Stеphanie WILLIAMS, Plaintiff-Appellant, v. CSX TRANSPORTATION COMPANY, INC., Defendant-Appellee.
No. 09-5564
United States Court of Appeals, Sixth Circuit
June 28, 2011
Rehearing and Rehearing En Banc Denied Aug. 9, 2011.
641 F.3d 502
Argued: Jan. 13, 2011.
III
For all the foregoing reasons, the order of the district court conditionally granting habeas relief is REVERSED. The matter is REMANDED to the district court for entry of an order denying Goodell‘s habeas petition on the merits.
Before: MERRITT, ROGERS, and WHITE, Circuit Judges.
MERRITT, J., delivered the opinion of the court. ROGERS (pp. 513-14), and WHITE (pp. 514-20), JJ., delivered separate opinions concurring in part and dissenting in part.
OPINION
MERRITT, Circuit Judge.
Plaintiff, Stephanie Williams, sued her employer, CSX Transрortation Company, Inc. (“CSX“), for allegedly subjecting her to both racially and sexually hostile work environments. The district court held that Williams failed to file a document that meets the test for a “charge” with the Equal Employment Opportunity Commission on her claim of a sexually hostile work environment and, thus, failed to exhaust her administrative remedies. For that reason, the district court granted summary judgment to CSX on that claim. We disagree and reverse. As for Williams‘s racially hostile work environment claim, the district court granted judgment as a matter of law to CSX at the close of Williams‘s case in chief. The district court reasoned that her evidence of a racially hostile work environment was not sufficiently “severe” or “pervasive” to create a jury question. On that claim, and on a collateral evidentiary issue, we affirm.
I. Facts and Procedural Background
Stephanie Williams began working as a clerk for CSX at its Bruceton, Tennessee, facility in April 2002. CSX operates railroad lines. Clerks’ duties include, among other things, performing janitоrial work. CSX‘s Bruceton facility was small; there were four clerks, including Williams, and a few supervisors. Conductors and engineers would also pass through the Bruceton facility on a regular basis. Among her coworkers and supervisors at the Bruceton facility, Williams was the only black employee and the only female employee.
Williams alleges that, between 2002 and 2004, her supervisors treated her differently than her white male counterparts. First, she asserts that Ed Anderson, a supervisor, required her once to clean
In addition to these incidents, Williams alleges that a single racist and sexist confrontation occurred at the CSX Bruceton facility. According to Williams, Jeff Wingo and Tim Magargle, two supervisors, were watching the Republican National Convention on television on the evening of September 2, 2004 when Williams entered and indicated she did not want to watch. Wingo allegedly told Williams that she was a Democrat only because she was a black woman; that unmarried women cannot “have the love of God in their heart[s]“; and that this country should “get rid of” Jesse Jackson and Al Sharpton because without those two “monkeys” the country “would be a whole lot better.” The following day, Williams alleges that Wingo told her that if she returned to school, she would not have to pay for her education because she was a single black mother. Several days later, an anonymous caller, professing to be white, reported Wingo‘s conduct to a CSX ethics hotline. The caller stated that Wingo “takes delight in harassing employees of other races.”
Williams also alleges that Wingo made two racist statements in passing to her between one to six months before the confrontation. Wingo once asked Williams why black people cannot name their children “stuff that people can pronounce, like John or Sue.” He also told Williams that black people should “go back to where [they] came from.” Notably, Williams does not allege that any of her coworkers or supervisors other than Wingo ever made a single sexist or racist remark.
Two months after the Wingo incident, on November 9, 2004, Williams lost her job at the Bruceton facility through multiple-step process. First, CSX eliminated the position of another one of the Bruceton clerks. That clerk then exercised his right under CSX policy to displace a more junior employee at the Bruceton facility, and that more junior employee in turn exercised his right to displace Williams—who had the shortest tenure of the four Bruceton clerks. After this occurred, Williams exercised her own displacement right to obtain a clerical position at CSX‘s Nashville facility, which is located approximately one hundred miles from Bruceton.
Williams‘s dislocation from Bruceton to Nashville precipitated the first of her two relevant administrative filings with the EEOC. In November 18, 2004, Williams filed a so-called “Charge Information Form” with the EEOC. In that filing, which spanned seven pages, Williams rеcounted the Wingo incident in detail. She alleged that the elimination of the other clerk‘s position, which led to her dislocation to the Nashville facility, was in retaliation against her for the anonymous call to the CSX ethics hotline reporting the Wingo incident. She also alleged, indepen-
The EEOC office then completed for Williams a second filing, a so-called “Charge of Discrimination.” In a single page, this filing attempted to lay out the essence of Williams‘s allegations. The general thrust was that discrimination and retaliation caused Williams‘s dislocation to the Nashville facility. The allegations mentioned neither Wingo‘s conduct nor any other indication of a hostile work environment; however, the second sentence stated that Williams was “subjected to unequal terms and conditions of [her] employment.” Within a field entitled “discrimination based on,” three boxes were marked: “race,” “sex,” and “retaliation.” Within a field entitled “date(s) discrimination took place,” the “earliest” date listed was September 2, 2004 (the date of the Wingo incident). Immediately below, the box indicating that the discrimination was a “continuing action” was marked. Unlike the “Charge Information Form,” this form prompted Williams to sign under a line stating that she “declare[d] under penalty of perjury that the above is true and correct.” Williams signed the form, under penalty of perjury, on December 30, 2004.1
Williams sued CSX in federal district court for discrimination, retaliation, and both sexually and racially hostile work environments. The district court granted summary judgment to CSX on what appeared to be Williams‘s core claims: that her dislocation to the Nashville facility was the result of discrimination and retaliation. The district court found that Williams‘s dislocation was caused by an employee-consolidation effort emanating from CSX‘s corporate headquarters, not discrimination or retaliation. Williams does not appeal the disposition of those claims.
That left Williams‘s two hostile work environment claims. As to her claim of a sexually hostile work environment, the district court granted summary judgment to CSX on the theory that Williams failed to exhaust her administrative remedies: she did not file a “charge” containing sufficient allegations of a hostile work environment. As to her claim of a racially hostile work environment (which did not require exhaustion), the district court permitted Williams to proceed to trial. At the close of Williams‘s case in chief, however, the district court granted judgment as a matter of law to CSX. The district court believed that Williams‘s evidence of a racially hostile work environment was not sufficiently “severe” or “pervаsive” to create a jury question on that claim. Williams now appeals the district court‘s judgments on her hostile work environment claims.
II. Sexually Hostile Work Environment
Williams asserts her claim of a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. Before a plaintiff may sue under Title VII in federal court, she must first exhaust her adminis-
Title VII does not define what constitutes a “charge.” Edelman v. Lynchburg College, 535 U.S. 106, 112, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002). The statute, however, does provide at least two necessary conditions for a filing to be a charge, and those requirements are fleshed out by interpreting regulations. First, “[c]harges shall be in writing under oath or affirmation . . . .”
A recent Supreme Court opinion added an “additional requirement” for an EEOC filing to constitute a charge. See Federal Express Corp. v. Holowecki, 552 U.S. 389, 398, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008).2 Acknowledging that more than hаlf of the filings the EEOC receives each year are mere informational inquiries rather than enforcement requests, the Court reasoned that the statutory term “charge” implies that a filing must be the latter. Id. at 399-401. “[I]f a filing is to be deemed a charge,” the Court held, “it must be reasonably construed as a request for the agency to take remedial action to protect the employee‘s rights or otherwise settle a dispute between the employer and employee.” Id. at 402. Put differently, a filing is a charge if an “objective observer” would believe that the filing “taken as a whole” suggests that the filer “requests the agency to activate its
To summarize, in order for an EEOC filing to constitute a “charge” that is necessary to exhaust an employee‘s administrative remedies under Title VII, the filing (1) must be “verified“—that is, submitted under oath or penalty of perjury,
A. Williams‘s “Charge Information Form” Is a “Charge”
We conclude that Williams‘s first EEOC filing, the “Charge Information Form,” is a charge for her claim of a sexually hostile work environment. First, although the district court was correct that this filing was not initially verified, the district court overlooked a pertinent federal regulation: “A charge may be amended to сure technical defects or omissions, including failure to verify the charge . . . .”
Second, Williams‘s “Charge Information Form” contained information concerning a sexually hostile work environment that was “sufficiently precise to identify the parties, and to describe generally the action or practices complained of,”
Third, Williams‘s “Charge Information Form” satisfies the additional requirement of Holowecki: that an objective observer would believe that Williams sought the EEOC to activate its remedial machinery, rather than simply obtain information.
B. Williams‘s “Charge of Discrimination” is a “Charge”
We also conclude that Williams‘s second EEOC filing, the “Charge of Discrimination,” is a charge for her claim of a sexually hostile work environment. First, Williams signed her name at the bottom of the filing in a signature block under a declaration that she “declare[d] under penalty of perjury that the above is true and correct.” Thus, the filing was verified.
Second, Williams‘s “Charge of Discrimination” contained information concerning a sexually hostile work environment that is “sufficiently precise to identify the parties, and to describe generally the action or practices complained of,”
Third, Williams‘s “Charge of Discrimination” easily satisfies the additional requirement created in Holowecki. Unlike the “Intake Questionnaire” in Holowecki, everything about Williams‘s “Charge of Discrimination” suggests that Williams intended it to be a request for enforcement rather than an informational inquiry. CSX does not argue otherwise.
The district court erred in concluding that Williams had failed to file a charge of a sexually hostile work environment and, thus, had failed to exhaust her administrative remedies on this claim. Accordingly, we reverse the district court‘s grant of summary judgment to CSX on Williams‘s hostile work environment claim, and we remand for further proceedings.
III. Racially Hostile Work Environment
Williams also appeals her racially hostile work environment claim, on which the district court granted CSX judgment as a matter of law after Williams‘s case in chief.3 We review judgments as a matter of law de novo. Scotts Co. v. Cent. Garden & Pet Co., 403 F.3d 781, 788 (6th Cir. 2005).
To succeed on a claim of a racially hostile work environment, a plaintiff must demonstrate that (1) she belonged to a protected group, (2) she was subject to unwelcome harassment, (3) the harassment was based on race, (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (5) the defendant knew or should have known about the harassment and failed to act. Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078-79 (6th Cir. 1999).4 The parties agree that the first two elements are satisfied here; their dispute centers on the existence of a jury question on the third and fourth.
With respect to the fourth element, “whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). When analyzing that element, we must consider harassment “by all perpetrators combined,” rather than “divid[ing] and categoriz[ing] the reported incidents.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999).5 However, the third element limits the scope of this analysis: only harassment based on the plaintiff‘s race may be considered. See Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000). Accordingly, we will first determine what harassment was based on Williams‘s race, then we will ask whether the totality of that harassment was sufficiently severe or pervasive to create a jury question on her claim.
A. Based on Race
A plaintiff may prove that harassment was based on race by either (1) direct evidence of the use of race-specific and derogatory terms or (2) comparative evidence about how the alleged harasser treated members of both races in a mixed-race workplace. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (approving these methods in the analogous context of sexual harassment). Harassment is based on race when it would not have occurred but for the plaintiff‘s race; the harassing conduct need not be overtly racist to qualify. Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007).
Williams alleges, in essence, three categories of racial harassment: her
A slightly closer question is whether a reasonable jury could find that the other adverse treatment Williams experienced at work was based on her race. Williams alleges that Ed Anderson, a supervisor, forced her to clean feces out of a urinal and off of a restroom wall; ordered her to strip a bathroom floor with an inappropriately small device and denied her request to rent a power tool; and refused to reimburse her for the mileage cost of driving her personal vehicle for work, even though corporate policy was to reimburse mileage and white employees reсeived reimbursement.
Williams lacks any direct evidence that any of this adverse treatment was based on her race. None of it involved the use of racist language. Nor does Williams allege that Anderson, the relevant supervisor in each instance, ever used racist language. The mere fact that Wingo used such language does not imply that Anderson harbored the same prejudices.
Williams‘s comparative-evidence argument is also ultimately unpersuasive. Regarding her feces-cleaning assignment, Williams concedes that janitorial tasks fall within her job duties, and she presents no evidence that any of her white counterparts were available to clean the bathroom on that day. As for her stripping the bathroom floor, Williams presents no evidence that Anderson ever permitted a white employee to rent a power tool to complete the task. The fact that Tim Magargle, a different supervisor, once permitted a white emplоyee to rent a power tool sheds no light on Anderson‘s motivations. And as for the reimbursement of her mileage, Williams admitted that every time she submitted the appropriate expense form, CSX reimbursed her. Accordingly, no reasonable jury could find that these other alleged instances of adverse treatment were based on Williams‘s race. The only race-based instances of harassment are Wingo‘s racially derogatory statements.
B. Severe or Pervasive
We must next consider whether the totality of Williams‘s race-based harassment was “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Factors to consider include “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.” Id. at 23. Significantly, “isolated incidents (unless extremely serious) will not amount to discriminatory сhanges in the ‘terms and conditions of employment.‘” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Occasional offensive utterances do not rise to the level required to create a hostile work environment. Grace v. US-CAR, 521 F.3d 655, 679 (6th Cir. 2008).
Although despicable, Wingo‘s alleged racist statements are not sufficiently “severe” or “pervasive” standing alone to create a jury question on Williams‘s racially hostile work environment claim. The statements were isolated, not pervasive: all but two occurred over a two-day period. Nor were they sufficiently “severe” for Williams to be able to prevail on a racially hostile work environment claim. Those statements—for example, calling Jesse Jackson and Al Sharpton “monkeys” and saying that black people should “go back to where [they] came from“—are certainly insensitive, ignorant, and bigoted. But they more closely resemble a “mere offеnsive utterance” than conduct that is “physically threatening or humiliating.” Harris, 510 U.S. at 23. Accordingly, we affirm the district court‘s grant of judgment as a matter to law to CSX on this claim.
IV. Admissibility of a Corporate Ethics Hotline Report
Finally, Williams appeals the district court‘s decision on a collateral evidentiary issue. As mentioned above, an anonymous caller phoned the CSX ethics hotline shortly after the Wingo incident. CSX generated a report of the call. According to that report, the caller said that Wingo insulted Williams and “the rest of the [b]lack race,” that Wingo “takes delight in harassing employees of other races,” and that “Wingo does not deserve to be in a managerial role if he cannot curb his excesses.” The caller, who professed to being white, also reported that “[t]he morale of employees has been affected by this uncouth behavior.”
Williams sought to introduce the report into evidence, but the district court held it to be inadmissible hearsay. Williams argues on appeal that the statements were not hearsay because she offered them to prove that CSX had notice of the harassment, rather than the truth of the matter asserted, see
V. Conclusion
For these reasons, we REVERSE the district court‘s grant of summary judgment to CSX on Williams‘s sexually hostile work environment claim, and we AFFIRM the district court‘s judgment as a matter of law to CSX on Williams‘s racially hostile work environment claim.
ROGERS, Circuit Judge, concurring in part and dissenting in part.
I concur in Parts III and IV of the majority opinion but dissent from the re-
Allowing such unrelated documents to constitute a charge would permit employees, without fear of sanction, to force their employers to respond to potentially frivolous harassment claims, thereby undermining the statutory scheme. As the Supreme Court еxplained in Edelman v. Lynchburg College, 535 U.S. 106, 112-13 (2002), the verification requirement seeks “[to] protect[] employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.”
With respect, the verified Charge of Discrimination Form cannot be read to raise Williams‘s gender-based hostile-work-environment claim. The only matter discussed in the form‘s three short paragraphs is Williams‘s forced job transfer, which she says followed a verbal altercation with the Yard Master (presumably Wingo). Listing one specific action which Williams claims to be discriminatory does not assert a sexually hostile-work-environment claim. Williams in fact brought separate discrimination and retaliation claims premised on the very scenario discussed in the Charge of Discrimination Form—her forced dislocation from CSX‘s Bruceton facility. The district court, however, granted CSX summary judgment on these claims, and Williams did not appeal the order.
Thе information contained in the “Date(s) Discrimination Took Place” box does not change the plain reading of the form‘s factual allegations. The “earliest” date of 9/2/2004 and the “latest” date of 11/9/2004 correspond to the verbal altercation with Wingo and to the date of Williams‘s forced dislocation, respectively. These two events, both of which are specifically mentioned in the form‘s factual allegations, are the basis for Williams‘s discrimination and retaliation claims. And checking a contiguous box for “continuing action” can hardly be read to give notice of a hostile-work-environment claim.
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I agree that Williams‘s gender-based hostile-work-environment claim was improperly dismissed before trial for failure to exhaust administrative remedies.
As to Williams‘s race-based hostile-work-environment claim, I do not agree with my colleagues’ affirmance of the district court‘s grant of judgment as a matter of law and therefore respectfully dissent.
“Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Hawkins v. Anheuser-Busch Inc., 517 F.3d 321, 332-33 (6th Cir. 2008) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). To prove harassment, the workplace must be “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.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an envi-
The district court acknowledged that it had to look to the totality of the circumstances in evaluating CSX‘s motion for judgment as a matter of law on Williams‘s race-based hostile environment claim. But its ruling from the bench suggests that it separated the conduct that was not overtly race-based (e.g., making Williams clean feces from the bathroom walls on several occasions, and urine all over the bathroom on a continual basis) from Wingo‘s blatantly race-based comments,1 rather than looking to, as the Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), “the critical issue” per Title VII‘s text—“whether members of one [race] are exposed to disadvantageous terms or conditions of employment to which members of the other [race] are not exposed.” Id. (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)).
Substantial trial testimony supported that Williams was exposed to disadvantageous conditions of employment to which white clerks were not exposed. For example, Railroad Engineer Melvin Brack testified thаt he had worked for CSX for 34 years, and had been at the Bruceton depot approximately one to four times a week for the last 12 years, since 1997. Brack testified that after arriving at Bruceton, he would put his train away and go to the depot (where Williams worked) to register as off-duty and wait for a ride to a hotel, i.e., that he would “camp out” at the depot. Brack testified that typically two employees were working at the Bruceton depot, a yardmaster and a clerk. He described the depot as having three offices in the upstairs, and the downstairs as having a general locker room, sitting area for the crews and a bathroom. Brack testified:
BY MR. GILBERT:
Q Mr. Brack . . . We were talking about the bathroom conditions, and I want to ask you some questions now about once Ms. Williams was hired; okay? In other words, once she is in place as a clerk. . . . Did you have the opportunity to observe the general conditions of the bathroom once she was hired?
A Yes, I did.
A The bathrooms had always been somewhat—
MS. GALLAGHER: Objection, Your Honor.
BY MR. GILBERT:
Q If you would, instead of going back, let‘s stick with what you observed once Ms. Williams was there; okay?
A The bathrooms after Ms. Williams was there became filthy, completely unusable. There was feces placed on the wall, over the urinals, over the commode, on the floor, on the sinks. I personally helped Ms. Williams clean the area because it was so gross. I didn‘t think it was right for her to have to be given those responsibilities to do.
. . .
Q Let me ask you some questions about this urine. And I‘m not trying to be funny here, but what if someone said it was just bad aim, someone just missed the urinal or just missed the toilets?
A Impossible.
Q Why?
A Because of the magnitude, where it was. There‘s a difference between just normal use of someone with perhaps an upset stomach for the use of the commode versus all on the wall, on the side of it, on the sink and on the walls and floor.
Q How many times would you say you saw urine on the walls, sinks or floors, the urine?
A The urine was regularly.
Q And what does regularly mean in terms of—
A Meaning daily. The times when I was there, most of the—most times the urine was on the floor. And, again, impossible that someone could accidentally do such an act.
MR. GILBERT: I pass the witness, Your Honor.
CROSS-EXAMINATION
BY MS. GALLAGHER:
. . .
Q And I understand that it‘s your testimony that on more than one occasion you saw the restroom in this condition; is that correct?
A Correct.
Q You never filed a grievance with your union to complain about this restroom.
A You must remember, in 34 years of railroad experience, I‘ve seen the bathrooms in the worst deteriorated conditions over the 34 years where the railroad did not care about a bathroom. I‘ve seen them go weeks and weeks without having been cleaned. So because of the length of time, it was acceptable—I assume the railroad thought it was acceptable. But to a point where there was feces and urine on the walls and everything, that was just too much.
[Emphasis added.] Craig Spangler testified that he had been a CSX conductor since 1998 and had worked with Williams at the Bruceton depot. Spangler testified that when Williams was working the bathrooms were clean and the trash taken out, and when she was not working “Trash would be laying around on the tables. Garbage cans would be full. A couple of times I‘ve walked in the bathroom and you could tell that somebody had used the floor instead of using the commode.” When asked if he thought that was an accident, he responded “It looked like it was intentional. I mean you can tell when somebody misses.”
Q Ms. Williams . . . Was there any time when you were required to clean up feces?
A I had come to work one day, and someone had decided that they were going to do in the urinal what needed to be done in the toilet, and it was feces all in the urinal there in the bathroom, and I had to clean that up that day. I reported that to Mr. Anderson, and his response was, “Well, you know we work with immature people. You just need to get it cleaned up.”
. . .
Q Was there a separate occasion other than the time that the feces was in the urinal that you had to clean up?
A Yes. . . . That occasion, a trainman by the name of Mr. Brack happened to be on duty there at Bruceton, and he saw the condition of the bathroom, what it was in, and he went—he told me that he was going to help me clean it . . . . There was feces spread around the wall, smeared over the wall. It was coming down the toilet, the outside of the toilet. It was on the floor.
In Betts v. Costco Wholesale Corp., 558 F.3d 461, 466 (6th Cir. 2009) (applying Michigan law), the defendant-employer appealed the district court‘s denial of its motion for judgment as a matter of law following a jury verdict in favor of three of the plaintiffs on their race-based hostile-work-environment claims. The defendant-employer in Betts argued on appeal that the harassment was not sufficiently severe or pervasive to constitute a hostile work environment, id. at 466-67, just as CSX successfully argued below in the instant case. Addressing whether the evidence was sufficient for the jury to find in favor of the three plaintiffs on their hostile-work-environment claims, this court stated:
Costco‘s lack-of-severity argument takes a divide-and-conquer approach to the employees’ allegations. In other words, Costco insists that the individual allegations of [the three plaintiffs, Amour, Lewis, and Betts] must be examined in isolation in order to accurately assess the merits of each employee‘s claim. But Costco‘s approach is inconsistent with the totality-of-the circumstances test employed to determine whether there is a hostile work environment. Under this test, “the issue is not whether each incident of harassment standing alone is sufficient to sustain the cause of action in a hostile environment case, but whether—taken together—the reported incidents make out such a case.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999). Indeed, “[t]his court‘s caselaw therefore makes clear that the factfinder may consider similar acts of harassment of which a plaintiff becomes aware during the course of his or her employment, even if the harassing acts were directed at others or occurred outside of the plaintiff‘s presence.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 336 (6th Cir. 2008).
. . .
Two conflicting scenarios regarding the racial atmosphere at Costco‘s Warehouse 390 emerge from the record. Under the first scenario, [Warehouse 390 Manager Phil] Sullivan‘s tendency to
But there is a second scenario that also fits thе facts. Several black employees voiced similar complaints about Sullivan‘s systematic racial bias. Sullivan compared Warehouse 390 to a plantation on two separate occasions. These comments reveal Sullivan‘s managerial philosophy with respect to his black employees: they were second-class citizens and would be treated accordingly. Indeed, Sullivan called one employee “so black and ugly he would never have her work up front,” which expresses the be-
Sullivan‘s position as the Warehouse Manager is also a relevant consideration. He was not simply a low-level supervisor with little impact on the broader workplace. As the Warehouse Manager, Sullivan set the tone at the top. Indeed, his racially charged attitude apparently caught on: at least one other white Costco supervisor, Schaeffer, denigrated Amour in racially loaded terms, calling him “Phil‘s Boy,” “Phil‘s Bitch,” and “Phil‘s Houseboy.” The racial hostility was further evidenced not only by Sullivan‘s treаtment of Costco‘s employees, but also by his less-than-favorable treatment of its black customers.
How one sorts out these two competing racial scenarios at Warehouse 390 is not obvious, as evidenced by the deadlock of the first jury. Certain facts make the employees’ claims questionable. The fact that Sullivan socialized with Amour, that Amour was offered a managerial position by Sullivan, and that Thomas conceded she was not harassed lean in favor of Costco. On the other hand, none of these considerations foreclose the possibility that Sullivan “in fact . . . created an intimidating, hostile, or offensive work environment.” See Downey, 576 N.W.2d at 716 (emphasis added).
Betts, 558 F.3d at 468-70. Granted, Betts amalgamates the evidence from each of the plaintiffs to arrive at the determination that there was sufficient evidence to go to the jury on the race-based hostile environment claim. But Williams‘s evidence in the instant case is at least comparable to the plaintiffs’ in Betts in terms of severity, and the casеs are similar in that the challenged comments were few.
As in Betts, in the instant case, under the totality-of-the circumstances test, there are also two conflicting scenarios. The first is that Wingo, with whom Williams had worked for approximately 2½ years largely without incident, made inappropriate remarks at the Bruceton depot on September 2, 2004, and that a lively discussion ensued that continued the following day. Apart from that, Wingo made several remarks over the 2½ years, i.e., that Williams reminded him of Queen Latifah, that black persons should give their children easily-pronounced names, and that if Williams felt that black persons were treated so badly, they needed to go back to where they came from.
The second scenario is that Williams, the only black employee working at the Bruceton depot had the same janitorial duties as her white-clerk counterparts but, unlike them, was made to clean human feces off the bathroom walls on several occasions, and to clean on a continual basis urine outside the urinal and sink, leading one trial witness to remark that in his 34 years at CSX he had never seen such conditions. When Williams raised the bathroom condi-
A reasonable fact-finder could thus have inferred that Williams‘s white counterparts were not made to fulfill their janitorial duties, while she was, regardless of how extreme and unsanitary the conditions were. Under Oncale, the jury was permitted to infer from this evidence that Williams was treated differently than her white counterparts because of her race. This inference, in conjunction with the evidence of Wingo‘s blatantly race-based comments on September 2d and 3d, 2004, and on other occasions, rendered the district court‘s grant of judgment as a matter of law improper. The claim should have been submitted to the jury.
I would reverse the district court‘s grant of judgment as a matter of law to CSX on Williams‘s race-based hostile-work-environment claim and remand for further proceedings.
Nos. 09-6004, 09-6007.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 7, 2010.
Decided and Filed: June 30, 2011.
Rehearing and Rehearing En Banc Denied Aug. 9, 2011.
Notes
Trial Tr. 4/2/09 at 802.Again, the court simply finds that the conduct by Mr. Wingo, as reprehensible as it might have been, was not a continuing type of conduct, as I determine. I recognize that there were some other instances that occurred, according to the plaintiff, but I simply do not find as a matter of law that these constituted a hostile work environment. I simply don‘t believe, based upon what I have heard from the testimony presented, that it constituted that. . . .
Betts, 558 F.3d at 464-65.Sullivan told Amour that he felt like he was working on a “plantation,” which alluded to Costco‘s numerous black employees. Darrin Schaeffer, a white supervisor at the Warehouse, called Amour “Phil‘s Boy,” “Phil‘s Bitch,” and “Phil‘s Houseboy.” Amour heard Sullivan say to white supervisors at the Warehouse that he (Sullivan) “wanted them to hire more white women with big breasts.” Sullivan would treat white customers better than black ones. A white employee, Ann McCormick, had exactly the same number of employment infractions as another black employee who was reprimanded, but nothing was done to McCormick. Sullivan moved white employees to Front-End Cashier positions and relegated black employees to less desirable floor positions shortly after making the “plantation” comment.
Betts, 558 F.3d at 465.Lewis overheard Sullivan say that he thought he was working on a plantation. Sullivan called Betts a “black-widow spider.” Lewis heard the comment and believed that it was racist because there was no reason to call her “black,” as opposed to simply calling her a spider. Sullivan called Betts “so black and ugly he would never have her work up front.” (Lewis equivocated about whether she heard the comment first hand or learned about it from a coworker.)