Albert ALLEN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee

BATCHELDER, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority that Allen’s retaliation, discrimination, and co-employee harassment claims cannot withstand sum*414mary judgment. I also agree with its decision to extend the holdings of Burlington Indus., Inc. v. Ellerth, — U.S. -, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, — U.S. -, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), to claims of racially hostile work environments created by supervisors. I do so because I believe, based on Supreme Court precedent, that the Court would do likewise if squarely faced with the question.1 I respectfully dissent, however, from the reversal of the grant of summary judgment to MDOC on Allen’s claims of racial harassment.

In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), relying heavily on the reasoning articulated in racially hostile work environment precedent, the Supreme Court extended Title VII’s protections to claims of a hostile work environment resulting from sexual harassment. See id. at 65-67, 106 S.Ct. 2399. The Court in Faragher referenced this portion of Meritor Savings Bank as part of its analysis, see — U.S. at -, 118 S.Ct. at 2283, and then stated:

In thus holding that environmental claims are covered by the statute, we drew upon earlier eases recognizing liability for discriminatory harassment based on race, just as we have also followed the lead of such cases in attempting to define the severity of the offensive conditions necessary to constitute actionable sex discrimination under the statute.

Id.(citations omitted). In Faragher the Court also noted, “Although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.” Id.

Also, the Court’s interpretation of agency principles in Ellerth would appear to be similarly applicable in the context of racial harassment. The Court noted two instances in which agency principles would warrant holding the employer vicariously liable for the actions of a supervisor: (1) where the employer’s own negligence is a cause of the harassment, see Ellerth, — U.S. at -, 118 S.Ct. at 2267; and (2) where the supervisor is peculiarly aided in his harassment by his agency relationship with the employer, such as when the supervisor takes a tangible employment action against a subordinate, see id. at -, 118 S.Ct. at 2268-69. Such theories of liability do not rest on any principle that differentiates race-based and sex-based hostile work environment claims, and thus there is nothing from this reasoning to justify drawing such a distinction in the ease sub judice.

Finally, from a pragmatic standpoint, the Supreme Court in Ellerth and Faragher made it more difficult for employers to escape liability, or at least to receive an award of summary judgment, for supervisor sexual harassment. To find the previous standard still applicable in cases involving supervisor racial harassment would result in sexual harassment plaintiffs’ having an easier hurdle to overcome than racial harassment plaintiffs, a result I find highly unlikely given the reasoning and statements made by the Court in Meritor Savings Bank and Faragher. See also Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir.1988) (Norris, J., concurring in part and dissenting in part) (“[T]he majority would leave this circuit with different standards for measuring Title VII claims based on hostile work environments, depending upon whether they are predicated on race discrimination or sex discrimination. It is because I believe that result is at odds with the Supreme Court’s opinion in Vinson, that I dissent.”). As Justice Thomas observed, “the primary goal of the Civil Rights Act of 1964 was to eradicate race discrimina*415tion and ... the statute’s ban on sex discrimination was added as an eleventh-hour amendment in an effort to kill the bill.” Ellerth, — U.S. at - n. 1, 118 S.Ct. at 2271 n. 1 (Thomas, J., dissenting).

While I agree with the majority that the change brought about by Ellerth and Faragher would likely extend to claims of racial harassment of an employee by a supervisor,2 I do not believe that this warrants reversal of the summary judgment and remand of Allen’s supervisor racial harassment claim in this case, and so I, accordingly, dissent from that aspect of the majority’s decision.

Allen sufficiently alleged only two instances of supervisor racial harassment: (1) on October 9, 1990, Assistant Resident Unit Manager (“ARUM”) Hilton allegedly told Allen that “he was lazy like the rest of his people and that is why they are all in prison”; and (2) over a year later, on October 27, 1991, Allen, while leaving work, engaged in a work-related argument with Sergeant Mad-ery in which Madery allegedly stated, “I’m writing your black ass up,” “Boy, I told you to get your black ass back into the block and finish your paper work,” and “Allen you can’t make sergeant because you won’t play team ball,” and as a continuation of this incident Madery allegedly told Allen that he was being transferred to a place where he could be watched more closely because “[njiggers can’t be trusted.” In fulfillment of this latter statement, Sergeant Madery transferred Allen from the fourth gallery to the second gallery, which provided Madery a better view of Allen. See J.A. at 43 (Allen Dep. at 61-62).

Both of these instances of harassment by Allen’s supervisors are repugnant. However, these two isolated instances, separated by over a year’s time and involving different people, do not satisfy the requirement of “severe or pervasive conduct,” Ellerth, — U.S. at -, 118 S.Ct. at 2265 (emphasis added), that creates a hostile work environment. As the Supreme Court has long recognized, occasional utterances of racial epithets, although they engender offensive feelings in an employee, would not sufficiently alter the terms and conditions of employment to violate Title VII. See Faragher, — U.S. at -, 118 S.Ct. at 2283 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972)); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (same); Meritor Savings Bank, 477 U.S. at 67, 106 S.Ct. 2399 (same); see also Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1254 (6th Cir.1985) (“Courts addressing claims of hostile working environment have emphasized that incidents of racial slurs must be more than sporadic .... ”), cert. denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986); Faragher, — U.S. at -, 118 S.Ct. at 2283 (approving Second Circuit cases which stated that “incidents of environmental sexual harassment ‘must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive’ ” (citations omitted)); id. (“We directed courts to determine whether an environment is sufficiently hostile or abusive by ‘looking at all the circumstances,’ 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.’ ” (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367)). But see Davis, 858 F.2d at 349 (“Drawing a distinction between ‘isolated incidents’ and a ‘pattern of harassment’ does not advance the analysis; the plaintiff need not prove that the instances of alleged harassment were related in either time or type.”). Ac*416cordingly, I would affirm the district court’s grant of summary judgment.

The majority cites other allegations which it believes, when combined with those discussed above, sufficiently show severe or pervasive supervisor harassment warranting reversal of the district court. I cannot agree, however, that these other allegations support the majority’s position.

First, the majority notes that “Bailey, another of Allen’s supervisors, allegedly was informed by his supervisors not to allow Allen to serve as acting-sergeant when a sergeant was not present on the shift, although less experienced white officers were permitted to do so.” Maj. Op. at 411.3 Allen’s deposition testimony concerning this allegation does not indicate that his supervisor was specifically told not to allow Allen to serve as acting-sergeant. Rather, it states that ARUM Hilton wrote a list of names in the log book, per the instruction of RUM Bailey, indicating who should be chosen to serve as acting-sergeant when one was needed, and that the names listed were those of white officers. There could be any number of non-race based reasons why Allen was not also listed, such as poor job performance. In fact, Allen admitted that before Hilton’s notation in the log book, he had served as acting-sergeant, J.A. at 40 (Allen Dep. at 47), thus strongly indicating that some factor other than his race accounted for his not being included this time. Finally, while this allegation might amount to the beginning of a prima facie ease for disparate treatment, it hardly indicates severe or pervasive racial harassment.

Second, the majority states, “Allen also points to the fact that his supervisors never investigated or disciplined the white officer caught removing the lock from Allen’s locker with bolt cutters.” Maj. Op. at 411. This statement, however, is not accurate. No white officer was “caught” removing the lock from Allen’s locker; rather, Allen suspected a particular white officer because some inmates, whom Allen could not name, allegedly told him that the officer had been the perpetrator, and because this same officer had checked out bolt cutters from the arsenal. J.A. at 315 (Allen Dep. at 66). Also, Allen never alleged that the officer was not disciplined, neither did he allege that his supervisor never investigated the incident. Rather Allen only alleged that an investigation was never completed. See J.A. at 10 (Complaint Count V, ¶ 6.D). Allen stated that he filed a complaint with RUM Bailey and specifically stated that “RUM Bailey investigated it.” Id. Allen was then asked, “When you say no investigation was ever completed in paragraph 6(D) [of your complaint], what does that mean, if RUM Bailey conducted an investigation?” J.A. at 316 (Allen Dep. at 67). Allen replied, “Well, he never investigated if [the white officer] signed out on bolt cutters from the arsenal or not.” Id. A supervisor’s failure to turn over every leaf when investigating a claim can hardly be said to create or contribute to an overwhelming atmosphere of severe or pervasive racial harassment created by the supervisor.

Third, the majority states,

In addition, Allen claims that his supervisors treated him unfairly based upon his race on a continual, ongoing basis. In support of this statement, Allen claims that he, unlike white officers, was constantly observed and followed by Madery, Bailey and Hilton. Allen also claims that these supervisors monitored his work more closely than that of white officers. This allegation is supported by Madery’s comment that Allen had to be watched more closely because “[n]iggers can’t be trusted.”

Maj. Op. at 411. Allen’s claims of being “constantly observed and followed” by his supervisors while white officers were not, and that his work was monitored “more closely” than that of white officers, are unsupported by reference to any specific dates, instances, or events of such close observance or monitor*417ing.4 Such vague allegations of harassment are insufficient to survive summery judgment. See Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir.1994) (“Furthermore, Roberts’ testimony that Lt. Campbell generally reprimanded Carter publicly but spoke with Carter’s white co-workers in private is not substantiated by accounts of specific dates, times or circumstances. Such general allegations do not suffice to establish an actionable claim of harassment.”); Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1381 (7th Cir.1986) (“The complaint alleges that TWA ‘subjected Plaintiff to more tenuous circumstances of employment, unlike white employees, because he is black.’ ... [W]e hold that such vague allegations were insufficient to raise a question of material fact as to the existence of actionable harassment and summary judgment was proper on these claims.”), cert. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987). The majority says that Sergeant Madery’s statement (that Allen was “being transferred to a place where [Madery] could keep his eye on [Allen] because: ‘Niggers can’t be trusted,’ ” J.A. at 4 (Complaint at Count I, ¶ 3.D.)) supports Allen’s claim that his work was monitored differently from that of white officers. It does. However, it is the only evidence in support of that claim, and, reprehensible as it is, Madery’s comment and the associated transfer from the fourth to the second gallery is still a lone, isolated incident.

Fourth, the majority states, “Allen’s other claims of ongoing harassment include the receipt of counseling memoranda from his supervisors when Allen was several minutes late returning from lunch which resulted, Allen claims, from falsifications of the log book.” Maj. Op. at 411. While Allen does make this claim, he fails to state any facts from which one could infer that such actions were racially motivated. The simple fact that he is black and bad things happen to him does not, without more, sufficiently state a claim for racial harassment.

Fifth, the majority points to the threatening, racially inflammatory note Allen found among his possessions. In its attempt to link this offensive note to the supervisors, the majority writes,

Although this event could not be directly attributed to Allen’s supervisors, there is at least an inference that the supervisors condoned the action as the perpetrator(s) were never found. Moreover, the supervisors themselves could not be ruled out as the perpetrators, given their racially motivated insults directed at Allen.

Maj. Op. at 411. These two sentences, in my view, are the most disturbing in the majority’s opinion. First, the fact that the perpetrators were never found does not create “an inference that the supervisors condoned the action,” as it is undisputed that MDOC conducted a thorough investigation of this incident that included analyzing handwriting samples and interviewing employees. In fact, Allen’s only complaint with the in*418vestigation was that he thought MDOC “should have fingerprinted the threatening note,” Maj. Op. at 408; see also J.A. at 42 (Allen Dep. at 54-55), not that the investigation itself was corrupt or pretextual. Second, and more importantly, while the majority states that “the supervisors themselves could not be ruled out as the perpetrators,” there is absolutely no evidence linking the note to any of Allen’s supervisors,5 and Allen specifically testified that he had no idea who wrote the note. J.A. at 42 (Allen Dep. at 54). This is an important point, because under the new standards articulated by El-lerth and Faragher, harassment claims premised upon supervisor conduct are viewed under a different standard from those premised upon co-employee conduct. Under the majority’s reasoning, when determining whether the plaintiff has made a sufficient showing of pervasively hostile supervisor harassment sufficient to withstand summary judgment, incidents of racial harassment for which the perpetrator is unknown are ascribed to the supervisor, so long as the supervisor has made a racially derogatory remark at some time in the past. Thus, under the majority’s opinion employers may be held vicariously liable for incidents which may or may not have been attributable to supervisory employees, a result that I find unsupported by either Faragher or Ellerth. The underlying support for Ellerth ’s holding is agency law, see Ellerth, — U.S. at -, 118 S.Ct. at 2265-66, in which “ ‘[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment,’ ” id. at -, 118 S.Ct. at 2266 (quoting Restatement (Seoond) of Agency § 219(1) (1957)). When establishing the vicarious liability of the master, it has always been the plaintiffs burden first to establish that the servant’s actions were the cause of his injury before the issue of employer liability is ever reached. Accordingly, it was Allen’s burden to show that the author of the racially harassing note was a supervisor before he could succeed in having that incident reviewed under Ellerth. This he has not done, and thus the majority errs in recognizing the note as cognizable when analyzing whether Allen has established a pervasively hostile work environment premised upon the actions of supervisory employees.

In sum, besides the two instances I have noted above, I cannot find allegations of supervisor harassment sufficient to create a question of fact over whether Allen’s supervisors’ actions were severe or pervasive enough to create a hostile work environment. “The standards for judging hostility” under Title VII are supposed to be “sufficiently demanding [so as] to insure that Title VII does not become a ‘general civility code.’ ” Faragher, — U.S. at -, 118 S.Ct. at 2283 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998)). When “[p]roperly applied, they . 1. filter out complaints attacking ‘the ordinary tribulations of the workplace, such as ... the sporadic use of abusive language.’ ” Id. (quoting B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992)). Two instances of racially offensive and abusive language, uttered by different people and separated by over a year do not, without more, turn every other incident of perceived disparate treatment or maltreatment that occurred over the course of six years into instances of racial harassment.

. While I agree that the decisions of our sister circuits on this question are persuasive authority, I write separately on this issue because I believe it important to provide at least a brief independent rationale for following the others' leads. I also disagree with the notion that because we have, prz-Ellerth, found the elements under sex-based and race-based hostile work environment claims to be the same, those precedents, therefore, counsel us to continue to find the elements the same post-EUerth. Simply because the analy-ses were the same does not, a fortiori, mean that, when the Supreme Court modifies the analysis in one context, the other must or should be similarly modified.

. I must state my agreement with Justice Thomas that “[a]n employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor’s conduct to occur," Ellerth, - U.S. at -, 118 S.Ct. at 2271; that the change brought about by the Court in Ellerth and Faragher is "a whole-cloth creation that draws no support from the legal principles on which the Court claims it is based,” id. at -, 118 S.Ct. at 2273; and that the new standard, as articulated by the Court in Ellerth, will result in "a continuing reign of confusion in this important area of the law,” id. However, the new standard articulated by Ellerth and Far-agher is now the law. Its propriety, although fair game for discussion and debate among academicians and the Justices themselves, is immaterial to our analysis.

. Allen’s deposition indicates that it was actually Resident Unit Manager ("RUM”) Bailey who allegedly instructed Assistant Resident Unit Manager Hilton to place one of the three white officers in the role of acting sergeant when there was no sergeant on duty. See J.A. at 40 (Allen Dep. at 46).

. In support Allen claims that ARUM Hilton

would come up on my gallery, and he would just stand there and he would follow me around. If I was talking to a prisoner he was standing there with his watch, and he would time the length of time that I talked to a prisoner, or either a prisoner was cleaning the gallery and a gate .was open, he was standing there and timed how long the gate should be open.

J.A. at 42 (Allen Dep. at 55-56). He could not give specific dates or recall the frequency of these visits, however. J.A. at 43 (Allen Dep. at 60). He also claims that RUM Bailey "was always coming up on the gallery and checking] my work, checking] my cells.” J.A. at 43 (Allen Dep. at 59). However, Allen further stated that he did not keep track of the frequency of these "visits”- and that he never discussed the extent to which Bailey checked the work of any of the other officers.

More importantly, he points to nothing that would indicate that these instances of “closer monitoring” were motivated by racial animus, other than his feeling that Hilton and Bailey did not do as much monitoring of the white officers. He fails to point out, however, evidence indicating that this increased monitoring was the result of his poor work performance, as indicated in a counseling memorandum written on January 8, 1990, in which he was reprimanded for leaving unsecured the gate and brake box for which he was responsible, a major security violation. The memo stated, "This counseling memorandum is to put you on notice that this type of behavior is dangerous, violates policy and procedure, and will not be tolerated. Your areas of control will be closely monitored in the future by the management team in this block." J.A. at 82 (1/8/90 Counseling Memo (emphasis added)).

. In fact, the handwriting samples were examined by a document examiner from the Office of Inspector General, see J.A. at 65 (Document Examiner’s Report), who concluded, "It is my opinion that the questioned printing appearing on the derogatory note is not identified with the known writing/printing of the following individuals: C/O Albert Allen C/O Hemenway Sgt. Michael Madery C/O J. Jones John T. Upshaw C/O Houghton RUM T. Bailey C/O Lamb”. J.A. at 65 (Doc. Examiners Rep. (emphasis added)).