Opinion
1:03-cv-0900-JDT-TAB.
August 19, 2004
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Mamie Davis, the Plaintiff in this case, worked for General Electric for twenty-five years. She retired from the Defendant, GE Appliances-Bloomington, Inc.("GE"), in February of 2003. A few months before she retired, she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging racial harassment as a result of incidents which occurred over the course of 2002. The EEOC issued her a right to sue notice, and she brought this federal court action alleging racial harassment in June of 2003.
The hourly employees at GE's Bloomington, Indiana facility are represented by the International Brotherhood of Electrical Workers, Local No. 2249. Davis worked second shift on the assembly line in an area referred to as the "pit." Five or six employees worked each shift in the pit. The pit is between six and twelve feet long and was engineered to allow employees to stand below ground level and work on the lower part of a refrigerator which is being assembled. Davis was the only African-American who worked in the pit on second shift.
In April of 2002, Davis went to her immediate supervisor, Aaron Sjorstrand, and told him that first shift was leaving trash in her area and she believed that they were doing it "because I am who I am." It was not uncommon for members of one shift to complain about the other shift and its failure to clean up work areas. Employees at GE are supposed to have five minutes at the end of their shift to clean up their work areas. However, under the Collective Bargaining Agreement employees cannot be made to clean up past the end of their shift; therefore, when a shift is required to work past the five minute clean up period at the end of the shift, their work area may go without cleaning.
Sjorstrand did not interpret Davis' complaint as one based on a perception of racial harassment. He thought it was another complaint where someone on his shift was accusing the other shift of not cleaning up like they were supposed to do at the end of a shift. He went to his counterpart on first shift, Gary Hamilton, and asked that he address the cleanup issue with his people. Davis had also complained directly to Hamilton with regard to first shift not cleaning up the work area and Hamilton went to each of the employees in the pit area on his shift and reminded them of their clean up responsibilities.
Later in April of 2002, Davis also complained to the plant Operations Manager, Jerry Headdy, about trash being left by first shift in her area. She indicated to Headdy that she felt that the trash was being left there because of "who she was." Headdy did not interpret the complaint as one with a racial element and talked to Sjorstrand and Hamilton about Davis' cleanup complaint against first shift. He testified that he made one, perhaps two, subsequent walk-throughs in Ms. Davis' area to check on the cleanliness issue.
On May 1, 2002, Davis arrived at her work area to find a blue plastic water bottle fastened to the conveyor. It was stuffed with scrap plastic or foam and made to look like a female by the attachment of pieces of tape, sponge like material and plastic. Davis believed it to be an attempt to portray her in a demeaning manner and that it had been left by her counterparts on the first shift. She called another hourly employee, Nancy Anderson, over to her area and showed her the bottle which had been made to look like a woman. Anderson, who was a coordinator for the area, called Sjorstrand over to the pit via radio. He arrived and took the bottle down and threw it away.
As a result of the water bottle incident, Davis requested a meeting with Shop Relations to air her complaint. The meeting was held on May 8, 2002. In attendance was Davis, Union Steward Ted Mangin, Sjorstrand and the Manager of Shop Relations, Joseph Jones. Sjorstrand testified that he understood that Davis' believed she was being harassed and was likely invoking the company's no harassment policy. Jones testified that Davis never used the word harass and that he thought she was suggesting that the trash was being put in her area because she had earlier complained about the first shift leaving trash in her area. However, at that same meeting, Davis told Jones that she had been harassed by the medical clinic in the past and that several years previous, someone had drawn a picture on a hardware schedule used at the pit, that looked to her like a monkey and had then colored it in with a with a black mark. She indicated her name was written next to the black mark and that this occurred three times.
Davis testified in deposition that she never reported the drawing issue to management when it occurred in 1999. The company records indicate she did complain in 1999 about an employee of the medical clinic sharing her medical information with someone and lying to Davis about losing her paperwork.
In any event, though the company harassment policy indicates that upon a complaint, the company will conduct an investigation, make a determination and report back to the complaining party, the May 8 meeting did not prompt a harassment investigation. Jones did meet with Sjorstrand and Hamilton the next day to examine the pit area and visited the pit several times to check up on the cleanliness issue. Davis never raised any further issues with Jones after the May 8, 2002, meeting. In October she filed her charge with the EEOC and in February of 2003 she retired voluntarily. There is no claim of constructive discharge.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether a genuine issue of material fact exists, the court construes, as it has in this matter, all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. Id. at 255.
A party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A party moving for summary judgment on a claim on which the nonmoving party bears the burden of proof at trial may discharge its burden by showing, "that is, pointing out" an absence of evidence to support the non-movant's case. Id. at 325.
To survive a defendant's motion for summary judgment on a racial harassment claim, a plaintiff must produce sufficient evidence to support that: (1) she was subject to unwelcome harassment; (2) the harassment was based on her race; (3) the harassment was severe or pervasive so as to alter the conditions of her work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004).
ANALYSIS
GE argues that Davis has insufficient evidence to support elements two, three and four of her claim that she was the victim of a racially hostile environment. It argues that the trash left near Davis' work area and the attachment of the "water bottle doll" to the conveyor lack any indicia of conduct premised upon or provoked by her race. Even if one could read an element of racial bias in the actions of the first shift employee or employees responsible for these actions, GE maintains that this conduct does not begin to approach the type of significance necessary for a fact finder to find that Davis was subjected to a racially hostile work environment. Finally, GE asserts that it took the actions reasonably called for in investigating and rectifying any harassing behavior, based on the limited and ill-described complaints made by Davis. This, according to GE, satisfies the legal requirements that it exercise reasonable care in discovering and curing any racial harassment, thereby negating any basis for liability.The logical starting point for any analysis of the circumstances is with the first complaint made by Davis. It is undisputed that Davis did not complain of the drawing or black marks on the hardware schedule that she noticed back in 1999. Her 1999 complaint with regard to an employee at the medical clinic lying to her and sharing her medical information with others had no connection to race. Therefore, the first relevant complaint was made in April of 2002 when she went to Sjorstrand and told him that the first shift had left trash in her area and that she thought it was being done "because I am who I am." She admits she did not tell Sjorstrand she thought it was harassment or conduct engaged in because of her race. The court sees the analysis split into two inquiries at this point. First, based on what he was told by Davis, should Sjorstrand have understood that Davis was raising the specter of racial harassment. Second, based on what he was told and or knew, could the conduct complained of be objectively seen as racial harassment.
An employer can not be said to have neglected its responsibilities to cure illegal co-worker harassment in the workplace if it is not provided with sufficient information for it to reasonably conclude that there is some probability that a person is being harassed because of her race or gender. Hall v. Bodine Elec. Co., 276 F.3d 345 (7th Cir. 2002). In Cooper-Schut v. Visteon Automotive Systems, 361 F.3d 421 (7th Cir. 2004), an African-American supervisor complained of, among other things, another supervisor screaming at her and a subordinate who told her she was acting like "Sha-nay-nay". Id. at 424. Other, more identifiably derogatory incidents had not been reported. Id. at 426 n. 3. In affirming a summary judgment, the court indicated that one of the main problems with the case was that the employer was not on notice of conflicts which were racially or sexually motivated as opposed to simply workplace friction. Id. at 427.
At GE, complaints from employees on one shift about the lack of cleanliness of the employees on the other shift, were not uncommon. Davis' complaint to Sjorstrand, and later Headdy, about trash was nothing that should have peeked their interest more than ordinary. The fact that she used the phrase "because I am who I am" to describe to Sjorstrand why she thought the trash was being intentionally accumulated in her area could have been a reference to a number of circumstances. It would not have been unreasonable to think that she was referring to her status as a senior employee, a member of the second shift pit team, a cleanly person, a person who had previously complained of first shift's lack of cleanliness or, indeed, her status as an African-American. However, in light of the fact that the nature of the complaint — trash being left in her work area — had no inherent racial overtones, this court cannot say that GE was on notice that Davis was raising a discrimination or racial harassment issue. At least it was not on notice at that point.
The court agrees with the Defendant that it is not reasonable to expect that it was put on notice that Davis was complaining of racial harassment when she reported to Sjorstrand and Headdy that trash was being left in her area. However, it seems relatively clear that after the meeting Davis requested on May 8, 2002, prompted by the incident involving the water bottle doll, those in attendance should have appreciated the fact that Davis felt there was some racial element to that event. At the meeting she complained about how, in her opinion, the water bottle was made to look like her and was an act done with animosity towards her personally, not just everyone who worked in the pit. She specifically used the word harassment to describe a past event and described past incidents where someone had drawn a picture she thought was a monkey and put her name next to it. Indeed, Sjorstrand testified that he believed it was likely that she was raising racial harassment issues at that point. In light of all that was discussed and raised by Davis at the meeting, and viewing the facts in a light most favorable to the Plaintiff, the court can not say that Davis failed to put GE on notice that she believed she might be the subject of racial harassment.
There is ample precedent for the proposition that the third required element of a hostile work environment claim — that the harassment be so severe or pervasive so as to alter the employee's work conditions — is determined by applying both an objective and subjective test. See, e.g., McPhaul v. Board of Comm'rs of Madison County, 226 F.3d 558, 566-567 (7th Cir 2000); Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999). However, the second element of a prima facie harassment case — that the harassment be based upon the plaintiff's race — would seem to require that the same type of test be applied if there is any question whether or not the harassment is race based. While the record would suggest that Davis believed at the time that her race was a possible motivation for these actions, it also shows that she was apparently uncertain. At the May meeting she specifically asked that somebody find out who did it and why they would have such animosity towards her. And, while in a light most favorable to the Plaintiff the evidence might support the notion that trash swept into a person's work area and a plastic water bottle doll left attached to the conveyor may constitute harassment, it just doesn't pass an objective test for racial harassment.
A reasonable person would not conclude, without more probative evidence of record, that simply because Mamie Davis is an African-American the actions of leaving, sweeping, throwing or placing trash in her work area — even trash decorated to make it appear to look like her — would constitute racial harassment. There is no evidence that she has had any bad experiences with the current individuals on first shift, that she has heard anyone from that shift say anything that could be considered racially biased or that she has otherwise been treated inappropriately by any co-workers on either shift. Consequently the court can not find that Plaintiff has satisfied the second required element of her claim, establishing that she was subject to racial harassment.
In briefs, counsel for Plaintiff refers to the decorated water bottle as an African-American doll hung in effigy on the assembly line. However, this adversarial spin is not founded on any statements made by Davis as to her perceptions at the time or other admissible evidence of record. It is hyperbole.
While the court has tried to be careful not to discount the importance of the subjective perceptions of Davis in drawing the conclusion that it would be unreasonable to find that trash left in her area constituted racial harassment, it is even more confident that the conduct complained of, even if somehow seen to be racially motivated, clearly does not reach the level of a hostile work environment. The third element required of a racial harassment claim is that the plaintiff offer evidence of racial harassment that has, objectively and subjectively, reached a point that it unreasonably interferes with her work performance by creating an intimidating, hostile, or offensive working environment. Hrobowski v. Worthington Steel Co., 358 F.3d 473, 476 (7th Cir. 2004). "Isolated and innocuous incidents will not support a hostile environment claim." McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 480 (7th Cir. 1996). And in this instance, that is exactly what the evidence demonstrates. The incidents were innocuous and either the result of sloppiness in the workplace or an aftereffect of workplace horseplay. They did not seriously effect Davis' ability to do her work.
Since the court has found that Plaintiff has failed to demonstrate that she was subjected to racial harassment or that the "harassment" she was subject to was significant enough to constitute a hostile work environment, the court sees no benefit in working through GE's third argument, that there is no basis for finding employer liability because it took all necessary reasonable actions in response to Davis' complaints. Needless to say, the court's impression as to the relative lack of gravity in the actions complained of by Plaintiff, would limit how far GE might be expected to go in reacting to such complaints. But, since there is no need to fully analyze the issue, the court will not.
CONCLUSION
In responding to GE's Motion for Summary Judgment, the Plaintiff has failed to offer evidence sufficient to establish that she was subjected to racial harassment or that the activities she complained of amounted to her being subjected to a hostile work environment. Defendant's Motion for Summary Judgment will be GRANTED.
ALL OF WHICH IS ENTERED.