Little v. United Technologies

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.