Darryl Jones v. City of Franklin

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0098n.06
Filed: February 5, 2009

No. 08-5180

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DARRYL JONES, MICHAEL JONES, )
ANTHONY PASLEY, and STEPHEN )
GIBSON, )
)
Plaintiffs-Appellants, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) MIDDLE DISTRICT OF TENNESSEE
)
CITY OF FRANKLIN, )
) OPINION
Defendant-Appellee. )
)
___________________________________ )

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

RONALD LEE GILMAN, Circuit Judge. Darryl Jones, Michael Jones, Anthony Pasley,

and Stephen Gibson are black firefighters employed by the City of Franklin, Tennessee. They filed

separate complaints in August 2006, alleging that the City failed to promote them because of their

race and failed to eliminate a racially hostile work environment. The district court granted summary

judgment in favor of the City, holding that the hostile-work-environment claims were not

administratively exhausted with the Equal Employment Opportunity Commission (EEOC) and that

each of the failure-to-promote claims was either time-barred or not supported by sufficient evidence.

For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND
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Jones v. City of Franklin

A. Factual background

The four plaintiffs were all hired by the City as entry-level firefighters during the 1980s.

Darryl Jones and Stephen Gibson have each been promoted only once, to the rank of engineer.

Michael Jones has received two promotions—from firefighter to engineer and then to his current

position as a lieutenant. Anthony Pasley has been promoted three times and is currently a captain.

During their many years of service, each of the men has applied one or more times for a promotion

that he did not ultimately receive. They allege that they possessed similar or superior qualifications

to the white applicants who succeeded in being promoted. Accordingly, they complain that the City

discriminated against them because of their race by failing to promote them.

The plaintiffs also allege that the City failed to eliminate a racially hostile work environment.

They describe many incidents where white firefighters, including high-ranking members of the

department, made racially derogatory remarks or engaged in hostile conduct directed at the plaintiffs

and other black firefighters. A few of the incidents that they allege are described below.

During Stephen Gibson’s initial training period, he was one of only two black trainees in his

group. He alleges that his white supervisor imposed a harsher standard of physical performance on

the two black trainees, particularly referencing an exercise in which the trainees were required to

extinguish fires that were ignited in 55-gallon barrels containing gasoline and diesel fuel. Gibson’s

supervisor paired him with the other black trainee, and the two were required to perform the exercise

four times. White trainees who followed were required to perform the task only once. Because

Gibson and his partner went first, they experienced the fire at greater intensity than did the white

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Jones v. City of Franklin

trainees. Gibson alleges that he sustained severe burns on his face. He also alleges that his

supervisor laughed at the injuries and stated that “blacks were afraid of fire.”

The plaintiffs’ allegations also include the frequent use of racist language in the department,

including offensive slurs and other discriminatory comments. Darryl Jones alleges that the same

supervisor referred to above by Stephen Gibson once threatened, with rope in hand, to “string [Jones]

up.” The plaintiffs also describe a meeting of City officials at which candidates for the position of

Chief were discussed. A black firefighter was among the applicants, and one official at the meeting

allegedly referred to that candidate by stating that no “rug head” would ever be promoted to Chief.

The plaintiffs further describe several incidents in which white firefighters, including a past

Chief and a Deputy Chief, used the word “nigger” to refer to the plaintiffs and other black members

of the fire department. On one such occasion, a white woman came to the fire station looking for

her husband, who was a black firefighter. She told two white firefighters about marital problems that

the couple was experiencing. When she left, one of the white firefighters was overheard saying to

the other: “Well, that’s what you get for marrying a nigger.” Non-plaintiff firefighters, both white

and black, as well as other City employees, corroborate the plaintiffs’ allegations regarding these and

many other incidents in which offensive and discriminatory language was used at the department.

B. EEOC charges

The precise content of the various charges filed by the plaintiffs with the EEOC is key to the

resolution of this case. We will therefore describe below each EEOC document that appears in the

record.

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Jones v. City of Franklin

Darryl Jones completed an EEOC intake form in September 2004. In it, he alleged

discrimination on the basis of race, and he wrote that a City employee had “made the racial statement

‘Rug Head’ while the Fire Department was still in the process of selecting the new Fire Chief.”

Jones also stated that “Blacks are purposely being overlooked when it comes to promotion

positions.” He filed his first formal EEOC charge in January 2005. The charge states that, in July

2004, he received an “unfair evaluation rating that affect[ed] the percentage of raise [he was] to

receive.” He also alleged that the evaluation scores he received from his supervisor, Michael Jones,

had been reduced by the Deputy Chief. In March 2005, Darryl Jones filed a second EEOC charge.

He complained that “[t]he City Manager gave false information to the Williamson County Review

Appeal Newspaper,” and stated his belief that he was being discriminated against in retaliation for

the filing of the previous EEOC charge.

Michael Jones filed his first EEOC charge in February 2005, alleging that he had been denied

his 2004 annual evaluation. He also described the alleged reduction by the Deputy Chief of the

evaluation score that he had given to Darryl Jones. In March 2005, Michael Jones filed another

EEOC charge. It contained identical allegations to those in the charge filed by Darryl Jones that

same month. Michael Jones filed his third and final EEOC charge in January 2006. That charge

stated that he was “being denied promotion because of [his] race, Black, and [his] age, 47.” It went

on to describe the use by the City of a noncertified test for promotion purposes. “All four Black

employees failed the test, but most of the White employees passed the test.” The January 2006

charge then described the transfer of “a White administrative captain” to the “shift captain position

without any required testing.”

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Jones v. City of Franklin

In June 2005, Stephen Gibson filed his one EEOC charge. The charge reads as follows:

I believe because of my race/Black, I have been subjected to a discriminatory
selection process that has an adverse impact regarding promotional opportunities for
blacks as a class. Less qualified whites are systematically promoted over qualified
blacks when the Franklin Fire Department continues to change the promotional
requirements/job descriptions to advance lesser qualified whites to the ranks of
Captain and above.

Recently, a white city official made the racial comment that as long as he had
anything to do with promotions, a rug head would never be in charge of a department
of the Franklin Fire Department. . . .

The Franklin Fire Department discriminates against blacks as a class in promotional
opportunities in violation of Title VII of the Civil Rights Act of 1964, as amended.

Anthony Pasley, the fourth and final plaintiff, completed an undated EEOC intake form. He

wrote that “[o]ver the last few years we have witnessed different incident[s] in our department

pertaining to blacks in our department. This complaint pertains to the hiring and promotional

process in the City of Franklin Fire Department.” Next, he described the addition of a written

examination as a requirement in the promotional process, and the reduction in the years of service

required as a lieutenant in order to be eligible for promotion to captain. He alleged that the latter

change increased the number of white firefighters who were eligible for promotion, and that the

overall process was changed to benefit white firefighters. Pasley also filed a formal charge with the

EEOC in June 2005. In the charge he stated that “[f]rom the past few years until now, I have

observed disparate treatment of blacks in hiring and promotion.”

C. Procedural history

All four plaintiffs received right-to-sue letters from the EEOC after they filed their

administrative charges. They filed separate complaints in the district court in August 2006, claiming

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Jones v. City of Franklin

that the City discriminated against them because of their race by failing to promote them to higher

positions within the Fire Department, in violation of 42 U.S.C. § 1981 (Count One); that the City

subjected them to discrete acts of racial discrimination and to a racially hostile work environment,

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count Two); and

that the City deprived them of employment opportunities because of their race in violation of the

Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. (THRA) (Count Three). The

four cases were consolidated for trial two months later.

After the parties completed discovery, the City moved for summary judgment. The district

court granted the City’s motion on all claims. Regarding Count One, the court determined that the

§ 1981 claim was barred because the plaintiffs did not plead a cause of action under § 1983, which

provides the exclusive remedy for § 1981 claims brought against a municipality. See Jett v. Dallas

Indep. Sch. Dist., 591 U.S. 701, 733 (1989). The plaintiffs have not challenged this conclusion on

appeal.

Nor do the plaintiffs present any detailed argument for reversing the district court’s dismissal

of their claims regarding various discrete acts of racial discrimination by the fire department,

including lowered evaluation scores, disciplinary actions, and the lack of promotions. These claims

were dismissed primarily because of the plaintiffs’ failure to provide sufficient evidence to support

key elements of their race-discrimination claims. The plaintiffs now argue that we should consider

their allegations of discrete acts by the City as “evidence of a racially hostile environment.”

Finally, the district court awarded summary judgment to the City on the hostile-work-

environment claims brought pursuant to Title VII in Count Two and the THRA in Count Three. In

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Jones v. City of Franklin

its opinion, the court reasoned that the plaintiffs had not exhausted their administrative remedies

with respect to the hostile-work-environment claims. The plaintiffs challenge that conclusion on

appeal.

II. ANALYSIS

A. Standard of review

We review de novo the district court’s grant of summary judgment. Int’l Union v. Cummins,

Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of

material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). In considering a motion for summary judgment, the district court must construe the evidence

and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

B. Hostile-work-environment claims

In order to establish a hostile-work-environment claim, a plaintiff must present evidence of

harassment that “unreasonably interfer[es] with [his or] her work performance and creat[es] an

objectively intimidating, hostile, or offensive work environment.” Grace v. USCAR, 521 F.3d 655,

678 (6th Cir. 2008). We have little doubt that, but for the administrative-exhaustion requirement,

the plaintiffs in this case presented sufficient evidence of hostile, racist behavior in their work

environment to survive a motion for summary judgment on this claim. See Baltimore v. City of

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Jones v. City of Franklin

Franklin, No. 3:06-0578, 2007 WL 2123906 at *14-15 (M.D. Tenn. July 20, 2007) (holding, in a

companion case to the one before us, that evidence submitted by the black firefighter with the City

of Franklin was enough to present a hostile-work-environment claim to a jury where the firefighter

had alleged sufficient facts in his EEOC charge to exhaust his administrative remedies).

The issue presented here, however, is whether the present four plaintiffs exhausted their

administrative remedies so that the district court could hear their hostile-work-environment claims.

See Strouss v. Mich. Dept. of Corrections, 250 F.3d 336, 342 (6th Cir. 2001) (noting that district

courts may not hear Title VII claims “unless the claimant explicitly files the claim in an EEOC

charge or the claim can be reasonably expected to grow out of the EEOC charge.”). In addition, we

must consider whether the plaintiffs complied with the one-year statute of limitations under the

THRA.

1. Title VII

In granting summary judgment in favor of the City, the district court concluded that the

EEOC charges filed by the plaintiffs did not include sufficient allegations to trigger an investigation

of the allegedly hostile work environment. The court itemized the plaintiffs’ various filings with the

EEOC, discussed above, and stated that “[t]he EEOC would not have been prompted to investigate

racially derogatory statements and epithets used against . . . African Americans in the Fire

Department because no such racial harassment was reported to have occurred.” For that reason, the

court concluded that the plaintiffs had not exhausted their administrative remedies with respect to

the hostile-work-environment claims.

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No. 08-5180
Jones v. City of Franklin

The plaintiffs argue that they provided sufficient notice to the EEOC to satisfy the

administrative-exhaustion requirement. But each of the plaintiffs’ written filings with the EEOC

focused on discrete acts of discrimination, such as the reduction of evaluation scores and the failure

of the City to award promotions to the plaintiffs. Only one racist comment was mentioned—the “rug

head” remark—and that comment was directly tied to the failure to promote one of the plaintiffs’

black colleagues. The plaintiffs claim to have verbally notified EEOC officials about other facts that

support their hostile-work-environment claim, but the record contains no evidence beyond bald,

nonspecific assertions that they did so.

No decision in this circuit has held that EEOC charges regarding discrete acts of

discrimination are alone sufficient to put the EEOC on notice of a hostile-work-environment claim.

Several unpublished decisions of this court have in fact held to the contrary. See, e.g., Brown v. City

of Cleveland, No. 07-3535, 2008 WL 4372950 at *8 (6th Cir. Sept. 23, 2008) (holding that an EEOC

investigation of a hostile work environment could not reasonably be expected to grow out of a charge

describing the denials of a promotion and a handicapped parking space); Scott v. Eastman Chem.

Co., 275 F. App’x 466, 475 (6th Cir. April 22, 2008) (“[The plaintiff] failed to exhaust her hostile

environment claim, as she offered no evidence that the EEOC actually investigated this claim or that

such claims could reasonably be expected to grow out of the charge.”).

Published decisions in at least two other circuits have reached similar conclusions. See

Chacko v. Patuxent Inst., 429 F.3d 505, 511 (4th Cir. 2005) (“The sharp differences between [the]

evidence [presented for trial] and the allegations in [the plaintiff’s] administrative charges compel

the conclusion that he failed to exhaust his administrative remedies.”); Cheek v. Western & Southern

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Jones v. City of Franklin

Life Ins. Co., 31 F.3d 497, 503 (7th Cir. 1994) (“When an EEOC charge alleges a particular theory

of discrimination, allegations of a different type of discrimination in a subsequent complaint are not

reasonably related to them unless the allegations in the complaint can be reasonably inferred from

the facts alleged in the charge.”). In sum, we agree with the district court’s conclusion that the

plaintiffs did not alert the EEOC to the offensive incidents they now report. The district court

therefore did not err in dismissing the plaintiffs’ hostile-work-environment claims brought under

Title VII.

2. THRA

The plaintiffs also brought their hostile-work-environment claims under the THRA.

Regarding the THRA, the district court concluded that the claims had not been filed within the one-

year limitations period imposed by the statute. See Tenn. Code Ann. § 4-21-311(d). On appeal, the

plaintiffs argue that, “[g]iven that [they] . . . filed suit within one (1) year of the last act in a hostile

environment, their claims are timely.” But they identify no specific facts probative of a hostile work

environment that occurred during the year that preceded the filing of their complaints. Instead, they

simply assert that, “[f]or purposes of computing the applicable period of time, it is important to note

that Plaintiffs’ claims for racial discrimination are under a ‘hostile working environment theory.’”

Because no allegations were made of specific incidents that occurred within the one-year period, we

conclude that the THRA claims are time-barred. See Brown v. City of Springhill, No. 01:06-0098,

2008 WL 974729 at *4 (M.D. Tenn. April 8, 2008) (holding that where the plaintiff’s allegations

concerning a hostile work environment consist of facts that occurred more than one year before the

filing of the complaint, such a claim is time-barred).

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Jones v. City of Franklin

C. Discrete acts of discrimination

We now turn to the plaintiffs’ claims that they suffered discrete acts of discrimination on the

basis of their race. These claims consist of various evaluation scores that were allegedly reduced by

white supervisors, numerous instances where the plaintiffs assert that they were not promoted

because of their race, and one incident in which Darryl Jones contends that he was inappropriately

disciplined for conduct that he says never occurred. The district court granted summary judgment

on each of these claims after thoroughly analyzing each allegation.

Claims based on several of the discrete acts alleged by the plaintiffs were declared by the

district court to be time-barred. Because the plaintiffs’ EEOC charges were filed more than 300 days

after each of these alleged acts, the claims are barred under Title VII. See Amini v. Oberlin College,

259 F.3d 493, 498 (6th Cir. 2001) (describing the “dual statute of limitations” under Title VII,

pursuant to which an EEOC charge must be filed within 300 days of the discriminatory act in

“deferral states,” or within 180 days in other states); Tartt v. City of Clarksville, 149 F. App’x 456,

460 (6th Cir. 2005) (Tennessee is a “deferral state,” meaning that the 300-day statute of limitations

applies). Similarly, the plaintiffs filed their complaints in the district court more than one year after

these alleged acts occurred, which bars the claims under the THRA. See Tenn. Code Ann. § 4-21-

311(d).

Regarding the remaining allegations of discrete acts of race discrimination, the district court

concluded that the plaintiffs had failed to establish a prima facie case. This was true either because

there was insufficient proof to establish that the complained-of conduct was an adverse employment

action or because the plaintiff who was denied a promotion could not show that he had equal or

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Jones v. City of Franklin

superior qualifications to the successful candidates. The plaintiffs present no detailed argument on

appeal to challenge these conclusions by the district court.

Addressing each of the alleged discrete acts individually would be duplicative of the district

court’s thorough analysis and would serve no jurisprudential purpose. Because we agree with that

analysis, we adopt the district court’s opinion on the plaintiffs’ discrete claims of discrimination as

our own.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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