619 F.3d 936 (8th Cir. 2010), 09-3322, Watson v. CEVA Logistics U.S., Inc.

Docket Nº:09-3322.
Citation:619 F.3d 936
Opinion Judge:MELLOY, Circuit Judge.
Party Name:Gregory WATSON; Alonzo D. Banks, Plaintiffs-Appellants, v. CEVA LOGISTICS U.S., INC., Defendant-Appellee. Lemont Holloway, Plaintiff,
Attorney:Robert Lee Ortbals, Jr., argued, Kansas City, MO, Donald S. Prophete, Robert Lee Ortbals, Jr., Nicholas J. Walker, on the brief, for appellee. Jessica M. Bernard, argued, Kansas City, MO, Robert O. Jester and Matthew J. Gist, on the brief, for appellant.
Judge Panel:Before MELLOY, HANSEN, and SMITH, Circuit Judges.
Case Date:August 30, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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619 F.3d 936 (8th Cir. 2010)

Gregory WATSON; Alonzo D. Banks, Plaintiffs-Appellants,

Lemont Holloway, Plaintiff,

v.

CEVA LOGISTICS U.S., INC., Defendant-Appellee.

No. 09-3322.

United States Court of Appeals, Eighth Circuit.

August 30, 2010

Submitted: June 16, 2010.

Robert Lee Ortbals, Jr., argued, Kansas City, MO, Donald S. Prophete, Robert Lee Ortbals, Jr., Nicholas J. Walker, on the brief, for appellee.

Jessica M. Bernard, argued, Kansas City, MO, Robert O. Jester and Matthew J. Gist, on the brief, for appellant.

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

MELLOY, Circuit Judge.

Gregory Watson and Alonzo Banks challenge the district court's grant of summary judgment to CEVA Logistics U.S., Inc.

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(" CEVA" ) on their racially hostile work environment claims under Title VII, 42 U.S.C. § 1981, and the Missouri Human Rights Act (" MHRA" ), Mo. Rev. St. § 213.010, et seq. The district court held that the plaintiffs could not establish that a hostile work environment existed, and even if they had shown the environment to be hostile, CEVA took prompt and effective remedial action. We reverse.

I. Background

CEVA provides supply-chain management services whereby automobiles are shipped and received by railroad into a railyard operated by the company. Banks began working for CEVA in September 2004; 1 Watson started in May 2006. Both are African-American. They each held a variety of jobs at CEVA, and at one point worked together as members of a " shuttle" crew, as discussed below. They are also union members of Teamsters Local No. 141.

The plaintiffs' claims are similar in several respects, and we set forth the types of incidents they both cite as contributing to a racially hostile work environment:

White co-workers refusing to work with African-American employees : Both plaintiffs testified that during pre-shift meetings, white employees routinely refused to work with African-American employees. Banks's testimony indicates that, typically, white employees would single out certain individuals with whom they refused to work but did not explicitly state they would not work with African-American employees generally. On one occasion, however, it appeared during a pre-shift meeting that Terri Anderson would be assigned to work with an African-American employee. The supervisor, Allen Kelne, said, " Oh, that's not going to happen." Banks testified that he asked in front of everyone on the shift, including Watson, whether Terri Anderson did not want to work with black people, to which she responded that " she don't [sic] want to work with black people." Watson also testified that supervisor Kelne reassigned Watson to a different task to avoid having him work with Terri Anderson. Kelne later told Watson that she had refused to work with him, though Kelne would not explain why.

Watson testified that frequently white co-workers would cite safety concerns as a means of avoiding working with African-American employees. On one occasion, for example, while Watson was training as a conductor, Maurice Buckley and other co-workers stopped and exited Watson's train and called over the radio that he was unsafe. Watson was sent elsewhere to work. A coworker present during this incident became upset because the co-worker believed Watson had done nothing wrong and thought Buckley and Terri Anderson had simply exhibited " racist-type attitudes." As described further below, another co-worker, Lynn Anderson, also refused to work with Watson, claiming he was unsafe.

Graffiti in the workplace : The plaintiffs reported racial graffiti appeared in several locations at CEVA. " KKK" and " I hate n* * * *rs" were carved into a workbench in the employees'

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locker room, a room visited by virtually all employees on a daily basis. Banks's testimony indicates the carvings were present for months and possibly years. Banks complained to three supervisors throughout 2006, including Todd Cox and Kelne. Watson noticed the carvings for the first time in November 2006 and also complained to Kelne. The plaintiffs also stated that management frequented the area and that the workbench was located close to a manager's locker. Management took no action in response to the multiple complaints until Banks filed an EEOC complaint. Shortly after the EEOC complaint was filed, the carvings were sanded over. Banks also observed " KKK" carved into lockers and complained to management.

The plaintiffs further maintain that racial slurs were written on the walls and stalls of a bathroom. It is largely unclear from the record what slurs appeared there, though manager Mark Cowens acknowledges that in May 2008 he became aware through other managers that " n* * *er" was written in a stall. Watson did not report instances of graffiti and it was removed without his complaint. Banks, however, complained, and although the graffiti would be covered up, it would frequently reappear. The plaintiffs also attested that management-level employees regularly used the restroom where the slurs were located.

Watson and Banks also observed railcars spray-painted with racial messages. Both observed a car with " hang a n* * * *r today" painted on the side. Watson observed this message in early 2007 and complained to a supervisor, who told him later that day that the car had been painted over. Banks also saw " kill the n* * * *rs" and " f* *k n* * * *rs" painted with swastikas on railcars. In late 2006 or early 2007, Banks complained on several occasions to supervisors, including Kelne, about various instances of graffiti on railcars. Banks testified that at times he would receive responses like " It's out of our control" or " [W]e can't just run out there and paint a railcar and cover it up." Both plaintiffs acknowledged at their depositions that CEVA did not own the railcars and that they did not know if co-workers painted these messages or if they came into the yard painted with the messages.

Employees displaying Confederate flags 2 and other racial emblems : Both plaintiffs maintain that several white co-workers regularly exhibited the

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Confederate flag at CEVA, mostly on items of clothing, and attested that it occurred in front of management. Buckley wore a headband and displayed a tattoo with the flag. Banks testified that he reported the headband to management, from whom he received no response. In 2006, Watson also complained to Kelne about Buckley's tattoo. According to CEVA, Cowens became aware of the tattoo and Buckley was instructed to cover it. Watson also saw co-worker Steven Alexander wear garments displaying the flag that year. There is no evidence Watson complained about Alexander.

Both testified that they observed additional unidentified individuals wearing garments with offensive emblems. Watson saw one individual wearing a shirt with a Confederate flag and overheard another employee complaining about it. Banks saw employees whom he did not know from a different shift wearing shirts with a swastika on them. Banks complained about these individuals to supervisors, including Kelne, who did not respond.

False accusations of safety violations and co-workers creating dangerous situations : Watson and Banks worked together from July 2006 to January 2007 on the shuttle crew, which consisted solely of Watson, Banks, and one other African-American employee. During this period, white co-workers, some of whom engaged in other racist behavior, as well as supervisor Kelne, made false accusations of safety violations over the radio that could be heard by management. If believed, the accusations could have been grounds for termination. At his deposition, Watson specified that in late 2006 or early 2007...

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