997 F.2d 198 (6th Cir. 1993), 91-3535, Boutros v. Canton Regional Transit Authority

Docket Nº:91-3535.
Citation:997 F.2d 198
Party Name:David S. BOUTROS, Plaintiff-Appellant, v. CANTON REGIONAL TRANSIT AUTHORITY, et al., Defendants-Appellees.
Case Date:June 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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997 F.2d 198 (6th Cir. 1993)

David S. BOUTROS, Plaintiff-Appellant,

v.

CANTON REGIONAL TRANSIT AUTHORITY, et al., Defendants-Appellees.

No. 91-3535.

United States Court of Appeals, Sixth Circuit

June 30, 1993

Argued March 5, 1993.

Rehearing Denied Aug. 18, 1993.

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Edward L. Gilbert (argued and briefed), Akron, OH, for plaintiff-appellant.

Mary E. Randall (argued and briefed), John D. Jolliffe, Black, McCuskey, Souers & Arbaugh, Canton, OH, for defendants-appellees.

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Before KEITH and BATCHELDER, Circuit Judges; and TAYLOR, District Judge. [*]

ANNA DIGGS TAYLOR, District Judge.

In this employment discrimination case, David Boutros appeals the district court's grant of a motion for directed verdict in favor of Defendants at the close of Plaintiff's case, on the basis of its conclusions that Plaintiff's claim of national origin harassment is not actionable under 42 U.S.C. § 1983, and that even if it were, sufficient evidence had not been adduced to raise a jury question. Boutros also claims error in the district court's admission of certain "extrinsic evidence" concerning his alleged misconduct, for the putative purpose of attacking his credibility as a witness.

Appellant's complaint stated causes of action under 42 U.S.C. § 1981, 42 U.S.C. § 2000e et seq. (Title VII), and three separate claims under 42 U.S.C. § 1983, for (1) national origin harassment, (2) wrongful discriminatory termination, and (3) deprivation of procedural due process rights. The district court granted Defendants' pre-trial motions to dismiss the Title VII and 42 U.S.C. § 1981 claims. At the close of Plaintiff's case, the district court directed a verdict for the Defendants on Plaintiff's claim of deprivation of procedural due process rights under 42 U.S.C. § 1983, as well as on Plaintiff's national origin harassment claim filed pursuant to 42 U.S.C. § 1983. The sole issue presented to the jury, therefore, was Plaintiff's claim of wrongful discriminatory termination, which the jury decided in favor of the Defendants.

Appellant Boutros here cites to trial testimony reflecting that numerous disparaging ethnic stereotypical epithets were directed towards him or stated in his presence, either by or with the knowledge of his supervisors, throughout his term of employment with the Appellees. He presented evidence that, inter alia, he was repeatedly called a "camel jockey" or "camel rider" by the management and employees of the Transit Authority, in demeaning reference to his Arab ancestry. The effect of such national origin harassment, Appellant maintains, was to create a hostile work environment on the basis of his ethnicity. The district court found that national origin harassment was not actionable under 42 U.S.C. § 1983. Further, the district court stated that even if such harassment were actionable under 42 U.S.C. § 1983, the incidents alleged were not so egregious as to create a hostile work environment which seriously affected the Appellant's work performance or psychological well-being.

We agree with Appellant's contention that his claim of national origin harassment in the employment context is actionable under 42 U.S.C. § 1983, and that he presented sufficient evidence to withstand a motion for directed verdict on that claim. Accordingly, we reverse the district court's grant of the defense motion for directed verdict and remand for proceedings consistent with this opinion. With respect to the admission of evidence of Boutros' conduct relevant to his employer's grounds for discharge, which he characterizes as "extrinsic", we affirm the district court's ruling.

Appellant David L. Boutros was born in Damascus, Syria, and immigrated to the United States at the age of eleven in 1963. In August 1977, Boutros was hired by Defendant Canton Regional Transit Authority ("CRTA") as a bus driver. During his tenure at CRTA, Boutros was subjected to numerous open ethnic slurs from other drivers of which management was aware as well as from members of management itself. Although such conduct is prohibited by the Authority, the record reflects that no drivers were disciplined for such remarks. Moreover, when National Transit Services ("NTS") took over management operations at CRTA, Boutros testified that he was subjected to increased national origin harassment from other drivers as well as from even the new management. The record includes testimony that Director of Transportation Jack Winegarter made ethnic slurs when referring to Boutros within the latter's hearing; that Winegarter's later replacement, Ronald

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Dodsworth, described Boutros to another driver as a "camel jockey", and placed his name on a "hit list" of employees to be terminated; that during a driver training session and in Plaintiff's presence, Dodsworth referred to Boutros as "rug peddler" and a "heeb"; that Boutros was instructed to depart from standard procedures on occasion by deadheading and making route detours, and then disciplined for not following standard procedure; and that NTS General Manager Rosa made several derogatory comments regarding Boutros' Arab ancestry, within his hearing.

Boutros testified that Messrs. Winegarter, Dodsworth, and Rosa were supervisors and reported to NTS corporate headquarters in Chicago. Further, union representative McLaughlin, who represented Boutros at a disciplinary hearing, testified that Jim Rosa and Jack Winegarter were a team at CRTA, with Winegarter handling most of the disciplinary actions. Hence, the incidents to which Boutros testified clearly involved management and, in the case of Winegarter and Dodsworth, managers who were empowered to discipline and terminate drivers, as was ultimately done with Boutros.

Boutros testified concerning the statements of Jack Winegarter as follows:

"Where you come from--originally he said, you are a rich Arab. You own a restaurant and all sort of things and you don't need RTA and you should go back to Syria and fight the Israel Army and kill the Jews."

"He said, because I felt very, very bad, he said, [y]ou are a rich Arab. Why don't you go back to Syria. [sic] Why don't you go kill the Jews. [sic] You have lots of money I bet you have your first dollar that you made when you came to America. This is a great country, huh?"

Boutros further testified that Winegarter said "where you came from, you have no vehicles. You don't know what a bus is and you don't know what cars are." Moreover, according to Boutros, when Rosa, the general manager of operations, was present he did not reprimand Winegarter for making such remarks. Instead, according to Boutros, Rosa said, "I agree with Jack and you have lots of money and your cousin on the street owns a restaurant you don't need RTA." When asked whether he considered "rich Arab" to be a slur, Boutros stated, "[o]f course, because the reason he said you are rich, you have oil, we don't need you here. You don't need to be a bus driver."

When asked how Winegarter's statements had affected him, Boutros testified, "I felt very, very bad. I mean, if someone kept calling you names and you don't need the job ...--sometimes I thought my performance was going to really fail but thank God, it did not."

After Jack Winegarter was replaced by Ron Dodsworth, Boutros testified that the harassment continued. Specifically, he stated that at union disciplinary hearings, Dodsworth would continually refer to him as a "camel jockey" or "camel rider". Boutros further testified that he considered such terms to be derogatory and that at union hearings Dodsworth would refer to him within his hearing, using such phrases as "bring in the camel jockey" and "bring the rich Arab."

McLaughlin corroborated Boutros' testimony stating that he was not aware of management disciplining any of the drivers who harassed Boutros, despite their knowledge of the harassment. Specifically, McLaughlin testified that "[w]hen it was time for David [Boutros] to be brought into the room, I would be sent to get him. He [Dodsworth] said, [b]ring in the camel jockey or bring in the Arab. It was an accepted term for David." Boutros, outside the door, heard those statements. Similarly, the testimony of driving instructor, Pete Williams, was that he met with Dodsworth, and that Dodsworth, the supervisor who had replaced Winegarter, had a 'hit list' on his desk of drivers whom he planned to terminate. According to Williams, Dodsworth read the names on the list and when he reached Boutros' name, he said "[w]e are going to get rid of that camel jockey." Williams further stated "... as soon as he said camel jockey I knew who it was, but I said, '[w]ho is that' ". According to Williams, Dodsworth's reply was "Dave Boutros".

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At trial, Dodsworth denied all of the aforementioned allegations. The district court made no finding as to the credibility of Dodsworth's testimony as opposed to that of Boutros and his witnesses. Moreover, it is not the function of the trial court but rather that of the jury to make credibility determinations on disputed questions of fact. If sufficient evidence is presented in Plaintiff's case for a...

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