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

part, part, Affirmed reversed VI. CONCLUSION remanded. Ivy The District conclusion that Court’s entrance into

consented to the officers’ AFFIRMED; District house is while the Ivy’s Court’s consent for conclusion voluntarily police to his house was search RE- imparted This ease is REVERSED. proceed- MANDED to court for the district ings ruling. consistent with ALLEN, Plaintiff-Appellant,

Albert DEPARTMENT MICHIGAN OF CORRECTIONS, Defendant-

Appellee. No. 97-1720. Appeals, United Court of States Circuit. Sixth Aug. Submitted 1998. Jan. Decided (briefed),

Robert H. Golden Golden & Kunz, Lathrup Michigan, Village, for Plain- tiff-Appellant. O’Brien, Atty. J.

Patrick Asst. Gen. (briefed), Mackey, John S. Office of the At- General, torney Employment Public & Elec- Division, Lansing, Michigan, tions for Defen- dant-Appellee. KEITH, BATCHELDER,

Before: COLE, Judges. Circuit J., COLE, opinion delivered court, KEITH, J., joined. in which BATCHELDER, 413-418), (pp. J. delivered separate opinion part in concurring dissenting part. in COLE, Judge. Circuit Plaintiff-Appellant appeals Albert Allen summary judg- the district court’s ment in employer, favor Allen’s ‍​​‌‌​‌​​‌​​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​​‌‌​​‌​​​​​​‌​​​‌‍the Michi- (“MDOC”) gan Department of Corrections on Title Allen’s VII of racial discrimi- claims nation, engag- harassment and retaliation for ing protected activity. in For the reasons follow, part we AFFIRM in RE- part, in and REMAND to the VERSE dis- in proceedings trict court further accor- opinion. dance

I. American,

Allen, who is African has been employed capacities various Beginning since 1985. Allen com- plained discriminatory conduct directed supervisory personnel him white towards employed on while Allen Cell Block Eight Facility Jackson Correctional (“Block Eight”). complaints appear Allen’s to have started when the three black officers working Eight Block were transferred out September the block “[i]t customary was not officers to work black around its neck. MDOC a noose grievance Allen filed a 8.” Block Cell by tak- investigated this incident reassigned transfer and was objecting in- reassignment, ing handwriting samplеs and Eight. After to Block terviewing employees, Eight. but officer on Block black never discovered. perpetrator was filing that as a result that MDOC should Allen claims transfer, he was grievance regarding the the threaten- fingerprinted have haussment, subjected acts to “numerous ing note. retaliation, on account of discrimination allegations can be summa- occasions, race.” Allen’s several Late 1991: On rized as follows: Eight sign-in Block notations changed re- log used bolt cutters to improperly A white officer were

12/28/89: longer than the lock on Allen’s locker. flect that Allen took to cut the thirty-minutes investigation disciplinary for lunch. No allotted place. “counseling memoran- action took Allen received da” for these incidents. receiving disciplined by a Allen was 1/8/90: for “counseling memorandum” leaving was work when Allen 10/27/91: leaving unsecured and a break bоx supervisor, Sergeant told gate opened “when other white Madery, he had to return keys to the box also had officers report. replied to finish a Allen gate have and could been and it that he would finish on but were for occurrence blamed day. Madery next work then not.” to following comments made successfully passed the exam- Allen 3/3/90: writing your Allen: “I’m black placed sergeant was for ination you get up,” “Boy, I to ass told persons pass- the “first band” in your black ass into the back However, Al- ing the examination. your paper and finish block promoted to never ser- len was you can’t work” and “Allen despite geant the fact white you sergeanc make because in the “second band” employees play won’t team As ball.” promoted. incident, continuation Resi- Allen told Assistant Madery was told Allen that he was 10/9/90: Manager Hilton that dent Unit transferring him an area lazy like the rest of his “he was more could watched they why that is are people and closely “[njiggers can’t prison.” inall reported be trusted.” Allen ' n RgO/Early1991: Resident Unit Man- Madery’s shift statements Late writing commander. ager Bailey was advised had white officers who allow three Allen a resume submitted 4/8/93: sergeant’s examina- passed the not sergeant position for a experience and had less and se- tion informed that he was not was niority than Allen assume the eligible on list of individuals “acting-sergeant” duties of when position sergeant. for the present not on shift. complains general: that he job and obtained a Allen bid 6/27/91: constantly observed and followed Eight. Allen a note Block found Hilton, Bailey although Madery, possessions among his said fol- employees were so non-black not, you “Allen Pull bid—if IV. lowed. joba looking for die. will be complaints regarding Nigger The nоte was Allen filed additional out.” writ- forms, Michigan Depart- with the departmental these incidents ten on Equal Employ- Rights and the picture ment Civil signed “KKK” and had (“EEOC”). Opportunity Commission figure it ment drawn on of a stick long-term disability summary judgment, evidence, Allen went on tion for all stress; addition, facts, leave because of may inferences that be drawn antidepressant and un- light now takes medication must be from the facts viewed in the dergoes counseling, allegedly result as a nonmoving to the party. most favorable See employment Ms conditions. Matsushita Elec. Indus. Co. v. Zenith Radio 574, 587, Corp., 475 U.S. 106 S.Ct. January issued a On the EEOC (1986) (citing L.Ed.2d United States Thereafter, “right sue” letter to Allen. Diebold, Inc., 654, 655, 369 U.S. complaint Allen filed in the States United (1962) curiam)). (per Court for District the Eastern District MicMgan, alleging violations of Title VII of Rights

the Civil Act of 42 U.S.C. III. § § seq., MicMgan’s 2000e et Elliott- Act, Rights Comp. Larsen Mich. Laws Civil case, In tMs Allen raises three Title § seq. Specifically, Ann. et 37.2101 (2) discrimination; racial VII claims: ra discrimination, complaint harassment; cial retaliation en harassment, engaging and retaliation gaging protected general, activities. protected 2,May activities. On plaintiff in VII a Title action “has the burden court district dismissed Allen’s state-law preponderance a proving by of of the evi claims. prima dence a facie Dep’t case.” Texas of Burdine, Community v. 450 U.S. summary then filed a motion for Affairs 252-53, 101 67 207 S.Ct. L.Ed.2d claims, judgment on Allen’s Title VII (1981). proving pri After the existence of a granted court the district on June case, (1) ma facie the burden shifts to the defen court found that failed The district Allen: legitimate, dant to a articulate non-discrimi prima to a race establish facie case of dis- natory for reason the adverse See action. because he that he crimination did not show Green, Douglas Corp. McDonnell v. 411 any promotions by applied for non- received 792, 802-03, employees; 36 668 93 L.Ed.2d black failed to establish a (1973). burden, If the defendant meets prima case of he facie harassment because plaintiff that or con- must then show that the did not show MDOC tolerated defen issue; pretext dant’s reason a doned the conduct at failed to articulated is prima a establish facie case of retaliation discrimination. See id. We therefore start by did determining because he not show that the whether Allen defendants has estab protected activity of his or that prima respect were aware lished a facie ease with to each there a causal connection between claim.

protected activity and adverse

employment Accordingly, action. district A. Racial Discrimination judgment court entered favor of MDOC. timely appeal TMs followеd. pro- Allen claims MDOC’s failure to sergeant mote him was based to on racial

II. claim, support of Al- discrimination. employees len non-black contends that who We review de novo district court’s sergeant passed had not examination summary judgment. City of Man See Allen, promoted instead of had Co., who Corp. agement U.S. Chem. F.3d examination; passed (6th Metiva, in addi- Cir.1994); Adams v. raee, tion, Cir.1994). Allen contends because of his Summary judg F.3d of permitted he was not to assume the duties if proper pleadings, depositions, ment is “the “acting sergeant,” nor was he on of the 'list interrogatories, answers to and admissions affidavits, promotion file, together employees eligible sergeant. any, with the if disciplinary that he received genuine show that there is no Allen also claims issue as party counseling fact and that actions in the of memoranda moving material form race, judgment and that entitled to as a matter law.” because of his 56(e). reviewing using epithets racial Fed.R.Civ.P. When mo- referred to him closely they regarding material fact him more than moni- uine issue of whether monitored employees. promotion Allen was denied a while other tored non-black similarly pro- situated non-blacks received In order set forth claim correctly grant- motions. The district court discrimination, must racial show summary judgment to ed MDOC on Allen’s employment ‍​​‌‌​‌​​‌​​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​​‌‌​​‌​​​​​​‌​​​‌‍he has suffered an adverse discrimination, claims of racial and we there- is, action; he he establish that has must judgment. affirm that fore “materially change adverse” suffered employment because conditions of terms or B. Racial Harassment Kocsis v. employer’s actions. See harass- alleges various acts racial Inc., Management, Multi-Cere fol- ment MDOC. These acts include the omitted). (citation (6th Cir.1996) Despite locker; lowing: Allen’s lock was cut off his cited the fact that the incidents altered; log his notations in the book were animus, racial these incidents did reflect action; disciplinary he received unwarranted “materially pait, most result in a for the closely he monitored more than non- change employment in Allen’s sta adverse” promoted employees; he black or in the terms and conditions tus subjected epithets sergeant; he was racial exception to this is Allen’s employment. The supervisory personnel; and he and insults promote him failed to claim that MDOC threatening signed by note received on his race. based court found that Allen “KKK.” The district VII, Title a failure purposes For prima failed to establish a facie case employment action. promote is an adverse harassment because incidents of which Dep’t, Cuyahoga County Hale v. See Welfare to form a complained were insufficient hostile (6th Cir.1989). 604, In order to 891 F.2d 606 claim and no work environment there was dis prima a facie claim of racial establish tolerated or condoned evidence promote, based on a failure to a crimination disagree We on both counts. behavior. (1) he is plaintiff must demonstrate that: a a In order to establish hostile work (2) class; applied a he protected member of claim, plaintiff show that environment must (3) qualified promotion; for a he was and was per the harassment consisted of “severe or promotion; considered for and denied the Indus., Burlington Inc. vasive conduct.” See employees qualifica of similar other — Ellerth, -, -, 118 v. U.S. S.Ct. protected not tions who were members of (1998) (citations 141 L.Ed.2d 633 promotions. Betkerur v. class rеceived See omitted); also Davis Chem. see v. Monsanto Ass’n, Hosp. Aultman 78 F.3d 1095 (6th Cir.1988) Co., (stating F.2d 349 Tennessee, (6th Cir.1996); Brown v. 693 F.2d slurs”). “repeated that a must show Cir.1982). respect requirement, we have With this case, although Allen, the present stated that American, an as African established he all that the victim of racial harassment protected class was member of is that conduct need show qualified position sergeant, for of he was unreasonably abusive or of- constituted rejected he to show that he failed was environment ad- fensive work-related not person favor of who a mem another was versely employee’s affected the reasonable protected deposition of In his ber his class. ability job. his or her to do testimony, Allen stated that he could name Davis, 349. person promoted one non-black who was clearly allegations of sergeant Several Allen’s admitted —Cerone—but First, harassment. Allen position not of constitute racial did interview subjected derogatory racial insults promoted. was Al was time Cerone Hilton, Madery supervisors, two of his len could not name other individuals who Allen that separate occasions. Hilton told promoted Accordingly, Al sergeant. were his lazy people “he like the rest of len facie of prima cannot case establish Madery they why prison.” are all in gen- racial no that is discrimination because there is 4H unreasonably writing your “I’m black cidents created an abusive or stated to Allen that up.” Madery ass also commented to which offensive work-related environment transferring ability him to an area adversely that he was to do his affected Allen’s closely job. which he watched more be- could be Bailey, “[n]iggers cause be trusted.” can’t here, analysis stop Our does not supervisors, allegedly another of Allen’s previously if however. have stated that We supervisors informed Al- his to allow racially plaintiff can show that motivated con acting-sergeant len to serve when ser- as environment, duct constituted a hostile work shift, although geant on the present was not employer he then must show that the “toler experienced permit- less officers white harassing ated or conduct in condoned” points fact ted to do so. Allen also to the employer order liable. be See supervisors-never investigated. that his Davis, case, F.2d at In this removing disciplined caught officer the white riot district court found that Allen did estab the lock locker with from Allen’s bolt cutters. lish that MDOC tolerated or condoned the addition, supervi- Allen claims that his conduct; therefore, harassing Allen did not unfairly race uрon sors treated him based prima set forth a facie case of racial harass continual, ongoing support on a basis. However, against ment MDOC. since the statement, he, unlike Allen claims that decision, time of the district court’s the Su officers, constantly white observed preme Court has modified the “tolerated or by Madery, Bailey Al- followed and Hilton. condoned” standard to the" allow vicarious supervisors len these moni- also claims that liability employers in harassment cases. closely tored his work more than that — Indus., Ellerth, Burlington See Inc. v. allegation supported white officers. This is U.S. -, by Madery’s comment that Allen had Raton, Faragher City Boca closely “[n]iggers watched more -, L.Ed.2d can’t be Allen’s other trusted.” (1998). Although Faragher Ellerth and ongoing receipt include the harassment, dealt with claims sexual their counseling memoranda equally reasoning aрplicable to claims of when re- Allen was several minutes late Deffenbaugh- harassment. See resulted, turning from lunch Stores, Inc., Wal-Mart 156 Williams v. F.3d claims, log of book. falsifications the Cir.1998) (5th ap that “it (stating 593 Perhaps disturbing most Allen’s evidence pears Faragh Court and [in that the Ellerth of racial is the letter threatening agency apply to these same er] intended him telling he received to “Pull bid —If liability principles inquiries all vicarious to job you Nigger for a looking will be or die. supervisors, for acts in under Title VII of signed by out.” The note “KKK” the discrimination); Wright-Sim cluding racial lynching, and a reference to a contained City, City 155 F.3d mons v. The Oklahoma of drawing figure of a stick with a around noose (10th Cir.1998) (stating “[a]l- 1270 Although its neck. this event could not be Burlington though Faragher and involved directly supervisors, attributed harassment, principles sexual the established supervi- there is a least an inference that the аpply equal in those with force to this cases sors action perpetra- condoned the as the harassment”); case of Wallin v. tor(s) Moreover, found. su- were never the Corrections, Dep’t 153 F.3d Minnesota of pervisors themselves could not ruled out be (8th Cir.1998) Faragh (applying 687-88 perpetrators, given racially as the moti- their ADA); er to an harassment claim under

vated insults directed at Allen. Allen even- Hosp., see v. Medina 96 also Gen. Crawford tually disability a long-term went on leave as (6th Cir.1996) (stating, pre- F.3d result of stress. Faragher, Ellerth elements “[t]he and same, regardless proof These nei- are the instances harassment were and burden sporadic; ther isolated nor we con- of the context in therefore discrimination (citation subjected omitted)); clude that hostile claim Harrison v. Allen was to a arises” Gov’t, Metropolitan work in- ongoing environment because these F.3d reassignment Cir.) Faragher, promote, significantly (stating, and pre-Ellerbh proof responsibilities, a or a caus- different decision burden “the elements plaintiff ing significant change must meet are the same a Id. at Title benefits.” VII -, stated, charged harassment as for sexu we have racially 118 S.Ct. 2268. As denied, harassment”), failure-to-pro- cert. ally charged Allen has not established -, claim, nor he set forth other mote has (1996). actions; tangible employment ac- claims of cordingly, may raise affirmative Faragher, Court dis- In Ellerth may vicariously Because MDOC defense. liability employer of an cussed the vicarious supervi- harassing of its Hable for actions supervisory employee. of a for the actions sory employees, we reverse the district stated Ellerth: The Court summary judgment in court’s favor agency prin- to accommodate order clаims and of MDOC Allen’s harassment liability ed ciples vicarious for harm caus to that court for a determination remand authority, supervisory as well misuse of lia- regarding MDOC’s affirmative defense to equally policies of en- as Title VII’s basic bility. by employers couraging. forethought by objecting employees, we saving action C. Retaliation holding in adopt following this case and ... also decid- Faragher v. Boca Raton that his re- subject today. employer is to vi- ed An griev against him he filed taHated liability employ- ato victimized carious Michigan ances and the with the EEOC Civil environment ee an actionable hostile Rights Commission. order establish supervisor with immediate created retaliation, prima facie case (or successively authority higher) over (1) activity engaged must that: show employee. tangible employ- When no (2) VII; protected Title the exerсise of his taken, defending employer ment action defendant; rights civil was known may defense liabili- raise affirmative thereafter, employ the defendant took an by a ty subject proof pre- damages, plaintiff; ment to the action adverse evidence, ponderance of the see Fed. Rule there was causal connection between the 8(c). comprises The defense Civ. Proc. activity protected employ adverse (a) necessary that the em- two elements: Harrison, ment action. See 80 F.3d pre- exercised reasonable care to ployer Gould, (citing Wrenn any sexually promptly vent and correct (6th Cir.1987)). (b) behavior, harassing plain- Here, clearly engaged pro unreasonably to take employee tiff failed by filing activity grievances tected various advantage any preventive or corrective found, against The district MDOC. court employer opportunities provided by the however, that Allen failed to establish that to harm avoid otherwise. his aware of the exercise of civil MDOC was at -, (emphasis S.Ct. at 2270 rights. argues that Allen now the district added). court have inferred that MDOC was should case, then, present MDOC so aware. subject may liability for Al vicarious specifically Allen has not that regarding len’s claims of its su actions superiors MDOC or his immediate were ibject ability to pervisory employees, s to its grievances; aware that he had filed various affirmative de raise the above-mentioned however, deposition testimony, in Allen’s is entitled to the affirmative fense. MDOC exchange place: following took if has to establish that he defense Allen failed many Q. rights At time how civil that tangible employment action result suffered a you complaints had filed with either the ing from the hostile environment. The work Michigan Department EEOC Supreme “tangible employ Court defined Rights? of Civil in significant change ment action” “a em as status, failing at this time. ployment hiring, firing, A. I can’t remember such as n 1984). Bailey Although dispositive Q. Okay. you know if no one factor is Do RUM connection, complaints? establishing a causal was aware of these evidence that the defendant treated the dif- likely A. More than he was. ferently identically employees situated Q. you do base that belief on? What taken shortly or that the adverse action was A. Department He’s the Corrections’ protected plaintiffs after exercise supervisor. rights is relevant to causation. See Moon v. Drivers, Inc., Transport F.2d Q. Okay. say that all offi- Cir.1987). You the black addition, the burden of block, is cers were removed from the cell prima establishing facie in a case retalia- before, discussing that what we were onerous, easily tion action is not but one met. Captain memo from White? Avery, See 104 F.3d at 861. A. Yes. burden, Despite easily met Allen has Q. you only officer, And black were present failed to sufficient evidence in this officer, grieved who that removal from the case us to to allow draw an inference that he cell block? promotion previous- he denied A. Yes. ly had filed discrimination actions. As we noted, Q. you only allegations regarding have- Allen’s And were the one that was promote vague MDOC’s failure to him are returned? generalized. presented Allen has not A. Yes. any specific dates or which he incidents colloquy, appears Based it that on this promotion, was denied nor does show general, Bailey particular, differently that he was treated from identi- grievances. were aware that Allen had filed Instead, cally employees. situated At the time of Allen’s removal from Block merely promoted states that he was not Eight, Manag- Bailey Resident was the Unit employees while non-black certainly er of that block. can We infer promoted sergeant. Despite repug- Bailey, supervisor, as unit was aware made, allegations nance of the such concluso- grievance upon Allen had filed a rein- ry allegations are insufficient establish addition, Eight. statement to Block Accordingly, causation. that Al- we conclude MDOC was the defendant all suits len prima failed to establish a facie ease of disingenuous argue filed Allen. It and, therefore, retaliation affirm the district not aware that had MDOC was grant summary judgment court’s as to this grievances against filed it. We therefore issue. believe that Allen has established that protected activity. MDOC was aware IV. Allеn also must show he suffered employment previously foregoing reasons, adverse action. As For the we AFFIRM stated, failure-to-promote grant summary judg- claim is the the district court’s employment alleged. adverse action ment to MDOC Allen’s claims of racial retaliation, and RE- discrimination Finally, Allen must show judgment summary VERSE its there was a connection causal between MDOC on Allen’s claims of racial harass- filing rights of his civil lawsuits and MDOC’s ment. therefore REMAND this case to We promote failure to him. order to show proceedings the district court for further in connection, plaintiff produce causal must opinion. accordance with this sufficient evidence from which an inference can be drawn that the adverse action would BATCHELDER, Judge, Circuit not have been had the ‍​​‌‌​‌​​‌​​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​​‌‌​​‌​​​​​​‌​​​‌‍not taken dissenting in concurring part part. in and filed a action. discrimination See EEOC Avery Corp., agreе majority 861 I Dennison with the that Allen’s re- (6th Cir.1997) (citations omitted); taliation, discrimination, co-employee Jackson v. Bottlers, RKO F.2d 743 377 Cir. harassment claims cannot withstand sum-

414 larly applicable in context agree with its deci the of racial I also

mary judgment. holdings Burlington of harassment. The Court noted two instances the extend sion to — -, Ellerth, Indus., 118 agency principles U.S. in which would warrant Inc. v. (1998), vicariously 633 and Far holding employer 141 L.Ed.2d liable for S.Ct. the — Raton, U.S. -, City Boca agher v. a supervisor: the actions of where the (1998), to L.Ed.2d 662 employer’s negligence S.Ct. own a cause of the is — racially work environments Ellerth, -, hostile harassment, claims of see at U.S. I I by do so because supervisors. 2267; supervi created and where the S.Ct. precedent, believe, Supreme on Court based peculiarly aided in his sor is harassment squarely if would do likewise that the Court agency relationship employer, with the respectfully I dis question.1 faced the supervisor tangible the such as when takes a however, sent, subordinate, from the reversal employment against a action see to MDOC on Allen’s summary judgment at -, id. 118 S.Ct. at 2268-69. Such theo harassment. liability claims of racial principle ries of do not rest on that differentiates race-based and sex-based Vinson, Savings Bank v. In Meritor claims, work hostile environment thus (1986), 57, 106 U.S. nothing justi reasoning there is from this reasoning heavily on the articulated relying drawing fy in ease such distinction sub prece racially work environment in hostile judice. dent, Title Supreme extended Court to claims of hostile work protections VII’s Finally, pragmatic standpoint, from a resulting from harass sexual environment Supreme Faragher in Ellerth and Court 65-67, 106 The id. at S.Ct. 2399. ment. See employers made it more difficult for es- Faragher portion of in referenced this Court cape liability, or at tо receive an award least part analysis, Savings Bank as its Meritor summary judgment, supervisor sexual at -, see previous To standard harassment. find the then stated: involving supervisor applicable in still cases holding that environmental claims thus in racial harassment would result sexual statute, upon drew covered we are having plaintiffs’ hur- harassment easier recognizing liability for dis- earlier eases plain- racial harassment dle to overcome than race, just criminatory harassment based on tiffs, highly unlikely given a result I find as have also followed the lead such we reasoning statements made the Court severity attempting in to define the cases Savings Faragher. in Meritor Bank See necessary to conditions of the offensive Co., 858 F.2d also Davis v. Monsanto Chem. un- actionable sex discrimination constitute (6th Cir.1988) (Norris, J., concurring der the statute. (“[T]he part dissenting major- pаrt) in Id.(citations omitted). Faragher ity would leave this circuit with different noted, “Although and sexual Court also measuring Title claims standards for VII forms, will often take different environments, depend- based on hostile work entirely may be inter and standards ing they predicated are on upon whether good changeable, think there is sense we race discrimination. It discrimination sex generally harmonize the standards seeking because I believe that result is at odds harassment.” of what amounts to actionable Vinson, opinion Supreme Court’s with the Id. dissent.”). I As Justice Thomas ob- served, primary goal Rights Civil Also, agency “the interpretation of the Court’s eradicate race discrimina- simi- Act of was to principles appear would to be Ellerth same, precedents, those there- agree I the decisions of our sister 1. While authority, fore, question persuasive circuits are counsel us to continue find elements separately because I believe analy- I write on this issue post-EUerth. Simply because the same indepen- important provide that, it at least brief fortiori, does ses were the same mean following I the others' leads. dent rationale for analysis Supreme Court modifies the when the disagree we also the that because with notion context, or one the other must should be similar- have, prz-Ellerth, under sex- the elements found ly modified. work environment based and race-based hostile

415 — at -, (empha the statute’s on discrim U.S. 118 S.Ct. at 2265 tion and ... ban sex added), sis that creates hostile work envi ination added as an eleventh-hour Supreme the long ronment. As Court has El an effort to kill the bill.” amendment — recognized, lerth, 1, occasional utterances of racial at 2271 U.S. at - n. 118 S.Ct. epithets, although they engender (Thomas, J., offensive dissenting). n. 1 feelings employee, in an would suffi not agree that majority I with the the While ciently the alter terms and conditions brought by Far change about Ellerth and employment to violate Title Far VII. See likely of racial agher extend to would — at -, agher, U.S. 118 S.Ct. at 2283 employee by supervisor,2 of an harassment EEOC, 234, (quoting Rogers v. 454 F.2d 238 I do not believe that this warrants reversal (5th Cir.1971), denied, 957, cert. 92 406 U.S. summary Al judgment the and remand of 2058, (1972)); S.Ct. L.Ed.2d 343 32 Harris supervisor racial claim len’s harassment Inc., 17, 21, Sys., v. 510 114 U.S. Forklift I, case, accordingly, so from this dissent 367, (1993) (same); S.Ct. 126 L.Ed.2d 295 aspect majority’s that of the decision. Bank, 67, Savings Meritor 477 U.S. at sufficiently alleged only instanc two (same); see S.Ct. also Erebia supervisor racial es harassment: Chrysler Corp., Prods. Plastic 1990, Unit October Assistant Resident Cir.1985) (“Courts address (“ARUM”) Manager allegedly told Al Hilton ing working hostile claims of environment lazy len “he was like the of his that rest emphasized have incidents of why pris people they that is are all ”), sporadic slurs more thаn must be .... on”; later, year over a on October denied, cert. 475 U.S. Allen, work, leaving engaged while in a (1986); Faragher, argument Sergeant with Mad- work-related -, (approving a S.Ct. at 2283 Sec t stated, Madery “I’m ery allegedly in which ond Circuit cases which stated “inci you writing your up,” “Boy, black ass I told dents of sexual environmental harassment your black get ass back into the block episodic; they ‘must be than must be more work,” your ‍​​‌‌​‌​​‌​​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​​‌‌​​‌​​​​​​‌​​​‌‍paper you can’t finish and “Allen sufficiently or continuous and concerted in ” you play because team make won’t (citations pervasive’ der to be deemed ball,” and as continuation of incident this (“We omitted)); id. directed to de courts Madery allegedly told Allen that he be an termine whether environment is suffi place ing to a where could be transferred ciently by at ‘looking or abusive all hostile closely “[njiggers watched more circumstanсes,’ including ‘frequency the latter can’t be trusted.” fulfillment of this conduct; discriminatory severity; of the its statement, Sergeant Al Madery transferred physically hu threatening whether it is gallery len from the fourth second utterance; miliating, or mere offensive gallery, provided Madery view a better unreasonably and whether it interferes (Allen ” Dep. of Allen. See J.A. at 43 61- performance.’ work employee’s (quoting 62). 367)). Harris, 510 U.S. Davis, by (“Drawing a Both of these instances of But see 858 F.2d at 349 harassment repugnant. are Howev ‘isolated and a distinction between incidents’ er, instances, separated ‘pattern isolated of harassment’ does not advance these two year’s by involving analysis; plaintiff prove differ over a time and need not people, satisfy do requirement ent the instances Ellerth, pervasive conduct,” Ac type.”). in either time or “severe related 2273; at -, id. my agreement S.Ct. at new I must with Justice Thomas and that the state Ellerth, standard, if, employer that if, should be liable as articulated the Court in “[a]n proves continuing reign employer "a will result in of confusion However, law,” negligent permitting supervisor’s - U.S. at -, important conduct area of the id. occur," Ellerth, articulated and Far- 118 S.Ct. at the new standard Ellerth 2271; although change brought agher propriety, fair is now the law. Its about Faragher game among and debate academi Court in Ellerth is "a whole-cloth discussion themselves, legal support draws no cians Justices is immaterial creation that and the based,” principles analysis. on which the Court to our claims it perpe- been the him that officer had affirm the district court’s told I

cordingly, would trator, had summary judgment. because this same officer the arsenal. bolt cutters from checked out allegations majority other The cites (Allen 66). Also, Dep. at Allen J.A. at 315 believes, with those dis- it when combined was not disci- alleged never that the officer above, per- sufficiently show severe or cussed allege supervi- his he that plined, neither did warranting re- supervisor harassment vasive investigated the incident. Rather sor never agree, court. I cannot of the district versal investigation was Allen that however, allegations support that these other (Complaint completed. See J.A. at 10 never majority’s position. 6.D). ¶V, Allen stated that he filed Count First, “Bailey, an- majority that ing.4 vague allegations receipt Such counseling of harassment memoranda from his summery judg are insufficient supervisors survive when Allen was several minutes Ball, ment. See Carter v. 33 F.3d 461- returning resulted, late from lunch which (4th Cir.1994) (“Furthermore, Roberts’ claims, from falsifications of log the testimony Campbell generally repri that Lt. Maj. Op. book.” at 411. While Allen does рublicly spoke manded Carter but with Car claim, make this any he fails to state facts private ter’s white co-workers is not sub from which one could infer that such actions dates, specific stantiated accounts of times racially motivated. simple The fact general allegations circumstances. Such that things he is black and bad happen to do not suffice to establish an actionable claim more, him sufficiently does without state harassment.”); Nazaire v. Trans World a claim for racial harassment. Airlines, Inc., Cir. Fifth, majority points the to the threaten- 1986) (“The complaint alleges that TWA ‘sub ing, racially inflammatory note Allen found jected Plaintiff to more tenuous circum among possessions. attempt its to link employment, employ stances unlike white this supervisors, offensive note to ees, because he is black.’ ... [W]e hold that writes, majority vague allegations such were insufficient to question raise of material fact as to the Although this directly event could be existence of actionable harassment and sum attributed to supervisors, Allen’s there is mary judgment proper on these at least an supervisors inference that the claims.”), denied, cert. 481 U.S. perpetrator(s) condoned the action as the (1987). The ma Moreover, were never found. supervi- jority says Sergeant Madery’s that statement sors themselves could not be ruled out as (that “being place Allen was transferred to a perpetrators, given racially their moti- [Madery] keep where eye could on [Allen] vated insults directed at Allen. ” trusted,’ ‘Niggers because: can’t be at J.A. ¶I, 3.D.)) (Complaint at supports Count Maj. Op. sentences, at 411. These two Allen’s claim that his work was monitored view, my disturbing are the most in the ma- differently from that of white officers. It jority’s First, opinion. the fact that However, only does. it is the evidence in perpetrators were never found does not cre- claim, and, support of that reprehensible as it ate “an inference that the con- is, Madery’s comment and the associated action,” undisputed doned the as it is that gal transfer from the fourth to the second thorough investigation MDOC conducted a lery lone, is still a isolated incident. analyzing incident that included hand- Fourth, states, majority writing samples interviewing employees. “Allen’s other fact, ongoing claims of include the complaint in- support importantly, points nothing ARUMHilton More he up my gallery, would come and he would would that these instances of indicate “closer just stand there and he would animus, follow me monitoring” were motivated talking prisoner around. If I was to a he was feeling Bailey other than his did Hilton watch, standing there with his and he would monitoring not do as much of the white officers. length time the prisoner, of time that I talked to a out, however, point He fails to evidence indicat- prisoner cleaning or either a ing monitoring that this increased was the result gallery gate open, standing and a .was he was poor performance, of his work as indicated in a long gate there and timed how should be counseling January memorandum written on open. reprimanded leaving in which he was (Allen 55-56). Dep. J.A. at 42 give specific at He could not gate unsecured the and brake box for which he frequency dates or recall the responsible, major security violation. The visits, (Allen Dep. these however. J.A. at 43 stated, counseling memo "This memorandum is 60). Bailey He also claims that RUM "was al- put you type on notice that this ways coming behavior is up gallery checking] on the work, (Allen my checking] my dangerous, policy procedure, violates cells.” J.A. at 43 59). However, Dep. at Allen further stated that not be will tolerated. Your areas control will keep frequency he did not track of the of these closely by manage- monitored in the future "visits”-and that he never discussed the extent to (1/8/90 ment team in this block." J.A. at 82 Bailey checked the work of of the added)). Counseling (emphasis Memo other officers. thought having he re- MDOC could succeed incident vestigation was done, threatening fingerprinted the This has not “should have viewed under Ellerth. note,” 408; Maj. see also J.A. at 42 Op. majority recognizing thus the errs in (Allen 54-55), Dep. investiga- not that the at cognizable analyzing as note when whether pretextual. corrupt or Sec- tion itself was pervasively has a established hostile ond, majori- importantly, while the and more premised upon work environment the actions ty “the themselves states that supervisory employees. perpetrators,” the not ruled out as could sum, besides the two instances I have absolutely linking the there is no evidence above, allegations I noted cannot find of su supervisors,5 and Allen note to of Allen’s pervisor harassment sufficient create no specifically testified that he had idea who question over supervi of fact whether Allen’s (Allen at Dep. the J.A. at wrote note. pervasive sors’ actions were severe or 54). important point, This is enough to create hostile work environment. by El- the new standards articulated under for judging hostility” “The standards under Faragher, harassment lerth “sufficiently supposed Title VII are to be premised upon supervisor conduct are demanding [so as] to insure that Title VII a different viewed under standard ” ‘general civility not does become code.’ premised upon co-employee conduct. those — at -, Faragher, U.S. 118 S.Ct. at 2283 majority’s reasoning, when Under the deter- (quoting Oncale v. Sundowner made mining whether the has a suf- Offshore Servs., Inc., U.S. pervasively super- showing of hostile ficient (1998)). “[p]roperly When harassment sufficient withstand visor applied, they . 1. complaints filter out attack summary judgment, incidents ordinary ing ‘the of the tribulations work perpetrator for which the is un place, sporadic ... such as the use of abusive supervisor, are ascribed to so known ” language.’ (quoting Id. B. D. Lindemann & racially long supervisor has made a as Employment Kadue, Sexual Harassment derogatory past. at some time in the remark (1992)). racially Two instances of Thus, majority’s opinion employ under the Law language, offensive and abusive uttered vicariously may be held liable inci ers separated people different over may may or аt dents which have been more, year every turn other employees, a do without supervisory result tributable ‍​​‌‌​‌​​‌​​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​​‌‌​​‌​​​​​​‌​​​‌‍to disparate unsupported by perceived incident of treatment Faragher that I find either underlying support The maltreatment that occurred over course Ellerth. El law, Ellerth, holding agency years into racial harass lerth ’s see of six instances of at -, 2265-66, 118 S.Ct. at ment. “ subject liability in which master is ‘[a] for the of his servants committed torts while ” acting scope employment,’ their at -,

id. (quoting Re Agency 219(1) § (Seoond) statement (1957)). establishing When lia vicarious master, bility always of the has it been the plaintiffs burden to establish that the first injury

servant’s actions were cause of his liability before the of employer issue is ever Accordingly, reached. it was Allen’s burden racially show that the author of ha rassing supervisor note was before fact, following handwriting samples writing/printing of the individuals: exam- C/O ined Hemenway Sgt. Madery document examiner from the Office Michael Albert Allen C/O General, (Document Inspector see J.A. at 65 Ex- Houghton Upshaw John T. J. Jones C/O C/O concluded, my Report), opin- aminer’s who "It is (Doc. Bailey J.A. T. Lamb”. RUM C/O questioned ion that printing appearing added)). Rep. (emphasis Examiners derogatory note is not identified with known notes Bailey specifically complaint with RUM supervisors, allegedly other Allen’s Bailey investigated it.” stated that “RUM Al- by supervisors not to allow informed his asked, you say no Id. Allen was then “When a ser- acting-sergeant when len to serve as completed para- investigation was ever shift, although geant on the present was not 6(D) your complaint], graph what does [of permit- experienced less white officers mean, Bailey in- if RUM conducted an Maj. Op. Allen’s ted at 411.3 to do so.” (Allen 67). Dep. vestigation?” at 316 at J.A. concerning allega- deposition testimony “Well, if replied, investigated Allen he never supervisor that his tion does not indicate signed white out on bolt cutters [the officer] specifically serve as told not allow supervisor’s arsenal or not.” Id. A from the Rather, it states acting-sergeant. every failure to turn over leaf when investi- in the Hilton wrote list names ARUM hardly gating a claim can to create or be said book, Bailey, log per the instruction of RUM atmosphere overwhelming to an contribute indicating chosen as who should be to serve needed, pervasive racial harassment creat- one was severe or acting-sergeant when by supervisor. listed were those of white names ed officers. could be number of non- There states, Third, majority why also Allen was not race based reasons listed, job performance. poor such as addition, super- Allen claims that his fact, no- Allen admitted that before Hilton’s unfairly upon treated him his visors based book, log had tation in served as continual, ongoing race on a basis. (Allen 47), acting-sergeant, Dep. at at J.A. statement, support of this Allen claims that strongly indicating oth- thus that some factor he, officers, constantly unlike white being er for his than race accounted Madery, Bailey observed and followed Finally, allega- included this time. while this also these Hilton. Allen claims that might beginning tion of a amount supervisors work more monitored his treatment, prima it disparate facie ease for This closely than that of white officers. hardly pervasive indicates severe or allegation Madery’s supported by com- harassment. ment that Allen had to watched more Second, states, majority “Allen also “[n]iggers trust- closely because can’t be points to the fact thаt his never ed.” investigated disciplined the white officer Maj. being 411. “con- Op. at Allen’s claims of caught removing the lock from Allen’s locker stantly super- observed and followed” Maj. Op. This bolt cutters.” 411. white officers were visors while statement, however, is not accurate. No closely” than his work was monitored “more “caught” removing white officer was the lock officers, unsupported are locker; rather, white suspected Allen’s dates, instances, any specific particular reference to white officer because some in- mates, name, or monitor- allegedly events such close observance whom Allen could not acting sergeant deposition actually role when there it cers in the indicates that was ("RUM”) (Allen Manager Bailey Unit al- duty. Resident who See J.A. was no legedly instructed Assistant Resident Unit Man- 46). Dep. at ager place Hilton to one offi- of the three white

Case Details

Case Name: Albert ALLEN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 6, 1999

Citation: 165 F.3d 405

Docket Number: 97-1720

Court Abbreviation: 6th Cir.