McCargo v. Texas Roadhouse, Inc.

Filing 174

ORDER. ORDERED that Defendants Motion for Summary Judgment 113 is DENIED in part and GRANTED in part. The motion is granted as to Plaintiffs claim of hiring and wage discrimination. The motion is denied in all other respects as set forth in this Order by Chief Judge Wiley Y. Daniel on 07/01/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02889-WYD-KMT
ANDREW L. McCARGO,
Plaintiff,
v.
TEXAS ROADHOUSE, Inc.,
a Delaware Corporation
Defendant.

ORDER

I.

INTRODUCTION
THIS MATTER is before the Court on Defendant’s Motion for Summary

Judgment filed November 1, 2010. A response in opposition to the motion was filed on
January 19, 2011, and a reply brief was filed on February 7, 2011. For the reasons
stated below, the motion for summary judgment is denied in part and granted in part.
II.

STANDARD OF REVIEW
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may

grant summary judgment where "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and the . . . moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Equal Employment Opportunity Comm’n. v. Horizon/CMS Healthcare Corp., 220
F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, the court must view

the evidence and draw all reasonable inferences therefrom in the light most favorable to
the party opposing summary judgment.” Atlantic Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (internal quotation omitted). All doubts
must be resolved in favor of the existence of triable issues of fact. Boren v.
Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
III.

BACKGROUND
Plaintiff, Andrew McCargo, was employed as an expo cook at Defendant’s

restaurant, Texas Roadhouse (“TXRH”), from October 21 through December 22, 2009.
(Final Pretrial Order, ECF No. 158, Stipulations, ¶ 2.) Plaintiff first applied for a position
with the restaurant in early October but did not obtain an interview until three weeks
later after his wife – who “does not sound ‘African American’” – called and scheduled an
interview for him. (Am. Compl., ECF No. 61, ¶¶ 12, 15.) While employed at TXRH,
Plaintiff, an African American male, continually heard coworkers use the words “nigger”
and “nigga.” (Am Compl., ECF No. 61, ¶ 24; Pl.’s Resp. to Def.’s Mot. for Summ. J.,
ECF No. 144, at 36-37.) In addition, Plaintiff was referred to as “boy” on multiple
occasions by coworkers. (Am. Compl., ECF No. 61, ¶ 24; Pl.’s Resp. to Def.’s Mot. for
Summ. J., ECF No. 144, at 38.)
On November 23, 2009, Plaintiff’s coworkers played a series of “pranks” on him,
first lighting a piece of paper attached to Plaintiff’s clothing on fire, and then tying a tea
bag to the back of Plaintiff’s apron. (Am Compl., ECF No. 61, ¶¶ 27-29.) While this was
occurring, one of the kitchen workers shouted to Plaintiff, “Damn nigga, you on fire.
Don’t let the white man get you down.” (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF
No. 144, at 39.) These events humiliated Plaintiff and he reported them to both TXRH
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management and the local police. (Am Compl., ECF No. 61, ¶¶ 30-31, 34.) Defendant
responded to the report by launching an investigation which culminated in the
termination of three TXRH employees. (Def.’s Mot. for Summ. J., ECF No. 113, at 1920.)
In the matter before me, Plaintiff asserts race discrimination claims against TXRH
pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Specifically,
Plaintiff brings claims of a hostile work environment, constructive discharge, and
discriminatory conduct in the hiring process. Plaintiff seeks relief in the form of front pay
in lieu of reinstatement; non-pecuniary and compensatory damages, including damages
for humiliation, emotional distress, and consequential damages; punitive damages; preand post-judgment interest; costs and reasonable attorneys’ fees; and all other available
legal and equitable relief. (Am. Compl., ECF No. 61, Prayer for Relief, at 9.)
IV.

ANALYSIS
A.

Hostile Work Environment Claim

Plaintiff alleges that during his tenure at TXRH, he was subjected to a hostile
work environment in violation of Title VII of the Civil Rights Act of 1964. (Pl.’s Resp. to
Def.’s Mot. for Summ. J., ECF No. 144, at 35-40.) Title VII makes it unlawful for an
employer to “discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (1982). “Although Title VII
does not explicitly mention hostile work environment, a victim of a racially hostile work
environment may nevertheless bring a cause of action under Title VII.” Ford v. West,
222 F.3d 767, 775 (10th Cir. 2000). To demonstrate a racially hostile environment, “it
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must be shown that under the totality of the circumstances (1) the harassment was
pervasive or severe enough to alter the terms, conditions, or privilege of employment,
. . . and (2) the harassment was racial or stemmed from racial animus. General
harassment if not racial or sexual [in nature] is not actionable.” Bolden v. PRC Inc., 43
F.3d 545, 551 (10th Cir. 1994) (citing Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57,
67 (1986)).
1.

Pervasiveness & Severity

In connection with a claim of hostile work environment, “[s]everity and
pervasiveness are evaluated according to the totality of the circumstances, considering
such factors as ‘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.’” Robinson v. Cavalry
Portfolio Services, L.L.C., 365 Fed. Appx. 104, 118 (10th Cir. 2010) (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In order to demonstrate a hostile work
environment, “[t]he plaintiff must show ‘more than a few isolated incidents of racial
enmity.’ . . . Instead of sporadic racial slurs, there must be a steady barrage of
opprobrious racial comments.” Bolden, 43 F.3d at 550 (internal citations omitted).
However, “[w]hile there is no ‘magic number’ of slurs that indicate a hostile work
environment, we have recognized before that an unambiguously racial epithet falls on
the ‘more severe’ end of the spectrum.” Cerros v. Steel Techs., Inc., 288 F.3d 1040,
1047 (7th Cir. 2002).
During the brief period that Plaintiff worked at TXRH, employees of the restaurant
continually used the words “nigga” and “nigger” in Plaintiff’s presence, two employees
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repeatedly addressed Plaintiff as “boy,” a piece of paper attached to Plaintiff’s clothing
was set on fire by a coworker while another yelled, “Damn nigga, you on fire,” and
another coworker attached a tea bag to the back of Plaintiff’s apron, a gesture imbued
with racial undertones. Plaintiff worked a total of twenty-three shifts at Defendant’s
restaurant, during which time he allegedly endured at least twenty-three discriminatory
acts. (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 41.) Since this time,
Plaintiff has been diagnosed by a licensed clinical psychologist as having suffered a
“serious psychological injury as the result of racial harassment.” (Pl.’s Resp. to Def.’s
Mot. for Summ. J., ECF No. 144, at 31-32.) Given these facts, I find that Plaintiff has
asserted sufficient evidence to create an issue of material fact concerning whether he
was subjected to a pervasive and severe hostile work environment.1
2.

Racial Nature of the Harassment

To survive a motion for summary judgment when making a hostile work
environment claim, a plaintiff “must . . . produce evidence from which a rational jury
could infer that [he or] she was targeted for harassment because of [his or] her gender,
race, or national origin.” Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir.
2004). Here, Defendant argues that, “Plaintiff has presented no evidence tending to
show that anyone at [TXRH] harbored racial animus toward him.” (Def.’s Mot. for
Summ. J., ECF No. 113, at 15). While it is true that the “‘mere utterance of an . . .

1

Further, the Tenth Circuit has indicated that evaluating the pervasiveness and
severity of a hostile work environment claim is “particularly unsuited for summary
judgment because it is quintessentially a question of fact” best left to the jury. Herrera
v. Lufkin Indus., 474 F.3d 675, 680 (10th Cir. 2007) (quoting McCowan v. All Star
Maint., Inc., 273 F.3d 917, 923 (10th Cir. 2001)).
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epithet which engenders offensive feelings in a employee’ . . . does not sufficiently
affect the conditions of employment to implicate Title VII,” courts have recognized that
“[f]ar more than a mere offensive utterance, the word ‘nigger’ is pure anathema to
African-Americans. Harris, 510 U.S. at 21(quoting Vinson, 477 U.S. at 67). Perhaps no
single act can more quickly . . . create an abusive working environment than the use of
an unambiguously racial epithet such as ‘nigger’ . . . .” Spriggs v. Diamond Auto Glass,
242 F.3d 179, 185 (4th Cir. 2001). Likewise, the term “boy” can be used in certain
contexts as a degrading racial moniker. Tademy v. Union Pac. Corp., 614 F.3d 1132,
1146 (10th Cir. 2008). Consequently, I find that a reasonable jury could find the hostile
behavior directed toward Plaintiff to have stemmed from racial animus.
3.

Notice

In the motion, Defendant also argues that TXRH had neither actual nor
constructive notice of the alleged discriminatory activity prior to Plaintiff’s filing of an
official complaint after the harassment had taken place. (Def.’s Mot. for Summ. J., ECF
No. 113, at 18-19.) “An employer will not be liable under Title VII if the employer was
not on actual or constructive notice of the alleged harassment.” Harsco Corp. v.
Renner, 475 F.3d 1179, 1188 (10th Cir. 2007) (citing Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 673 (10th Cir. 1998)). “For purposes of Title VII, an employer is deemed to
be on notice of a hostile work environment if management level employees know about
the alleged harassment.” Jessen v. Babbitt, No. 98-8069, 1999 WL 1246915, at *5
(10th Cir. Dec. 23, 1999). Plaintiff alleges that discriminatory comments were made in
the presence of managers, and that managers engaged in the discriminatory conduct.
(Pl.’s Resp. 13-15, 21-27.) Thus, I find that whether TXRH had actual or constructive
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notice of the discriminatory conduct is a triable issue of fact.
4.

The Ellerth/Faragher Defense

Defendant asserts an affirmative defense to the hostile work environment claim,
as set forth in both Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998):
When no tangible employment action is taken, a defending employer may raise
an affirmative defense to liability or damages, subject to proof by a
preponderance of the evidence . . . . The defense comprises two necessary
elements: (a) that the employer exercised reasonable care to prevent and correct
promptly any . . . harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.
Ellerth, 524 U.S. at 765; accord Faragher, 524 U.S. at 807.2
i.

Whether Defendant took Reasonable Care to
Prevent/Correct Harassment

Defendant argues that the response of TXRH management to the November 23,
2009 incident was both prompt and appropriate. (See Def.’s Mot. for Summ. J., ECF
No. 113, at 19-20.) TXRH initiated an investigation following the incident that
culminated in the termination of three employees: the employee who had lit the piece of
paper attached to Plaintiff’s clothing on fire, the employee who had attached the tea bag

2

The Ellerth/Faragher defense is only available when there has not been a
tangible employment action. A “tangible employment action” may include: “hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Ellerth, 524 U.S. at 761. The only adverse
employment action Plaintiff alleges here is a constructive discharge. See infra Part
III(B). The Tenth Circuit has determined that a constructive discharge does not qualify
as a “tangible employment action” vis-à-vis the Ellerth/Faragher defense in the absence
of an underlying official act. Chapman v. Carmike Cinemas, 307 Fed. Appx. 164, 169
(10th Cir. 2009) (citing Penn. State Police v. Suders, 542 U.S. 129, 148 (2004)). Since
no underlying official act is alleged in this case, there is no tangible employment action
that would disqualify Defendant from asserting an Ellerth/Faragher defense.
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to Plaintiff’s apron, and the individual who had uttered the derogatory racial comment
during the incident. (Id. at 19-20.) Additionally, after receiving Plaintiff’s complaint, the
TXRH Director of Care and Concern, Dee Shaughnessy, flew out from Kentucky to
investigate the incident. (Id. at 19.) Despite these remedial steps, Plaintiff alleges that
the discriminatory conduct continued and no action was taken against a manager who
knew of and tolerated the harassment. (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF
No. 144, at 39, 46.)
Defendant also contends that TXRH had promulgated an effective antiharassment policy prior to the incident, a copy of which was provided to each employee
in the employee handbook, and a separate copy which was posted in the kitchen area
of each restaurant. (Id. at 17.) “Though the . . . distribution of a valid anti[-]harassment
policy provides compelling proof that [the defendant] exercised reasonable care in
preventing and promptly correcting . . . harassment, it is not dispositive.” Weger v. City
of Ladue, 500 F.3d 710, 719 (8th Cir. 2007) (quotation marks and citation omitted).
Further, if an anti-harassment policy is not effectively enforced, it does not support the
Ellerth/Faragher defense. See Hurley v. Atl. City Police Dep't, 174 F.3d 95, 118 (3d Cir.
1999).
Here, Plaintiff has presented evidence challenging the effective enforcement of
the harassment policy. (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 44.)
For instance, Defendant claims that the substance of the policy and the available
avenues for reporting harassment were discussed during employee orientation, and that
all employees and managers received Equal Employment Opportunity training. (Pl.’s
Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 17-18; Def.’s Reply in Supp. of Mot.
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for Summ. J., ECF No. 148, at 40.) Plaintiff, however, presented evidence that several
TXRH employees, including Plaintiff, were not given any training on discrimination or
harassment. (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 6, 44.) In
addition, Defendant asserts that TXRH policies require employees to report incidents of
harassment or discrimination, but Plaintiff has presented evidence directly challenging
this assertion as well. (Def.’s Mot. for Summ. J., ECF No. 113, at 18; Pl.’s Resp. to
Def.’s Mot. for Summ. J., ECF No. 144, at16, 46.) Given these discrepancies, I find that
whether Defendant exercised reasonable care in preventing or responding to
harassment is an issue of material fact to be determined at trial.
ii.

Whether Plaintiff Unreasonably Failed to Utilize
Preventative/Corrective Opportunities

Defendant also argues that Plaintiff failed to lodge a timely complaint concerning
the majority of the alleged incidents of discrimination “until long after the harassment.”
(Def.’s Mot. for Summ. J., ECF No. 113, at 20.) However, Plaintiff had only been
working for TXRH for one month when the November 23, 2010 events occurred, and he
filed an official report of the harassment two days later. (Pl.’s Resp. to Def.’s Mot. for
Summ. J., ECF No. 144, at 6, 29.) Thus, I find that whether it was unreasonable for
Plaintiff to not have reported the prior incidents of harassment is a question best left to a
jury.
In sum, Plaintiff has drawn attention to factual issues regarding the steps taken
by Defendant to prevent and correct discriminatory conduct, as well as the
reasonableness of Plaintiff’s response to the alleged conduct. Therefore, I find that
Defendant is not entitled to summary judgment via the Faragher/Ellerth affirmative

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defense, and Defendant’s motion for summary judgment concerning the hostile work
environment claim is denied.
B.

Constructive Discharge Claim

In connection with this claim, Plaintiff alleges that he suffered an adverse
employment action in the form of a constructive discharge. (Pl.’s Resp. to Def.’s Mot.
for Summ. J., ECF No.144, at 46.) “Constructive discharge occurs when the employer
by its illegal discriminatory acts has made working conditions so difficult that a
reasonable person in the employee's position would feel compelled to resign.”
Anderson v. Clovis Mun. Sch., 265 Fed. Appx. 699, 707 (10th Cir. 2008); accord
Sandoval, 388 F.3d at 1325. “Title VII encompasses employer liability for a constructive
discharge.” Penn. State Police v. Suders, 542 U.S. 129, 143 (2004)). “The plaintiff's
burden in a constructive discharge case is substantial . . . because a constructive
discharge requires a showing that the working conditions imposed by the employer are
not only tangible or adverse, but intolerable.” Equal Employment Opportunity Comm'n
v. PVNF, L.L.C., 487 F.3d 790, 805 (10th Cir. 2007) (quoting Tran v. Trs. of the State
Colls. in Colo., 355 F.3d 1263, 1270-71 (10th Cir. 2004)). In order to succeed with a
claim of constructive discharge, “a plaintiff must show he had no other choice but to
quit.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (citing
Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998)).
During the first month of Plaintiff’s employment with TXRH, he had been
subjected to coworkers’ continual use of the words “nigga” and “nigger;” had been
referred to repeatedly as “boy;” had a piece of paper attached to his clothing
intentionally set on fire by a coworker; and had a tea bag attached to the back of his
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apron by another. Plaintiff alleges to have endured twenty-three discriminatory acts in
as many shifts. (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 41.) Despite
these allegations, Defendant argues that Plaintiff has not met the high burden of
demonstrating a constructive discharge because TXRH terminated the three employees
involved in the fire and tea bag incident, and subsequently gave Plaintiff two weeks paid
administrative leave. (Def.’s Reply in Supp. of Mot. for Summ. J., ECF No. 148, at 40.)
Plaintiff has, however, presented some evidence of continued harassment following the
events of November 23, 2009. (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at
39, 46.) Accordingly, Plaintiff has created a genuine issue of material fact regarding
whether a reasonable person would have continued his employment with Defendant.
Thus, as to the claim of constructive discharge, the motion for summary judgment is
denied.
C.

Wage/Hiring Discrimination Claim

Finally, Plaintiff alleges that Defendant engaged in discriminatory hiring practices.
(Am. Compl., ECF No. 61, ¶¶ 12-21; Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No.
144, at 47-48.) Plaintiff claims that it took him several visits to the restaurant and
corresponding phone calls – including one from his wife, who does not “sound ‘African
American’” – before he obtained an interview at TXRH. (Am. Compl., ECF No. 61, ¶ 15;
Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 47.) Plaintiff further claims that
ignoring the applications of African American applicants was part of a “general pattern”
of discrimination engaged in by TXRH, but the only support for this assertion provided
by the Plaintiff is the affidavit of a former hostess who remarked that she could not
remember any African Americans being told by managers to come back for interviews.
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(Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 47; Pl.’s Ex. 10, ECF No. 14410, ¶ 12.) Based on my review of the evidence, I find that neither Plaintiff’s personal
experience with the TXRH hiring process nor the isolated and unsubstantiated
statement by the former employee regarding the lack of interviews offered to African
Americans creates a genuine issue of material fact as to this claim.
Plaintiff also alleges that Defendant engaged in wage discrimination as part of
the hiring process. (Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 144, at 47.) With
a claim of wage discrimination under Title VII, a plaintiff must demonstrate that the
employer paid higher wages to similarly-situated employees of different races. See
Mickleson v. New York Life Ins., 460 F.3d 1304, 1310 (10th Cir. 2006). Here, Plaintiff’s
claim is based on the allegation that he was offered the job at a rate of $7.29 per hour,
but when he actually commenced his employment at TXRH, he was paid $4.26 per
hour. (Am. Compl., ECF No. 61, ¶¶ 18-19.) Importantly, Plaintiff does not dispute that
after he complained to a manager about his pay rate, his salary was increased to the
previously agreed upon amount, with back pay for the hours already worked at the
lower rate. (Def.’s Mot. for Summ. J., ECF No. 113, at 7.) Moreover, Defendant has
presented evidence that Plaintiff’s wages (including tips) during his final pay period
averaged $11.14 per hour compared to the average kitchen wage of $10.09. (Def.’s
Mot. for Summ. J., ECF No. 113, at 11.) Given these facts, I find that Plaintiff has failed
to raise any triable issue of fact concerning discrimination in the hiring process, and thus
Defendant’s motion for summary judgment concerning this claim is granted.
V.

CONCLUSION
Based upon the foregoing, it is
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ORDERED that Defendants’ Motion for Summary Judgment filed November 1,
2010, is DENIED in part and GRANTED in part. The motion is granted as to Plaintiff’s
claim of hiring and wage discrimination. The motion is denied in all other respects as
set forth in this Order.
Dated: July 1, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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