Wilson v. Moulison North Corp.

United States Court of Appeals
For the First Circuit

No. 10-1387

ARTHUR RAY WILSON,

Plaintiff, Appellant,

v.

MOULISON NORTH CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Guy D. Loranger, with whom Nichols, Webb & Loranger, PA was on
brief, for appellant.
Timothy J. O'Brien, with whom Gene R. Libby and Libby O'Brien
Kingsley & Champion, LLC were on brief, for appellee.

March 21, 2011

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 SELYA, Circuit Judge. This appeal has its genesis in the

plaintiff's complaint that coworkers created a workplace permeated

by racially discriminatory taunts. The pivotal issues implicate

two important aspects of employer liability: the appropriateness of

disciplinary action taken in response to an initial complaint of

harassment and the reporting requirement that must be satisfied to

trigger a duty to take remedial action for subsequent harassment.

The district court, in a thoughtful rescript, rejected the

plaintiff's claims of employer liability and entered summary

judgment accordingly. Wilson v. Moulison N. Corp., 691 F. Supp. 2d

232, 239 (D. Me. 2010). We affirm.

I. BACKGROUND

Because this appeal follows a grant of summary judgment,

we rehearse the facts in the light most favorable to the nonmovant

(here, the plaintiff), drawing all reasonable inferences in his

favor. Ahern v. Shinseki, 629 F.3d 49, 51 (1st Cir. 2010); Cox v.

Hainey, 391 F.3d 25, 27 (1st Cir. 2004).

Defendant-appellee Moulison North Corporation is a Maine-

based electrical utility contractor, specializing in the

installation and repair of large lighting systems (e.g., airport

runway illumination). Ken Moulison is its owner and chief

executive.

The events undergirding this appeal took place in 2006.

Plaintiff-appellant Arthur Ray Wilson, an African-American male,

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started working for the company on May 22. He was assigned to a

project at the Portland Jetport, where he labored alongside William

Stineford, Dale Small, and Ryan Polley (all white males). Polley

had the most seniority and functioned as the lead worker. As such,

he allotted daily work assignments when the supervisor, Bill Rowe,

was elsewhere.

Federal law encourages employers to establish

antiharassment policies. Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 764 (1998). At all times relevant to this appeal, the

company had such a policy in effect.1 This policy directs

employees to report harassment either to a "supervisor or to Ken

Moulison." For ease in compliance, it lists Moulison's telephone

number.

The plaintiff's woes began almost immediately after he

joined the company. In late May, Stineford referred to him as

"Aunt Jemima" (a reference that the plaintiff reasonably regarded

as a racial slur). In response to this dysphemism, the plaintiff

asked Stineford to refer to him by name. Stineford then used

another racial epithet and stated that this was "how he talked to

other niggers."

1
To be precise, the company has an antiharassment policy
contained in its employee manual, and supplements that description
by disseminating an annual notification of its antiharassment
policy. The two iterations of the policy appear to be designed to
be read together.

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 At around the same time — the record is muddled and the

parties disagree as to the exact chronology — Stineford, Small, and

the plaintiff were digging in hard dirt. Stineford loudly

described the task as "nigger work." Polley overheard this remark,

told Stineford that it was inappropriate, and suggested that he

"watch [his] mouth." When the plaintiff informed Polley about the

"Aunt Jemima" comment, Polley asked both Stineford and Small to

refrain from using such expressions. As a further precaution,

Polley assigned Stineford and Small to tasks in a different area,

thus temporarily separating them from the plaintiff.

Polley's well-meaning importunings fell on deaf ears:

Stineford made continued use of the word "nigger" and an

unidentified coworker referred to the plaintiff as "lips," which

the plaintiff reasonably believed to be a racial slur. The

plaintiff complained to Polley about these incidents, but Polley

took no further action.

On June 5, the plaintiff called Ken Moulison. When

Moulison returned the call the same day, the plaintiff described

what had happened. Moulison then contacted Polley, who confirmed

the plaintiff's account.

Moulison did not let the matter linger. On June 6, he

visited the job site and confronted Stineford and Small. Neither

of them denied the plaintiff's allegations. Moulison became irate

and berated the men, making clear that such misconduct was

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unacceptable. He declared that each of them was working with "a

foot out the door" and that any further incidents of harassment, no

matter how minor, would result in immediate termination.

To give context to this warning, we note that the

company's antiharassment policy states in pertinent part:

"Disciplinary measures [for prohibited harassment] may include oral

or written warnings, suspension, or termination depending upon the

severity of the offense."

Before leaving the job site, Moulison spoke with the

plaintiff. He apologized for the offensive behavior of the

plaintiff's coworkers and confirmed that any repetition of that

behavior would result in their dismissal. Moulison then told the

plaintiff to report any further problems to him without delay. The

plaintiff assured Moulison that he would do so.2

Notwithstanding Moulison's warning, Stineford's use of

racial epithets persisted. In addition, the plaintiff's

relationship with other coworkers began to deteriorate. The

plaintiff considers this deterioration to be part of the racial

discrimination that he experienced and, for summary judgment

purposes, we accept that allegation as true.

The plaintiff continued working at the Portland Jetport

into August. While there, several untoward incidents occurred.

2
Although Moulison did not say so, the plaintiff understood
that he also could report further acts of harassment to Polley. We
shall elaborate on this point in our discussion of the issues.

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Once, a coworker slapped him on the hand with a live electrical

wire. Another time, he was assigned to work with a live electrical

wire (which he viewed as an attempt to place him in peril). On

other occasions, he discovered that his water bottle had been

contaminated with dirt, gas, or oil. Throughout, coworkers

repeatedly yelled at him, swore at him, and refused to help him

with his assigned tasks. Although he complained to Polley, Polley

took no corrective action.

During this time frame, Moulison frequently visited the

job site. The plaintiff had ready access to him but never apprised

him of any of these developments.3 Similarly, Moulison was readily

available by telephone, but the plaintiff placed no call to him.

By like token, the plaintiff never complained to Rowe (the

supervisor). Finally, the summary judgment record contains no

evidence that either Moulison or Rowe witnessed any of the

incidents of racial discrimination or learned about them third-

hand.

During August, the company reassigned the plaintiff to an

airport project in Manchester, New Hampshire. While so engaged, he

had numerous opportunities to speak to Moulison (for example, he

3
On one such visit, the plaintiff did try to speak to
Moulison, but ongoing work took precedence and Moulison left the
site before the men could talk. The plaintiff made no effort to
follow up.

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unloaded his tools outside Moulison's office each day upon

returning from Manchester) but did not lodge any complaint.

On September 28, the plaintiff injured his back while

working and went out on disability. He never returned to work.

Instead, he sued the company for discrimination in Maine's federal

district court. His complaint asserted hostile work environment

and retaliation claims under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-2 and 2000e-3.

Following pretrial discovery, the company moved for

summary judgment. See Fed. R. Civ. P. 56. The plaintiff opposed

the motion. The district court concluded, inter alia, that the

plaintiff had failed to make out a trialworthy issue as to employer

liability and granted the motion. Wilson, 691 F. Supp. 2d at 239.

This timely appeal ensued.

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de

novo. Ahern, 629 F.3d at 53. We will affirm only if the record,

viewed in the light most favorable to the summary judgment loser,

discloses no genuine issue as to any material fact and confirms

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

Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir. 2008). Although

we draw all reasonable inferences in the nonmovant's favor, he

nonetheless "must point to 'competent evidence' and 'specific

facts' to stave off summary judgment." Tropigas de P.R., Inc. v.

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Certain Underwriters at Lloyd's of London, ___ F.3d ___, ___ (1st

Cir. 2011) [No. 10-1122, slip op. at 8] (quoting McCarthy v. Nw.

Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). A properly

supported summary judgment motion cannot be defeated by conclusory

allegations, improbable inferences, periphrastic circumlocutions,

or rank speculation. Ahern, 629 F.3d at 54; Pagano v. Frank, 983

F.2d 343, 347 (1st Cir. 1993).

III. ANALYSIS

On appeal, the plaintiff pursues only his hostile work

environment claim. Accordingly, we deem his earlier claim of

retaliation abandoned. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990).

The plaintiff asserts that he was forced to toil in a

racially hostile workplace, that the company unlawfully tolerated

this discrimination, and that it did too little to deter the

perpetrators. These circumstances, he says, render the company

liable under Title VII. See 42 U.S.C. § 2000e-2. We examine this

charge.

A. Legal Framework.

As a general proposition, a plaintiff may recover on a

hostile work environment theory when "the workplace is permeated

with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the

victim's employment and create an abusive working environment."

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Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal

quotations omitted). The work environment "must be both

objectively and subjectively offensive, one that a reasonable

person would find hostile or abusive, and one that the victim in

fact did perceive to be so." Faragher v. City of Boca Raton, 524

U.S. 775, 787 (1998). In addition, the plaintiff must show that

the employer is liable either for creating or for tolerating that

atmosphere. See Noviello v. City of Boston, 398 F.3d 76, 84 (1st

Cir. 2005); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st Cir.

2002).

The district court assumed that the plaintiff had been

subjected to a racially hostile work environment. Wilson, 691 F.

Supp. 2d at 236. We see no need to pussyfoot around this issue.

Taking the plaintiff's evidence as true (as we must at the summary

judgment stage), there is ample proof of racial slurs, epithets,

and other objectively and subjectively offensive conduct. See

Noviello, 398 F.3d at 94; O'Rourke v. City of Prov., 235 F.3d 713,

728-29 (1st Cir. 2001); see also Spriggs v. Diamond Auto Glass, 242

F.3d 179, 185 (4th Cir. 2001) (explaining that "the word 'nigger'

is pure anathema to African-Americans"). On the record, whether

the misconduct actually occurred and whether it created an

actionably hostile work environment are questions for the trier of

fact, not for the court.

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 This brings us to the nub of this appeal: the question of

employer liability. "A plaintiff must satisfy different standards

for establishing employer liability in a hostile work environment

case depending on whether the harasser is a supervisor or co-

employee." Crowley, 303 F.3d at 401. Because the plaintiff's

harassers were coworkers, not supervisors, we cabin our inquiry

accordingly.

"When coworkers, rather than supervisors, are responsible

for the creation and perpetuation of a hostile work environment

. . . an employer can only be liable if the harassment is causally

connected to some negligence on the employer's part." Noviello,

398 F.3d at 95. In other words, the plaintiff must demonstrate

that the employer knew or should have known about the harassment

yet failed to take prompt and appropriate remedial action.

Crowley, 303 F.3d at 401; White v. N.H. Dep't of Corr., 221 F.3d

254, 261 (1st Cir. 2000).

In the case at hand, the plaintiff seeks to impose

employer liability for two distinct failings. First, he contends

that the company is liable for the initial harassment (the

incidents that he reported to Moulison on June 5) because Moulison

imposed inadequate, slap-on-the-wrist discipline on Stineford and

Small. Second, he contends that the company is liable for the

subsequent acts of harassment (that is, the harassment that

occurred after the June 6 reprimand) because his complaints to

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Polley put the company on notice of that harassment, yet no

remedial action ensued. We address these plaints chronologically.

B. Initial Harassment.

It cannot be gainsaid that the company knew about the

initial series of harassing incidents. After all, the plaintiff

complained directly to the owner, Moulison, about them. This was

in full compliance with the company's antiharassment policy. No

more was exigible to put the company on notice of the initial

harassment. See Crowley, 303 F.3d at 401; Williamson v. City of

Houston, 148 F.3d 462, 466 (5th Cir. 1998).

But notice alone is not enough. Liability only attaches

if the employer, after receiving notice, fails to take prompt and

appropriate ameliorative action. Forrest v. Brinker Int'l Payroll

Co., 511 F.3d 225, 231 (1st Cir. 2007). Although this inquiry

calls for a case-by-case assessment, summary judgment will lie when

the undisputed facts show that a reasonable jury could not help but

conclude that the employer's response was both timely and

appropriate. See id. at 232.

In this instance, the company's response was both swift

and appropriate. After hearing the plaintiff's complaint, Moulison

immediately looked into it, concluded that the misconduct had

occurred, and reprimanded Stineford and Small in very strong terms.

He made it abundantly clear that any repetition of the misconduct

would result in their dismissal.

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 The plaintiff argues that a verbal reprimand and warning

constituted too mild a sanction. He emphasizes the hateful nature

of the coworkers' speech and says that it should have resulted in

their immediate discharge. Cf. 29 C.F.R. § 1604.11(f) (stating

that employers have a duty to "express[] strong disapproval" in

response to harassment). But there is no legal rule that requires

treating hateful speech as the workplace equivalent of a capital

offense. Title VII operates less mechanically; it does not

invariably require termination or suspension as a response to

harassment (even serious harassment). See Green v. Franklin Nat'l

Bank of Minneapolis, 459 F.3d 903, 912 (8th Cir. 2006).

In most situations — and this case is no exception — the

imposition of employee discipline is not a rote exercise, and an

employer must be accorded some flexibility in selecting condign

sanctions for particular instances of employee misconduct. See

Forrest, 511 F.3d at 232; see also Schaaf v. SmithKline Beecham

Corp., 602 F.3d 1236, 1244 (11th Cir. 2010). Even though the

initial misconduct in this case was flagrant, the record contains

no evidence that the perpetrators were repeat offenders. For aught

that appears, racial discrimination was not a long-standing problem

for this employer. Nor is there a history within the company of

inconsistent discipline. In addition, the discipline that Moulison

meted out conformed generally to the company's antiharassment

policy, which provides that "[d]isciplinary measures [for

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prohibited harassment] may include oral or written warnings,

suspension, or termination depending upon the severity of the

offense." Finally, the reprimand had teeth; Moulison did not mince

words, demanded a halt to the misconduct, and threatened immediate

dismissal in the event that the misconduct recurred.

To say more on this subject would be to paint the lily.

The short of it is that, given the totality of the circumstances,

the punishment seems to have fit the crime. See, e.g., Perry v.

Ethan Allen, Inc., 115 F.3d 143, 154 (2d Cir. 1997); Intlekofer v.

Turnage, 973 F.2d 773, 780 (9th Cir. 1992).

We appreciate the sincerity of the plaintiff's outrage,

but the discipline imposed need not be such as will satisfy the

complainant. See Lapka v. Chertoff, 517 F.3d 974, 985 (7th Cir.

2008). The plaintiff's argument that the sanction must have been

inadequate because it was ineffective to stop the harassment is

nothing more than a post hoc rationalization. See Porter v. Erie

Foods Int'l, Inc., 576 F.3d 629, 637 (7th Cir. 2009). An

employer's disciplinary decision must be evaluated in real time; it

cannot be evaluated in hindsight. See Riggs v. AirTran Airways,

Inc., 497 F.3d 1108, 1119 (10th Cir. 2007) (explaining that, in

discrimination cases, courts should "consider the facts as they

appeared to the [discriminator]" at the relevant time).

If more were needed — and we doubt that it is — there is

an institutional value to progressive discipline. Such discipline,

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beginning with a verbal warning, has regularly been recognized as

an appropriate starting point in assessing this species of employer

liability.4 See, e.g., Forrest, 511 F.3d at 231-32; Hirschfeld v.

N.M. Corr. Dep't, 916 F.2d 572, 578 n.6 (10th Cir. 1990). Barring

exceptional circumstances (not present here), a reasoned

application of progressive discipline will ordinarily constitute an

appropriate response to most instances of employee misconduct.

For all of these reasons, we conclude that a reasonable

jury could not find that the action Moulison took in response to

the initial harassment was either untimely or inappropriate.

C. Subsequent Harassment.

The second branch of the plaintiff's argument concerns

the harassment that eventuated after Moulison chewed out Stineford

and Small. With respect to these incidents, the plaintiff

complained only to Polley, who did nothing. The question, then,

reduces to whether those complaints sufficed to put the company on

notice of the renewed harassment. If not, there is no basis for

employer liability. See White, 221 F.3d at 261.

The plaintiff offers two reasons for imputing Polley's

knowledge to the company. We consider them separately.

4
To be sure, the plaintiff claims that Moulison's verbal
warning was not the first step taken in the disciplinary process
because Polley already had addressed the subject. But Polley was
a coworker, not a supervisor. See infra Part III(C). His
comments, therefore, were not a factor in the company's
disciplinary scheme. See Noviello, 398 F.3d at 96.

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 1. De Facto Supervisor. We begin with the plaintiff's

first theory: that Polley, regardless of his title or lack of

title, had supervisory responsibilities sufficient to make him a

fitting recipient of a harassment complaint. The company's

antiharassment policy directs that notice be given either to a

"supervisor or to Ken Moulison." Under such language, employees

can effectively lodge harassment complaints with one who,

regardless of title, functions as a supervisor. See Bombaci v.

Journal Cmty. Publ'g Group, Inc., 482 F.3d 979, 984 (7th Cir.

2007); Williamson, 148 F.3d at 466. Ordinarily, the determination

of whether an employee is a de facto supervisor for Title VII

purposes is factual in nature. Noviello, 398 F.3d at 95. Even so,

a minimum factual predicate must be present to avoid summary

judgment on such an issue. Hrobowski v. Worthington Steel Co., 358

F.3d 473, 478 (7th Cir. 2004).

A supervisor is one who has "the authority to affect the

terms and conditions of . . . employment." Noviello, 398 F.3d at

96 (quotation omitted). "This authority 'primarily consists of the

power to hire, fire, demote, promote, transfer, or discipline an

employee.'" Id. (quoting Parkins v. Civil Constructors of Ill.,

Inc., 163 F.3d 1027, 1034 (7th Cir. 1998)). In this context, a

supervisor's responsibilities must include the duty to forward

harassment complaints up the line (that is, to upper management).

See Bombaci, 482 F.3d at 984-85.

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 The plaintiff strives to brand Polley as a supervisor

because Polley had been trained in the company's antiharassment

policy, which assigns to supervisors the duty to respond to, and

report, harassment complaints. But the company gave Polley this

training after the events at issue here and only promoted him to

supervisor in 2007. Consequently, his training as a supervisor is

immaterial.

In an effort to blunt the force of these facts, the

plaintiff points to a solitary reference to Polley as a "foreman,"

contained in a memorandum prepared by Moulison in July of 2006.

But this nomenclature, even if accurate, does not affect the

result. There is no mention of "foreman" in the company's

antiharassment policy, and the dispositive inquiry remains whether,

regardless of his title or lack of title, Polley possessed

sufficient authority to rank him as a supervisor. See Chaloult v.

Interstate Brands Corp., 540 F.3d 64, 75-76 (1st Cir. 2008);

Noviello, 398 F.3d at 96. In the absence of the requisite

authority, a title such as "foreman" does not transmogrify a line

employee into a supervisor for Title VII purposes. See Cheshewalla

v. Rand & Son Constr. Co., 415 F.3d 847, 850-51 (8th Cir. 2005).

That he served as the lead worker at a particular job site — primus

inter pares — does not alter this reality.

Given Polley's lack of actual authority, all that remains

is the plaintiff's stated belief that Polley was his supervisor.

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If Polley had apparent authority to accept notice for the company,

this claim might have some bite. See, e.g., Noviello, 398 F.3d at

96; Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997). But

the plaintiff identifies no significantly probative evidence of

apparent authority and, standing alone, an employee's subjective

belief is insufficient to create a triable issue of material fact

about a coworker's status. See Bombaci, 482 F.3d at 985;

Cheshewalla, 415 F.3d at 851.

2. Delegated Authority. The plaintiff's second theory

posits that, after dressing down Stineford and Small, Moulison

expressly directed the plaintiff to report any further harassment

to Polley. In the plaintiff's view, this constituted a delegation

of authority to Polley, whether or not Polley was a supervisor, to

receive notice of future harassment.

The premise on which this argument rests is sound. If an

employer has designated a particular individual to accept notice of

harassment, notice to that individual ordinarily will satisfy Title

VII's knowledge requirement vis-à-vis employer liability. See

Williamson, 148 F.3d at 466; Young, 123 F.3d at 674. Here,

however, the claim that Moulison designated Polley as the point man

for receiving future harassment complaints is not borne out by the

record.

As framed, the plaintiff's "delegation" argument depends

wholly on an exchange that took place during his deposition. We

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reproduce the critical question and the plaintiff's answer in their

entirety:

Q. All right. And Mr. Moulison told you at
that point in time that if there were any
other issues with them that you should contact
him immediately, isn't that right?

A. He said — I think he said to make sure
Ryan [Polley] knows about it and then I am not
sure exactly how it went, but I am quite sure
that — I am almost — I know we talked and he
said come to him but I understood that I would
go to Ryan first still.

This testimony, when viewed in the light most favorable to the

plaintiff, shows that Moulison told the plaintiff to report any

future harassment to him. While it also shows that the plaintiff

believed that he could effectively report such harassment to

Polley, what the plaintiff understood and what Moulison said are

two different things. To impute Polley's knowledge to the company

on a delegation theory, the plaintiff would have to show, through

competent evidence, that Moulison designated Polley to receive

harassment complaints on the company's behalf. See Young, 123 F.3d

at 674; see generally Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986) (holding that nonmovant must adduce

"significantly probative" evidence in order to create a genuine

issue of material fact). There is no evidence in this case either

that Moulison told the plaintiff to report to Polley or that

Moulison said something specific that reasonably could have been

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understood in that way. The evidence is that Moulison told the

plaintiff to "come to him."5

That ends this aspect of the matter. The company, in

keeping with its obligations under Title VII, had in place a

clearly stated antiharassment policy, which directed aggrieved

employees to report harassment either to a supervisor or to the

owner. The plaintiff was aware of this policy (indeed, he used it

successfully to report the initial harassment) yet failed to adhere

to it with respect to the subsequent incidents of harassment. This

omission occurred despite the fact that Moulison reinforced the

policy by explicitly instructing the plaintiff to speak directly to

him. Under these circumstances, the plaintiff's failure to put the

defendant on notice of the renewed harassment is fatal to his claim

of employer liability. See Thompson v. Coca-Cola Co., 522 F.3d

168, 180-81 (1st Cir. 2008); Fontánez-Núñez v. Janssen Ortho LLC,

447 F.3d 50, 57 (1st Cir. 2006).

IV. CONCLUSION

We need go no further. Racial taunts and slurs have no

proper niche in the workplace, and no employee should have to

5
Even if the plaintiff mistakenly believed that he could go
to Polley in the first instance, he offers no explanation as to why
he failed to follow Moulison's explicit instruction to contact him
directly if other avenues proved to be dead ends. An employee's
claim that his employer failed to take remedial action is undercut
where, as here, the employee inexcusably neglected to take
advantage of a corrective measure offered by the employer. See
Faragher, 524 U.S. at 806-07; Chaloult, 540 F.3d at 74.

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endure a racially hostile work environment comparable to that

described by the plaintiff. On the facts of this case, however,

the blame lies squarely with the offending coworkers; the employer,

when notified of what was happening, took prompt and appropriate

corrective action. The record reflects no principled basis for

imposing employer liability.

Affirmed.

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