606 F.3d 513 (8th Cir. 2010), 09-1758, Anderson v. Durham D & M, L.L.C.

Docket Nº:09-1758.
Citation:606 F.3d 513
Opinion Judge:MELLOY, Circuit Judge.
Party Name:Richard ANDERSON, Appellant, v. DURHAM D & M, L.L.C., Appellee. Equal Employment Opportunity Commission, Amicus Curiae on behalf of Appellant.
Attorney:David Andrew Lunceford, argued, Lee Summit, MO, for appellant. Gail S. Coleman, Washington, D.C., for Amicus appellant EEOC. Geoffrey M. Gilbert, Jr., argued, St. Louis, MO, James N. Foster, Jr., Daniel G. Fritz, on the brief, St. Louis, MO, for appellee.
Judge Panel:Before RILEY, Chief Judge,[1]WOLLMAN and MELLOY, Circuit Judges.
Case Date:May 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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606 F.3d 513 (8th Cir. 2010)

Richard ANDERSON, Appellant,


DURHAM D & M, L.L.C., Appellee.

Equal Employment Opportunity Commission, Amicus Curiae on behalf of Appellant.

No. 09-1758.

United States Court of Appeals, Eighth Circuit.

May 26, 2010

Submitted: Dec. 15, 2009.

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David Andrew Lunceford, argued, Lee Summit, MO, for appellant.

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Gail S. Coleman, Washington, D.C., for Amicus appellant EEOC.

Geoffrey M. Gilbert, Jr., argued, St. Louis, MO, James N. Foster, Jr., Daniel G. Fritz, on the brief, St. Louis, MO, for appellee.

Before RILEY, Chief Judge,1WOLLMAN and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Richard Anderson appeals the district court's grant of summary judgment to Durham D & M, L.L.C. (" Durham" ) on his claims of race discrimination under Title VII and 42 U.S.C. § 1981, age discrimination under the Age Discrimination and Employment Act (" ADEA" ), and a racially hostile work environment under § 1981.2 The district court 3 granted summary judgment to Durham as to the race discrimination and the hostile work environment claims as a matter of law and determined Anderson failed to exhaust his administrative remedies as to the age discrimination claim. Considering the merits as to all claims, we affirm.

I. Background

Durham is student-transportation provider that employed Anderson as a school bus driver at its Grandview, Missouri facility for several months in 2006 and 2007. Anderson is a white male who was approximately 73 years old when he started at the company. Operations Supervisor Faye Chapman interviewed and hired Anderson in August 2006. Thereafter, Anderson attended five days of training on Durham's policies, including harassment, discrimination, safety, and accidents.

Anderson's official hire date was September 5, 2006. The same day, an evaluator rode along with Anderson and gave him an overall written evaluation of " needs improvement," the other option being " meets expectations." Chapman informed Anderson of the evaluation and told him that she wanted to observe his driving.

Anderson testified that, all together, Chapman rode with him during training and a couple of other times. She told him each time she did so that he was doing an " excellent" job and she ultimately gave him a " meets expectations" review. Chapman did not document any problems with his performance during ride-alongs.

Durham employed bus monitors and Chapman testified that monitors assigned to Anderson's bus came to her with specific concerns about Anderson's driving not long thereafter.4 Viewing the record in

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the light most favorable to Anderson, it does not appear Chapman documented any complaints or discussed them with Anderson. Anderson's testimony indicates, however, that he became aware of at least one monitor's complaints about his driving.

In late September or early October, General Manager Daryl Huddleston told Anderson that he would have to take a driving test on October 5. Anderson has maintained that no one in management actually told him that he was driving poorly. He testified, however, that Huddleston asked him to take the driving test because " they said they had reports that my driving was bad" and that Huddleston told him about phone calls Durham had received concerning his driving. Anderson declined to take the test and went home. Huddleston considered Anderson to have quit under company policy when Anderson did not return for three days.

In January 2007, Anderson approached Huddleston about taking the driving test. According to Huddleston, he consulted Chapman and Safety Supervisor Rodger McGee before allowing Anderson to do so. Chapman and McGee administered the test, and Chapman told Anderson that he did " great." Anderson also successfully passed medical, drug, and alcohol tests and was rehired as of January 18, 2007.

In March and April 2007, Anderson was involved in three accidents. According to the employee handbook, a " motor vehicle accident" includes any accident, including a collision with a fixed object, " that results in death, bodily injury, property damage or physical damage, regardless of the nature, extent, or dollar amount (i.e., $1 or more) of injury or damage." A motor vehicle accident is to be investigated, recorded, and reported to Risk Management. Preventable motor vehicle accidents count against the employee's work record, while non-preventable accidents do not. " An accident is considered preventable unless a subsequent investigation shows that our driver did everything possible, as an expert driver, to prevent it." The handbook describes steps to be taken by management upon each preventable accident, varying to some extent by the amount of time between accidents. An employee is terminated upon the third preventable accident in twenty-four months. However, " no employee is allowed a certain number of preventable accidents," and the company retains the right to determine appropriate " corrective action" for a preventable accident based on " cause, severity, injuries, damage, negligence, and the employee's safety record or other contributing factors."

On March 19 and April 4, Anderson hit curbs while driving. Marilyn Owens was acting as a monitor on those occasions and sought medical treatment for injuries allegedly sustained during both accidents. Durham deemed both accidents " preventable." On April 6, Anderson was exiting Durham's lot and broke a mirror on his bus while attempting to avoid another bus that had turned into his lane. Anderson reported the incident and was instructed to continue on his route. Huddleston met with Chapman and McGee about the accidents and complaints they had received about Anderson's driving. According to Huddleston, he decided to remove Anderson as a driver and instructed McGee to tell Anderson he was being reassigned to a bus monitor position at the same rate of pay. Chapman and McGee met Anderson in the parking lot when he returned from his route, and McGee informed

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Anderson that he could no longer drive. Although Anderson now asserts that he was not offered a monitor position, he acknowledged during deposition that Chapman said he could serve as a monitor at a lower rate of pay. At that time, Anderson turned down the offer, left, and did not return to Durham. He stated, however, that he " probably" would have accepted the job had the pay been the same. McGee completed an incident report dated the same day deeming the accident preventable. The driver Anderson testified took over his routes is a white male older than Anderson. Anderson nonetheless maintains that he was terminated because of his race or age.

To that end, Anderson makes several broad assertions he was treated differently than younger, African American drivers. Generally, he contends that he was subjected to higher standards of performance. He testified that McGee constantly nitpicked his driving, but he did not know if McGee treated others more favorably. Anderson also stated in an affidavit, for example, that he heard supervisors discussing accidents " of a much more serious nature involving younger, black drivers that were still employed at Durham." Anderson additionally testified that he witnessed accidents and knew of one driver who had two accidents in a single day, though he did not know what happened to the driver. Anderson further alleged that African American drivers were given special charter routes over him. He acknowledged, however, that one of the charters conflicted with his regular route and that he was aware of Durham's policy not to schedule a driver for a charter if it conflicted with the driver's existing routes. He could not remember the circumstances of another charter route he did not receive.

In addition to the disparate treatment Anderson allegedly encountered, he maintains that he suffered ongoing verbal harassment from managers and employees that started soon after he began working. Anderson testified that one of the reasons he did not come back after being asked to take the driving test was because of " the name calling and so forth" and because it was " not a good environment." He later acknowledged that he nevertheless suggested to his wife that she apply for a job at Durham.

Chapman and other employees frequently called Anderson names such as " fuzz ball" and " Spongebob Square Pants." He first testified that these names were age or race related. McGee, in addition to nitpicking Anderson's driving, often insulted and ridiculed him, which Anderson believed had to do with his race or his age. Anderson testified, however, that neither McGee nor Huddleston made any inappropriate remarks as to his race or age.

According to Anderson's testimony, a group of five to seven African American employees stood outside Durham's office and called him names as he passed by nearly every time he saw them for almost his entire employment. These individuals called him racial slurs, including at times " white bitch" and " cracker," on a number of occasions, as well as other profane names such as " motherf* * *er" and " a* *hole" on a more regular basis. It is undisputed that he complained to Chapman at least once in fall 2006 that employees were calling him names. However, he acknowledged at deposition that he told her that the employees were " foulmouthed" and that he was being called names, but did not repeat the " dirty" words used or tell her the name calling was racially inappropriate. He also testified that Chapman was not outside when the name calling occurred; however, Anderson believed her presence in the office meant she must have heard the comments.

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Anderson did not tell any other manager about this behavior.

Shortly after Anderson started at Durham, one...

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