Little v. United Technologies, Carrier Transicold Div.

• Citation: 103 F.3d 956
• Decision Date: 22 January 1997
• Docket Number: No. 95-8425,95-8425
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 1560, 69 Empl. Prac. Dec. P 44,485, 65 USLW 2496, 97 FCDR 1137, 10 Fla. L. Weekly Fed. C 660 Bryan LITTLE, Plaintiff-Appellant, v. UNITED TECHNOLOGIES, CARRIER TRANSICOLD DIVISION, Defendant, Carrier Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 956

103 F.3d 956

72 Fair Empl.Prac.Cas. (BNA) 1560,

69 Empl. Prac. Dec. P 44,485, 65 USLW 2496,

97 FCDR 1137, 10 Fla. L. Weekly Fed. C 660

Bryan LITTLE, Plaintiff-Appellant, v. UNITED TECHNOLOGIES, CARRIER TRANSICOLD DIVISION, Defendant Carrier Corporation, Defendant-Appellee.

No. 95-8425.

United States Court of Appeals Eleventh Circuit.

Jan. 22, 1997.

Joseph C. Nelson, III, Sujata Winfield, Nelson & Hill, Athens, GA, for plaintiff-appellant.

Robert E. Rigrish, Atlanta, GA, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before BIRCH, Circuit Judge, KRAVITCH, Senior Circuit Judge, and SCHWARZER ^*, Senior District Judge.

BIRCH, Circuit Judge:

This appeal raises an issue of first impression in this circuit regarding a provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), making it unlawful for an employer to retaliate against an employee for opposing a violation of Title VII: Is an employer's alleged retaliation against an employee for opposing an offensive or derogatory remark uttered by a co-worker actionable under Title VII? The district court granted summary judgment in favor of the employer on all claims. For the reasons that follow, we affirm.

I. BACKGROUND

Plaintiff-appellant, Bryan Little, is a white male who has worked for the defendant-appellee, Carrier Corporation ("Carrier") since 1987. In August, 1991, Little was assigned to work in Carrier's Test Department. Willie Wilmot, also a white employee, worked in the Quality Assurance Department. According to Little, several weeks after he began working in the Test Department, Wilmot approached him and stated: "Nobody runs this team but a bunch of niggers and I'm going to get rid of them." R1-28, Exh. F. Although Little apparently informed several co-workers about Wilmot's racially derogatory comment, he did not report the remark to either a supervisor or manager until approximately eight months later. In May, 1992, Little communicated the racial slur at a team meeting at which Wilmot was present. According to Little, the purpose of the meeting was to discuss Wilmot's continued membership on the team and, from Little's perspective, provided the appropriate forum to convey to other team members the statement Wilmot had made.

Following the meeting, Little's supervisor, Don Pursley, gave Little a "Record of Conversation" containing, in part, the following statement:

Repeating any racial slur is derogatory and offensive to some people. The use of such remarks whether said by another or not should not be used because it can cause friction between some members within a team. This may result in the team not being able to function in a team environment.

R1-28, Exh. D. Wilmot also received a similar document informing him that regardless of whether he had made the comment that gave rise to Little's accusation, Carrier would not tolerate racially offensive speech. Little contends that he was harassed continually from this point forward in retaliation for having complained about Wilmot's conduct. Specifically, he alleges that he was under constant surveillance from his supervisors, subjected to closer scrutiny and criticism, and occasionally given menial tasks to perform. ¹

In his amended complaint, Little alleged that Carrier had discriminated against him because of his opposition to the tolerance of racial slurs at the company, in violation of Title VII, the Civil Rights Act of 1991, and 42 U.S.C. § 1981. The district court granted summary judgment in favor of Carrier after finding that Little had failed to establish a prima facie case of discrimination. In reaching this conclusion, the court determined that (1) one isolated comment does not constitute an unlawful employment practice, and (2) Little had not been subjected to an adverse employment action within the meaning of Title VII.

II. DISCUSSION

We review de novo the district court's order granting summary judgment. Jameson v. Arrow, 75 F.3d 1528, 1531 (11th Cir.1996). Summary judgment is appropriate where there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). On a motion for summary judgment, we must review the record and all its inferences in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam).

A. Title VII

Under Title VII, it is an unlawful employment practice for an employer to discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). As with a discriminatory treatment claim, a plaintiff alleging a retaliation claim under Title VII must begin by establishing a prima facie case; the plaintiff must show that (1) she engaged in statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the plaintiff's protected activities. Coutu v. Martin County Bd. of County Com'rs, 47 F.3d 1068, 1074 (11th Cir.1995) (per curiam).

Having reviewed the record, we conclude that Little has failed to establish the first element of his prima facie case alleging retaliatory discrimination; that is, he has failed to show that he engaged in a statutorily protected activity. We note, at the outset, that only the Ninth Circuit has addressed the question at issue before us: Whether the expression of opposition to a single comment by one co-worker to another can constitute opposition to an unlawful employment practice as a matter of law. In Silver v. KCA, Inc., 586 F.2d 138 (9th Cir.1978), the plaintiff objected to a racially derogatory remark uttered by a co-worker, demanded and received an apology from the same co-worker, and subsequently was fired. In finding that the plaintiff had failed to establish a prima facie case of retaliatory discharge under Title VII, the Ninth Circuit resolved that the opposition of an employee to a co-worker's own individual act of discrimination "does not fall within the protection of [Title VII]." Id. at 142.

We agree with the Ninth Circuit's disposition of Silver, a case factually similar to the one at hand. As stated by that court,

[b]y the terms of the statute ... not every act by an employee in opposition to racial discrimination is protected. The opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual.

Id. at 141. We previously have held that in order to hold an employer responsible under Title VII for a hostile environment created by a supervisor or co-worker, a plaintiff must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Splunge v. Shoney's, Inc., 97 F.3d 488, 490 (11th Cir.1996). See also Silver, 586 F.2d at 142 ("Even a continuing course of racial harassment by a co-employee cannot be imputed to the employer unless the latter both knows of it and fails to take remedial action."). Here, Little's opposition to the racial remark uttered by Wilmot, a co-worker, is protected conduct within the parameters of the statute only if Wilmot's conduct can be attributed to Carrier. Based on the facts of this case, we conclude that Wilmot's racially offensive comment alone is not attributable to Carrier and, accordingly, Little's opposition to the remark did not constitute opposition to an unlawful employment practice.

Little argues that even if Wilmot's comment, either in fact or in law, does not constitute an unlawful employment practice, he nonetheless can make out a prima facie case by showing that he reasonably believed that he was opposing a violation of Title VII by his employer. We previously have recognized that a plaintiff can establish a prima facie case of retaliation under the opposition clause of Title VII if he shows that he had a good faith, reasonable belief that the employer was engaged in unlawful employment practices. See Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989). It is critical to emphasize that a plaintiff's burden under this standard has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented. It thus is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.

A plaintiff, therefore, need not prove the underlying discriminatory conduct that he opposed was actually unlawful in order to establish a prima facie case and overcome a motion for summary judgment; such a requirement "[w]ould not only chill the legitimate assertion of employee rights under Title VII but would tend to force employees to file formal charges rather than seek conciliation of informal adjustment of grievances." Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.1978). See also Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. Unit A...