Ellis v. Cca of Tenn. Llc

• Decision Date: 20 July 2011
• Docket Number: No. 10–2768.,10–2768.
• Citation: 112 Fair Empl.Prac.Cas. (BNA) 791,94 Empl. Prac. Dec. P 44198,650 F.3d 640
• Parties: Harriett ELLIS, et al., Plaintiff–Appellants,v.CCA OF TENNESSEE LLC, doing business as Corrections Corporation of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

650 F.3d 640

112 Fair Empl.Prac.Cas. (BNA) 791

94 Empl. Prac. Dec. P 44,198

Harriett ELLIS, et al., Plaintiff–Appellants,

v.CCA OF TENNESSEE LLC, doing business as Corrections Corporation of America, Defendant–Appellee.

No. 10–2768.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 10, 2011.Decided June 9, 2011.Rehearing Denied July 20, 2011.

Christopher Pudelski (argued), Attorney, Washington, DC, Paul K. Ogden, Attorney, Roberts & Bishop, Indianapolis, IN, for Plaintiffs–Appellants.

John T.L. Koenig (argued), Attorney, Barnes & Thornburg, Atlanta, GA, for Defendant–Appellee.Before FLAUM and WILLIAMS, Circuit Judges, and HERNDON, District Judge.^*FLAUM, Circuit Judge.

The plaintiffs in this case are former nurses who worked in the health care unit of a privately run jail. They maintain that their employer, CCA of Tennessee LLC (“CCA”), subjected them to racial discrimination and a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. They also allege that their employment relationship ended when CCA constructively terminated their employment for complaining about problems at the jail, in violation of a state whistleblower law. The district court granted CCA's motion for summary judgment. We affirm.

I. Background

The plaintiffs are Harriett Ellis, Patricia Forrest, Shavon Jones, and Delores McNeil. All of the plaintiffs are African–American, and they all worked as nurses at a medium-security correctional facility known as Marion County Jail II. Four more plaintiff-nurses below did not appeal from the district court's summary judgment order, and so we omit them from our discussion. (Would that plaintiffs had done the same. Instead, their brief regularly refers to all of the nurses collectively, despite the individual nature of their legal claims and despite the fact that half their number have dropped out of the suit.) The jail where plaintiffs worked is managed and operated by defendant CCA, pursuant to a contract between it and the Marion County Sheriff. To staff the jail's medical unit, CCA employs a doctor, psychologists, and nurses. The staff operates under the supervision of a health services administrator.

During their tenure with CCA, plaintiffs maintain that they endured several incidents of race-based discrimination and were subjected to a hostile work environment. The first incident is an early–2005 change that CCA made to the jail's staffing policy. Prior to 2005, nurses at the jail worked in one of three permanently assigned shifts. All of the plaintiffs, or all but one—the record is not clear—, worked on the first of those shifts, the day shift. Tension arose among the shifts. Plaintiff Forrest's deposition put the situation in context:

Q. You said everybody was talking about the fact that the first shift people thought second and third shifts were slackers, right?

A. Well, we complained about that they didn't get some of the work done that we know they should have gotten done.

* * *

Q. And that was a commonly held belief by first-shift people?

A. Yes. And I'm sure the second shift felt the same way about—in nursing, I don't care what it is ... each shift is going to complaint about the other shift.... It was common in that facility for everybody to be complaining about the next shift.

There were also allegations that nurses on the first shift—that is, plaintiffs—were racists. To respond to the tension among the shifts, CCA's regional director of health services, Mary Garner, announced in early 2005 that all nurses would be assigned to rotating shifts on a month-to-month basis. That means that all nurses at various times had to work on all three shifts, and the policy was executed such that the same nurses would not always work with one another. That makes sense; imagine that A and B work together in Week 1 and respect one another's work ethic. During a subsequent week when the two do not work together, A is less likely to complain that B is a poor worker and more likely to chalk up uncompleted tasks to a busy shift or some other irregularity.

Although the effect of the shift-change policy was to split up a predominately black shift, plaintiffs do not point to evidence that the change was made for discriminatory reasons. Indeed, the policy applied to all nurses. Rather, plaintiffs focus on how the change made them feel. Again, plaintiff Forrest: “[T]he reason we were upset about it is because of the fact that day-shift nurses were mostly black, and [Garner] ... was splitting us up.... You got eight black nurses, so let's break them up so they don't have the, you know, the power.”

Plaintiffs also point to a second incident of alleged racial discrimination. In April 2006, the health services administrator, Carmen Copely, left her position at the jail. Following Copely's departure, a six-page excerpt from a book about management was found in her office. See Kenneth Blanchard, William Oncken, Jr., and Hal Burrows, The One Minute Manager Meets the Monkey 5, 55, 68, 82, 94, 112 (1989). The book likens monkeys to workplace problems, as in “there is a monkey on my back.” The point of the book is to teach managers to empower subordinates to solve problems—manage their own monkeys—rather than effectively morph into subordinates themselves. Id. at 29–30.

Nothing about the excerpt from Copely's office could reasonably convey a contrary impression. Here are the contents. Page 1 consists of a man sitting at his desk and looking rather harried. The cause is evident, for a monkey is perched on the man's shoulders, and several others are making rather a nuisance of themselves; they are fussing with papers in the man's in-box, tipping over his trash can, and warring over a telephone. Pages 2 through 4 of the excerpt contain management aphorisms, one per page. Page 2 reads, “The more you get rid of your people's monkeys, the more time you have for your people.” The aphorism on page 3 reads, “All monkeys must be handled at the lowest organizational level consistent with their welfare!” Someone has underlined the printed words “lowest organizational level” and listed employee-groups within the jail—mental health, doctors and physician assistants, clerks, and nurses. The fourth page's aphorism admonishes managers to “[p]ractice hands-off management as much as possible and hands-on management as much as necessary.” Here, someone has underlined “hands-off” and “hands-on.” The fifth page contains a summary of “four rules for monkey management.” Each of the rules explains how managers should supervise their people in addressing workplace challenges. The sixth page is bereft of primates or people and is geared toward promoting effective time-management. Even without the context provided by the book, it is clear from the excerpt that monkeys are workplace challenges, and that people—non-metaphorically referred to as “people”—are not being compared to monkeys. Within the book's construct, bosses have people, and everyone has monkeys.

Plaintiffs feel the excerpt and marginalia are racist, and they seem to maintain that the excerpt's discovery helped spark a hostile work environment. The latter notion is conceptually sound, as writings may be used in ways unintended by authors. See, e.g., Salil Tripathi, Enraged by Madonna and Nicole, New Statesman 28 (Sept. 20, 1999) (discussing the objection of Hindus to the use of a verse from the Bhagavadgita in Stanley Kubrick's Eyes Wide Shut ). One can easily imagine that other employees in a workplace might hijack the anthropomorphic monkey management sketch and use it for racist ends. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir.1996) (observing that it “has become easier to coat various forms of discrimination with the appearance of propriety” because the threat of liability takes that which was once overt and makes it subtle). Of course, the potential for expropriation does not establish that the material is racist. Cf. id. at 1083 (reasoning that the use of “code words,” when combined with other evidence, could support an inference of racial animus). Plaintiffs claim that there was more in this case: they say that the nurses were referred to as monkeys over the jail's intercom by two different CCA employees. Plaintiffs' characterization, however, is unsupported by the record evidence that they cite. The evidence indicates that two employees used the word monkeys when they made comments over the jail's intercom. However, the record does not indicate that the word was used to refer to nurses or any subset of nurses ( e.g., plaintiffs, as opposed to all of the workers at that jail), nor does the record put the statements in any kind of meaningful context.

Subsequent to the incident involving the management excerpt, one of the plaintiffs observed workers at the jail wearing clothing emblazoned with symbols of the confederacy. Specifically, in September 2006, plaintiff Ellis observed a jail employee wearing a T-shirt that contained a representation of a confederate flag on it.¹ The employee was not one of Ellis's supervisors nor did the employee supervise any other plaintiff. Ellis reported the incident, and the record appears to be silent as to what response, if any, was made by CCA. On a separate occasion, too, Ellis observed a different employee wearing a shirt decorated with the confederate flag. That employee also was not a supervisor of Ellis or other nurses, and the response of management is under-specified in the record (although it appears limited disciplinary action was taken).

The final incident related to discrimination that plaintiffs highlight is an encounter that plaintiff Jones had with a doctor at the jail. The timing of the event has not been made clear. At some point, Jones was talking with a doctor about an inmate at the jail whose last name was Cole. Jones asked what the inmate's first name was, and the doctor replied either that the first name was “black as...