Howard v. Oklahoma Department of Corrections et al
Filing
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ORDER granting in part and denying in part 16 Defendants' Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 3-20-17. (ml)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DERRICK W. HOWARD,
Plaintiff,
v.
OKLAHOMA DEPARTMENT
OF CORRECTIONS, a state agency;
MICHAEL ADDISON, an individual;
and MICHAEL SHELITE, an individual,
Defendants.
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Case No. CIV-15-265-D
ORDER
This matter comes before the Court on Defendants Oklahoma Department of
Corrections (ODOC), Michael Addison, and Michael Shelite’s (collectively,
Defendants) Motion for Summary Judgment [Doc. No. 16]. Plaintiff Derrick
Howard (Howard) has filed his response in opposition [Doc. No. 19], and
Defendants have replied [Doc. No. 22]. The matter is fully briefed and at issue.
This lawsuit arises from Howard’s employment as a corrections officer at
the Joseph Harp Correctional Center (JHCC), where he alleges he was subjected to
a hostile work environment and retaliated against due to his race and disability.
Howard is African-American and suffers from Post-Traumatic Stress Disorder
(PTSD). His claims arise under the civil rights statutes, specifically, 42 U.S.C. §
1981; the Americans with Disabilities Act (ADA), as amended by ADA
Amendments Act of 2008 (ADAAA), 42 U.S.C. § 12101 et seq.,1 and the common
law. At all relevant times, Defendant Addison was warden of JHCC and Defendant
Shelite was JHCC’s chief of security. The following material facts are undisputed,
and, along with all reasonable inferences, are viewed in the light most favorable to
Howard. Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017).
BACKGROUND
Howard was employed at JHCC from June 14, 2010 to December 3, 2013.
He states his problems at JHCC began in May 2012, when JHCC officer
Lieutenant Dooley began harassing him. According to Howard, Dooley began to
constantly monitor him on security cameras and accused Howard at one point not
performing his security checks. Howard also states Dooley accused him of being
too friendly with inmates and behaving like a “dirty” officer. In October 2012,
Howard was accused of failing to provide medical assistance to an inmate who had
suffered facial injuries in the segregated housing unit (SHU). Although the
inmate’s injuries were determined to have been accidental or self-inflicted, Howard
was removed from SHU. Howard contends his removal was due to false
1
Howard’s state court Petition seeks relief under the Americans with Disabilities
Act (ADA). Petition at 6 [Doc. No. 1-1]. The ADAAA’s amendments to the ADA
went into effect on January 1, 2009. The events that form the basis for Howard’s
disability discrimination claims occurred after this date; accordingly, the ADAAA
is technically applicable here. Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1304 n.
1 (10th Cir. 2017). Consequently, the Court refers to Howard’s disability-related
claims as claims alleging violations of the ADAAA. Id.
2
accusations by another JHCC officer, Captain Day, whom Howard also accuses of
racial harassment and retaliation, as discussed more fully below.
Howard describes an incident that occurred in November 2012 in which a
random drug search was performed on JHCC employees by a K-9 unit. When
Howard appeared, the K-9 officer, Sergeant Stephens, began snapping his fingers
around Howard and made a gesture with his arm. The drug dog sat down,
indicating Howard was in possession of contraband. Stephens told Howard to stay
seated and asked for his identification badge. The same dog had previously sniffed
at another employee, but Stephens pulled it away, commenting that the employee
must have owned a female dog. No contraband was found on Howard, but the
incident left him feeling embarrassed. Howard alleges he was targeted by
Stephens, although there were other black officers present who did not draw
attention from Stephens. However, another officer who had observed the incident
believed Stephens’ actions toward Howard were disrespectful, and an internal
memorandum sent to Addison stated there was a sentiment among the inmate
population that Stephens targeted minorities.2
2
Howard also states that he was told Stephens did not like black people, had a
vendetta against Howard, and referred to the Martin Luther King Holiday as “dead
nigger day.” The Court, however, declines to consider such statements at this stage
since they constitute inadmissible hearsay. At the summary judgment stage, “the
nonmoving party need not produce evidence ‘in a form that would be admissible at
trial,’ but the content or substance of the evidence must be admissible.” Thomas v
Int’l Business Machines, 48 F.3d 478, 485 (10th Cir. 1995) (citations omitted).
3
During the same period, an inmate was caught in possession of a cell phone.
The inmate accused Howard and two other officers (both African-American)3 of
bringing contraband into the facility. A yearlong investigation ensued, resulting in
disciplinary action being recommended against officers and inmates. Howard was
found to have given false statements concerning his ownership of a prepaid debit
card. No disciplinary action was taken against him, however, and neither Howard
nor the other officers were found to have brought contraband into JHCC. Officials
at JHCC planned an undercover operation to determine whether Howard and other
officers were bringing contraband into the facility, but there is no evidence in the
record that the plan was implemented.
Howard describes another incident in which Captain Day expressed his
disdain for a black inmate before Howard and other officers. Day repeatedly called
the inmate “boy” while looking at Howard. This embarrassed Howard, who was
the only black officer present, and he felt Day’s comments were meant to
dehumanize him. In addition, Howard also alleges Day falsely accused him of
placing handcuffs too tight on an inmate. Howard believes Day’s accusations were
retaliation against him for filing a racial discrimination complaint.
3
At the time of Howard’s employment, JHCC employed only six black officers out
of approximately 120 who worked at the facility.
4
Howard met with Shelite to discuss Day’s conduct. During their meeting,
Shelite told Howard that everyone says “boy” and he felt the term was innocuous.
Shelite asked Howard if he was happy at JHCC and said he could get him a job
someplace else where he could be happy. Howard felt his career had been
threatened and filed an incident report. In his report, Howard stated Shelite “ha[d]
his point of view made up” and believed his questions bore no relevance to the
incident at issue. Howard and Shelite had three more encounters, two of which
occurred in the JHCC parking lot. During the first incident, Shelite greeted Howard
but became upset when Howard did not respond in kind. The next day, Shelite
demanded a meeting with Howard, but Howard refused, stating he did not feel safe
meeting with Shelite alone. The third occurred in Shelite’s office, where Shelite
intended to reprimand Howard for the previous confrontations. Shelite ordered
Howard to sit down, but Howard refused and instead handed Shelite his attorney’s
business card. Shelite told Howard to leave and reprimanded him for failing to
follow his directions and afford the respect and courtesy due an officer.
Howard filed two internal grievances with JHCC. His first grievance
contended his aforementioned removal from segregated housing was due to
continued harassment by Day and other officers in JHCC’s security office. Howard
concluded his complaint by stating, “[b]ecause of this latest charge I cannot even
work overtime because of fear of being demoted and or losing my job PLEASE
5
HELP.” (Emphasis in original). Howard’s second grievance complained of Day’s
“boy” comments. Howard stated he had had “many incidents” with officers at
JHCC, the latest of which was with Day. In his request for relief, Howard stated he
“pray[ed] that this and other racial behavior would stop ... I do not want any
RETALIATION for making this statement of this and ... other incidents that I am
bring[ing] forward[.]” (Emphasis in original). Howard concluded by stating “I just
pray that I can get this and other incidents resolved without any prejudice and no
retaliation.”
During Howard’s employment, another JHCC officer emailed Addison and
stated there appeared to be “an all-out attack” on Black officers at JHCC since
Shelite’s arrival. The officer’s email cited several incidents other black/minority
officers had with Shelite, including Howard’s meeting with Shelite over Day’s
comments. Addison, in response, contacted ODOC investigators and stated that
there was “an increasing atmosphere of alleged discrimination being voiced by
several staff at JHCC.” Addison shared his concern that such animosity was
detrimental to the facility, affecting the inmate population, and requested an
investigation be conducted to determine whether any of the allegations could be
substantiated. ODOC’s Civil Rights Administrator found that Day’s “boy”
comments were unbecoming for the workplace and in violation of policy and Day
6
was reprimanded. However, Howard’s other complaints of racial discrimination
were determined to be unsubstantiated.
On April 19, 2013, Howard filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) wherein he alleged he was being
harassed and subjected to a hostile work environment. Howard cited the “false hit”
by the drug dog, his separation from segregated housing, the allegations of
contraband, and Stephen’s alleged comments about the King Holiday. Howard
contended that despite his protests, no corrective action was taken. On June 5,
2013, Howard amended his charge to include (1) allegations that Dooley continued
to harass him, (2) Day’s “boy” comments, (3) Shelite’s alleged threats against him,
and (4) the undercover operation that had been planned. Howard also stated that a
recent investigation opened against him, discussed below, was retaliation for his
repeated complaints of discrimination.
Each year, ODOC receives a list of individuals the Oklahoma Tax
Commission (OTC) has deemed non-compliant with state income taxes. The list of
employees who have been identified as non-compliant for three years or more is
provided to ODOC human resources for further action. Although individuals who
are listed as non-compliant for four years generally depart from ODOC for various
reasons, employees with three or more violations have remained employed.
Howard had a payment plan set up with OTC to pay his taxes; however, he stopped
7
making payments in May 2013. On July 12, 2013, a notice containing noncompliant JHCC employees, including Howard, was sent to Addison. Shortly after
the list was issued, Howard took leave pursuant to the Family and Medical Leave
Act (FMLA) to enter a substance abuse clinic. Howard’s FMLA medical
certification form provided a provisional diagnosis of PTSD and stated Howard
was suffering from severe anxiety, alcoholism and depression, which he attributed
to the harassment at JHCC. Howard said these conditions interfered with his
ability to function and take care of his health. Howard informed Shelite that he was
on anxiety medication.
Howard unsuccessfully applied for positions elsewhere, but was chosen for
transfer to another facility, Lexington Assessment and Reception Center (LARC),
where his pay, benefits, and duties would have been the same. Howard refused the
assignment because Shelite had a friend who worked at LARC. On November 7,
2013, Howard was served with a Pre-Termination Hearing Notice based on his
failure to pay taxes. The next day, Howard sent a letter to JHCC stating he was not
returning to work due to stress. Howard did not appear at the termination hearing
and on December 3, 2013, he was terminated from JHCC for failing to pay taxes.
At the time of his termination, Howard’s medical leave had been expended.
Howard filed another administrative charge wherein he alleged he was fired for
seeking medical leave and complaining of racial discrimination.
8
Howard filed suit against ODOC, Addison, and Shelite in Cleveland County
District Court, alleging discrimination and retaliation based on race and disability.
Howard also contended Defendants’ actions constituted intentional and negligent
infliction of emotional distress. Defendants removed the action to this Court and
now seek summary judgment on the grounds that (1) Howard has not established a
prima facie claim of either discriminatory treatment or retaliation; (2) Howard has
not established that his work environment was hostile; (3) Defendants are not
liable for Howard’s ADA claim by virtue of sovereign immunity; (4) Howard has
not established individual liability against Addison and Shelite; and (5) Howard
has failed to establish a claim for either intentional or negligent infliction of
emotional distress.
STANDARD OF DECISION
Summary judgment is proper “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.” Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir.
2016) (quoting Fed. R. Civ. P. 56(a)). The movant may make such a showing
through the pleadings, depositions, other discovery materials, and affidavits. Water
Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1142 (10th Cir. 2013). As stated, at
the summary judgment stage, the Court views the facts in the light most favorable
9
to the non-movant, Howard, and draws all reasonable inferences from the record in
his favor. Dewitt, 845 F.3d at 1306.
Although Howard is entitled to all reasonable inferences from the record, he
must still marshal sufficient evidence requiring submission to the jury to avoid
summary judgment. Id.; Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007).
Thus, if Howard bears the burden of persuasion on a claim at trial, summary
judgment may be warranted if Defendants point out a lack of evidence to support
an essential element of that claim and Howard cannot identify specific facts that
would create a genuine issue. Water Pik, 726 F.3d at 1143-44. “An issue is
‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way,” and “[a]n issue of fact is ‘material’ if under the
substantive law it is essential to the proper disposition of the claim.” Adler v. WalMart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
DISCUSSION
I.
HOWARD’S CLAIMS UNDER THE ADAAA
A.
Sovereign Immunity
Because state sovereign immunity is a threshold jurisdictional issue, the
Court must address it first before it can reach the merits of Howard’s ADAAA
claims. See Brockman v. Wyoming Dep’t of Family Services, 342 F.3d 1159, 1163
(10th Cir. 2003) (“Because state sovereign immunity is a threshold jurisdictional
10
issue, we must address it first when it is asserted by a defendant.”) (citing Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).
Under the Eleventh Amendment to the United States Constitution, “[t]he
Judicial Power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States....” U.S.
CONST.
AMEND.
XI. “The ultimate guarantee of the Eleventh Amendment is that
nonconsenting States may not be sued by private individuals in federal court.” Bd.
of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). Agencies of the
State of Oklahoma, such as ODOC, are treated as the state for the purpose of
sovereign immunity under the Eleventh Amendment. See, e.g., Eastwood v. Dep’t
of Corr. of State of Okla., 846 F.2d 627, 631 (10th Cir. 1988). Sovereign
immunity, however, is not absolute. For example, Congress may abrogate a state’s
sovereign immunity if Congress “has unequivocally expressed its intent to
abrogate the immunity, and ... has acted pursuant to a valid exercise of power.”
Mojsilovic v. Okla. ex rel. Bd. of Regents for Univ. of Okla., 841 F.3d 1129, 1131
(10th Cir. 2016) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996)).
Moreover, a state may waive its immunity by consenting to suit. Estes v. Wyo.
Dep’t of Transp., 302 F.3d 1200, 1203 (10th Cir. 2002). Howard contends
Defendants waived immunity when they removed his action to this Court.
11
The Tenth Circuit addressed a similar argument in Estes, supra. There, the
plaintiff brought an ADA claim, as well as state law claims, against the Wyoming
Department of Transportation in state court. The defendant removed the case to
federal court, stating it was not waiving any constitutional challenges to the district
court’s jurisdiction. The district court concluded Congress validly abrogated the
states’ sovereign immunity for violations of Title I of the ADA, and the defendant
appealed. On appeal, the Tenth Circuit was confronted with the question of
whether the mere act of removing federal-law claims waives a state’s sovereign
immunity in federal court. Relying in part on precedent from the Supreme Court,
notably, Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613 (2002),
the Tenth Circuit concluded Congress did not validly abrogate the states’ sovereign
immunity from suit under Title I of the ADA, but the defendant waived its
sovereign immunity for the ADA claim when it removed the case to federal court.
Estes, 302 F.3d at 1206 (“We conclude that [defendant] has waived its sovereign
immunity relative to the ADA claim even if it attempted to remove the present case
simply to federal court to challenge the jurisdiction of the federal forum. ... It is
only when a State removes federal-law claims from state court to federal court that
it ‘submits its rights for judicial determination’ ... and unequivocally invokes the
jurisdiction of the federal courts.”) (citations omitted).
12
The court in Estes was confronted with a claim arising under the ADA and
not the ADAAA. And although “the ADAAA is devoid of language purporting to
negate the constitutional limitation upon the authority of Congress to abrogate state
sovereign immunity recognized in Garrett,” Goodnow v. Okla. Dep’t of Human
Services, No. 11-CV-54, 2011 WL 4830183, at *1 (N.D. Okla. Oct. 12, 2011), the
Court finds no meaningful distinction between the rationale expressed in Estes and
the present case with respect to Defendant’s waiver of sovereign immunity.
Accordingly, the Court finds that Defendants waived sovereign immunity for
Howard’s ADAAA claim when they removed the case to this Court, and
Defendants’ motion is denied on this issue.
B.
ADAAA Discrimination and Retaliation
Alternatively, Defendants contend they are entitled to summary judgment on
Howard’s ADAAA claim because he is not a “qualified individual” with a
disability and has not established a prima facie case of either discrimination or
retaliation based on his alleged disability.
1.
Discrimination
The ADAAA prohibits discrimination “against a qualified individual
on the basis of disability.” Thus, to establish a prima facie case of
discrimination under the ADAAA, a plaintiff must show that (1) he is
disabled as defined under the ADAAA; (2) he is qualified, with or
without reasonable accommodation by the employer, to perform the
essential functions of the job; and (3) he was discriminated against
because of his disability.
13
Adair v. City of Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016) (citing Hawkins
v. Schwan’s Home Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015) (internal citation
omitted)). Since, in the Court’s view, there is no direct evidence of disability
discrimination, the analytical framework first articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04, guides the Court’s analysis. Hawkins, 778
F.3d at 883; Kilcrease v. Domenico Transp. Co., 828 F.3d 1214, 1220 (10th Cir.
2016). Applying McDonnell Douglas to the summary judgment context, a plaintiff
initially must raise a genuine issue of material fact on each element of the prima
facie case. If a plaintiff establishes a prima facie case, the burden shifts to the
defendant to offer a legitimate nondiscriminatory reason for its employment
decision. If the defendant articulates a nondiscriminatory reason, the burden shifts
back to the plaintiff to show a genuine issue of material fact as to whether the
reason is pretextual. Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d
1193, 1201 (10th Cir. 2006). The burden of proof for a prima facie case is “not
onerous.” Hawkins, 778 F.3d at 883 (quoting Plotke v. White, 405 F.3d 1092, 1099
(10th Cir. 2005)).
Howard concludes the following conduct constitutes discrimination:
Defendant Shelite knew as early as February, 2013 of Mr. Howard’s
disability. ODOC also was aware that Mr. Howard was seeking
treatment as early as May, 2013 and that he went on FMLAqualifying leave in August, 2013. Even though they were aware of
this, Defendants ignored his symptoms and continued to subject him
to harassment. While he was on leave, he was terminated from
14
employment, scheduling his pre-termination hearing while he was
incapacitated. Further, during this time he was told he would be
transferred to LARC, and not a facility outside of District 13, as he
requested, even though open positions were available. It is clear that
Mr. Howard’s disability played a role in his treatment by the
Defendants and in his termination from employment.
Pl. Resp. Br. at 24.
Viewing the evidence in the light most favorable to Howard, the Court
concludes he has failed to establish a triable issue regarding the discrimination
element of his prima facie case. Even assuming, for purposes of this order, that
Howard is disabled and qualified to perform the essential functions of a corrections
officer with or without accommodations, the record is devoid of any evidence of
discrimination based on his disability. The Court finds Howard’s arguments are
conclusory and that a reasonable trier of fact would not find Howard was
discriminated against due to his PTSD. Although Defendants may have acted
callously toward Howard during this time, mere threats, indignities, annoyances,
petty oppressions and other callous and insensitive conduct are not actionable
under the federal anti-discrimination laws. See infra. Moreover, there is no
substantive evidence such actions were taken because of Howard’s PTSD. Howard
has failed to present a genuine dispute regarding whether he was discriminated
against due to his disability and Defendants’ motion should be granted on this
issue.
15
2.
Retaliation
To establish a prima facie case of retaliation, a plaintiff must prove that (1)
he engaged in a protected activity; (2) he was subjected to an adverse employment
action subsequent to or contemporaneous with the protected activity; and (3) there
was a causal connection between the protected activity and the adverse
employment action. Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186-87
(10th Cir. 2016). An adverse action is one that produces “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 761 (1998). As noted,
adverse actions do not include “petty slights, minor annoyances, and simple lack of
good manners.” McGowan v. City of Eufala, 472 F.3d 736, 742 (10th Cir. 2006)
(quoting Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The
Court considers whether an action is “adverse” on a case-by-case basis, using an
objective standard and “examining the unique factors relevant to the situation at
hand.” Id. (quoting Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir.
1998)).
Defendants contend Howard has failed to establish the third element: that a
causal connection exists between the protected activity and adverse action. The
Court agrees. The critical inquiry at this stage is whether Howard has demonstrated
16
that Defendants’ actions occurred under circumstances which give rise to an
inference of unlawful retaliation. Proctor v. United Parcel Service, 502 F.3d 1200,
1208 (10th Cir. 2007). The Tenth Circuit has repeatedly recognized that temporal
proximity between protected conduct and termination is relevant evidence of a
causal connection sufficient to justify an inference of retaliation. Id.; Metzler v.
Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006). However,
a plaintiff may rely on temporal proximity alone if the termination is very closely
connected in time to the protected activity. Id. (citing Anderson v. Coors Brewing,
181 F.3d 1171, 1179 (10th Cir. 1999)).
Howard filed his amended administrative charge on June 5, 2013, and his
termination letter was sent approximately six months later, on December 3, 2013.
In this regard, the Tenth Circuit has stated “[f]our months is too large a time gap to
establish a causal connection.” Proctor, 502 F.3d at 1208 (citation omitted).
Because a six-month time period does not support an inference of retaliatory
motive, Howard must present additional evidence to establish the necessary causal
connection. See id. at 1209 (citing Piercy v. Maketa, 480 F.3d 1192, 1198 (10th
Cir. 2007)); see also Piercy, 480 F.3d at 1198-99 (“[T]he passage of time does not
necessarily bar a plaintiff’s retaliation claim if additional evidence establishes the
retaliatory motive.”). As additional circumstantial evidence of retaliatory motive,
Howard states:
17
Any reasonable employee would find that the failure to remedy
ongoing harassment was a materially adverse action, especially when
this adverse action led to exacerbating symptoms of a disability.
Further, any reasonable employee would find that termination from
employment was materially adverse. ... Because the harassment was
not stopped, Mr. Howard was required to take medical leave, which
caused him to fall behind on his payment plan.
Pl. Resp. Br. at 17. These assertions do not support an inference of retaliatory
action. Even when viewed collectively, an adverse employment action is a tangible
change in working conditions that produces a material employment disadvantage,
such as termination, cuts in pay or benefits, and changes that affect an employee’s
future career prospects. Ellerth, 524 U.S. at 761. Howard’s complaints do not fall
within this rubric. Moreover, Howard was offered an opportunity to transfer to
another facility with similar benefits, and perhaps most damaging to his contention
is the fact the decision to terminate Howard was based on his failure to pay state
taxes – an event triggered by the Oklahoma Tax Commission, not ODOC. Under
the circumstances presented here, the Court concludes a reasonable trier of fact
would not find evidence of discriminatory retaliation.
II.
HOWARD’S CLAIMS UNDER TITLE VII AND 42 U.S.C. § 1981
A.
Hostile Work Environment
Title 42 U.S.C. § 1981 prohibits racial discrimination in the workplace. See
Lounds v. Lincare, Inc., 812 F.3d 1208, 1221 (10th Cir. 2015) (citing Univ. of Tex.
Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S.Ct. 2517, 2529, 186 L.Ed.2d 503
18
(2013)). “Similarly, Title VII makes it an unlawful employment practice 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. ... Both statutes authorize a plaintiff to bring a claim for hostile
work environment based on unlawful race discrimination.” Id. (internal citations
and quotation marks omitted). “The same substantive standards apply to a hostile
work environment claim regardless of whether the plaintiff has brought it under
§1981 or Title VII.” Lounds, 812 F.3d at 1221. (citing Aramburu v. Boeing Co.,
112 F.3d 1398, 1410 (10th Cir. 1997); Durham v. Xerox Corp., 18 F.3d 836, 839
(10th Cir. 1994)). “Accordingly, [the Court is] guided in part by Title VII cases in
assessing [Howard’s] hostile work environment claim.” Id.
Title VII does not establish a general civility code for the workplace, and a
plaintiff may not predicate a hostile work environment claim on run-of-the-mill
boorish, juvenile, or annoying behavior that is not uncommon in the workplace. Id.
at 1222. “Therefore, to avoid summary judgment at the prima facie stage, a
plaintiff must present evidence that creates a genuine dispute of material fact as to
whether ‘the workplace is permeated with discriminatory intimidation, ridicule,
and insult[] that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment.’ ” Lounds, 812 F.3d at 1222 (citing Hall v. U.S. Dep’t of
Labor, 476 F.3d 847, 851 (10th Cir. 2007)). “Pervasiveness and severity are
19
independent and equal grounds on which to support violations of § 1981.” Id.
(quoting Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998)).
Accordingly, to establish a prima facie case of a hostile work environment
based on race, Howard must establish that (1) he is a member of a protected group;
(2) he was subject to unwelcome harassment; (3) the harassment was based on
race; and (4) due to the harassment’s pervasiveness and/or severity, a term,
condition, or privilege of his employment was altered and created an abusive
working environment. Id. (citing Harsco Corp. v. Renner, 475 F.3d 1179, 1186
(10th Cir. 2007)). As the Tenth Circuit stated in Lounds:
It is important to recognize that the severity and pervasiveness
evaluation is particularly unsuited for summary judgment because it is
inherently fact-found by nature. There is not, and by its nature cannot
be, a mathematically precise test for a hostile work environment
claim. To the contrary, the totality of the circumstances is the
touchstone of a hostile work environment analysis. Courts consider a
variety of factors in this holistic analysis, including 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.
Moreover, courts assess whether the work environment is both
subjectively and objectively hostile or abusive. In other words, it is
not enough that a particular plaintiff deems the work environment
hostile; it must also be of the character that it would be deemed hostile
by a reasonable employee under the same or similar circumstances.
Lounds, 812 F.3d at 1222 (citations, internal quotations and alterations omitted).
Thus, the Tenth Circuit has underscored that pervasiveness is not simply a
counting measure and “requires a broader contextual analysis that carefully
20
considers each instance as a component of the overall workplace milieu.” Id.
(citations omitted). “Much like a play cannot be understood on the basis of some of
its scenes but only on its entire performance, which is the sum total of those
scenes, a discrimination analysis must concentrate not on individual incidents, but
on the overall scenario, which is informed by the sum total of those incidents.” Id.
at 1223-24 (citations, internal quotations and alterations omitted). As the Federal
Circuit in King v. Hillen, 21 F.3d 1572 (Fed. Cir. 1994), cited by the Lounds Court,
observed: “by viewing each incident in isolation, as if nothing else had occurred, a
realistic picture of the work environment is not presented.” Id. at 1581 (alterations
omitted, emphasis in original). Accordingly, Tenth Circuit precedent requires the
Court to assess, in its analysis, comments and behavior that in many circumstances
might appear to be facially neutral. Lounds, 812 F.3d at 1224.4
The dispositive question here is whether there is sufficient evidence of
severity and pervasiveness on the record such that the Court should give a jury the
opportunity to evaluate the evidence, demeanor, and candor of witnesses and make
the ultimate determination. Id. at 1227. Stated another way, the Court must analyze
4
Day’s repeated utterance of the word “boy” in Howard’s presence can be viewed
as racially offensive. See Tademy v. Union Pacific Corp., 614 F.3d 1132, 1142
(10th Cir. 2008) (“As typically used in everyday English, there is nothing
inherently offensive about the word ‘boy.’ Nevertheless, it is a term that has been
used to demean African-American men, among others, throughout American
history.”).
21
the conduct at issue here with the aforementioned guidelines in mind and
determine “whether a reasonable jury could find that the subjective and objective
effect of the[] conduct was to pollute the environment with harassing conduct that
was, inter alia, racially humiliating, offensive, or insulting.” Lounds, 812 F.3d at
1228. The Court concludes the jury should be afforded an opportunity to undertake
such a task. Whether the incidents at issue were as pervasive and severe as to
constitute a hostile work environment is a question unsuited for summary judgment
and best left for the jury to decide. O’Shea v. Yellow Tech. Services, Inc., 185 F.3d
1093, 1098 (10th Cir. 1999). The Court believes such evidence, and all reasonable
inferences therefrom, viewed in the light most favorable to Howard, raises triable
issues for jury determination. Howard has made a sufficient showing of conduct
that could be viewed, under the totality of circumstances, as racially offensive and
embarrassing. Accordingly, Defendants’ motion on this issue is denied.5
5
Defendants contend they are also entitled to the affirmative defense announced in
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998) (the Ellerth/Faragher defense). Although Ellerth and
Faragher dealt with claims of sexual harassment, their reasoning is equally
applicable to claims of racial harassment. Wright-Simmons v. City of Okla. City,
155 F.3d 1264, 1270 (10th Cir. 1998). The Ellerth/Faragher defense requires proof
that (1) the employer exercised reasonable care to prevent and correct promptly
any harassing behavior and (2) the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise. Id. at 1271. Defendants here are not entitled to the
defense, as the record supports a finding that Howard filed grievances concerning
conduct he deemed offensive, and thereby took advantage of corrective
opportunities provided by ODOC.
22
B.
Racial Discrimination
To establish a prima facie case of race discrimination under § 1981 and/or
Title VII, a plaintiff must show: (1) he is a member of a racial minority; (2) he
suffered an adverse employment action; and (3) similarly situated employees were
treated differently. Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211,
1212 (10th Cir. 1998). As above, since there is no direct evidence of
discrimination, the analytical framework under McDonnell Douglas applies to this
claim.
At issue is whether Howard has satisfied the third prong, i.e., that he was
treated differently than other similarly situated employees. Viewing the record
evidence most favorably to Howard, he has presented evidence that other ODOC
employees were deemed non-compliant regarding payment of taxes three or more
times, but remained employed at ODOC.6 For purposes of summary judgment, the
Court will assume Howard and these employees are similarly situated. However,
“[m]erely finding that people have been treated differently stops short of the
crucial question: why people have been treated differently.” E.E.O.C. v. Flasher
Co., Inc., 986 F.2d 1312, 1321 (10th Cir. 1992) (emphasis in original). Howard’s
evidence shows that he was treated differently than other employees, but his
evidence does not, as it must, show that an unlawful motive explains the difference
6
The record does not identify the races of the other employees.
23
in treatment. Unable to meet his burden to show pretext, the Court grants
Defendants summary judgment on Howard’s race discrimination claim.
III.
INDIVIDUAL LIABILITY
Next, Defendants Addison and Shelite contend they are not subject to
individual liability under § 1981 for Howard’s racially hostile work environment
claim.7 Although § 1981 provides for individual liability,8 a plaintiff must
demonstrate that the individual defendant was personally involved in the alleged
discrimination or that an affirmative link exists to causally connect the actor with
the alleged discrimination. See Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983
(10th Cir. 1991) (“A claim seeking personal liability under section 1981 must be
predicated on the actor’s personal involvement.”), overruled on other grounds,
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1228 (10th Cir. 2000); see
also Flores v. City and County of Denver, 30 F. App’x 816, 819 (10th Cir. 2002)
(unpublished).
Here, Howard has made no showing of a causal relationship between either
Addison or Shelite and the hostile work environment Howard endured. At most,
7
As the Court has granted summary judgment to Defendants on Howard’s
discrimination claim, it addresses this issue only as it relates to Howard’s claim for
racially hostile work environment.
8
“[P]ersonal capacity suits against individual supervisors are inappropriate under
Title VII.” Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) (citation
omitted).
24
Shelite was negligent in addressing Howard’s concerns; however, even if this were
the case, such negligence does not constitute the “personal involvement” or
“affirmative link” necessary to support a claim of individual liability. Accordingly,
the Court grants Defendants’ motion on this issue.
IV.
HOWARD’S TORT CLAIMS
Lastly, Defendants seek summary judgment on Howard’s common law tort
claims for intentional infliction of emotional distress and negligent infliction of
emotional distress. At the outset, Oklahoma does not recognize negligent infliction
of emotional distress as an independent tort. Kraszewski v. Baptist Med. Ctr. of
Okla., Inc., 1996 OK 141, ¶ 1, 916 P.2d 241, 242 n. 1 (“[U]nlike a cause of action
for intentional infliction of emotional distress, negligent infliction of emotional
distress is not an independent tort.”). It is, in effect, treated as negligence. Id.;
Wilson v. Muckala, 303 F.3d 1207, 1213 (10th Cir. 2002). There are four elements
to an intentional infliction of emotional distress claim: (1) the tortfeasor acted
intentionally or recklessly; (2) the tortfeasor’s conduct was extreme and
outrageous; (3) the plaintiff actually experienced emotional distress; and (4) the
emotional distress was severe. Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1558
(10th Cir. 1995) (citing Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379,
1387 (10th Cir. 1991)). The tort does not extend to “mere insults, indignities,
threats, or occasional acts that are inconsiderate and unkind.” Id. at 1558 (citing
25
Eddy v. Brown, 1986 OK 3, ¶ 7, 715 P.2d 74, 76) (internal quotations and
paraphrasing omitted). Instead, the tortfeasor’s conduct must be “beyond all
possible bounds of decency” or “utterly intolerable in a civilized community.” Id.
(quoting Eddy, 715 P.2d at 77). In fact, “[n]othing short of ‘[e]xtraordinary
transgressions of the bounds of civility’ will give rise to liability for intentional
infliction of emotional distress.” Id. (quoting Merrick v. Northern Natural Gas Co.,
911 F.2d 426, 432 (10th Cir. 1990) (emphasis in original).
Howard does not refute that Oklahoma does not recognize negligent
infliction of emotional distress as an independent tort and has provided no
argument in support of a negligence claim. Furthermore, there is no evidentiary
support for a finding of intentional infliction of emotional distress. Even when
viewed in the light most favorable to Howard, the conduct at issue is not so
atrocious and utterly intolerable as to “progress beyond all possible bounds of
decency,” and accordingly, it does not rise to the level necessary to permit
recovery under the tort of intentional infliction of emotional distress. Compare
Herrera v. Lufkin Industries, Inc., 474 F.3d 675, 688 (10th Cir. 2007) (conduct
actionable under Title VII does not necessarily rise to the level of outrageousness
required for intentional infliction of emotional distress). After examining the
record and resolving all reasonable inferences in the light most favorable to
26
Howard, the Court finds Howard has failed to demonstrate a genuine issue for trial
as to his claim for intentional infliction of emotional distress.
CONCLUSION
Defendants’ Motion for Summary Judgment [Doc. No. 16] is GRANTED
IN PART and DENIED IN PART as set forth herein.
IT IS SO ORDERED this 20th day of March, 2017.
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