United States Court of Appeals,
Eleventh Circuit.
No. 95-8425.
Bryan LITTLE, Plaintiff-Appellant,
v.
UNITED TECHNOLOGIES, CARRIER TRANSICOLD DIVISION, Defendant,
Carrier Corporation, Defendant-Appellee.
Jan. 22, 1997.
Appeal from the United States District Court for the Middle
District of Georgia. (No. CA93-41-14th(DF)), Duross Fitzpatrick,
Chief Judge.
Before BIRCH, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
SCHWARZER*, Senior District Judge.
BIRCH, Circuit Judge:
This appeal raises an issue of first impression in this
circuit regarding a provision of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-3(a), making it unlawful for an employer
to retaliate against an employee for opposing a violation of Title
VII: Is an employer's alleged retaliation against an employee for
opposing an offensive or derogatory remark uttered by a co-worker
actionable under Title VII? The district court granted summary
judgment in favor of the employer on all claims. For the reasons
that follow, we affirm.
I. BACKGROUND
Plaintiff-appellant, Bryan Little, is a white male who has
worked for the defendant-appellee, Carrier Corporation ("Carrier")
since 1987. In August, 1991, Little was assigned to work in
*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
Carrier's Test Department. Willie Wilmot, also a white employee,
worked in the Quality Assurance Department. According to Little,
several weeks after he began working in the Test Department, Wilmot
approached him and stated: "Nobody runs this team but a bunch of
niggers and I'm going to get rid of them." R1-28, Exh. F.
Although Little apparently informed several co-workers about
Wilmot's racially derogatory comment, he did not report the remark
to either a supervisor or manager until approximately eight months
later. In May, 1992, Little communicated the racial slur at a team
meeting at which Wilmot was present. According to Little, the
purpose of the meeting was to discuss Wilmot's continued membership
on the team and, from Little's perspective, provided the
appropriate forum to convey to other team members the statement
Wilmot had made.
Following the meeting, Little's supervisor, Don Pursley, gave
Little a "Record of Conversation" containing, in part, the
following statement:
Repeating any racial slur is derogatory and offensive to some
people. The use of such remarks whether said by another or
not should not be used because it can cause friction between
some members within a team. This may result in the team not
being able to function in a team environment.
R1-28, Exh. D. Wilmot also received a similar document informing
him that regardless of whether he had made the comment that gave
rise to Little's accusation, Carrier would not tolerate racially
offensive speech. Little contends that he was harassed continually
from this point forward in retaliation for having complained about
Wilmot's conduct. Specifically, he alleges that he was under
constant surveillance from his supervisors, subjected to closer
scrutiny and criticism, and occasionally given menial tasks to
perform.1
In his amended complaint, Little alleged that Carrier had
discriminated against him because of his opposition to the
tolerance of racial slurs at the company, in violation of Title
VII, the Civil Rights Act of 1991, and 42 U.S.C. § 1981. The
district court granted summary judgment in favor of Carrier after
finding that Little had failed to establish a prima facie case of
discrimination. In reaching this conclusion, the court determined
that (1) one isolated comment does not constitute an unlawful
employment practice, and (2) Little had not been subjected to an
adverse employment action within the meaning of Title VII.
II. DISCUSSION
We review de novo the district court's order granting summary
judgment. Jameson v. Arrow, 75 F.3d 1528, 1531 (11th Cir.1996).
Summary judgment is appropriate where there is no genuine issue of
material fact. Fed.R.Civ.P. 56(c). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). On a motion for summary
judgment, we must review the record, and all its inferences, in the
light most favorable to the nonmoving party. United States v.
1
In his complaint, Little also stated that he attended and
spoke at a picnic in August, 1992, held to discuss the treatment
of black employees at Carrier. Little alleged that Carrier
further retaliated against him for his participation in that
meeting by denying him a promotion. The denial of the promotion,
however, is not argued as part of this appeal.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176
(1962) (per curiam).
A. Title VII
Under Title VII, it is an unlawful employment practice for an
employer to discriminate against an employee "because he has
opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this subchapter." 42 U.S.C. § 2000e-3(a). As with
a discriminatory treatment claim, a plaintiff alleging a
retaliation claim under Title VII must begin by establishing a
prima facie case; the plaintiff must show that (1) she engaged in
statutorily protected activity, (2) an adverse employment action
occurred, and (3) the adverse action was causally related to the
plaintiff's protected activities. Coutu v. Martin County Bd. of
County Com'rs, 47 F.3d 1068, 1074 (11th Cir.1995) (per curiam).
Having reviewed the record, we conclude that Little has failed
to establish the first element of his prima facie case alleging
retaliatory discrimination; that is, he has failed to show that he
engaged in a statutorily protected activity. We note, at the
outset, that only the Ninth Circuit has addressed the question at
issue before us: Whether the expression of opposition to a single
comment by one co-worker to another can constitute opposition to an
unlawful employment practice as a matter of law. In Silver v. KCA,
Inc., 586 F.2d 138 (9th Cir.1978), the plaintiff objected to a
racially derogatory remark uttered by a co-worker, demanded and
received an apology from the same co-worker, and subsequently was
fired. In finding that the plaintiff had failed to establish a
prima facie case of retaliatory discharge under Title VII, the
Ninth Circuit resolved that the opposition of an employee to a
co-worker's own individual act of discrimination "does not fall
within the protection of [Title VII]." Id. at 142.
We agree with the Ninth Circuit's disposition of Silver, a
case factually similar to the one at hand. As stated by that
court,
[b]y the terms of the statute ... not every act by an employee
in opposition to racial discrimination is protected. The
opposition must be directed at an unlawful employment practice
of an employer, not an act of discrimination by a private
individual.
Id. at 141. We previously have held that in order to hold an
employer responsible under Title VII for a hostile environment
created by a supervisor or co-worker, a plaintiff must show that
the employer knew or should have known of the harassment in
question and failed to take prompt remedial action. Splunge v.
Shoney's, Inc., 97 F.3d 488, 490 (11th Cir.1996). See also Silver,
586 F.2d at 142 ("Even a continuing course of racial harassment by
a co-employee cannot be imputed to the employer unless the latter
both knows of it and fails to take remedial action.") Here,
Little's opposition to the racial remark uttered by Wilmot, a
co-worker, is protected conduct within the parameters of the
statute only if Wilmot's conduct can be attributed to Carrier.
Based on the facts of this case, we conclude that Wilmot's racially
offensive comment alone is not attributable to Carrier and,
accordingly, Little's opposition to the remark did not constitute
opposition to an unlawful employment practice.
Little argues that even if Wilmot's comment, either in fact
or in law, does not constitute an unlawful employment practice, he
nonetheless can make out a prima facie case by showing that he
reasonably believed that he was opposing a violation of Title VII
by his employer. We previously have recognized that a plaintiff
can establish a prima facie case of retaliation under the
opposition clause of Title VII if he shows that he had a good
faith, reasonable belief that the employer was engaged in unlawful
employment practices. See Rollins v. State of Fla. Dept. of Law
Enforcement, 868 F.2d 397, 400 (11th Cir.1989). It is critical to
emphasize that a plaintiff's burden under this standard has both a
subjective and an objective component. A plaintiff must not only
show that he subjectively (that is, in good faith) believed that
his employer was engaged in unlawful employment practices, but also
that his belief was objectively reasonable in light of the facts
and record presented. It thus is not enough for a plaintiff to
allege that his belief in this regard was honest and bona fide;
the allegations and record must also indicate that the belief,
though perhaps mistaken, was objectively reasonable.
A plaintiff, therefore, need not prove the underlying
discriminatory conduct that he opposed was actually unlawful in
order to establish a prima facie case and overcome a motion for
summary judgment; such a requirement "[w]ould not only chill the
legitimate assertion of employee rights under Title VII but would
tend to force employees to file formal charges rather than seek
conciliation of informal adjustment of grievances." Sias v. City
Demonstration Agency, 588 F.2d 692, 695 (9th Cir.1978). See also
Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140
(5th Cir. Unit A Sept. 1981), cert. denied, 455 U.S. 1000, 102
S.Ct. 1630, 71 L.Ed.2d 866 (1982) ("To effectuate the policies of
Title VII and to avoid the chilling effect that would otherwise
arise, we are compelled to conclude that a plaintiff can establish
a prima facie case of retaliatory discharge under the opposition
clause of [Title VII] if he shows that he had a reasonable belief
that the employer was engaged in unlawful employment practices.")2
In light of the facts of this case, however, we find Little's
assertion that he reasonably believed Wilmot's comment to be a
violation of Title VII by Carrier to be implausible at best. As
noted above, Little never voiced his concern over Wilmot to a
supervisor or management-level employee at Carrier and reported the
comment for the first time in a team meeting held approximately
eight months after the remark was made. The record indicates that
no rational jury could find Little's belief that his opposition to
Wilmot's racist remark constituted opposition to an unlawful
employment practice to be objectively reasonable. As a result,
although we acknowledge that a plaintiff conceivably could prevail
on his retaliation claim notwithstanding the fact that the practice
he opposed was not unlawful under Title VII, such a circumstance is
not presented in this case. We conclude not only that Little's
opposition to Wilmot's racially derogatory comment did not
constitute opposition to an unlawful employment practice as a
2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc), this circuit adopted as binding precedent
all decisions of the former Fifth Circuit rendered prior to
October 1, 1981).
matter of law, but also that, based on the particularized facts of
this case, Little did not have an objectively reasonable belief
that he was opposing an unlawful employment practice.
B. 42 U.S.C. § 1981
In the complaint, Little alleged that the same facts that
formed the basis of his Title VII retaliation claim also gave rise
to a violation of 42 U.S.C. § 1981. That statutory provision
states, in pertinent part:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains,
penalties, taxes, liens, and exactions of every kind, and to
no other.
42 U.S.C. § 1981(a). In its order, the district court did not
conduct a separate analysis of Little's Title VII and section 1981
claims and, in granting summary judgment in favor of Carrier,
applied the same principles regarding the requisite elements of a
prima facie case to both causes of action. Similarly, Little makes
no legal distinction on appeal between his Title VII and section
1981 claims. It is worth noting, however, that Title VII's
prohibition against retaliation for opposition to conduct
reasonably believed to be violative of Title VII is not identical
to the kind of discrimination proscribed by section 1981. It is
well-established that section 1981 is concerned with racial
discrimination in the making and enforcement of contracts. Johnson
v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716,
1720, 44 L.Ed.2d 295 (1975); Jones v. Alfred H. Mayer Co., 392
U.S. 409, 436, 88 S.Ct. 2186, 2201, 20 L.Ed.2d 1189 (1968) ("In
light of the concerns that led Congress to adopt it and the
contents of the debates that preceded its passage, it is clear that
the Act was designed to do just what its terms suggest: to
prohibit all racial discrimination, whether or not under color of
law....").
Here, there is no evidence in the record—and Little does not
suggest or allege—that the discrimination or retaliation allegedly
levelled against him was due to his race; that is, Little does not
contend that Carrier discriminated against him because he was
white. Both the facts and legal framework of Little's action are
grounded solely in the opposition clause of Title VII and are
unrelated to the concerns explicitly set forth in the language of
section 1981. Although we decide this issue based on reasoning not
expressed by the district court, see Church of Scientology v.
Cazares, 638 F.2d 1272, 1281 (5th Cir. Mar. 1981), we are convinced
that the court properly determined that Little failed to establish
a prima facie case with respect to his section 1981 claim.
III. CONCLUSION
In this appeal, Little contends that the district court erred
in finding that he failed to establish a prima facie case of
retaliatory conduct under Title VII and 42 U.S.C. § 1981 and
granting summary judgment in favor of Carrier. We conclude that a
racially derogatory remark by a co-worker, without more, does not
constitute an unlawful employment practice under the opposition
clause of Title VII, 42 U.S.C. § 2000e-3(a), and opposition to such
a remark, consequently, is not statutorily protected conduct. We
further resolve that, based on the record in this case, Little did
not have an objectively reasonable belief that he opposed an
unlawful employment practice and, therefore, failed to set forth a
prima facie case under Title VII. Finally, with respect to
Little's cause of action under 42 U.S.C. § 1981, we conclude that
he failed to allege that the discrimination at issue was related to
his race. Accordingly, we AFFIRM.