Tyrrell v. Oaklawn Jockey Club et al
MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on November 2, 2012. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
HELENE M. TYRRELL
CASE NO. 6:10-CV-06102
OAKLAWN JOCKEY CLUB; and
SOUTHWEST CATERING CO., INC.
Before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 16). Plaintiff
has responded (ECF No. 21), and Defendants have replied. (ECF No. 25). The matter is ripe for
the Court’s consideration. For the following reasons, the motion will be granted.
The Oaklawn Jockey Club in Hot Springs holds horse races during its annual live meet
from January through April. In January 2010, Plaintiff was hired as a seasonal worker at the
buffet line in Lagniappe’s, the club’s restaurant; she had worked as a seasonal employee at the
club for five previous seasons. Plaintiff was moved to a prep-cook position in the kitchen a few
days after she started for the 2010 season because the buffet line was overstaffed.1 This case
concerns her co-workers’ behavior in the kitchen and her supervisors’ response to that behavior.
The chronology of this case is a bit murky, but it begins in substance shortly after
Plaintiff was moved to the kitchen, when she says she was subjected to “racially hostile
statements and other behavior that constituted a hostile work environment.” (ECF No. 1, at 2).
The racially hostile statements involved allegedly heavy use of the n-word. Plaintiff, who is
Plaintiff’s complaint states that she was moved “about a week or two” after she started (ECF No. 1, at 2), but in her
response to Defendants’ statement of facts, Plaintiff states that she was moved after only two or three days. (ECF
No. 24, at 1).
African American, found the language offensive. She admits, however, that on all but one
occasion, her co-workers, who are also African American, directed the talk at themselves and not
Plaintiff took off from work in mid-January to have eye surgery. In early February, when
she returned to work, she confronted her co-workers about their language. Some of her coworkers agreed to clean up their language, but others refused. When direct appeals to her coworkers failed, Plaintiff went to Chef Richard Davis, her immediate supervisor. Davis told her
co-workers to stop using the offending language.2 When Davis’s admonition went unheeded,
Plaintiff went to Chef Howard Brooks, the individual who hired her for the position.3 She
complained to Brooks, she thinks, around a week after returning from surgery leave. Brooks told
her that the offending workers would be let go at the end of the live meet, when seasonal workers
were no longer necessary.
Plaintiff had at least two other conversations with Brooks in March regarding the
offensive language, on the 13th and the 20th. (ECF No. 21-2, at 31). On March 21, 2010,
Plaintiff again confronted one of her co-workers about his language. The next day she talked to
the Equal Employment Opportunity Commission (“EEOC”) before heading to work. When she
got to work, the manager at Lagniappe’s, Leslie Gillert, talked to Plaintiff about her complaints.
Gillert passed the complaints up the supervisor chain all the way to Jimmy Johnston, the foodand-beverage director. Johnston told Karie Hobby and Mary McGrew, two mid-level
In Plaintiff’s complaint, she states that “Davis failed to take any action...” (ECF No. 1, at 2), but in her response to
Defendants’ statement of facts, Plaintiff admits that Davis told the co-workers to stop using the language. (ECF No.
24, at 2).
Again, the facts are unclear. In Plaintiff’s complaint, she states that she went to Davis before Brooks (ECF No. 1,
at 2), but in her deposition, she states that “I went to Chef Howard before I went to Chef Richard about it.” (ECF
No. 21-2, at 26).
supervisors, to meet with Plaintiff and then report to Belinda Castleberry, the human-resources
McGrew and Hobby met with Plaintiff on March 26, 2010, and then reported to
Castleberry. Castleberry in turn met with Chef Davis and Chef Brooks. She warned each of them
that they should document and follow up on any offensive-language issues. Castleberry also told
Jimmy Johnston to set up a meeting with the kitchen staff to go over any language issues and
explain that offensive language would lead to discipline, including termination. Johnston held the
meeting that same evening, March 26. Castleberry also told Johnston to have someone follow up
with Plaintiff to make sure she was satisfied that the bad language had stopped.
On March 27 or 31, Plaintiff again complained about offensive language, and her two
offending co-workers were sent home with a warning that they would be suspended if there were
any more bad-language incidents.4 The live meet ended on April 10, 2010, and Plaintiff was let
go on April 16, 2010. Out of 428 seasonal food-and-beverage employees hired for the live meet,
only five were kept on after the meet ended, and only as part-time workers.
Plaintiff filed a complaint with the EEOC on April 2, 2010 and received her right-to-sue
letter on October 14, 2010. She filed her complaint in this Court on December 23, 2010 seeking
damages for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq.,
and violations of the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-101 et seq. According
to Plaintiff, Defendants subjected her to a hostile work environment and then fired her for
complaining about that environment. She also contends that Defendants wrongly withheld her
final paycheck for an extended period of time. Defendants now move the Court to enter
The dates here are again unclear. The 27th (ECF No. 22, at 4), the 29th (ECF No. 1, at 3), and the 31st (ECF No.
24, at 5) are all possible dates based on the record.
judgment in their favor because the undisputed facts fail to support Plaintiff’s legal claims.5
STANDARD OF REVIEW
The standard of review for summary judgment is well established. The Federal Rules of
Civil Procedure provide that when a party moves for summary judgment:
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
Fed.R.Civ.P. 56(a); Krenik v. County of LeSueur, 47 F.3d 953 (8th Cir. 1995). The Supreme
Court has issued the following guidelines for trial courts to determine whether this standard has
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). See also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt.
Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence
is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik, 47 F.3d at 957. A party opposing a properly supported motion for
The parties make no effort to differentiate the two named Defendants, so the Court will likewise treat them
summary judgment may not rest upon mere allegations or denials, but must set forth specific
facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.
I. Hostile work environment
Plaintiff claims that racially charged language at work constituted a hostile work
environment that violated Title VII and the Arkansas Civil Rights Act. The two laws are
analyzed the same way. Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 n.3 (8th Cir.
2000). “The question of whether an environment is sufficiently hostile to be actionable is a legal
question, and, like any legal question, is a matter for the court to decide. In other words, a
showing of some minimal level of harassment is necessary before a case is submissible to a
jury.” Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869, 869 (8th Cir. 2004).
A successful hostile-work-environment claim must show that: (1) Plaintiff belongs to a
protected group; (2) Plaintiff experienced unwelcome harassment; (3) there was a causal link
between the harassment and Plaintiff’s membership in the protected group; (4) the harassment
affected a term, condition, or privilege of employment; and (5) Plaintiff’s employer knew or
should have known about the harassment and failed to take proper action. Sallis v. Univ. of
Minn., 408 F.3d 470, 476 (8th Cir. 2005). The harassing conduct must be enough to create a
hostile environment from the objective standpoint of a reasonable viewer and from the subjective
standpoint of the Plaintiff. Green v. Franklin Nat’l Bank, 459 F.3d 903, 910 (8th Cir. 2006)
(quoting Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998)).
In answering the question whether a work environment is actionably hostile, the Court
looks at all the circumstances. Malone v. Ameren UE, 646 F.3d 512, 517 (8th Cir. 2011). Racial
comments often tread a fine line. When racial comments dominate the working environment,
Title VII is violated. Green, 459 F.3d at 911 (quoting Jackson v. Flint Ink N. Am. Bank, 370 F.3d
791, 794 (8th Cir. 2004) (internal quotations omitted), mod. on other grounds, 382 F.3d 869 (8th
Cir. 2004)). However, not all harassment is actionable, because not all harassment is enough to
affect a term, condition, or privilege of employment, as the law requires. Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986). Thus, conduct such as uttering a racial epithet may be
offensive without being actionable. Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1035 (8th
Cir. 2006) (internal quotations omitted). The issue is whether the conduct is merely rude or
unpleasant, or is instead “extreme in nature.” Nitsche v. CEO of Osage Valley Elec. Coop., 446
F.3d 841, 846 (8th Cir. 2006) (citing LeGrand v. Area Resources for Cmty & Human Servs., 394
F.3d 1098, 1101 (8th Cir. 2005) (citation omitted)).
Considering all the circumstances, the Court finds that Plaintiff’s hostile-workenvironment claim seeks more to impose “general civility” on the workplace than to curb
heinous harassment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)
(noting requirements that prevent “Title VII from expanding into a general civility code”). While
Plaintiff might subjectively have found her co-workers’ language offensive enough to create a
hostile environment, a reasonable person in her shoes would not.
The offensive language in this case is the n-word. Plaintiff is African American. Her coworkers are African American. That does not by itself preclude a hostile-work-environment
claim. Ross v. Douglas Cnty, Neb., 234 F.3d 391, 396 (8th Cir. 2000). But combined with the
fact that Plaintiff was only once the target of the language, and in a non-derogatory context,6 the
Court has trouble seeing how an objective person in Plaintiff’s position would have found her
co-workers’ jesting “extreme in nature.” By all appearances, the term was not used derogatorily
The comment directed at Plaintiff and one other co-worker happened after the kitchen crew nearly missed getting
breakfast out one Sunday. The comment was, according to Plaintiff: “I told you niggas we could get this done. I told
you we could do this. Y’all my niggas.” (ECF No. 21-2, at 32).
at all. It might have offended Plaintiff, but viewed objectively, the language was at most course
Moreover, even if Plaintiff did in fact experience a hostile work environment, she has not
met the fifth element of her claim, which is that Defendants failed to take proper remedial action.
“[A]n employer is not liable if it takes prompt remedial action that is reasonably calculated to
stop the harassment.” Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1123 (8th Cir. 2007) (citing
Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999)). It is the calculation that counts, not
the result; “remedial action that does not end the harassment can still be adequate if it is
reasonably calculated to do so.” Id. (quoting Moore v. Philadelphia, 461 F.3d 331, 350 (8th Cir.
Defendants’ remedial action in this case was prompt and reasonably calculated to end the
hostile environment. The offending co-workers were admonished in unqualified terms.
Management passed Plaintiff’s complaints up the managerial ladder and met with Plaintiff
several times to make sure that her complaints were understood and acted on. When the language
problem refused to die, Defendants threatened the offenders with suspension upon the next
occurrence and sent one worker home.7
Thus, even if a hostile environment existed, Plaintiff has not shown that Defendants’
response was insufficiently prompt and not reasonably calculated to end the hostile environment.
Plaintiff’s hostile-work-environment claim thus fails as a matter of law.
Plaintiff next argues that she was denied continued employment and had her final
paycheck withheld in retaliation for her complaints to the EEOC and to her supervisors. Because
Plaintiff has produced no direct evidence of retaliatory motive, she must prove each of the
The other worker had already left for the day.
McDonnell Douglas factors to create an inference of retaliation. Twymon v. Wells Fargo & Co.,
462 F.3d 925, 936 (8th Cir. 2006) (citations omitted). That requires: (1) making out a prima facie
case of retaliation; (2) giving the employer a chance to rebut the presumption raised by the prima
facie case by putting forth a legitimate, non-retaliatory reason for its action; and (3) then refuting
the employer’s asserted reason as just a pretext. Id. (citations omitted).
Prima facie case
First, Plaintiff must make out a prima facie case of retaliation. To do that, she must show
that (1) she engaged in activity protected by the statute; (2) Defendant took adverse employment
action against her; and (3) the adverse action was connected to the protected activity. Bakhtiari v.
Lutz, 507 F.3d 1132, 1136 (8th Cir. 2007).
Plaintiff claims that her complaints about the hostility of her environment were protected
activity under Title VII. The fact that Title VII does not in fact prohibit the working environment
she complained of does not by itself mean that her complaints were unprotected. She did not, in
other words, have to be correct about the Title VII-status of the environment she complained
about; she merely had to be reasonable in her belief that the environment ran afoul of Title VII.
Buettner v. Arch Coal Sales Co., 216 F.3d 707, 714 (8th Cir. 2000). The Court will thus assume
without deciding that Plaintiff undertook a protected activity by complaining about her work
Plaintiff contends that Defendants’ decisions not to keep her on staff after the live meet
ended and to withhold her final paycheck pending the return of her ID badge were adverse
Not being kept on staff
While being fired from an at-will job is an adverse action, the non-renewal of an expired
fixed-term contract does not necessarily rise to that level. See Darchak v. City of Chicago Bd. of
Educ., 580 F.3d 622, 628 (7th Cir. 2009) (noting Illinois’s refusal to find non-renewal of fixedterm contracts to be adverse action). Plaintiff’s employment situation in this case is ambiguous at
best, given that she was a past seasonal employee who was hired without an application or
interview for an allegedly seasonal position. She alleges that she was promised a position that
would continue after the live meet ended. However, there is no written contract to that effect.
Given these complications and disputed facts, the Court will assume without deciding
that Plaintiff’s non-renewal was an adverse employment action.
Withholding final paycheck
Plaintiff also contends that Defendants held her final paycheck until she returned her ID
badge to retaliate against her for complaining about her work environment. To be adverse, an
action must be one that a reasonable employee would call materially adverse, i.e., one that “well
might have ‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” BNSF Ry. Co. v. White, 548 U.S. 67, 68 (quoting Rochon v. Gonzales, 438 F.3d
1211, 1219 (D.C. Cir. 2006) (quotations omitted)). “Petty slights or minor annoyances” are thus
insufficient to show retaliation. Id.
The question in this case, then, is whether a reasonable employee in Plaintiff’s shoes
would be dissuaded from complaining about a hostile work environment by the threat of having
to turn in her ID badge to get her final paycheck. The Court finds that a reasonable person in
Plaintiff’s shoes would not be so dissuaded.
Plaintiff has thus failed to show that Defendants’ requirement that she turn in her ID
badge to receive her paycheck was an adverse action.
Connection between protected activity and adverse action
Assuming Plaintiff’s work-environment complaints were protected activity and that Chef
Books was authorized to promise her a continuing job and did in fact promise her a continuing
job before her termination, Plaintiff still must show a causal connection between the complaints
and her firing. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002).
The causation required is not but-for causation, but rather a showing that “an employer’s
‘retaliatory motive played a part in the adverse employment action.’” McBurney v. Stew
Hansen’s Dodge City, Inc., 398 F.3d 998, 1003 (8th Cir. 2005) (quoting Kipp v. Mo. Hwy. &
Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (quotation omitted)). In all but the rarest
cases, the length of time between the protected activity and the adverse action will not alone
establish causation. Smith, 302 F.3d at 832–33 (citing cases). While two months’ time is
insufficient as a matter of law, “a matter of weeks” might suffice. Id. at 833 (citing cases).
Plaintiff claims that her job at the Oaklawn club should have continued after the 2010
live meet ended. She contends that she was let go along with all the other seasonal employees—
save five—because she complained about her work environment. Her complaints began in
earnest when she returned from surgery leave in late January or early February. She talked to
several of her superiors, who arranged meetings with her, with each other, and with her coworkers to discuss her complaints. One offending co-worker was sent home one day in late
March—the other co-worker had already left for the day—and was told that another language
issue would mean suspension. The other co-worker was told the same thing.
Plaintiff filed her EEOC charges on April 2, 2012. The 2010 live meet ended on April 10,
2012, and Plaintiff was fired on April 16, 2012. Plaintiff argues that chronology alone creates a
fact question on discrimination in her case. All the facts, however, point away from
discrimination, and those facts overcome the chronology of this case.
First, the record shows that Defendants thoroughly investigated and followed up on
Plaintiff’s complaints. Nearly every level of management was involved in settling her
grievances. When, through no lack of diligence on Defendants’ part, the two offending coworkers persisted in using offensive language, they were threatened with suspension upon one
Second, Chef Brooks’s comments encouraging Plaintiff to stick out the discomfort
because the offending co-workers would be gone at the end of the live meet undercuts Plaintiff’s
retaliation claim as much as it supports it. It seems unlikely that Defendants would fire Plaintiff
for complaining about the work environment after they had responded to those very complaints
by reassuring her that the environment would soon improve and that she would be around to see
it. In other words, Defendants knew about Plaintiff’s complaints when, according to her, they
inferentially promised her continued employment. Plaintiff’s alleged promise of employment is
inconsistent with her retaliation claim.
Plaintiff has failed to show that Defendants’ decision to fire Plaintiff rather than hold her
over after the live-meet ended was partially motivated by retaliation. She has thus failed to state
a prima facie claim under McDonnell Douglas, and her continued-employment retaliation claim
cannot survive summary judgment.
For the above reasons, the Court finds that the undisputed material facts foreclose
Plaintiff’s hostile-work-environment claim and her continued-employment retaliation claim
under Arkansas law and Title VII. Accordingly, Defendants’ Motion for Summary Judgment
(ECF No. 16) should be and hereby is GRANTED. Plaintiff’s hostile-work-environment claim
and retaliation claims are hereby DISMISSED WITH PREJUDICE. The Court will enter a
separate judgment consistent with this opinion.
IT IS SO ORDERED, this 2nd day of November, 2012
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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