Bailey v. Usf Holland, Inc.

Decision Date17 July 2006
Docket NumberNo. 3:05-0435.,3:05-0435.
Citation444 F.Supp.2d 831
PartiesBobby BAILEY and Robert P. Smith, Plaintiffs, v. USF HOLLAND, INC., Defendant.
CourtU.S. District Court — Middle District of Tennessee

Stephen C. Crofford, Mary Ann Parker, Parker & Crofford, Nashville, TN, for Plaintiffs.

Carl H. Gluek, Jennifer L. Whitney, T. Merritt Bumpass, Jr., Frantz Ward LLP, Cleveland, OH, Lee A. Murray, Feeney & Murray, PLLC, Nashville, TN, John J. Lynch, Michael James Sheehan, William Henry, Barrett, Connelly, Sheehan Harris, Chicago, IL, for Defendants.

MEMORANDUM

TRAUGER, District Judge.

This matter comes before the court on Motions for Summary Judgment filed by the defendant (Docket No. 57; 60), to which the plaintiffs have responded (Docket No. 72), and the defendant has replied (Docket No. 95; 96). In addition, this memorandum will consider the Motions to Strike filed by the defendant (Docket No. 100; 101; 102), to which the plaintiffs have responded (Docket No. 110; 111; 112), and the defendant has replied (Docket No. 118), as well as the Motion to Supplement Responses filed by plaintiffs (Docket No. 58), to which the defendant has responded in opposition (Docket No. 116). For the reasons discussed herein, the defendant's summary judgment motions and motions to strike will be denied, and the plaintiffs' motion to supplement will be granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs Bobby Bailey and Robert Smith have each been dock workers/truck drivers for defendant USF Holland since 1998.1 USF Holland is a trucking company, and the plaintiffs, both African-Americans, each work at USF Holland's Nashville terminal, where white employees often call them "boy," "damn it boy," and other variations on those terms. Among the white employees who have called Bobby Bailey and Robert Smith "boy" and "damn it boy," is Daniel Calvo, a supervisor. The plaintiffs allege that the behavior began in 2001 or 2002, and continues to this day.

For instance Bobby Bailey alleges that a fellow employee, one Bubba Ridings, called him "boy" at work one day. Mr. Bailey told Mr. Ridings that he preferred not to be called "boy." Mr. Ridings next said that the only thing he could think in response to Mr. Bailey's request was "damn it boy." The record includes many similar instances of the use of the word "boy" against Bailey and Smith. In addition, Mr. Smith alleges to have found a noose on company premises one afternoon in 2002, though he does not know how it got there.

In 2002, Bobby Bailey complained to his union representative, Tommy Barnes, that white employees would not stop calling him "boy" and "damn it boy" despite his clear indications of displeasure at those terms. Tommy Barnes alleges that he "took the information to Mike Loveless, who was the terminal manager at the time." (Docket No. 80 at ¶ 4.) Mr. Loveless subsequently conducted a meeting of the Nashville terminal workers, where he appears to have discussed general issues of courtesy and respect; however, he did not discuss the issue of white employees using the word "boy," or similar appellations, in reference to black employees.2

Mr. Bailey and Mr. Smith were displeased at Loveless' failure to address the use of those terms. And, not having been told otherwise by any superior, white employees continued to call Bailey and Smith "boy" after the meeting. For instance, Mr. Bailey has alleged a number of instances in 2003 and 2004 involving Daniel Calvo, a supervisor. Bailey alleges that, in a variety of contexts, Calvo responded to Bailey with "damn it boy." Each time this occurred, Bailey would tell Calvo that he objected to the term, and Calvo would tell Bailey that he was taking things too personally.

The record includes many specific instances of the use of the term "boy" in 2003 and 2004 against Mr. Bailey and Mr. Smith, some of them involving an ostensibly friendly use of the term "boy" or a variation thereof, and some of them involving hostile uses of the term. Both Bailey and Smith are aware of other instances of racial hostility at the Nashville terminal, though the hostility did not involve them personally. Mr. Bailey has been called "Buckwheat," though he considers that the term was used in a fond manner. Jimmy Bolden, a black co-worker of Bailey and Smith, aside from corroborating Bailey's and Smith's testimony as to the prevalence of the term "boy" at the terminal, alleges that he complained to supervisor Tim Kircher about the use of the term "nigger" in 2001. Mr. Bolden did not himself hear that term used and cannot testify as to whether it was in fact used. However, Bolden does testify that Tim Kircher refused to take any action to investigate the use of the term, testimony that Bolden is qualified to make.

In 2004, Mr. Bailey, Mr. Smith, and Mr. Bolden made a complaint to the new terminal manager, Julie Jones, who had replaced Mike Loveless, about the use of racial epithets at the Nashville terminal. Ms. Jones brought the complaints to the attention of her superiors, and soon thereafter, in November, 2004, Mr. Blubaugh, the Vice President of Human Resources for the defendant, came to the Nashville terminal to conduct sensitivity training. At the sensitivity training, several white employees voiced resistance to the idea that it was wrong to refer to African-American men as "hey boy" or "damn it boy." Blubaugh discussed the reasons that African-Americans would take offense to the term, deriving from its use during slavery.

In late November, attorney Allan Cave, on behalf of the defendant, spent three days at the Nashville terminal investigating Mr. Bailey's, Mr. Smith's, and Mr. Bolden's complaints. Mr. Cave met with the plaintiffs individually and with several of the co-workers against whom complaints had been made. Mr. Cave wrote a report concluding that the Nashville terminal was not a hostile environment, although the terms "boy," "hey boy," and "damn it boy" were very much in use. Mr. Cave has since testified that he did not think the terms at issue were racially offensive and that, according to the employees he interviewed, the use of "boy" and "damn it boy" is "just a Southern thing." (Docket No. 74 at p. 6.) Mr. Loveless, who has since resumed his post as terminal manager, agrees that the use of the term "boy" should not be problematic and does not believe that employees such as Bubba Ridings should be disciplined for the type of verbal conduct Ridings exhibited in the incident outlined above. (Id.) Mr. Blubaugh also believes that the use of "damn it boy" in reference to an African-American man does not in of itself violate the defendant's current harassment policy (Docket No. 82, Ex. 1 at p. 7.)

After the training, white employees continued to use the terms "boy" and "damn it boy" in reference to the plaintiffs and, in addition, several appear to have taken more dangerous, hostile actions against Bailey and Smith. For instance, Mr. Bailey's tow-motor was rammed by another tow-motor and no accident report or incident report was filled out. A white employee threw a piece of pipe at Mr. Smith and, when Smith turned around, he alleges that the man who threw the piece of pipe was encouraged by a crowd of employees to "say it, say it." The word "boy" appeared spray-painted on dock doors and restroom walls located in the terminal. Although the defendant took action to remove the graffiti, it has returned, and persisted, as demonstrated by the photographs recently submitted by the plaintiffs. The square for the Martin Luther King Jr. holiday on the work calendar was marked "boy." A white co-worker told Smith, "I can call you a nigger and you won't mind," and a different white co-worker held Bailey up by the collar and called him "boy."

In one confusing incident, in response to Mr. Smith's making coffee that was "too strong," a co-worker composed, impromptu, a song about "country cowboys" who make strong coffee, titled by that co-worker "the Country Cowboys Make Coffee song." (Docket No. 61, Ex. 1 at p. 8.) In another incident (allegedly inspired by recent cinema), a co-worker affixed "ride a cowboy" to his tow motor and later changed the sign to read "Honk if you love gay cowboys." (Id.) Smith alleges that a picture of an African-American man was placed under the original slogan for a few minutes, but later removed. The record shows a wide variety of uses of the word "boy" and "damn it boy" at the Nashville station, some minor—such as referring to a "boy missing" one day when Bailey was absent from work—and some major—such as the recurring graffiti.

The defendant has removed the original graffiti that appeared at the station— though the photographs submitted by the plaintiffs demonstrates that new graffiti persists. In addition the defendant hired a handwriting expert to analyze the graffiti and fired the employee it believed committed the act. However, that employee has returned to work because his termination was overturned through the union grievance process. The defendant has not taken action against any employee for use of the term "boy," or "damn it boy," or any variations on those terms.

The plaintiffs allege that they have been called "racists" by their co-workers for objecting to the use of the terms "boy" and "damn it boy" and have been ostracized for making complaints about the terms. They allege that the incidents at the Nashville terminal have caused them humiliation and embarrassment and affected them both at work and at home.

On June 3, 2005, this action was removed to this court from the Circuit Court of Davidson County. (Docket No. 1.) The plaintiffs allege that the defendant has impermissibly discriminated against them on the basis of race, in violation of Title VII and the Tennessee Human Rights Act ("THRA"), through maintaining a hostile work environment....

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