Allen v. Michigan Dept. of Corrections

Decision Date06 January 1999
Docket NumberNo. 97-1720,97-1720
Citation165 F.3d 405
Parties78 Fair Empl.Prac.Cas. (BNA) 1578, 74 Empl. Prac. Dec. P 45,732, 75 Empl. Prac. Dec. P 45,732 Albert ALLEN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Robert H. Golden (briefed), Golden & Kunz, Lathrup Village, Michigan, for Plaintiff-Appellant.

Patrick J. O'Brien, Asst. Atty. Gen. (briefed), John S. Mackey, Office of the Attorney General, Public Employment & Elections Division, Lansing, Michigan, for Defendant-Appellee.

Before: KEITH, BATCHELDER, and COLE, Circuit Judges.

COLE, J., delivered the opinion of the court, in which KEITH, J., joined. BATCHELDER, J. (pp. 413-418), delivered a separate opinion concurring in part and dissenting in part.

COLE, Circuit Judge.

Plaintiff-Appellant Albert Allen appeals the district court's grant of summary judgment in favor of Allen's employer, the Michigan Department of Corrections ("MDOC") on Allen's Title VII claims of racial discrimination, harassment and retaliation for engaging in protected activity. For the reasons that follow, we AFFIRM in part and REVERSE in part, and REMAND to the district court for further proceedings in accordance with this opinion.

I.

Allen, who is African American, has been employed by MDOC in various capacities since 1985. Beginning in 1989, Allen complained of discriminatory conduct directed towards him by white supervisory personnel while Allen was employed on Cell Block Eight at Jackson Correctional Facility ("Block Eight"). Allen's complaints appear to have started when the three black officers working in Block Eight were transferred out of the block in September 1989 because "[i]t was not customary for black officers to work on Cell Block 8." Allen filed a grievance objecting to his transfer and was reassigned to Block Eight. After reassignment, Allen was the only black officer on Block Eight.

Allen claims that as a result of filing a grievance regarding the transfer, he was subjected to "numerous acts of harassment, retaliation, and discrimination on account of his race." Allen's allegations can be summarized as follows:

12/28/89: A white officer used bolt cutters to cut the lock on Allen's locker. No investigation or disciplinary action took place.

1/8/90: Allen was disciplined by receiving a "counseling memorandum" for leaving a break box unsecured and a gate opened "when other white officers also had keys to the box and gate and could have been blamed for the occurrence but were not."

3/3/90: Allen successfully passed the examination for sergeant and was placed in the "first band" of persons passing the examination. However, Allen was never promoted to sergeant despite the fact that white employees in the "second band" were promoted.

10/9/90: Allen was told by Assistant Resident Unit Manager Hilton that "he was lazy like the rest of his people and that is why they are all in prison."

Late 1990/Early 1991: Resident Unit Manager Bailey was advised in writing to allow three white officers who had not passed the sergeant's examination and had less experience and seniority than Allen to assume the duties of "acting-sergeant" when a sergeant was not present on the shift.

6/27/91: Allen bid and obtained a job on Block Eight. Allen found a note among his possessions that said "Allen IV. Pull bid--if not, you will be looking for a job or die. Nigger out." The note was written on departmental forms, was signed "KKK" and had a picture drawn on it of a stick figure with a noose around its neck. MDOC investigated this incident by taking handwriting samples and interviewing employees, but the perpetrator was never discovered. Allen claims that MDOC should have fingerprinted the threatening note.

Late 1991: On several occasions, Allen's notations in the Block Eight sign-in log were improperly changed to reflect that Allen took longer than the allotted thirty-minutes for lunch. Allen received "counseling memoranda" for these incidents.

10/27/91: Allen was leaving work when told by his supervisor, Sergeant Madery, that he had to return to finish a report. Allen replied that he would finish it on his next work day. Madery then made the following comments to Allen: "I'm writing your black ass up," "Boy, I told you to get your black ass back into the block and finish your paper work" and "Allen you can't make sergeant because you won't play team ball." As a continuation of this incident, Madery told Allen that he was transferring him to an area in which he could be watched more closely because "[n]iggers can't be trusted." Allen reported Madery's statements to the shift commander.

4/8/93: Allen submitted a resume to MDOC for a sergeant position and was informed that he was not on the list of eligible individuals for the position of sergeant.

In general: Allen complains that he was constantly observed and followed by Madery, Bailey and Hilton, although non-black employees were not so followed.

Allen filed additional complaints regarding these incidents with the Michigan Department of Civil Rights and the Equal Employment Opportunity Commission ("EEOC"). In 1994, Allen went on long-term disability leave because of stress; in addition, Allen now takes antidepressant medication and undergoes counseling, allegedly as a result of his employment conditions.

On January 23, 1996, the EEOC issued a "right to sue" letter to Allen. Thereafter, Allen filed a complaint in the United States District Court for the Eastern District of Michigan, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., and Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws Ann. § 37.2101 et seq. Specifically, Allen's complaint alleged racial discrimination, harassment, and retaliation for engaging in protected activities. On May 2, 1996, the district court dismissed Allen's state-law claims.

MDOC then filed a motion for summary judgment on Allen's Title VII claims, which the district court granted on June 10, 1997. The district court found that Allen: (1) failed to establish a prima facie case of race discrimination because he did not show that he applied for any promotions received by non-black employees; (2) failed to establish a prima facie case of harassment because he did not show that MDOC tolerated or condoned the conduct at issue; and (3) failed to establish a prima facie case of retaliation because he did not show that the defendants were aware of his protected activity or that there was a causal connection between the protected activity and the alleged adverse employment action. Accordingly, the district court entered judgment in favor of MDOC. This timely appeal followed.

II.

We review de novo a district court's grant of summary judgment. See City Management Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir.1994); Adams v. Metiva, 31 F.3d 375, 378 (6th Cir.1994). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When reviewing a motion for summary judgment, the evidence, all facts, and any inferences that may be drawn from the facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)).

III.

In this case, Allen raises three Title VII claims: (1) racial discrimination; (2) racial harassment; and (3) retaliation for engaging in protected activities. In general, a plaintiff in a Title VII action "has the burden of proving by a preponderance of the evidence a prima facie case." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). After proving the existence of a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the defendant meets this burden, the plaintiff must then show that the defendant's articulated reason is a pretext for discrimination. See id. We therefore start by determining whether Allen has established a prima facie case with respect to each claim.

A. Racial Discrimination

Allen claims that MDOC's failure to promote him to sergeant was based on racial discrimination. In support of that claim, Allen contends that non-black employees who had not passed the sergeant examination were promoted instead of Allen, who had passed the sergeant examination; in addition, Allen contends that because of his race, he was not permitted to assume the duties of "acting sergeant," nor was he on the list of employees eligible for promotion to sergeant. Allen also claims that he received disciplinary actions in the form of counseling memoranda because of his race, and that his supervisors referred to him using racial epithets and monitored him more closely than they monitored non-black employees.

In order to set forth a claim of racial discrimination, a plaintiff must show that he has suffered an adverse employment action; that is, he must establish that he has suffered a "materially adverse" change in the terms or conditions of employment because of the employer's actions. See Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir.1996) (citation omitted). Despite the fact that the incidents cited by Allen reflect racial animus, these incidents did not, for the most part, result in a "materially adverse" change in Allen's employment status or in the terms and conditions of his employment. The exception to this is Allen's claim...

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