UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
2
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.
5
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,”
6
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.
11
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.
46