McGinest v. Gte Service Corp.

• Decision Date: 11 March 2004
• Docket Number: No. 01-57065.,01-57065.
• Citation: 360 F.3d 1103
• Parties: George McGINEST, Plaintiff-Appellant, v. GTE SERVICE CORP.; Mike Biggs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

360 F.3d 1103

George McGINEST, Plaintiff-Appellant, v. GTE SERVICE CORP.; Mike Biggs, Defendants-Appellees.

No. 01-57065.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 2, 2002 — Pasadena, California.

Filed March 11, 2004.

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David A. Cohn, Mancini & Associates, Encino, California; Gerald M. Serlin, Benedon & Serlin, Woodland Hills, California, for the plaintiff-appellant.

Jennifer L. Nutter and Thomas P. Brown IV, Epstein, Becker & Green, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV-99-13432-CAS.

Before: Stephen REINHARDT, Diarmuid F. O'SCANNLAIN, and Richard A. PAEZ, Circuit Judges.

Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge O'Scannlain.

OPINION

PAEZ, Circuit Judge:

George McGinest, an African-American employee of GTE Service Corporation ("GTE"), sued GTE under Title VII for creation of a racially hostile work environment, failure to promote due to racial discrimination, and failure to promote due to retaliation. McGinest claims that GTE created a racially hostile work environment based both upon its perpetration of and its failure to adequately respond to a large number of incidents that occurred over a fifteen year period. In support of his hostile work environment claim, McGinest alleges that he was placed in dangerous working conditions because of his race, prevented from collecting bonus pay available to non-African American coworkers, forced to endure racial taunts and insults by supervisors and coworkers, and subjected to racist graffiti in GTE's bathrooms and on switch boxes. Additionally, McGinest claims that he was denied a promotion in late 1998 due to his race and in retaliation for filing an EEOC complaint; GTE responds that it was unable to promote him due to a hiring freeze.

The district court granted summary judgment to GTE. The court found that the incidents comprising the hostile work environment claim were sporadic, and for the most part adequately remedied. Moreover, it found that McGinest was unable to produce sufficient evidence that GTE's stated reason for failing to promote him was a pretext.

We reverse the district court's dismissal of the hostile environment and disparate treatment claims. The district court resolved numerous factual questions in favor of GTE, failed to distinguish between supervisors and coworkers in evaluating GTE's liability, and did not consider fully the cumulative impact of the events that occurred. Because McGinest has established genuine material issues of fact regarding his hostile work environment claim, as well as on the question of whether the denial of the promotion was prompted by a discriminatory motive, these claims must be remanded. However, McGinest has failed to establish a prima facie case of retaliation, and so we affirm the district court's dismissal of this claim.

I. BACKGROUND

George McGinest is an African-American employee of GTE, a telecommunications company.¹ He has worked for GTE for 23 years, and has continued to do so during the course of this litigation. McGinest was initially hired as a lineman, and subsequently has worked as an outside plant construction worker and relief supervisor. At the GTE facilities at which McGinest has worked, he has been one of few African-American employees. Because this case was decided on summary judgment, we evaluate the facts in the light most favorable to McGinest, the nonmoving party. Lam v. Univ. of Hawaii, 40 F.3d 1551, 1555 n. 2 (9th Cir.1994).

A. Hostile Work Environment

McGinest describes a number of events and practices, which he alleges cumulatively created a hostile work environment. These events fall roughly into two categories: some involved discriminatory treatment through concrete actions, while others involved written and oral derogatory statements.

1. Concrete Actions

Events Involving Supervisor Jim Noson

Jim Noson supervised McGinest for five or six years, at a facility in Long Beach, ending in the early 1990s. During this time, Noson engaged in numerous acts of racial harassment directed toward McGinest. Although the majority of these incidents were not accompanied by explicit racial comments, McGinest testified at his deposition that Noson's behavior and "any comment that he made was because of my race." According to McGinest, Noson forced McGinest to work under dangerous conditions or without proper equipment, and subjected him to obscene and demeaning language. When McGinest was responsible for a project, Noson would not provide him with sufficient crew members to safely perform the job. Noson also indicated his desire to fire McGinest on several occasions, and specifically stated that he wished to provoke McGinest into fighting with another worker so that he could fire both of them. On one occasion, Noson noted that McGinest was wearing a gold chain, and commented "only drug dealers can afford nice gold chains."

Noson's abusive conduct was also aimed at Matt Ketchum, a white coworker and friend of McGinest. McGinest testified that although Ketchum "received the blunt of the problem too, it still was directed to me because of my race.... 90 percent of time, if he wasn't [] with me, he wouldn't receive the same bashing."

Any time that McGinest had a problem with Noson he gave notes complaining about Noson's conduct to his supervisor, Hank Bisnar, and complained in person. Because McGinest's complaints were not successful in remedying the problem, McGinest ultimately filed an internal discrimination complaint noting twelve incidents where Noson had treated him in a discriminatory manner. GTE claims that it conducted an internal investigation, finding Noson's comments to be merely "shoptalk," but requiring Noson to apologize to McGinest. However, McGinest states that he never received a response to his complaint.

Overtime for Relief Supervisors

From 1995 to 1997, non-African-American relief supervisors received overtime pay when they arrived early to set up for their shift. On some occasions, relief supervisors were permitted to claim an entire hour of overtime when they arrived just five minutes early to set up for their shift. GTE acknowledges that until the arrival of the new manager, Mike Begg, there was an unwritten rule that relief supervisors got an hour of overtime for each shift. McGinest testified that even after Begg's arrival, some supervisors continued to get "bonus" overtime pay, however, McGinest's supervisor, Don Roberts, refused to allow him to claim any of the overtime that he actually worked when he was a relief supervisor. McGinest challenged this differential treatment for several paychecks, submitting timesheets that reflected the overtime that he worked, only to have the overtime removed by Roberts. McGinest complained repeatedly about this treatment.

Coworkers' Refusal to Obey When McGinest Was Relief Supervisor

In 1995, McGinest moved from the Long Beach facility to Huntington Beach. Upon his arrival, he had difficulties with coworkers who refused to work under his supervision when he was the relief supervisor. On one occasion, several workers refused to work for him in carrying out a job that was extremely dirty and undesirable. Brian Brand, a white coworker, testified that they also refused to work for him on the same occasion. McGinest did not complain to management about this incident.

Maintenance of Vehicles

In March of 1997 McGinest became concerned that one of the tires on his company vehicle was wearing out. Since ninety percent of his driving time was on the freeway, he was concerned for his safety. He sent a request in writing to the garage to have the tire replaced, but the garage mechanic replied that there was nothing wrong with the tire. He also informed his supervisor, Don Roberts, about the need to replace the tire, but Roberts said that "the company wouldn't spend any money on any tires." After McGinest's request for repair was denied, he showed the tire to another supervisor, who agreed that the tire looked bald.

Two to three weeks after these events, the tire blew out while McGinest was driving the vehicle and he crashed into a wall. McGinest was treated for injuries at the hospital. His leg was injured and he had to wear a neck brace.

McGinest testified that almost everyone was driving around in vehicles with better tires. He explained that when white employees "want[] something fixed, they get it," and cited an example of a white employee who had requested new tires around the same time that McGinest had, but who had obtained them. Another coworker, Brand, agreed that the garage mechanic and the foreman seemed to have a particular problem with three black employees, one of whom was McGinest, noting that they "continuously treated George [McGinest] in a de[]meaning and[condescending] manner in my presence." Brand testified that "[f]or the most part they seemed to be pretty good with myself, and [others] ... we happen to be white, it could have been racial. It could have been just personality."

2. Racial Slurs and Derogatory Comments Derogatory Statement by Coordinator Tom Hughes

In May 1996, Tom Hughes called McGinest "stupid nigger" to his face, an epithet that was overheard by Brand. Hughes had referred to McGinest on other occasions as "stupid" and "sparrow brain," and had told McGinest, "you should stay in Long Beach where you belong, with your kind."

McGinest did not report the May 1996 incident immediately because he was so enraged that he had to leave the building. The next day, McGinest reported to his immediate supervisor, Gary Deason, that Hughes was "always calling me a name." However, he did not pursue a formal complaint with the management because of his conviction that it would be futile, "because I went to management with several...