273 F.3d 917 | 10th Cir. | 2001
Lead Opinion
After three weeks painting houses for All Star Maintenance, Inc., Warren N. McCowan, Johnny P. Luna, and Steve E. Guerrero were terminated, triggering the underlying lawsuit for discrimination based on their Hispanic national origin. This appeal challenges the dismissal of that lawsuit. Because our de novo review finds that disposition was premature, we reverse.
In the summer of 1997, All Star Maintenance did business on the White Sands Missile Range in south central New Mexico, providing carpentry, tiling, roofing, and painting services to prepare houses for resale to the federal government. Charles “Burt” Peterson, the project manager responsible for ensuring the efficiency of the overall operation, supervised Tim King, the field superintendent, who, in turn, relied upon Tracy Gorman, an on-site foreman and quality control person, as well as Steve Switzer, who did concrete and carpentry work. Concerned that production goals were not being met by his first crew of three painters, Mr. King hired Warren McCowan, Johnny Luna, and Steve Guerrero. Typically, this second painting crew checked into the All Star field office in the morning to get a work order, drove to the house the three were assigned to paint, and returned at the end of the day to clock out. During those days, McCow-an, Luna, and Guerrero were called, overheard, or were told about racial epithets which peppered the office or work area. Three weeks after they started, this second crew of painters complained to Mr. King about the unprovoked epithets and comments. Mr. King terminated the second crew. The actual reason for that action formed the basis of this lawsuit.
In their complaint, Plaintiffs McCowan, Luna, and Guerrero, each a United States citizen of Mexican origin, alleged All Star, Tim King, Tracy Gorman, and Steve Swit-zer (All Star, collectively) discriminated
In support of the motion, All Star stated “prior experience” and “industry standards” dictated a three-person crew should paint the interior of a house in a day. Plaintiffs only painted “6-7 houses” during the three and a half weeks they worked for All Star, causing the company to lose about $600 on each house painted. A week or two before terminating Plaintiffs, All Star stated it subcontracted the painting work and discovered it could save from $400 to $600 per house. Thus, “All Star ceased hiring painters solely for financial reasons.” (italics added). After examining the “backgrounds” of the six painters who comprised the two painting crews, All Star reassigned the workers in the first crew and terminated Plaintiffs. The consequence, All Star asserted, was circumscribed by its business judgment and was not a pretext for discrimination.
Further, All Star challenged Plaintiffs’ evidence of racially derogatory comments, relegating the language and epithets to the coarse dominions of the construction industry and cushioning and diminishing the words’ effects with various hearsay characterizations. Thus, while statements like “wannabe cholos,” “fucking stupid Mexicans,” “my south of the border friend,” “fucking cholo attitudes,” “spik,” “burrito-eating motherfucker,” “worthless nigger,” “nigger for a day,” or “fucking painter” might have been uttered and overheard, the language was not always directly spoken to Plaintiffs nor communicated in the presence or with the knowledge of Tim King, All Star argued. Moreover, because Plaintiffs spent only a few minutes at the beginning and end of the day in the office where some of the offensive language might have been voiced and otherwise worked alone in a house for the entire day over a period of only three weeks, they could not survive the factual showing necessary for an intimidating or hostile work environment.
Although Plaintiffs countered with deposition testimony, various affidavits, and an EEOC affirmative finding, as well as a list of specific instances of the offending discriminatory incidents and comments, the Magistrate Judge assessed each claim against this documentary evidence, cataloging some of the statements as personal opinions and others as “not even by a stretch” to qualify as racially derogatory (for example, “f — painters”), and concluded, under the extant law, Plaintiffs had presented a prima facie case but failed to carry their burden to “rebut the presumption that Defendants terminated [them] for legitimate, nondiseriminatory reasons.” The Magistrate Judge then granted All Star summary judgment on Plaintiffs’ claims of discriminatory termination, retaliation, and hostile environment as well as those of negligent and vicarious liability for the alleged conditions of employment.
Our jurisdiction, premised on 28 U.S.C. § 1291,
Here, Plaintiffs challenge the correct application of this latter directive, urging the district court substituted its evaluation of separate instances of discriminatory statements extricated from the overall context in which the incidents occurred. This approach, they contend, “robs the incidents of their cumulative effect.” Moreover, by deeming the context of the comments the rough hewn and vulgar environment of construction work, Plaintiffs complain the court failed to evaluate the totality of the specific incidents in light of the record they presented.
We agree. A tenet of summary judgment review, as we have stated, requires we indulge all reasonable inferences in the nonmovant’s favor. In this case, not only did the court fail to view the evidence in this fashion, but also it ignored some of the facts presented, permitting it to resolve what otherwise would be material facts more appropriately reserved for a rational jury. Moreover, even if this review did not convince us of the presence of a genuine issue of material fact, we would have to conclude the district court failed to correctly apply the substantive law.
What is then before us is whether Plaintiffs’ version of their three weeks’ employment at All Star supports a viable claim of racial discrimination in the several forms alleged.
This latter burden was recently elucidated in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000), which rejected “the premise that a plaintiff must always introduce additional independent evidence of discrimination,” and credited plaintiffs evidence he properly did his job and had no responsibility for failing to discipline late and absent employees, underlining the implausibilities and inconsistencies in the employer’s justification. As the Court reiterated, “[pjroof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Id. at 2108 (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 517, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
Further, the Court has broadly read Title VII
“For a hostile environment claim to survive a summary judgment motion, ‘a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998) (quoting Davis v. U.S. Postal Service, 142 F.3d 1334, 1341 (10th Cir.1998) (internal quotation marks and citations omitted)). While we judge that atmosphere both objectively and subjectively, Harris, 510 U.S. at 21-22, 114 S.Ct. 367, we must look at all the circumstances “from the perspective of a reasonable person in the plaintiffs position.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Given this task, our precedent underscores “the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is ‘quintessentially a question of fact.’ ” O’Shea, 185 F.3d at 1098 (quoting Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir.1994) (citation omitted)).
Here, the court assumed “without deciding” Plaintiffs established a prima fa-cie case of race discrimination. We must then turn to Plaintiffs’ proof to decide whether there is any material fact which precludes the court from concluding as a matter of law that All Star’s explanation is worthy of credence.
That evidence, taken in the light most favorable to Plaintiffs, Schwartz v. Brotherhood of Maintenance of Way Employees, 264 F.3d 1181, 1183-84 (10th Cir.2001), establishes that Tim King hired Plaintiffs because, he stated, the first crew was not painting the houses fast enough. King acknowledged Plaintiffs were paid Davis Bacon wages set by the federal government, about $10 an hour, which were considered good money for painting in that area. King asserted he wanted his painting crews to meet industry standards which set 20-24 hours to paint an 1100 square foot house.
Plaintiffs each described their walking into the weekly safety meeting in the field office and, at least once, being greeted by Steve Switzer,
In his deposition, Mr. Guerrero described Tim King’s giving Gorman a poster containing an anti-discrimination message. Mr. Guerrero stated, “[H]e (Tim King) kind of chuckled along with him, and he said it out loud to where Tim King could hear, that ‘discrimination is not against the law, it’s a joke.’ And that’s one thing that really got to me because everybody thought it was real funny. And this was right in front of Tim King’s desk.”
Plaintiffs produced deposition testimony in which other All Star employees stated racial slurs were common and not limited to Hispanic employees. Joe Hernandez kept a log of the comments and incidents which Plaintiffs included in the record. Gorman, who sported an Aryan Nation tattoo, agreed that Switzer’s comments were “continuous.” Gorman acknowledged he called an African American employee, David Stukes, a “nigger” but not a “worthless nigger.”
Gorman, designated by King as his on-site foreman, described the banter at the work site as general job site construction joking, and although he stated he never made racial comments, conceded he might have said “nigger,” but not “worthless nigger” to David Stukes. He stated he had the authority to reprimand workers and had reprimanded all of the painters at one time or another.
Mr. Guerrero described going to Mr. King to complain about the racial harassment.
And he kind of laughed. Naw, really? And I said, Yes, sir. And he looked at all of us, me, Johnny and Neal were there — and he goes, Well, what’s being said? Who said what? And I go. You know what’s been said. I didn’t want to say anything. No, come on, tell me what’s been said. And I told him burrito-eating motherfuckers and stupid fucking Mexicans. And he was all, Well, you need to tell me who’s saying it. And I said, I’m not going to mention no names, ‘cause you know exactly who I’m talking about’. And he started laughing. Oh, well, I’m sorry, you guys, and I know who to go to. He goes, I knew it was going on, but I didn’t think any of you guys were taking any of it serious. And we were all, yeah, well, we have been taking it serious, and it’s really gotten to*925 us now, you know, we would like for it to stop, you know. At that point he: Okay, you guys, I’m sorry. I’ll get on it. I’ll get on it. And that was it.
Each of the Plaintiffs testified they were told by King and others they “were doing good, keep up the good work. We were kicking the other painting crew’s butt, was his exact words he would tell us.” King testified after helping Plaintiffs get supplies, he bought different paint and roller skins to make the work more efficient but never wrote up or told the crew their performance was deficient. Other workers who came by would tell the second crew it was quicker than the first and there were no problems with their work. All Star recognized if carpenters did not finish preparing a house, the painting work might be slowed.
In light of a record that spans only three weeks, the court’s characterizing the racial harassment as “isolated” evincing more “casual comments, or accidental or sporadic conversation,”
Such a thorough examination of the record is required because the very term ‘environment’ indicates that allegedly discriminatory incidents should not be examined in isolation. Under this interpretation, because conduct which is not [race]-based may form a part of the context or environment in which the discriminatory conduct is alleged to have occurred, such conduct may be relevant to, and should be considered in, evaluating a hostile work environment claim.
Id. at 1097 (internal quotation marks omitted). '
Accordingly, when we examine the context of this Title VII claim, we look at both specific hostility targeting Plaintiffs as well as the general work atmosphere. Thus, even if a comment about Plaintiffs’ baggy pants or low riders might not be explicitly racial, given the context of the statement, it could be reasonably inferred the remarks were related to Plaintiffs’ race and were part of an ongoing, pervasive environment of racial taunting.
Indeed, in that totality evaluation, the district court resolved what it judged to be the uncontroverted fact that Plaintiffs spent only between two to fifteen minutes in the office and worked for All Star only three weeks as proof that the work environment could not have been as offensive and racially hostile as alleged. These circumstances, however, cut both ways. Alternatively, the shorter exposure time supports the equally plausible inference the abuse was so offensive as to taint the entire job site.
Although the district court did not evaluate All Star’s explanation for terminating Plaintiffs against this evidence, the employer’s business judgment cannot be immunized from the totality of the circumstances inquiry. Here, the district court found even if racially hostile comments were made, Plaintiffs failed to establish the nexus between the remarks and their termination. That nexus, essential in establishing the comments constitute direct evidence of discrimination, is not the test in proving discrimination with circumstantial evidence. We think the record is not so clear.
The record discloses King and Peterson were dissatisfied with both painting crews; in fact, King stated he hired the second crew because the first crew could not get the painting job done. Neither King nor Gorman told Plaintiffs their work was unsatisfactory. King stated shortly after Plaintiffs were hired, All Star decided to try subcontracting the painting work although the record does not disclose whether, in fact, the subcontractors met the performance goals. All Star stated it looked at the “backgrounds” of the first painting crew and judged the workers were more experienced, although it kept no written files on any employee’s background and stated one of those painters could also tile, a skill possessed by at least one of the Plaintiffs. Further, explaining its business judgment, All Star minimized the hostility Plaintiffs’ might have encountered in the office and from other workers by boasting their job performance did not suffer. Again the inference may cut both ways, however, and may permit a rational juror to infer Plaintiffs were good workers who should have been continued in All Star’s employ but for their complaining about the racial harassment.
Thus, All Star’s “business judgment” with the jargon of economics, efficiency, bottom lines and profit is not impervious to alternative proof. The court’s inquiry is not whether the employer made the best choice, but whether it was the real choice for terminating Plaintiffs. With no evidence of the criteria used to evaluate the basis for the decision to retain one painting crew over the other in the face of the inconsistencies and contradictions in the record, the court improperly resolved questions of fact reserved for the jury.
Finally, we would observe the totality of the circumstances analysis in cases like the one before us obviates what would otherwise be the court’s call in deciding how many racist comments constitute harassment or whether general profanity and vulgarity mixed with specific racial, ethnic, or sexual epithets equate to the sum of pervasiveness required by Harris. Rather, by framing the evidence on summary judgment within the context of this particular workplace, we eliminate the suggestion that a certain number of comments is or is not actionable, as All Star has advanced, and leave the resolution to the trier of fact.
Therefore, because the record discloses Plaintiffs established summary judgment is precluded by a genuine issue of material fact, we REVERSE. The case is REMANDED for further proceedings consistent with this opinion.
. In response to this court's question about jurisdiction, whether the United States Magistrate Judge's order is final, the parties submitted briefs stating each signed separate consent forms agreeing to have the Magistrate Judge conduct all proceedings and "order the
. Those claims include discrimination based on Plaintiffs' Mexican origin; the existence of a hostile work environment; and All Star's liability for the hostile environment. Although the district court addressed Plaintiffs' claim of retaliatory discharge, we do not believe that disposition is preserved in this appeal.
. “When a plaintiff alleges that discriminatory comments constitute direct evidence of discrimination, this court has held that the plaintiff must demonstrate a nexus exists between [the] allegedly discriminatory statements and the decision to terminate her.” Perry v. Woodward, 199 F.3d 1126, 1134 (10th Cir.1999) (citing Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir.1994)).
. Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l).
. Mr. Switzer, a defendant in this lawsuit, did not appear for his deposition even after a subpoena was served upon him. He no longer works for All-Star.
. The court did not address this testimony, instead crediting All Star’s statement Plaintiffs never reported any racial abuse. Indulged in Plaintiffs’ favor, the explanation of
. Three months after Plaintiffs' termination and shortly after All Star received notice of the EEOC action, All Star placed Gorman on temporary leave because of his use of this pejorative. He was subsequently fired.
. Although the district court found all of the statements were made by non-decision makers, the record remains murky both as to Mr. King's awareness of the verbal environment and of Gorman's actual authority in the workplace.
. The court cited Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir.1987), which reversed the district court's rejection of plaintiff’s racial and sexual harassment claim, in part, on the ground that the court "may aggregate evidence of racial hostility with evidence of sexual hostility." Id. at 1416. It also relied upon Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994), in which the court affirmed summary judgment for the employer, rejecting plaintiff's Title VII claims on a record that disclosed the racial slurs came on a couple of occasions from two coworkers, hardly the "steady barrage of opprobrious racial comment,” the Hides court noted. 833 F.2d at 1412-13.
. Within this "context,” comments the court found not directed at Plaintiffs (calling a Brazilian worker "Duh” or "idiot” or Switzer's calling Joe Hernandez his "nigger” or "nigger for a day” or "south of the border friend”) cannot simply be discarded on that ground but must be weighed on the side of reasonable inferences.
Concurrence Opinion
concurring.
I join the majority opinion but write separately to elaborate on why I believe Plaintiffs met their prima facie burden on their wrongful termination claims. All Star asserts, and Plaintiffs do not dispute, that after Plaintiffs were terminated, subcontractors performed the painting work previously performed by Plaintiffs. All Star argues that Plaintiffs, therefore, cannot demonstrate that their positions remained open after their discharge and thus cannot establish the fourth element of their prima facie case. All Star’s construction of the fourth element is far too narrow. As this court stated in Perry v. Woodward, “[t]he elimination of the position, however, does not necessarily eviscerate a plaintiffs claim that her discharge was racially motived.” 199 F.3d 1126, 1140 n. 10 (10th Cir.1999). Here, Plaintiffs demonstrated that after their discharge All Star had a continuing need for individuals to perform the same work previously performed by Plaintiffs. That the work was performed by subcontractors and not employees of All Star is immaterial for purposes of Plaintiffs’ prima facie burden. Accordingly, it is indisputable that Plaintiffs satisfied their prima facie burden as to their wrongful termination claims.
Concurrence Opinion
concurring.
I also join the majority in reversing the district court’s grant of summary judgment as to Plaintiffs’ disparate treatment and hostile environment claims. I write separately simply to note my view that the material issue raised by Plaintiffs in the disparate treatment claim is their treatment relative to the other painting crew rather than the hiring of the subcontractors. All-Star’s proffered reason for replacing the Plaintiffs with subcontractors was simply to save money. Plaintiffs provided no evidence that this clearly legitimate non-discriminatory reason for replacing them as painters was pretextual. By contrast, All-Star provided essentially no evidence in support of its burden to articulate a legitimate nondiscriminatory reason for retaining the three non-Plaintiff painters as general laborers in preference to Plaintiffs. All Star was required, as part of the McDonnell Douglas framework, to “clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs’] rejection.” Burdine, 450 U.S. at 255, 101 S.Ct. 1089. In so doing, it was required to articulate a reason that was “clear and reasonably specific.” Id. at 258, 101 S.Ct. 1089. The bare statement by Mr. Peterson that he and Mr. King looked into the candidates’ work backgrounds when determining which to retain does not, in my view, satisfy this burden. Even assuming that it does, Plaintiffs’ evidence that they were in fact considered the better work crew is sufficient, in the face of this bare assertion, to raise a genuine issue of pretext.
