772 F.2d 1250 (6th Cir. 1985), 84-3291, Erebia v. Chrysler Plastic Products Corp.

Docket Nº:84-3291.
Citation:772 F.2d 1250
Party Name:Federico EREBIA, Plaintiff-Appellee, v. CHRYSLER PLASTIC PRODUCTS CORPORATION, Defendant-Appellant.
Case Date:June 07, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1250

772 F.2d 1250 (6th Cir. 1985)

Federico EREBIA, Plaintiff-Appellee,

v.

CHRYSLER PLASTIC PRODUCTS CORPORATION, Defendant-Appellant.

No. 84-3291.

United States Court of Appeals, Sixth Circuit

June 7, 1985

Argued March 7, 1985.

Rehearing and Rehearing En Banc Denied Sept. 10, 1985.

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Kathleen Maher Zouhary (argued), Mary Ann Whipple, Fuller & Henry, Toledo, Ohio, for defendant-appellant.

Dennis E. Murray (argued), Murray & Murray Co., Kirk J. Delli Bovi, Sandusky, Ohio, for plaintiff-appellee.

Before KENNEDY and MILBURN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This case involves a claim under 42 U.S.C. Sec. 1981 1 alleging that defendant-appellant Chrysler Plastic Products Corporation was responsible for a hostile work environment where plaintiff-appellee Federico Erebia was subjected to ethnic slurs. The case was tried to a jury on January 10-12, 1984, in the Northern District of Ohio, Judge John W. Potter presiding. The jury returned a verdict in favor of plaintiff, awarding $10,000 in compensatory damages and $30,000 in punitive damages. Defendant appeals.

I

Plaintiff, a Mexican-American, brought this action in conjunction with claims alleging discrimination in layoffs, recalls, and denial of shift changes. The issue of recalls was tried before the court and jury under Sec. 1981 and Title VII, 42 U.S.C. Secs. 2000e-2000e-17. At the close of all the evidence, the court granted Chrysler's motion for a directed verdict on the issues of shift changes, layoffs, and recalls. The court found in favor of Chrysler on the Title VII claim. The court denied defendant's motion with respect to the hostile work environment claim, finding there was sufficient evidence to present to the jury.

The hostile work environment claim then was presented to the jury. Chrysler objected to the court's rejection of proposed jury instructions concerning plaintiff's participation in or incitement of ethnic slurs. The court denied the objection, finding the subject matter appropriate for closing argument rather than jury instructions. Following the jury verdict, the court denied defendant's motion for judgment notwithstanding the verdict in an order dated March 9, 1984.

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Plaintiff Erebia testified in his own behalf and was his only witness. He testified he had lived in Mexico from age two until twenty-two, returning to the United States in 1957. His parents were Mexican. He had been employed by Chrysler Plastic Products Corporation for eighteen years beginning November 8, 1965. At the time of trial he was an Inspection Supervisor. During much of his employment he has worked in the evenings as a supervisor in the calendar department, where ingredients are rolled into a film for production. He testified that he had worked in other departments as well.

Due to the statute of limitations period, plaintiff testified only to events occurring after February 3, 1977. He testified that after this date he had many problems with hourly employees. He testified that an hourly employee, Rolland Forney, who had a mailman classification, "kept calling me names, and it got to the point where, you know, you can only take so much. They're going to have to start answering because I have never got any backing from the company as far as for discipline." (T. 53). Erebia was called "a wet bag [sic], tomato picker." (T. 54). Plaintiff testified that Rolland Forney refused to follow his instructions "everyday ... on a daily basis" from 1977 until 1980 when Forney was laid off. Forney would refuse to follow instructions, as he told plaintiff, because "I was Mexican and he was white." (Id.).

Plaintiff referred to Marv Keegan, a production superintendent, as "my boss." (T. 48). Plaintiff complained to Keegan about the situation on virtually a daily basis. (T. 55). Keegan did nothing in response except to advise Erebia to "build up a case." (T. 54, 55).

Plaintiff testified that an hourly employee in the laminating department under his supervision, Wilbur Wood, also directed racial slurs at him. Plaintiff stated: "He mainly told me to go back to Mexico, there was some white person that could be doing my job instead of a Mexican." (T. 55). Wood refused to follow plaintiff's directions almost every day from April of 1980 to the end of July the same year, when Erebia was laid off. (T. 56).

Plaintiff stated that he constantly kept seeing his boss, Keegan, about the problem and approached the general foreman, Jim Lilje, as well. (Id.) The managers did nothing in response. (T. 57). Erebia discussed the problems on two occasions with personnel manager Jack Lenz. Plaintiff testified: "His advice was that I was a hot headed Mexican, that I should put a deaf ear to it, that it was nothing but shop talk to me." (Id.) Plaintiff replied that "everybody was just too much to be ignored." (T. 57-58).

At a second meeting with Lenz in the summer of 1977, plaintiff explained that the employees refused to abide by his instructions and abused him constantly. (T. 260). He was told that he should take the slurs and abuse "like nothing." (Id.) Erebia was "highly upset" about the abuses and failure to follow instructions and the poor backing of management. (T. 259). He criticized management. Lenz became upset and made the statement, "I'll hurt you economically." (T. 58, 260).

On cross-examination, Erebia admitted that he engaged in "shop talk" and that it was common in his employment to use profanity. (T. 82). He also admitted that he had called an hourly employee a "gringo" after the employee had called him a "wet back." (T. 82-83). Plaintiff admitted that he had, in December of 1977, told the husband of a plant worker, a Mr. Baum, that he should go back to Germany and he was a "queer communist." (T. 83-84).

Plaintiff testified that "shop talk" is an exchange that is acceptable to both parties involved and would not encompass coversations to which someone objects. (T. 91). He testified that he had not used any slurs where anyone objected. (Id.) He stated that he knew of no cases other than his own where racial slurs were directed to supervisors by hourly employees. (Id.)

The defense did not call as witnesses any of the individuals plaintiff said had slurred him. Nor did it call any of the management employees plaintiff testified had

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failed to respond to his complaints. Instead, it called Chester R. Ferguson, the labor relations and hourly employment supervisor at the Sandusky plant. Plaintiff had testified that he understood the policy on reporting racial slurs required him to report first to his immediate supervisor, the general foreman. The foreman in turn, relays the complaint to the superintendent or supervisor, who finally reports it to Ferguson. (T. 68). Plaintiff testified that he was never instructed to give a racial slur complaint to Ferguson. (Id.)

Ferguson was responsible for disciplinary and grievance procedures. He was assigned additional functions after the major layoffs in 1979 and 1980. (T. 114). Ferguson had the responsibility of investigating whether violations of plant rules had occurred and could authorize any disciplinary measures requested by supervisors and lower management. (T. 148, 186). Ferguson testified that Erebia did not complain to him about the ethnic slurs to which he was subjected. Nor did plaintiff's supervisors make him aware of the verbal abuse reported by plaintiff. (T. 148).

Although Ferguson was unable to give specifics, he testified that he had received complaints by hourly employees of general verbal abuse by Erebia. (T. 149-51). He testified that the union had pressed a complaint regarding the incident where plaintiff made abusive statements to Baum, a white individual and the husband of a plant employee. (T. 190). He regarded this as a racial slur. (T. 150-51, 190). In that case, management through Ferguson investigated the complaint. The incident was resolved as an exchange and the parties were admonished "to conduct themselves in a better businesslike manner." (T. 151). As noted earlier, no such investigation or measures were taken with regard to plaintiff's complaints.

A former union representative at the plant, James Hackworth, testified that an hourly employee, Larry Torres, Jr., had complained of an argument with Erebia in 1977 in which curses were used. (T. 194-95). The incident was resolved informally on the plant floor. (T. 196). Erebia stressed that no slurs were exchanged in that incident. (T. 266).

II

We turn first to appellant Chrysler's contention that there was insufficient evidence to support the jury's verdict that Chrysler intentionally discriminated against plaintiff by maintaining a discriminatory working environment. The cause of action for hostile work environment was first recognized in Rogers v. EEOC, 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). That case, like many cases following it, was decided under Section 703 of Title VII, 42 U.S.C. Sec. 2000e-2(a), which makes it unlawful to discriminate with respect to terms, conditions, or privileges of employment.

Although Title VII clearly applies to national origin discrimination, section 1981 is not so specific. Appellant has not maintained, however, that section 1981 does not cover the charges Erebia has brought in this case. Although courts have had some difficulty with cases alleging only national origin discrimination under section 1981, where there are allegations that discrimination against Hispanics is of a racial character a cause of action under section 1981 has been recognized. See Gonzalez v. Standford Applied Engineering, Inc., 597 F.2d 1298, 1300 (9th Cir.1979) (per curiam) (dismissal of...

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