In re Armentrout, BK 06-71069-CMS-7 (Bankr. N.D. Ala. 1/5/2010)

• Decision Date: 05 January 2010
• Docket Number: AP 06-70042-CMS.,BK 06-71069-CMS-7.
• Parties: In re: THOMAS DWAIN ARMENTROUT, Debtor. CHARLES WILSON, Plaintiff, v. FAYETTE SAND & GRAVEL, INC., and THOMAS DWAIN ARMENTROUT, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Alabama

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In re: THOMAS DWAIN ARMENTROUT, Debtor CHARLES WILSON, Plaintiff, v. FAYETTE SAND & GRAVEL, INC., and THOMAS DWAIN ARMENTROUT, Defendant.

BK 06-71069-CMS-7.

AP 06-70042-CMS.

United States Bankruptcy Court, N.D. Alabama, Western Division.

January 5, 2010.

MEMORANDUM OPINION

C. MICHAEL STILSON, Bankruptcy Judge

This matter came before the court on April 13, 2009, for trial on Charles Wilson's ("Plaintiff") objection to dischargeability of debts pursuant to 11 U.S.C. § 523(a)(6). (AP Doc. 1). Lee Wendell Loder appeared on behalf of the Plaintiff and Eric M. Wilson appeared on behalf of Thomas Dwain Armentrout ("Debtor"). After consideration of the evidence submitted at trial and the arguments of counsel this court OVERRULES the objection to dischargeability pursuant to 11 U.S.C. § 523(a)(6).

JURISDICTION

The Bankruptcy Court has jurisdiction of Debtor's Chapter 7 case pursuant to 28 U.S.C. § 1334(a). This court has jurisdiction of this issue, a core bankruptcy proceeding, pursuant to 28 U.S.C. § 1334(b). Jurisdiction is referred to the bankruptcy courts by the General Order of Reference of the United States District Courts for the Northern District of Alabama, Signed July 16, 1984, As Amended July 17, 1984.

FINDINGS OF FACT

Debtor is the sole owner of Fayette Sand and Gravel, Inc.("Fayette Sand"), an Alabama corporation which was incorporated in 1990 and continued as an active corporation at all times relevant to this dispute. (Plaintiff's Exhibit 12).¹ Plaintiff was employed as a laborer at Fayette Sand from December 4, 2001 to February 20, 2004. (Plaintiff's Exhibits 3 & 15). Plaintiff was laid off from Fayette Sand on February 20, 2004 due to a "lack of work" and "business [being] slow." (Plaintiff's Exhibit 15). Shortly thereafter, on April 28, 2004, the Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission. (Plaintiff's Exhibit 1). The Charge of Discrimination alleged that Jerome Taylor, a supervisor at Fayette Sand, and/or James Crowell, also a supervisor at Fayette Sand:² (1) called Plaintiff over at a crawfish boil held at the Fayette Sand office suite, told Plaintiff to try on a rope tied like a small noose to see if it would fit Plaintiff's neck, and then told Plaintiff that he was going to hang Plaintiff with the rope; (2) told Plaintiff while driving to Berry, a small mining town in Alabama, that he never went to Berry "because there are just too many niggers;" (3) told the Plaintiff that the reason he did not like black people was because black people don't work and that "they get there [sic] money from the government to sell dope and buy cars and ride around in Cadillacs;" (4) intentionally dropped a backhoe on the Plaintiff's back causing the Plaintiff physical injury; and (5) called the Plaintiff a nigger when the Plaintiff was building a storm shelter at the depot train station. (Plaintiff's Exhibit 1). Plaintiff asserted that the actions of the supervisors at Fayette Sand constituted a hostile and racially discriminatory work environment. Plaintiff also asserted that Debtor fostered the hostile and racially discriminatory work environment because: (1) the Debtor had an employment policy that resulted in a hostile work environment; (2) the Debtor failed to act after being consulted repeatedly about the hostile work environment; and (3) the Debtor ratified the conduct of the supervisors of Fayette Sand by firing Plaintiff in retaliation for raising claims of discrimination. At no point in the Charge of Discrimination does the Plaintiff allege that the Debtor actually participated in any of the alleged incidents. Debtor responded to the Charge of Discrimination on June 9, 2004. (Plaintiff's Exhibit 3). In his response, Debtor admitted that there was no written policy in place regarding race discrimination during Plaintiff's employment at Fayette Sand, but stated that a racially hostile work environment was not tolerated. Debtor further stated that the Plaintiff never came to him and complained about a racially hostile work environment, but that he was aware of the noose incident which occurred at the crawfish boil. The following is Debtor's account of the noose incident:

Jerome Taylor who is a named respondent came up with a small noose from inside our ornamental concrete building where it had been hanging for 10-12 months as you come in the back door. The noose was made up by my yard foreman, Frankie Marchbanks, who is African American . . . . [Jerome Taylor] asked [Plaintiff] if he knew what the rope was. He said, "Sure I do give it to me", he took the rope and placed it around his head. It hardly fit because of its size, finally he squeezed it on then said "Hang me mother-f*****, you ain't got the balls." Jerome Taylor said "NO" that is not what I said. [Plaintiff] then put the rope in Mr. Taylor's hand, Jerome dropped it. They all continued joking about different things until time to go back to work at 2:00 p.m. [Plaintiff] had to be asked to remove [the] noose before going back to work.

(Plaintiff's Exhibit 3). Debtor also admits that Plaintiff was involved in an accident on a work site, but that the incident could not have occurred as described by Plaintiff. Debtor asserts that if a backhoe, or even just the front bucket of the backhoe, had been intentionally dropped on Plaintiff, Plaintiff would, at best, have been crushed or rendered paralyzed. As Plaintiff continued to work the day of the incident and declined offers to go see a company doctor, Debtor asserts that the Plaintiff was not seriously injured on the job. Debtor also stated that he was not aware of any name-calling on job sites and that he would not have tolerated such name-calling if he had known.

After determining that Fayette Sand was an employer within the meaning of Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission ("EEOC") investigated the claims of Plaintiff and found that:

Evidence obtained during the investigation supports [Plaintiff's] allegation of a hostile work environment. Evidence indicates [Plaintiff] told the [Debtor] about the offensive language used by the supervisors, but [Debtor] did nothing. Evidence indicates [Plaintiff] did not feel he had a right to object or complain about the racial jokes and horseplaying because it involved the participation of supervisors and he had already complained to management. Evidence indicates [Plaintiff], his co-workers, and the crew as a whole made a typical day of horse playing, and making racial jokes, including using the word "Nigger". Evidence indicates [Debtor] permitted inappropriate conduct which created and fostered a racially hostile environment. Evidence does not indicate [Plaintiff's] behavior was offensive to anyone. Evidence does not support [Plaintiff's] allegation of retaliatory discharge."

(Plaintiff's Exhibit 4). After an unsuccessful attempt at a settlement, the EEOC issued a Notice of Suit Rights. (Plaintiff's Exhibit 5). In such Notice, the EEOC stated that it would not bring suit and further stated that Plaintiff must file a lawsuit within 90 days of the receipt of the Notice or his right to sue based upon his charges would be lost. Plaintiff filed suit against Fayette Sand, Debtor, Jerome Taylor, and James Crowell in the United States District Court for the Northern District of Alabama on September 20, 2005. The complaint filed in the District Court tracks the Charge of Discrimination filed with the EEOC and no alleged incidents are set forth in the District Court complaint that are not also set forth in the Charge of Discrimination. On August 10, 2006, Debtor filed a voluntary Chapter 7 petition.³ On August 21, 2006, the Debtor and Fayette Sand filed a Suggestion of Bankruptcy with the District Court.⁴ On August 22, 2006, the District Court dismissed the causes of action against Debtor and Fayette Sand without prejudice. (Plaintiff's Exhibit 11). On November 13, 2006, Plaintiff commenced this adversary proceeding by filing the complaint currently before the court. (AP Doc. 1). In the complaint, Plaintiff alleged that the Debtor "intentionally and maliciously created a hostile and racially discriminatory environment by fostering, encouraging, creating the environment for and ratifying racial discrimination during the time the Plaintiff was employed at the [Debtor's] place of business. Specifically, the [Debtor] allowed nooses to be made and left on the work premises, allowed nooses to be used in the Plaintiff's presence as a symbol for hanging and lynchings, refused to investigate or punish employees for using racial slurs or engaging in racially discriminatory conduct and ultimately firing the [Plaintiff] for complaining about the same..." (AP Doc. 1, ¶ 6). Plaintiff further alleged that such hostile and racially discriminatory environment created by the Debtor constitutes a violation of 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42 U.S.C. § 2000(a) et. seq., the Civil Rights Act of 1871, 1866, and 1964, and the laws against retaliatory discharge. The complaint incorporated the District Court complaint and no alleged incidents were set forth in the complaint that were not also set forth in the District Court complaint and the Charge of Discrimination.

The trial on the complaint was held on April 13, 2009. Debtor was not available at trial due to a serious illness, but several employees of Fayette Sand were available: Wesley Warren, a co-employee of Plaintiff's; James Crowell, Plaintiff's supervisor at Fayette Sand; and Beverly Neighbors, a former employee and office manager at Fayette Sand. Wesley Warren testified that he considered Plaintiff a friend: that he and the Plaintiff joked with each other, that they occasionally worked on the same sites, that they occasionally ate lunch together, that he had been to Plaintiff's house, and that he had given Plaintiff numerous rides to work. Warren further testified that he never heard Plaintiff complain about a...