Ellis v. Houston

• Decision Date: 03 February 2014
• Docket Number: No. 12–2178.,12–2178.
• Citation: 742 F.3d 307
• Parties: Jaryl ELLIS, et al., Plaintiffs–Appellants v. Robert P. HOUSTON, et al., Defendant–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

742 F.3d 307

Jaryl ELLIS, et al., Plaintiffs–Appellants

v.Robert P. HOUSTON, et al., Defendant–Appellees.

No. 12–2178.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2013.

Filed: Feb. 3, 2014.

Jefferson Downing, Lincoln, NE, for Appellant.

Ryan C. Gilbride, Assistant Attorney General, Lincoln, NE, for Appellee.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

Five African American officers who worked in the maximum security Nebraska State Penitentiary brought this action under 42 U.S.C. §§ 1981 and 1983 against five supervisors for race based harassment and retaliation. They seek both injunctive relief and monetary damages. The district court granted summary judgment to the defendants after examining the evidence “as if there were but a single plaintiff and a single defendant.” The black officers ¹ appeal, arguing that the district court dismissed valid claims for racial harassment and retaliation.² After studying the record, we reverse the dismissal of the harassment claims against Sergeant Miles and the retaliation claims of Officer Ellis against Lieutenants Stoner and Haney but otherwise affirm.

I.

Appellants Jaryl Ellis, Aaron Delaney, Michael Hunter, Tiffany Johnson, and Paul Zeiger are black prison guards who worked in the first shift at the Nebraska State Penitentiary during the relevant time period. The hours of the first shift were 6 AM to 2 PM. While 30 percent of the prison population is black, the five appellants were at the time the only African Americans among the 95 guards working on the first shift. Hunter began at the prison in 2006; the others started in 2008 and 2009. Appellants Ellis, Delaney, and Johnson are all officers; Hunter is a caseworker; and Zeiger is a corporal. Their five immediate supervisors on the first shift were Lieutenants Sean Runge, Kevin Stoner, and Chad Haney; Sergeants Chad Miles and Timothy Furby.

On review of the summary judgment granted to the supervisors,³ we must view the facts in the light most favorable to the black officers. Wierman v. Casey's Gen. Stores, 638 F.3d 984, 989 (8th Cir.2011). Our review of the factual background is based on an extensive record which includes discovery taken from each plaintiff and from each defendant, as well as from uninvolved officers on the first shift and from prison officials. Our task at this point is not to decide disputed facts or to weigh issues of veracity, and we begin with the record produced in the district court. See Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1063 (8th Cir.2008).

The record does not reveal a single starting date for the race based harassment the plaintiffs say they suffered at the penitentiary. Caseworker Hunter, the plaintiff who had been employed at the penitentiary the longest, testified that many former black employees had left the prison because they became “fed up” with the racial environment. Plaintiffs have provided evidence that by early summer 2010 they were experiencing demoralizing race based taunts and jokes which were permitted and joined in by their supervisors. The supervisors made insulting racial remarks in their presence and failed to stop or reprimand similar conduct by other guards.

After enduring such harassment for months, the black officers reported it to authorities in the Nebraska prison system. Thereafter, the supervisors retaliated against them by increasing workloads and assigning them undesirable jobs. After raising their concerns about the harassment to prison officials, two of the five plaintiffs were transferred to less significant penal institutions with fewer overtime possibilities.

A.

As soon as the black officers entered the prison to begin their work day, they faced humiliating and aggressive treatment by drug dog handlers stationed at the entrance. The dogs were used to ensure that contraband was not smuggled into the prison, but the appellants testified that the handlers would aggressively press the dogs onto them while white officers were allowed to proceed into the hallway unmolested. Then in the hallway on the way to roll call, the black officers were regularly subjected to offensive statements referring to them as “the gang,” the “home boys,” or “the back of the bus.”

The morning roll call at the penitentiary was a point at which much of the harassing conduct occurred. The black officers allege that they were subjected to an ongoing stream of racial jokes and remarks by members of the first shift. Roll call was held in the cafeteria at the beginning of the work day, and all 95 members of the first shift and their five supervisors were typically present. The atmosphere was generally loud and boisterous, with members of the shift conversing and exchanging news prior to beginning the day's work. There were frequent race based comments like “it smells like fried chicken” or the black officers must be happy with watermelon on the menu. The officers also heard statements like “it's dark in the corner” if any of them happened to gather at one end of the cafeteria and remarks like “if the lights went out all you would see is white teeth.”

The supervisors gave out the day's assignments to each member of the shift at the roll call. The record indicates that individual officers on the first shift did not perform a single function at the penitentiary. Rather, each officer was rotated through a variety of different jobs, some of which were more desirable and prestigious than others. While officers were permitted to request particular positions, the supervisors had authority to decide which officer would fill each job.

There was evidence that the five supervisors were present and often laughing, smirking, or chuckling at the racial taunts. Several white members of the first shift testified in their depositions that supervisors not only laughed at the racially derogatory remarks made in their presence, but took no cautionary or disciplinary action against the speakers. The black officers testified that they felt powerless to respond to the remarks directed at them. In the words of Caseworker Hunter, “the people that you report to [are] the same people that's laughing and joking” with those making racial comments.

The record indicates that supervisors also joined more directly in the harassing conduct. In front of the roll call, Sergeant Miles linked the black guards with fried chicken and watermelon and making it “dark in the corner” where they typically lined up. Miles also made negative statements in reference to Officer Tiffany Johnson's hair style like “this ain't no hair show” and “this isn't the hood.” Lieutenant Runge referred to the black officers as the “back of the bus” and “the hood.” Lieutenant Stoner referred to Corporal Zeiger as “Corporal Zigger,” and Sergeant Furby used the word “nigger.” The record indicates that all the black officers became aware of such comments even if each was not present when every one was made.

Appellants testified that the harassment caused them severe stress, anxiety attacks, depression, and heightened blood pressure. Hunter's hair began to fall out due to the strain he was under, and Delaney suffered outbreaks of hives. The record indicates that the hostility directed at the appellants reached a point where they even came to believe that their fellow officers would not assist them if they were attacked by inmates or found themselves in danger. Some white members of the first shift warned the black officers to “watch [their] back[s].” The black officers' fears were amplified when no white officer came to help Officer Johnson when her alarm activated accidentally.

Ellis testified that while the black officers had initially tried to ignore the offensive remarks, their restraint only encouraged more “brazen” conduct by the first shift staff. On a day when Officer Ellis had had enough of the harassment, he exclaimed “damn the jokes” and “enough is enough.” Although supervisors Miles, Runge, and Stoner were present when Ellis expressed his frustration, they failed to say anything or take any action in response. The record reflects that they just grinned. Ellis later reported specific instances of racial harassment to both Lieutenant Runge and Sergeant Furby, but no action was taken by either in response.

B.

The penitentiary's administrative regulation 112.07 governs how supervisors and managers are required to respond to instances of racial harassment. The regulation defines “workplace harassment” as “any verbal or physical conduct of a discriminatory nature, (inflammatory comments, jokes, printed material and/or innuendo), based, in whole or in part, on race, color, sex, religion, age, disability or natural origin” if its intention or result is an intimidating, hostile, or offensive work environment or it unreasonably interferes with a person's work or employment opportunities. The regulation requires that any supervisor “who receives a complaint alleging workplace harassment or who is otherwise aware of a situation involving a potential workplace harassment” must immediately inform the prison administrators about it. A.R. 112.07(I)(A).

According to Officer Ellis, he reported instances of harassment to Lieutenant Runge and Sergeant Furby and made the reports required by regulation 112.07. After two weeks went by without any response, Ellis asked Sergeant Furby for an update. Furby replied that he had spoken to one officer whom Ellis had complained about for making racist remarks and he advised Ellis to stay away from that individual. Sergeant Furby did not report these events to the prison administrators as required by regulation 112.07. When questioned during a subsequent investigation, Furby stated that Ellis had asked that his complaint be kept quiet.

Appellants became dissatisfied with the lack of action in response to the ongoing harassment they experienced. In September 2010 they wrote a joint letter to Major Barry Loock, the ranking officer in charge of the...