Huckabay v. Moore, 97-40619

• Decision Date: 07 April 1998
• Docket Number: No. 97-40619,97-40619
• Citation: 137 F.3d 871
• Parties: 73 Empl. Prac. Dec. P 45,301 William Reed HUCKABAY, Plaintiff-Appellant, v. Edward MOORE, Individually and in His Official Capacity as County Commissioner, and Jefferson County, Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 871

137 F.3d 871

73 Empl. Prac. Dec. P 45,301

William Reed HUCKABAY, Plaintiff-Appellant, v. Edward MOORE, Individually and in His Official Capacity as

County Commissioner, and Jefferson County, Texas,

Defendants-Appellees.

No. 97-40619.

United States Court of Appeals,

Fifth Circuit.

April 7, 1998.

Laurence W. Watts, Watts & Associates, Houston, TX, for Huckabay.

Sonya Billingsley Coffman, Walter E. Umphrey, Provost & Umphrey, Beaumont, TX, for Moore.

Richard F. Baker, Steven L. Wiggins, Beaumont, TX, for Jefferson County, Texas.

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, and SMITH and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

William Huckabay, who is white, has worked as an employee of Jefferson County Precinct Four since 1976. Edward Moore, who is black, was elected Commissioner of Precinct Four in 1987. Huckabay alleges that upon his election, Moore immediately set out on a deliberate and overt program to make his precinct a "black precinct." According to Huckabay, Moore stated that "blacks had suffered for two hundred years, and now it was the whites' turn," and Moore acted upon that theory.

Again according to Huckabay, Moore instituted generally racist employment practices in an attempt to force out his white employees. Moore demoted white supervisors of many years' experience, replacing them with--and forcing them to work under--blacks of lesser experience and training. He assigned whites to the most burdensome and disliked tasks, while excusing blacks. He refused to allow whites who had been injured on the job to perform "light duty"--as he did for blacks--but insisted that they perform heavy duty or stay home. He allowed black employees to take frequent breaks on the job, but chastised whites who did the same. During his tenure as commissioner, Moore hired twenty-two black employees and only one white. And on the job, Moore tolerated and helped to foster an atmosphere in which whites were called "honkeys" and were made the subject of ridicule and harassment on account of race.

Huckabay claims that, in addition to suffering this generalized discrimination, he has incurred specific instances of particularized discrimination. He was demoted, and his pay was cut, from mechanic to laborer when he broke his arm and had to take time off from work. He is no longer allowed to run any equipment. When a supervisory job opened up, he was not even considered for it, despite his fairly long experience with the county. ¹ And in a multitude of ways, he is forced to tolerate verbal and nonverbal racial harassment as a condition of his employment.

On May 26, 1995, Huckabay filed a charge of discrimination with the EEOC, alleging a hostile work environment. He received a right-to-sue letter and filed this suit, alleging violations of 42 U.S.C. §§ 1981, 1983, and 2000e, as well as Texas tort and state constitutional claims. The district court granted summary judgment in favor of Moore and the county.

II.

We review a summary judgment de novo. See Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. See Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable substantive law to determine what facts and issues are material. See King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). We then review the evidence relating to those issues, viewing the facts and inferences in the light most favorable to the non-movant. See id. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. See Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994).

III.

A.

In a state that, like Texas, provides a state or local administrative mechanism to address complaints of employment discrimination, a title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged. 42 U.S.C. § 2000e-5(e)(1); see also Messer v. Meno, 130 F.3d 130, 134 & n. 2 (5th Cir.1997). Huckabay did not file with the EEOC within 300 days of much of the discriminatory conduct he alleges, but he claims that under the "continuing violation doctrine," recognized by this court in Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir.1983), his claims are timely, nonetheless.

As we explained in Messer,

The continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period.... The core idea of the continuing violations theory, however, is that equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated. The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. At the same time, the mere perpetuation of the effects of time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period. Thus, a plaintiff can avoid a limitations bar for an event that fails to fall within the statutory period where there is a persisting and continuing system of discriminatory practices in promotion or transfer that produces effects that may not manifest themselves as individually discriminatory except in cumulation over a period of time.

130 F.3d at 134-35 (citations, quotation marks, and brackets omitted). Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. He must show an organized scheme leading to and including a present violation, see Berry, 715 F.2d at 981, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action, see Messer, 130 F.3d at 135; Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 (5th Cir.1985).

This inquiry may involve several factors, including the following three:

The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring ... [ ²] or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?

Berry, 715 F.2d at 981. Importantly, however, the particular context of individual employment situations requires a fact-specific inquiry that cannot easily be reduced to a formula. Id.

B.

Huckabay's specific allegations are that he was unlawfully demoted because of his race, that he was kept from promotion because of his race, and that he was forced to endure a racially hostile work environment as a condition of his employment. Moore argues that the continuing violation doctrine may apply only, if at all, to the hostile environment claim, rather than to the specific instances of demotion and failure to promote. ³ We agree.

There is little question that Huckabay's hostile environment claim is subject to the continuing violation doctrine. The ongoing racial harassment suffered by Huckabay was all of the same sort, it was continual, and it was a permanent condition of his workplace. Cf. Berry, 715 F.2d at 981. And the pattern of harassment was not the kind of violation that--like a discrete instance of discriminatory conduct--would put a worker on notice that his rights had been violated. Id. While we need not decide whether every hostile environment would necessarily be a continuing violation, cf., e.g., Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir.1996), we conclude that the hostile environment faced by Huckabay was.

That Huckabay was subjected to this continuing violation does not, however, necessarily make timely all his allegations of discriminatory conduct. Where it is applicable, the continuing violation doctrine applies to excuse the 300-day exhaustion requirement only as to the course of conduct that constitutes that violation. We therefore must consider whether all the conduct alleged by Huckabay--the hostile environment, the demotion, and the failure to promote--may be considered part of the same continuing course of conduct. This, in turn, will depend on the basic test for what conduct will constitute a continuing violation, as articulated in Berry and other cases.

Huckabay's demotion is a different sort of discrimination from the day-to-day harassment that makes his workplace a hostile environment. Moreover, he was demoted only once, and unlike the cumulative effect of the petty annoyances of daily harassment, demotion is the sort of discrete and salient event that should...