Equal Employment Opportunity Comm'n v. Xerxes Corp..

• Decision Date: 26 April 2011
• Docket Number: No. 10–1156.,10–1156.
• Citation: 639 F.3d 658
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant,v.XERXES CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

639 F.3d 658

112 Fair Empl.Prac.Cas. (BNA) 109

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant,

v.XERXES CORPORATION, Defendant–Appellee.

No. 10–1156.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2010.Decided: April 26, 2011.

ARGUED: Elizabeth Ellen Theran, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Robert C. Castle, Oppenheimer Wolff & Donnelly LLP, Minneapolis, Minnesota, for Appellee. ON BRIEF: P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Aaron Mills Scott, Oppenheimer Wolff & Donnelly LLP, Minneapolis, Minnesota, for Appellee.Before TRAXLER, Chief Judge, and WILKINSON and MOTZ, Circuit Judges.Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge MOTZ joined. Judge WILKINSON and Judge MOTZ each wrote a separate concurring opinion.

OPINION

TRAXLER, Chief Judge:

This appeal arises from an action brought by the Equal Employment Opportunity Commission (“EEOC”) on behalf of Albert Bernard Pearson, Keith Wilson, and Gradian Graham, present or former African–American employees of Xerxes Corporation (“Xerxes”), alleging a hostile work environment on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2 (“Title VII”). The district court granted summary judgment for Xerxes. We affirm in part, vacate in part, and remand.

I.

A.

Xerxes is a fiberglass tank manufacturer based in Minneapolis, Minnesota. Pearson, Wilson, and Graham worked as assemblers at Xerxes' plant in Williamsport, Maryland. Bob Shifflett was their shift supervisor. He reported to plant superintendent Greg Carty, who reported to plant manager Wayne Green.

At all times, Xerxes had in place a comprehensive Corporate Compliance Program and Program Guide, prohibiting discrimination and harassment in the plant. Plant employees were instructed to report any violations to their “supervisor, Plant Manager, ... or a member of Xerxes' Compliance Committee.” J.A. 487, 493. In addition, as of at least January 9, 2006, Xerxes also had in place a separate anti-harassment policy, which prohibited “Sexual, Racial and Other Objectionable Conduct or Unlawful Harassment.” J.A. 480. The policy provided specific examples of prohibited conduct and, among other directions, instructed plant employees to “ Immediately Report The Incident To Your Supervisor And Plant Manager.” J.A. 481. All employees received copies of Xerxes' anti-harassment policies and were trained in them at the time of hire. Refresher training was conducted annually.

Xerxes and its nonsupervisory employees were also subject to a Collective Bargaining Agreement (the “CBA”) between Xerxes and the United Automobile, Aerospace and Agricultural Implement Workers of America, Local No. 171 (the “Union”). The CBA prohibited “unlawful discrimination against employees on account of race, color, creed, national origin, religion, sex, sexual orientation, pregnancy, marital status, age, disability, or Union affiliation, or any other legally protected class status.” J.A. 501. The CBA also protected Union employees from being “disciplined or discharged without just cause.” J.A. 498. The CBA contained a grievance procedure for alleged violations, and Union representatives were regularly available to meet with employees about any concerns. The Union president testified that Xerxes took “a strong stance against discrimination,” J.A. 307, and “seem[ed] to respond very quickly whenever there [were] allegations” of discrimination. J.A. 308.

B.

Bernard Pearson was hired by Xerxes to work at the plant on a temporary basis in April 2005 and as a full-time employee in June 2005. He testified that from June 2005 until February 2006, his coworkers subjected him to repeated racial slurs and pranks in the plant. He testified that Amber Gatrell used the word “n* * * * * ” in his presence on repeated occasions and referred to him as “Boy.” He testified that Floyd Myers called him “Boy” and “black Polack,” and called a white woman a “n* * * * * lover.” He also testified that unknown coworkers occasionally played pranks on him, such as turning the lights off in the bathroom and throwing wet paper towels at him, placing gel on the doorknob in the bathroom so that he could not open the door, tampering with his toolbox lock, and hiding his toolbox. Pearson testified that he reported these incidents to Shifflett as they occurred, but that Shifflett did nothing until February 2006. He did not complain to any other members of management.

Keith Wilson was hired by Xerxes as a temporary employee in October 2005 and as a full-time employee in December 2005. He alleges that he was first subjected to racial harassment by his coworkers in November 2005. He testified that on two or three occasions someone stole or threw away his and Pearson's lunches. He also complained that Tammy Smith called him by racially-tinged names, including “Buckwheat,” “Benson,” and “Yellow Boy.” ¹ Wilson testified that he reported the incidents to Shifflett as they occurred, but did not complain to any other management employee because the Union representative told him he had to report them to his direct supervisor first.

On February 3, 2006, however, two related incidents involving Gatrell and Myers were reported to Shifflett and to Green. Wilson testified that while he was working with Gatrell, she said to him, “Boy you don't lay up no manway like that.” J.A. 353. Wilson reported the incident to Shifflett and told Shifflett that “where I come from ... boy is another name for the N word.” J.A. 353. Shifflett memorialized the complaint and his response in writing, as follows:

[Gatrell] and [Wilson] were working [together and] it was at the end of the shift. [Wilson] started to take the dumpster up to dump it. [Gatrell] said to [Wilson] hey boy you can't dump the dumpster yet because its not 9:30 p.m. Later [Wilson] and [Pearson] came to me and said that they were tired of people saying boy to them and other racial slurs. I told [Wilson] and [Pearson] that no they don't have to listen to this and that it would be dealt with right away. I went to [Gatrell] and told her that I think the best thing to do is go to [Wilson] and say to him that if he took [o]ffense about her saying boy to him that she was sorry. The next day [Gatrell] talked to [Wilson] and [Pearson] in the parking lot and told [Wilson] just what I said to.

J.A. 641. Gatrell admitted using the term “boy,” but claimed that she did not intend it to be racially offensive. Later that same evening, Myers exchanged words with Pearson and Wilson in the lunchroom and “said something like, yeah, Boy, well I'll see you outside.” J.A. 354. Myers also admitted using the term “boy” during the exchange, but claimed that he did not intend it to be racially offensive. After Green met with Myers about the incident, Myers apologized to Pearson and Wilson. Green also held a meeting with the shift employees to review Xerxes' anti-harassment policies. Green reminded the employees that racial harassment, including race-based comments, was prohibited and warned that future misconduct would result in disciplinary action.

After February 2006, Wilson reported no further incidents of racial harassment until June 2007.² In May 2006, however, Pearson complained to Shifflett that two different coworkers had referred to music being played in the plant as “jungle music” and “n* * * * * music.” Shifflett told Pearson that he should report the incidents to Carty. Carty, in turn, met with Pearson and the Union representative. At the meeting, Pearson also told Carty about the problems he had experienced with Gatrell and Myers, and told Carty that he “wanted it to stop.” J.A. 548. Carty told Pearson not to say anything to anyone and that he would take care of it.

When Green learned of Pearson's complaint, he notified Xerxes' corporate office and Ronald Bachmeier, the EEO coordinator, traveled to the plant to investigate.³ According to Bachmeier:

While at the plant, I conducted a comprehensive investigation into Mr. Pearson's allegations. I interviewed Mr. Pearson as well as more than 15 other employees. Interviewees either denied Mr. Pearson's allegations, explained that Mr. Pearson had taken their remarks out of context, indicated that they did not mean their remarks to be racially offensive, or had since apologized for those remarks, and explained that Mr. Pearson had himself engaged in interaction with other employees using profanity and the racially offensive term “N____.” Neither Mr. Pearson nor any other employee attributed any racially offensive remarks to any Xerxes supervisor. Moreover, although Mr. Pearson contended that he had spoken with certain Xerxes supervisors regarding his concerns, those supervisors credibly disputed Mr. Pearson's contention that he spoke to them or Mr. Pearson's version of their communications.J.A. 474–75.

At the conclusion of the investigation, the following actions were taken by Xerxes. Myers and Gatrell were each issued two-day unpaid suspensions from work and required to attend refresher training in the anti-harassment policies. They were also “placed on a final warning” that Xerxes “w[ould] terminate [their] employment if [it was] ever determine[d] that [they] engaged, directly or indirectly, in hostile, offensive, or otherwise unlawful conduct toward any Xerxes employee.” J.A. 646. They were also instructed as follows:

You are under no circumstances to have any hostile, offensive, or otherwise unlawful interaction with [Pearson]. You shall not make any racially hostile, offensive, or intimidating remarks, gestures, or engage in any conduct, of any type, which is racially offensive. This prohibition applies to our entire Plant, including...