United States District Court, W.D. Tennessee, Western Division
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For Equal Employment Opportunity Commissionm, Plaintiff: Faye A. Williams, Joseph M. Crout, Matthew H. McCoy, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION- Memphis, Memphis, TN.
For Skanska USA Building, Inc., Defendant: Rupert Bradley Adams, LEAD ATTORNEY, PRO HAC VICE, LITTLER MENDELSON, PC - Mobile, Mobile, AL; Jacqueline E. Kalk, LITTLER MENDELSON, PC - Minneapolis, Minneapolis, MN.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART, DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Sheryl H. Lipman, UNITED STATE DISTRICT JUDGE.
Before the Court is Plaintiff's Motion for Partial Summary Judgment (ECF No. 59), filed on November 4, 2011. Defendant filed a Response in Opposition (ECF No. 62) on December 1, 2011. Defendant also filed its own Motion for Summary Judgment on November 3, 2011. (ECF No. 54.) Plaintiff filed a Response in Opposition (ECF No. 69) on December 12, 2011 and Plaintiff filed a reply (ECF No. 81) on January 12, 2011. The case was originally decided on summary judgment, on the theory that Skanska USA Building, Inc. (" Skanska" ) was not liable because it was not an employer in this case. (See ECF No. 97.) The Sixth Circuit Court of Appeals reversed this decision and remanded the case to this Court for further proceedings. (ECF No. 109.) The parties then filed a motion to renew their previously filed motions for summary judgment. (ECF Nos. 110, 111, 112.) Subsequently, the intervening plaintiff (Maurice Knox) entered into a settlement agreement with Defendant and his claims were dismissed with prejudice. (ECF Nos. 121, 122.)
For the reasons set forth below, Defendant's Motion is GRANTED in Part and DENIED in Part and Plaintiff's Motion is GRANTED in Part and DENIED in Part.
The Equal Employment Opportunity Commission (" EEOC" ) sued Skanska on behalf of Maurice Knox, Samuel Burt, and Robert Vassar (" the individuals" ), alleging racial discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Plaintiff originally brought this claim based on the theory that Skanska was liable as a joint employer. This Court granted summary judgment in favor of Skanska, holding that Skanska was not a joint employer in this case. The Sixth Circuit reversed, holding that Skanska was indeed a joint employer under the facts alleged here, and remanded to this Court for further proceedings. Thereafter, the parties renewed their previous motions for summary judgment.
Skanksa is a general contractor. From 2007 to 2010, Skanska managed the construction of a new hospital facility in Memphis for Methodist Le Bonheur Healthcare. C-1, Inc. is a small contractor owned by Gerald Neely. Skanska hired C-1 to operate temporary elevators (" buckhoists" ) at the construction site. C-1 in turn hired several men to operate the elevator, including Maurice Knox, Samuel Burt, and Robert Vassar (all of whom are African-American). They were all allegedly subjected to extensive harassment based on their race.
Other workers at the site allegedly called Knox a " monkey" and a " nigger." Knox also claims he saw racist graffiti in the portable toilets, including the word " nigger," the phrase " niggers have to leave," and " a depiction on the toilet walls of a white person holding a shotgun and shooting a black person." Burt also claims he heard workers refer to buck-hoist operators as " niggers" and " black motherfuckers." Burt and Knox claim they complained repeatedly about the name-calling and graffiti to two of Skanska's managers,
Norberto Jiminez and Robert Jones, but that neither manager took action. Skanska removed Burt from the jobsite in June, allegedly without giving Burt or Neely a reason for his removal.
Robert Vassar claims workers would call him racial slurs " every single day" he worked at the Skanska site whenever they thought that Vassar took too long to pick them up in the buckhoist. Skanska's manager, Norberto Jimenez, could allegedly hear the slurs over the walkietalkie, but did nothing about them. When Vassar came to work using crutches, a Skanska supervisor told him to " get the hell off my jobsite" and that " [y]ou niggers always think you are heroes." Vassar believed he was fired from the jobsite after this incident and never returned. Vassar complained to Neely after he was told to leave the job site, but Neely told him there was nothing he could do about it.
On August 19, 2009, an unidentified white employee allegedly threw liquid from a portable toilet onto Knox. Knox tried to find the perpetrator but could not locate him. Knox then immediately reported the incident to Neely and Jiminez. Knox had an altercation with another contractor's employee when Knox returned to work on August 21, 2009. When Jiminez arrived on the scene to investigate, the other subcontractor's employee admitted to using racial slurs towards Knox. Jiminez sent Knox home to " calm down" but allegedly did not reprimand the other employee.
Skanska suspended C-1's contract after the August 21, 2009 incident and replaced all of the C-1 operators with Skanska employees. Neely appealed this decision to Le Bonheur Healthcare's Vice President of Facilities Management, David Rosenbaum. Rosenbaum ordered Skanska to reinstate C-1 as a subcontractor and gave C-1 permission to bring back whomever it wanted. Neely brought Knox and Burt back to work on the site on August 25, 2009. Skanska removed Knox from the site for using his cell phone while on the job on September 3. Burt remained at the site for the duration of the job, but continued to hear racial slurs every day.
STANDARD OF REVIEW
Summary judgment is proper " if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Although hearsay evidence may not be considered on a motion for summary judgment, Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003), evidentiary materials presented to avoid summary judgment otherwise need not be in a form that would be admissible at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court is to " view facts in the record and reasonable inferences that can be drawn from those facts in the light most favorable to the nonmoving party." Bible Believers v. Wayne County, 765 F.3d 578, 2014 WL 4211190, at *5 (6th Cir. 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Once a properly supported motion for summary judgment has been made, " an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). A genuine issue for trial exists if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court's role is not to weigh evidence or
assess credibility of witnesses, but simply to determine " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 2014 WL 4067748, at *3 (6th Cir. 2014) (quoting Anderson, 477 U.S. at 251--52).
I. Skanska's Motion for Summary Judgment 1. Hostile Work Environment
To prevail on a claim of hostile work environment based on race, a plaintiff must establish that: (1) plaintiff is a member of a protected class; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment was based on race; (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment; and (5) the defendant knew or should have known of the harassment and failed to act. See Waldo v. Consumers Energy Co.,726 F.3d 802, 813 (6th Cir. 2013) (quoting Williams v. CSX Transp. Co., Inc.,643 F.3d 502, 511 (6th Cir. 2011)). Skanska moves for summary judgment as to the Commission's claims of a hostile work environment suffered by Burt, Vassar, and Knox, arguing that the Commission cannot establish that the harassment of any of the individuals was sufficiently severe to create an abusive working environment and that the Commission ...