*2 Before MORRIS SHEPPARD ARNOLD, GIBSON, JOHN R. RILEY, Judges. Circuit ARNOLD, MORRIS SHEPPARD Circuit Judge.
During the seventeen months that Her- man Jackson worked as a paste operator at Flint Ink North American Corporation, he was disciplined twenty times for violat- ing Flint Ink’s work rules and attendance policy. Flint Ink employ- terminated his separate occasions, ment on three agreed with Mr. Jackson’s union to rein- state him after the first two terminations. time, After he was fired the third he filed suit, here, alleging, as relevant that Flint Ink had violated Title VII of the Civil Rights §§ Act of 42 U.S.C. 2000e to 2000e-17, by subjecting him to a hostile (he work environment because of his race black), is retaliating against him for reporting hostile work environ- superior. ment to a The district court1 granted Flint Ink’s motion for summary judgment on both claims.
Mr. Jackson maintains that the district court improperly granted summary judg respect ment with to his hostile work envi ronment and retaliation claims. “Sum mary judgment appropriate when the evidence, viewed in a light most favorable non-moving party, demonstrates genuine there is no issue of material fact, moving that the party is entitled judgment as a matter of law.” Clark v. Co., (8th Kellogg 205 F.3d Cir. 2000); 56(c). see Fed.R.Civ.P. Reviewing the district grant summary court’s judg novo, ment de see Breeding v. Arthur J. Co., Gallagher Sisam, argued, Edwin Lee Minneapolis, Cir.1999),we affirm. (Dorothy Minnesota Buhr Stephen J. M. Thompson Minneapolis, Minnesota I. brief), for appellant. prevail To on his hostile work envi Davies, R. Scott argued, Minneapolis, claim, ronment Mr. Jackson must show (Jason Hedican,
Minnesota
M.
Minne-
that he was a
protected
member of a
apolis,
brief),
appel-
Minnesota on the
group,
subjected
that he was
to unwelcome
lee.
harassment,
that the harassment was be-
Magnuson,
The Honorable Paul A.
United
sota.
Judge
States District
for the District of Minne-
ry terms on two occasions. He testified
group,
membership
cause of
term,
supervisor,
that he heard his
deposition
affected a
con- his
harassment
that the
Stordahl,
him “that
dition,
employment.
Larry
See
refer to
damn
privilege
of his
nigger”
on Human
after an altercation
which
v. Missouri Comm’n
Palesch
*3
(8th Cir.2000).
co-workers
Rights, 233 F.3d
Mr. Jackson threatened two
harassment was caused
or
alleged
spit
after one of them
on his foot
some-
Unless
Mr. Jackson must
by
supervisors,
his
in his
area. Mr. Jackson also
where
work
have
Flint Ink knew or should
that
show
testified that on one occasion as he was
Schreiner,
the harassment but failed
known about
leaving the office of Frank
action.
and effective remedial
prompt
take
Mr.
plant manager, he heard
Schreiner
at
& n. 5.
See id.
566
use the term “black” or “damn black”
context.
unspecified
some
actionable under
In order to be
incidents,
In addition to these two
Mr.
VII,
must have
a work environment
Title
in which
Jackson testified to four instances
subjectively of
objectively and
been “both
co-workers had made
offensive
his
fensive,
person
that a reasonable
one
slang
abusive,
remarks: One co-worker used the
or
and one
would find hostile
“nigger-rigging” when several
phrase
perceive
in fact did
to be so.”
the victim
table,
Raton,
picnic
a
sitting
workers were
City Boca
524 U.S.
Faragher v.
787,
2275,
which Mr. Jackson describes as “an old
775,
his truck work hours. Similar com- Cir.1999). Whether the existence of discovery of ments about the Mr. Jackson racially derogatory behavior the work job sleeping on the were found written in place constitutes hostile work environ *4 Ink.) other locations at Flink Mr. Jackson ment actionable under Title a func VII is initially deposition in his that his stated tion of severity pervasiveness both the in name “under” the cross his work was conduct, high offensive with a level area, qualified by later this agree- but he severity of compensating for a low level of ing “actually the name was pervasiveness and vice versa.
molding
portion
it’s not on the same
piece,
The result in
our previ
several of
of
KKK is.”
what the
ous
involving
cases
racial slurs and harass
that,
*5
cial harassment.
claim. Each
assessing
in
Mr. Jackson’s
Here,
that Mr.
there is evidence
the
factually
case is
similar to
instant case
most,
at
to six isolated
exposed,
trying to make
plaintiffs
in that the
were
racially derogatory language
stances of
environment claim
out
hostile work
managers and three co-workers
from two
that a
based on evidence
small number
year
of a
and a half. Mr.
over the course
uttered in the
epithets
racial
had been
not contend that either of the
Jackson does
workplace
graffiti
appeared
and racist
had
by
statements made
alleged derogatory
Joseph
v.
in the bathroom.
Woodland
made to him. One of
managers
Son, Inc.,
were
Ryerson
T.
&
(“that
nigger”) was made in (8th Cir.2002),
these
damn
graffiti drawings
“racist
—
emotional
breaking up
the context of
the
‘KKK,’
swastika,
figure—
and a hooded
involving
spitting
confrontation
of one of the men’s
appeared on the walls
that he did
threats. Mr. Jackson testified
copies of a
plant”
restrooms at the
the other
statement
not understand
“poem” were “strewn
derogatory
(“black”
black”) at the time and
or “damn
that these al
plant.”
about the
We held
The
that he could not remember well.
by co
leged incidents of racial harassment
made
co-
alleged
workers,
four
racial statements
“inexcusable
which we deemed
offensive,
highly
but two of behavior,”
perva
workers were
nor
“neither severe
were
shit,
(“nigger
“nigger-
radio” and
these
work envi
enough to create
hostile
sive
referring directly
(internal
to
rigging”) were
quotations omit
ronment.”
Id.
Jackson,
(“fucking nig-
ted).
and another
spitting
in
heat of the
ger”) was made
the
hand,
Quebecor
Reedy
in
v.
On the other
uncontradicted
during which
episode,
906, 908-10
Printing Eagle,
“kick
had threatened to
that Mr. Jackson
(8th Cir.2003),
held that a hostile work
we
asses” and to
co-workers’]
both of [his
submissible where
claim was
environment
“kill” one of them.
plaintiffs
the
graffiti
racial
that included
“kill all
phrase
in
below
The offensive racial slurs
the record
written
number,
“coon” written below
niggers,”
in
the word
infrequent and few
were
name,
drawing of an
and a
plaintiffs
to
offhand the
appear
of them
have been
some
phrase
nig-
“all
ape accompanied
graffiti referring
racial
to Mr. Jackson was
in a
gers
appeared
must die” had
bath-
Ink,
also found in other areas of Flint
distinguished
room stall. We
Woodland record will not support an inference that
symbols
graffi-
by characterizing
pictures
burning
crosses and
being “generically threatening”
ti there as
any
to
references Mr. Jackson were in-
to the “death threat aimed
opposed
as
together
threatening
tended
be read
as
at
in
directly
specifically
plaintiff
[the
specifically
comments directed
at Mr.
],”
severity of which we
Reedy
found to
assuming Aarguendo
Jackson. Even
consideration.
dispositive
be the
Id.
some connection between the crosses and
Thus,
determined that
it was
references to Mr. Jackson can be reasonal-
particularly significant
“message
inferred,
the resultant communications
plaintiff
expressed
[the
hate
vague
ambiguous
are more
than those
Reedy through
graffiti
physically
]
in Reedy,
issue
which we characterized
way
threatening
“a
close case” in terms of making out a
not.” Id.
Woodland was
submissible claim based on a hostile work
think that the
We
environment,
“H.J. some other indeci- employer to pherable message against discriminate an including the em word ployee “Herman” were situated in he opposed any prac somewhere “because has vicinity crosses, and non- tice made an unlawful employment prac-
797 about the discrimination was complained he has subchapter, or because tice this assisted, Though he was fired. testified, four months before par or charge, made a record is unclear and the evidence investiga manner in an any ticipated when, ever, if he regarding inconsistent tion, hearing or under this proceeding, actually him the complained, give bene- 2000e-3(a). § subchapter.” U.S.C. summary judgment fit of the doubt that he was unlaw contends Mr. Jackson purposes complained and assume he because he was fully against retaliated month he was fired. before supervisor, to his Mr. complaining fired for Stordahl, Mr. own racism. about Stordahl’s disciplined twenty Mr. Jackson was retaliation asserting A a Title VII plaintiff times his seventeen months at Flint prima facie Ink, claim must first establish eventually resulting his final termi- by showing that he or Many case of retaliation nation. his infractions related to activity, clock, that an protected in a engaged she his attendance use of the time occurred, out, punch in too e.g., failing punching adverse action late, early failing in and then punching connection between that there is a causal work, missing work for various Sherpell v. Humnoke the two events. See (8th disciplined for “loaf- reasons. He was Sch. Dist. No. job, refusing ing,” sleeping on follow Cir.1989). plaintiff If a makes such a supervisor, taking orders from his ex- then showing, production the burden tended breaks. plain to the defendant to rebut the shifts principles facie case under the prima tiffs firing, his third grieved Mr. Jackson Douglas Corp. set forth McDonnell represented by he his union an Green, 93 S.Ct. hearing. The find- arbitration arbitrator’s (1973). See, e.g., L.Ed.2d Mitchell v. binding jury, on a ings, while no means Servs., Advocacy Iowa Prot. provide persuasive evidence the form Cir.2003). party’s regarding a neutral observations performance Mr. work Jackson’s held that The district court disciplinary of Flint appropriateness Ink’s a prima had failed to make out arbitrator, after responses. The conduct- facie case of retaliation: It concluded that evidentiary hearing, concluded that prove facts sufficient to he established disciplinary Flint actions were “total- Ink’s protected activity in a engaged he had *7 ly explicit principle consistent with the about Mr. (complaining to Mr. Stordahl Discipline,” and that “the fre- Progressive discriminatory own be Stordahl’s consistency of quency [Mr. Jackson’s] havior) employment and that an adverse clearly inappropriate behavior must be (he terminated), occurred action had was that characterized as ‘abuse of time’ and that he had failed to establish causal but incon- pattern of behavior constituted an protected conduct connection between the n understood disregard trovertible for the action. and the adverse of the Em- expectations and reasonable' that, contrary to Mr. Jackson maintains ployer compliance to his with relative conclusion, pro- he has the district court’s Rules, char- and such must be plant-wide that duced sufficient evidence he was fired discharge.” sufficient cause for acterized as complained because he about dis- of dis- Regarding Mr. Jackson’s claims relies, part, crimination. He for the most crimination, the arbitrator stated proximity of the two temporal “totally any devoid of evidence record was events, complained that he about alleging finding [that buttress would/could a month the discrimination about before any discharged rea- Jackson] Mr. from Flint his third and final termination than his abuse of son other demonstrated behavior,” charge Ink. In his of discrimination and that Flint time/attendance expecta- Department Rights, clearly of Human Ink “has communicated its Minnesota compliance work hour last time that he had tions relative with he stated that the employees, plaint complainant and has consistent- does not clothe the with to all rules immunity for past present inadequa discipline to those who elected ly applied unsatisfactory performance.” [and] cies to violate such.” Joseph v. Hosp., St. State rec- There abundant Cir.1988), cert. de consistently Mr. failed to ord that nied, 488 U.S. expectations of Flint legitimate meet the (1988). Thus, L.Ed.2d 218 will not “[w]e job. Ink of his performance employer legally firing hold an liable for long string that the Jackson contends employee performing job who is not his actions, culminating in final his disciplinary satisfactorily merely discharge because the termination, supervisors’ due to his relatively follows within” a short time after argues He these documented racism. employee’s complaint about discrimina warnings do not amount to violations and Mercy Hosp., tion. Valdez v. meeting legit- evidence that he was (8th Cir.1992). Ink, of Flint expectations imate light of Mr. Jackson’s extensive disci- best, irrelevant” stead are “at to Flint record, plinary including persistent his vio- they to fire him are Ink’s decision because lations work and attendance rules both all “after-the-fact rationalizations for hav- alleged reporting before and after his ing terminated Mr. Jackson and demon- racism, highly tenuous evidence of Flint strate the extent of Ink’s retaliation.” complaint causal connection between his independent reading on of the Based our termination, jury and his a reasonable record, agree with the district court could not find that he was fired because of that Mr. Jackson has no evi- “offer[ed] complaining his rather than poor his work speculation sup- dence aside from bald performance. port argument warnings his he illegitimate.” received were There is no iii. disciplinary evidence that record was stated, For the reasons we affirm the being or that somehow contrived fired as a grant district of Flint court’s Ink’s motion amassing result of such record would be summary judgment. Indeed, any way ordinary. out of the GIBSON,
the evidence showed that several other
R.
Judge,
JOHN
Circuit
black,
dissenting.
employees,
white and
had been
plant
terminated for similar violations of
today acknowledges
The court
the teach-
policy.
rules and the attendance
ing
Supreme
Court that “the burn-
hate,”
symbol
of a cross is a
that “a plaintiff
We have noted
can es-
“when a
intimi-
is used to
tablish a causal connection between statu-
date,
any
if
messages
power-
few
are more
torily protected activity and an adverse
Black,
Virginia
ful.”
538 U.S.
through
action
circumstantial
*8
1546,
1536,
1547,
S.Ct.
suggests legitimate another reason for the First, question the of whether the note adverse action. “Title VII slept “H. J. here” is connected to the KKK from protection filing burning graffiti question retaliation for a com- is a cross “they discussing photos 2. Jackson testified that in his work area name under it.” In he had taken, sign my photo had the KKK with the cross and with he said that in a of the shower
799
hostility
Jackson and his
summary
dence of
between
a motion for
reviewing
In
fact.3
co-workers, including
spitting
the
in-
facts in the white
view the
judgment, we must
non-moving
in which a co-worker referred to
to the
cident
light most favorable
among
“fucking nigger.”
various
Jackson
choosing
than
Jackson as a
rather
party,
message
inferences. “Credibili-
that he understood the
possible reasonable
testified
determinations,
of the evi-
weighing
“scary.”
the
co-worker
ty
graffiti
the
to be
His
dence,
drawing
legitimate
Ronnie Davis testified that he believed the
infer-
functions,
jury
not
are
ences
the
be-
against
was a threat
facts
from
ruling on a
he is
judge,
those of a
whether
many of their co-workers didn’t like
cause
for a
summary judgment or
motion for
symbol threatening ra-
Jackson. When a
Liberty
Anderson v.
directed verdict.”
continuously
cial violence is invoked and
255,
Inc.,
242,
106
477
S.Ct.
Lobby,
U.S.
workplace,
it is
displayed
plaintiffs
(1986)
add-
2505,
(emphasis
tory month. The record
part
photo
sign
of the same
"they got
plus the
the KKK
the KKK
cross,
my
they got
name on it.”
and then
people
interpreted
it as
and stated that he
stating, “Mr.
an affidavit
Lawler
filed
Gloria
know,
gonna
get
“let[ting]
your
me
ass
signs
jackson asked me if I wanted to see the
up.”
Defense counsel stated
burned
*9
drawings
were
at Flint. He told me that
molding pice,
"actually
it's
right
everyone
see.
I
on the outside
is,”
portion
the KKK
on the same
of what
field,
the over-
across a
and toward
walked
photo
agreed.
copy
and Jackson
Right
of the door
head
on the frame
door.
appendix
sufficient
reproduced in the
is not of
drawing
with KKK-HJ and the cross
any ambiguity,
quality
us to resolve
on it.”
record,
proper
be
to do so
on this
it would not
slept here” and
Jackson described the "HJ
anyway.
notes
in testifying
The dissent
re-
workplace
ment in the
upon
has turned
the
symbol
KKK
garding the
shower pervasiveness vel non of the offensive con
area,
“they got
stated that
Mr. Jackson
the
duct.
“Unquestionably, a working envi
cross,
sign plus
KKK
and then
ronment
dominated
racial slurs consti
on it.” But that
they got my
quota-
name
a
tutes
violation of Title VII.” Johnson v.
tion is
from its context.
isolated
When
(8th
Co.,
Bunny Bread
646 F.2d
pressed,
merely
Mr. Jackson said
that Cir.1981).
“[ojffhand
But
comments and
there was other
somewhere
(un
isolated incidents of offensive conduct
vicinity
symbol
KKK
of
the shower area
serious)
extremely
less
do not constitute a
that he was unable
read. Mr. Jackson
hostile work environment.” Burkett v.
not
testified that he did
know what this
Glickman,
(8th
327 F.3d
Cir.
said,
writing
attorneys
but
one of his
2003).
said,
“read it off what
and I wasn’t
Thus,
Johnson,
we concluded as a
it,”
seeing
he could do
him
how
told
matter of law that there was no violation of
something.”
that it
“Herman
said
Title
steady
VII because there was “no
deposition,
Jackson was shown a
barrage
opprobrious
of
racial comment”
picture that he had taken of
KKK
“use,
if any,
of racial terms was
symbol
surrounding
and the shower area
infrequent, was limited to casual conversa-
and was asked to indicate
where
among employees,
tion
possible
and with
picture
purportedly
includ-
rare exceptions
not
directed toward”
ed his
located. Hi initially
first
Johnson,
plaintiffs.