Curry v. Sbc Communications, Inc., Case No. 06-11728.
| Decision Date | 30 October 2009 |
| Docket Number | Case No. 06-11728. |
| Citation | 669 F.Supp.2d 805 |
| Parties | Percy CURRY, Rick Banks, III, and Marie Hillard, Plaintiffs, v. SBC COMMUNICATIONS, INC., a.k.a. AT & T, Inc., Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Ann L. Miller, E. Powell Miller, Andrew R. Dranchak, The Miller Law Firm, Rochester, MI, Blaine H. Bortnick, Liddle & Robinson, New York, NY, for Plaintiffs.
Kathryn S. Wood, Lawrence G. Campbell, Sherry D. O'Neal, Tiffany A. Buckley-Norwood, Timothy H. Howlett, Trent B. Collier, Dickinson Wright, Detroit, MI, Theodore E. Meckler, Theodore E. Meckler Assoc., Cleveland, OH, for Defendants.
Plaintiffs Percy Curry, Rick Banks, III, and Marie Hillard have filed an amended complaint against their employer SBC Communications, Inc., also known as AT & T, Inc., alleging violations of Title VII of the Civil Rights Act of 1964, section 1981 of Title 42 of the United States Code, and the Michigan Elliott-Larsen Civil Rights Act (ELCRA) based on disparate treatment on account of their race, retaliation, and a hostile work environment. The plaintiffs earlier filed a motion to certify their case as a class action, which the Court denied. The defendants now have filed a motion for summary judgment. The motion is opposed and fully briefed. The Court heard oral argument from the parties in open court on May 19, 2009. For the reasons fully explained below, the Court finds that the plaintiffs have failed to establish a jury-submissible claim on their disparate treatment and retaliation theories, but fact questions preclude summary judgment on their hostile work environment theory. Therefore, the Court will grant in part and deny in part the defendant's motion for summary judgment.
SBC Communications, Inc., also known as AT & T, Inc., claims to be the largest telecommunications company in the United States. During the times relevant to this lawsuit, it operated a call center in a multistory building in Saginaw, Michigan. Plaintiffs Percy Curry and Rick Banks began working for the defendant as sales service specialists on June 1, 2004. It appears that a sales service specialist dealt with customers who wished to purchase and operate 800 telephone numbers. Marie Hillard has worked for the defendant since June 5, 2000 as a service representative, a position in which the employee helps customers establish and maintain 800 numbers and digital subscriber lines (DSL).
Curry, Banks, and Hillard each are African-American, and they worked in AT & T's small business division on the third floor of the defendant's building in Saginaw. Hillard still works there, but Curry and Banks were terminated on May 13, 2005. In their amended complaint, they each complain that they suffered adverse employment action because of their race and they were subjected to a racially hostile work environment. Curry and Banks allege that when they complained about racially motivated conduct by their supervisor, the defendant retaliated against them. During their employment, the plaintiffs were members of the Communications Workers of America Local 4108. The union was named as a defendant, but the Court dismissed it with prejudice pursuant to the parties' stipulation. The plaintiffs originally sought to certify the case as a class action. The Court denied the motion to certify. See Curry v. SBC Communications, Inc., 250 F.R.D. 301 (E.D.Mich.2008).
Curry alleges that he was subject to a number of discriminatory actions and treated differently than white employees. He says that: (1) he was criticized for working too slowly when many white employees worked more slowly than he; (2) he was not allowed to keep a pet fish at his desk, but a white employee was permitted to do so; (3) a union official hung a noose in front of the SBC elevator banks and company officials allowed it to remain there for over fourteen hours; (4) he was reprimanded for speaking with other African American employees when white employees were able to speak with one another with impunity; (5) he was physically grabbed and forced back to his chair by one of his managers, Debra Akright, on numerous occasions; (6) he was separated from white employees and placed with African American employees near Akright's office for monitoring purposes; (7) he was reprimanded in front of a union representative for minor mistakes that went overlooked when made by white employees; (8) he, along with other African Americans, was wrongfully accused by union representatives of insubordination because he was African American; (9) a white employee called an African American employee a "porch monkey," but union officials took no action upon hearing the slur; (10) he was told by the local union president to stop documenting incidents of alleged discrimination that occurred at work; (11) he was denied the opportunity to become a "Service Leader," a job carrying increased compensation, even though he was rightfully entitled to it; and (12) he was ultimately terminated on the pretext of "threats and violence in the workplace."
Banks's allegations are much the same, including complaints about the conduct of manager Akright. In addition, Banks alleges that Akright failed to accommodate his allergy to bleach by making him work downwind of its odor, chastised him for getting up to simply perform his office duties, and denied him credit for an entire day of work.
Marie Hillard contends that she has been deprived of serving as a service leader, which is a rotating position assigned to sales people that carries with it a pay enhancement. She also says that she witnessed racially hostile conduct by coworkers and management, including the noose incident, graffiti scrawled on a stairway door with the words "Niggers go home," racially derogatory remarks by coworkers that went unpunished by management, and white supremacist literature left in a common area on the third floor.
The parties have completed extensive discovery. They offer the following facts from the record.
A. Hostile work environment facts
The plaintiffs contend that the defendant has engaged in a pattern of racially hostile conduct that began before Curry and Banks were hired. Hillard worked at the Saginaw office during the entire period and witnessed much of the conduct described below.
Hillard was hired on June 5, 2000. Curry and Banks were hired on June 1, 2004. On August 31, 2004, a clothesline was hung in the office by managers John Racine and Nora Goodell at around 5:30 p.m. The clothesline allegedly was intended to display the relative sales progress of different sales teams. A short time later—sometime before 6:30 p.m.—Charles Carter (service leader and union steward) took a scrap piece of the clothesline and fashioned it into a noose above his desk. He brought it to the attention of Karen Bugeja (a supervisor), stating that he would have to kill himself because his sales numbers were down. Bugeja and Racine joked that the noose was not long enough for them to hang themselves. Bugeja testified that she thought of it as a joke and at the time did not see anything offensive about it.
Not everyone thought it was a harmless joke, however. Ray Tucker, a service representative, saw the noose at 6:40 p.m. and reported it to union steward Travis Ruffin, who in turn contacted "Keith XX," chief union steward, who promised he would "get on it right away." Pl.'s Resp., Ex. E (internal investigation). Area managers Andre Clark, who is African American, and Lori Ruthruff, who is white, were asked to take the noose down at some point but did not do so. Although Carter indicated that he intended to remove the noose before he left, the defendant's personnel allowed it to remain up overnight.
Hillard was one of the first people in the office at seven in the morning the next day and was upset by the noose. She interpreted it to "depict[] African-Americans that's been hung by a noose just because of the color of their skin." Def.'s Mot., Ex. D, Hillard Dep. at 118. She asked Sean Deloney, a union representative, to take it down, and he did so around 8 a.m. Curry and Banks said they saw the noose while Deloney took it down. Later that day, Hillard and Curry filed separate complaints with the defendant's EEOC officer based on the incident, and Banks lodged a complaint with the union. Bugeja testified that she did not know which individuals complained about the noose.
Carter received a final written disciplinary warning for hanging the noose; Clark, Racine, and Ruthruff received final written warnings and were docked three days pay. Bugeja received a written warning for "inappropriate judgment, basically, leadership," and was docked five days pay. Def.'s Mot., Ex. H, Bugeja Dep. at 50. Bugeja stated that in response to the noose incident, "AT & T required all management and non-management employees to attend diversity training, which was held on December 7 and 8, 2004." Def.'s Mot., Ex. F, Bugeja Decl. ¶ 7. However, Bugeja testified in her deposition that she "was out of the office on medical leave" during the training, so she "was not present while that training took place," although she verified that it did take place for others. Pl.'s Resp., Ex. D, Bugeja Dep. at 81; see also Ex. G, Martin Dep. at 135 (). There was a second part to the training intended for a date in December that was not given, but it was conducted the next year following a later incident. Hillard testified that she was told the second part was not given in December "because of lack of participation." Pl.'s Resp., Ex. C, Hillard Dep. at 311.
On March 3, 2005, employee Laicy Younkman, who is...
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