Jesse B. Davis and Richard Lorence Harris v. Monsanto Chemical Company, Teamsters Local 299
858 F.2d 345
6th Cir.
1988
Check Treatment

*1 345 non-governmental city adopted evidence showed that the has engaged in a city was when, agents procedures safeguard its detailed citizens’ function activity during The following them. interests arrests and com- intentionally mistreated city engaged, plaints police brutality. was There is no in which to its citi- police protection suggestion procedures that these providing were cus- govern- zens, quintessentially is a tomarily ignored. against and that Plaintiffs’ case activity. city solely theory mental rested on the of re- spondeat superior, city and the clear- argue city is Secondly, plaintiffs ly entitled to the directed it re- verdict police vicariously for the acts of its liable ceived. in argument is This untenable officers. City, v. Marine light of Sherbutte judgment against Dorsey The Mrs. 48, 50, (1964) Mich. 130 N.W.2d against police her claims officers is vicariously be held liable (city cannot REVERSED, and her case is REMANDED during committed police of its officers torts only. for a new trial on those claims the officers the course of an arrest because judgment against plaintiffs the other is AF- activity, which is a engaged police were FIRMED. entitled to immuni- governmental function

ty). claim regard to the

With § governed by the fol- city, this case is

lowing Depart- from Monell v. passage New

ment Social Services of 658, 694, York, B. and Richard Lorence Jesse DAVIS (1978): Harris, Plaintiffs-Appellants, govern- a local conclude ... “We v. 1983 for not be sued under § COMPANY, MONSANTO CHEMICAL solely by injury inflicted Defendant-Appellee, Instead, it when execution agents. is custom, policy government’s of a al., 299; Local et Teamsters by its lawmakers or whether made Defendants. may fairly or acts those whose edicts No. 87-1505. represent policy, official inflicts said to government as an injury Appeals, United States Court entity responsible under 1983.” Circuit. Sixth plaintiffs in the case at bar 11, 1988. Argued Feb. comparable present a case to that failed Oct. Decided Lucas, made out Marchese Denied Rehearing En Banc Rehearing and 6, 1988. Dec. Márchese, found “official to the court (if instigation), complicity leration midnight part assault on duty officers on at the station

command night;

house that there was also subse complete

quent concealment followed any meaning

failure to initiate and conduct part investigation

ful on the of the Sheriff 187-88. There is no

himself.” 758 F.2d at present

evidence in the case that it was the policy City of Detroit to

custom or

instigate or condone violation of citizens’ contrary, rights. On the

constitutional *2 Hill, argued, Bret A.

J. Schnit- P.C., Park, zer, Schnitzer, Hill & Allen Mich., Eagal, plaintiffs-ap- Richard A. pellants. Burns, Trimmer, F. Tiberio

John Suanne Kator, Clark, Mary argued, K. Klein & Beaumont, Mich., Detroit, defendant-ap- pellee. JONES, MARTIN,

Before NORRIS, Judges. Circuit Jr., MARTIN, F. Circuit BOYCE Judge. B. Richard L. Harris

Jesse Davis and granting of appeal the district court’s sum- mary judgment in of the Monsanto favor Company alleging in this action Chemical allege racial harassment in violation of Title VII and Harris also that blacks Rights permitted Act of 42 U.S.C. were not Civil to eat with whites seq., Michigan’s 2000e et Elliott-Lar- lunchroom. This situation was never Act, Rights Comp. supervisor, sen Civil Mich. Laws and two seq. 37.1201 et other black *3 denied that blacks ate required or were designated eat at a Monsanto, During their with table. Davis and Harris offer no evidence Harris, males, Davis and black had both to support their claims of tampering, car disciplinary problems, largely stemming disparate treatment, disciplinary and inferi- from unauthorized As men absences. both job training. They charge also that approached phase the termination of Mon- blacks and perform women were forced to disciplinary process, they sepa- santo’s filed tasks, unnecessary allegation but this charges rate of racial discrimination with not substantiated and problem was nev- Equal Employment Opportunity Com- reported. er receiving right-to-sue mission. After let- ters, brought separate granted district court Harris and Davis Monsanto’s motion Monsanto, summary judgment. for su- The court actions a Monsanto concluded Newmarker, that the evidence in pervisor named and the record satisfy failed to complaints Their Teamster’s Local 299. maintaining a racial harassment claim un-

were consolidated. der Title VII. The court also found no essentially Davis and Harris have two support evidence to Davis and Harris’ dis- First, they they claims. contend that were parate agree treatment claims. We subjected disparate treatment because these conclusions. Second, they allege their they of race. subjected

were to a In order disparate to maintain a environment that is actionable under Title treatment Davis and Harris must produce VII. evidence because of their race, they favorably were treated less than support The evidence to these claims is similarly-situated employees. white Inter allege not substantial. Davis and Harris national Brotherhood Teamsters v. Monsanto, that racial slurs were used at States, United 335 n. only epithet once but was racial directed S.Ct. n. at either of them a white co-worker (1977). Davis and Harris raise three claims presence. used in their Davis and Harris first, disparate treatment: that Monsan allege derogatory graffiti also racial employees to failed to train new black only was written on bathroom walls. The employees trained; well as white were sec problem reported super- time this was ond, disciplined that white were visor, however, graffiti promptly was blacks; harshly less than absenteeism painted over. Davis also that a and, third, regarding that rules sick leaves safety poster, depicting predicament evenly applied. were not inept worker, represent was shaded to man black and labeled with Davis’ name. There is no evidence the record to incident, allegations. But Davis never support and these A fellow black poster shortly was taken employee down there- testified that were not whites report blacks, after. When differently Davis did that some- trained than and another it, spat one altered his time employee card testified that Davis re- black supervisor promptly posted Davis’ adequate training. a notice ceived Davis and Har- tolerated, that such conduct contrary merely would not be ris’ statements to the are therefore, repeated. allegations, and, and the conduct conclusory Both in- allege supervi- genuine Harris that their create a issue of sufficient to fact. sor, Newmarker, them, only regarding harassed it is The em- evidence white not clear ployee poor that the comments cite as record es- with a absenteeism evidence of his given racist behavior were racial- he the same disci- tablishes that was ly pline given motivated. and Harris. as that to Davis (the vic- ‘to alter the conditions cited no vasive and Harris have

Finally, Davis tim’s) employment and create an disability leave Monsanto’s instance where ” working environment.’ Id. at relaxed for a white rules were verification Therefore, (quoting at 60 the district court employee. Dundee, disparate treat- properly dismissed Henson Court, Cir.1982)). claims. promulgate a defini- declined the district also believe that We lia- employers would be tive rule on when envi disposition the hostile work court’s Rather, the for such an environment. ble proper, reach claim but we ronment subsequent recommended that Court by following a different same result guid- agency principles for “look to courts *4 analytical route. Savings Bank in this area.” Meritor ance recognize case to a cause The first 72, Vinson, 477 U.S. at 106 S.Ct. supra, v. discriminatory work upon a action based 2408, L.Ed.2d at 63. at 91 EEOC, 454 v. Rogers environment was Harris’ its of Davis and discussion Cir.1971), denied, (5th 406 234 cert. F.2d claim, district hostile work environment 957, 2058, 32 L.Ed.2d 343 92 S.Ct. U.S. circuit’s quoted length at from this court (1972). an em Rogers court held that opinion, post-Vinson first Rabidue v. Os Spanish origin could establish ployee of Cir.1986), (6th Co., 805 F.2d 611 Refining ceola demonstrating that Title VII violation — denied, U.S. -, 107 S.Ct. rt. ce 1983, employer created “a environ her (1987). The district 95 racial heavily charged with ethnic or frequently cited this case as court also Subsequently, Id. at 238. dicrimination.” believe, support for its conclusions. We finding adopted position, this courts several misplaced though, that this reliance was employer cre Title VII violations where apply racially Rabidue does not because substantially discrimi condoned a ated or environment claims. hostile work environment, regardless of natory work complaining employee any lost Refining v. su- Rabidue Osceola tangible job benefits as a result alleged that she was the pra, plaintiff See, e.g., v. Bun discrimination. Johnson discriminatory sexually work victim of (8th Cir.1981); Co., 646 F.2d 1250 ny Bread assessing environment. (1st Rumsfeld, 614 F.2d 796 v. DeGrace a multi-factored test. court articulated Lines, East, Cir.1980); Gray Greyhound v. elements, though, re- of the five Three (D.C.Cir.1976). F.2d 169 This 545 or “sexual” specifically ferred to “sex” development in Erebia first endorsed at 619. This court also harassment. Id. Corp., 772 Chrysler v. Plastics Products by stating that prefaced its standard Cir.1985), applies to “a Title VII offensive work envi- 1197, 1015, U.S. S.Ct. harassment action.” Id. ronment sexual added). Finally, citing (emphasis after test, supported its this court cases which Savings In Meritor Bank v. standard be suggested that 91 L.Ed.2d 49 Rabidue U.S. 106 S.Ct. compared with the standard Erebia v. principle affirmed the em- the Court Corp., supra, body judicial Chrysler Plastics Products in this “substantial bodied racially involving a hostile work at 91 a case decisions.” Id. case, claim. Erebia remains 59. In this the Court held environment L.Ed.2d at controlling racially hostile work law for sexual harassment to be action- “[f]or in this circuit.1 able, sufficiently per- severe or environment claims it must be different, law, applied apply Court has circuits the same 1. Some scrutiny types for classifications work environment intermediate level for both claims, hostile See, gender, e.g., rather than the strict scruti- based race and sex. Henson v. Dundee, (11th Cir.1982); reviewing ny race, based on used in classifications 682 F.2d 897 Walker v. (11th Cir.1982). though different standards even these two Motor 684 F.2d 1355 Ford provi- constitutional emanate from the same We that the standards need not necessar- believe Boren, Craig rights ily sion. be identical. In another area of civil alleged the instances of of the Erebia case harassment Although posture type. related in either time or of the case were Rath- posture from the different er, all that the victim of racial two harassment here,2 in Erebia identified this court alleged need show is that the conduct con- racially hostile for a requisite elements unreasonably stituted an or offen- “repeated slurs claim: environment work adversely sive work-related environment or tolerance and condona- management’s employee’s ability take affected the reasonable Id. We now of the situation.” tion job. do his or her racially to elaborate on opportunity set environment standard plaintiff prove If the can this circuit Erebia. forth for motivated conduct constituted such an envi ronment, he or she must then show that require satisfy the first In order to employer “tolerated or condoned the slurs,” ment, plaintiff must “repeated employer situation.” In order to hold the alleged racial harassment show liable for the conduct of the victim’s co of unreasonably abusive or constituted an workers, plaintiff must establish that ad environment or fensive work-related knew or should have known employee’s versely affected the reasonable conduct and failed to take required by the ability perform the tasks *5 prompt remedial action. “[A]n establishing requisite the ad employer. In steps who has taken reasonable under the performance, how effect on work verse prevent circumstances to correct and/or ra ever, prove need not that his plaintiff the by per nonsupervisory cial harassment tangible productivity has declined as or her Title sonnel has not violated VII.” DeG employee harassment. The a result of the (1st 614 F.2d Rumsfeld, race v. made only show that the harassment need Cir.1980). job. more difficult to do the it Applying two-part standard to the fully explaining what this more case, of this we conclude that the facts phrase intended the use of the granting court was correct in Mon- district slurs,” deliberately “repeated we have summary judgment santo’s motion. While by other using a distinction drawn avoided findings may not the district court’s be Rock, City Little courts. In Gilbert v. of adequate respect to whether the al- to consti- leged harassment was sufficient 2347, 80 L.Ed.2d 820 466 U.S. the evi- tute a hostile a court stated that than the “[m]ore clearly that Mon- dence in the record shows of harassment must few isolated incidents alleged not tolerate the harass- santo did to establish a violation have occurred in- and Harris cite several ment. Davis citing Title VII.” Id. Johnson alleged racial harassment. With stances of 1250, 1257(8th Bunny Bread incident, however, Davis respect to each Cir.1981). suggested The Gilbert court any evidence that and Harris failed to offer prove that the al plaintiff must the conduct. Monsanto condoned “pattern a leged conduct established Rather, clearly record shows Little the harassment.” Gilbert v. problem, potential a Rock, Drawing informed of F.2d at 1394. a distinc when appropriate mea- quick and and a Monsanto took tion between “isolated incidents” situation. For exam- remedy to the harassment” does not advance sures “pattern of told supervisor was prove ple, a Monsanto analysis; plaintiff the need not when the VII, Erebia, reviewing (1976). court was Title much like the 50 L.Ed.2d 397 equal protection clause, gen- merely expresses plaintiff jury verdict in favor of necessarily prohibition, re- eral and courts are Here we are supported substantial evidence. quired supply specific to en- to proper grant to it was asked to decide whether underlying congressional mandate. force the Therefore, defendant, summary judgment in favor application slightly different requires different standard a somewhat which types work en- standards in different of hostile review. entirely claims is consistent with es- vironment rights jurisprudence. tablished civil magical racially derogatory graffiti bring in the transformation about about ” bathroom, social of American graffiti painted over mores workers.’ Id., day. Similarly, reported (quoting Davis 805 F.2d at 621 Rabidue v. next when card, Refining F.Supp. his time a Monsanto Osceola problem with (E.D.Mich.1984)). supervisor posted stating notice promptly unacceptable, and that such conduct was however, reading passage, the incident did not reoccur. place emphasis should on word one “magical,” respect remaining to in not the word “transformation.” With harassment, not to alleged stances of those which Title VII was intended eliminate immediately reported private prejudice not all bias Davis and Harris admit were law, Monsanto, dy the record that Mon es. That did alter the indicates workplace oper did not know and could not have namics because santo problem. example, prevent bigots harassing from known of the For ates As the in complain Harris that blacks were co-workers. Court structed, separate “[p]rivate may in the outside forced to eat at a table biases law, admit, cannot, though, the reach of They lunchroom. law indirectly, supervi directly give or them effect.” situation was never Sidoti, 429, 433, Moreover, sor. because two other black Palmore v. 1879, 1882, employees denied that blacks ate or were S.Ct. designated table, impose

required to at a Mon Title VII not an eat does unreasonable possible potentially santo could not have known unconstitutional burden Therefore, problem. employers. always because Monsanto “It be within charged employer’s power guarantee cannot be with actual construc an envi knowledge bigotry. tive room all of this lunch ronment free from He cannot *6 “freezeout,” change held the personal employ it cannot be liable for beliefs of his ees; known, however, tolerating he can that harassment. let be tolerated, will not and racial harassment be instance In its discussion of al- he can take all reasonable measures to leged harassment, however, the district policy.” enforce this DeGrace v. Rums may have misunderstood the true essence, feld, supra, 614 F.2d at 805. In impact Citing of Title Howard VII. v. Na- require employ Title while VII does not an Co., F.Supp. Register tional Cash er to fire all “Archie em Bunkers” in its (S.D. 1975), Ohio the district court stated ploy, require employer the an law does that that, “the of ‘Archie elimination Bunker’ prompt bigots to prevent take action such factory types from the environment carries expressing opinions way their from in a Howard, too Title VII far.” the court their that abuses or offends co-workers. explained that “Archie Bunker” is char- “a expression By informing people the that prejudiced is acter who and biased public in racist sexist attitudes is unac persons neighbor- all than of other his own may eventually ceptable, people that learn hood, religion nationality.” Id. and at 606. private, in such views are undesirable as opinion peo- stated that such Howard Thus, goal may well. Title VII advance the limitations, ple, may “within still assert eliminating prejudices and biases in our By emphasizing their Id. biased view.” society. point charged the that “is not an discharging law with Archie Bunkers all reasons, foregoing For' the the district employ,” Id., in its the district court here grant judg- summary court’s decision to may erroneously encouraging per- be the in the favor of Monsanto Chemical petuation of quo. the status Company hereby is affirmed. Unfortunately, this confusion be NORRIS, Judge, ALAN E. Circuit product of a statement included in this concurring part dissenting in and in opinion court’s in Rabidue v. Re- Osceola part. Rabidue, fining supra. this court quoted approval passage majority has from To extent that opinion. hinging appeal district court’s This court stated framed the issue in this “ designed ‘Title upon upon that VII the district court’s reliance [was] sufficiently persistent Re severe and in v. Osceola to af opinion Rabidue court’s seriously psychological well-being fect fining — Vinson, U.S. -, employees. 65-67, denied, 107 S.Ct. 477 U.S. at (1987), promulgates a 106 S.Ct. at 2405. assessing Title VII claims for standard for Rabidue, required this court that “the place which in the work racial harassment charged sexual harassment the ef- [have] promul inconsistent with the unreasonably interfering fect of with the in Supreme Court Meritor gated by the plaintiff’s performance creating work Vinson, 477 U.S. Savings Bank hostile, intimidating, or offensive work- I dissent. ing seriously environment that affected do, in the result arrived I concur psychological well-being plaintiff.” majority. 805 F.2d at 619. Since this standard is Vinson, majority opinion harbors a dis- consistent with and in that Apparently, Rabidue, Supreme indistinguish- in opinion court’s Court accorded taste for this in the able treatment to Title involving sexual harassment VII claims for race case place, to scold and sexual harassment in the I place, pains since are taken work work looking opinion agree majority to that am unable to with the that the district court for But, culpable misplaced in to distance the district court was guidance. its fervor Rabidue, majority looking guid- would reliance to Rabidue for itself from ance. leave this circuit with different claims based on measuring Title VII Because the district court was warranted environments, upon depending plaintiffs simply in its conclusion that did predicated are on race dis- adequate not introduce evidence to estab- It is be- crimination or sex discrimination. sufficiently pervasive conduct lish to alter is at odds with cause I believe that result their conditions of and create opinion Court’s an abusive and of a I dissent. sufficiently persistent severe and nature to seriously psychological majority stakes its case on affect well-be- Chrysler ing, disposition Plas I would affirm the court’s opinion Erebia v. court’s Cir.1985), the hostile environment claim on Corp., 772 F.2d 1250 work tics Prod. basis, plaintiffs’ as well as rt. ce 1197, *7 satisfy appropriate failure to opinion proof superior liability. respondeat predated the Court’s hold

which ing promulgating the “mul- Vinson. majority, test” referred to

ti-factor Vinson, and cited upon relied

Rabidue supporting proposition suffi

Erebia analogous support. I cannot

ciently to lend majority’s assertion that

agree with the controlling law for “Erebia remains CHAMBERS, racially hostile work environment claims Plaintiff-Appellee-Cross-Appellant, circuit,” majority since the in that case anticipate unable to with com Vinson INGRAM, Victoria and, plete accuracy, understandably, Defendant-Appellant-Cross-Appellee. opinion is to some extent inconsistent with 87-1555, and 87-1873. Nos. 87-1606 Vinson. together when read with the Appeals, Court of United States relies, instructs us cases which Seventh Circuit.

that, in to state claim under Title order Argued 1988. Feb. VII for either race or sexual harassment Sept. Decided complained place, the work the conduct sufficiently pervasive must be to alter the and create an

conditions and it must