Castleberry v. STI Grp.

• Decision Date: 14 July 2017
• Docket Number: No. 16-3131,16-3131
• Citation: 863 F.3d 259
• Parties: Atron CASTLEBERRY; John Brown, Appellants v. STI GROUP; Chesapeake Energy Corporation
• Court: U.S. Court of Appeals — Third Circuit

863 F.3d 259

Atron CASTLEBERRY; John Brown, Appellants

v.STI GROUP; Chesapeake Energy Corporation

No. 16-3131

United States Court of Appeals, Third Circuit.

Argued March 28, 2017

Opinion filed July 14, 2017

Daniel A. Horowitz, Esquire, Richard S. Swartz (Argued), Swartz Swidler, 1101 Kings Highway North, Suite 402, Cherry Hill, NJ 08034, Counsel for Appellant

Terri I. Patak, Esquire (Argued), Dickie McCamey & Chilcote, Two PPG Place, Suite 400, Pittsburgh, PA 15222, Daniel T. Brier, Esquire, Donna A. Walsh, Esquire (Argued), Myers Brier & Kelly, 425 Spruce Street, Suite 200, Scranton, PA 18503, Counsel for Appellees

Before: AMBRO, VANASKIE, and RESTREPO, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

Atron Castleberry and John Brown are two African-American males who were fired by Defendant STI Group, a staffing-placement agency (and thus a subcontractor) for Defendant Chesapeake Energy Corporation, an oil and natural gas company. Castleberry and Brown brought suit asserting that their termination was racially motivated, citing to various examples of discrimination such as remarks made at the workplace and unfair work treatment. The District Court dismissed their complaint. Because Plaintiffs state plausible claims of employment discrimination, we reverse and remand.

I. BACKGROUND

Castleberry and Brown were hired by STI Group in March 2010 as general laborers and supervised by managers from both STI Group and Chesapeake. Shortly after being assigned to a particular worksite, the only other African-American male on the crew was fired.

Plaintiffs allege that, when they arrived at work on several occasions, someone had anonymously written "don't be black on the right of way" on the sign-in sheets. They also assert that although they have significant experience working on pipelines (and more so than their non-African-American coworkers), they were only permitted to clean around the pipelines rather than work on them. They claim that, when working on a fence-removal project, a supervisor told Castleberry and his coworkers that if they had "nigger-rigged" the fence, they would be fired. Seven coworkers confirmed that occurred. Following this last incident, Plaintiffs reported the offensive language to a superior and were fired two weeks later without explanation. They were rehired shortly thereafter, but then terminated again for "lack of work."

Plaintiffs brought suit in District Court against both STI and Chesapeake alleging harassment, discrimination, and retaliation in violation of 42 U.S.C. § 1981. As to the harassment claim, the Court determined it could not survive a motion to dismiss because the facts pled did not support a finding that the alleged harassment was "pervasive and regular," which it deemed a requisite element to state a claim under § 1981. The Court similarly found that there were not sufficient facts alleged demonstrating intent to fire Plaintiffs because of their race or that their termination was racially motivated. Finally, regarding Plaintiffs' retaliation claim, it determined Plaintiffs failed to demonstrate that an objectively reasonable person would have believed that the comment made by their supervisor was unlawful—a necessary element to plead retaliation under § 1981.

II. JURISDICTION AND STANDARD OF REVIEW

28 U.S.C. § 1291 gives us appellate jurisdiction. We review anew a district court's dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Chavarriaga v. N.J. Dep't of Corr. , 806 F.3d 210, 218 (3d Cir. 2015). When conducting our review, "we must accept the allegations in the complaint as true, [but] are not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski , 719 F.3d 160, 165 (3d Cir. 2013) (en banc) (quotation omitted). The allegations must have "facial plausibility," meaning that "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (citation omitted).

III. ANALYSIS

Plaintiffs challenge the District Court's dismissal of their claims under § 1981, which provides

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... to the full and equal benefit of all laws ... as is enjoyed by white citizens....

In employment discrimination cases, these claims are subject to the same analysis as discrimination claims under Title VII of the Civil Rights Act of 1964. Brown v. J. Kaz, Inc. , 581 F.3d 175, 181-82 (3d Cir. 2009). Accordingly, a court reviews them under the burden-shifting framework outlined in McDonnell Douglas Corp. v Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Brown , 581 F.3d at 182. Under that framework, a plaintiff first must establish the requisite elements of his claim (called the prima facie elements); if so, the "burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for the adverse employment action, and then the plaintiff bears the burden of establishing that the employer's stated reason for the adverse action was an excuse, or pretext, for why the action was actually taken. McDonnell Douglas , 411 U.S. at 802-04, 93 S.Ct. 1817. Using this approach, each claim is reviewed in turn.

A. Harassment

Plaintiffs' harassment claim under § 1981 alleges a hostile work environment on the basis of race. To win, a plaintiff must show that "1) the employee suffered intentional discrimination because of his/her [race], 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability [meaning the employer is responsible]." Mandel v. M & Q Packaging Corp. , 706 F.3d 157, 167 (3d Cir. 2013) (citation omitted). Plaintiffs assert that the District Court applied the wrong legal standard in dismissing this claim when it required them to plead discrimination that was "pervasive and regular." See J.A. at 13 (emphasis added) (citing Ocasio v. Lehigh Valley Family Health Ctr. , 92 Fed.Appx. 876, 879 (3d Cir. 2004) ). Instead, they only were required to plead that they were subjected to a hostile work environment in which there was discrimination that was "severe or pervasive." See Jensen v. Potter , 435 F.3d 444, 449 (3d Cir. 2006) (emphasis added).

Plaintiffs are correct even though our precedent is inconsistent. We have held that, to prevail on a harassment or hostile work environment claim, the plaintiff "must establish that ... the discrimination was severe or pervasive." Mandel , 706 F.3d at 167 (3d Cir. 2013) (citation omitted); see Moore v. City of Phila. , 461 F.3d 331, 341 (3d Cir. 2006) ; Jensen , 435 F.3d at 449 ; see also Miller v. Thomas Jefferson Univ. Hosp. , 565 Fed.Appx. 88, 93 n.6 (3d Cir. 2014) (quotation omitted); Brooks v. CBS Radio, Inc. , 342 Fed.Appx. 771, 775 (3d Cir. 2009) ; Hamera v. Cnty. of Berks , 248 Fed.Appx. 422, 424 (3d Cir. 2007) (quotation omitted).

We have also held that a plaintiff making such a claim must establish that the discrimination is "pervasive and regular." Andreoli v. Gates , 482 F.3d 641, 643 (3d Cir. 2007) (quotation omitted); Cardenas v. Massey , 269 F.3d 251, 260 (3d Cir. 2001) ; see also Ullrich v. U.S. Sec'y of Veteran s Affairs , 457 Fed.Appx. 132, 140 (3d Cir. 2012) (quotation omitted); Ocasio , 92 Fed.Appx. at 879 (quotation omitted).

To make matters even more confusing, we have also determined that the correct standard to apply is "severe and pervasive." Hare v. Potter , 220 Fed.Appx. 120, 131-32 (3d Cir. 2007). And if that were not enough, we have held that the correct standard to apply is "pervasive and regular" but then applied the "severe or pervasive" standard within the same opinion. Weston v. Pennsylvania , 251 F.3d 420, 426 (3d Cir. 2001).

Thus we clarify. The correct standard is "severe or pervasive." The Supreme Court has articulated as much on several occasions. See, e.g. , Pa. State Police v. Suders , 542 U.S. 129, 133, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) ; Harris v. Forklift Sys., Inc. , 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). We have noted that "[t]he difference [between the two standards] is meaningful" because "isolated incidents (unless extremely serious ) will not amount to [harassment]." Jensen , 435 F.3d at 449 n.3 (quoting Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ). Indeed, the distinction "means that ‘severity’ and ‘pervasiveness' are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive." Id. (quoting 2 Charles A. Sullivan, Michael J. Zimmer & Rebecca Hanner White, Employment Discrimination Law and Practice 455 (3d ed. 2002)). Whether an environment is hostile requires looking at the totality of 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 it unreasonably interferes with an employee's work performance." Harris , 510 U.S. at 23, 114 S.Ct. 367.

Under the correct "severe or pervasive" standard, the parties dispute whether the supervisor's single use of the "n-word" is adequately "severe" and if one isolated incident is sufficient to state a claim under that standard. Although the resolution of that question is context-specific, it is clear that one such instance can suffice to state a claim. See Faragher , 524 U.S. at 788, 118 S.Ct. 2275 ("isolated incidents" will amount to harassment if "extremely serious") (quotations omitted); ...