Summary
stating that "constructive discharge and a failure to promote are `tangible employment actions' for the purposes of Title VII"
Summary of this case from Chavera v. Victoria Independent School Dist.Opinion
CA 7:00-CV-145-R
August 14, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Ricky Taylor ("Mr. Taylor") asserts claims against Defendants United Regional Health Care System, Inc., ("United Regional") Service Master Management, Inc., and Joe Michael Cross, individually ("Mr. Cross") for: 1) racial discrimination is the form of workplace harassment/hostile work environment; 2) failure to promote; and 3) constructive discharge, all in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e, et seq, and the Civil Rights Act of 1871, 42 U.S.C. § 1981 ("§ 1981"). Now before this Court is Defendant's Motion for Summary Judgment, filed April 3, 2001. For the reasons stated below, Defendant's motion is GRANTED in part and DENIED in part.
Although Mr. Taylor brings his claims under both Title VII and 42 U.S.C. § 1981, this Opinion will evaluate both causes of action under the Title VII analysis. Claims of intentional discrimination brought under Title VII and § 1981 require the same proof to establish liability. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1998); Anderson v. Douglas Lomason Co., Inc., 26 F.3d 1277, 1284, n. 7 (5th Cir. 1994).
I. BACKGROUND FACTS
Mr. Taylor, an African-American male, was first hired by United Regional Health Care Corp (then known as Wichita General Service Center) as a security officer in May, 1988. His duties included patrolling hospital facilities and grounds, identifying and managing fire and safety issues, escorting and assisting patients, visitors and employees of United Regional and restricting and removing unauthorized persons from hospital grounds. With the exception of a short period of time in 1993, Mr. Taylor consistently worked the day shift at the hospital, from 7:00 AM through 3:30 PM. After 1993, Mr. Taylor reported to Joe Michael Cross, Director of Security, exclusively.In May of 1996, an Assistant Director of Security position became available on the night shift (7:00 PM through 3:30 AM). Mr. Taylor approached Mr. Cross to discuss the position and Mr. Cross discouraged him from applying because it would have required Mr. Taylor to leave the day shift. Eventually, United Regional hired Mr. Harold Vicars to fill the position. In 1998, Mr. Cross promoted Mr. Taylor to Security Coordinator of the day shift at the instruction of his superior. According to Mr. Taylor, he never received a job description indicating his responsibilities in his new position, which United Regional alleges included 1) accounting for all security officers schedules and vacation time on the day shift, 2) recording actual hours worked, 3) disciplining security officers, and 4) preparing a daily worksheet indicating the particular shift and campus each officer was working that day. Despite his actual promotion, Mr. Taylor never felt that he had been granted actual authority over the security officers on his shift, but was expected to fulfill duties that had never been explained to him.
At this same time, Mr. Taylor alleges that the hiring of Mr. Vicars heightened an already racially tense environment at United Regional. Specifically, Mr. Taylor contends that Mr. Vicars frequently made racist comments and told racist jokes, and that many of the officers under Mr. Vicars' control discussed black people as the root of all criminal activity at the hospital. Further, Mr. Taylor argues that unknown individuals would write racial epithets and cartoons on the supervisory memoranda he posted at the hospital. To support his arguments of intolerable racial animus, Mr. Taylor has submitted affidavits of past United Regional employees Michael Hadlock and Chad Petersen, who indicate that they also resigned their positions for the racial animus Mr. Taylor describes.
During this same time period, Mr. Taylor also experienced several problems with Mr. Cross's management style; namely, that he refused to do anything to curtail the workplace harassment and continued to befriend the individuals in the security office responsible for it. The company admits that Mr. Cross's supervisors had to speak to Mr. Cross several times about his repeated denial of officers PTO requests, mood swings, and his tendency to lose his temper and swear at his underlings, but denies that he ignored specified instances of racial harassment. On one occasion, Mr. Taylor went over Mr. Cross's authority to obtain approval for a PTO request Mr. Cross had denied. As a result of this incident and his complaints about racial harassment, Mr. Taylor contends that Mr. Cross began to sabotage him in his new position by failing to inform him of new hires or the dates and times of supervisory meetings. He also accuses Mr. Cross of partaking in racist commentary and ignoring rampant hostility towards black employees in the security office.
As a result of corporate restructuring, Mr. Taylor's position as Security Coordinator was eliminated on August 10, 1999, and he was returned to the position of security officer. He also received a mediocre performance review from Mr. Cross at that time, and discovered he would only receive a 2%, rather than a 3% raise for that year. In frustration, Mr. Taylor met with Jim Bever, Vice President of Human Resources for United Regional, to discuss his feelings about Mr. Cross and the department in general, and to inform him that he was resigning his position as security officer for race-related reasons. By setting up this meeting, Mr. Taylor argues that he was utilizing step #2 of United Regional's "Dispute Resolution Plan," which provides an aggrieved employee with a Human Resources review of any harassment-based complaints. When Mr. Beyer asked him to stay, Mr. Taylor requested mediation of his complaint, to which Mr. Breyer responded that "he didn't think mediation was a good idea." Mr. Taylor did not attempt to utilize United Regional's Dispute Resolution Plan any further, and instead decided to resign his position.
In his exit interview, however, Mr. Taylor did not mention that his resignation was raced-based to Ms. Peggy Knaup, the employee who conducted his exit interview. At that point, Mr. Taylor argues that he had attempted to avail himself of the Dispute Resolution Process and was discouraged by Mr. Breyer, so he felt that "it was futile" to insist that Ms. Knaup write his complaints of discrimination on his exit interview form.
Mr. Taylor filed a race-based harassment charge against United Regional with the Equal Employment Opportunity Commission on April 21, 2000, and received his right-to-sue letter on April 27, 2000. This action ensued on July 27, 2000.
II. LEGAL ANALYSIS
A. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, (1986); Melton v. Teachers Ins. Annuity Ass'n. of Am., 114 F.3d 557, 559 (5th Cir. 1997). An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988);Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). In addition, when both parties have submitted contradictory evidence, factual controversies are resolved in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or by depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See id. at 324; Anderson 477 U.S. at 256-57. Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these claims.See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). However, if the defendant is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may properly be granted. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
B. PROCEDURAL ARGUMENTS
Mr. Taylor first argues that Defendants' Motion for Summary Judgment should be denied in its entirety because it exceeds the page limits set for by this Court in its Accelerated Scheduling Order of August 23, 2000 ("the Order.") At page 4 of the Order, the parties are expressly limited to forty (40) pages for the moving brief and the response. In this case, the Defendant's Brief in Support of the Motion for Summary Judgment is thirty-nine (39) pages long, and the Motion itself is twelve (12) pages long. However, a review of both documents indicates that no new evidence or legal argument is set forth in the Defendants' Motion for Summary Judgment above and beyond the evidence and argument set forth in the Defendants' Brief in Support. Instead, Defendants' Motion merely re-states the arguments in its Brief in outline form, lists cases cited in its Brief, and provides an outline of its Brief. As these materials are simply meant to aid the Court in its contemplation of Defendant's arguments, and are not utilized to add more evidence or argument to the record, this Court will DENY Plaintiff's request to dismiss the motion on these grounds. To this effect, this Court also notes that the Plaintiff's Motion in Response and Brief in Support total nineteen (19) pages in length, which indicates that the Plaintiff was not prejudiced against or denied an opportunity to present evidence in the same manner as the Defendants. Had the Plaintiff needed to organize his material in the same way as the Defendants, this Court would have granted him leave to do so. However, the fact that the Plaintiff did not come close to exceeding the page limit in his Response undermines his arguments of prejudice.
C. "FAILURE TO PROMOTE" CLAIM
Mr. Taylor first alleges that he was not promoted by United Regional Health Care on account of his race, in violation of Title VII and § 1981. Mr. Taylor's claim in this regard must be denied for two reasons. First, the statute of limitations has run on the specific "failure to promote" instance of 1996 that Mr. Taylor references in his response brief. Second, there is no evidence in the record that indicates Mr. Taylor actually applied for and was denied a position in 1996, or at any other time during his tenure at United Regional.
It is clear that Mr. Taylor was actually promoted by United Regional to the Position of Security Coordinator; however, the record indicates this promotion was not a result of Mr. Taylor applying for the position; instead, the position was offered to him by the hospital.
A Title VII plaintiff must file a charge with the EEOC within 300 days of the occurrence of the allegedly discriminatory act by his employer.See 42 U.S.C.A. § 2000e-5(e)(1) (1994); Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5thCir. 1994);Wilson v. Sysco Food Serv. of Dallas, Inc., 940 F. Supp. 1003, 1009 (N.D. Tex. 1996). The plaintiff is barred from recovering for allegedly discriminatory acts that fall outside of this limitations period, but evidence of the time-barred acts may be relevant to timely allegations of present discrimination. See United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977); Ray v. Tandem Computers, Inc., 63 F.3d 429 (5th Cir. 1995), (citing Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th Cir. 1992)). With respect to § 1981 claims, the statute of limitations in Texas is two years from the alleged discriminatory act.See Byers v. Dallas Morning News, 1999 U.S. Dist. LEXIS 233 (N.D.Tex. January 7, 1999). In this case, Mr. Taylor filed a complaint with the EEOC on April 21, 2000, so any timely discriminatory acts of which he complains must have occurred after June of 1999, 300 days prior to the filing of his complaint. As such, the incident in 1996 where Mr. Taylor argues that he was "discouraged" from applying for the Assistant Director position would be time-barred.
Moreover, there is no evidence in the record that Mr. Taylor ever applied for a promotion with United Regional. In order to survive summary judgment on his "failure to promote" claim, Mr. Taylor must first establish, by the preponderance of the evidence, a prima facie case of discrimination under the McDonnell Douglas burden-shifting approach. See McDonnell-Douglas v. Green, 411 U.S. 792, 802 (1973). In the specific context of a "failure to promote" case, the plaintiff seeking to establish a prima case must prove: 1) that he is a member of a protected class; 2) that he applied for and was qualified for an available position; 3) he was not promoted to a position; and 4) the position he sought was filled by someone less-qualified outside his protected class. See Haynes v. Penzoil Co., 207 F.3d 296, (5th Cir. 2000). Because Mr. Taylor never applied for any other positions with United Regional, he is unable to establish prong two of a prima facie case.
Therefore, this Court GRANTS summary judgment to United Regional and Mr. Cross on Mr. Taylor's "failure to promote" claim. However, while this Court holds that this specific claim is not actionable, evidence related to this and other time-barred claims, as well as evidence of historical discriminatory action by the Defendants may be relevant to determining whether any of the timely alleged acts of present discrimination constitute a violation of Title VII. See Ray, 63 F.3d 429, 434, n. 12).
D. "CONSTRUCTIVE DISCHARGE" CLAIM
Mr. Taylor also claims that United Regional constructively discharged him. "The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into involuntary resignation, then the employer has encompassed a constructive discharge and is liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee."Boze v. Branstetter, 912 F.2d 801, 804 (5th Cir. 1990). In the Fifth Circuit, a plaintiff carries a high burden of proof in order to survive summary judgment on a constructive discharge claim. "To find constructive discharge we believe that `the trier of fact must be satisfied that the . . . working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shows would have felt compelled to resign.'" Bourque v. Powell Electric Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980) (citing Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir., 1977). Along with other salient factors, the Fifth Circuit has also indicated that a district court should examine the aggrieved employee's utilization of both internal and external grievance processes before determining whether the conditions faced by the emplyee rise to the level of constructive discharge.
In this case, Mr. Taylor argues that he was constructively discharged for several reasons. First, he argues that United Regional knew Mr. Cross and others made racial remarks and engaged in discriminatory behavior, yet never took steps to correct that behavior. Second, he argues that Mr. Cross offered to type his resignation letter. Third, he argues generally that he could "no longer subject himself to the frustrations and humiliations of working in such a racially hostile environment." (P. Resp to Motion For Summary Judgment, p. 15.) In response to United Regional's argument that Mr. Taylor did not seek to utilize the internal grievance review process at United Regional, Mr. Taylor argues he did file a claim, but abandoned it three weeks later after United Regional Employee Dwayne McKee did not respond or attempt to contact him about his complaint. Thereafter, Mr. Taylor resigned.
As indicated infra, Mr. Taylor has submitted evidence to the Court that his working environment was racially hostile. However, this fact alone will not support a claim of constructive discharge in this Circuit. Although Mr. Taylor need not prove that United Regional "imposed intolerable working conditions upon him with the specific intent to force him to resign" (Boze, 912 F.2d at 804), he still must proffer evidence that he was diligent in following through with internal grievance procedures. Id at 805. Although the Court understands that an employee may become discouraged if their initial attempt at utilizing an internal grievance procedure does not produce the desired result, the Fifth Circuit requires an employee to take more than the initial step in the grievance process before a resignation will be deemed a "constructive discharge." As Mr. Taylor himself indicated in his deposition that he did no more than take the initial step in such a process, his constructive discharge claim must fail.
Nor has Mr. Taylor indicated that his working conditions were so egregious at United Regional that a reasonable person would have felt compelled to resign. In his deposition, Mr. Taylor truthfully indicated that he enjoyed his job at United Regional, which negates a finding that his workplace was "intolerable." See Junior v. Texaco, Inc., 688 F.2d 377, 380 (5th Cir. 1992). These facts, taken together, indicate that the facts offered by Mr. Taylor do not give rise to a legal claim for constructive discharge.
E. RACIAL DISCRIMINATION / HOSTILE WORK ENVIRONMENT CLAIM
1. Prima Facie Case/Affirmative Defense
In order to establish a prima facie case of race discrimination based on a hostile work environment, an aggrieved employee must show 1) that the employee belongs to a protected group, 2) that the employee was subject to unwelcome harassment, 3) that the harassment complained of was based on race, 4) that the harassment complained of affected a term, condition, or privilege of employment, and 5) respondent superior, i.e. that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 591 (5th Cir. 1998).
In those cases where no tangible employment action is taken, "`a defending employer may raise an affirmative defense to liability or damages' . . . that affirmative defense consists of two prongs, both of which the employer must fulfill: `(a) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Watts v. The Kroger Company, 170 F.3d 505, 509 (5th Cir. 1999) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998)).
Here, this Court has determined supra that Mr. Taylor did not suffer a tangible employment action while employed at United Regional. "A tangible employment action constitutes 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 Industries Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Although constructive discharge and a failure to promote are "tangible employment actions" for the purposes of Title VII, Mr. Taylor has failed to proffer sufficient evidence for these claims to survive summary judgment. As such, United Regional is entitled to set forth the Faragher affirmative defense to Mr. Taylor's claims.
2. Mr. Taylor Has Sufficiently Supported a Prima Facie Case of Hostile Work Environment.
Both Fifth Circuit and Supreme Court precedent set forth a high burden of production on a plaintiff to show that his or her hostile work environment is actionable under Title VII. When the plaintiff is a member of a protected class, in order to find a hostile work environment the employer's conduct must be sufficiently severe and pervasive, both objectively and subjectively, to alter the terms and conditions of employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). "Courts determine whether an environment is sufficiently abusive to be actionable under Title VII by reviewing all of the relevant circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance." Pfeil v. Intecom Telecommunications,, 90 F. Supp. 2s 742, 749 (N.D. Tex. 2000) (citingButler, 161 F.3d at 269.) Moreover, "Title VII is intended only to prohibit and prevent conduct `that is so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace." Shepard v. Comptroller of Public Accounts in the State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) (citing Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996).
Here, as Mr. Taylor has proffered evidence regarding all five elements of the Deffenbaugh test, and his claim must survive summary judgment. Mr Taylor is an African American male (prong one) who was employed at United Regional, and he has provided the Court with sufficient evidence to create a question of material fact that he was harassed at United Regional because of his race (prongs two and three). Moreover, the affidavits of Michael Hadlock, Adrian Palmer, and Chad Petersen, in addition to the affidavit of Mr. Taylor, indicate that a question of material fact exists as to the seriousness of the harassment at United Regional, and as such, the question of whether or not Mr Taylor's harassment affected a "term, condition, or privilege of employment" must go before a jury. Although "offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment"Shepard, 168 F.3d at 874 (citing Faragher, 524 U.S. 775 (1998)), Mr Taylor's summary judgment evidence indicates that he has three witnesses from United Regional who also resigned because of the racially hostile work environment he describes, who would be willing to testify about their experiences in court. Unlike the Shepard andPfeil cases, Mr. Taylor also experienced significant levels of harassment over time, and this harassment directly affected a term or condition of his employment when his superiors made efforts to undermine his authority in a racially derogatory manner. When supported by the affidavits of Mr. Petersen and Mr. Hadlock in particular, Mr. Taylor's evidence on this matter is sufficient to survive summary judgment.
See also Pfeil, 90 F. Supp at 749. ("Incidental or occasional {racial} comments, discourtesy, rudeness, or isolated incidents (unless extremely serious) are not discriminatory changes in the terms and conditions of a worker's employment.")
As to prong five of the Deffenbaugh test, Mr. Taylor has submitted evidence to the Court that his direct supervisor, Michael Cross, was aware of the harassment promulgated against Mr. Taylor, and also participated in it. His allegations are supported by Mr. Hadlock, whose affidavit indicates that he would be willing to testify and support Mr. Taylor's version of the facts in court. When a question of material fact exists that would require a jury's credibility determination on the witnesses before it, summary judgment is inappropriate to resolve a claim. See Thornbrough, 760 F.2d at 640.
3. United Regional Cannot Succeed on the Faragher Affirmative Defense at this Stage of the Proceedings.
As previously stated, United Regional can still defeat Mr. Taylor's hostile work environment claim at the summary judgment stage if they can meet both prongs of the Faragher affirmative defense, because no tangible employment action was taken against Mr. Taylor over the course of his employment. To do so, United Regional must prove: 1) it exercised reasonable care to promptly prevent and correct the harassment; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. See Faragher, 524 U.S. at 775. As United Regional has an anti-harassment policy, provides periodic training for managers and staff on workplace harassment, and provides employees with a Resolution Plan to address incidents of workplace harassment, the first prong of the Faragher affirmative defense is satisfied. See Casiano v. ATT Corp, 213 F.3d 278, 287 (5th Cir. 2000) (indicating that the existence of an appropriate anti-harassment policy will usually satisfy the first prong of the Faragher defense.) Thus, in order for its motion to be granted, United Regional must show that Mr. Taylor unreasonably failed to avail himself of preventative or corrective opportunities to remedy the harassment.
Unlike the constructive discharge claim, here United Regional bears the high burden of production to show that Mr. Taylor neglected to take advantage of the Dispute Resolution Plan, or otherwise failed to draw management's attention to the incidents of workplace harassment he faced. As the record indicates that Mr. Taylor did report incidents of harassment to his superiors and also attempted to utilize the Dispute Resolution Plan through his meeting with Mr. Beyer and Mr. McKee, United Regional cannot utilize the Faragher defense at the summary judgment stage on Mr. Taylor's hostile work environment claim. The test requires United Regional to show that Mr. Taylor acted unreasonably in his efforts to remedy the workplace-based harassment; as such, reasonable efforts by Mr. Taylor described in the record will defeat an employee's effort to utilize Faragher's shield. The record here indicates that a jury could find Mr. Taylor acted reasonably to remedy the harassment he experienced, and United Regional's motion for summary judgment must be DENIED as to Mr. Taylor's hostile work environment claim.
4. Mr. Cross' Individual Liability under § 1981.
In the same vein, Mr. Taylor has produced sufficient evidence to show that Mr. Cross personally and intentionally discriminated against him.See Allen v. Denver Public School Board, 928 F.2d 978 (10th Cir. 1991) (stating that a plaintiff must show that an individual employee intentionally and personally participated in the discriminatory act to be liable under § 1981.) United Regional is correct in its argument that Mr. Cross cannot be held liable under Title VII for workplace harassment as an individual employee; however, he can be liable for harassment in an individual context under § 1981. In order to survive summary judgment on this claim, Mr. Taylor must show that Mr. Cross was personally and intentionally responsible for the racially hostile environment that he complains of. As stated supra, all three affidavits submitted on summary judgment indicate that Mr. Cross did act with personal and intentional hostility towards Mr. Taylor. As this evidence creates a genuine question of material fact that will require a jury's determination of the credibility of the witnesses in this case, summary judgment must be DENIED as to Mr. Taylor's individual claim of hostile work environment against Mr. Cross as well.
III. CONCLUSION
For the aforementioned reasons, Defendants' Motion for Summary Judgment is GRANTED as to Mr Taylor's claims of failure to promote and constructive discharge under Title VII and § 1983. Defendant's Motion for Summary Judgment is DENIED as to Mr. Taylor's claim of hostile work environment on the basis of race under Title VII, and in the case of Mr. Cross, 42 U.S.C. § 1981. The parties will proceed to trial on this claim only.
It is so ORDERED