Chebbi v. Gladstone Auto, LLC
Filing
42
OPINION & ORDER: Defendant's motion for summary judgment is denied for Plaintiff's state and § 1981 hostile work environment claims and granted for Plaintiff's disparate treatment and retaliation claims under both the state and § 1981 statutes. See 18-page opinion & order attached. Signed on 7/2/2012 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ELYES CHEBBI,
No. 03:10-CV-1560-HZ
Plaintiff,
OPINION & ORDER
v.
GLADSTONE AUTO, LLC,
Defendant.
Aaron W. Baker
Attorney at Law
650 Pioneer Tower
888 SW Fifth Avenue
Portland, OR 97204
Attorney for Plaintiff
Heather A. Bowman
Molly Jo Mullen
Bodyfelt Mount Stroup & Chamberlain
707 SW Washington Street, Suite 1100
Portland, OR 97205
Attorneys for Defendant
1 - OPINION & ORDER
HERNANDEZ, District Judge:
Plaintiff Elyes Chebbi brought this race discrimination case against Defendant Gladstone
Auto, LLC. Defendant moves for summary judgment on all claims. I grant in part and deny in
part the motion.
BACKGROUND
Plaintiff worked as a car salesman for Defendant from April 20, 2009 until he quit on
August 30, 2010. Decl. David Elder Supp. Mot. Summ. J. (“Elder Decl.”) ¶ 4. Plaintiff had
worked for Defendant twice previously, quitting once and being terminated once. Id. at ¶ 6.
Plaintiff was born in France to Tunisian parents, and lived in Tunisia. Decl. Aaron Baker Resp.
Mot. Summ. J. (“Baker Decl.”) Ex. 3 at 2-3. He identifies himself as North African, African
American, and Muslim Arabic. Id. at 69-70.
Plaintiff cites to several incidents as the basis for his case. In the summer of 2009, Rich
Stiefel, the general sales manager of Gladstone, ordered pepperoni pizza for the sales staff. Elder
Decl. ¶ 11. Plaintiff does not eat pork because of his religion. Decl. Heather Bowman Supp.
Mot. Summ. J. (“Bowman Decl.”) Ex. 1 at 36. Stiefel did not order another pizza for Plaintiff
and two other employees, Marwan Mousleh and Hussein Adel, who also could not eat pork for
the same reason. Baker Decl. Ex. 1 at 28. Adel complained to David Elder, general manager of
Gladstone, about not being able to eat the pizza. Elder Decl. ¶ 11. Elder reprimanded Stiefel and
educated him about Muslim dietary restrictions. Id. At the time Stiefel ordered the pizza, he did
not realize that pepperoni was made of pork. Baker Decl. Ex. 1 at 27. Stiefel apologized to
Adel. Elder Decl. ¶ 11.
In October 2009, Plaintiff heard another Gladstone salesman, David Giraldo, call
Mousleh a “camel jockey” and a “fucking sand nigger”. Bowman Decl. Ex. 1 at 9, 11. Mousleh
2 - OPINION & ORDER
reported the incident to Elder. Elder Decl. ¶ 12. Elder investigated Mousleh’s complaint with
Stiefel’s help. Id. Elder learned that Mousleh had started the argument by calling Giraldo a
“fucking Colombian”. Id. Giraldo and Mousleh were both given written warnings for the
incident. Elder Decl. Exs. 4-5. Both men were warned that another similar incident would result
in termination and both were required to apologize to their co-workers, Plaintiff included, who
witnessed the argument. Id.; Elder Decl. ¶ 12. Even after the written warnings, Giraldo made
comments a couple times per week about “riding camels”, “going to school on a camel”, and
“camel jockey” to Plaintiff. Bowman Decl. Ex. 1 at 16. Giraldo also said “sand nigger” under
his breath as he walked by Plaintiff. Id. at 17. Plaintiff alleges that he complained to Elder and
Stiefel, but no action was taken. Id. at 18-19. Elder disputes that Plaintiff complained to him
about Giraldo’s continued name-calling. Elder Decl. ¶ 13. Plaintiff also heard co-worker Daniel
Lara call Mousleh a “camel jockey”, but did not specify when this occurred or if he reported the
incident. Id. at 14.
After the incident in October 2009, Plaintiff heard co-worker James Golden refer to a
customer as a “nigger”, but did not report it to management. Bowman Decl. Ex. 1 at 15.
Also in 2009, Plaintiff and co-worker Oscar Hadad were having a conversation about
how to refer to other nationalities in Spanish. Id. at 22. For example, Plaintiff asked Hadad the
Spanish word for people from Guatemala, and Hadad answered Guatemalteco. Id. When
Plaintiff asked about people from the Caribbean, Hadad did not know. Id. Giraldo chimed in
and answered “negroes”. Id. Plaintiff complained to Stiefel, but Stiefel did not take any action.
Id. at 23.
In an undated incident, Plaintiff was standing with Jeff Karlin, a co-worker, and
somebody commented about a conspiracy theory regarding the September 11, 2001 attacks on
3 - OPINION & ORDER
the United States—that it was an “inside job”. Id. at 26. Stiefel walked by, and the person
talking told him about the conspiracy theory. Id. Stiefel disagreed and according to Plaintiff,
said that “Muslim terrorists did it”. A female customer wearing a head scarf was sitting across
the showroom, and Stiefel pointed at her as an example. Id. Plaintiff also states that Stiefel
suggested nuking the Middle East. Id. at 26-27. Another time, Plaintiff heard Stiefel say
something similar to “911 alert” when a customer wearing a head scarf came into the dealership.
Id. at 28. Plaintiff did not report Stiefel’s comments to Elder. Id. at 30.
In another undated incident, Plaintiff and Elder were watching news about the war in
Iraq. Id. at 24. The news reported that the war was turning into a civil war between two
different sects. Id. According to Plaintiff, Elder commented that the civil war was good for the
U.S. and to “let them kill each other”. Id. Elder denies making such a comment. Elder Decl. ¶
19. Plaintiff claims that he did not tell Elder that he was offended because he was scared of
getting fired and felt that Elder would not be responsive to the complaint. Bowman Decl. Ex. 1
at 25.
In another undated incident, Plaintiff witnessed co-worker Jason Brown show Mousleh a
membership card that had a map of the Middle East on it. Id. at 50. Brown asked Mousleh, who
is Palestinian, to show him Palestine on the map. Id. Mousleh pointed on the map, but Brown
said “no, that’s Israel”. Id. Brown also had a Jewish star on his locker and a picture of Ariel
Sharon, Israel’s former Prime Minister, inside of his locker. Id. at 51. Plaintiff believes that
Adel may have complained about the star and picture of Sharon. Id. Elder took the items down
or asked Brown to remove them, but the picture of Sharon returned later. Id.
In other undated incidents, Mousleh showed Plaintiff notes that he had received at work
in his locker. Baker Decl. Ex. 3 at 51, 54. The first note had “Arab Fuckari” written on it along
4 - OPINION & ORDER
with a picture of a camel. Id. at 52-53. Plaintiff suspects it was Giraldo who wrote the note
because he had used the phrase before. Id. The second note had a picture of a tank and a
statement about Israelis and Palestinians. Id. at 55. There is no evidence that Plaintiff
complained about these acts.
In December 2009, Plaintiff was promoted to floor manager (aka “closer”). Elder Decl. ¶
5. One of his team members, Fatima Assafi, reported to him that she was being sexually
harassed by other team members, Zac Caverhill and Joe Chambers. Baker Decl. Ex. 3 at 5-6.
Caverhill texted Assafi, calling her “nipples”, and on another occasion, picked her up from
behind. Id. at 6-7. Chambers made Assafi feel uncomfortable, but no particular conduct is
detailed. Id. at 6. Plaintiff reported the sexual harassment to Elder. Id. Elder disputes this
assertion. Elder Decl. ¶ 17.
On January 8, 2010, Plaintiff voluntarily stepped down as floor manager and returned to
being a salesman. Id. On January 15th, Plaintiff spoke to Angela Viol, the Office Manager,
about several complaints. Bowman Decl. Ex. 1 at 32. Laurie Park from payroll was also there
for the meeting. Id. The meeting was memorialized in a memo. Id. at Ex. 4. Chebbi stated that
he stepped down as floor manager because Stiefel unfairly gave Internet deals to Chambers, his
request to have Mousleh on his team was denied, Chambers was trying to steal deals from
Assafi, and Giraldo was put on his team. Id. Plaintiff brought up the pizza incident from 2009.
Id. He also complained about how Stiefel credited deals originating from “phone ups” and “take
ups”. Id. After the memo was written, Plaintiff met with Elder and Stiefel to discuss the
complaints. Bowman Decl. Ex. 1 at 35-36. At the bottom of the memo, Elder handwrote that
Stiefel and he “discussed all matters above and have resolved them to Elyes Chebbi’s
satisfaction.” Id. at Ex. 4. All three men’s signatures appear under this statement. Id. Plaintiff
5 - OPINION & ORDER
now disputes that the matters were resolved to his satisfaction. Id. at Ex. 1 at 38. He felt
intimidated, and that he was forced to sign the memo. Id. Plaintiff had asked to speak to Maria
Smith, the owner of Defendant Gladstone, but instead found himself meeting with Stiefel and
Elder—the people who he had complained about. Id. Gladstone’s anti-harassment policy lists
both Elder and Smith as the contact person for complaints. Bowman Decl. Ex. 5.
After the January meeting, Plaintiff felt that Stiefel and Elder treated him differently.
Stiefel yelled at Plaintiff several times when he brought deals for Stiefel’s approval, was rude,
and threw papers on the ground. Id. at 44-45. Plaintiff believes that Stiefel was trying to prevent
him from being the number one car salesman. Id. at 41. Plaintiff alleges that Elder frequently
took him into his office and yelled at him. Id. Elder also accused Plaintiff of going to human
resources behind his back. Id. at 42.
In June 2010, Caverhill came up from behind and pushed down on Plaintiff’s shoulders.
Id. at 55. Plaintiff heard a loud pop in his back. Id. at 56. Plaintiff had back pain and filed a
workers’ compensation claim. Id. at 57. He complained to Elder about the incident. Baker
Decl. Ex. 3 at 66. Elder talked to Caverhill and issued a warning. Elder Decl. ¶ 23. He also told
all the sales staff to not touch other employees. Id.
Plaintiff quit Gladstone on August 30, 2010. He called Gladstone and spoke to Park
about quitting. Bowman Decl. Ex. 1 at 53. He asked Park to tell Smith, Gladstone’s owner, to
call him. Id. Smith never called Plaintiff. Id.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
6 - OPINION & ORDER
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (internal quotation omitted). The nonmoving party must go beyond the pleadings
and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court views inferences drawn from the facts
in the light most favorable to the nonmoving party and draws all reasonable inferences in that
party's favor. Long v. City & County of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007).
If the factual context makes the nonmoving party’s claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
Plaintiff Chebbi brings state and federal claims against Defendant Gladstone for race
discrimination, hostile work environment, and retaliation in violation of ORS § 659A.030 and 42
U.S.C. § 1981. Plaintiff also alleges a claim for retaliation under ORS § 659A.199 and
negligence. In Plaintiff’s response, he concedes the claim for negligence. Chebbi’s Resp., 17.
Defendant moves for summary judgment on all the remaining claims.
7 - OPINION & ORDER
I.
Statute of Limitations
Plaintiff concedes that the evidence is limited to Plaintiff’s most recent employment
period even though he had worked for Defendant twice before. Chebbi’s Resp., 12. For section
1981 claims, the statute of limitations is provided by state law. Johnson v. Railway Express
Agency, Inc., 421 U.S. 454, 462 (1975). Oregon has a two-year statute of limitation for injuries
not arising from a contract. ORS § 12.110(1). Plaintiff filed his complaint on December 23,
2010. Therefore, incidents that occurred before December 23, 2008 are barred. Because
Plaintiff’s start date was April 20, 2009, all incidents in Plaintiff’s most recent employment
period are within the statute of limitations. Def.’s Memo. Supp. Mot. Summ. J. (“Gladstone
MSJ”), 15.
Plaintiff’s state claims under ORS §§ 659A.030 and 659A.199 are governed by a separate
statute of limitations. These claims have a one-year statute of limitations. ORS § 659A.875(1).
Thus, incidents that occurred before December 23, 2009 cannot be used to support Plaintiff’s
state claims.
Plaintiff argues that the continuing tort doctrine applies in his case, such that all the
incidents may be considered for his state claims. “A continuing tort is based on ‘the concept that
recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that
conduct.’” Barrington v. Sandberg, 164 Or. App. 292, 296 (1999) (quoting Davis v. Bostick,
282 Or. 667, 671 (1978)). Where the evidence is that a plaintiff was harmed by each act in a
series, the continuing tort theory does not apply. Id. at 297, (citing Davis, 282 Or. at 674-75);
see also Griffin v. Tri-Met, 112 Or. App. 575, 581-82 (1992) (finding that each incident of a
series did not by itself support a claim, but the incidents as a whole were a systematic pattern of
8 - OPINION & ORDER
conduct that led to a specific injury), rev’d in part on other grounds, 318 Or. 500, 870 P.2d 808
(1994).
Under this doctrine, “‘discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges’, while ‘a hostile work environment
claim … will not be time barred so long as all acts which constitute the claim are part of the
same unlawful employment practice and at least one act falls within the time period’[.]” Lyons
v. England, 307 F.3d 1092, 1105-1106 (9th Cir. 2002) (quoting AMTRAK v. Morgan, 536 U.S.
101, 113 (2002)). Thus, if applicable, the continuing tort doctrine would only apply to Plaintiff’s
state hostile work environment claim for incidents that were part of a systematic pattern of
conduct that resulted in an injury.
The following incidents occurred before December 2009 and are precluded by the state
statute of limitations: the pepperoni pizza incident, co-worker Giraldo calling another co-worker
“camel jockey” and “sand nigger”, co-worker Golden calling a customer a “nigger”, and Giraldo
stating that people from the Caribbean are called “negroes” in Spanish. None of these acts alone
would support a claim for hostile work environment. Consideration of these incidents depends
on whether the continuing tort theory is applicable, which will be discussed below.
II.
Discrimination
There are three types of discrimination claims under ORS § 659A.030 and 42 U.S.C. §
1981: disparate treatment, hostile environment, and retaliation. The substantive analysis is the
same for all three types of claims under both the federal and state statutes. Campbell v. Knife
River Corp. - Northwest, 783 F. Supp. 2d 1137, 1147 (D. Or. 2011) (standard for establishing a
prima facie case of discrimination under ORS § 659A.030 is identical to that used to establish a
prima facie case of discrimination under Title VII); Manatt v. Bank of America, NA, 339 F.3d
9 - OPINION & ORDER
792, 797 (9th Cir. 2003) (“legal principles guiding a court in a Title VII dispute apply with equal
force in a § 1981 action”); Logan v. West Coast Benson Hotel, 981 F. Supp. 1301, 1319 (D. Or.
1997) (discrimination claims under Chapter 659 are “wholly integrated and related” to Title VII).
There are two ways that Plaintiff may establish a prima facie case of discrimination.
Plaintiff may present evidence of discriminatory intent that gives rise to an inference of unlawful
discrimination. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003);
Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1149 (9th Cir. 1997) (referring to an employee
as a “dumb Mexican” is direct evidence). Alternatively, Plaintiff may show that (1) he belonged
to a protected class, (2) was qualified for the position in question, (3) was subjected to an adverse
employment action, and (4) others who were not in the protected class were treated more
favorably. E.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002)
(citations omitted). Establishing a prima facie case creates a presumption of unlawful
discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If a
prima facie case is established, the burden of production shifts to the defendant, who must show
evidence that the adverse action was taken for other than impermissibly discriminatory reasons.
See id. If the defendant produces such evidence, the presumption of unlawful discrimination
disappears, and the plaintiff must show by a preponderance of the evidence that the employer’s
proffered reason was merely a pretext for a discriminatory motive. Wallis v. J.R. Simplot Co.,
26 F.3d 885, 889 (9th Cir. 1994) (citing Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.
1985)).
To do so, the plaintiff cannot simply rely upon the prima facie case and deny the
credibility of the defendant’s witnesses. Id. at 890 (citing Schuler v. Chronicle Broadcasting
Co., Inc., 793 F.2d 1010, 1011 (9th Cir. 1986)). Instead, the plaintiff must produce “specific,
10 - OPINION & ORDER
substantial evidence of pretext.” Wallis, 26 F.3d at 890 (quoting Steckl v. Motorola, Inc., 703
F.2d 392, 393 (9th Cir. 1983)). Pretext may be established either by showing that “a
discriminatory reason more likely motivated the employer or ... that the defendant’s proffered
explanation is unworthy of credence.” Chuang v. University of California Davis, 225 F.3d 1115,
1123 (9th Cir. 2000). The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated always rests with the plaintiff. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142-43 (2000).
A.
Disparate Treatment
Plaintiff claims race discrimination in violation of § 1981 and ORS § 659A.030 because
he is African American. Plaintiff argues that there is direct evidence of discrimination shown by
Plaintiff “being hounded by management, not receiving car deals, comments and yelling by
management, and being physically assaulted.” Chebbi Resp., 10. Plaintiff does not cite to
evidence in support of this argument, nor is race implicated by these general allegations. I
cannot find that there was any evidence of direct discrimination based on this brief, and
unsupported, argument.
Alternatively, to establish a prima facie case of race discrimination, Plaintiff can show (1)
that he is African-American; (2) that he performed his job adequately; (3) that he suffered an
adverse employment action; and (4) that similarly situated individuals outside his protected class
were treated differently. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir.
2006).
Defendant challenges that Plaintiff is African American, but concedes this point for the
purpose of this motion. Gladstone MSJ, 14 n3. Defendant does not argue that Plaintiff did not
perform his job adequately. Thus, only the last two elements are at issue—whether Plaintiff
11 - OPINION & ORDER
suffered an adverse employment action and whether similarly situated individuals outside
Plaintiff’s protected class were treated differently.
In a discrimination claim, an adverse employment action “materially affects the
compensation, terms, conditions, or privileges of employment.” Davis v. Team Elec. Co., 520
F.3d 1080, 1089 (9th Cir. 2008) (quotation, brackets, and ellipsis omitted). Adverse actions
include subjecting an employee to verbal and physical abuse, discriminatory overtime, and
termination. Kang v. U. Lim Am., Inc., 296 F.3d 810, 818-19 (9th Cir. 2002); see also Chuang
v. University of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000) (relocation and reduced size of
research space were adverse employment actions). However, there is no adverse employment
action when a job demotion is not accompanied by a salary or status change, or any indication
that the new position is less favorable. Campos v. Portland Public Schs., No. 99-1744-MA, 2000
U.S. Dist. Lexis 21617, at *16-17 (D. Or. Nov. 9, 2000).
Plaintiff argues three adverse employment actions: (1) stepping down from his promotion
as a floor manager (aka “closer”), (2) lost car deals, and (3) fleeing from various locations in the
dealership to avoid harassment. Chebbi’s Resp., 11. At the time Plaintiff voluntarily stepped
down from floor manager, he had told Elder that he wanted to return to sales because he was
more successful in sales than as a manager. Elder Decl. ¶ 5. But now, Plaintiff states he stepped
down because of favoritism towards another employee, a lack of response to his report that
Assafi was being harassed, and Giraldo being put on Plaintiff’s team in exchange for another
salesman that did not want to be on Plaintiff’s team. Bowman Decl. Ex. 1 at 7.
Regardless of why Plaintiff stepped down a month after his promotion, the incident is not
cognizable as an adverse employment action. Plaintiff provides no evidence of how returning to
a salesman position materially affected his compensation, terms, conditions, or privileges of
12 - OPINION & ORDER
employment. The fact that Plaintiff’s return to being a salesman was voluntary is not dispositive,
but there is undisputed evidence that Plaintiff’s average income as a salesperson was higher than
his stint as a floor manager. Elder Decl. ¶ 5. Likewise, Plaintiff has not shown that Defendant
caused him to move to different parts of the dealership nor that it materially affected his
employment. Finally, Plaintiff’s evidence of lost car deals consists of testimony that Stiefel
ignored him and “threw a deal on the ground once” and that Caverhill was “not taking [his]
deals”. Baker Decl. Ex. 3 at 48, 50. Defendant argues that Plaintiff relies on conclusory
allegations and has not come forth with any factual support to show that he lost car deals. In the
light most favorable to the nonmoving party, I agree that Plaintiff has not met his burden to show
that he actually lost car deals. Beyond those two statements about Stiefel and Caverhill, Plaintiff
does not further specify the details of those incidents. Because Plaintiff has failed to show an
adverse employment action, his claims for race discrimination fails. Defendant’s motion is
granted on Plaintiff’s federal and state claims for race discrimination.
B.
Hostile Work Environment
To establish a prima facie case for a hostile work environment claim, Plaintiff must show
(1) he was subjected to verbal or physical conduct based on his race; (2) the conduct was
unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of his
employment and create an abusive working environment. Surrell v. California Water Serv. Co.,
518 F.3d 1097, 1108 (9th Cir. 2008). The workplace must be “both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one that the victim in
fact did perceive to be so.” Faragher, 524 U.S. at 787; Nichols, 256 F.3d at 871-872. “In
evaluating the objective hostility of a work environment, the factors to be considered include the
‘frequency of discriminatory conduct; its severity; whether it is physically threatening or
13 - OPINION & ORDER
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’” McGinest, 360 F.3d at 1113 (quoting Nichols, 256 F.3d at
872).
Furthermore, “[s]imply causing an employee offense based on an isolated comment is not
sufficient to create actionable harassment”. McGinest, 360 F.3d at 1113. However, it is
sufficient to show that the conduct “pollute[d] the [plaintiff’s] workplace, making it more
difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.”
Id. In short, the “conduct must be extreme to amount to a change in the terms and conditions of
employment”. Faragher, 524 U.S. at 788.
Defendant disputes the first and third elements—that Plaintiff was subjected to verbal or
physical conduct based on his race or that the conduct was sufficiently severe or pervasive.
Plaintiff fails to specify the evidence that supports his claim for hostile work environment.
Plaintiff refers to a lengthy fact section and simply argues that he “has presented ample evidence
to show that his work environment, viewed from the perspective of a reasonable person with the
same ‘race’ was objectively hostile.” Chebbi’s Resp., 15. Plaintiff’s failure to cite to specific
evidence makes the court’s work extremely challenging. “If somewhere in a record there is
evidence that might show a dispute of material fact, the district court needs to be pointed to that
evidence as opposed to having to engage in an extensive search.” Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 651 (5th Cir. 2012).
That said, given the nature of a hostile work environment claim, I am obligated to
consider all the circumstances in determining whether the harassment was sufficiently severe or
pervasive to alter the conditions of employment. In light of the numerous incidents that Plaintiff
has recounted, some of which are well within the statute of limitations, I find that a reasonable
14 - OPINION & ORDER
trier of fact could conclude that Plaintiff was subjected to a hostile work environment because of
his race.
Defendant argues that in the majority of the incidents, Plaintiff was a witness. “If racial
animus motivates a harasser to make provocative comments in the presence of an individual in
order to anger and harass him, such comments are highly relevant in evaluating the creation of a
hostile work environment, regardless of the identity of the person to whom the comments were
superficially directed. McGinest, 360 F.3d at 1118. In the light most favorable to the
nonmoving party, I cannot find that the incidents alleged were not meant to anger or harass
Plaintiff as a bystander. The most pervasive conduct was Giraldo’s continued comments about
camels and sand nigger, which Plaintiff states occurred a couple of times a week. These
incidents, in their totality, are sufficient to overcome Defendant’s motion.
However, not all of Plaintiff’s incidents were racially motivated. The pizza incident for
example occurred because Stiefel did not know about a Muslim’s dietary restrictions. Plaintiff
has not presented evidence to the contrary. Plaintiff also generally alleges that Stiefel yelled at
him, that Stiefel showed favoritism to another co-worker, and that Elder did not like Plaintiff
speaking with human resources. There is no indication, even drawing reasonable inferences in
favor of Plaintiff, that any of these events were racially motivated. Further, Plaintiff is not of
Palestinian descent. Plaintiff has not shown how comments about Palestine would be
subjectively offensive to him.
In summary, there is a genuine dispute of material fact concerning Plaintiff’s federal and
state claims for hostile work environment.
Defendant argues that even if Plaintiff establishes a prima facie case for hostile work
environment, it is doubtful that Defendant would be liable. “An employer’s liability for
15 - OPINION & ORDER
harassing conduct is evaluated differently when the harasser is a supervisor as opposed to a
coworker.” McGinest, 360 F.3d at 1119. If the harasser is a co-worker, as in the case here, the
conduct is reviewed under a negligence standard. Nichols, 256 F.3d at 875. Plaintiff must prove
that the employer knew or should have known about the harassment, but did nothing to address
it. McGinest, 360 F.3d at 1119. It is undisputed that Elder investigated and reprimanded the
employees involved in the October 2009 name-calling incident. But the name-calling continued,
and Plaintiff claims that he reported the subsequent camel comments to management. Although
this claim is disputed by Elder, in the light most favorable to the nonmoving party, Plaintiff has
presented evidence that management knew about the continued name-calling. Defendant’s
motion is denied with respect to Plaintiff’s hostile work environment claims.
C.
Retaliation
To establish a prima facie case of retaliation, Plaintiff must prove (1) he engaged in a
protected activity, (2) he suffered an adverse employment action, and (3) there was a causal
connection between the two. Surrell, 518 F.3d at 1109. The definition of an adverse
employment action in a retaliation claim is broader than that for a disparate treatment
discrimination claim. Burlington N. & Santa Fe Rwy Co. v. White, 548 U.S. 53, 60-63 (2006).
An adverse employment action is defined broadly as an action that “might have dissuaded a
reasonable worker from making or supporting a charge of discrimination”. Id.; see also Manatt,
339 F.3d at 800 (adverse employment action is “any employment decision ‘reasonably likely to
deter employees from engaging in protected activity.’”) (quoting Ray v. Henderson, 217 F.3d
1234, 1243 (9th Cir. 2000)).
Plaintiff generally states that he made complaints to management. Chebbi’s Resp., 16.
Much of Plaintiff’s evidence is irrelevant for this claim because he did not complain about the
16 - OPINION & ORDER
allegedly discriminatory conduct. Plaintiff states he complained about co-worker Giraldo’s
continued comments and Assafi’s sexual harassment, Giraldo’s reference to Caribbean people as
“negroes”, that Stiefel showed favoritism to another co-worker, and Plaintiff’s back was injured
by a co-worker. None of these complaints are related to Plaintiff’s allegations of race
discrimination. Plaintiff has not shown that he engaged in a protected activity.
The two adverse employment actions that Chebbi asserts are Defendant’s “attack” of him
and a lack of response for the complaints that he made. Id. Plaintiff’s first alleged adverse
employment action, that Defendant attacked him, suffers from a lack of specificity. Plaintiff
does not elaborate on the attack or cite any evidence in support of his argument. There is
nothing in the record to base a finding upon general allegation of an “attack”. Plaintiff’s second
alleged adverse employment action—lack of response to Plaintiff’s complaints—also suffers
from the same problem. The record shows that Defendant investigated the October 2009
incident and met with Plaintiff in January 2010 to discuss other complaints. Moreover,
Plaintiff’s allegations do not indicate a time frame for his complaints. Without knowing the
timing of the complaint, Plaintiff cannot establish the last element of causation. Defendant’s
motion is granted for Plaintiff’s retaliation claims.
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17 - OPINION & ORDER
CONCLUSION
Based on the foregoing, Defendant’s motion for summary judgment is denied for
Plaintiff’s state and § 1981 hostile work environment claims and granted for Plaintiff’s disparate
treatment and retaliation claims under both the state and § 1981 statutes.
IT IS SO ORDERED.
Dated this
day of July, 2012.
MARCO A. HERNANDEZ
United States District Judge
18 - OPINION & ORDER
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