*2 BATCHELDER, mеnt, maintains, Appellant was to create a Before KEITH and TAYLOR, District Judges; and Circuit hostile environment on the basis of Judge.* ethnicity. na- The district found that was not actionable tional TAYLOR, Judge. District DIGGS ANNA Further, the dis- *3 case, discrimination employment In this even if such harass- trict court stated that the district court’s appeals Boutros David ment were actionable under 42 U.S.C. verdict favor grant of a motion for directed 1983, alleged § the incidents were not so case, of Plaintiffs at the close of Defendants egregious as to create hostile environ- conclusions that Plaintiffs on the basis of its seriously Appellant’s affected the ment which origin is not claim nаtional performance psychological well-be- 1983, § 42 U.S.C. actionable under ing. were, evidence had not if it sufficient even agree Appellant’s contention that We jury question. Bout- adduced to raise a been origin of national harassment in the his claim the district court’s ros also claims error in employment context is actionable under con- of certain “extrinsic evidence” admission misconduct, presented § U.S.C. and that he suffi- cerning puta- for the his attacking credibility his as a cient evidence to withstand a motion for di- purpose tive Accordingly, witness. on that rected verdict claim. grant reverse the district court’s we сomplaint causes of ac- Appellant’s stated defense motion for directed verdict and re- § tion under 42 U.S.C. U.S.C. proceedings mand for consistent with this (Title VII), seq. sepa- § et and three 2000e (1) opinion. respect to the admission of With § rate claims under 42 U.S.C. (2) harassment, to his wrongful evidence of Boutros’ conduct relevant origin dis- termination, deprivation grounds discharge, criminatory employer’s and which he procedural process rights. “extrinsic”, due The dis- characterizes as we affirm the granted pre-trial mo- trict court Defendants’ ruling. district court’s to dismiss the Title VII and U.S.C. tions L. Appellant David Boutros was born § claims. At the close of Plaintiffs Damascus, Syria, immigrated to the case, court directed a verdict for the district age States at the of eleven in 1963. United depri- on Plaintiffs claim of the Defendants August by hired Defen- Boutros was procedural process rights under vation of due Authority Regional Transit dant Canton § as well as on Plaintiffs (“CRTA”) During ten- as a bus driver. origin pursu- harassment claim filed CRTA, subjected ure at Boutros was to nu- 1983. The sole issue ant U.S.C. open merous ethnic slurs from other drivers therefore, presented jury, to the was Plain- management was aware as well as of which wrongful discriminatory termi- tiffs claim of management Al- from members of itself. nation, decided in favor of the prohibited by the though such conduct is Defendants. Authority, the record reflects that no drivers cites to trial testi- Appellant Boutros here disciplined for such remarks. More- reflecting disparaging numerous mony over, when National Transit Services stereotypical epithets were directed ethnic (“NTS”) management operations took over presence, him or stated in his either towards CRTA, subject- testified that he was Boutros knowledge supervisors, of his by or with the origin harassment ed to increased national employment with the throughout his term of from from other drivers as well as even that, in- Appellees. presented He testi- management. The record includes new alia, repeatedly called a “camel ter Transportation Jack mony that Director management jockey” or “camel rider” referring Winegarter made ethnic slurs when Authority, in employees of the Transit hearing; latter’s to Boutros within the ancestry. demeaning reference to his Arab replacement, Ronald Winegarter’s later of such national harass- The effect * gan, sitting by designation. Diggs Taylor, States Honorable Anna United Judge of Michi- for the Eastern District District Dodsworth, described Boutros to another lots of money your cousin on the street driver as a jockey”, placed owns a you restaurant don’t need RTA” name on a employees “hit list” of to be When asked whether he considered “rich terminated; during training driver slur, Arab” to be a stated, Boutros “[o]f session and in presence, Plaintiffs Dods- course, because the reason you he said are worth referred to “rug Boutros as peddler” rich, you oil, have we don’t need you here. “heeb”; and a that Boutros was instructed to You don’t need to be a bus driver.” depart procedures from standard on occasion When asked Winegarter’s how statements by deadheading making detours, route him, testified, affected “I felt disciplined and then for not following stan- very, very mean, bad. if kept someone procedure; dard and that NTS Gеneral Man- calling you names and you *4 job don’t need the ager Rosa made derogatory several com- I thought ...—sometimes my performance ments regarding Boutros’ Arab ancestry, going was really to God, fail but thank it did hearing. within his not.” Boutros testified Winegarter, that Messrs. Dodsworth, and Rosa supervisors and After Winegarter Jack was replaced by reported to NTS corporate headquarters in Dodsworth, Ron Boutros testified that the Chicago. Further, union representative harassment continued. Specifically, he stat- McLaughlin, represented who Boutros at a ed that at disciplinary union hearings, Dods- disciplinary hearing, testified that Jim Rosa wоrth continually would refer to him as a Winegarter and Jack CRTA, were a team at “camel jockey” or “camel rider”. Boutros Winegarter with handling most of the disci- further testified that he considered such plinary Hence, actions. the incidents to terms to derogatory and that at union which clearly Boutros testified involved man- hearings Dodsworth would refer to him with- and, agement in the case of Winegarter and in his hearing, using phrases such “bring as Dodsworth, managers who were empowered in the jockey” camel “bring and the rich discipline to drivers, and terminate as was Arab.” ultimately done with Boutros. McLaughlin corroborated Boutros’ testi- Boutros testified cоncerning the state- mony stating that he was not of aware man- ments of Winegarter Jack as follows: agement disciplining any of the drivers who you “Where come originally said, he from— Boutros, harassed despite knowledge their of you are a rich Arab. You a own restau- the harassment. Specifically, McLaughlin rant and all sort things you of and don’t testified “[w]hen it time for David you need RTA and go should Syria to back room, [Boutros] to be brought into the I fight the Israel Army and kill the get would be sent to him. He [Dodsworth] Jews.” said, [b]ring in the jockey camel bring said, “He bad, because I very, felt very he the Arab. It accepted was an term for said, [y]ou are a rich Arab. Why you don’t Boutrоs, David.” door, outside the heard go Syria, Why back to you go [sic] don’t those Similarly, statements. testimony the Jews, kill the [sic] You have of money lots driving instructor, of Williams, Pete was that you I bet have your first you dollar that Dodsworth, he met Dodsworth, you made when to came America. This is supervisor the replaced who Winegarter, great country, a huh?” had a ‘hit on his list’ of drivers desk whom he Boutros further testified that Winegarter planned According to terminate. to you from, said “where you Williams, came have no Dodsworth read the on names vehicles. You don’t know what a is bus list name, and when he reached Boutros’ you don’t Moreover, know what cars are.” going said get “[w]e to are rid of that camel Boutros, according Rosa, to general when jockey.” Williams further stated “... as manager operations, present he did soon as he jockey said camel who it knew reprimand not Winegarter making was, said, for such but I ‘[w]ho is that’ According Instead, remarks. according Boutros, Williams, to to reply Dodsworth’s “Dave said, agree Rosa “I you with Jack have Boutros”. 202 of a hostile rising to the level of of harassment all trial, denied Dodsworth At is to due work environment district allegations. The
the aforementioned
claim
ascertaining whether Boutros’
credibility of useful in
to
finding as
no
made
This
42 U.S.C.
under
is actionable
that of
to
opposed
testimony as
Dodsworth’s
required elements
held that
Moreover,
Circuit has
is
it
witnesses.
and his
necessary for a
proof
prima
rather
court but
of the trial
function
facie
racially hostile work
a
charging
credibility determi
make
jury
that of
§ 1983
Title
both
VII
If
fact.
questions
disputed
nations
Bureau
Risinger v. Ohio
the same.
are
in Plaintiffs
presented
is
sufficient
475, 483
F.2d
883
Compensation,
Workers’
found
if he or she
juror,
reasonable
case
(6th Cir.1989),
Vaughn v. Pool
citing
favor, the
Off
credible,
find
Plaintiffs
(5th Cir.1982),
Co.,
924
F.2d
ques
shore
credibility
All
be submitted.
case must
E.E.O.C.,
F.2d
v.
citing Rogers
favorably to
most
considered
must be
tions
denied,
Cir.1971),
cert.
their resolution
party, and
nonmoving
(1972),
held
Evans,
32 L.Ed.2d
S.Ct.
v.
jury. United States
left to
a Title VII
may еstablish
Cir.1989) (“[ijssues
Plaintiff
of wit
496, 501
racially hostile
showing
violation
strictly
... are
credibility
ness
psychological
affecting the
determine”), citing United States
*5
minority-group work
stability
Cir.1988);
of
(6th
emotional
1217, 1221
Schultz,
F.2d
855
F.2d
Rodgers, 791
ers;
v.
also Hamilton
Corpo
See
Chrysler
v.
Ass ’n.
Workers
Chrysler
of
(5th Cir.1986), holding
proof
that
Cir.1987) 439,
(6th
442
573,
ration,
578
F.2d
834
racially
environ
hostile work
liability for a
determinations,
weighing of
the
(“[c]redibility
VII, 42 U.S.C.
Title
is the same under
ment
legitimate
evidence,
drawing of
the
and
the
§
functions,
§ 1981
and
jury
are
the facts
from
inferences
citing
judge,....”),
of
the
those
Falls, 665
City Wichita
v.
In Rivera
of
Inc., 477 U.S.
Lobby,
Liberty
v.
Anderson
(5th Cir.1982), the
531,
Fifth
n. 4
534
F.2d
2505, 2513,
L.Ed.2d
255,
91
242,
S.Ct.
106
§
used
1983 is
that “when
stated
Circuit also
(1986).
202, 216
VII in a
remedy
title
with
parallel
as a
discrimination,
however,
sub
concluded,
suit,
of
that
elements
the
district
The
same under
not action-
are the
was
of
cause
action
origin harassment
stantive
national
were,
4, citing Whit
534 n.
even if
§
and that
Id.
1983
both statutes.”
under
able
F.2d
University, 616
to raise
State
ing
failed
v. Jackson
case
the Plaintiffs
Cir.1980);
(5th
v. Chica
116,
Alexander
environment.
hostile work
121
of a
question
(7th
850,
District,
856
773 F.2d
go Park
Harassment, Section
Origin
Cir.1985).
National
v.
Similarly,
A.
Carrion
Yeshiva
in
(2d Cir.1976),
Title VII.
F.2d 722,
and
1983
729
University, 535
holding
“[n]o
Circuit
the Second
co
his
slurs of
the ethnic
When
discrimi
against
protection
lesser
greater
directed
were not
supervisors
and
workers
1983
by section
provided”
natory practices is
they
him,
testified
Plaintiff
towards
v.
Huebschen
also
See
by Title VII.
than
supervi
presence,
in
usеd
Services,
F.2d
716
Social
and
Dept. Health
of more subor
of those
of
aware
was well
sion
Cir.1983).
(7th
1167, 1170
Hence,
contends
Plaintiff
coworkers.
dinate
alleged national
effect of
guidelines
Moreover,
administrative
offensive
of an
the creation
harassment
in Meritor
Court
Supreme
by the
endorsed
deeply
which
work
57,
hostile
Vinson,
106
477
Savings Bank v.
well-being and
psychological
wounding
to
defining
and
2399,
91 L.Ed.2d
S.Ct.
performance,
for his
terms,
fearful
him
made
to
are, by their
harassment
sex-based
discharged.
finally
he was
origin harassment.
to national
analogized
guide-
and
Manual
Compliance
EEOC
The
are
Title VII
§ 1983 and
As
Vinson,
Supreme Court
lines,
to which
employment dis-
remedies
parallel
largely
indi-
expressly
guidance,
us for
supra refers
the stan-
suits,
examination
an
crimination
here con-
involved
principles
“[t]he
cate
case
prima
for a
Title VII
dards
facie
apply
race, color,
to
tinue
to
religion or na
619-20,
Id. 805 F.2d at
Risinger v. Ohio
origin.”
tional
1604.11(a),
§
29 C.F.R.
at 193 Bureau
Compensation,
Workers’
1,
(July
1988);
n. 1
see
Risinger
also
v. Ohio 475,
(6th Cir.1989);
Highlander v. K.F.C.
Bureau Workers’ Compensation, 883 F.2d
Co.,
Nat’l Mgmt.
644,
(6th
Cir.1989).
484 n. 3
Further,
the Cir.1986); accord Yates v. Avco Corp., 819
Compliance Manual,
EEOC
also quoted in
Cir.1987).
McLean,
Patterson v.
164, 180,
491 U.S.
prima
elements of
proof enunci
facie
2363, 2374,
S.Ct.
105 L.Ed.2d
152-53
ated in Rabidue were derived from the
(1989), provides that
principles
“the
apрlica
EEOC
guidelines,
administrative
as directed
ble to sexual harassment continue
apply
to
Supreme
Vinson,
Court
477 U.S.
race,
color,
basis of
reli
57, 65-66, 106
(1986).
S.Ct. at 2404-05
Rabi
gion, or
origin.”
Compliance
EEOC
due, supra, 805
619-20;
F.2d at
Risinger,
(Harassment
§
Manual
615.7
on the Bases of
supra,
was based upon
charged
sexu-
careful review of the trial rec-
al harassment had the effect of
ord
unreason-
discloses that Plaintiff repeatedly testi-
ably interfering
plaintiffs
with the
fied that
“very, very
work
he felt
bad” because of
performance and creating an
intimidating,
alleged
harassment. Ad-
hostile, or offensive work
ditionally,
environment that
he testified that sometimes he
seriously
affected
the psychological
thought
well-
performance
his work
going
“was
being
plaintiff;
of the
God,
really
existence
fail but thank
it did not.” Clear-
respondеat
of
superior liability.
ly, in assessing
alleged
whether the
harass-
and ad-
comments
some sexual
that indeed
with” his
“unreasonably interfered
ment
personal
of
result
Rabidue,
may not be the
supra, re-
vances
as
performance,
work
characteristics,
in that
as
opin-
relationships,
his
testimony indicates
Boutros’
quires,
unlawfully by the
case,
may motivated
did
performance
but
that,
work
although his
ion
of
alone. Cases
unwanted
certainly being
gender,
Plaintiffs
it was
fail,
affected.
motivated
or harassment
advances
sexual
concluding that
trial court erred
un-
actionable
indisputably
are
gender alone
actionable
is not
origin harassment
City
Bohen
example,
§
For
der
Bout-
finding that
again
§
Cir.1986),
Chicago, 799 F.2d
East
work
of a hostile
allegation
no
had made
ros
to show
requires
plaintiff
§ 1983
held that
even if
that
complaint and
in his
environment
discriminatory man-
treated in a
she
support a
had,
not there”
proof is
“the
he
membership in a
her
merely upon
ner based
Appellant
claim.
hostile
protected class.
environ-
“hostile work
the term
use
did not
but an examination
complaint
in his
ment”
provides numerous
record below
The trial
presented
reveals
pleadings
his
be at-
which cannot
harassment
examples of
ac-
the Defendants’
pleading that
claim in
personal chаracteristics.
Boutros’
tributed
dur-
insult[ed] Plaintiff
“harass[ed]
tions
to as a
repeatedly referred
He was
More-
employment”.
course
ing the
Arab”,
person who
as a
jockey”, a “rich
suffi-
over,
pleaded
proved
and later
Boutros
because
a bus
be able to
never
drive
would
extent
concerning the nature
cient facts
motor
a land without
vehicles.
from
he came
discriminatory ac-
Appellees’
nothing but
are to
references
All of those
position
clearly evidence.
tions to
ancestry.
origin and Arab
Plaintiffs national
origin had
of his national
because
Trautvetter,
in-
Hence,
appears to be
supra,
а hostile one.
made his
intent and
questions
apposite; and
moreover,
jury to decide
motive,
for the
upon Traut
relied
The district
(7th Cir.1990),
in this case:
Quick,
vetter v.
that the
held
Circuit
the Seventh
in which
claim,
no
Evidence”
of “Extrinsic
Admission
B.
Defendant
of that
the sexual advances
ad
challenges the
also
Mr.
personal
by Plaintiff’s
motivated
had been
de
from a
of “extrinsic evidence”
mission
merely her
*7
not
characteristics
conduct or
past
alleged
to his
who testified
fense witness
rea
in
case
court
this
The district
gender.
this
argues
job. He
on the
misconduct
Trautvetter,
here,
al
in
as
soned
credibility as a witness
attack
was used to
moti
Boutros was
tоwards
leged harassment
Rule of Evidence
of Federal
in violation
not
personal characteristics
by his
vated
part
608(b).
pertinent
in
provides
Rule
That
origin.
It
his national
generic status of
aof
of the conduct
“[sjpecific instances
that:
concluded
sup
attacking or
witness,
purpose
for
1983 claim sim-
establish a
you could
“[i]f
credibility,
than
other
witness’
porting the
in terms of
of verbal abuse
ply by evidence
as
Rule
provided
crime
conviction
reference,
be
certainly you should
ethnic
evi
by extrinsic
proved
be
may not
of sex dis-
1983 claim
to establish
able
...”
dence.
showing
a male was
by
crimination
advances-”
making unwanted
howev-
question,
evidence
The extrinsic
Straka,
by
ruling
sum,
explained its
testimony of Shirene
er,
the trial court
was the
of a
that,
route.
permit the establishment
bus
to
on Boutros’
stating
passenger
female
of verbal
by
inap-
evidence
simply
case
behaved
that Boutros
testified
Straka
“boot-strapping” the verbal
filed
and that she
would
her
abuse
towards
propriately
animus, or
class-based
which
prove
against
him
to
abuse
the CRTA
complaint with
Dodsworth,
reason
origin was the
by
that the
investigated
Mr.
suspension.
eventually
the harassment.
led to Plaintiffs
wrongful
a claim
made
Plaintiff had
note As
here failed
the trial court
tes-
and Straka’s
discriminatory termination
acknowledge
court did
Trautvetter
that the
timony had direct bearing on
This Court is to review
grant
of a
misconduct which Defendants claim had led
directed verdict using the same standard that
to his
discharge, was not
solely
received
the district court applied in deciding whether
impeachment
purposes.
grant
Boutros had de
a directed verdict. O’Neal Burg-
nied the alleged misconduct, and Straka’s
er
Systems, Inc., 860
Chef
testimony
directly
(6th
related to
Cir.1988).
material
In a case based on federal
issues: whether or not the incidents
question
occurred
jurisdiction,
“
and whether or not
the termination was
‘[T]he standard to be applied in deter-
wrongful.
George Lamborn,
See
Henry
mining the propriety
grant
of a
or denial of
Maringer and Lamar Commodities v. Thom
a directed verdict is whether the evidence
H.
as
Dittmer
International,
Dittmer
such,
is
without weighing the credibility of
Inc.,
(2d Cir.1989),
206
” Nelms v.
the situation.’
and condonation of
con-
“erred in
1983;”
court
the trial
§
Dist.,
Cty.
Health
Montgomery
Combined
is not
origin harassment
cluding that national
Cir.1990)
(unpublished
1983,
finding
drivers except ability specifics employee’s reasonable origin, gave he no fected the but And, Davis, say things. those not to perform he told them the tasks.” 349. Winegarter’s succes- Boutros testified attempt- has not I would find that Boutros Dodsworth, sor, plaintiff a called Ronald claim, ed to state a hostile work environment “heeb”, Arab” jockey”, a and an “rich had, find, if no could but even he based overheard and that person to a third upon presented, that the verbal the evidence room, these commеnts outside environ- harassment created a hostile work directly to him on made slurs Dodsworth ment actionable under section 1983. Accord- occasions. other ingly, I would affirm the district court’s However, this verbal harassment none of grant of a directed verdict. creating work the level of a hostile rises to standard, environment. Under Rabidue wholly plaintiffs evidence failed show
the harassment “had the effect of unreason- per-
ably interfering plaintiffs with the work creating intimidating, an hos-
formance
tile, or environment that af- offensive work seriously psychological well-being
fected Rabidue, at 619- plaintiff.” America, UNITED STATES added). (emphasis Both unreasonable in- Plaintiff-Appellee, performance and seri- terfеrence with work well-being are psychological ous effect on necessary under Rabidue to make out a hos- WILSON, Defendant-Appellant. Richard Except tile claim. work environment comments that the slurs made him Boutros’s No. 89-6583. “very, very he
feel bad” and that took the Appeals, United States Court of “hard”, presented no slurs evidence that Sixth Circuit. unreasonably the slurs interfered with his performance they or that created an Argued July 1990. seriously so hostile that it af- July Decided fact, psychological well-being. fected his although he Boutros stated that feared his fail, God,
performance going “thank majority
did not.” The relies on this state- performance
ment as evidence that his work slurs, by although
was affected not actu-
ally hindered. the test is not
whether Boutros feared his work would suf-
fer, affected, or even whether his work was
but whether in fact the harassment “had the unreasonably interfering”
effect of with his performance. majority does not necessity plaintiff pres-
even address the the slurs had a
ent evidence serious psychological well-being.
effect on his But
clearly, plaintiffs feeling statements about psychological not amount to serious
bad do And, even under the more-lenient
effect. test, present
Davis Boutros did “repeated
sufficient to make out slurs” showing
factor that the harassment “con- unreasonably
stituted an abusive or offensive