Boyce A. Smith, A/K/A Woody Smith v. Leggett Wire Company

BOYCE F. MARTIN, JR., Chief Judge,

dissenting.

We have here the question of whether Smith provided sufficient evidence to supn port the jury’s finding that a racially hostile work environment was present at the plant and that race was a substantially motivating factor in .Adcom’s decision to *764terminate Smith. The majority holds that such evidence of racism, if examined under the Supreme Court’s “totality of the circumstances” test established in Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), was not sufficient to overcome Adcom’s post-verdict motion for judgement as a matter of law. In addition, the majority concludes that Smith’s statement that “he was going to kill a bunch of M — F—ers” constituted a legitimate nondiscriminatory reason for firing him, and that Smith failed to establish that this reason was pretextual. I must respectfully dissent.

I.

In Harris, the Supreme Court held that courts reviewing a hostile work environment claim should consider “all of 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 performance.” According to the Court, “the conduct in question must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” Id. at 21-22, 114 S.Ct. 367. Moreover, the plaintiff must also prove that his employer “tolerated or condoned the situation” or knew or should have known of the alleged conduct and did nothing to correct the situation. See Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir.1999). The Supreme Court in Harris acknowledged that determining whether a work environment is objectively hostile or abusive is not a “mathematically precise test.” Id.

In this case, the majority finds that the circulation of a racially discriminatory and lewd cartoon by a supervisor around the plant, the use of the “N” word and other racially demeaning terms by fellow employees and supervisors in the presence of Smith on more than one occasion, and disparate treatment concerning disciplinary measures imposed on other white employees at the plant for comparable offenses were not “severe or pervasive enough” to create a genuine issue of material fact as to whether an objectively hostile work environment existed at the plant. In reaching this conclusion, the majority fails to recognize this Court’s decision in Williams v. General Motors Corp., 187 F.3d 553 (6th Cir.1999). In Williams, we reversed the district court’s grant of summary judgment in favor of the defendant. The plaintiff alleged multiple acts creating a hostile work environment: foul language, sexual comments directed at plaintiff, at least one incident of physical contact, perceived inequities of treatment, and pranks or annoying conduct by co-workers. See id. at 559, 562. We held the district court erred in its dismissal of these incidents as “ ‘infrequent, not severe, not threatening or humiliating, but merely offensive.’ ” Id. at 563. We found the district court failed to consider the totality of the circumstances and thereby “robbed the incidents of their cumulative effect.” Id. at 561.

Similar to our holding in Williams, the majority’s opinion in this case robs the incidents of racism presented by Smith of their cumulative effect. All that Smith is required to show is that the conduct in question was severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and that he subjectively regarded that environment as abusive. This is a subjective, not an objective, test. Smith had worked at the plant for nearly twenty years. Over the years, he was exposed to a number of racially motivated acts and remarks. Some of the misconduct was directed at him, and some was not." The majority concludes that because each instance of racism was spread out over a twenty year period, no reasonable employee could subjectively view the atmosphere at the plant as racially hostile or abusive. I disagree on the basis of this Court’s reasoning in Ercegovich v. Goodyear Tire & Rubber *765Co., 154 F.3d 344, 354-55 (6th Cir.1998), whereby we said that evidence of a corporate state of mind or discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular “time-frame involved in the specific events that generated a claim of discriminatory treatment.” Discriminatory statements may reflect a cumulative managerial attitude among the defendant-employers’ supervisors that has influenced the decision-making process for a considerable period of time. See id.

In addition, the majority seems to be establishing that unless racially motivated misconduct is aimed at the plaintiff directly, simply seeing or overhearing it targeted at another is not sufficient to label the misconduct as “severe.” We have held that evidence of racist remarks or isolated incidences of racial conduct directed towards other African-American employees at the plant may be critical for -the jury’s assessment of whether a given employer was more likely than not to have acted from an unlawful motive. See Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir.1998). An employer may create a hostile environment for an employee even where it directs its discriminatory acts or practices at the protected group of which the plaintiff is a member, and not just at the plaintiff himself. See Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir.1999). Thus, the fact that Smith was not the targeted victim of a racial remark made by a supervisor does not mean that such a remark was not offensive or humiliating to Smith. The jury was entitled to factor such remarks into their decision.

I believe that the Supreme Court did not intend for us to interpret the “totality of the circumstances” test so narrowly by disaggregating the effect of each incident over time until its significance is lost or diluted. Instead, we should look more at the cumulative effect of these incidents over time in order to assess whether the atmosphere at the plant was racially hostile from plaintiffs subjective point of view. The district court found, that evidence of racial slurs and the offensive cartoon coupled with a lack of an effective disciplinary response to each incident over the years constituted a sufficient basis on which a reasonable jury could find that Smith was subjected to a racially hostile work environment. This finding was not unreasonable given the standard of review in this case, which states that a post-verdict motion for judgment as a matter of law should not be granted unless there is a “complete absence of proof on a material issue in the action.” See Morales v. American Honda Motor Co., 151 F.3d 500, 506 (6th Cir.1998). By reversing the lower court’s decision and granting Adcom its post-verdict motion for judgment as a matter of law, this Court fails to draw “all reasonable favorable inferences in favor of the nonmovant.” See id. Accordingly, I disagree with the majority’s decision to grant judgment to the defendant in this case on the basis that Smith did not provide sufficient evidence under the “totality of the circumstances.” I think the test is for a. jury to find that his termination was racially motivated. I would at least give him a new trial.

II.

The majority also holds that Smith’s remark in the presence of Bobby Guy that he “was going to kill a bunch of M — F— ers”, which he does not deny making, constituted a threat against the company and a legitimate nondiscriminatory reason for firing him. The majority concludes that because Smith failed to prove that his threat did not actually motivate his discharge or was pretext, he was not entitled to a decision in his favor on Adcom’s post-verdict motion for judgment as a matter of law.

Pretext is established by evidence showing that the legitimate reason claimed by the defendant for a particular action is not the true reason, but instead is a pretext for discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. *7662742, 125 L.Ed.2d 407 (1993). The plaintiff may demonstrate pretext by showing that (1) the defendant’s proffered reason had no basis in fact, (2) the proffered reason did not actually motivate the termination, or (3) the proffered reason was not sufficient to motivate the discharge. See Manzer v. Diamond Shamrock Chem., 29 F.3d 1078, 1084 (6th Cir.1994).

In this case, Smith does not dispute that he made the threatening remark under the first prong of the Manzer test or the fact that such a remark, under certain circumstances, would be a sufficient nondiscriminatory reason for firing someone under the third Manzer prong. However, under the third prong, there is a real dispute as to whether Smith’s threat was directed toward any employee of the company or whether anyone at the plant took Smith’s threat seriously. Moreover, there is no explanation as to why there was no direct law enforcement the day after the threat was made or why the employer waited until Monday to fire Smith. These are disputed issues, which in my opinion, are questions of fact for a jury, not the court, to decide.

Under the second prong of the Manzer test, Smith seeks to show that “the sheer weight of the circumstantial evidence of discrimination makes it more likely than not that the employer’s explanation is pretext.” Id at 1084. Smith produces evidence of racism and unequal treatment over a twenty year period to show that a racially hostile work environment existed at the plant. The district court allowed such evidence to go to a jury so that the jury could decide whether Smith was fired because of the threat or discriminatory reasons. The majority incorrectly dismisses this evidence on the grounds that none of the racial comments were made by the persons who terminated Smith and most of the comments were made long before Smith’s termination. Again, it is important to reiterate this Court’s language in Ercegovich that evidence of a corporate state of mind or discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or time-frame involved in the specific events that generated a claim of discriminatory treatment. Ercegovich, at 354-55. Thus, although discriminatory statements by a non-decision maker, standing alone, generally do not support an inference of discrimination, such statements are not categorically excluded. See id.

Finally, the majority writes that the evidence of racism Smith produced in this case should not have reached a jury because such evidence added an “emotional element” as a basis for the verdict. Being that this is a race discrimination case brought under Title VII of the Civil Rights Act and given that the crux of Smith’s case depends upon the production of evidence showing that he was fired for racial reasons, it is inconceivable to me that the majority would argue that evidence of racism at the plant should have been excluded for its alleged “emotional” impact on the jury. The district court allowed such evidence to go to the jury because it was both critical and relevant to Smith’s claims. Thus, in my view, the district court did not commit reversible error in admitting the evidence.

III.

In sum, I believe that the district court did not err when it allowed evidence of racial remarks and conduct by supervisors and employees toward Smith and other African-American employees at Adcom to go to the jury. Under the “totality of the circumstances” approach set forth in Harris, the frequency and severity of the discriminatory behavior among supervisors and employees were indicative of the racially hostile work environment at Adcom over an extended period of time. On one occasion, Smith was shown a lewd and racist cartoon by his supervisor that depicted African-Americans in a humiliating light. On other occasions, Smith was called a “nigger” by a fellow white employ*767ee — an employee who merely received a verbal reprimand for the remark by Smith’s supervisor — and was present while a racially offensive joke was being told by a supervisor. According to Smith and other fellow employees, the use of the “N” word was commonplace at the plant and Smith was often present when the term was used. Such remarks constitute more than “mere offensive utterances” and are indicative of the racially hostile atmosphere at Adcom. Moreover, Smith, in my opinion, satisfied his evidentiary burden for a reasonable jury to find that the employer’s explanation for firing him was pretext under the second and third prongs of the Manzer test.

Accordingly, I respectfully dissent.