McCowan v. All Star Maintenance

• Citation: 273 F.3d 917
• Decision Date: 30 November 2001
• Docket Number: No. 00-2040,00-2040
• Parties: (10th Cir. 2001) WARREN N. MCCOWAN; JOHNNY P. LUNA; STEVE E. GUERRERO, Plaintiffs-Appellants, v. ALL STAR MAINTENANCE, INC.; TIM KING; STEVE SWITZER; TRACY GORMAN, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 917

273 F.3d 917 (10th Cir. 2001)

WARREN N. MCCOWAN; JOHNNY P. LUNA; STEVE E. GUERRERO, Plaintiffs-Appellants, v. ALL STAR MAINTENANCE, INC.; TIM KING; STEVE SWITZER; TRACY GORMAN, Defendants-Appellees.

No. 00-2040

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Nov. 30, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-98-581-LH/WWD)

[Copyrighted Material Omitted] Federico C. Alvarez (Rodrigo V. Ramos, Scherr, Legate, & Ehrlich, PLLC, El Paso, TX, on the briefs), Kelly, Haglund, Garnsey & Kahn, Denver, CO, for Plaintiffs-Appellants.

Charles J. Vigil (Jo Saxton Brayer, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM; David W. Croysdale and Amy Schmidt Jones, Michael Best & Friedrich, L.L.P., Milwaukee, WI, with him on the briefs), Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Defendants-Appellees.

Before MURPHY, HALL,^* and PORFILIO, Circuit Judges.

JOHN C. PORFILIO, Senior Circuit Judge.

After three weeks painting houses for All Star Maintenance, Inc., Warren N. McCowan, Johnny P. Luna, and Steve E. Guerrero were terminated, triggering the underlying lawsuit for discrimination based on their Hispanic national origin. This appeal challenges the dismissal of that lawsuit. Because our de novo review finds that disposition was premature, we reverse.

In the summer of 1997, All Star Maintenance did business on the White Sands Missile Range in south central New Mexico, providing carpentry, tiling, roofing, and painting services to prepare houses for resale to the federal government. Charles "Burt" Peterson, the project manager responsible for ensuring the efficiency of the overall operation, supervised Tim King, the field superintendent, who, in turn, relied upon Tracy Gorman, an on-site foreman and quality control person, as well as Steve Switzer, who did concrete and carpentry work. Concerned that production goals were not being met by his first crew of three painters, Mr. King hired Warren McCowan, Johnny Luna, and Steve Guerrero. Typically, this second painting crew checked into the All Star field office in the morning to get a work order, drove to the house the three were assigned to paint, and returned at the end of the day to clock out. During those days, McCowan, Luna, and Guerrero were called, overheard, or were told about racial epithets which peppered the office or work area. Three weeks after they started, this second crew of painters complained to Mr. King about the unprovoked epithets and comments. Mr. King terminated the second crew. The actual reason for that action formed the basis of this lawsuit.

In their complaint, Plaintiffs McCowan, Luna, and Guerrero, each a United States citizen of Mexican origin, alleged All Star, Tim King, Tracy Gorman, and Steve Switzer (All Star, collectively) discriminated against them because of their race by subjecting them to racially derogatory language in a racially hostile environment and then terminating them when they complained, all in violation of their rights under 42 U.S.C. 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c). All Star moved for summary judgment contending "the alleged racial remarks were not so severe or pervasive as to alter the conditions of their employment and Plaintiffs did not complain about the alleged remarks until the day their position were [sic] eliminated."

In support of the motion, All Star stated "prior experience" and "industry standards" dictated a three-person crew should paint the interior of a house in a day. Plaintiffs only painted "6-7 houses" during the three and a half weeks they worked for All Star, causing the company to lose about $600 on each house painted. A week or two before terminating Plaintiffs, All Star stated it subcontracted the painting work and discovered it could save from $400 to $600 per house. Thus, "All Star ceased hiring painters solely for financial reasons." (italics added). After examining the "backgrounds" of the six painters who comprised the two painting crews, All Star reassigned the workers in the first crew and terminated Plaintiffs. The consequence, All Star asserted, was circumscribed by its business judgment and was not a pretext for discrimination.

Further, All Star challenged Plaintiffs' evidence of racially derogatory comments, relegating the language and epithets to the coarse dominions of the construction industry and cushioning and diminishing the words' effects with various hearsay characterizations. Thus, while statements like "wannabe cholos," "fucking stupid Mexicans," "my south of the border friend," "fucking cholo attitudes," "spik," "burrito-eating motherfucker," "worthless nigger," "nigger for a day," or "fucking painter" might have been uttered and overheard, the language was not always directly spoken to Plaintiffs nor communicated in the presence or with the knowledge of Tim King, All Star argued. Moreover, because Plaintiffs spent only a few minutes at the beginning and end of the day in the office where some of the offensive language might have been voiced and otherwise worked alone in a house for the entire day over a period of only three weeks, they could not survive the factual showing necessary for an intimidating or hostile work environment.

Although Plaintiffs countered with deposition testimony, various affidavits, and an EEOC affirmative finding, as well as a list of specific instances of the offending discriminatory incidents and comments, the Magistrate Judge assessed each claim against this documentary evidence, cataloging some of the statements as personal opinions and others as "not even by a stretch" to qualify as racially derogatory (for example, "f---- painters"), and concluded, under the extant law, Plaintiffs had presented a prima facie case but failed to carry their burden to "rebut the presumption that Defendants terminated [them] for legitimate, nondiscriminatory reasons." The Magistrate Judge then granted All Star summary judgment on Plaintiffs' claims of discriminatory termination, retaliation, and hostile environment as well as those of negligent and vicarious liability for the alleged conditions of employment.

Our jurisdiction, premised on 28 U.S.C. 1291,¹ requires we review the order granting summary judgment de novo utilizing the same legal standards employed by the district court as dictated by Federal Rule of Civil Procedure 56(c). O'Shea v. Yellow Technology Servs., Inc., 185 F.3d 1093, 1096 (10th Cir. 1999). If that review of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," reveals "there is no genuine issue as to any material fact[,] ... the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). "A fact is 'material' if, under the governing law, it could have an effect on the outcome of the lawsuit." Ortiz v. Norton, 254 F.3d 889, 893 (10th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "A dispute over a material fact is 'genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented." Id. In this review, we have oft reminded that all inferences arising from the record before us must be drawn and indulged in favor of the party opposing summary judgment. O'Shea, 185 F.3d at 1096. "In this respect, we must view the evidence in context, not simply in its segmented parts." Id. That is, given the allegations of the complaint, "we must examine the totality of the circumstances, including 'the context in which the alleged incidents occurred.'" Id. (citation omitted).

Here, Plaintiffs challenge the correct application of this latter directive, urging the district court substituted its evaluation of separate instances of discriminatory statements extricated from the overall context in which the incidents occurred. This approach, they contend, "robs the incidents of their cumulative effect." Moreover, by deeming the context of the comments the rough hewn and vulgar environment of construction work, Plaintiffs complain the court failed to evaluate the totality of the specific incidents in light of the record they presented.

We agree. A tenet of summary judgment review, as we have stated, requires we indulge all reasonable inferences in the nonmovant's favor. In this case, not only did the court fail to view the evidence in this fashion, but also it ignored some of the facts presented, permitting it to resolve what otherwise would be material facts more appropriately reserved for a rational jury. Moreover, even if this review did not convince us of the presence of a genuine issue of material fact, we would have to conclude the district court failed to correctly apply the substantive law.

What is then before us is whether Plaintiffs' version of their three weeks' employment at All Star supports a viable claim of racial discrimination in the several forms alleged.² For 1981 and Title VII, the legal construct into which they must fit their factual presentation places the "not onerous" burden of establishing a prima facie case on Plaintiffs, requiring proof by a preponderance of the evidence Plaintiffs belong to a protected class, in this case, a racial minority; were qualified for the job they were hired to perform; despite the qualifications, were terminated; and the job was not eliminated after their discharge. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Ortiz, 254 F.3d at 894; Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999). As Burdine explained, establishing the prima facie case "creates a presumption that the employer unlawfully discriminated against the employee," 450 U.S. at 254, shifting the burden to the employer to rebut the presumption of discrimination by producing evidence the termination was based on a legitimate, nondiscriminatory reason. "The explanation...