Davis v. Monsanto Chemical Co.

• Decision Date: 06 December 1988
• Docket Number: No. 87-1505,87-1505
• Citation: 858 F.2d 345
• Parties: 47 Fair Empl.Prac.Cas. 1825, 47 Empl. Prac. Dec. P 38,344, 57 USLW 2215, 57 USLW 2279 Jesse B. DAVIS and Richard Lorence Harris, Plaintiffs-Appellants, v. MONSANTO CHEMICAL COMPANY, Defendant-Appellee, Teamsters Local 299; et al., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 345

858 F.2d 345

47 Fair Empl.Prac.Cas. 1825,

47 Empl. Prac. Dec. P 38,344, 57 USLW 2215,

57 USLW 2279

Jesse B. DAVIS and Richard Lorence Harris, Plaintiffs-Appellants, v. MONSANTO CHEMICAL COMPANY, Defendant-Appellee Teamsters Local 299; et al., Defendants.

No. 87-1505.

United States Court of Appeals Sixth Circuit.

Argued Feb. 11, 1988.

Decided Oct. 4, 1988.

Rehearing and Rehearing En Banc Denied Dec. 6, 1988.

J. Michael Hill, argued, Bret A. Schnitzer, Hill & Schnitzer, P.C., Allen Park, Mich., Richard A. Eagal, for plaintiffs-appellants.

John F. Burns, Suanne Tiberio Trimmer, Mary K. Kator, argued, Clark, Klein & Beaumont, Detroit, Mich., for defendant-appellee.

Before MARTIN, JONES, and NORRIS, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Jesse B. Davis and Richard L. Harris appeal the district court's granting of summary judgment in favor of the Monsanto Chemical Company in this action alleging racial harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws Sec. 37.1201 et seq.

During their employment with Monsanto, both Davis and Harris, black males, had disciplinary problems, largely stemming from unauthorized absences. As both men approached the termination phase of Monsanto's disciplinary process, they filed separate charges of racial discrimination with the Equal Employment Opportunity Commission. After receiving right-to-sue letters, Harris and Davis brought separate actions against Monsanto, a Monsanto supervisor named Michael Newmarker, and Teamster's Local 299. Their complaints were consolidated.

Davis and Harris essentially have two claims. First, they contend that they were subjected to disparate treatment because of their race. Second, they allege that they were subjected to a racially hostile work environment that is actionable under Title VII.

The evidence to support these claims is not substantial. Davis and Harris allege that racial slurs were used at Monsanto, but only once was a racial epithet directed at either of them by a white co-worker or used in their presence. Davis and Harris also allege that derogatory racial graffiti was written on bathroom walls. The only time this problem was reported to a supervisor, however, the graffiti was promptly painted over. Davis also alleged that a safety poster, depicting the predicament of an inept worker, was shaded to represent a black man and labeled with Davis' name. But Davis never reported the incident, and the poster was taken down shortly thereafter. When Davis did report that someone altered his time card and spat on it, Davis' supervisor promptly posted a notice that such conduct would not be tolerated, and the conduct was not repeated. Both Davis and Harris allege that their supervisor, Newmarker, harassed them, but it is not clear that the comments they cite as evidence of his racist behavior were racially motivated.

Davis and Harris also allege that blacks were not permitted to eat with whites in the lunchroom. This situation was never reported to a supervisor, however, and two other black employees denied that blacks ate or were required to eat at a designated table. Davis and Harris offer no evidence to support their claims of car tampering, disparate disciplinary treatment, and inferior job training. They also charge that blacks and women were forced to perform unnecessary tasks, but this allegation is not substantiated and the problem was never reported.

The district court granted Monsanto's motion for summary judgment. The court concluded that the evidence in the record failed to satisfy the legal standards for maintaining a racial harassment claim under Title VII. The court also found no evidence to support Davis and Harris' disparate treatment claims. We agree with these conclusions.

In order to maintain a disparate treatment claim, Davis and Harris must produce evidence that, because of their race, they were treated less favorably than similarly-situated white employees. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Davis and Harris raise three claims of disparate treatment: first, that Monsanto failed to train new black employees as well as white employees were trained; second, that white employees were disciplined less harshly for absenteeism than blacks; and, third, that rules regarding sick leaves were not evenly applied.

There is no evidence in the record to support these allegations. A fellow black employee testified that whites were not trained differently than blacks, and another black employee testified that Davis received adequate training. Davis and Harris' statements to the contrary are merely conclusory allegations, and, therefore, insufficient to create a genuine issue of fact. The only evidence regarding a white employee with a poor absenteeism record establishes that he was given the same discipline as that given to Davis and Harris. Finally, Davis and Harris have cited no instance where Monsanto's disability leave verification rules were relaxed for a white employee. Therefore, the district court properly dismissed their disparate treatment claims.

We also believe that the district court's disposition of the hostile work environment claim was proper, but we reach the same result by following a different analytical route.

The first case to recognize a cause of action based upon a discriminatory work environment was Rogers v. EEOC, 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). The Rogers court held that an employee of Spanish origin could establish a Title VII violation by demonstrating that her employer created "a working environment heavily charged with ethnic or racial discrimination." Id. at 238. Subsequently, several courts adopted this position, finding Title VII violations where an employer created or condoned a substantially discriminatory work environment, regardless of whether the complaining employee lost any tangible job benefits as a result of the discrimination. See, e.g., Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981); DeGrace v. Rumsfeld, 614 F.2d 796 (1st Cir.1980); Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C.Cir.1976). This court first endorsed this development in Erebia v. Chrysler Plastics Products Corp., 772 F.2d 1250 (6th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986).

In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Court affirmed the principle embodied in this "substantial body of judicial decisions." Id. at 65, 106 S.Ct. at 2405, 91 L.Ed.2d at 59. In this case, the Court held that, "[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of (the victim's) employment and create an abusive working environment.' " Id. at 67, 106 S.Ct. at 2406, 91 L.Ed.2d at 60 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). The Supreme Court, however, declined to promulgate a definitive rule on when employers would be liable for such an environment. Rather, the Court recommended that subsequent courts "look to agency principles for guidance in this area." Meritor Savings Bank v. Vinson, supra, 477 U.S. at 72, 106 S.Ct. at 2408, 91 L.Ed.2d at 63.

In its discussion of Davis and Harris' hostile work environment claim, the district court quoted at length from this circuit's first post-Vinson opinion, Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987). The district court also frequently cited this case as support for its conclusions. We believe, though, that this reliance was misplaced because Rabidue does not apply to racially hostile work environment claims.

In Rabidue v. Osceola Refining Co., supra, the plaintiff alleged that she was the victim of a sexually discriminatory work environment. In assessing this claim, this court articulated a multi-factored test. Three of the five elements, though, referred specifically to "sex" or "sexual" harassment. Id. at 619. This court also prefaced its standard by stating that it applies to "a Title VII offensive work environment sexual harassment action." Id. (emphasis added). Finally, after citing cases which supported its test, this court in Rabidue suggested that its standard be compared with the standard in Erebia v. Chrysler Plastics Products Corp., supra, a case involving a racially hostile work environment claim. Erebia remains the controlling law for racially hostile work environment claims in this circuit. ¹

Although the posture of the Erebia case was different from the posture of the case here, ² this court in Erebia identified two requisite elements for a racially hostile work environment claim: "repeated slurs and management's tolerance and condonation of the situation." Id. We now take this opportunity to elaborate on the racially hostile work environment standard set forth for this circuit in Erebia.

In order to satisfy the first requirement, "repeated slurs," the plaintiff must show that the alleged racial harassment constituted an unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to perform the tasks required by the employer. In establishing the requisite adverse effect on work performance, however, the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. The employee need only show that the harassment made it more difficult to do the job.

In more fully explaining what this court intended by the use of the phrase "repeated slurs," we have deliberately avoided using a distinction drawn by other courts. In Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80...