United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2446
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Naketa C. Malone, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Ameren UE, *
*
Appellee. *
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Submitted: March 16, 2011
Filed: July 18, 2011
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Before LOKEN and COLLOTON, Circuit Judges, and NELSON,1 District Judge.
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COLLOTON, Circuit Judge.
Naketa Malone sued his employer, Ameren UE (“Ameren”), alleging race
discrimination and retaliation for opposing race discrimination, in violation of Title
VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The district court2
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota, sitting by designation.
2
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
granted Ameren’s motion for summary judgment and dismissed the complaint.
Malone appeals, and we affirm.
I.
We recite the facts in the light most favorable to Malone. Malone, who is a
black male, worked for Ameren or its predecessor since September 1989. He held
various positions in operations and maintenance at Ameren’s Meramec Plant, a coal
power plant in St. Louis County, Missouri. In 2003, Ameren rejected Malone’s
application for a promotion to a “Shift Supervisor I” position because he lacked
experience as a “Unit Operating Engineer.” Malone later learned that Ameren hired
others without such experience to serve in the Shift Supervisor I position. In 2006,
Malone applied again for the position, but later withdrew his application. In 2007,
Ameren promoted Malone to Unit Operating Engineer.
Malone contends that during his time at the Meramec Plant, the environment
became “toxic” as a result of several racially-motivated incidents. The first incident,
in August 2005, occurred when Malone entered a men’s restroom stall and viewed
graffiti written by an unknown author that said, “Kill all niggers.” Malone reported
the graffiti to his immediate supervisor, and the graffiti was covered.
In August 2006, three white employees told a racially-oriented joke to a black
outside contractor. Malone was not present and does not know the substance of the
joke. Pursuant to its Equal Employment Opportunity and Anti-Harassment Policy,
Ameren suspended the three employees without pay. The local union representing
these suspended employees then solicited money to support the employees and
publicly displayed the amount collected. Malone was offended that Ameren did not
somehow stop the union from taking these actions.
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In the spring of 2007, an Ameren employee used the term “nigger rigged” to
refer to repairs performed on machinery. Malone was not present, but learned of the
statement through a co-worker. Ameren suspended the offending employee without
pay after determining that his actions violated company policy.
Finally, in December 2007, during Malone’s first shift as a Unit Operating
Engineer, he observed alarms indicating a problem with a boiler feed pump for which
he was responsible. Malone dispatched his attendant and learned that a valve on the
pump was completely closed. Based on this information, Malone concluded that
someone had forcibly closed the valve in an attempt to sabotage the equipment
because of Malone’s race. After an investigation, Ameren concluded that the valve
most likely closed on its own due to extreme vibration.
Following this event, Malone was diagnosed with “adjustment disorder mixed
with anxiety.” At Ameren’s request, Malone met with a psychiatrist. The psychiatrist
concluded that Malone was not fit for work, because he exhibited agitation, possible
paranoia, possible auditory hallucinations, and questionable insight and judgment.
Malone never returned to work.
In 2008, Malone filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), and the EEOC issued a right-to-sue letter.
Malone sued Ameren in the district court, alleging race discrimination and other
claims not relevant here.3 His complaint alleged claims of race discrimination and
retaliation based on a failure to promote, and a race discrimination claim based on a
hostile work environment. The district court granted summary judgment in favor of
Ameren on each of these claims.
3
Malone’s complaint also alleged sex discrimination under Title VII and
violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
The district court dismissed these claims for failure to exhaust administrative
remedies, and Malone does not appeal that aspect of the judgment.
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II.
Before addressing the merits of Malone’s claims, we consider two disputes
about discovery and admissibility of evidence. Malone asserts that the district court
abused its discretion by refusing to consider three affidavits when ruling on Ameren’s
motion for summary judgment. Citing Federal Rule of Civil Procedure 37(c)(1), the
district court declined to consider the affidavits because Malone had not identified
the witnesses as required by Rule 26(a) or (e), and did not explain why his failure to
do so was substantially justified or harmless. Malone does not offer a justification
for the lack of notice; he asserts only that Ameren would have been able to prepare
for the witnesses if they were to testify at trial. For purposes of summary judgment,
however, Ameren had no opportunity to depose the witnesses, and the district court
was not required to delay the proceedings to accommodate Malone’s untimeliness.
The district court did not abuse its discretion by excluding the affidavits. See Fu v.
Owens, 622 F.3d 880, 883-84 (8th Cir. 2010).
Malone next contends that the district court “short circuited” discovery by
forbidding him to present information concerning a prior lawsuit between Ameren
and several employees including Malone. That action resulted in a confidential
settlement in 2002. The district court’s order provided that Malone was “prohibited
from asking questions regarding the February 2002 Settlement Agreement between
[Malone], several other charging parties, and [Ameren].” This sort of discovery
ruling will be reversed only for gross abuse of discretion resulting in fundamental
unfairness. Ahlberg v. Chrysler Corp., 481 F.3d 630, 637 (8th Cir. 2007). Given the
remoteness in time of the prior events, the limited probative value of the proposed
discovery, and the potential that discovery could have compromised the
confidentiality of the settlement, the district court did not abuse its discretion in
concluding that discovery concerning the settlement agreement was not warranted.
See Fed. R. Civ. P. 26(c)(1); Hasbrouck v. BankAmerica Hous. Servs., 187 F.R.D.
453, 457-62 (N.D.N.Y.), aff’d, 190 F.R.D. 42 (N.D.N.Y. 1999).
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III.
On the merits, we review the district court’s grant of summary judgment de
novo, viewing the evidence in the light most favorable to Malone, the nonmoving
party. Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 903 (8th Cir. 2010). Summary
judgment is appropriate if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A.
We first consider Malone’s claims of discrimination and retaliation based on
a failure to promote. Analyzing these claims under the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the district court
determined that Malone failed to establish a prima facie case of discrimination.
Because the record was fully developed in connection with Ameren’s motion for
summary judgment, we address directly whether Malone has presented a genuine
issue for trial on the ultimate question of discrimination vel non. See Fanning v.
Potter, 614 F.3d 845, 850 (8th Cir. 2010).
The district court properly granted summary judgment on both failure-to-
promote claims. Before an employee may file a lawsuit in federal court, he must
exhaust administrative remedies with the EEOC. Alexander v. Gardner-Denver Co.,
415 U.S. 36, 47 (1974). The employee may not bring allegations in a Title VII action
if they go beyond those that “could reasonably be expected to grow out of the charge
of discrimination” filed with the EEOC. Kells v. Sinclair Buick-GMC Truck, Inc.,
210 F.3d 827, 836 (8th Cir. 2000) (internal quotation omitted). While a charge of
discrimination “need not specifically articulate the precise claim, it must nevertheless
be sufficient to give the employer notice of the subject matter of the charge and
identify generally the basis for a claim.” Humphries v. Pulaski Cnty. Special Sch.
Dist., 580 F.3d 688, 697 (8th Cir. 2009) (internal quotation omitted).
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In his charge of discrimination to the EEOC and in his complaint, Malone
alleged that Ameren refused to promote him to “a supervisory UOE position” in 2007.
The record shows, however, that Ameren did promote Malone in 2007. At his
deposition, Malone testified that he identified the wrong date in his allegations, and
that the charge of discrimination should have referred to his application for a Shift
Supervisor I position in 2003. Malone’s EEOC charge about an alleged failure to
promote involving a different position in a different year was insufficient to exhaust
his administrative remedies. On top of the exhaustion problem, it is too late now for
Malone to amend his complaint to include a different alleged act of discrimination.
See Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir.
2009). The failure-to-promote claims were properly dismissed.
B.
Malone’s remaining claim is that Ameren subjected him to a hostile work
environment based on race. To prove this claim, Malone must establish that (1) he
is a member of a protected group; (2) he was subject to unwelcome race-based
harassment; (3) the harassment was because of membership in the protected group;
and (4) the harassment affected a term, condition, or privilege of employment.
Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 892 (8th Cir. 2005). Ameren can be
liable for harassment by non-supervisory coworkers only if the company “knew or
should have known of the harassment and failed to take proper remedial action.”
Tatum v. City of Berkeley, 408 F.3d 543, 550 (8th Cir. 2005).
Conduct of others in a workplace “affects a term, condition, or privilege of
employment” under Title VII only if it is “sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations omitted). We
consider the conduct “as it would be viewed objectively by a reasonable person and
as it was actually viewed subjectively by the victim.” Singletary, 423 F.3d at 892
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(internal quotations omitted); see also Harris, 510 U.S. at 21-22. All of the
circumstances are relevant, including “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, 510 U.S. at 23.
Malone presented evidence of four incidents in support of his claim: (1) the
restroom graffiti in August 2005; (2) the racially-oriented joke in August 2006 and
the union’s collection in support of the suspended employees; (3) the racially-
derogatory reference to repairs in the spring of 2007; (4) and the alleged sabotage in
December 2007. These incidents, considered as a whole, are not sufficiently severe
or pervasive to establish a hostile work environment. The events occurred over the
span of more than two years, and “our cases require that a plaintiff show more than
a few occurrences over a course of years.” Singletary, 423 F.3d at 893. The first
three incidents were not directed at Malone; the second and third incidents occurred
outside of Malone’s presence; and there is no evidence that the alleged sabotage had
a racial character or purpose if it was even sabotage. The district court thus properly
granted summary judgment in favor of Ameren on this claim.
* * *
The judgment of the district court is affirmed.
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