Lockett v. Webco Industries ( 2022 )

Appellate Case: 21-5041 Document: 010110673881 Date Filed: 04/21/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
CEDRICK LOCKETT,
Plaintiff - Appellant,
v. No. 21-5041
(D.C. No. 4:19-CV-00593-CVE-CDL)
WEBCO INDUSTRIES, INC., previously (N.D. Okla.)
named as Webco, Inc.,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges.
_________________________________
Cedrick Lockett, pro se, appeals the district court’s order granting summary
judgment in favor of Webco Industries, Inc. (Webco) on his claims for harassment in
violation of Title VII of the Civil Rights Act of 1964 (Title VII) and invasion of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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privacy under Oklahoma law. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.1
I. BACKGROUND
The district court found the following undisputed material facts on summary
judgment. Webco, which is in the business of manufacturing industrial tubing, hired
Mr. Lockett, who is African American, in June 2017. His primary duties included
cutting tubes to length, deburring them, and then packaging and tagging the tubes.
As a new employee, Mr. Lockett received a copy of Webco’s employee
handbook, which required any employee who experienced or witnessed
discriminatory conduct to immediately report the conduct to the appropriate manager.
The handbook further contained a workplace-violence policy that prohibited
employees from verbally or physically threating another employee.
At the time he was hired, Mr. Lockett also learned about Webco’s drug-testing
policy, which provided that “all employees will be subject to random testing for
drugs; no employee will be exempt from the possibility of a random test.” R. at 327
(brackets and internal quotation marks omitted).
Chris Opitz was the general manager at the plant where Mr. Lockett worked.
Mr. Lockett had a good working relationship with Mr. Opitz throughout most of his
employment. For example, Mr. Lockett sought advice from Mr. Opitz about a
custody dispute involving his son and Mr. Opitz loaned him money to buy new tires
1
Mr. Lockett also asserted a claim for retaliation under Title VII; however, he
later abandoned that claim.
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for his car. Mr. Lockett described Webco as a “great” place to work and credited the
company for “t[aking] great care of him.” Id. (brackets and internal quotation marks
omitted).
One day in October 2018, Mr. Lockett was talking to two white coworkers
about a loss by the Oklahoma City Thunder basketball team and used the “n” word
several times in referring to a Thunder player. Another white coworker—with the
first name Todd—overheard Mr. Lockett’s comments and used a variation of the “n”
word to provoke a reaction from Mr. Lockett, who then threatened to kick Todd’s
“ass.” Id. at 328 (internal quotation marks omitted). The incident was reported to
Mr. Opitz by one of the other coworkers.
Following an investigation, Webco determined that Todd violated the
company’s anti-harassment policy and suspended him for two days without pay.
Webco issued Mr. Lockett a verbal warning for violating its anti-harassment policy
by threatening to use physical violence against a coworker. According to
Mr. Lockett, he then requested a meeting with human resources; however, on the day
scheduled for the meeting he had a panic attack and failed to attend. In a follow-up,
Mr. Opitz was assured by Mr. Lockett that he was satisfied with the way the incident
with Todd had been handled.
In December 2018, Mr. Lockett sent Mr. Opitz a picture of some string left at
a workstation that he thought had been tied to look like a noose. The picture was
taken in July when Mr. Lockett observed the so-called noose; however, he waited
nearly five months before he reported it to Mr. Opitz. He told Mr. Opitz that he
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suspected a coworker named Darren was responsible. Following an investigation,
Mr. Opitz determined that Darren did not leave the string at the workstation, or if he
had, it was not left there to harass Mr. Lockett.2 Mr. Opitz met with Mr. Lockett to
discuss his findings and believed that the matter was resolved. In January 2019, Mr.
Lockett received a promotion to the skill level of “expert” and was also permitted to
teach a class to his coworkers. Id. at 329 (internal quotation marks omitted).
On April 25, 2019, Mr. Lockett, along with several other employees, was
randomly selected for a drug test. The testing was administered by a female medical-
review officer from One Source Occupational Medicine (One Source). Mr. Lockett’s
first urine sample was outside the acceptable temperature range and he was told that
he needed to give a second, observed sample. In response, Mr. Lockett ran out of the
building, jumped over a fence, and removed something from his car. Mr. Lockett
later testified that he thought something “fishy” was going on, so he went to his car
to retrieve his phone to record what was occurring, although he admitted it was
against company policy to make any audio or video recordings inside the plant. Id.(internal quotation marks omitted). Webco’s human resources manager informed Mr.
Lockett that if he refused to provide an acceptable urine sample his employment
would be terminated.
2
Webco produced a video demonstrating how some employees tie a loop on
the end of a separation string to make the process of securing tubes easier and
explained that Mr. Lockett may have mistaken the string with a loop on one end for a
noose.
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Eventually, Mr. Lockett agreed to a second sample and chose a Webco
supervisor to observe the test; however, when they got into the bathroom stall,
Mr. Lockett refused to allow the supervisor to watch him urinate into the cup. When
the second sample also tested outside the acceptable temperature range, Mr. Lockett
was instructed that he would have to give a third, observed sample and refusal to do
so would be treated as a positive test. Mr. Lockett said “fuck this drug test” and
walked off the job. Id. at 330 (internal quotation marks omitted). His employment
was officially terminated later that day.
After his claim was denied by the Equal Employment Opportunity
Commission, Mr. Lockett filed suit in which he asserted claims for (1) a hostile work
environment based on Todd’s use of the “n” word and the so-called noose observed
at his workstation and (2) invasion of privacy based on drug-testing procedures that
required an observer. The district court granted summary judgment in favor of
Webco. Mr. Lockett appeals.
II. STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo.”
Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006). “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute is genuine if “the evidence is such that a reasonable
[trier of fact] could return a verdict for the nonmoving party,” and a fact is material
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when it may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Moreover, “[a]lthough a pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by
lawyers, . . . this court has repeatedly insisted that pro se parties follow the same
rules of procedure that govern other litigants.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (brackets and internal quotation marks
omitted). One of those rules is Federal Rule of Appellate Procedure 28(a)(8)(A),
which requires the appellant’s brief to contain an “argument” with “appellant’s
contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.” Consistent with this requirement, “we
routinely have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007). Instead, inadequately briefed issues “will be deemed waived.”
Garrett, 425 F.3d at 841.
Here, Mr. Lockett fails to advance any adequately developed arguments on
appeal. Indeed, Mr. Lockett never mentions the district court’s order or any of the
several grounds on which it granted Webco’s motion for summary judgment, nor
does he cite to the record or provide any legal authority to support his claims for
harassment or invasion of privacy. Thus, the issues are waived. But even if
Mr. Lockett had properly challenged the order, our review reveals no error.
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III. DISCUSSION
A. Harassment
According to Mr. Lockett, Webco created a racially hostile work environment
based on Todd’s one-time use of the “n” word and someone leaving a piece of string
with a loop tied on one end at his workstation. Under Title VII, it is “an unlawful
employment practice for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin.” 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.” Herrera v. Lufkin Indus., Inc., 474 F.3d 675,
680 (10th Cir. 2007). However,
[t]o survive summary judgment on a claim alleging a racially hostile work
environment, [the plaintiff] 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.
Id. (ellipses, brackets, and internal quotation marks omitted). The plaintiff cannot
meet this burden “by demonstrating a few isolated incidents of racial enmity or
sporadic racial slurs.” Id. (internal quotation marks omitted).
But even if the plaintiff establishes a hostile work environment, the employer
is not “liable for an employee’s unlawful harassment [unless] the employer was
negligent with respect to the offensive behavior.” Kramer v. Wasatch Cnty. Sheriff’s
Off., 743 F.3d 726, 737 (10th Cir. 2014) (internal quotation marks omitted). Under a
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negligence theory, the employer is absolved of liability for the known acts of
harassment by an employee if it undertakes remedial and preventative action
“reasonably calculated to end the harassment.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 676 (10th Cir. 1998) (internal quotation marks omitted). We agree
with the district court that Mr. Lockett’s harassment claim fails for two reasons.
First, the alleged racial harassment was neither pervasive nor severe; to the contrary,
there was a single incident of alleged racial enmity and one racial slur. Second,
Webco was not negligent; rather, the company promptly investigated both incidents
and suspended Todd for two days without pay for uttering the “n” word.
B. Invasion of Privacy
According to Mr. Lockett, Webco invaded his privacy when it failed to ensure
that One Source had a male technician on site who could observe the second urine
sample and it was highly offensive to require him to give an observed sample in the
presence of a Webco supervisor. He added that his privacy was also invaded when
the supervisor touched his shoulder during the test. We agree with the district court
that Webco was entitled to summary judgment on this claim.
Oklahoma recognizes the tort of invasion of privacy. The claim has two
elements: “(a) a nonconsensual intrusion (b) which was highly offensive to a
reasonable person.” Gilmore v. Enogex, Inc., 878 P.2d 360, 366 (Okla. 1994). Under
this court’s interpretation of Oklahoma law, “an intrusion occurs when an actor
believes, or is substantially certain, that he lacks the necessary legal or personal
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permission to commit the intrusive act.” Dubbs v. Head Start, Inc., 336 F.3d 1194,
1221 (10th Cir. 2003) (brackets and internal quotation marks omitted).
The Oklahoma Supreme Court has determined drug testing in the workplace is
legal and does not invade an employee’s privacy because the employer has a
significant interest in maintaining a drug-free workplace and such testing is not
highly offensive to a reasonable person. See Gilmore, 878 P.2d at 366-67. As to the
procedures for the collection of urine samples, Oklahoma State Health Department
regulations provide that
[i]f the temperature of a specimen is outside the [acceptable range], that is a
reason to believe that the individual . . . alter[ed] or substitute[d] the
specimen, and another specimen shall be collected under direct observation
of a same gender collection site person and both specimens shall be
forwarded to the testing facility for testing.
Okla. Admin. Code § 310:638-1-8(f)(13). Moreover, the Code contemplates that a
representative of the employer may directly observe an employee giving a urine
sample to prevent tampering with the specimen. See id. at § 310:638-1-8(e) (“No
employer or representative, agent or designee of the employer shall directly observe
an applicant or employee in the process of producing a urine sample, provided
collection occurs in a manner reasonably calculated to prevent substitutions or
interference with the collection or testing of reliable samples.”).
The undisputed facts were that the first urine sample provided by Mr. Lockett
was outside the acceptable temperature range, which in turn provided legal grounds
to require a second sample with a company-designated observer to ensure the
integrity of the procedure. Thus, there was no intrusion. Moreover, the supervisor’s
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touch on Mr. Lockett’s shoulder was not an invasion of privacy because it would not
be highly offensive to a reasonable person. Mr. Lockett argued the observer
“grab[bed]” his shoulder in an “attempt[] to turn [him] around” because Mr. Lockett
had turned his body to obstruct the observer’s view. R. at 282. We agree with the
district court that, under the circumstances, this would not be highly offensive to a
reasonable person, and Oklahoma law clearly establishes that Webco had the legal
authority to require [Mr. Lockett] to participate in a drug testing program and require
an observed sample under the circumstances present in this case.” R. at 339-40.
Although “[Mr. Lockett] may subjectively believe that the testing procedures were an
invasion of privacy, . . . he has not shown that Webco lacked legal authority to
require a second observed sample or that the testing procedures were highly offensive
to a reasonable person.” Id. at 340.
IV. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Joel M. Carson III
Circuit Judge
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