Carpenter v. AT&T et al
Filing
75
MEMORANDUM AND ORDER granting defendants' 67 Motion for Summary Judgment. Signed by District Judge Carlos Murguia on 06/12/2014. Mailed to pro se plaintiff John E. Carpenter by regular mail. (mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN E. CARPENTER,
Plaintiff,
v.
SOUTHWESTERN BELL TELEPHONE
COMPANY and JOSEPH ARRI,
Defendants.
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Case No. 12-2483-CM
MEMORANDUM AND ORDER
Plaintiff John E. Carpenter brings hostile work environment claims against his former
employer, Southwestern Bell Telephone Company (“Southwestern Bell”), and his former supervisor,
Joseph Arri. Plaintiff initially brought discrimination, retaliation, and hostile work environment claims
under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. This court granted defendants’
summary judgment motion on plaintiff’s discrimination and retaliation claims. But the hostile work
environment claims remain, as defendants did not address them in their first motion for summary
judgment. The hostile environment claims are now before the court on defendants’ second Motion for
Summary Judgment (Doc. 67). For the following reasons, the court grants the motion.
I.
Factual Background
Plaintiff is an African-American who worked for defendant Southwestern Bell in its Kansas
facility. Several of his co-workers made whistling noises throughout the workday. The whistling
annoyed and offended plaintiff, who repeatedly complained about it. Defendant Arri took steps to
reduce the whistling, including distributing an office memo and asking the whistling employees to
whistle less frequently. But defendants did not expressly prohibit whistling in the office.
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On September 4, 2008, plaintiff was sent home after complaining of the noise. That day,
plaintiff reported four coworkers for racial harassment to the Equal Employment Opportunity hotline.
In addition to the whistling, plaintiff points to one comment as evidence of a hostile work
environment: about six years ago, a co-worker said, “This is the dark side in more ways than one,”
while passing plaintiff’s cubicle. (Doc. 71-1 at 3.)
II.
Summary Judgment Standard
The court grants summary judgment if the record demonstrates that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). The moving party bears the burden of showing that there is no genuine issue of material fact.
Fasbinder v. City of Overland Park, No. 09-2043-JAR, 2010 WL 1930974, at *1 (D. Kan. May 10,
2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets this
burden, the nonmovant must set forth specific facts from which a rational trier of fact could find for the
nonmovant. Id. (citing Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003)).
Although the court construes pro se filings liberally, pro se plaintiffs still must offer factual support for
their claims. Douglass v. Gen. Motors Corp., 368 F. Supp. 2d 1220, 1228 (D. Kan. 2005) (citing
Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988)). The court
need not provide additional factual allegations or accept a plaintiff’s conclusory allegations. Nichols v.
Schmidling, 10-2086-JAR, 2011 WL 5837173, at *2 (D. Kan. Nov. 21, 2011) (citations omitted).
III.
Analysis
A.
Individual Claim Against Defendant Arri
The court dismisses the Title VII claim against defendant Arri in his individual capacity.
Plaintiffs may bring Title VII suits against individuals only in their official capacities, not in their
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personal capacities. Id. The parties agree there is no valid claim against defendant Arri in his
individual capacity. Accordingly, the court dismisses the claim.
B.
Hostile Work Environment Claim
For a hostile work environment claim to survive summary judgment, the plaintiff must show
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.” Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (citation omitted). This is true
under either Title VII or § 1981. Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994) (citations
omitted) (observing that the burdens are the same under Title VII and § 1981). And the court evaluates
these factors both subjectively and objectively. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th
Cir. 2007) (citation omitted).
1. The harassment was not sufficiently severe or pervasive to create an abusive
environment.
Plaintiff has not shown harassment that rises to the level necessary to establish a hostile work
environment. The harassment need not be both pervasive and severe; it may be sufficiently pervasive
in its scope or sufficiently severe in its intensity. Hudson v. AIH Receivable Mgmt. Servs., 10-CV2287-JAR, 2012 WL 5306277, at *3 (D. Kan. Oct. 29, 2012) (citing Smith v. Nw. Fin. Acceptance,
Inc., 129 F.3d 1408, 1413 (10th Cir. 1997)).
To determine the level of the harassment, the court looks both to “whether the plaintiff was
offended by the work environment and whether a reasonable person would likewise be offended.”
Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012). Title VII is not meant to
police the workplace for general civility. Id. The court, therefore, requires more than evidence of
“mere snubs, unjust criticisms, and discourteous conduct.” Hudson, 2012 WL 5306277, at *2
(quotation marks and citation omitted). The court considers the totality of the circumstances, including
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the frequency of the conduct, its severity, whether it rises to the level of a threat, and whether it
unreasonably interferes with the plaintiff’s ability to work. Id. (citation omitted).
Here, plaintiff was subjectively offended by the work environment. He states that he found the
whistling offensive and took it personally. He maintains that the continuous whistling is
“impermissible in an indoor office setting particularly when an employee complains of such.” (Doc.
71 at 15–17.)
The conduct, however, was not severe or pervasive enough to create an objectively abusive
environment. One incident—or even a few isolated incidents—is not enough to meet the burden.
Plaintiff must instead show “a steady barrage” of racial acts or comments. Douglass, 368 F. Supp. 2d
at 1231 (quotation marks and citation omitted). In Hernandez, the plaintiff had overheard at least a
dozen racially offensive comments and jokes over fourteen months. 684 F.3d at 958. She endured
racially offensive comments and jokes about Mexicans, dealt with accusations of her family members
being thieves and murderers, and faced suspicion and questioning that her white co-workers did not
receive. Id. at 954. And she frequently complained to her supervisors about the racial comments. Id.
at 958. The Tenth Circuit found that a reasonable jury could find that a reasonable person would be
offended by the work environment. Id.
In Brown v. Cargill, on the other hand, the plaintiff alleged that the defendant made only one
race-related comment. No. 09-2570-CM, 2010 WL 4440086, at *1 (D. Kan. Nov. 1, 2010). The
plaintiff, who was African-American, alleged that the defendant told him that “black people don’t
work at Cargill,” their place of employment. Id. The plaintiff offered no evidence that any other
abusive or harassing conduct was motivated by race, beyond his own perception that the treatment was
racially-motivated. Id. at *5. The court found that the facts were facially neutral and that one racebased comment was insufficient to sustain a hostile work environment claim. Id.
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The conduct here is more similar to Brown than to Hernandez. Here, there is no evidence that
the whistling was discriminatory. Plaintiff argues the whistling was a disruption by non-black fellow
employees “clearly directed at and designed to aggravate, obstruct, and undermine” plaintiff. (Doc. 71
at 6–7.) Plaintiff can point to one arguably racial comment—his co-worker’s statement that “[t]his is
the dark side in more ways than one.” (Doc. 71-1 at 3.) But beyond this, plaintiff cannot demonstrate
evidence of racial motivation beyond his conclusory claim that he was “subjected to an unrelenting
pattern of racial harassment.” (Id. at 12.)
Even if the whistling was targeted at plaintiff, plaintiff has not met his burden under the totality
of the circumstances analysis. There were no physical threats; rather, there was one offensive
utterance. The impact of the whistling was not severe enough to be objectively abusive. Although
plaintiff argues that the whistling “substantially obstructed him in the performance of his duties” (id. at
26), the uncontroverted evidence shows that plaintiff was the only person in the office who was
offended by the whistling. The other employees, including the non-white ones, did not complain about
the whistling. In an office environment, noise is common; such whistling can reasonably be
characterized—at worst—as the “‘run-of-the-mill boorish, juvenile, or annoying behavior’” that Title
VII is not designed to police. Hernandez, 684 F.3d at 957 (quoting Morris v. City of Colo. Springs,
666 F.3d 654, 663–64 (10th Cir. 2012)). No rational trier of fact could find that the conduct was
sufficiently severe or abusive to establish a hostile work environment.
2. The conduct was not based on race.
Plaintiff also fails to show that the whistling was racially-motivated. Plaintiff has the burden to
show that any harassment he endured was because of his race. Herrera, 474 F.3d at 680. Like the
plaintiff in Brown who “apparently perceive[d] every negative action as racially motivated,” plaintiff
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here alleges continuous racial harassment without showing evidence to support that perception. See
Brown, 2010 WL 4440086, at *5.
Plaintiff points to one race-based incident, but one incident is insufficient to meet the burden.
In Carter v. Meridian Auto Systems, the plaintiff presented evidence of two anonymous notes he
received: one read “You Are On Your Way Out Colored Boy” and the other read “Lazy black ass
nigga.” 368 F. Supp. 2d 1130, 1140 (D. Kan. 2004). The court acknowledged these notes as raciallybased conduct but still found that these two incidents were not enough to demonstrate a hostile work
environment. Id. The racial conduct in Carter is more severe, more frequent, and more explicitly
racist than the conduct here. Further, the race-based comment here was made nearly six years ago,
with no evidence of additional race-based comments.
Plaintiff’s main grievance is based on whistling. There is nothing in the record to suggest that
the whistling was race-based. In fact, the record demonstrates that the whistling occurred regardless of
whether plaintiff was present. In addition, other black employees did not find the whistling racemotivated. The single, isolated comment does not convert neutral whistling into race-based
harassment.
III.
Conclusion
Plaintiff fails to establish a hostile work environment. Although he subjectively perceived the
conduct in the work environment as severe and pervasive harassment, the conduct does not objectively
rise to the level required to prove a hostile work environment. Further, plaintiff fails to show that his
co-workers’ conduct, beyond one comment, was racially-motivated. Summary judgment is warranted
on plaintiff’s hostile environment claim—the last remaining claim in the case.
IT IS THEREFORE ORDERED that defendants’ Motion for Summary Judgment (Doc. 67)
is granted.
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The case is closed.
Dated this 12th day of June, 2014, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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