Bell v. Chesapeake & Ohio Ry. Co.

• Decision Date: 17 January 1991
• Docket Number: No. 89-2204,89-2204
• Citation: 929 F.2d 220
• Parties: 55 Fair Empl.Prac.Cas. 751, 56 Empl. Prac. Dec. P 40,662 Antoine J. BELL, Plaintiff-Appellant, v. CHESAPEAKE & OHIO RAILWAY COMPANY, a foreign corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 220

929 F.2d 220

55 Fair Empl.Prac.Cas. 751,

56 Empl. Prac. Dec. P 40,662

Antoine J. BELL, Plaintiff-Appellant, v. CHESAPEAKE & OHIO RAILWAY COMPANY, a foreign corporation Defendant-Appellee.

No. 89-2204.

United States Court of Appeals Sixth Circuit.

Argued Nov. 9, 1990.

Decided Jan. 17, 1991.

Robert Van Cleef (argued), Becker & Van Cleef, Southfield, Mich., for plaintiff-appellant.

Mary C. O'Donnell (argued), Driggers, Schultz, Herbst & Paterson, Troy, Mich., for defendant-appellee.

Before GUY and BOGGS, Circuit Judges, and GRAHAM, ^* District Judge.

PER CURIAM.

Antoine Bell sued his employer, the Chesapeake & Ohio Railway Co. (CSX), for employment discrimination in state court. Bell alleged that CSX had tolerated acts of discrimination against him by his fellow employees and thus had created a racially hostile work environment in violation of Michigan's Elliott-Larsen Civil Rights Act, M.C.L.A. Sec. 37.2101 et seq., M.S.A. Sec. 3.548(101) et seq. Bell sought money damages for the psychological damage he alleged he sustained as a result of this atmosphere. All but one of the five allegedly discriminatory actions took place outside the three-year statute of limitations of the Elliott-Larsen Act. Bell maintained that the statute was no bar to recovery for all five acts since all of them taken together constituted continuing violation of the anti-discrimination laws.

CSX subsequently removed the action to federal court. Bell was deposed on June 13, 1986. On the following June 24, CSX moved for summary judgment on the basis of Bell's deposition testimony, arguing that Bell had brought a prior suit in state court that was dismissed with prejudice and that the previous case was res judicata between the parties as to claims arising out of racial discrimination in the workplace. The motion was denied.

On September 26, CSX presented to the court two documents, one styled "Motion and Brief in Limine to Exclude Time-barred and Prior Litigation Incidents," and the other entitled "Defendant's Trial Brief." On the basis of Bell's deposition testimony, the former motion set forth the six acts that constituted the alleged racial harassment and an account of the response of CSX's management. The purpose of the motion was to "preclude [p]laintiff from introducing into evidence or from questioning [p]laintiff in any way regarding ... the five incidents of racial harassment/discrimination which occurred outside the limitations period." Bell responded with a "Memorandum on Admissability (sic) of Various Acts of Racial Discrimination." Bell's responsive memorandum took no exception to CSX's statement of facts.

When the trial began on September 26, the court did not rule on the defendant's "motion in limine" immediately, but instead permitted Bell to make an opening statement. Immediately thereafter, it granted CSX's motion, thereby excluding five of the six acts of alleged discrimination from the jury's consideration. Once this had been done, the court went on to dismiss the case, holding that the sole surviving incident relied on by Bell was not actionable under Michigan law. 724 F.Supp. 489.

We affirm the results reached below. We note that the dispositive issue in the case is not the admissibility of the evidence of incidents of racial harassment occurring outside the statute of limitations. Rather, the proceedings below demonstrate that there is no genuine issue of material fact between the parties and that on the undisputed facts, Bell has failed to state a cause of action under the continuing violation theory. Hence, CSX is entitled to judgment as a matter of law. Therefore, we treat the trial court's disposition of this case as a summary judgment. The error in nomenclature of the parties below does not affect our review of the case. As an appellate court, we are not bound to adhere to the label attached to the trial court's disposition of the case and may treat it as a summary judgment. 5A C. Wright & A. Miller, Federal Practice and Procedure Sec. 1366 at 497 n. 20 (West 1986) (collecting cases). The trial court cannot be faulted for giving summary judgment effect to defendant's misnamed motion, unless Bell was prejudiced thereby. See Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 393 (6th Cir.1975). Bell responded to CSX's "motion in limine" with his own motion. The argument he presented there, which is the same as the one he pursues on appeal, represents his mature legal position. Hence, we find irregularity, but no prejudicial error, in the proceedings below.

I

The acts of discrimination and harassment Bell complains of began soon after he was hired in July 1977 and continued until the events in 1986, which proximately lead to the filing of this suit. The following account of them, except for the second and sixth incidents, is taken from Bell's appellate brief and his opening statement, as the sources of evidence most favorable to him. For our knowledge of the second and sixth incidents, we rely on the trial court's opinion and order, and the "motion in limine" of CSX, whose recitation of the facts in this case has not been challenged by Bell. We emphasize that no genuine dispute of fact exists in this case, and that we rest our judgment on allegations construed in a light most favorable to Bell.

1. Shortly after Bell was hired, he "was confronted by a [General Motors supervisor at a yard to which he was assigned] who fabricated a charge that [Bell] was not working properly. This white supervisor's inexplicable rage escalated until he charged and assaulted [Bell]. Plaintiff was certain that this man acted out of racial hatred[,] not so much because of any words, but due to his motions and gestures. The next day [Bell] reported the incident to ... his C & O supervisor. He was told to take a couple of days off."

Shortly thereafter, "Bell was made to transfer to another [CSX] facility in Wayne, Michigan." Bell complains that "no public or official condemnation of bigotry occurred." At Wayne, a co-worker told him that "things [there] were no different than at [the General Motors facility from which he had come]."

2. The next incident occurred in 1981, when Bell alleges that the seniority system was skewed by the union and CSX to favor whites over blacks.

3. "During Christmas, 1982, [Bell] worked third shift, midnights, when he found a KKK recruiting poster on the bulletin board in the employees gathering room at the Rougemere Yard.... He informed [the] trainmaster within four to five hours.... [The trainmaster] told him not to pay any attention to it. It was not until this conversation that the poster was removed. In an effort to get [CSX] to make a public response, [Bell] contacted his union representative and the [CSX] foreman. ... However, the C & O took no discernible action other than [to] take the posters down. The KKK literature added to the atmosphere of racial intimidation. The incident interfered with [Bell's] ability to work the midnight shift."

4. "In 1983 and 84, there were incidents where co-employees used racial epithets, racial obscenities, ... [like] the word nigger or black son-of-a-bitch, toward him. And when he reported those incidents, nothing was done and he was told to ignore it."

5. "[I]n 1984 [or perhaps 1983,] he was assaulted by a white worker in a lunch room where that white worker yelled out loud, 'I hope the KKK kills all the niggers.' And then rushed ... Bell in this crowded lunchroom and pushed him against the locker. To defend himself, ... Bell ... struck back against this white worker. The response of [CSX was to say to Bell and to his assailant:] '[There is to be no] racial hostility or racial conduct ... here at the work place.... Go make up. Don't let it happen again.' "

6. In the late summer or early fall of 1986, the same KKK posters that had appeared in 1982 again showed up next to Bell's locker and seemed to be directed towards him. Bell took the posters to a foreman, who again told him to ignore them.

On June 30, 1987, Bell filed this action. Only the last of the incidents he complains of falls within the three-year statute of limitations of the Elliott-Larsen Act.

II

The doctrine of "continuing violation," a modification of the law affecting the statute of limitation in civil rights cases, was adopted by the Michigan Supreme Court in the consolidated cases of Sumner v. Goodyear Tire & Rubber Co., Knight v. Blue Cross/Blue Shield of Michigan, and Robson v. General Motors Corp., 427 Mich. 505, 398 N.W.2d 368 (1986). As the court noted, the doctrine was developed by the federal courts in the context of Title VII of the federal Civil Rights Act. Id. at 525, 398 N.W.2d at 376. In the late 1960's, federal courts began to refuse to dismiss cases automatically where the complaint had not been filed in a timely fashion. Id., 398 N.W.2d at 377. These courts were concerned that a number of factors militated against a strict application of the limitation requirement. Id. at 526, 398 N.W.2d at 377. The most important, both generally and for present purposes, is that many discriminatory acts occur in such a manner that it is difficult to define precisely when they took place. Ibid. One might say they unfold rather than occur. Ibid. Application of this doctrine to the present case is appropriate since Bell alleges that the hostile racial environment that damaged him psychologically developed over the years out of a series of incidents.

In order to show that ostensibly discrete acts are a continuing violation, a plaintiff must be prepared to demonstrate 1) a policy of discrimination, 2) a continuing course of conduct, and 3) the present effects of past discrimination. Id. at 528, 398 N.W.2d at 378. Before this is done, a threshold requirement must be met. The plaintiff must show a "present violation," i.e., a discriminatory act within the limitation period. Id. at 527, 398 N.W.2d at 377.

The first element of a continuing violation involves allegations...