Bainbridge v. Loffredo Gardens, Inc.

• Decision Date: 04 August 2004
• Docket Number: No. 03-3192.,03-3192.
• Citation: 378 F.3d 756
• Parties: Thomas BAINBRIDGE, Appellant, v. LOFFREDO GARDENS, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

378 F.3d 756

Thomas BAINBRIDGE, Appellant, v. LOFFREDO GARDENS, INC., Appellee.

No. 03-3192.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2004.

Filed: August 4, 2004.

Rehearing and Rehearing En Banc Denied September 10, 2004.

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Appeal from the United States District Court for the Southern District of Iowa, James E. Gritzner, J.

Thomas Newkirk, argued, Johnston, Iowa, for appellant.

Michael R. Reck, Des Moines, argued, Iowa (Holly M. Logan, Des Moines, Iowa on the brief), for appellee.

Before LOKEN, Chief Judge, RICHARD S. ARNOLD and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Loffredo Gardens, Inc., a fresh produce company, hired Thomas Bainbridge as its warehouse manager in June 1998. Bainbridge's wife is Japanese. During Bainbridge's employment, he informed management his wife was Japanese, and complained to them about racial epithets for Asians and other minorities used by the Loffredo brothers, the company's owners and operators. On June 15, 2000, Bainbridge complained to his supervisor, Dave Dennis, that he could not take the racial slurs anymore. Dennis told Bainbridge he would take care of it, then Bainbridge left on a scheduled vacation. During Bainbridge's vacation, Mike Jacobs, Lee Bunch, and Mark DeJoode, three supervisors who worked with Bainbridge, stated they would quit if Loffredo Gardens did not fire Bainbridge. It is disputed whether the supervisors went to management or whether management sought out the supervisors after they decided to terminate Bainbridge for complaining. On June 21, 2000, before Bainbridge returned, Loffredo Gardens sent him a letter stating his employment was terminated because his interpersonal skill with subordinates was problematic. Gene Loffredo, Jr., Larry Loffredo, controller Mark Zimmerman, and Dave Dennis signed the termination letter.

Bainbridge brought this action asserting he was subjected to a hostile work environment based on racial comments made by the Loffredos about Asians, blacks, and other minorities. Bainbridge also asserted his discharge was in retaliation for complaints of discrimination and harassment in violation of Title VII, 42 U.S.C. § 1981, and Iowa Code § 216. The district court granted summary judgment to Loffredo Gardens. Bainbridge v. Loffredo Gardens, Inc., 2003 WL 21911063 (S.D.Iowa 2003). The district court held Loffredo Gardens was entitled to summary judgment on the merits of the hostile work environment claim and the 42 U.S.C. § 1981 retaliation claim, and Bainbridge had failed to exhaust administrative remedies on the Title VII and Iowa retaliation claims. Bainbridge appeals.

Summary judgment was proper if the evidence, viewed in the light most favorable to Bainbridge, showed there was no genuine issue of material fact and Loffredo Gardens was entitled to judgment as a matter of law. Jackson v. Flint Ink No. Am. Corp., 370 F.3d 791, 792-93 (8th Cir.2004). Reviewing the district court's grant of summary judgment de novo, see id. at 793, we affirm on the hostile work environment claims and the Title VII and Iowa Code § 216 retaliation claims, but reverse and remand the 42 U.S.C. § 1981 retaliation claim.

On appeal, Bainbridge first contends he generated a question of fact on the elements of his hostile work environment claim. To prevail, Bainbridge was required to show he is a member of a protected group, he was subjected to unwelcome harassment, the harassment was because of his membership in the group, and the harassment affected a term, condition, or privilege of his employment. Id. To be actionable under Title VII, the work environment must have been both objectively and subjectively offensive. Id. To decide whether a work environment is objectively offensive, that is, one which a reasonable person would find hostile or abusive, we examine all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interfered with the employee's work performance. Id. To constitute an objectively offensive work environment, the discriminatory conduct must be so severe or pervasive that it alters the conditions of the plaintiff's employment. Id. A hostile work environment exists when the workplace is dominated by racial slurs, but not when the offensive conduct consists of offhand comments and isolated incidents. Id. at 794.

Bainbridge contends he heard the Loffredos make racially offensive remarks about Asians ("Jap," "nip," "gook") approximately once a month during his two years of employment. Nevertheless, despite taking contemporaneous notes, Bainbridge can recall only a few specific instances of racially derogatory comments about Asians made in his presence. Bainbridge asserts that on June 25, 1998, Jim Loffredo referred to a white employee as a "Jap," that on November 20, 1998, he overheard Mike Loffredo refer to an Asian customer as a "Jap," that on June 12, 1999 Mike Loffredo referred to an Asian customer as a "nip," and that on October 29, 1999, while showing his Nissan to Mike and Larry Loffredo, Larry said, "Yea, those Japs can do something right." Bainbridge also contends Mike Loffredo used the term "Jap" or "nip" in front of him at least once a month even after Bainbridge reminded him his wife was Japanese. Bainbridge also contends the Loffredos used racial slurs referring to other minorities, including "spic," "wetback," "monkey," and "nigger." Bainbridge contends he complained to Gene Loffredo, Jr. in 1998 about the derogatory remarks directed at Asians. Finally, on June 25, 2000, while Bainbridge was talking with Mike Loffredo, Mike stated another "Jap" produce company was going to try to run Loffredo Gardens out of business. Bainbridge then complained to his immediate supervisor, Dave Dennis, and left on his scheduled vacation.

Under our case law, the racial slurs did not render the work environment at Loffredo Gardens objectively hostile. See id. at 794-95. For example, in Jackson, we held six instances of racially derogatory language from managers and coworkers over the course of a year and a half, together with burning cross graffiti, did not render the workplace objectively hostile. Id. Although managers and coworkers said, "that damn nigger," "damn black," "nigger s* *t, radio," "nigger-rigging," and "f* * *ing nigger," we pointed out two of the comments were not made to the plaintiff, two were not referring directly to him, and another was made in the heat of an altercation involving threats by the plaintiff. Id. at 795. Here, the remarks were also sporadic, no more than one per month, and were not even about Bainbridge, his wife, or their marriage. Instead, the alleged remarks were used in reference to customers, competitors, or other employees. Some of the remarks were merely overheard by Bainbridge. We thus conclude Bainbridge failed to present sufficient evidence that the harassment at Loffredo Gardens was so severe or pervasive that it altered the terms or conditions of his employment. Id. at 796.

Bainbridge next asserts he exhausted his administrative remedies for his Title VII and Iowa Code § 216 claims by raising the issue of retaliation in his Iowa civil rights complaint. We disagree. Bainbridge did not check the box next to "Retaliation" on the complaint form and did not allege any facts in the complaint form connecting his termination with his alleged complaint about the racial slurs. Indeed, the Iowa civil rights complaint investigator noted he "didn't address [retaliation] because [Bainbridge] did not directly allege retaliation." We conclude the district court properly applied the relevant case law to the facts in holding Bainbridge failed to exhaust administrative remedies. See Bainbridge v. Loffredo Gardens, Inc., 2003 WL 21911063, at * 4-*7 (S.D.Iowa 2003).

Bainbridge also contends the district court committed error in granting summary judgment on the merits of his § 1981 retaliation claim, for which exhaustion of administrative remedies is not required. Under the traditional McDonnell Douglas analysis, Bainbridge first had to establish a prima facie case of retaliation under § 1981. To do so, Bainbridge had to show he engaged in statutorily protected activity (complaining about racial slurs), Loffredo Gardens took adverse employment action against him (termination of employment), and there is a causal connection between the two events. Jackson, 370 F.3d at 797; Roxas v. Presentation College, 90 F.3d 310, 315 (8th Cir.1996) (recognizing elements of Title VII discrimination claim and § 1981 discrimination claim are the same). Second, if Bainbridge made this prima facie showing, then the burden of production shifted to Loffredo Gardens to articulate a legitimate, nondiscriminatory reason for its decision to terminate Bainbridge. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). At the third step, the burden would then shift back to Bainbridge to show the legitimate reason is pretextual. See id. at 804, 93 S.Ct. 1817; Raytheon v. Hernandez, 540 U.S. 44, ___, 124 S.Ct. 513, 518-19 & n. 3, 157 L.Ed.2d 357 (2003).

The district court held Bainbridge failed to establish a prima facie case of retaliation because he did not show a causal connection between his termination from employment and his complaints about racial slurs. The court rejected Bainbridge's assertion that timing alone could establish causation. The court held that even if Bainbridge could establish a prima facie case, Loffredo Gardens articulated a legitimate, nondiscriminatory reason for Bainbridge's termination-Bainbridge's inability to get along with his coworkers. The court held that the timing of Bainbridge's termination was not enough to allow a jury to infer retaliatory motive and to show Loffredo Gardens' proffered reasons were merely pretextual.

Although the issue is close, we hold...