Bolden v. PRC Inc., 93-3207

Decision Date23 December 1994
Docket NumberNo. 93-3207,93-3207
Parties65 Empl. Prac. Dec. P 43,412 James L. BOLDEN, Jr., Plaintiff-Appellant, v. PRC INC., formerly known as Planning Research Corporation, and Robert Carver, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Brock R. Snyder, Law Office of Brock R. Snyder, Topeka, KS, for plaintiff-appellant.

Kirk T. May, Rouse, Hendricks, German, May & Shank, P.C., Kansas City, MO, for defendants-appellees.

Before BALDOCK and BRORBY, Circuit Judges, and REAVLEY, * Senior Circuit Judge.

BRORBY, Circuit Judge.

This is an employment discrimination case arising out of James L. Bolden Jr.'s employment with PRC Inc. Mr. Bolden alleged several violations of Title VII based upon racial discrimination. Mr. Bolden also alleged a pendent state claim of outrage. The district court dismissed the case by granting defendants' motion for summary judgment on each claim.

STANDARD OF REVIEW

On review of a grant of summary judgment we review the record de novo drawing all reasonable inferences in favor of the nonmovant. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate only when the moving party shows 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). To avoid summary judgment, the nonmovant must make a showing sufficient to establish an inference of the existence of each element essential to the case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The nonmovant "may not rest upon mere allegation or denials of his pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2515, 91 L.Ed.2d 202 (1986). To go to trial there must be enough competent evidence to enable a finding favorable to the nonmovant. We may affirm the grant of summary judgment for reasons other than those used by the district court as long as they are adequately supported by the record. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 528 (10th Cir.1994).

BACKGROUND

Mr. Bolden, an African American, had worked as an electrician at PRC for eight years with Robert Carver as his immediate supervisor. The record portrays Mr. Bolden as a sensitive and serious person working in a shop filled with boorish churls. Eventually, the torment from his coworkers became unbearable for Mr. Bolden, so he resigned his employment with PRC.

Work Assignments

Mr. Bolden was hired and promoted on Mr. Carver's recommendations. During his first five years with PRC, Mr. Bolden was promoted three times: from Trainee Technician to Technician C to Technician B and then to Technician II. Mr. Bolden usually received satisfactory performance evaluations. However, during one year of his work with PRC, Mr. Bolden received below average evaluations. During that year, Mr. Bolden had problems with tardiness and problems working up to his potential; Mr. Bolden was rated as "needs some improvement" in most areas of the job.

Mr. Bolden applied for the position of Technician III but was denied this promotion. Mr. Carver, with the facility manager, Mr. Melander, made the promotion decision based upon a numerical evaluation of the As Mr. Bolden's supervisor, Mr. Carver made all of the work assignments. During the first two years of Mr. Bolden's employment with PRC, Mr. Carver assigned Mr. Bolden to work on old and delayed projects in a warehouse where other employees did not want to work. Throughout his employment, Mr. Bolden was assigned to work on unsophisticated projects. Mr. Bolden noted an incident in which his soldering project did not pass inspection while a less well soldered project by one of his coworkers did pass inspection. On another occasion, Mr. Bolden was given an assignment to repair an item that could not be properly fixed and normally would have been discarded.

candidates and an interview of the top five applicants. In the numerical evaluation, Mr. Bolden ranked twenty-first out of twenty-two applicants and therefore was not granted an interview nor given the promotion.

Work Atmosphere

Although the record on appeal shows Mr. Bolden was badgered frequently by several of his coworkers, Mr. Bolden alleges only two of his coworkers made overtly racial remarks. Barry Fiordimondo, a coworker, at least three years before Mr. Bolden's resignation, warned Mr. Bolden "you better be careful because we know people in [the] Ku Klux Klan." Mr. Fiordimondo also used terms such as "honky" and "nigger" in Mr. Bolden's presence. Mr. Fiordimondo drew a sad face cartoon and titled it "Junior makes the same pay as I do." Mr. Bolden interpreted this cartoon to be a racial attack directed at him as the only black person working in the shop at the time the picture was drawn. In his deposition, Mr. Bolden notes Mr. Fiordimondo was considered a joking type of person who often used the terms "honky" and "nigger" in the shop with respect to persons other than Mr. Bolden.

Another coworker, Michael Weinsaft, also allegedly made racial remarks directed at Mr. Bolden. Mr. Bolden cannot recall any of Mr. Weinsaft's racial slurs or jokes.

During the last year and a half of Mr. Bolden's employment with PRC, several of his coworkers began deriding him. Mr. Bolden kept a log of most of these incidents. Mr. Bolden lists twenty incidents occurring over the eighteen-month period. On one occasion, Mr. Weinsaft walked over to Mr. Bolden's work area and expelled flatus directly at Mr. Bolden. Two other coworkers made flatulence jokes involving Mr. Bolden: One coworker expelled flatus and said, "[a] kiss for you Jim." Although such jokes were a common occurrence in the shop, Mr. Bolden was the sole recipient of such direct gas from Mr. Weinsaft.

Other coworkers called Mr. Bolden names. He was referred to as "dickhead," "dumbshit," "asshole," "faggot," and "fool." During a lunch break, an unidentified coworker rigged Mr. Bolden's chair so the back would fall off when Mr. Bolden leaned against it. One coworker told Mr. Bolden "to go to hell [and he] hopes [his] family goes there with [him], along with [his] dog." One morning on his way into work, Mr. Bolden encountered a coworker leaving the building. Mr. Bolden jokingly said, "[G]oing the wrong way aren't you?" In response, the coworker called Mr. Bolden a fool and kept on walking. The final provocation, resulting in Mr. Bolden's resignation, was when a coworker violently pushed Mr. Bolden after they accidentally bumped into each other.

Mr. Bolden describes the workshop as a "joking" environment where most of the workers made jokes and were the targets of joking behavior. Mr. Bolden notes he does not like to joke at work. He is a serious, literal-minded person. Mr. Bolden also presents evidence about his religion and about how some of his coworkers may have been aggressive toward him in response to his strongly-held religious beliefs.

Mr. Bolden's Complaints to His Supervisors

Mr. Bolden was tormented at work, yet often he did not notify his supervisors about what was happening. Some events he did report. However, he did not alert his supervisor he felt he was being harassed because of his race.

Mr. Bolden reported the "Junior makes the same pay I do" cartoon to Mr. Carver; however, Mr. Bolden did not tell Mr. Carver Mr. Bolden did not complain about any of the flatulence until Mr. Weinsaft directly expelled flatus at Mr. Bolden's workbench. Mr. Bolden was not satisfied with Mr. Carver's response to his complaint because Mr. Weinsaft's pay was not reduced. Mr. Bolden reported to his supervisors some of the name-calling, which ceased as soon as the supervisors became aware of and responded to the problem. Mr. Bolden complained about being told to go to hell and never had any problems with that employee again. Mr. Bolden also reported the shoving incident, however not prior to his resignation.

he perceived the cartoon as a racial attack. Mr. Bolden never reported to his supervisors the Ku Klux Klan comment nor the racial slurs made by Mr. Fiordimondo. Although Mr. Bolden clearly remembers no supervisors were present when Mr. Weinsaft made racial jokes, Mr. Bolden never reported this behavior by Mr. Weinsaft.

When management did learn of Mr. Bolden's problems in the shop, the supervisors confronted the offending coworker. On one occasion, Mr. Melander called the offending coworker to the front office to meet with management. Mr. Bolden does not know what management said to this rude coworker; however, he noted it worked. When Mr. Carver learned Mr. Weinsaft had expelled flatus at Mr. Bolden's workbench, Mr. Carver reprimanded Mr. Weinsaft and placed a memorandum of reprimand in Mr. Weinsaft's personnel file.

Approximately one year before Mr. Bolden resigned, he filed a charge of discrimination with the Kansas Commission on Civil Rights and the Federal Equal Employment Opportunity Commission. At the settlement conference with the Kansas Commission on Civil Rights, Mr. Melander and Mr. Carver learned for the first time about the racial slurs Mr. Fiordimondo had used one or two years earlier. In response to this information, Mr. Melander confronted Mr. Fiordimondo. Mr. Melander then held a meeting with all workshop employees. Without revealing to the employees Mr. Bolden had filed a complaint, Mr. Melander informed the workers discrimination would not be tolerated at PRC and the workers must treat one another with respect and dignity. After this meeting, Mr. Fiordimondo and Mr. Weinsaft did not make racial jokes or slurs again; neither of them bothered Mr. Bolden again.

DISCUSSION

The district court granted the defendants' motion for summary judgment on all claims. The court found the badgering of the plaintiff was "commonplace of the blue collar environment of the electronics shop." Memorandum & Order at 8. The court also concluded the ...

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