[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 8, 2007
No. 05-16328 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00503-CV-VEH-NE
MARIO WASHINGTON,
Plaintiff-Appellant,
versus
THE KROGER COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 8, 2007)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
This is a civil rights action, brought under Title VII of the Civil Rights Act
of 1964 (Title VII), 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981, by a
former employee of The Kroger Company, Mario Washington, an African
American. Washington worked at Kroger Store 508 in Huntsville, Alabama, from
May 3, 2000 to August 21, 2002. In his complaint against Kroger, Washington
presents claims of racial discrimination, retaliation, and constructive discharge
based on the conduct of a co-worker, Randy Dean, in Store 508's meat department
between July and September 2001. He alleges that Dean harassed him by (1)
threatening to duct tape his wife and have sex with her while Dean made him
watch; (2) calling him “motherfucker;” (3) verbally abusing and belittling him by
calling him names such as “boy” and telling him he was “nothing;” (4) telling him
he would chop him up in the meat grinder; (5) holding a knife in the air, pointing it
at him; and (6) removing his, Washington’s, jacket from the coat rack and
threatening to take it. He alleges that on September 1, 2001, Dean hung a plastic
figurine, meant to represent him, with a rope. He alleges that despite his
complaints about Dean’s conduct, Kroger took no action; instead, it demoted him
to a lower paying position, moving him from the meat department to the front of
the store to bag groceries and collect carts. Kroger also cut his work hours.
Kroger asserts that it had no knowledge of any harassing conduct by Dean
prior to the September 1, 2001 incident because Washington never reported any of
2
the prior incidents to management. Washington alleges that he discussed them
with his supervisor in the meat department, Gary Hood, who is not considered by
Kroger to be part of the management team. On September 1, 2001, upon seeing
the figurine, Washington complained to the assistant manager at the store, Rick
Shotts, who immediately removed it. Shotts stated in his deposition testimony that
he had a meeting the same day with Dean, Washington, and a union steward during
which he told Dean that his actions were “unacceptable.” Washington reported no
further harassment by Dean after that meeting and twenty days later Dean left
Kroger for a medical leave and never returned.
Following discovery, Kroger moved the district court for summary judgment
on all of Washington’s claims. The court granted its motion. Washington now
appeals, contending that the presence of material issues precluded the court from
granting summary judgment. He submits that a jury could reasonably find that
discriminatory intimidation, ridicule, and insult pervaded his work environment at
Kroger. He points in particular to the hanging of the figurine – that it
communicated racial animus and fear – and the use of the term “boy,” as indicative
of racial animus. He says that Kroger offered no evidence to show that such
conduct did not occur. To the contrary, Kroger had actual knowledge of the
harassment as a result of his reports to Gary Hood, supervisor of the meat
3
department, and although Kroger asserted that Hood was not the proper person to
receive such complaints because he was not a member of management, the
company’s policy directed employees to report harassment to their immediate
supervisor. He submits that a jury could find that Hood was his supervisor, and
thus that Kroger had notice of his complaints prior to the September 1, 2001,
incident.
We review “a grant of summary judgment de novo, using the same legal
standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.
56(c)). The evidence, and all inferences drawn from the facts, must be viewed in
the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
(1986). To defeat a motion for summary judgment, however, the non-moving
party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Id. at 586, 106 S.Ct. at 1356. The non-moving party must
make a sufficient showing on each essential element of the case for which he has
4
the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
Title VII provides that it is an unlawful employment practice for an
employer “to fail or refuse to hire or to discharge any individual, or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Section 1981 prohibits
intentional racial discrimination in the making and enforcement of private
contracts, including employment contracts. 42 U.S.C. § 1981. Both Title VII and
§ 1981 have the same requirements of proof and present the same analytical
framework. Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998).
As a result, we apply cases from both bodies of law interchangeably.
“A hostile environment claim under Title VII is established upon proof that
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.” Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (internal quotations omitted).
To establish a hostile work environment claim, a plaintiff must show: (1) he
belongs to a protected group; (2) he has been subject to unwelcome harassment; (3)
the harassment has been based on a protected characteristic, such as (in the instant
5
case) race; (4) the harassment is sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abusive work
environment; and (5) the employer is responsible for such environment under a
theory of vicarious liability or a theory of direct liability. Id. The requirement that
the harassment be severe or pervasive contains an objective and subjective
component. Id. at 1276. “Thus, to be actionable, this behavior must result in both
an environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceives to be abusive.” Id. (internal
quotations omitted).
In evaluating the objective severity of the harassment, we consider, among
other things, (1) the frequency of the conduct; (2) the severity of the conduct; (3)
whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonable interferes with the employee’s
job performance. Miller, 277 F.3d at 1276. “Although we examine the statements
and conduct complained of collectively to determine whether they were
sufficiently pervasive or severe to constitute [racial] harassment, the statements
and conduct must be of a [racial] nature . . . before they are considered in
determining whether the severe or pervasive requirement is met.” Gupta v.
Florida Board of Regents, 212 F.3d 571, 583 (11th Cir. 2000). “Innocuous
6
statements or conduct, or boorish ones that do not relate to the [race] of the actor or
of the offended party (the plaintiff), are not counted.” Id. Additionally, teasing,
offhand comments, and isolated incidents (unless extreme) will not amount to
discriminatory changes in the terms and conditions of employment. Mendoza v.
Borders, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc). The word “boy”
standing alone may be evidence of racial animus. Ash v. Tyson Foods, Inc., 546
U.S. 454, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006).
We are satisfied that the district court committed no error in granting Kroger
summary judgment on Washington’s hostile environment claim. The court
appropriately considered only the September 1, 2001 incident and Dean’s “boy”
comments because the other conduct Washington complained of was devoid of any
racial content. While the hanging of the figurine may have been severe conduct
that was physically threatening, Kroger management took prompt remedial action
by both removing the offending object and censuring Dean. Washington also
alleges that Dean called him “boy” on multiple occasions. The parties disagree as
to Kroger’s knowledge of this behavior by Dean; however, Washington does not
allege that anyone else at Kroger used racially derogatory speech towards him.
Furthermore the record reflects that Washington only worked with Dean for two to
three months, in the summer of 2001, of the approximately two years that he was
7
employed at Kroger. These comments, though demeaning, were not severe or
extreme. Nor were they so pervasive that they altered Washington’s conditions of
employment because Dean was one employee, out of the presumably dozens that
worked at the store, who made the comments over a relatively short period of time.
Next, regarding his claim for retaliation, Washington asserts that the district
court erred in concluding that he suffered no adverse employment action and,
moreover, failed to prove causation. He contends that temporal proximity alone is
not dispositive of the issue of causation in this case because the decision makers
had prior knowledge of his complaints and his disparate treatment. He asserts that
Kroger’s reasons for transferring him to a different department were pretextual as
evidenced by the fact that a clerk hired after him remained in the meat department.
We apply the analytical framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d. 668 (1973), and Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981), where, as here, a Title VII plaintiff uses circumstantial evidence to prove
his case. Durley v. APAC, Inc., 236 F.3d 651, 655 (11th Cir. 2000). Under the
McDonnell Douglas framework, when circumstantial evidence is used, a plaintiff
must first establish a prima facie case of discrimination. McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. at 1824. The burden then shifts to the employer to state a
8
legitimate, nondiscriminatory reason for the employment decision. Id. at 802-803,
S.Ct. at 1824-1825. If the employer successfully does so, the burden shifts back to
the plaintiff to show that the reason offered by the employer was pretextual. Id. at
804, S.Ct. at 1825.
Title VII makes it unlawful for an employee to discriminate against an
employee in retaliation for opposing a practice made an unlawful employment
practice under Title VII. 42 U.S.C. § 2000e-3(a). “To recover for retaliation, the
plaintiff need not prove the underlying claim of discrimination which led to [his]
protest, so long as [he] had a reasonable good faith belief that the discrimination
existed.” Gupta, 212 F.3d at 586. To establish a prima facie case of retaliation, a
plaintiff must prove that (1) he participated in a protected activity; (2) he suffered
an adverse employment action; and (3) there was a causal connection between the
participation in the protected activity and the adverse employment decision. Id. at
587. While temporal proximity between the protected activity and the adverse
employment action may be sufficient to create an inference of causation, “gaps of
time, standing alone, do not preclude a plaintiff from producing enough evidence
for a reasonable jury to conclude that protected speech was a substantial factor in
the [adverse employment decision].” See Stanley v. City of Dalton, Ga., 219 F.3d
1280, 1291 (11th Cir. 2000). “We are not in the business of adjudging whether
9
employment decisions are prudent and fair.” Rojas v. Florida, 285 F.3d 1339,
1342 (11th Cir. 2002). “Instead, our sole concern is whether unlawful
discriminatory animus motivates a challenged employment decision.” Id.
We find no error in the court’s summary disposition of Washington’s
retaliation claim because Washington failed to establish causation or create a
genuine issue of fact as to whether Kroger’s proffered reasons for his transfer were
pretextual. Although the court concluded that he suffered an adverse employment
action, a causation inference could not reasonably be drawn because (1) five
months passed between his complaints and his transfer, (2) Kroger did not treat
him differently during that time period, and (3) he did not experience any further
harassment.
Even if Washington established causation, summary judgment was still
appropriate because he failed to adduce sufficient evidence that Kroger’s proffered
reasons for his transfer were pretextual. The record reflects that Kroger transferred
him because of the combined effect of its reduction in hours made available to
workers, which occurred because of a company reorganization, and his limited
availability due to his school schedule. Additionally, although Kroger allowed a
less-senior employee to continue working in the meat department, there was no
indication that the employee had limitations on his availability similar to
10
Washington’s.
Finally, Washington asserts that Kroger’s actions of taking an employee
such as himself, who had won awards for customer service and hoped to pursue a
management career, and putting him in a job where he had to bag groceries and
collect shopping carts satisfied the criteria for a constructive discharge claim. He
submits that resignation resulted from Kroger’s failure to answer his complaints of
racial harassment and its act of transferring him to a less prestigious position.
To show constructive discharge, Washington had to demonstrate that his
working conditions were so intolerable that a reasonable person in his position
would be compelled to resign. Kilgore v. Thompson & Brock Management, Inc.,
93 F.3d 752, 754 (11th Cir. 1997). Kroger was entitled to summary judgment on
the constructive discharge claim because Washington failed to create a material
issue of fact that his working conditions were so intolerable that a reasonable
person would have been compelled to resign. The harassment he experienced only
occurred between July and September 2001. Kroger addressed his complaints
following the September 2001 incident, and he continued to work with Dean, the
sole person who allegedly harassed him, for only 20 more days. Finally, Kroger
had a legitimate reason for transferring him and, in any event, his job title as store
clerk remained the same.
11
We find no basis for disturbing the district court’s judgment. It is
accordingly
AFFIRMED.
12