other drivers played similar pranks on their coworkers. The misloading caused
drivers delays in delivering their goods because they would have to backtrack on
delivery routes and sometimes go to the same destination multiple times. One
coworker stated Hardy "was constantly tormenting [Carpenter]." J.A. 261. Another
coworker testified Carpenter was one of Hardy's favorite targets. On one occasion,
Carpenter received a written reprimand for leaving a pallet-jack on a trailer, the
apparent result of a prank.
Carpenter asserts Hardy's actions were motivated in part by Hardy's knowledge
Carpenter had testified (along with three other CCX employees) in October 2000 in
an employment discrimination action against CCX brought by Mark Langford, a
former CCX employee. Carpenter's testimony in Langford's case implicated Paul
Beckett, a CCX supervisor. Carpenter's supervisor, John McCutcheon, knew
Carpenter had testified in Langford's case. Carpenter alleges his decision to testify in
Langford's case fueled Hardy's animosity. According to Carpenter, another driver told
him Hardy called him a "traitor" for testifying. J.A. 128. Carpenter testified he never
told anyone in management at CCX about Hardy's "traitor" remark. Id.
-3-
Carpenter states he complained to McCutcheon about Hardy's pranks with the
trailers seven to ten times during the four-year period from 2000 to 2004. J.A. 117.
The first time he complained (in January or February 2001), he informed McCutcheon
he felt Hardy was trying to get him fired in retaliation for his testimony in Langford's
case. Carpenter states McCutcheon told him not to worry because anyone who
testified was "in a glass shell," presumably meaning they could not be subjected to
retaliation for their testimony. Id. Carpenter states McCutcheon did not take any
action relating to Hardy.
In May 2004, Carpenter complained to the regional manager about trash on the
trailers and other issues. Carpenter told the regional manager he believed Hardy was
trying to get him fired, and he had heard Hardy was making racist comments. He also
reported the comment made directly to Carpenter, "That's what you get for marrying
those kind." J.A. 29. Carpenter stated: "I did not describe the other specific examples
that had been told to me at that time because the driver who had relayed the comments
was still employed by the company." Id. McCutcheon was also present at these
meetings.
On August 20, 2004, Carpenter arrived at work. Hardy told him if he needed
a pallet jack, he would find one on the trailer Carpenter had used the day before.
When Carpenter arrived at the trailer, he found it full of plywood and garbage in
addition to the pallet jack. As he cleaned it, Hardy and another employee drove by
and threatened to report Carpenter for leaving his trailer dirty, and Carpenter and
Hardy "had words." J.A. 94, 235. Carpenter testified he did not know if Hardy put
the trash in his trailer.
Carpenter then went to see McCutcheon. Carpenter recalls his words to
McCutcheon: "if he wasn't going to take care of this problem with Rick Hardy, that
I was going to take a week's vacation and give him my week's notice because I was
tired of dealing with it." J.A. 94. Carpenter reminded McCutcheon he had
complained about Hardy's antics several times. McCutcheon responded if Carpenter
-4-
did not like the way things were run at CCX, Carpenter could leave his keys on
McCutcheon's desk. McCutcheon then turned his back to Carpenter and ignored him.
Id. Carpenter put his keys on McCutcheon's desk and McCutcheon said: "[D]on't call
me back in a week begging for your job back." Id.
Later the same day, Carpenter called CCX's personnel manager and described
the problems he had been having with Hardy. According to Carpenter, the personnel
manager asked him if he wanted to keep his job and Carpenter responded yes three or
four times. Carpenter states he told the personnel manager, "But if this treatment
continues, I don't want my job." J.A. 125.
McCutcheon secured handwritten statements from a number of employees
regarding Carpenter's last day of work. The personnel manager had Carpenter submit
a written statement regarding his last day of work. Carpenter's statement makes no
mention of racial discrimination or racial harassment. J.A. 53-54. On August 23,
2004, Carpenter met with McCutcheon and spoke by telephone with the personnel
manager. Carpenter informed the personnel manager he would like to keep his job,
but he no longer wanted the job if the treatment continued. The personnel manager
later informed Carpenter he would not be allowed to rescind his resignation.
II
A. Race Discrimination
Carpenter recognizes the court should analyze his Title VII and ICRA
discrimination claims using the three-pronged burden-shifting scheme first described
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).2 The first prong
2
Since Iowa courts "look to federal case law interpreting Title VII . . . for
guidance in deciding cases under [the ICRA]," Bd. of Supervisors v. Iowa Civil Rights
Comm'n, 584 N.W.2d 252, 254-55 (Iowa 1998), our analysis of Carpenter's federal
-5-
of the McDonnell Douglas scheme requires a plaintiff to present a prima facie case of
discrimination. 411 U.S. at 802. To meet his burden of showing a prima facie case
of discrimination under Title VII, a plaintiff must show (1) he is a member of a
protected class, (2) he was meeting his employer's legitimate job expectations, (3) he
suffered an adverse employment action, and (4) "similarly situated employees outside
the protected class were treated differently." Shanklin v. Fitzgerald, 397 F.3d 596,
602 (8th Cir.), cert. denied, 126 S. Ct. 807 (2005).
"Just like any other discharge, a constructive discharge is an adverse
employment action." Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 825 (8th Cir.
2006). "Constructive discharge occurs when an employer deliberately renders the
employee's working conditions intolerable, thereby forcing [him] to quit." Baker v.
John Morrell & Co., 382 F.3d 816, 829 (8th Cir. 2004). To prove a case of
constructive discharge, a plaintiff must show (1) a reasonable person in his situation
would find the working conditions intolerable, and (2) the employer intended to force
him to quit. Tatum v. Ark. Dep't of Health, 411 F.3d 955, 960 (8th Cir. 2005). A
plaintiff may meet the second element by showing his "resignation was a reasonably
foreseeable consequence of [his employer's] discriminatory actions." Hukkanen v.
Int'l Union of Operating Eng'rs, 3 F.3d 281, 285 (8th Cir. 1993).
Carpenter argues he was constructively discharged when McCutcheon stated,
"If you don't like the way things are run around here, leave your keys on my desk."
Appellant's Br. at 27. Carpenter contends this statement shows McCutcheon wanted
him to quit or McCutcheon was giving him an ultimatum to, in effect, put up with the
harassment or leave, and Carpenter's decision to quit was a reasonably foreseeable
consequence of CCX's failure to address Carpenter's complaints about Hardy. We
disagree.
claims applies with equal force to his ICRA claims.
-6-
It was Carpenter who stormed into McCutcheon's office and threatened to quit.
It was Carpenter who, after being ignored by McCutcheon, turned in his keys. Even
assuming Carpenter explained to McCutcheon that Hardy's conduct was in retaliation
for Carpenter testifying in Langford's case, the actions of McCutcheon do not
demonstrate an intent to compel his resignation. MacGregor v. Mallinckrodt, Inc.,
373 F.3d 923, 928 (8th Cir. 2004) ("A constructive discharge occurs when an
employee resigns after the employer has created an intolerable working environment
in a deliberate attempt to compel such a resignation."). The first time Carpenter
complained to McCutcheon about Hardy's alleged retaliatory threats, McCutcheon
stated Carpenter would be protected from retaliation for his testimony in Langford's
case. In addition, McCutcheon implemented Carpenter's "dock clearing" crew idea
which involved Carpenter and another employee rearranging freight so it would be in
the right position in the trailers for deliveries. On another occasion, McCutcheon
called a dock meeting and stated, as paraphrased by Carpenter, "Hey, look guys.
Everybody needs to start treating people a little better around here." J.A. 118.
Nor was Carpenter's decision to turn in his keys a reasonably foreseeable
consequence of CCX's failure to address Hardy's ongoing conduct. The conduct
consisted of unreported racial epithets directed at Carpenter but not heard by
Carpenter, one racial epithet directed to Carpenter about marrying a black woman, the
placement of garbage in his trailer four to twenty times over two years, and the
misloading of his trailer up to twenty times over four years. As for the trailer pranks,
at least six other drivers for CCX had experienced similar harassment by Hardy and
none of those drivers had resigned. Moreover, we find Hardy's racial slurs do not
convert Carpenter's resignation into a constructive discharge. See, e.g., Reedy v.
Quebecor Printing Eagle, Inc., 333 F.3d 906, 910 (8th Cir. 2003) (concluding graffiti
associated directly with plaintiff's name such as "coon," "all niggers must die," and
"kill all niggers," the last of which was not removed after notice to the employer, was
sufficient to survive summary judgment on a hostile work environment claim but not
sufficient to show conditions so intolerable a reasonable person would have quit).
-7-
Given the above, Carpenter did not proffer evidence showing CCX should have
foreseen he would quit.
As a result, Carpenter failed to show he suffered an adverse employment action
and, thus, did not set forth a prima facie case of race discrimination.
B. Hostile Work Environment
To establish a Title VII race-based hostile work environment claim, a plaintiff
must show (1) he is a member of a protected group, (2) he is subjected to unwelcome
race-based harassment, (3) the harassment was because of his membership in the
protected group, and (4) the harassment affected a term, condition, or privilege of his
employment. Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 892 (8th Cir. 2005). A
hostile work environment "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" as viewed objectively by
a reasonable person. Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir.
2003) (internal quotation omitted). "To be actionable, the conduct complained of
must be extreme in nature and not merely rude or unpleasant." Nitsche v. CEO of
Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir. 2006) (citations omitted).
"Allegations of a few isolated or sporadic incidents will not suffice; rather, the
plaintiff must demonstrate the alleged harassment was 'so intimidating, offensive, or
hostile that it poisoned the work environment.'" Id. (quoting Tuggle v. Mangan, 348
F.3d 714, 720 (8th Cir.2003)).
Hardy's racial insults were not shown to be connected to Hardy's misloading of
or placing garbage in Carpenter's trailer. Carpenter testified Hardy "was an instigator
to everybody" who "would instigate problems" such as "do[ing] things . . .
intentionally" to "piss a driver off" and then run down the dock telling everybody he
had just done something to someone's trailer. J.A. 98. While Carpenter was a favorite
target of Hardy's childish pranks, another employee testified Hardy played a practical
-8-
joke on somebody "about daily." J.A. 253. This evidence does not show objectively
hostile conduct. See, e.g., Singletary, 423 F.3d at 892-93 (finding job environs where
the plaintiff had second-hand knowledge his co-workers and some managers referred
to him as a "nigger" and where his vehicle had been vandalized on several occasions
not objectively severe and pervasive); Bainbridge v. Loffredo Gardens, Inc., 378 F.3d
756, 759 (8th Cir. 2004) (finding racial remarks, made directly to plaintiff, once a
month for two years by owner and operators, was insufficient to render the workplace
objectively hostile).
C. Retaliation
To make a prima facie case of retaliation against an employer, a plaintiff must
show (1) he engaged in protected conduct, (2) a reasonable employee would have
found the challenged retaliatory action materially adverse, and (3) the materially
adverse action was causally linked to the protected conduct. See Burlington N. and
Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2410-16 (2006); Higgins v. Gonzales, No.
06-2556, 2007 WL 817505, at *8 (8th Cir. Mar. 20, 2007) (discussing the elements
of a retaliation claim after Burlington).
The challenged retaliatory action here is either Carpenter's constructive
discharge or the employer's failure to rectify Hardy's behavior. As stated above,
Carpenter was not constructively discharged. Thus, the question is whether CCX's
failure to stop Hardy's conduct and comments was an act which would have dissuaded
a reasonable worker from participating in a Title VII investigation or action involving
CCX. We find Hardy's conduct not so severe and pervasive as to create a hostile work
environment. The effect of the conduct more closely resembles the "trivial harms"
identified in Burlington Northern and Santa Fe Railway Co. v. White which the
Supreme Court found not actionable:
We speak of material adversity because we believe it is important
to separate significant from trivial harms. Title VII, we have said, does
-9-
not set forth "a general civility code for the American workplace." An
employee's decision to report discriminatory behavior cannot immunize
that employee from those petty slights or minor annoyances that often
take place at work and that all employees experience. The
anti-retaliation provision seeks to prevent employer interference with
"unfettered access" to Title VII's remedial mechanisms. It does so by
prohibiting employer actions that are likely "to deter victims of
discrimination from complaining to the EEOC," the courts, and their
employers. And normally petty slights, minor annoyances, and simple
lack of good manners will not create such deterrence.
126 S. Ct. at 2415 (internal quotations and citations omitted). Carpenter argues the
misloading of his trailer and placing of garbage in his trailer was more than a trivial
harm to him as it took longer to make his deliveries when such pranks occurred. But,
at best, he alleges such conduct took place several dozen times over four years. This
conduct which was not shown to be connected in any way to Hardy's racial slurs (most
of which were never reported to management), does not rise beyond a trivial harm.
Finally, Carpenter did not show any causal connection between CCX's failure
to correct Hardy's behavior and his participation in Langford's case. While CCX knew
Carpenter had participated in Langford's case in October 2000 and McCutcheon knew
in January or February 2001 Carpenter had alleged Hardy was threatening retaliation
against Carpenter for his participation in the case, there is no evidence to suggest CCX
failed to correct Hardy's behavior because Carpenter testified in Langford's case or to
stymie any other employee from participating in any protected conduct.
III
Accordingly, we affirm the judgment of the district court.
-10-