Bourini v. Bridgestone/Firestone North American Tire, LLCBourini v. Bridgestone/Firestone North American Tire, LLC
G. Whether the district court was correct in not allowing Lee to submit a favorable decision of the SSA
Lee arguеs that the district court erred in not permitting her to file a favorable decision from the SSA awarding her Social Security benefits. The district court ruled that the decision could not be made a part of the record because it clearly was not part of the administrative record at the time of its decision. The district court was entirely correct. It is settled that a court‘s review is limited to the evidence before the plan administrator as contained in the administrative record. See Wilkins, 150 F.3d at 616. Because this evidence is not part of the administrative record, it cannot be considered. Second, the fact Lee was awarded Social Security benefits under the SSA‘s rules does not necessarily mean that she was disabled under the plan‘s definition of disability. See Whitaker v. Hartford Life and Accident Ins. Co., 121 Fed.Appx. 86 (6th Cir. 2005). Thus, evеn if Lee‘s favorable SSA decision was part of the administrative record, CSI would not be bound by it and the decision would likely not support a finding that CSI‘s denial of benefits was arbitrary or capricious.
III. CONCLUSION
For the reasons stated above, we AFFIRM the decisions of the district court.
James L. Harris, Nashville, TN, for Plaintiff-Appellant.
Robert E. Boston, Charles H. Williamson, Waller, Lansden, Dortch & Davis, Nashville, TN, for 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
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 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 Bridgеstone/Firestone in 1998, an unnamed “setup 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 anothеr 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 inappropriаte 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 thаt a coworker, Scott Sharber, attempted to back
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 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 sаying 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 allegatiоns, 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 оn 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 intеrcom 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 “1” fоr “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 occurrеd. 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 was Christian proselytizing material. In February 2003, Smith sent an e-mail message to all employees at the рlant 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 Nоvember 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,
On appeal, Bourini concedes that the district court accurately summarized the facts in the record and recitеd 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 tо 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.
III.
We review de novo the district court‘s award of summary judgment on Bourini‘s disсrimination 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.”
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 thе 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 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 employmеnt 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
The district court concluded that Bourini did not make “а 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 conclusiоn, 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., 12 Fed.Appx. 186 (6th Cir. 2000) (unpublished) (holding that a plaintiff could not establish a hostile work environment whеre “[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 thе “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 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 Bridgеstone/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.