*1 917 TASHIMA, BOOCHEVER, Before: TALLMAN, Judges. Circuit C.
RICHARD by the remanded has been
This case for reconsid Supreme Court States
United in decision light of the Court’s
eration 289, 121 S.Ct. Cyr, 533 U.S.
INS v. St. (2001). Fasano See
2271, L.Ed.2d 347 — U.S.-, Richards-Diaz,
v. (2001). asked We L.Ed.2d 745 and, briefing, in such briefing further Cyr, of St. that, light parties agree for discre apply eligible
petitioner under for deportation from
tionary relief 212(c) Nat Immigration and
§mer 1182(c) (1994).1 Act, 8 U.S.C.
uralization the district judgment of
Accordingly, the this case is remanded is vacated that it directions court with the district Board this case remand
further for consideration
Immigration Appeals discretionary application
petitioner’s deportation. from
relief McCOWAN; Johnny N.
Warren Guerrero, Luna; E.
P. Steve
Plaintiffs-Appellants, INC.; MAINTENANCE,
ALL STAR Tracy Switzer; King;
Tim Steve
Gorman, Defendants-Appellees. 00-2040.
No. Appeals, Court
United States
Tenth Circuit. 30, 2001.
Nov. No. Pub.L. 304(b) Act of grant Responsibility 212(c) by § repealed Section (1996). 104-208, 110 Stat. Immigration and Immi- Illegal Reform *2 origin. Hispanic national on their
based challenges the dismissal appeal This review our de novo lawsuit. Because premature, disposition finds *3 reverse. 1997, All Mainte- of Star
In the summer Sands on the White did business nance Mexi- central New Range in south Missile roofing, and co, tiling, carpentry, providing for houses prepare services painting Charles government. to the federal resale Peterson, manager re- project “Burt” efficiency ensuring the of for sponsible King, supervised Tim operation, overall turn, who, re- superintendent, field Gorman, an fore- Tracy on-site upon lied as well as person, control quality and man Switzer, and car- did concrete who Steve production work. Concerned pentry Ramos, (Rodrigo V. Federico C. Alvarez first crew being met were not goals PLLC, El Ehrlich, Scherr, & Legate, Warren Mr. hired painters, three of briefs), Haglund, TX, Kelly, Paso, on Luna, McCowan, and Steve Johnny Denver, CO, Plain- Kahn, for Garnsey & painting this second Typically, Guerrero. tiffs-Appellants. office All Star field checked into crew (Jo Ro- Brayer, Saxton Vigil J. Charles order, drove a work morning get Robb, P.A., Dickason, Sloan, Akin & dey, assigned to were the house the Croysdale NM; David W. Albuquerque, day of the at the end and returned paint, Jones, &Best Michael Amy Schmidt days, McCow- During those out. clock WI, Milwaukee, L.L.P., with Friedrich, called, over- Luna, were an, and Guerrero Dickason, Sloan, briefs), Rodey, on the him epithets heard, about told racial or were NM, for Robb, P.A., Albuquerque, & Akin work area. office or peppered the which Defendants-Appellees. started, this sec- they weeks after Three to Mr. complained crew of ond MURPHY, HALL,* and Before epithets and unprovoked King about the PORFILIO, Judges. Circuit the sec- King terminated Mr. comments. that ac- for actual reason crew. The ond PORFILIO, Senior Circuit JOHN C. lawsuit. formed the basis tion Judge. McCowan, Plaintiffs complaint, In their houses After three weeks Guerrero, States Luna, a United each Inc., Maintenance, N. Warren Star, All alleged origin, Luna, E. Mexican citizen McCowan, Johnny P. and Steve Gorman, and Steve Swit- Tracy King, terminated, the Tim triggering Guerrero (All Star, collectively) discriminated zer discrimination underlying lawsuit * Circuit, by designation. Hall, sitting Judge for Cynthia H. Circuit Honorable Ninth Appeals, Court of the United States cans,”
against “my friend,” them because their race sub- south the border jecting racially derogatory attitudes,” them to lan- “fucking cholo “spik,” “burrito- guage racially motherfucker,” in a hostile environment and eating nigger,” “worthless terminating them then com- “nigger day,” when “fucking for a painter” plained, all in rights violation un- might overheard, have been uttered and § der U.S.C. 1981 and Title VII language always directly was not spo- Rights Civil Act of 42 U.S.C. ken to Plaintiffs nor in the communicated 2000e-16(e). All Star moved for sum- presence or with the Tim knowledge of mary judgment contending alleged “the King, Moreover, All argued. because remarks were not per- racial so severe or spent only a few at the minutes *4 as to vasive alter the conditions of their beginning day and end of the in the office and employment Plaintiffs did not com- where some of the offensive language plain alleged about the until the remarks might been voiced have and otherwise position their day eliminated.” [sic] worked in a day alone house for the entire period only weeks, over a of they support motion, In of the All Star stated could not showing survive the factual nec- “prior experience” “industry and stan- essary for an intimidating or hostile work three-person dards” dictated a crew should environment. paint the day. interior of a in a house only painted Plaintiffs “6-7 during houses” Plaintiffs Although depo- countered with the three and a half weeks worked for sition testimony, affidavits, various an and Star, All causing the company to lose finding, EEOC affirmative as well a list as about on painted. each house A week $600 specific of instances of offending the dis- Plaintiffs, terminating two before All criminatory comments, incidents and the Star stated subcontracted the Magistrate Judge assessed each claim work and discovered it could save from against evidence, documentary cata- per Thus, to $400 house. “All $600 Star loging of personal some the statements as hiring painters ceased solely financial opinions by and others as “not even (italics added). reasons.” examining After stretch” qualify racially derogatory to as “backgrounds” the the six who (for example, painters”), and conclud- “f— comprised crews, the two painting All Star ed, law, under the extant Plaintiffs had reassigned the workers the first crew presented a prima facie case but failed and terminated Plaintiffs. The conse- carry their burden to presump- “rebut the quence, asserted, was circum- tion that Defendants terminated [them] for by its judgment scribed business and was legitimate, nondiseriminatory reasons.” pretext not a for discrimination. Magistrate The Judge granted then All Further, All Star Plaintiffs’ challenged summary judgment on Plaintiffs’ racially derogatory comments, evidence termination, claims of discriminatory retal- relegating language the and epithets the iation, hostile and environment as well as coarse dominions of the construction in- negligent those of and liability vicarious dustry cushioning and and diminishing the alleged the employment. conditions of words’ effects with various hearsay charac- Thus, terizations. while statements like jurisdiction, premised Our on 28 cholos,” “wannabe “fucking stupid 1291,1 Mexi- requires U.S.C. we the review response In to this court's question about stating signed ted separate briefs each con jurisdiction, whether the Magis United States sent agreeing Magistrate forms to have the final, Judge's trate order is the parties Judge submit proceedings all conduct and "order the Here, ap- challenge Plaintiffs the correct summary de granting judgment order directive, plication urging latter legal standards of this the utilizing the same novo district court as dictated district court substituted its evaluation employed the 56(c). separate discriminatory of Civil Procedure instances of state- by Federal Rule Servs., Inc., Technology from O’Shea v. Yellow ments extricated the overall context (10th Cir.1999). If ap- 185 F.3d in which the incidents This occurred. contend, pleadings, depositions, of “the proach, they review “robs incidents interrogatories, Moreover, admissions answers cumulative effect.” affidavits, file, if together with the on deeming context of the comments the any,” genuine is no issue as reveals “there vulgar rough environment of hewn fact[,] par moving ... material work, complain construction judgment as summary ty is entitled to totality court failed to evaluate the 56(c). “A matter of law.” Fed.R.Civ.P. specific light incidents the record if, governing fact is ‘material’ under they presented. law, an it could have effect on out agree. A of summary We tenet Norton, Ortiz v. come of lawsuit.” review, stated, re judgment have we (10th Cir.2001) (citing quires indulge all inferences reasonable *5 Inc., Liberty Lobby, v. 477
Anderson
U.S.
case,
in
favor. In
not
the nonmovant’s
this
2505,
242, 248, 106
onerous”
establishing
burden of
prima
S.Ct. 1089.
Plaintiffs,
facie case on
requiring proof by
This latter burden
recently
a preponderance of the evidence Plaintiffs
elucidated in Reeves v. Sanderson Plumb
belong
protected class,
to a
case,
in this
Prods., Inc.,
ing
133,
530 U.S.
120 S.Ct.
racial minority;
qualified
job
were
for the
2097, 2109, 147
(2000),
L.Ed.2d 105
which
perform;
were hired to
despite the
rejected
premise
“the
plaintiff
that a
must
qualifications,
terminated;
and the
always introduce
independent
additional
job was not eliminated after their dis
discrimination,”
evidence of
and credited
charge.
Dept.
Texas
Community
Af
plaintiffs evidence he properly
job
did his
Burdine,
248,
v.
253,
450 U.S.
101
fairs
had
no responsibility
failing
1089,
S.Ct.
(1981);
923 evidence, light in the pro- That taken most of evidence quantum from the derives Plaintiffs, v. Broth favorable Schwartz claim. their Title VII duced for Way Employ erhood Maintenance of (10th ees, 1181, 1183-84 Cir.2001), environment claim to “For hostile Tim King establishes that hired Plaintiffs motion, ‘a summary judgment survive a stated, because, he the first crew was not jury must show that rational plaintiff enough. the houses fast King permeated is workplace find that the could acknowledged paid Plaintiffs were Davis ridicule, intimidation, discriminatory with wages govern Bacon the federal set insult, sufficiently or severe ment, hour, an which were con about $10 the conditions of the pervasive to alter good money painting in that sidered employment create an abusive victim’s King paint area. ” asserted he wanted Penry Federal environment.’ working industry ing to meet standards crews Topeka, 155 F.3d Home Loan Bank of paint an which set 20-24 hours to 1100 (10th Cir.1998) 1257, (quoting Davis 1261 square foot house. Service, 1334, F.3d 1341 142 v. U.S. Postal walking Plaintiffs each described their Cir.1998) (internal quotation marks safety meeting in the weekly into the field omitted)). judge While we and citations and, once, being greeted by at office least objectively and sub atmosphere both Switzer,5 “Hello, my Mexican Steve 21-22, Harris, 510 114 jectively, U.S. friends,” with Tim and Burt Peterson look at all circum S.Ct. we must hearing Tracy present, or Gorman call perspective “from the a reason stances motherfuckers,” them “eholo-attitude or plaintiffs position.” in the person able “constantly” abiding “nigger” words Servs., Inc., v. Sundowner Oncale Offshore “spik.” hearing described Steve Guerrero 75, 81, 140 L.Ed.2d U.S. burrito-eating utter “a Switzer bunch (1998). task, precedent our Given they got off work with motherfuckers” severity and pervasive underscores “the Gorman, King, Tracy Tim and another An- particularly unsuited for ness evaluation is glo present, always but “he was worker summary judgment ‘quintes because it is Each dogging way.” us some stated he ” O’Shea, sentially question fact.’ felt uncomfortable and unwanted. None- *7 Webb, Beardsley (quoting F.3d at 1098 theless, explained as Mr. McCowan (4th Cir.1994) (citation day, end of a Joe would drive home omitted)). Hernandez, had who worked for down, longer, try to them tell- would calm Here, the court assumed “without it it is to off’ because ing them “blow fa- prima Plaintiffs established a deciding” money, can take lot good job, “good you must cie case of race discrimination. We money, you kind know.” Mr. for that proof to Plaintiffs’ to decide then turn stated, me. I had “Especially 'McCowan there material fact which whether is job paying money. that kind of never had concluding from as a precludes report I didn’t it why That’s the reason explanation sooner, get law All Star’s termi- matter of I didn’t want to because it.”6 nated because of worthy of credence. lawsuit, Switzer, testimony, court did not address this in this did The
5. Mr. a defendant crediting deposition All Star’s statement Plain- appear even after a instead not for his reported any racial abuse. In- subpoena upon long- no never was him. He tiffs served favor, explanation dulged in Plaintiffs’ er works for All-Star. Mr. Luna stated he heard Gorman and foul mouth. Deponents uniformly stated making racially Switzer derogatory com- everyone abuse, knew of the verbal noting him, ments crew, directed either at his that while some of the language ge- Joe Hernandez who would be with them. cursing, neric much had ethnic and racial instance, For one he described passing by overtones. a conversation and overhearing “spik” or Gorman, designated King as his on- epithet, another and the occasion when foreman, site described the banter at the “stupid Switzer uttered fucking Mexican” work site general job site construction or “burrito-eating motherfucker.” He joking, although he stated he never stated that although he loved working with comments, made racial conceded might he hands, his he day’s dreaded the racism “nigger,” have said but not nig- “worthless him, ahead of though job “Even lasted ger” to David Stukes. He stated he had only weeks, I enough felt racism to the authority reprimand to workers and
last me a lifetime.” reprimanded had all of at one In deposition, Mr. Guerrero de- time or another.8 scribed King’s Tim giving Gorman poster Mr. Guerrero described going to Mr. containing an anti-discrimination message. complain about the racial harass- (Tim Mr. stated, Guerrero “[H]e King) ment. kind of him, chuckled along with and he said it out loud to Tim where King could And he kind of laughed. Naw, really? hear, that against ‘discrimination is not said, Yes, IAnd sir. And he looked at law, joke.’ it’s a And that’s one thing that us, me, all Johnny and Neal were really got me because everybody Well, there —and goes, he being what’s
thought was funny. real And this was said? Who said what? go. And I You right in front of Tim King’s desk.” know what’s been said. I didn’t want to produced say No, deposition anything. on, testimony come tell me in which other All employees what’s been said. And I stated told him burri- racial slurs were to-eating common and not limited motherfuckers stupid fuck- Hispanic employees. ing Joe all, Mexicans. And Well, Hernandez he was you kept loga of the comments and need to tell incidents me who’s saying it. And I which Plaintiffs said, included in the I’m not going record. names, mention no Gorman, sported who an Aryan you Nation ‘cause know exactly who I’m talking tattoo, agreed that Switzer’s comments about’. And he started laughing. Oh, were “continuous.” well, Gorman acknowledged I’m you sorry, guys, and I know he called an African American employee, go who to goes, to. He I knew it was *8 Stukes, David a “nigger” but not a on, “worth- going but I didn’t you think of less nigger.”7 Johnson, Scott an All guys Star' taking any were of it serious. And employee, cuss, heard “Dumb, Switzer all, well, we were yeah, we have been fucking Mexican,” and said Switzer had a taking serious, it and really gotten it’s futility the of reporting the speech offensive 8. Although the district court found all of the support finds in the record. statements were made non-decision mak- ers, the record murky remains both as to Mr. 7. Three months after Plaintiffs' termination King's of awareness the verbal environment shortly and after All Star received notice of of and Gorman's actual authority in the work- action, the EEOC All placed Gorman on place. temporary leave because of his use of this pejorative. He subsequently was fired.
925 ” O’Shea, 185 occurred.’ incidents alleged it to like for know, we would now, you us F.3d Penry, 155 at (quoting Okay, at 1096 point he: F.3d thatAt know. stop, you v. Savings Bank 1262) I’ll Meritor (quoting on it. get I’ll sorry. I’m you guys, 57, 69, 91 Vinson, U.S. it. 477 that And was it. get on (1986)). L.Ed.2d they were testified Plaintiffs the of Each doing “were others King the rec- and of told examination thorough a Such work. We were good up the keep very term the good, because required ord is butt, was crew’s painting the other allegedly kicking that indicates ‘environment’ us.” tell he would exact words not should be discriminatory incidents sup- get Plaintiffs helping after testified inter- this Under in isolation. examined roller paint and bought different he plies, is not which conduct because pretation, but more efficient the work make skins part of the may form [race]-based crew their the up or told wrote never the dis- in which or environment context workers Other deficient. was performance to have alleged criminatory conduct is it crew the second tell by would who came may relevant occurred, be such conduct there were the first and than quicker in, evaluat- considered to, be should and work. their with problems no claim. environment work a hostile ing pre- finish did carpenters not if recognized (internal omit- marks quotation at 1097 Id. be might house, work the paring ' ted). slowed. con- the examine we Accordingly, when only three spans a record that light of In claim, at look both Title VII of this text characterizing the racial weeks, the court’s as well Plaintiffs targeting hostility specific evincing more “isolated” as harassment Thus, atmosphere. work the general as sporad- or comments, or accidental “casual baggy Plaintiffs’ about if comment even conversation,”9 as statements and ic explicitly not be might or low riders pants by individuals made not opinion personal statement, racial, context given firing misses hiring responsible the re- reasonably inferred could be stated repeatedly have mark. We race and to Plaintiffs’ related were marks VII of Title alleging violation in a ease envi- pervasive ongoing, of an part racially hostile work aof presence and the At this taunting.10 of racial ronment [racial] environment, “the existence context, rejecting too, in this stage, light ‘in determined be must harassment and often uttered frequently of the some fact whole,’ trier of and the aas the record hearsay distorts comments overheard circum- totality of the must examine work environment analysis in which context stances, including ‘the opprobrious barrage "steady Co., hardly the Gates Rubber Hicks court cited 9. The comment,” noted. Cir.1987), the Hides which re- racial F.2d 1406 plain- rejection of at 1412-13. F.2d court's versed district claim, in harassment and sexual tiff’s racial ag- "may the court ground part, "context,” on the the court comments 10. Within hostility evi- with of racial gregate evidence (calling a Bra- directed found not It hostility." at 1416. Id. of sexual dence Switzer's or "idiot” or "Duh” zilian worker *9 PRC, Inc., F.3d Bolden upon relied also "nig- "nigger” or calling Hernandez Joe Cir.1994), court the in which the border day” or "south ger employ- the summary judgment for affirmed er, on that friend”) discarded simply be cannot aon claims Title VII rejecting plaintiff's side weighed on the be ground but must on came slurs racial the that disclosed record inferences. reasonable coworkers, from two couple of occasions deprives Plaintiffs’ evidence of its tile, overall could possessed also skill by at least impact. one of Further, the Plaintiffs. explaining its business judgment, All Star minimized Indeed, totality evaluation, in that the hostility the might Plaintiffs’ have encoun- district resolved what judged it to be in tered the office and from other workers the uncontroverted fact that Plaintiffs by boasting job their performance did not spent only two to between fifteen minutes Again suffer. the inference may cut both in the office and worked for All Star only ways, however, and may permit a rational proof weeks as that the work envi- juror to infer Plaintiffs good workers could not ronment have been as offensive who should have been in All continued and racially alleged. hostile as These cir- employ Star’s but for their complaining cumstances, however, cut ways. both Al- about the racial harassment. ternatively, exposure the shorter sup- time ports equally the plausible inference Thus, All Star’s judgment” “business abuse was so offensive as to taint the with jargon economics, efficiency, job entire site. bottom profit lines and is not impervious to proof. alternative The court’s inquiry is Although the district court did not whether the employer made the best not evaluate All Star’s explanation for ter choice, but whether it was the real choice minating against evidence, this for terminating Plaintiffs. With no evi- employer’s judgment business cannot dence of the criteria used to evaluate the be immunized from the totality of the cir basis for the decision to paint- retain one Here, cumstances inquiry. the district ing crew over the other in the face of the court found even if racially hostile com inconsistencies and contradictions in the made, ments were Plaintiffs failed to es record, the court improperly resolved tablish the nexus between the remarks and questions of fact reserved jury. for the nexus, termination. That essential in establishing the comments constitute di Finally, would observe totality rect evidence of discrimination, is not the the circumstances analysis in cases like the test in proving discrimination with circum one before us obviates what would other- stantial evidence. We think the record is wise be the court’s call in deciding how not so clear. many racist comments constitute harass- ment or whether general profanity and
The record discloses King and Peterson vulgarity mixed with specific racial, ethnic, were dissatisfied with both painting crews; epithets equate sexual sum fact, King stated he hired the second pervasiveness required by Harris. Rath- crew because the first crew could not get er, by framing the evidence on summary job the painting done. Neither King nor judgment within the partic- context of this told Gorman Plaintiffs their work was un- ular workplace, we eliminate the sugges- satisfactory. King stated shortly after tion that a certain number of comments is hired, Plaintiffs were All Star decided to actionable, or is not as All Star has ad- try subcontracting the painting work al- vanced, and leave the resolution to the though the record does not disclose wheth- trier of fact. er, fact, the subcontractors met performance goals. All Star stated Therefore, it because the record discloses looked at the “backgrounds” of the first Plaintiffs summary established judgment painting crew judged precluded workers genuine issue of material were more experienced, although kept fact, we REVERSE. The case is RE- no written files employee’s on back- MANDED for further proceedings consis- ground and stated one of those tent with opinion. *10 clearly legiti- that no evidence vided concurring. Judge, MURPHY, Circuit replac- for non-discriminatory reason mate write but opinion majority join the I By pretextual. was as ing them I believe why on to elaborate
separately
essentially no
contrast,
provided
All-Star
on
facie burden
prima
their
met
Plaintiffs
to articu-
of its burden
support
in
evidence
All
claims.
termination
wrongful
their
nondiscriminatory reason
legitimate
late a
dispute,
do not
asserts,
Plaintiffs
and
Star
paint-
non-Plaintiff
retaining the
for
terminated, sub
Plaintiffs
that after
preference
in
laborers
general
ers as
work
painting
performed
contractors
as part
required,
Star was
All
Plaintiffs.
All
by Plaintiffs.
performed
previously
framework, to
Douglas
of the McDonnell
therefore,
Plaintiffs,
can
argues that
Star
forth, through the introduction
“clearly set
positions re
their
that
demonstrate
not
for the
evidence, the reasons
of admissible
and thus
discharge
their
open after
mained
Burdine, 450 U.S.
rejection.”
plaintiffs’]
of
element
fourth
establish
cannot
doing, it was
so
In
construc
All Star’s
case.
prima facie
was
their
that
a reason
required
articulate
nar
too
is far
element
Id. at
the fourth
reasonably specific.”
tion of
and
“clear
Perry v.
in
court stated
statement
As this
The bare
row.
ployees burden. facie prima of Plaintiffs’
poses that Plain indisputable
Accordingly, it burden as facie prima their tiffs satisfied Next HARRIS, and Mother Thelma claims. termination wrongful to their Harris, Ricky Alan Friend Plaintiff-Appellant, HALL, Circuit HOLCOMB CYNTHIA concurring. Judge, Independent reversing the ROBINSON majority Vicki join the
I also of Leflore No. District judg- School summary grant court’s district Defendants-Ap Oklahoma, County, treatment disparate to Plaintiffs’ ment pellees. I write claims. environment hostile my view to note simply No. 00-7136. separately in the by Plaintiffs raised issue material Appeals, Court States United treat- claim is disparate treatment Tenth Circuit. crew the other relative ment 7, 2001. Dec. hiring of subcontrac- than the rather re- reason proffered All-Star’s tors. subcontractors with
placing pro- money. Plaintiffs to save simply