Belton v. City of Charlotte

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1268

LEE BELTON,

Plaintiff - Appellant,

versus

CITY OF CHARLOTTE,

Defendant - Appellee.

No. 05-1450

JEROME FREDERICK,

Plaintiff - Appellant,

versus

CITY OF CHARLOTTE,

Defendant - Appellee.

No. 05-1459

LARRY MACKEY,

Plaintiff - Appellant,

versus
CITY OF CHARLOTTE,

Defendant - Appellee.

Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. David C. Keesler,
Magistrate Judge. (CA-03-165-3; CA-03-179-3; CA-03-159)

Argued: February 2, 2006 Decided: May 23, 2006

Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Gregory wrote a
separate opinion concurring in part and dissenting in part.

Kerry Brindley Everett, Charlotte, North Carolina, for Appellants.
Richard Harcourt Fulton, Assistant City Attorney, OFFICE OF THE
CITY ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:

Lee Belton, Jerome Frederick, and Larry Mackey

(“plaintiffs”) are each African-American Battalion Chiefs with the

Charlotte Fire Department (“Fire Department” or “Department”).

They have each worked for the Department for nearly thirty years

and have solid employment records. They filed separate suits

against the City of Charlotte for employment discrimination,

alleging racially disparate treatment, racially hostile work

environment, and retaliation for protected activity in violation of

Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et

seq. The district court granted summary judgment to the City in

each of these cases, and plaintiffs appeal. Because the cases have

similar facts and identical legal issues, we dispose of the appeals

in a single opinion. For the reasons that follow, we affirm.

I.

We present the facts in the light most favorable to

plaintiffs, the non-movants. See Anderson v. Westinghouse Savannah

River Co., 406 F.3d 248, 259 (4th Cir. 2005).

A. The Charlotte Fire Department

The Charlotte Fire Department has 1,015 employees. As a

paramilitary organization, the Department is strictly hierarchical.

The highest ranking officer is the Fire Chief, the next-highest are

3
Deputy Chiefs, and the third-highest are Battalion Chiefs. There

are four Deputy Chief positions, which become available only when

a current Deputy Chief retires or otherwise leaves. Only Battalion

Chiefs are eligible for promotion to Deputy Chief. The Fire Chief

personally selects which Battalion Chief will be promoted to Deputy

Chief, though the City Manager must formally approve the Chief’s

selection. (The City Manager’s approval is routinely granted.)

Luther Fincher, Jr., has served as Fire Chief since 1987. In his

first seventeen years as Fire Chief, from 1987 to 2004, he never

selected an African American to be Deputy Chief. He selected a

white male in every instance.

Of the currently twenty-five Battalion Chiefs (twenty-

four in 2001), five are African-American males and two are white

females. Because there is no guarantee of or entitlement to

promotion, many Battalion Chiefs will never be promoted to Deputy

Chief. The annual base pay differential is roughly $17,000 or

$18,000. Throughout his tenure as Fire Chief, Fincher has

periodically changed the selection process for Deputy Chief, at

times favoring a formal process and at other times simply

handpicking an individual for promotion. Fincher contends that

“each process [was] a little bit different” to accommodate the Fire

Department’s changing needs. B.J.A. 260.* As of 2001 Fincher

*
B.J.A. refers to Belton Joint Appendix, F.J.A. to Frederick
Joint Appendix, and M.J.A. to Mackey Joint Appendix.

4
instituted a formal selection process with publicized eligibility

criteria and a written exercise.

It appears to be “common knowledge” within the Fire

Department that Fincher “‘ha[s] grown up on the other side of the

tracks’ and [does] not relate well to people of various races.”

F.J.A. 761. At some point prior to becoming Fire Chief (between

1974 and 1985), Fincher said that “if he were ever in a position of

authority, he would make sure Blacks in the Fire Department knew

their place and stayed in it.” F.J.A. 764. Additionally, Fincher

has used the epithet “nigger” at least two times since 1974, though

never in front of Belton or Mackey. On one occasion between 1974

and 1985, he asked one white firefighter “why he hung out with

‘niggers’ so much.” F.J.A. 764. In approximately 1989 he told

Frederick that “[n]o one cares about those ‘niggers’ in Double Oaks

[a neighborhood in Charlotte]” and that “you [Frederick] can call

them ‘niggers’ but I can’t.” F.J.A. 86. In this same conversation

he told Frederick to “go and cook [me] some grits.” F.J.A. 97. In

the late 1990s Fincher became irate upon learning that all three

assessors on a Department panel considering his son’s promotion

were African American. By his reasoning, no panel should ever

consist only of members of one race because “every point of view”

will not be represented. B.J.A. 676.

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 B. Plaintiffs

1. Lee Belton

Belton first joined the Fire Department in 1977 as a

Firefighter I. While his Captain was “very helpful for a young

black firefighter,” his Battalion Chief at the time had a

reputation for being racist and at times “cursed [Belton] out” and

“embarrassed [him] in front of the guys,” though he never used any

racial slurs with Belton. B.J.A. 55-56. In Belton’s first four

years as a firefighter, a fellow firefighter in his battalion used

the word “nigger” once in his presence in reference to another

African-American male. In 1981 Belton was promoted to Firefighter-

Engineer, having scored well on the written exam for that position.

Approximately one year later he was promoted to Captain. In his

first few years as Captain, he felt isolated as the only African

American in meetings and “didn’t have any kind of relationship”

with his direct boss, Battalion Chief Ken Flowe, who never

addressed Belton in meetings but communicated regularly with the

other Captains whom he supervised. B.J.A. 61. Belton was promoted

to Battalion Chief in 1990.

No one has made any discriminatory remarks in front of

Belton since he became Battalion Chief. "Having rank" in the

Department has been Belton’s defense against being exposed to such

remarks, B.J.A. 60: “As a chief officer, nobody approaches me that

way anymore because then they’d force me to do something about it,”

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B.J.A. 117-18. Some lower-ranking firefighters from different

battalions have complained to Belton about hearing discriminatory

remarks. Each time, Belton has instructed the reporting

firefighter to “bring it up the chain of command [within the

reporting firefighter’s own battalion] and . . . get it addressed

and get something done about it.” B.J.A. 118.

Belton has applied for promotion to Deputy Chief every

time a position has opened up between 1996 and 2001, a total of

five times (see part I.C below). Fincher has never selected Belton

for this promotion, at times “leapfrogg[ing]” over him to select

candidates with less experience. B.J.A. 99. Over the years Belton

has repeatedly asked Fincher “why [he] was being skipped” for

promotion, but Fincher never gave a direct answer. B.J.A. 91. In

late 1999 or early 2000 Deputy Chief Hannan encouraged Belton to

work on his writing skills, perhaps by attending a technical

writing class. Deputy Chief Duffy likewise advised Belton to

attend a technical writing class after receiving a report that

Belton had written. Belton thereafter attended the class.

Throughout his career Belton has consistently earned

ratings of “Expected” or their equivalent on his performance

evaluations (the highest possible rating is “Exceptional” and the

lowest is “Unacceptable”). He has an exceptional attendance

record, has completed various training courses, and has chaired

numerous special projects, including recruitment and events

7
planning for the Department and fund-raising campaigns for

charities. He has one disciplinary action on his record, an "AWOL"

(absent without leave) in 1998 when he missed work because of a

family emergency and could not contact his supervisors to inform

them of his absence.

2. Jerome Frederick

Frederick first joined the Fire Department in 1977 as

Firefighter I. He was promoted to Firefighter-Engineer in 1980,

having scored well on the written exam. After he was temporarily

promoted to Captain in 1982, he detected some racial hostility from

two white subordinates (firefighters who indicated they would not

ride in his truck but who never actually refused). In 1983

Frederick was permanently promoted to Captain of a different

station, where he experienced no racial discrimination. He was

promoted to Battalion Chief in 1988. At some point thereafter, his

supervisor, Deputy Chief Roger Weaver, drew an imaginary line

across his desk and warned that “he was going to get [Frederick]”

if Frederick “cross[ed] that line,” a statement that Frederick did

not understand. F.J.A. 101. In 1998 Frederick was told secondhand

that a lower-ranking firefighter in a different battalion had made

a racist remark, though Frederick did not know if this report was

“truth or hearsay.” F.J.A. 87. In 2004, after white firefighters

in his command reported that an African-American firefighter was

not being “treat[ed] right” by other white firefighters, Frederick

8
expedited that firefighter’s transfer (which that firefighter had

previously requested). F.J.A. 106.

Like Belton, Frederick has sought promotion to Deputy

Chief all five times in question (see part I.C below). Fincher has

never selected Frederick for this promotion. Frederick asked

Fincher at one point between 1996 and 2000 how to improve his

chances of promotion, to which Fincher replied, “If you don’t know,

I don’t know.” F.J.A. 713. In a 2002 evaluation Deputy Chief

Dulin recommended that Frederick attend a technical writing class.

In 2003 Fincher once ignored Frederick's greeting and told

Frederick that he (Fincher) “made [Frederick’s] hair turn gray,” a

comment that Frederick found incomprehensible but offensive.

F.J.A. 98.

Throughout his career Frederick has consistently earned

ratings of “Expected” or the equivalent on his performance

evaluations, though his ratings have at times verged toward “Above

Expected” (and he in fact earned one “Above Expected”). Like

Belton, Frederick has an excellent attendance record, has completed

various training courses, and has participated in special projects.

He has no disciplinary record.

3. Larry Mackey

Mackey joined the Fire Department in 1977 as Firefighter

I. Roughly two years later he was promoted to Firefighter-

Engineer. Although Mackey has never directly heard a racial slur

9
during his career, he believes that certain incidents and

Department decisions bear the mark of racism. For example, when he

served as Firefighter-Engineer, his supervisor did not allow him to

drive the fire truck, and Mackey believes this slight was for

racial reasons. When he was subsequently transferred to another

station, his new supervisor wrote him up as “AWOL” for missing some

work because of an injured thumb, which Mackey believes his

supervisor would not have done were Mackey white. After competing

at least twice for the rank of Captain (taking a written exam and

interviewing), Mackey and two other firefighters filed a charge

with the Equal Employment Opportunity Commission (“EEOC”). Mackey

subsequently withdrew his complaint and in January 1983 was

promoted to Captain. In the first few months after being promoted,

he was reprimanded for inappropriate conduct (using profanity to

order a medic truck driver to move her vehicle), an incident that

Mackey believes would have been overlooked were he white.

Mackey competed for rank of Battalion Chief approximately

nine times. The first three or four times that he was eligible for

promotion, then-Battalion Chief James Burke wrote him up for some

incident (such as “insubordination” for leaving work because of

illness and “conduct unbecoming” for allegedly threatening a fellow

firefighter over the phone), thereby rendering Mackey ineligible

for promotion. Mackey transferred to a different battalion in 1992

or 1993. In 1996 Mackey filed a charge of discrimination with the

10
EEOC, alleging that the Fire Department’s use of in-house assessors

in the Battalion Chief promotion process was discriminatory. In

exchange for Mackey dropping his charge, the Fire Department

replaced the in-house assessors with outside assessors -- a change

that Mackey believed “vindicated . . . [his] stance.” M.J.A. 204.

In 1998 Mackey was promoted to Battalion Chief in an independently

scored process.

Unlike Belton and Frederick, Mackey has not competed for

the rank of Deputy Chief every time in question between 1996 and

2001 (see part I.C below). He was not yet a Battalion Chief the

first time (in 1996 or 1997), he did not apply the second time, and

the fifth time he was ineligible because he had only three years’

experience as Battalion Chief. Mackey nonetheless contends that

all four times that he was Battalion Chief he should have had the

“opportunity to put [his] cards on the table and display [his]

abilities just like everybody else.” M.J.A. 219.

Throughout his career Mackey has steadily earned ratings

of “Expected” or their equivalent on his performance evaluations.

He has completed a high-level fire service management course and

has earned some specialized certifications. He has a disciplinary

record for charges of conduct.

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 C. Failures to Promote

In late 1996 or early 1997 roughly ten or eleven

Battalion Chiefs applied for promotion to Deputy Chief, including

Battalion Chiefs Belton and Frederick. The competition consisted

of oral interviews with Chief Fincher and the then-Deputy Chiefs,

who asked the candidates scenario questions. Fincher ultimately

selected Battalion Chief David Duffy, a white male, for promotion.

Duffy later told Frederick that he had not intended to apply but

“they” told him to do so. F.J.A. 712. Two Deputy Chiefs later

informed Belton that he and Duffy had been the top two candidates.

Duffy, however, enjoyed a distinct advantage over Belton and the

remaining field: prior to the competition, Duffy had been chosen

to serve as Acting Deputy Chief under retiring Deputy Chief Roger

Weaver, who acted as Duffy’s mentor. Belton, Frederick, and the

other candidates had never been offered this opportunity. Belton

thereafter asked Fincher how he could improve his chances of

promotion but received no direct answer. Neither Belton nor

Frederick filed a complaint with the EEOC.

For the next three Deputy Chief openings, Fincher

bypassed the formal selection process and instead simply handpicked

a Battalion Chief for promotion. See, e.g., B.J.A. 286 (Fincher

said, “I’ve been working with these guys for years in the

positions. . . . I knew what their potential was.”). The

Battalion Chiefs did not object to this change at an annual meeting

12
before the first of these three openings in 1998; some Battalion

Chiefs had even urged the change because they “felt that it was a

waste of time to have a process [when it was clear to them that

Fincher] had already made up his mind before the process would even

begin.” B.J.A. 87. In 1998 Fincher selected Battalion Chief Fred

Rich, a white male, for promotion over the other interested

candidates, including Belton and Frederick. Neither Belton,

Frederick, nor Mackey filed a charge with the EEOC at the time.

In early 1999 Fincher selected Battalion Chief Jon

Hannan, a white male, for promotion, even though Hannan had only

three years of experience as Battalion Chief. Under the previous

formal process, only Battalion Chiefs with at least four years of

experience were considered eligible. Hannan admitted to being

surprised at his promotion given his relative inexperience as

Battalion Chief. Nonetheless, the then-Deputy Chiefs had

unanimously recommended Hannan for promotion over the other

interested candidates (including Belton and Frederick), and Fincher

judged Hannan to be the “best candidate” in the field because he

had no disciplinary record and, according to Fincher, his

performance “always exceeded expectations” and was sometimes

“exceptional.” F.J.A. 460. After Hannan’s promotion neither

Belton, Frederick, nor Mackey filed a charge with the EEOC.

In late 1999 Fincher selected Battalion Chief Jim Burke,

a white male, to fill the newly available Deputy Chief position.

13
Burke had competed for the position four or five times previously.

He had over four years of experience as Battalion Chief and had led

a very active battalion. Again, plaintiffs did not file a charge

with the EEOC.

At some point in 2001, prior to the final promotion in

question, the five African-American Battalion Chiefs (including

plaintiffs) met with Fincher to discuss his promotional process and

the need for diversity within the Department. Fincher addressed

their concerns by “allow[ing] an outside contractor to come in, do

a diversity training session for the Battalion Chiefs, and that was

it.” M.J.A. 260.

For the 2001 opening Fincher reinstituted the formal

selection process because he had received a complaint about his

informal process from Battalion Chief Willie Summers (also African

American). The formal process consisted of a written test,

possibly an interview, and a review of the candidates' records. At

some point before the written test, Fincher’s assistant mailed out

an official announcement of the eligibility criteria: (1) at least

four years’ experience as Battalion Chief; (2) at least an

“Expected” rating in the prior two performance appraisals; (3) a

two-year degree (after high school); and (4) no disciplinary record

in the prior two years. There is some uncertainty about when or if

all the interested candidates received full notice of the formal

process. Belton contends that he received notice later than the

14
other candidates and Frederick contends that his notice was

inadequate, suggesting that both men had less time or no time to

prepare for the test. The exact dates and contents of the notice,

however, are unclear. Then-Battalion Chief Jeff Dulin received an

announcement either by letter or email some time before the

competition day, informing him that the competition would consist

of a written test and an oral interview with Fincher. Frederick

received the announcement by email, but understood from it that he

was to attend an informational meeting on the morning specified --

not that he would engage in the actual competition. Frederick

called Fincher’s secretary to ask what sort of meeting had been

planned, but she could not or would not specify. Belton received

no written notice but only a voice mail message while he was in

Georgia attending a work-related seminar. The message instructed

him to report to the General Office on the day specified, but did

not specifically alert him that there would be a written exam. He

promptly left the seminar to return home.

On the morning in question the five interested and

eligible candidates (including Belton and Frederick) arrived at the

General Office. The candidates had three hours to provide written

answers to twelve questions. Because there were only four

available laptops but five candidates, Fincher directed Battalion

Chief Dulin to take the exam on a desktop computer in a nearby

office that Dulin had been using as his temporary office. The

15
remaining candidates took the test together in a conference room on

laptops. These laptops were old and finicky machines that

frequently malfunctioned. Computer technicians at times

interrupted the testing process to make repairs. Nonetheless,

Belton, Frederick, and the other two candidates were able to

complete the exam in the allotted time.

Fincher evaluated each of the candidates in his “Deputy

Chiefs Process Score Sheet[] 2001." He scored the three white

candidates higher than the two African-American candidates, Belton

and Frederick. He graded Belton’s leadership as “average,” his

written communication skills as “lacking,” his oral communication

skills as “average,” and his written exercise as “below average.”

He further noted that Belton had received a “G” rating (“good

performance which meets and periodically exceeds requirements”) in

the prior two appraisal evaluations. B.J.A. 746. Similarly,

Fincher graded Frederick’s leadership as “average,” his

communication skills as “[n]ot very good,” and his written exercise

as “less than average.” B.J.A. 750. Fincher noted that Frederick

had also received a “G” rating in the prior two performance

appraisals. By contrast, Fincher graded Dulin as “excellent” in

all categories (leadership skills, communication skills, and

written exercise), and noted that Dulin had received an “E” rating

(“consistently far exceeds requirements”) in the prior two

16
appraisals. B.J.A. 714. Dulin had fewer years experience on the

force than either Belton, Frederick, or Mackey.

Fincher later testified that, when evaluating the

eligible candidates, he favored “competency and skills” over

“seniority and experience,” particularly because Deputy Chiefs

interact with the City Manager, make presentations to the budget

director and city council, and help craft city policy. B.J.A. 259.

Further, he testified that he considered an applicant’s complete

disciplinary record even though only recent disciplinary action

disqualified a candidate. Fincher also considered each candidate’s

list of special projects, such as involvement with emergency

response teams and charitable campaigns. Fincher, however,

“handpicks who he wants to do the special projects” and thereby

“groom[s]” candidates for promotion. F.J.A. 1091. Indeed, in 2000

Fincher ignored Belton’s request to lead a special recruitment

project, and on another occasion similarly “blew . . . off”

Mackey’s request to lead a special project involving emergency

medical services. M.J.A. 225. (Belton and Frederick have

performed a number of other special projects over the years,

though.)

The Fire Department formally announced Dulin’s promotion

on December 26, 2001, roughly two months after the competition day.

Belton testified that, upon learning of Dulin’s promotion, he

immediately felt that Dulin had been promoted for “racial reasons”

17
and that “the precedent had been set that the Chief was not going

to promote a black man.” B.J.A. 98. Sometime in January 2002

Belton asked Fincher why “was a younger, less experienced chief

being leapfrogged over [Belton] again into the position when

[Belton] had basically been in this position [roughly] fifteen

years.” B.J.A. 99. Fincher gave a vague answer and then

elaborated with seeming contradictions. Fincher said that Belton

wrote less on the test than Dulin but there was “absolutely

nothing” that Belton could have written that would have changed

Fincher’s mind. B.J.A. 109. Frederick also questioned Fincher

about not being promoted. Fincher responded that Frederick “wasn’t

the type of candidate [that the Fire Department was] looking for

for that position because he had the inability to write and deliver

a message.” B.J.A. 302.

D. Events after 2001

In September 2002 Belton, Frederick, Mackey, and Summers

met with David Sanders in the City’s human resources department.

They complained that Fincher excluded them from the promotion

process, that the process kept changing, and that they had no idea

what the qualifications were. In a subsequent meeting Sanders

indicated that he would investigate their claims. On November 4,

2002, Belton and Frederick filed a charge of discrimination with

the EEOC, alleging in part a “failure to promote, discriminatory

18
remarks, and disparate treatment.” B.J.A. 36. Mackey filed a

similar charge with the EEOC on November 7.

In December 2003 the Fire Department instituted a

requirement that candidates for Deputy Chief have a four-year

degree instead of a two-year degree, effective January 2005. As of

2004 Belton was pursuing a four-year degree and expected to earn it

by the end of that year (though he did not meet that goal);

Frederick was not enrolled in a program but indicated his intention

to do so; and Mackey had already earned his four-year degree. On

March 18, 2004, Belton and Frederick each filed a second charge of

discrimination with the EEOC, alleging retaliation through the

adoption of the four-year-degree requirement.

The City’s investigation lasted ten months, from

September 2002 through June 2003. The City never once advised

Belton, Frederick, or Mackey on the progress or results of the

investigation. Ultimately, Sanders found no evidence that Fincher

promoted based on race but concluded that Fincher’s selection

process could be perceived as racially discriminatory. In his

deposition testimony Sanders conceded that Fincher controlled the

selection process and could, if he wished, change the criteria to

“make sure” that an individual whom he favored (presumably a white

individual) was promoted over other interested candidates

(including African Americans). F.J.A. 386. At the close of the

investigation, Sanders recommended to the City’s human resources

19
director that Fincher receive counseling on the potential

perception of racial bias, though Sanders does not know if Fincher

ever received such counseling. The human resources director

thereafter met with Fincher, presumably to relay the results of the

investigation.

E. Retaliation

As noted above, Belton challenges the newly instituted

four-year-degree requirement. The requirement, in his view, is

retaliation against him for filing charges with the EEOC and for

giving deposition testimony in 2001 in a discrimination case

brought by an African-American female firefighter against the City

of Charlotte. See Johnson v. City of Charlotte, 229 F. Supp. 2d

488 (W.D.N.C. 2002). Frederick similarly alleges that the

Department’s four-year-degree requirement is retaliation against

him for filing charges.

Mackey, for his part, alleges another sort of

retaliation: he has been subject to “far more scrutiny” within the

Department since filing charges. M.J.A. 229. For example,

Battalion Chief Rich Granger has questioned and denied some of

Mackey’s requests for equipment, which he (Mackey) believes would

not have occurred had he not sued the Fire Department. At some

point in 2003 Mackey asked Fincher if Fincher would write him a

letter of recommendation, and Fincher replied that it would be

20
difficult to do that while being sued by Mackey. Fincher never

wrote the letter, having viewed Mackey’s request as a purely

hypothetical inquiry. Mackey does not dispute this

characterization. In addition, Deputy Chief Dulin requested that

Mackey submit further documentation to support two of his personnel

evaluations (two "Exceptional" ratings that Mackey gave an African-

American male and a white female). Dulin has made similar requests

of other Battalion Chiefs and ultimately approved Mackey’s ratings

without receiving the supplemental materials.

F.

Belton, Frederick, and Mackey each filed a complaint

against the City of Charlotte in the U.S. District Court for the

Western District of North Carolina in April 2003, alleging Title

VII violations. Plaintiffs asserted claims for racially disparate

treatment, racially hostile work environment, and retaliation for

protected activity. The parties consented to have these cases

determined by the magistrate judge, see 28 U.S.C. § 636(c), and we

therefore refer to the magistrate judge as the “district court.”

The district court granted summary judgment to the City on all

claims in all three cases, in Belton’s in February 2005 and in

Frederick’s and Mackey’s in March 2005. Plaintiffs timely appeal.

21
 II. Disparate Treatment Claims

A. Failure to Promote

The plaintiffs each allege disparate treatment based on

a failure to promote. Title VII makes it unlawful for an employer

"to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment,

because of such individual's race." 42 U.S.C. § 2000e-3(a). The

district court granted summary judgment to the City of Charlotte on

all three failure-to-promote claims upon finding each claim time-

barred. We review the grant of summary judgment de novo, viewing

the facts in the light most favorable to plaintiffs, the non-moving

parties. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th

Cir. 2001). A moving party is entitled to summary judgment if the

evidence shows that there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). We affirm the grant of summary judgment to the

City on plaintiffs’ failure to promote claims because they are

barred by the applicable statute of limitations.

Title VII requires an aggrieved party to file a complaint

with the EEOC “within one hundred and eighty days after the alleged

unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1).

As the Supreme Court has noted, the limitations period “‘inevitably

reflects a value judgment concerning the point at which the

22
interests in favor of protecting valid claims are outweighed by the

interests in prohibiting the prosecution of stale ones.’” Delaware

State Coll. v. Ricks, 449 U.S. 250, 260 (1980) (citing Johnson v.

Ry. Express Agency, Inc., 421 U.S. 454, 463-34 (1975)). A

potential side effect of this short limitations period is that it

“might tend to deter efforts at conciliation” by accelerating the

filing of lawsuits. Johnson, 421 U.S. at 461. Congress, however,

has deliberately chosen this 180-day period, and “courts may not

second-guess that decision.” Lever v. Northwestern Univ., 979 F.2d

552, 554 (7th Cir. 1992).

The district court determined that plaintiffs’ five

alleged failures to promote were all discrete acts, the last of

which occurred either on December 26, 2001 (when the Department

announced Dulin’s promotion) or on January 2, 2002 (when Dulin

assumed the position). Plaintiffs filed their charges with the

EEOC roughly nine months later, well over the six-month (180-day)

period: Belton and Frederick filed theirs on November 4, 2002, and

Mackey filed his on November 7. The court concluded that “there is

no legally cognizable argument that [plaintiffs] filed the [c]harge

within the required time period.” B.J.A. 1344, F.J.A. 1604, M.J.A.

1318. We agree with the district court’s conclusion.

The Supreme Court has specifically identified the failure

to promote as a “discrete act” that “occur[s] on the day that it

happen[s].” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

23
110-14 (2002). Each discrete act of discrimination “starts a new

clock for filing charges alleging that act,” meaning that only

incidents that occur within the timely filing period are

actionable; prior acts can only be used as background evidence in

support of an otherwise timely claim. Id. at 113-14; see also

Williams v. Giant Food Inc., 370 F.3d 423, 428 (4th Cir. 2004).

Here, because all of the challenged acts occurred outside of the

period for timely filing, the entire claim is time-barred.

Plaintiffs attempt to breathe new life into their

failure-to-promote claims by alleging that the discrete acts

constitute a continuing violation that ends within the limitation

period. “Because failure to promote is a discrete act” under

Morgan, however, “the continuing violation doctrine does not apply

. . . and cannot save [plaintiffs’] untimely claims.” Williams,

370 F.3d at 429 (citing Morgan, 536 U.S. at 114). Plaintiffs

further allege that the discrete acts reflect a seventeen-year

pattern or practice of discrimination coinciding with Fincher’s

tenure as Chief. This allegation, however, cannot extend the

applicable time period when the challenged acts are each

individually time-barred. Cf. Davidson v. Am. Online, 337 F.3d

1179, 1186 n.3 (10th Cir. 2003) (noting that Morgan left unanswered

how courts should proceed on pattern-or-practice claims based on a

series of discriminatory acts but only if some acts occurred within

timely filing period). In Williams we held that each failure to

24
promote remains a discrete act of discrimination even if it is part

of a broader discriminatory practice. Williams, 370 F.3d at 429.

This reasoning is consistent with Bazemore v. Friday, 478 U.S. 385

(1986), and with the opinions of other courts. See, e.g.,

Elmenayer v. ABF Air Freight Sys., Inc., 318 F.3d 130, 134 (2d Cir.

2003) (“The clear message of Bazemore is that an employer performs

a separate employment practice each time it takes adverse action

against an employee, even if that action is simply a periodic

implementation of an adverse decision previously made.”); Davidson,

337 F.3d at 1185-86; Cherosky v. Henderson, 330 F.3d 1243, 1248

(9th Cir. 2003). Even if, as plaintiffs contend, each failure to

promote simply reactivated a decision that Fincher made long ago

never to promote an African American to Deputy Chief, each failure

remains a discrete act. Because each such act occurred outside of

the applicable limitations period, each plaintiff’s entire claim is

time-barred.

Plaintiffs also assert that they are entitled to

equitable relief in the event that this court deems their filings

untimely. We conclude, however, that neither equitable tolling nor

equitable estoppel is applicable here. Equitable tolling is a

“narrow limitations exception” that is to be used sparingly. Olson

v. Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir. 1990) (en banc);

see also Morgan, 536 U.S. at 113. It applies only when the

employer “‘wrongfully deceived or misled the plaintiff in order to

25
conceal the existence of the cause of action.’” Olson, 904 F.2d at

201 (quoting English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th

Cir. 1987)). The employee’s failure to timely file must “result[]

from either a ‘deliberate design by the employer or actions that

the employer should unmistakably have understood would cause the

employee to delay.’” Id. (quoting Price v. Litton Bus. Sys.,

Inc., 694 F.2d 963, 965 (4th Cir. 1982)). There is no evidence of

such motive or action on the part of the employer here. Although

the promotion process was informal at times, it was not secretive.

Plaintiffs knew in advance of each position opening. Cf. Van Slyke

v. Northrop Grumman Corp., 115 F. Supp. 2d 587, 593 (D. Md. 2000).

By the fifth time that plaintiffs were passed up for promotion (or

by the fourth time in Mackey’s case), they were aware of virtually

all the evidence on which they now rely. See Olson, 904 F.2d at

201-02. Indeed, Belton testified that when the Department

announced Dulin’s promotion on December 26, 2001, he immediately

felt that Dulin had been promoted “for racial reasons” and that

“the precedent had been set that the Chief was not going to promote

a black man.” B.J.A. 98. Because there is no evidence that the

City actively concealed the existence of the cause of action,

equitable tolling is inapplicable.

Equitable estoppel is equally inapplicable. Equitable

estoppel applies only when the employer takes active steps to

prevent the plaintiff from filing his case, for example by

26
promising not to plead the statute of limitations. See English,

828 F.2d at 1049. Here, the City did not affirmatively prevent the

plaintiffs from suing. The City’s promise to investigate does not

by itself qualify as deliberate deception. Moreover, simply

failing to update the plaintiffs on the progress of the

investigation does not qualify as affirmative misconduct. The

plaintiffs might have delayed their filing out of a desire to

pursue the least divisive and disruptive path, specifically an

internal review process that would not air “the Fire Department’s

dirty laundry . . . in public.” M.J.A. 236. But plaintiffs’ hope

that the internal process would remedy the problem is not the type

of situation that equitable estoppel is designed to address. See

Ricks, 449 U.S. at 261 (“[P]endency of a grievance or some other

method of collateral review of an employment decision[] does not

toll the running of the limitations period.”); Lucas v. Chicago

Transit Auth., 367 F.3d 714, 721-22 (7th Cir. 2004) (holding that

employer’s internal review is not by itself “an active step” that

warrants application of equitable estoppel); Lever, 979 F.2d at 556

(“[An employer’s] many and varied opportunities for internal review

is not the sort of deception that supports equitable estoppel.”).

Finally, plaintiffs try to cast their claims as timely by

identifying the City’s failure to update them on the investigation

as the “final violation” in the chain of failures to promote. See,

e.g., Belton’s Reply Br. at 2. Although plaintiffs do not

27
elaborate on this theory, they presumably mean that the City’s

failure to promote them in December 2001 was not final until the

close of the City’s investigation in June 2003 (roughly seven

months after plaintiffs filed their charges with the EEOC). The

City's December 2001 decision to promote Dulin over plaintiffs was

not, however, a provisional recommendation. It was a final

decision. That the City later considered a complaint about the

promotion process does not transform the earlier decision into a

tentative one, as the Supreme Court explained in Ricks. “The

[employer’s] grievance procedure, by its nature, is a remedy for a

prior decision, not an opportunity to influence that decision

before it is made.” Ricks, 449 U.S. at 261. For this reason, the

existence of a grievance procedure “should not obscure the

principle that limitations periods normally commence when the

employer’s decision is made.” Id. To hold otherwise would allow

employees unilaterally to extend the 180-day limit by filing a

series of complaints or internal appeals. See Lever, 979 F.2d at

556 (citing Ricks). Accordingly, the city’s eventual refusal to

undo the promotion decision is not a “fresh act of discrimination”

that restarts the clock. Id.

B. Denial of Equal Opportunities

Belton and Mackey also allege disparate treatment based

on a general failure to provide equal opportunities. To establish

28
a prima facie case, plaintiffs must show that they are members of

a protected class, they applied for the positions in question, they

were qualified for the positions, and they were "rejected for the

position[s] under circumstances giving rise to an inference of

unlawful discrimination." McNairn v. Sullivan, 929 F.2d 974, 977

(4th Cir. 1991). The district court determined that neither Belton

nor Mackey specifically identified the opportunities allegedly

denied them. After combing the record, the district court

identified certain opportunities that could be the subject of

Belton's and Mackey's complaints.

Belton, for his part, presumably challenges: (i) the

Department's failure to assign him unspecified special projects;

(ii) the Department's failure to select him to attend a training

session in Washington, D.C., in 2001; and (iii) Fincher's failure

to grant his request to lead recruiting efforts in 2000. The

district court determined that Belton fails to establish a prima

facie case of discrimination on the first allegation because he

does not provide sufficient evidence that he was qualified for

unspecified special projects and that other white employees in

similar circumstances were given such opportunities. Indeed,

Belton has participated in a number of special projects throughout

his career, including work on the citywide Workforce Committee and

on fund-raising campaigns for the United Way and the Arts and

Sciences Council. Even if Fincher selectively assigns special

29
projects to favored employees and thereby grooms them for

promotion, favoritism alone does not prove racial discrimination.

See Blue v. United States Dep't of the Army, 914 F.2d 525, 541 (4th

Cir. 1990) ("If one employee was unfairly preselected for the job,

the preselection would work to the detriment of all applicants for

the job, black and white alike."); see also F.J.A. 94 (Fincher

selected a close friend’s son to lead safety committee). Regarding

the remaining two allegations (the 2001 training session and the

2000 recruitment project), the district court deemed them time-

barred because they occurred well over 180 days prior to Belton’s

EEOC filing on November 4, 2002 (meaning that they occurred before

May 7, 2002).

The district court gleaned from the record the following

opportunities that Mackey presumably challenges: (i) the

Department's failure to assign Mackey unidentified special

projects; (ii) its failure to allow him to attend a certain fire

training school; and (iii) Fincher's failure to grant Mackey’s

request to lead an emergency medical services project. Regarding

the first allegation, the district court reached the same

conclusion as it had earlier when analyzing Belton's parallel

claim: that Mackey fails to establish a prima facie case of

discrimination because he fails to make an adequate showing that he

was qualified for these unspecified special projects and that a

similarly situated white employee received such opportunities. The

30
district court deemed the remaining two allegations time-barred,

stating that "it is clear from [Mackey's] testimony that both

events occurred prior to May 11, 2002," 180 days prior to his

filing the EEOC charge. M.J.A. 1321.

After reviewing de novo, we affirm, on the district

court's reasoning, the grant of summary judgment to the City on

Belton’s and Mackey’s claims of failure to provide equal

opportunities.

From the parties’ filings and briefs, it appears that

Frederick also alleges disparate treatment based on a general

denial of equal opportunities, although the district court did not

expressly address this claim. The record indicates only two

opportunities that Frederick identifies with any specificity: at

some unspecified point after 1988 a Deputy Chief quashed

Frederick’s attempt to launch a special project teaching Spanish to

firefighters because the Department “[didn’t] want to do it,”

F.J.A. 91; and in approximately 1999 Fincher denied Frederick’s

request to attend an administration seminar in Las Vegas, Nevada,

possibly because of budgetary concerns. This latter allegation is

time-barred, since it occurred more than 180 days prior to November

4, 2001 (when Frederick filed his first charge with the EEOC). The

former allegation, as with Belton’s and Mackey’s allegations, fails

for insufficient evidence. Frederick cannot establish that other

white employees were granted similar opportunities in similar

31
circumstances. The Department’s mere failure to support a Spanish-

language program cannot, without more, give rise to an inference of

unlawful discrimination. Moreover, Frederick has participated in

several other special projects throughout his career.

III. Hostile Work Environment Claims

Plaintiffs each allege that they have suffered a racially

hostile work environment in violation of Title VII. 42 U.S.C.

§ 2000e-2(a)(1). Title VII prohibits racial discrimination that

"has created a hostile or abusive work environment." Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 66 (1984). To establish a prima

facie case, a plaintiff must show that (1) the harassment was

unwelcome, (2) based on race, (3) sufficiently severe or pervasive

to alter the conditions of employment and create an abusive

environment, and (4) there exists some basis for imposing liability

on the employer. Spriggs, 242 F.3d at 183-84. Whether an

environment is hostile or abusive depends on factors such as: "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 v. Forklift Sys., Inc., 510

U.S. 17, 23 (1993). The environment must be both subjectively and

objectively offensive to be actionable under Title VII. Id. at 22.

32
 In granting summary judgment to the City on the hostile

work environment claims, the district court concluded that each

plaintiff fails to proffer evidence of discriminatory conduct that

is sufficiently severe or pervasive to sustain such a claim.

Reviewing de novo, we affirm on this ground.

Belton's hostile environment claim hinges on six main

allegations that span his nearly thirty-year career: (i) a fellow

firefighter used the word “nigger” sometime between 1977 and 1981;

(ii) Belton felt isolated as the only African-American Captain in

meetings; (iii) Battalion Chief Flowe did not communicate with him

when he was Captain (between 1981 and 1990); (iv) Fincher has

become angry during meetings and used profanity to address Belton

and a white firefighter; (v) other firefighters have reported to

Belton since he became Battalion Chief about hearing discriminatory

remarks within their own battalions; and (vi) Belton has not been

promoted to Deputy Chief. As the district court indicated, these

incidents were all temporally remote from each other. Some cannot

be characterized as based on race (notably (iv)), and some of the

racially hostile remarks were not said in Belton's presence ((v) is

hearsay). The most egregious and unambiguously race-based incident

is (I), when Belton’s fellow firefighter said “nigger” over twenty

years ago in his presence. The firefighter’s use of the racial

slur “nigger” was reprehensible and inexcusable. But it was

isolated and is remote in time. The single incident did not

33
permeate Belton’s work environment with discriminatory insult and

abuse and for this reason did not amount to “discriminatory

changes in the terms and conditions of employment.” Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation

marks and citation omitted). It is therefore insufficient to

satisfy the “severe or pervasive” element of Belton’s claim. See

id. at 788 (1998) (noting that isolated incidents of abusive

language will generally not meet requisite threshold of severity or

pervasiveness) (citing Oncale v. Sundowner Offshore Servs., 523

U.S. 75, 80-82 (1998)). Indeed, Belton testified that he loves his

job, respects his colleagues, and has even steered his son toward

a career in the Department.

Frederick's hostile environment claim hinges on five main

allegations, also covering his nearly thirty-year career: (I) in

approximately 1989 Fincher used the word “nigger” when describing

a neighborhood to Frederick and told Frederick to “go and cook [me]

some grits,” F.J.A. 97; (ii) at some point since 1988, Deputy Chief

Weaver drew an imaginary line across his desk and warned Frederick

that "he was going to get [Frederick]” if Frederick “cross[ed] that

line,” F.J.A. 101; (iii) in 1998 he was told secondhand that a

lower-ranking firefighter in a different battalion made a racist

remark, though Frederick did not know if this report was "truth or

hearsay," F.J.A. 87; (iv) Fincher has raised his voice when

speaking with Frederick on at least two occasions; and (v)

34
Frederick has not been promoted to Deputy Chief. Frederick also

alleges that in 2003, subsequent to his filing charges, Fincher

once ignored Frederick’s greeting and told Frederick that he

(Fincher) made Frederick's hair turn gray. While all of these

incidents were unwelcome, several cannot be characterized as based

on race. The glaring exception is (I). Fincher’s use of the

racial slur “nigger” to describe a Charlotte neighborhood was

repugnant and inexcusable. “Perhaps no single act can more quickly

alter the conditions of employment and create an abusive working

environment than the use of an unambiguously racial epithet such as

‘nigger’ by a supervisor in the presence of his subordinates.”

Spriggs, 242 F.3d at 185 (internal quotation marks and citation

omitted). The slur is made even more offensive by Fincher’s

subsequent comment, “[G]o and cook [me] some grits.” F.J.A. 97.

As odious as these comments were, however, they were isolated and

are now remote in time. They occurred during one exchange with

Fincher in 1989, fourteen years before Frederick filed his lawsuit.

As such, they cannot sustain Frederick’s hostile environment claim.

See Diggs v. Town of Manchester, 303 F. Supp. 2d 163, 180-82 & n.11

(D. Conn. 2004) (holding that racially derogatory remarks made in

the early 1980s, more than fifteen years prior to plaintiff’s

filing suit, were “too remote to support an actionable hostile work

environment claim” and that remaining incidents were “too isolated

and sporadic to have created a subjectively and objectively hostile

35
work environment”); see also Spriggs, 242 F.3d at 185 (holding that

supervisor’s constant, even daily, use of racial epithets such as

“nigger” and “monkey” was sufficiently severe or pervasive to

survive summary judgment).

Mackey's hostile environment claim consists of five main

allegations occurring since the late 1970s: (i) when he was first

promoted to Firefighter-Engineer, his boss did not allow him to

drive; (ii) also while he was Firefighter-Engineer, another boss

wrote him up as "AWOL" for missing work because of a thumb injury;

(iii) he was twice reprimanded for allegedly inappropriate conduct;

(iv) a superior questioned the quality of Mackey’s instruction

while Mackey taught at the Fire Academy; and (v) Mackey has not

been promoted to Deputy Chief. Mackey has never, however, heard a

racially discriminatory remark "to his face" during his career at

the Department. M.J.A. 213-24. Again, these events are temporally

remote from each other and some cannot be fairly characterized as

based on race. While unwelcome and in some cases offensive, the

challenged conduct is insufficiently severe or pervasive to create

a racially abusive work environment as a matter of law. See

Faragher, 524 U.S. at 788.

IV. Retaliation Claims

Title VII prohibits discrimination by an employer against

any individual because that individual has "opposed any practice

36
made . . . unlawful" under Title VII or has "participated in any

manner in an investigation, proceeding, or hearing under" Title

VII. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of

retaliation under Title VII, a plaintiff must show that he engaged

in protected activity, that an adverse employment action was taken

against him, and that there was a causal connection between the

two. Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th

Cir. 1998). As an initial matter, it is clear that plaintiffs have

engaged in protected activity, namely filing their charges with the

EEOC. Belton also identifies one additional protected activity,

his giving deposition testimony in 2001 in a Title VII case brought

by an African-American female firefighter against the City of

Charlotte (Johnson). None of the plaintiffs, however, can identify

an adverse employment action sufficient to sustain their

retaliation claim.

The retaliation that Belton and Frederick allegedly

suffered is the Department’s adoption of the four-year-degree

requirement in December 2003, effective January 2005. This

requirement, they argue, has "effectively eliminate[d] [them] from

the promotion process." B.J.A. 944, F.J.A. 772. In 2003 Belton

was enrolled in a four-year program and close to earning his degree

(though he did not meet that goal). Frederick was not enrolled in

a program but in his deposition testimony indicated his intent to

do so. Because both men may earn their four-year degrees by the

37
time the next Deputy Chief position becomes available, the

requirement cannot fairly qualify as adverse employment action

taken against them, as the district court concluded.

Having already earned his four-year degree in May 2003,

Mackey cannot show that the new requirement constitutes retaliation

for filing charges. He identifies other sources of retaliation:

Battalion Chief Granger's close scrutiny of his equipment requests;

Fincher's failure to write him a letter of recommendation, which

the district court deemed a purely hypothetical request (a

characterization that Mackey does not dispute); and Deputy Chief

Dulin's request that Mackey supplement some of his performance

evaluations, though Dulin has made similar requests of other

Battalion Chiefs and ultimately approved Mackey's evaluations

without receiving the supplemental materials. As the district

court determined, Mackey cannot show that these incidents

constitute adverse employment actions that are causally connected

to his filing charges. While they were no doubt vexing and

interfered with Mackey's comfort level at work, these incidents

cannot sustain a Title VII retaliation claim.

In addition to challenging these specified incidents,

plaintiffs raised the “vague argument” in district court that they

were retaliated against by the City’s failure to update them on the

progress of the internal investigation. B.J.A. 1354 n.19. The

district court dismissed this claim on the ground that the mere

38
failure to update does not constitute adverse employment action.

Because plaintiffs do not assert failure to update as part of their

retaliation claim on appeal, we do not consider the allegation in

this context. See United States v. Al-Hamdi, 356 F.3d 564, 571 n.8

(4th Cir. 2004) (“It is a well settled rule that contentions not

raised in the argument section of the opening brief are

abandoned.”). Moreover, for this reason, we do not address whether

the district court should have construed plaintiffs’ failure to

update claim more broadly to include the failure to investigate.

We thus affirm the district court's grant of summary

judgment to the City on each plaintiff's retaliation claim.

V.

In sum, plaintiffs' claims of disparate treatment

premised on a failure-to-promote are time-barred. On all remaining

claims, plaintiffs fail to establish a prima facie case of

discrimination. We therefore affirm the district court's grant of

summary judgment to the City of Charlotte in each of the three

cases.

No. 05-1268 AFFIRMED
No. 05-1450 AFFIRMED
No. 05-1459 AFFIRMED

39
GREGORY, Circuit Judge, concurring in part and dissenting in part:

The district court dismissed the Plaintiffs’ claim that the

City’s mishandling of their complaints was an act of retaliation,

concluding that “the failure to ‘update’ [the Plaintiffs of the

progress of the City’s investigation] [did] not constitute an

adverse employment action.” Id. at 1354. In so holding, the

district court construed the Plaintiffs’ contentions too narrowly.

The Title VII violation alleged before the district court, and

preserved on appeal, is not a simple failure to inform, but rather

a more pernicious failure to investigate. See B.J.A. 802; Br. of

Appellant [Belton] at 29; Br. of Appellant [Frederick] at 30-31;

Br. of Appellant [Mackey] at 23. Because an employer’s disregard

of reports of race discrimination can be an adverse employment

action under Title VII, I would vacate the district court’s grant

of summary judgment on the Plaintiffs’ failure to investigate

claim. Therefore, on that basis alone, I respectfully dissent.

Title VII prohibits an employer from retaliating against an

employee because he has complained of race discrimination in the

workplace. 42 U.S.C. § 2000e-3(a). To establish a prima facie

case of retaliation, an employee must show that: (1) he engaged in

protected activity, (2) his employer took adverse action against

him, and (3) there is a causal connection between the protected

activity and adverse action. Munday v. Waste Mgmt. of N. Am., 126

F.3d 239, 242 (4th Cir. 1997).

40
 Title VII does not confine adverse employment actions to a

particular set of acts. Indeed, “[t]he law deliberately does not

take a ‘laundry list’ approach to retaliation, because

unfortunately its forms are as varied as the human imagination will

permit.” Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th Cir. 1996).

Further, an adverse employment action need not be an ultimate

employment action, but merely one that affects the terms,

conditions, or privileges of employment. Gunten v. Maryland, 243

F.3d 858, 865-66 (4th Cir. 2001). “‘The phrase terms, conditions,

or privileges of employment evinces a congressional intent to

strike at the entire spectrum of disparate treatment of men and

women [and racial groups] in employment,’ which includes requiring

people to work in a discriminatorily hostile or abusive

environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)

(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).

An employer’s failure to investigate a charge of

discrimination affects the conditions of employment by

communicating one message to the victim and yet another to the

perpetrator of discrimination. Through his employer’s inaction, a

victim learns that complaining is futile, that he must endure the

status quo, and that his employer will stand idly by as conditions

worsen. See Bernstein v. Bd. of Educ., No. 98-3910, 1999 U.S. App.

LEXIS 18702, at *12-13 (7th Cir. Aug. 6, 1999) (“Ms. Bernstein’s

employment conditions were adversely affected [by her employer’s

41
failure to investigate] as she was forced to work in an environment

where an unknown coworker or coworkers so intensely hated her that

the perpetrator(s) prepared a vicious letter, complete with threats

and swastikas, and mailed it to her home.”). On the other hand, a

perpetrator understands that he may act with impunity. In this

way, his earlier acts of discrimination are ratified, and he is

emboldened to engage in more abusive conduct.

Accordingly, Title VII protects employees not only from low-

level supervisors who discriminate impermissibly, but also from

high-level managers who condone and encourage such conduct by

failing to investigate or remedy it. See, e.g., Rochon v.

Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (holding that the

FBI’s refusal to investigate a death threat constitutes an adverse

retaliatory action, because “a reasonable FBI agent well might be

dissuaded from engaging in activity protected by Title VII if he

knew that doing so would leave him unprotected by the FBI”);

Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005) (“An

employer may be held liable for the actionable third-party

harassment of its employees where it ratifies or condones the

conduct by failing to investigate and remedy it after learning of

it.”); Knox, 93 F.3d at 1334-35 (recognizing that a jury must be

allowed to “evaluate the record as a whole and to decide whether

the State . . . retaliated against Knox . . . by sitting on its

hands in the face of the campaign of co-worker harassment about

42
which it knew”); Patton v. Sears, Nos. 97-2310, 98-1621, 98-1004,

2000 U.S. App. LEXIS 27997, at *14 (6th Cir. Nov. 1, 2000) (“[T]he

jury in this case could have reasonably held Sears liable for

failing to follow up on Patton’s complaints and condoning his

co-workers’ harassment.”); Bernstein, 1999 U.S. App. LEXIS 18702,

at *10-13 (holding that an employer’s allegedly “intentionally

ineffective and/or negligently indifferent” attempt to discover

which employee sent the plaintiff a hate letter could constitute an

adverse employment action); Andrews v. Philadelphia, 895 F.2d 1469,

1479 (3d Cir. 1990) (“[T]he jury reasonably could have determined

that Doyle’s failure to investigate the source of the problem

implicitly encouraged squad members to continue in their abuse of

Andrews.”). Cf. Munday, 126 F.3d at 243 (finding no adverse

employment action where “Miss Munday’s employment-related

complaints were addressed, investigated and, where appropriate,

corrected”).

In view of these precedents, I am persuaded that the district

court cut its inquiry short. The record provides evidence from

which a jury could conclude that the City took adverse action

against the Plaintiffs after they complained of discrimination in

September 2002. According to the Plaintiffs, during the two months

following their complaints, the City failed to respond to their

allegations. Although the African-American Battalion Chiefs told

the City that Chief Fincher had withheld opportunities from them

43
because of their race, see, e.g., B.J.A. 165, the City disregarded

the Plaintiffs’ phone calls, see id. at 828-29, and failed to

initiate an investigation, see id. at 171. Given the City’s

decade-long practice of ignoring accusations of race discrimination

in the Fire Department, see id. at 974, 999, the Plaintiffs

reasonably believed that their complaints had once again fallen on

deaf ears. This belief prompted them to file charges with the

EEOC. Only then, did they hear from the City. See B.J.A. 1028.

Accordingly, on this record, a jury could reasonably find the

City’s inaction in the face of multiple race discrimination

complaints sufficient to support a claim of retaliation.

Moreover, a jury could find that the City’s subsequent actions

undercut any suggestion that its prior inaction was in good faith.

Indeed, a jury could conclude that the City’s purported

investigation was a sham, with a predetermined outcome. The record

provides little evidence of the authenticity of the investigation.

For instance, no witness records, lists of questions, or interview

notes were provided. Additionally, the available evidence

demonstrates that in conducting the investigation, Sanders did not

delve into certain matters going to the heart of the complaints.

Sanders could not recall asking Chief Fincher why he continually

changed the selection criteria. See B.J.A. 190. Further, he did

not ask Chief Fincher why some individuals received more notice

than others of the final competition, see id. at 199, or why Chief

44
Fincher told Chief Belton that there was nothing he could have

written on the exam to gain promotion during the final selection

process, see id. at 215. These deficiencies perhaps explain why

Chief Fincher did not recall being interviewed about the

allegations. See id. at 276.

These facts, coupled with the City’s indifferent response to

admitted defects in the promotion process, could lead a jury to

conclude that the City did not have a sincere desire to investigate

and remedy alleged Title VII violations. At the close of the

purported investigation, the City had reason to believe that

corrective action was warranted. The City’s own investigator

acknowledged that Chief Fincher’s periodic alteration of the

selection criteria and promotion process appeared “suspicious.”

B.J.A. 227. In fact, when asked whether he thought race had played

a role in Chief Fincher’s promotion of deputy chiefs, Sanders

responded, “I think it certainly looks like it.” Id. at 242.

Nonetheless, when Sanders was deposed several months after the

investigation, his testimony revealed that the City had not taken

steps to change the process for promotion. Sanders had yet to

speak with Chief Fincher about how promotions to deputy chief could

be “handled better,” see B.J.A. 1022; he did not know whether the

promotion process was going to change, id.; he did not know whether

Chief Fincher had instituted a nonarbitrary system for selecting

people to perform special projects, id. at 212; and could not say

45
whether Chief Fincher had been counseled about his conduct, as

recommended, id. at 1034. Thus, a jury could find the

investigation a mere formality, which failed to effect any changes

in the Fire Department and permitted the alleged discriminatory

practices to continue.

For the reasons set forth above, I would vacate the district

court’s grant of summary judgment on the Plaintiffs’ failure to

investigate claim and remand for further proceedings. I otherwise

concur in the majority’s opinion.

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