Fortson v. COLUMBIA FARMS FEED MILL et al
Filing
53
ORDER granting 39 Motion for Summary Judgment; denying 44 Motion for Summary JudgmentOrdered by U.S. District Judge CLAY D LAND on 07/30/14 (bsh) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CAREY A. FORTSON,
*
Plaintiff,
*
vs.
*
COLUMBIA FARMS FEED MILL,
ROBERT C. JOHNSON, BARRY
CHRONIC, MICHELLE CARLSON, and
MELVIN DUTTON,
*
CASE NO. 3:13-CV-51 (CDL)
*
*
Defendants.
*
O R D E R
This case represents another example of a workplace that
has not yet been cleansed of racist attitudes.
Defendants’
motion for summary judgment poses the difficult and recurring
question of when these attitudes sufficiently alter the terms
and conditions of a person’s employment such that the aggrieved
employee has a cause of action under the federal civil rights
laws.
The
struggled
have
draw
the
to
utterances,
endured,
Courts
which
and
are
severe
wrestled
line
generally
hostile
with
between
not
this
issue
obnoxious
actionable
race-based
and
and
have
offensive
must
harassment
be
that
interferes with an employee’s ability to do his job, which can
be remedied pursuant to 42 U.S.C. § 1981 (“§ 1981”) and Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. (“Title VII”).
Courts attempt this “line drawing” on a case-by-case basis
with fact-intensive analysis.
Deciding where that line should
be drawn as a matter of law in the context of summary judgment,
as the Court must do here, presents a special challenge because
the
Court
must
determine
what
evidence
is
enough
for
a
reasonable jury to be able to conclude that the employee was
subjected to a racially hostile work environment.
That analysis
necessarily requires the Court to “weigh” the evidence to some
degree, an exercise that is typically better performed by a
jury,
but
in
the
context
of
summary
judgment,
must
be
preliminarily done by the Court to determine whether there is
enough for the jury to even consider.
As explained in more
detail below, the Court finds that the conduct complained of by
Plaintiff
in
this
action
falls
on
the
“obnoxious
offensive
utterance” side of the line and not the “severe hostile racebased
harassment”
side.
Accordingly,
Defendants’
Motion
for
Summary Judgment (ECF No. 39) is granted, and Plaintiff’s Motion
for Summary Judgment (ECF No. 44) is denied.1
1
In his Complaint, Plaintiff alleged claims for race, gender, and age
based discrimination pursuant to Title VII, § 1981, and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”).
He
also
alleged
Georgia
state
law
claims
for
negligent
supervision/retention
and
intentional
infliction
of
emotional
distress.
The Court previously dismissed Fortson’s Title VII, ADEA,
and gender discrimination claims, as well as his claims against Robert
2
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
In
the
light
most
favorable
to
Plaintiff,
the
evidence
reveals the following.
Plaintiff Carey A. Fortson (“Fortson”), a black male who is
proceeding pro se, began working as a feed loader for Defendant
Columbia Farms of Georgia (“Columbia Farms”) in January 2010.
He was initially assigned to the 3:00 p.m. to 11:00 p.m. shift,
but was soon switched to the 5:00 p.m. to 4:00 a.m. shift.
On
June 21, 2012, a coworker photographed Fortson sleeping in the
Johnson.
The claims that remain, which are subject to Defendants’
summary judgment motion, are Plaintiff’s § 1981 racially hostile work
environment claim and state law claims against his employer and
supervisors.
3
secretary’s office of the feed mill during a break on his shift.
According to the employee handbook Fortson received when hired,
sleeping on the job is prohibited and punishable by immediate
termination.
Columbia Farms suspended Fortson for three days
pending review of the incident, and then terminated him on June
27, 2012 in accordance with company policy.
dispute
that
he
was
sleeping
during
his
Fortson does not
shift;
nor
does
he
seriously contest that this violation of company policy was the
reason
for
his
termination.
Instead,
now
that
he
has
been
terminated, he complains that he was subjected to a racially
hostile work environment during his employment.
Fortson points to evidence supporting twelve instances of
coworkers yelling at him, cursing at him, and calling him racial
epithets during his two-and-a-half years of employment.2
These
include coworkers telling him “Hey, black ass, hurry,” and “I
can have your black
paperwork.”
ass put away, buddy.
Give me my damn
Fortson Dep. Ex. 7, Harassment Allegation List, ECF
No. 43-7.
The name-calling was apparently done as part of his
coworkers’
expression
performance.
stated
that
of
dissatisfaction
with
Fortson’s
Nine instances involve a racial epithet.
he
heard
coworkers
use
racial
epithets
job
Andrews
towards
Fortson approximately fifty times, but that hearsay testimony is
2
Fortson alleged nineteen such instances in his
Complaint, but he only pointed to evidence of twelve.
4
Third
Amended
inconsistent
with
such incidents.
Fortson’s
evidence
that
included
only
nine
Dutton Dep. Ex. P-1, Andrews Statement, ECF No.
49-1 at 1; see also Adams v. Austal, U.S.A., L.L.C., No. 1211507, 2014 WL 2726171, at *1, *1 (11th Cir. June 17, 2014)
(holding that “an employee alleging a hostile work environment
cannot complain about conduct of which he was oblivious for the
purpose of proving that his work environment was objectively
hostile”).
daily
Fortson’s wife claims that Fortson complained to her
about
coworkers
harassing
him
and
that
emotional distress strained their marriage.
his
resulting
Dutton Dep. Ex. P-
2, Rucker Statement, ECF No. 49-1 at 2.
Fortson complained about the harassment to his supervisor,
Defendant
Melvin
harassment.
Dutton.
Dutton
did
not
act
to
stop
the
Fortson claims that Defendants Michelle Carlson,
who works in Columbia Farms’s Human Resources Department, and
Barry
Cronic,
Columbia
Farms’s
Chief
Executive
Officer,
also
should have known about the harassment and did nothing to stop
it.
Fortson met each of them only once, and did not complain to
them about the harassment.
He does not know if either of them
knew
his
that
because
Dutton
they
have
received
managerial
complaints,
but
responsibility.
103:23-104:5, 105:18-24.
5
he
sued
them
Fortson
Dep.
DISCUSSION
I.
§ 1981 Racially Hostile Work Environment Claim
Fortson
environment
Dutton.3
alleges
claim
a
against
§
1981
Columbia
racially
Farms
hostile
and
its
work
manager,
A workplace is considered racially hostile if it “is
permeated
with
discriminatory
intimidation,
ridicule,
and
insult, that is sufficiently severe or pervasive to alter the
conditions
of
the
victim’s
working environment.”
F.3d
1269,
omitted).
1275
To
employment
and
create
an
abusive
Miller v. Kenworth of Dothan, Inc., 277
(11th
Cir.
2002)
(internal
establish
a
racially
hostile
quotation
work
marks
environment
claim, Fortson must show that: (1) “he belongs to a protected
group;” (2) “he has been subject to unwelcome harassment;” (3)
“the harassment was based on a protected characteristic; (4) the
harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment and create a discriminatorily
abusive
working
responsible
for
environment;”
such
and
environment
vicarious or direct liability.”
(5)
under
“the
either
employer
is
a
of
theory
Id.
3
A supervisor who contributes to the hostile environment or does
nothing to correct it may be liable under § 1981 in addition to the
employee’s actual employer. See Bryant v. Jones, 575 F.3d 1281, 1296,
1299-1300 (11th Cir. 2009) (setting forth the elements required to
prove a § 1981 hostile environment claim and explaining when
supervisory liability occurs in the context of a § 1981 claim brought
against county officials through 42 U.S.C. § 1983).
6
Defendants
reasonable
seek
jury
summary
could
find
judgment,
that
the
arguing
alleged
that
no
harassment
was
objectively severe or pervasive enough to alter the terms and
conditions of Fortson’s employment.
In evaluating Defendants’
motion, the Court considers: “(1) the frequency of the conduct;
(2) the severity of the conduct; (3) whether the conduct is
physically
threatening
or
humiliating,
or
a
mere
offensive
utterance; and (4) whether the conduct unreasonably interferes
with the employee’s job performance.”
Mendoza v. Borden, Inc.,
195 F.3d 1238, 1246 (11th Cir. 1999) (en banc).
No one factor
is dispositive; the Court is instructed to look at the “totality
of the circumstances.”
The
Eleventh
Id.
Circuit’s
application
of
these
factors
cases involving similar circumstances is instructive.
recent case is Adams.
in
One such
In that racially hostile work environment
case, the district court had granted summary judgment in favor
of the employer on the claims of thirteen employees but denied
summary judgment as to two other employees, which were tried by
a jury to verdicts in favor of the employer.
2726171, at *1.
analyzed
determine
the
On appeal, the Eleventh Circuit painstakingly
facts
whether
racially
hostile
affirmed
summary
Adams, 2014 WL
relevant
they
work
to
each
sufficiently
environment.
judgment
as
to
7
six
employee’s
supported
The
of
a
claim
claim
Eleventh
the
to
for
Circuit
plaintiffs
but
vacated summary judgment as to the other seven.
alleged
racially
hostile
work
environment
Id.
is
Fortson’s
more
closely
analogous to the experience of the six employees who had summary
judgment against them affirmed in Adams than the seven employees
in
Adams
who
convinced
the
Court
of
Appeals
that
they
presented sufficient evidence to avoid summary judgment.
Court
will
evaluate
Fortson’s
claims
using
the
same
had
The
factors
applied by the Court of Appeals in Adams and compare Fortson’s
claims to those of the Adams plaintiffs.
A.
Frequency of the Conduct
The Adams plaintiffs who prevailed on appeal were subjected
to significantly more frequent harassment than Fortson alleges.
They were exposed to harassing conduct “every morning,” “every
day,”
“regularly,”
2726171,
at
or
*8-*10
“all
the
time.”
(explaining
that
See
Adams,
plaintiff
2014
Tesha
WL
Hollis
“frequently heard white employees” use racial slurs and “saw a
Confederate
flag
every
morning;”
Nathaniel
Reed
heard
racial
slurs and saw coworkers and supervisors wear Confederate flags
“every
day;”
Ron
Nelson
Bumpers,
Law,
and
Jerome
Larry
Pettibone,
Laffiette
Frederick
frequently
Williams,
saw
racist
graffiti in the restrooms and heard coworkers and supervisors
use racial slurs).
Conversely, Fortson alleges twelve instances
of harassment spanning seven months of his two-and-a-half years
8
of employment, with nine involving racial epithets.
Harassment
Allegation List.
B.
Severity of the Conduct
The racial harassment against the prevailing plaintiffs in
Adams
was
also
more
severe.
One
female
plaintiff,
Hollis,
alleged that “[h]er supervisor pretended to masturbate in front
of her while telling her that a racist and perverse drawing of
her appeared in the men’s restroom, and she saw the drawing”
herself.
Reed,
Adams, 2014 WL 2726171, at * 7.
was
called
“boy”
on
“several”
Another plaintiff,
occasions
by
his
white
supervisor and saw “I hate niggers” written on a boat he helped
build.
Id. at * 8.
Plaintiff Pettibone discovered a noose in
the break room, saw a drawing of a hangman with the caption
“niggers,” and heard that his supervisor had referred to “cheap
slave labor.”
Id.
Plaintiff Law heard a supervisor ask someone
to “send him some monkeys,” and heard a coworker say that “where
he is from, they hang . . . niggers.”
Bumpers
heard
his
supervisor
call
Id. at *9.
black
people
twice, and the comment was directed to him once.
Plaintiff
“blue
Id.
gums”
And
Plaintiff Williams’s supervisor carved the slur “porch monkeys”
into the ship they were working on, and when Williams reported
racist graffiti in the restroom to his supervisor, he was told
“it’s always been like that and if he didn’t like it he could
quit.”
Id. at * 10.
9
While the Court certainly does not place its imprimatur on
the conduct to which Fortson was subjected, the Court does find
that it was not as severe as the conduct the Adams court found
was sufficiently severe and pervasive.
To the contrary, the
Court finds that the harassment experienced by Fortson was more
analogous to the conduct the losing plaintiffs in Adams alleged,
which the Court of Appeals found did not support a hostile work
environment claim.
Adams plaintiff Robert Adams heard the slur
“nigger,” which is severe.
over
several
years,
and
supervisor used the word.”
But “he heard it only a few times
he
did
not
offer
evidence
that
Adams, 2014 WL 2726171, at * 11.
a
If
that conduct is not actionable, it is hard to say coworkers
calling Fortson “black ass,” which is arguably less severe than
“nigger,”
is
actionable.
Similarly,
Adams
plaintiff
Carolyn
Slay saw racist graffiti on boxes in the women’s restroom, heard
a supervisor request “monkeys” over the walky-talky, and saw a
toolbox with the phrase “don’t feed the monkeys” written on it.
Id. at *12.
Yet, the Court of Appeals did not find this conduct
sufficiently severe or pervasive
to be actionable.
If that
conduct is not actionable, it is difficult to perceive how a
coworker calling Fortson “black ass” in the course of berating
his job performance could be.
Moreover, the Adams Court also
found that conduct directed to plaintiff Franklin Thomas, which
included
“‘[seeing]
a
lot’
of
10
racist
graffiti”
and
“white
employees’
paraphernalia
with
the
Confederate
flag,”
offensive but not sufficiently severe to be actionable.
*13.
was
Id. at
If being exposed to racist graffiti and the Confederate
flag
regularly
racially
is
hostile
not
work
sufficiently
environment,
severe
it
to
would
establish
be
a
arbitrary
to
conclude that being called a “black ass” on occasion would be.
C.
Physically Threatening or Humiliating Conduct
It is also noteworthy that the conduct Fortson complains
about was not nearly as physically threatening or humiliating as
the conduct alleged by the successful Adams plaintiffs.
The
Adams plaintiffs were regularly subjected to humiliating slurs
like “monkey,” “porch monkey,” “nigger,” “boy,” and “blue gums.”
Id. at *7-*11.
And they also had to endure threatening behavior
that included a noose in the break room and graffiti such as “I
hate niggers” and a hangman with “nigger” on it.
Insensitivity
to
such
hostility
was
Id. at *8-*11.
compounded
by
the
daily
presence of Confederate flags on the apparel of both employees
and
supervisors.
Id.
As
the
Court
of
Appeals
found,
the
totality of the circumstances alleged by the prevailing Adams
plaintiffs demonstrated that they were subjected to a hateful,
threatening, humiliating work environment based on their race
almost
daily.
It
is
also
important
participated in the harassing conduct in Adams.
11
that
supervisors
In another case, the Eleventh Circuit found the physically
threatening and humiliating nature of the harassment to be the
“centerpiece” of an employee’s hostile environment claim.
In
Jones v. UPS Ground Freight, the plaintiff premised his hostile
work environment claim on the “repeated placing of banana peels
on
his
truck
.
.
.
;
working
around
employees
wearing
confederate shirts on several occasions; racial comments made by
[a coworker] to [Mr. Jones] directly; workers in the yard making
racial statements in [his] presence; [and] being threatened by
Caucasian employees after complaining about the racially hostile
environment.”
Eleventh
683 F.3d 1283, 1292-93 (11th Cir. 2012).
Circuit
found
that
Jones
had
pointed
to
The
sufficient
evidence to create a jury question on whether he was subjected
to
a hostile work environment because of the “escalation of
incidents,
with
centerpiece.”
a
Id.
possibly
threatening
at 1304.
confrontation
as
its
Fortson experienced no similar
threatening
confrontation,
and
the
alleged
harassment
never
escalated.
It was spread out over seven months and ended five
months before Fortson’s employment was terminated.
Fortson failed to point to evidence that would support a
finding that he was subjected to sufficiently threatening and
humiliating
claim.
harassment
Although
the
to
support
Court
a
hostile
certainly
does
work
not
environment
condone
the
language allegedly used here, the Court must evaluate the extent
12
to which such language was used and the manner in which it was
used.
Coworkers yelled at Fortson using phrases such as “dumb
black ass.”
But these offensive utterances were not as directly
threatening or humiliating as expressions found actionable in
other cases.
And the racial slurs were not so “commonplace,
overt and denigrating that they created an atmosphere charged
with racial hostility.”
See E.E.O.C. v. Beverage Canners, Inc.,
897 F.2d 1067, 1068, 1070 (11th Cir. 1990) (explaining that for
racial slurs to support a hostile work environment claim, the
alleged conduct should meet that standard and not be sporadic).
Further,
the
context
in
which
the
alleged
harassment
occurred weighs against finding a hostile work environment.
Oncale
v.
Sundowner
Offshore
Servs.,
Inc.,
523
U.S.
See
75,
81
(1998) (explaining that it is necessary to consider “the social
context in which particular behavior occurs and is experienced”
when evaluating whether a work environment is hostile).
While
it may be indefensible to describe someone derogatorily based on
the color of his skin, such conduct at Columbia Farms was not
restricted to Fortson or black employees.
undisputed
evidence
that
Dutton
was
repeatedly
ass” when he worked in Fortson’s position.
7,
ECF
No.
40-18.
unsophisticated
work
Fortson
has
environment
where
called
“white
Dutton Decl. ¶¶ 3-4,
painted
commonplace and good manners were absent.
13
The record includes
a
crude
picture
of
language
an
was
But being subjected
to
crude,
boorish
behavior
does
not
necessarily
provide
a
disgruntled employee with a legal cause of action.
D.
Interference with Job Performance
Finally, Fortson pointed to no evidence that the conduct to
which he was allegedly subjected unreasonably interfered with
his job performance.
He offers no explanation as to how the
hostile environment related in any way to his sleeping on the
job, which was the undisputed reason for his termination.
In summary, the Court finds that Fortson has failed to
point to sufficient evidence from which a reasonable jury could
conclude
that
he
experienced
race-based
harassment
that
was
severe or pervasive enough to alter the terms and conditions of
his employment.
Accordingly, Defendants are entitled to summary
judgment on Plaintiff’s § 1981 racially hostile work environment
claim.
II.
Intentional Infliction of Emotional Distress Claim
Fortson
asserts
that
the
conduct
underlying
his
hostile
work environment claim also supports an intentional infliction
of emotional distress claim under Georgia law.
For many of the
same reasons, his intentional infliction of emotional distress
claim
also
infliction
fails.
of
To
establish
a
claim
emotional
distress,
Fortson
for
must
intentional
prove
that
Defendants subjected him to intentional or reckless conduct that
was extreme and outrageous and caused severe emotional distress.
14
Bartholomew v. AGL Res., Inc., 361 F.3d 1333, 1339 (11th Cir.
2004).
Fortson presents no evidence that he suffered severe
emotional distress.
He has presented evidence from his wife
that
suffered
their
distress.
Rucker Statement.
indicating
conduct
marriage
the
that
because
of
Fortson’s
emotional
But there is nothing in the record
severity
of
the
distress.
Fortson
complains
Furthermore,
about,
while
rude
the
and
insensitive, was not sufficiently extreme and outrageous to give
rise
to
a
tort
claim
under
Georgia
law.
“Liability
for
intentional infliction of emotional distress has been found only
where the conduct has been so outrageous in character, and so
extreme
in
decency,
degree,
and
as
to
be
to
go
beyond
regarded
as
intolerable in a civilized community.”
Corp.,
281
Ga.
App.
(internal
quotation
typically
support
distress claim.
certain
amount
145,
marks
an
147,
635
omitted).
intentional
all
possible
atrocious,
bounds
and
of
utterly
Lockhart v. Marine Mfg.
S.E.2d
405,
Words
infliction
407
alone
of
(2006)
do
not
emotional
“Plaintiffs are expected to be hardened to a
of
rough
language.”
Id.
(internal
quotation
marks omitted).
Lockhart makes it clear that Fortson has no intentional
infliction of emotional distress claim under Georgia law.
In
Lockhart, a black plaintiff alleged that a supervisor ordered
him to retrieve an item or else he would “have the [Ku Klux]
15
Klan burn a cross in [his] yard;” a coworker told him to be
careful with a motor because “you can’t pay for that [motor]
with food stamps;” his manager told him “I ain’t your m____f___
nigger;” and a supervisor told him “Boy, you’re buying a lot of
stuff.
You must be selling drugs.”
281 Ga. App. at 146, 635
S.E.2d at 406 (first and third alterations in original).
The
Lockhart court found that the plaintiff failed to establish an
intentional infliction of emotional distress claim because the
comments were not part of “a systematic effort to belittle and
abuse” the plaintiff, but were “reactions to particular work
situations over a lengthy period of time.”
S.E.2d at 407.
Id. at 147-48, 635
Although Fortson arguably was subjected to more
numerous derogatory comments, those comments were less severe,
and
like
in
Lockhart,
most
of
them
were
in
reaction
to
particular work situations spread out over a lengthy period of
time.
not
Fortson had to endure conduct that was uncivil and rude,
extreme
and
outrageous
under
Georgia
law.
He
has
no
intentional infliction of emotional distress claim under Georgia
law.
III. Negligent Supervision/Retention Claim
Given the Court’s disposition of Fortson’s other claims, he
has nothing to which his negligent supervision and retention
claim can be tethered.
See Metro. Atlanta Rapid Transit Auth.
v. Mosley, 280 Ga. App. 486, 489, 634 S.E.2d 466, 469 (2006) (“A
16
claim for negligent retention is necessarily derivative and can
only survive summary judgment to the extent that the underlying
substantive claims survive the same.”).
Accordingly, Columbia
Farms is entitled to summary judgment on this claim.
CONCLUSION
The evidence Fortson relies on is not sufficient to create
a genuine factual dispute as to whether he was subjected to a
racially hostile work environment or the intentional infliction
of emotional distress.
Therefore, Defendants are entitled to
summary judgment on those claims.
substantive
claim
to
which
And in the absence of any
his
claim
for
negligent
supervision/retention could be connected, that claim too must
fail.
Accordingly, Defendants’ Motion for Summary Judgment (ECF
No. 39) is granted, and Plaintiff’s Motion for Summary Judgment
(ECF No. 44) is denied.
IT IS SO ORDERED, this 30th day of July, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
17
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