Herrera v. Lufkin Industries, Inc.

Decision Date04 January 2007
Docket NumberNo. 04-8089.,04-8089.
Citation474 F.3d 675
PartiesLewis HERRERA, Plaintiff-Appellant, v. LUFKIN INDUSTRIES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Jeffrey C. Gosman, Gosman Law Office, Casper, WY, for Plaintiff-Appellant Lewis Herrera.

Douglas E. Hamel, Vinson & Elkins L.L.P. (Amy S. Farber, Vinson & Elkins L.L.P., Houston Texas, Frank D. Neville and P. Craig Silva, Williams, Porter, Day and Neville, Casper, Wyoming, with him on the briefs), Houston, TX, for Defendant-Appellee Lufkin Industries, Inc.

Before TACHA, Chief Circuit Judge, EBEL, Circuit Judge, and CASSELL,* District Judge.

EBEL, Circuit Judge.

Plaintiff-Appellant Lewis Herrera appeals the district court's decision granting his employer, Defendant-Appellee Lufkin Industries, Inc. ("Lufkin") summary judgment on Herrera's Title VII claim alleging a racially hostile work environment. Because we conclude that Herrera has presented evidence in support of this claim sufficient to be entitled to have a jury resolve it, we REVERSE the district court's summary judgment decision and REMAND this Title VII claim to the district court for further proceedings.

The district court also granted Lufkin summary judgment on his state-law claim alleging Lufkin breached its employment contract with Herrera; granted Lufkin judgment as a matter of law on Herrera's state-law claim for the intentional infliction of emotional distress; and, during discovery, required Herrera to undergo a psychological examination. We AFFIRM the district court's decision on these other matters.

I. BACKGROUND

Lufkin is a publicly held company engaged in manufacturing and selling oilfield equipment. Lufkin's headquarters are located in Texas, but the company also maintains a number of service centers throughout the country. In addition to selling its oilfield equipment from these service centers, Lufkin also offers a variety of related machine shop and oilfield services. Lufkin has a service center in Casper, Wyoming, where Lufkin employs between six and ten people. Herrera began working at Lufkin's Casper service center in 1990 as a sales representative and later became the center's field supervisor. For most of this time, Herrera's immediate supervisor was Bruce Cunningham, the Casper service center's manager. Cunningham, in turn, reported to Lufkin's general manager of service operations, Buddy Moore, who was stationed in Lufkin's Texas offices.

Herrera alleged that Moore created a racially hostile work environment for Herrera by frequently referring to him as "the Mexican" or "that fucking Mexican" and by making other derogatory remarks toward Herrera because he was Hispanic. Herrera further alleged that this harassment intensified after Moore sent management trainee Jason Dickerson to the Casper service center.

Cunningham retired as the Casper service center's manager in May 2001. According to Herrera, Moore had promised to promote him to the manager's position vacated by Cunningham. But in October 2001, Moore instead transferred the manager of another Lufkin service center, Steve Thompson, to be the new manager of the Casper service center. At that same time, Moore removed equipment from the Casper center that Herrera used to provide oilfield services. Believing, as Dickerson had told him, that his days with Lufkin were numbered, Herrera quit on October 10, 2001.

Herrera then filed a complaint with the EEOC, alleging Lufkin had discriminated against him because he is Hispanic. After receiving a right-to-sue letter, Herrera sued Lufkin, asserting nine claims. Only three of those claims are relevant to this appeal: 1) Lufkin was liable under Title VII1 for the racially hostile work environment created by its supervisors, Moore and Dickerson; 2) Lufkin breached its employment contract with Herrera when it constructively discharged him without just cause; and 3) Lufkin was liable for Moore's and Dickerson's intentional infliction of emotional distress.2 The district court granted Lufkin summary judgment on the hostile-work-environment and breach-of-contract claims. The district court then tried Herrera's remaining claims to a jury. At the conclusion of Herrera's evidence, however, the district court granted Lufkin's motion for judgment as a matter of law, see Fed.R.Civ.P. 50, on Herrera's state-law claim alleging the intentional infliction of emotional distress. Herrera now appeals these three rulings. In addition, Herrera challenges a discovery ruling requiring Herrera to undergo a psychological examination pursuant to Fed.R.Civ.P. 35. Having jurisdiction to consider this appeal under 28 U.S.C. § 1291, we AFFIRM the district court's decisions addressing discovery and the state-law claims, but we REVERSE the district court's decision granting Lufkin summary judgment on the Title VII hostile-work-environment claim, and REMAND that claim to the district court for further proceedings consistent with this court's decision.

II. ISSUES
A. Whether the district court erred in granting Lufkin summary judgment on Herrera's claim that his work environment was racially hostile.
1. Standard of review

This court reviews the district court's summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party; in this case, in Herrera's favor. See Pepsi-Cola Bottling Co. of Pittsburgh, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir.2005). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

2. Analysis

"Title VII forbids employment discrimination on the basis of race or national origin." Chavez v. New Mexico, 397 F.3d 826, 831 (10th Cir.2005) (citing 42 U.S.C. § 2000e-2(a)(1)). This includes an employee's claims of a hostile work environment based on race or national origin discrimination. See id. at 831-32. To survive summary judgment on a claim alleging a racially hostile work environment, Herrera "must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," and that the victim "was targeted for harassment because of [his] ... race[ ] or national origin." Sandoval v. City of Boulder, 388 F.3d 1312, 1326-27 (10th Cir.2004) (quotation omitted); see also Chavez, 397 F.3d at 832.

In this case, Herrera has asserted sufficient evidence from which a jury could find that his work environment was racially hostile. In particular, he has submitted sufficient evidence indicating that his workplace was pervasively discriminatory.

A plaintiff does not make a showing of a pervasively hostile work environment "by demonstrating a few isolated incidents of racial enmity or sporadic racial slurs. Instead, there must be a steady barrage of opprobrious racial comments." Chavez, 397 F.3d at 832 (quotations, citation omitted). Nevertheless, "the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is quintessentially a question of fact."3 McCowan v. All-Star Maintenance, Inc., 273 F.3d 917, 923 (10th Cir. 2001) (quotations omitted). In making this determination, we consider the work atmosphere "both objectively and subjectively, . . . look[ing] at all the circumstances from the perspective of a reasonable person in the plaintiff's position." Id. (quotations, citation omitted).

Herrera presented evidence of several discrete incidents of racial harassment occurring during the four years that Buddy Moore oversaw Lufkin's Casper service center while Herrera worked there. Herrera testified that when he first met Moore, in 1997, Moore refused to shake Herrera's hand. And in 1999, Moore sent Cunningham some candy with a note attached indicating it was "Mexican peanut brittle." Moore directed that Cunningham give this candy to Herrera. Cunningham did so, including Moore's note. Herrera was offended. Herrera sought advice from an attorney about these incidents and complained to Lufkin's human resources attorney, to no avail.

Also in 1999, Moore told Cunningham to have Herrera talk to a certain customer because that customer was Mexican. Cunningham relayed this message to Herrera. On another occasion in 1999, Moore himself told Herrera to go see another customer because that customer "was from San Antonio . . . so he likes Mexicans." In addition, Moore once said directly to Herrera, "Spanish lover, come here."

On yet another occasion, Moore told Cunningham to tell Herrera not to "Mexicanize" Herrera's new company truck. Carolyn Coleman, the Casper service center's secretary, translated "Mexicanize" to mean "lots of chrome, you know, dice hanging off the mirror." Moore also wanted Herrera to remove a cactus from atop the truck's antenna. Moore gave this directive several times in late 2000 and again in early 2001. Cunningham relayed these comments to Herrera.

In addition to these discrete incidents, however, Herrera also asserted evidence of other ongoing harassment occurring during this entire four-year time period. Moore would refer to Herrera as "the Mexican" or "the fucking Mexican" whenever Moore would speak to Herrera's supervisor, Cunningham, and sometimes when Moore spoke to the Casper service center's secretary, Carolyn Coleman, and the warehouse manager, Bill Bryant. This did not happen just once or twice. Rather, there is evidence that Moore made such comments every two to three days.4 Although Cunningham did not tell Herrera about these comments every time Moore made such references to Herrera, both Cunningham and Coleman did occasionally tell Herrera about them.5 Further, in...

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