VARNADO v. DAWSON MANUFACTURING CO., (W.D.Mich. 2001)

Honorable Robert Holmes Bell

In accordance with the opinion filed this date:

IT IS ORDERED that defendant's Second Motion For Summary Judgment (docket # 34) be and hereby is GRANTED.

IT IS FURTHER ORDERED AND ADJUDGED that plaintiff take nothing by his complaint and that judgment

be and hereby is entered on behalf of defendant and against plaintiff.

This is a Title VII action brought pro se by Hollis Varnado, a former employee of defendant Dawson Manufacturing Company. Plaintiff was employed by defendant as a maintenance technician from November 28, 1995, until his discharge from employment on July 30, 1999, for absenteeism. By order entered September 29, 2000, this court dismissed all but one of plaintiff's claims under Title VII. Adopting the magistrate judge's report and recommendation (docket # 18), this court determined that plaintiff's Title VII claim arising from his termination from employment was barred by his failure to initiate administrative proceedings within the 300-day time period established by 42 U.S.C. § 2000e-5(e). The court further determined that plaintiff's claim of failure to promote should be dismissed for lack of jurisdiction, because plaintiff never submitted this claim to the EEOC or any state agency. Finally, the court determined that plaintiff's claim arising from a five-day suspension from employment in April of 1999 should be dismissed as moot, because of a settlement entered into between defendant and the NLRB, pursuant to which plaintiff was offered full back pay and reinstatement. The only Title VII claim still pending arises from an alleged physical assault by plaintiff's supervisor, John Hoover, on or about April 6, 1999.

Defendant has moved for summary judgment on plaintiff's sole remaining claim. Defendant's motion is principally based upon plaintiff's deposition, taken on February 16, 2001, at which plaintiff testified concerning the events surrounding the alleged assault. Defendant has also presented the affidavit of John Hoover, who admits pushing plaintiff, but denies assaulting him and denies any racial motivation for his conduct. Plaintiff has filed an unsworn response to the motion (docket # 38), supported by unauthenticated documents and statements (some under penalty of perjury and others not) of various witnesses. Having thoroughly reviewed the record, the court determines that no reasonable trier of fact could find either that Mr. Hoover's conduct was done on account of plaintiff's race or that plaintiff was subjected to conditions so severe or pervasive as to alter the conditions of his employment and create an abusive working environment. Defendant's motion for summary judgment will therefore be granted.

Plaintiff, an African-American male, was hired by defendant as a maintenance technician on November 28, 1995. On or about April 6, 1999, plaintiff's immediate supervisor was John Hoover. Plaintiff's Title VII claim arises from an incident during which, as plaintiff tells it, Hoover grabbed plaintiff's throat, choked him, and pushed him away. As noted above, Hoover does not deny touching plaintiff, but asserts that he merely pushed against plaintiff's shoulders instinctively when plaintiff "spoke loudly several inches away from my face." (Hoover Aff., p. 2, docket # 34, Ex. D). For purposes of the present motion, the court must accept plaintiff's testimony that he was assaulted by Hoover without provocation. The only issue presently before the court is whether plaintiff's proofs are sufficient to create a jury-submissible case on these issues: (1) whether Hoover's assault was motivated by plaintiff's race and (2) whether the conditions to which plaintiff was subjected were so severe and pervasive as to create a racially hostile working environment.

Plaintiff's own deposition testimony establishes the following. On the day in question, plaintiff was performing maintenance work on press 6A. (Dep., 51, docket # 39, Ex. C). Plaintiff characterized press 6A as an experimental machine, which the maintenance department was constantly tinkering with without telling plaintiff what they had done. Plaintiff attributes this state of affairs to the difficulty he was experiencing in repairing the machine. ( Id.). Plaintiff took a break to go to the restroom. While he was there, Hoover had him paged over the loudspeaker. When plaintiff responded to the page, Hoover spoke to him in a "rough voice" and hollered at him, asking him what he was doing. Plaintiff explained that a plate on press 6A was not sliding as it should. Hoover kept hollering at plaintiff, calling him names such as "nimwit." Plaintiff protested that the maintenance department had made changes on the machine without telling him. (Dep., 52).

Plaintiff then began to complain that he was being paid only $10.00 an hour, while someone with less experience (identified later in the deposition as Randy Shelton) was making $15.00 per hour. In response, Hoover asked plaintiff, "Why don't you get another job?" Hoover then directed plaintiff to go work on press 3. While plaintiff was getting his tools together, Hoover came over and "stands right in my face," thereby intimidating plaintiff. (Dep., 52-53).

The first mention of race during this altercation came from plaintiff himself. Plaintiff's testimony on this subject is as follows:

Q What did you say? I don't care right now what's going on in your mind.

What did you say to him?

Did you ask for a work order to go work on another machine?

A. I said this is what I'm talking about, you guys is always on my back about this. And I said you don't do those white guys like that. I said it's because I'm black. What's why the whites keep doing me like this, you know. And he said, well, I tell you what, why don't you just go get another job. And, you know, he's all in my face, and he kept — and the next thing I know, and we've had these conversations before.

(Dep., 54). The next thing plaintiff knew, Hoover grabbed him by the throat and began to choke him. Hoover then pushed plaintiff two or three feet backwards. (Dep., 54-55). Plaintiff left the area immediately, surmising that Hoover was trying to get him fired. Plaintiff called the police. (Dep., 55).

At a subsequent point in the deposition, plaintiff contended that Hoover had used racially inflammatory words. When pressed on the point, he testified as follows:

Q Now, at the time on April 7, 1999 did Mr. Hoover say anything to you that included what would typically be called racially inflammatory words?

A Yes.

Q Did he call you — what were those words?

A He said get another job. He said if you're not happy here, get another job.

Q And you believe that's racially inflammatory?

A He didn't do that to the — he treated the other —

Q What other racially inflammatory words did he say?

A No, he did not say nigger or did not say negro or nothing like that. It's just the way — his attitude toward me. It was like I was stupid. You know, you should know this by now. Jesus Christ, that kind of stuff. Just hollered at me.

(Dep., 85). Plaintiff also accused Hoover of racial insensitivity, because Hoover suggested that plaintiff should have known his job better. (Dep., 96). Plaintiff also contended that Hoover performed a racially insensitive gesture when he "took his hand and hit his hand over his head." (Dep., 97).

Plaintiff has not produced evidence, either in his deposition or elsewhere, showing that Hoover ever used epithets, racial slurs, or any other language that a reasonable person might understand as racially offensive. Nor has he produced evidence that Hoover ever touched, harassed, or insulted any other African-American employee, or that Hoover ever assaulted plaintiff before or after this event. Consequently, plaintiff's Title VII claim is limited to the events of April 6, 1999.

Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hiney Printing Co. v. Brantner, 243 F.3d 956, 959 (6th Cir. 2001); Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en banc). The standard for determining whether summary judgment is appropriate is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039. 1043 (6th Cir. 2001); Strouss v. Michigan Dep't of Corrections, 250 F.3d 336, 341 (6th Cir. 2001); Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir.), cert. denied, 121 S.Ct. 307 (2000).

The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once the movant shows that "there is an absence of evidence to support the nonmoving party's case," the non-moving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

To sustain this burden, defendant may not rest on the mere allegations of its pleadings. FED. R. CIV. P. 56(e); Campbell v. Grand Trunk Western R.R., 238 F.3d 772, 775 (6th Cir. 2001); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim, particularly where he has had an opportunity to conduct discovery. See Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001); Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street v. J. C. Bradford Co., 886 F.2d at 1478-81. In so doing, plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); see Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Brennan v. Township of Northville, 78 F.3d 1152, 1156 (6th Cir. 1996). Conclusory statements, unsupported by specific evidence to support a claim, do not meet this standard. Kensu, 87 F.3d at 175-76.

As noted above, plaintiff's sole remaining Title VII claim arises from the alleged assault perpetrated by his supervisor, John Hoover. For purposes of defendant's motion for summary judgment, the court accepts plaintiff's characterization of the incident as an unprovoked assault, rather than the mere shoving away of an aggressive employee, as Hoover contends. Conduct of this nature can violate Title VII if it creates a hostile work environment. The Supreme Court has described a hostile working environment as one "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21(1993) (quotations omitted). The Supreme Court has "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment," and that a "mere offensive utterance" or the "sporadic use of abusive language, [race]-related jokes, and occasional teasing" do not create a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quotation omitted). In its recent decision in Clark County School District v. Breeden, 121 S.Ct. 1508 (2001) (per curiam), the Supreme Court emphasized this point. "`A recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. "`121 S.Ct. at 1510 (quoting Faragher, 524 U.S. at 788). Although first enunciated in connection with sexual harassment, these standards also apply to claims of racial harassment. See Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999). To trigger Title VII liability, a reasonable person must be able to find the work environment hostile or abusive. Harris, 510 U.S. at 21.

To establish a prima facie case of hostile work environment, Mr. Varnado must establish the following five elements: (1) that he was 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 or offensive work environment; and (5) the existence of employer liability. See Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). Plaintiff easily meets the first and fifth elements. As an African-American, plaintiff was a member of the class protected by Title VII. Furthermore, because Mr. Hoover was plaintiff's direct supervisor, the employer is liable for any acts of racial harassment under respondeat superior principles. See Faragher, 524 U.S. at 802-03. Defendant's motion for summary judgment in the present case focuses upon the sufficiency of plaintiff's proofs to show (1) that the assault by Hoover was motivated by plaintiff's race and (2) that plaintiff was subjected to working conditions so severe or pervasive as to create an abusive working environment.

As the Supreme Court has stated, the standards for hostile work environment must be sufficiently demanding such that "Title VII does not become a `general civility code.'" Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). In order to be based upon race, offensive conduct is not necessarily required to include racial overtones in every instance. See Williams v. General Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999). To establish that Hoover's conduct was based upon race, Vamado must show that but for the fact of his race, he would not have been the object of harassment. Id. Consequently, the Sixth Circuit has upheld a finding that harassment was based upon sex where there were myriad instances in which the plaintiff was ostracized when others were not, combined with gender-specific epithets such as "slut" and "f______ women." Williams, 187 F.3d at 565-66. In this connection, the Sixth Circuit has directed the district courts to look at the totality of the circumstances, and not to view a series of discriminatory acts in isolation. Jackson, 191 F.3d at 658-61; Williams, 187 F.3d at 562-64.

In the present case, plaintiff has not produced any evidence to show that Hoover's assault in April of 1999 was motivated by plaintiff's race. As noted in the findings of undisputed facts, plaintiff has produced no evidence that Hoover assaulted him before or after the incident or that Hoover ever used racial slurs, either on April 6 or on any other day. In fact, in his deposition testimony, plaintiff affirmatively volunteered that Hoover did not use such racial epithets. (Dep., 85). Defendant's motion for summary judgment specifically pinpointed the lack of any evidence to show that Hoover's conduct on that day was motivated by plaintiff's race, as opposed to a rude or aggressive disposition on Hoover's part. Under the Sixth Circuit decisions in Williams and Jackson, plaintiff would have been able to point to Hoover's use of racial slurs, or other evidence of his racial animus, that occurred either before or after the April 6th incident, whether they involved plaintiff or other African-American employees. Plaintiff has utterly failed to produce any such proofs. Rather, plaintiff's response to the motion for summary judgment and attachments thereto tend only to show that an offensive touching occurred. Plaintiff attaches a copy of the police report, in which he complained to authorities that Hoover had choked him. Significantly, the police report is devoid of any mention of a racial animus. Plaintiff also attaches statements of co-employees, some of whom really saw nothing and others of whom merely report an offensive touching. None of these, however, tends to establish even a scintilla of proof that Hoover's actions were motivated by plaintiff's race. No rational jury presented with the facts now of record would have any basis upon which to conclude that Hoover's conduct on April 6, 1999, was based upon plaintiff's race. Hoover's acts and statements were not explicitly racial in nature, nor are there other facts, when viewed along with the events of April 6, tending to establish racial animus.

Rule 56 demands much more. Conclusory allegations or subjective beliefs set forth in an affidavit fail to create a genuine issue of fact for trial. See Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992); see also Starks v. New Par, No. 98-1300, 1999 WL 357757, at * 5 (6th Cir. May 11, 1999); Greene v. St. Elizabeth Hosp. Med. Ctr., No. 96-4308, 1998 WL 13410, at * 4 (6th Cir. Jan. 7, 1998); cf. Weberg v. Franks, 229 F.3d 514, 526 n. 12 (6th Cir. 2000) (Although under Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992), a verified complaint may function as the equivalent of an affidavit, like an affidavit, it must be made upon personal knowledge, set forth such facts as would be admissible in evidence, and shall show that the affiant is competent to testify to the matters stated therein). Defendant's motion for summary judgment was sufficient to meet its initial burden of demonstrating to the court the absence of any evidence tending to show racial animus. This shifted to plaintiff the burden of production, requiring plaintiff to submit specific facts which, if believed by the jury, would support a verdict in his favor on this contested issue. See Celotex, 477 U.S. at 331. General allegations are not sufficient. Plaintiff must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Applying this standard, the federal courts reject vague and conclusory statements, devoid of specific factual support, as insufficient to meet the burden of production. For example, in Williams v. Ford Motor Co., 187 F.3d 533, 543-44 (6th Cir. 1999), the Sixth Circuit held that the trial court properly granted summary judgment in favor of Ford because the affidavit of the plaintiff's expert was conclusory and therefore failed to create a genuine issue of fact for trial. The court stated, "Plaintiffs cannot challenge the motion for summary judgment by relying on allegations contained in their complaint or on affidavits that merely state conclusory allegations." 187 F.3d at 544. Likewise, in Doren v. Battle Creek Health Sys., 187 F.3d 595, 598-99 (6th Cir. 1999), the Court of Appeals affirmed a grant of summary judgment in favor of Battle Creek Health Systems upon a claim under the Americans With Disabilities Act because the physician's affidavit and report were "merely conclusory" rather than the "specific facts" required by Rule 56(e). In Hartsel v. Keys, 87 F.3d 795, 804 (6th Cir. 1996), the Court of Appeals found that it was entirely appropriate to "disregard" an affidavit because it consisted of "subjective allegations and vague, conclusory allegations such as `I have witnessed many decisions made by Mayor Michael Keys regarding appointments, personnel, budgeting, funding and the purchase of new equipment. I believe those decisions . . . usually were based on political considerations.'" The Sixth Circuit's recent decision in Stalbosky v. Belew, 205 F.3d 890, 894-95 (6th Cir. 2000), found that an affidavit stating that an arrest had been "common knowledge" was "too conclusory and vague to successfully counter a motion for summary judgment."

Similarly, plaintiff presents only subjective impressions, devoid of any factual support. Plaintiff testified in conclusory fashion that Hoover would not treat a white employee in the same fashion, but he produced no evidence to support his assertion. When pressed in his deposition for specifics, plaintiff relied on statements by Hoover (e.g., "You should know your job better by now," and "Why don't you find another job") that could not possibly evince a racial motive. Further, plaintiff has not shown the existence of other acts of harassment directed to African-American employees which might provide a basis for a jury finding that the April 6 incident, although racially neutral on its face, was motivated by racial animus.

On the same basis, plaintiff fails to meet the Supreme Court's requirement that he show a workplace "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, 510 U.S. at 21. Even if there were evidence upon which a jury could determine that the April 6, 1999 incident was motivated by plaintiff's race, the record is devoid of evidence showing that this was anything other than an isolated incident. In order to meet the Supreme Court's test, the conduct in question must be judged both by an objective and a subjective standard. It must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must objectively regard that environment as abusive. Harris, 510 U.S. at 21-22; see Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). In the present case, there is no question that plaintiff found his circumstances subjectively hostile and abusive. The issue is whether the evidence would support a jury finding in plaintiff's favor on the objective standard. See, e.g., Jones v. Ohio Dep't of Health, No. 00-3084, 2001 WL 345782, at * 7 (6th Cir. Mar. 27, 2001) ("[W]hile Jones does show that she subjectively perceived her work environment to be hostile . . . [she] does not provide any evidence of an objectively hostile work environment, a showing which is required to trigger Title VII liability."). Again, the record is devoid of any other act of harassment, physical or verbal, directed to plaintiff or other African-American employees, tending to show that harassment was "pervasive." As the Supreme Court has noted, Title VII is not offended by a single unpleasant incident, even one overtly racial in nature. Faragher, 524 U.S. at 788. Rather, the course of conduct must be extreme and amount to a change in the terms and conditions of employment. In the present case, plaintiff continued his employment after April 6 until he was terminated nearly four months later for absenteeism. He has not offered evidence of other acts of harassment, either before or after April 6. In the absence of proof tending to establish severe and pervasive conditions of harassment based on race, plaintiff's Title VII claim must fail, even if one assumes that the physical altercation of April 6 had something to do with plaintiff's race.

On the record presently before the court, no rational trier of fact could find that plaintiff faced a hostile work environment stemming from the incident of April 6, 1999. Defendant's motion for summary judgment will therefore be granted.