Newman v. Federal Express Corp.Newman v. Federal Express Corp.
- Reporters:
- Before:
- Boyce F. Martin Jr., Nelson, Walter H. Rice
OPINION
BOYCE F. MARTIN, JR., Chief Judge. Robert Newman appeals the district court‘s grant of summary judgment to Federal Express on his claim of race-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964 and state law. Newman also appeals the district court‘s denial of his motion to re-open discovery. Federal Express subsequently moved to dismiss the appeal on the ground that Newman‘s notice of appeal failed to satisfy the jurisdictional requirements of
I.
Newman, an African-American, began working at Federal Express in 1982, and became a manager of Hub Operations in 1985. On January 14, 1997, Newman filed a race discrimination charge with the Equal Employment Opportunity Commission, alleging that white employees at Federal Express receive more awards and better assignments than African-American employees, and that he had suffered harassment and intimidation because of his race. On February 11, Newman and severаl other employees received an anonymous, racially-charged hate letter through company mail. At a later date, Newman received a telephone message containing the sounds of gunshots on his voiсe mail. Although Federal Express conducted an investigation, it was unable to discover who was responsible for the communications. On July 18, Newman filed a suit on behalf of himself and other African-American employees at Federal Express, alleging violations of Title VII of the Civil Rights Act of 1964,
The district court denied class certification on January 7, 1999, and severed the cases. On June 2, Federal Express filed a motion for summary judgment as to all of Newman‘s claims. On June 23, Newman moved to re-open discovery. On July 1, the district court denied Newman‘s motion, finding that Newman had not shown good cause for his failure to obtain discovery through the exercise of due diligence. On August 9, the district court granted Federal Express‘s motion for summary judgment as to all of Newman‘s claims except a new retaliation claim not in the original complaint. The court reserved its ruling
II.
We must first briefly address Federal Express‘s motion to dismiss Newman‘s appeal for lack of jurisdiction. Newman‘s notice of appeal states that he “appeals the District Court order dismissing the case dated September 28, 1999.” Federal Express argues that because Nеwman‘s notice of appeal only designates appeal from the September 28 order dismissing his retaliation claim, and fails to designate the August 9 partial summary judgment order as the ruling from which appeal was taken, we lаck jurisdiction to address the merits of the appeal.
Under
The pаrties agree that the September 28 order dismissing Newman‘s retaliation claim is not appealable because it was not an involuntary adverse judgment. See Laczay v. Ross Adhesives, 855 F.2d 351, 353 (6th Cir. 1988). They also agree that the August 9 summary judgment order is an involuntary adverse judgment frоm which Newman had the right to appeal, and that this order became final and thus appealable only by virtue of the district court‘s disposition of the remaining retaliation claim on September 28.
The September 28 order dismissing the remaining retaliation claim was the final judgment entered by the district court. In referencing the September 28 order in his notice of appeal, Newman was not designating that (non-appealable) order as the only one he sought to appeal; the reference to the September 28 order merely drew “into question all prior non-final rulings and orders,” including the August 9 partial summary judgment order. We note that the record from the September 27 conference is clear that Newman was seeking to voluntarily dismiss his retaliation claim in order to appeal the main discrimination claim. We therefore have jurisdiction to hear the appeal and proceed to the merits.
III.
We review a district court‘s grant of summary judgment de novo. See Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001). Summary judgment is granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See
Newman‘s suit alleges that Federal Express: 1) created and fostered a racially hostile work environment in violation of Title VII; 2) denied him opportunities for prоmotion and equal treatment in awarding benefits in violation of Title VII; 3) denied him the right to contract in violation of
A. Hostile work environment
Title VII prohibits racial harassment that creates a hostile or abusive work environment. See Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). In order to establish a prima facie case of hostile work environment based on race under Title VII, a plaintiff must show: 1) that he is a member of a protected class; 2) that he was subjected to unwelcome racial harassment; 3) that the harassment was based on race; 4) that the harassment had the effect of unreasonably interfering with his work performance by creating an intimidating, hostile, or offensive work environment; and 5) the existence of employer liability. See id. In determining whether there was a hostile or abusive workplace environment, we look to the totality of the circumstances. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Specifically, we consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance.” Harris, 510 U.S. at 23. The Supreme Court has consistently held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher, 524 U.S. at 788 (internal quotations omitted). Finally, the work environment must be both objectively and subjectively offensive. See Harris, 510 U.S. at 21-22.
The district court granted summary judgment to Federal Express on the ground that Newman failed to show the existence of employer liability. Newman argues on appeal that he was prevented from introducing evidence of employer liability by the district court‘s denial of his motion to re-open discovery. We need not address this argument because we find that Newman has failed to show that the anonymous communications were subjectively hostile. See Harris, 510 U.S. at 21-22 (“[I]f the victim does not subjectively perceive the environment to be abusive, the conduct has not aсtually altered the conditions of the victim‘s employment, and there is no Title VII violation.“).
B. Denial of promotion and equal treatment
Newman‘s remaining Title VII claim, that Federal Express denied him opportunities for promotion and equal treatment in awarding benefits, also cannot survive summary judgment. To establish a prima facie claim of racial discrimination under Title VII, a plaintiff must show that: 1) he is a member of a protected class; 2) was qualified for the job; 3) he suffered an adverse employment decision; and 4) was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees. See Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir. 1995). Newman does not address this claim in any detail in his brief. The district court found that the only possible adverse action that Newman suffered was the denial of a Star Award despite a recommendation by his senior manager. As the district court observed, Newman has offered no proof that a similarly situated non-protected employee was treated differently. Accordingly, Newman failed to establish a prima facie case of race discrimination under Title VII, and summary judgment was appropriate.
C. Section 1981 and state law claims
Newman‘s remaining claims under Section 1981 and Tennessee state law must fail as well. Section 1981 prohibits racial discrimination in the making and enforcing of рrivate contracts. See
IV.
For the foregoing reasons, we DENY Federal Express‘s motion to dismiss the appeal, and AFFIRM both the district court‘s denial of Newman‘s motion to re-open discovery and its grant of summary judgment to Federal Express.