Joseph L. Cooler v. Layne Christensen Company , 710 F. App'x 842 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17773
Non-Argument Calendar
________________________
D.C. Docket No. 3:15-cv-00244-MCR-CJK
JOSEPH L. COOLER,
Plaintiff-Appellant,
versus
LAYNE CHRISTENSEN COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 10, 2017)
Before MARCUS, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Joseph Cooler appeals the district court’s grant of summary judgment in
favor of Layne Christensen Company in his retaliation, race discrimination, and
hostile work environment suit brought under 42 U.S.C § 1981 and Title VII of the
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Civil Rights Act of 1964, 42 U.S.C. § 2000e. After careful review, we affirm the
grant of summary judgment as to his retaliation and race discrimination claims, and
reverse and remand as to his hostile work environment claim.
I.
A.
In June 2013, Cooler, an African American man, began working at Layne’s
Pensacola, Florida, location as a driller helper. To support his claims, Cooler
described a number of events during which his supervisors and coworkers
subjected him to racial harassment.
Eric Joiner,1 a white man, was Cooler’s supervisor at one project site. When
Cooler complained of overheating and cramps on a hot day, Eric told him to cool
down in the toolshed—a hot metal container—instead of the air-conditioned truck.
During the time Cooler was in the shed, Eric and another white employee took a
break and sat in the air-conditioned truck. Cooler was eventually allowed in the
truck, but it was too late—he had to be taken to the hospital and treated for
dehydration.
1
Cooler had two supervisors with the last name Joiner. For clarity we refer to both by
their first names.
2
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Alpo Joiner, a white man, was Cooler’s supervisor at another project site.
Alpo would call Cooler “you people” or “boy,” instead of saying his name. 2 One
time, Alpo used the “N-word” while talking to Cooler.3 Another of Cooler’s white
supervisors, Jonathan Godwin, also used the “N-word” while talking to Cooler.
Both times the “N-word” was used, the supervisors did it while telling Cooler
about a time they had received a disciplinary write-up for using the slur. Cooler
felt that the only reason they would tell him this was to see how he would react to
them using the “N-word.”
When he was not working at project sites, Cooler worked at Layne’s
warehouse in Pensacola, where his supervisor was Kenneth Ratliff. Ratliff would
sometimes delegate his authority to William Van Pelt. Both Ratliff and Van Pelt
were white men. Cooler and Godwin each testified that Van Pelt was known to
Layne employees as the “grand wizard” of the warehouse.4 Cooler also testified
that Van Pelt would refuse to speak directly with him, but would instead tell a
white person what Cooler should do while Cooler stood there. In this regard,
2
Cooler testified that Alpo also called white employees “boy” on occasion but mostly
referred to them by name. Other white Layne employees, including Eric and Andy Armstrong,
also called Cooler “boy.”
3
While Cooler used the term “N-word” when describing these episodes at his deposition,
the reasonable inference is that both Alpo and Godwin used the word “nigger” in conversation
with Cooler. See Peppers v. Cobb Cty., 835 F.3d 1289, 1295 (11th Cir. 2016).
4
In his deposition, Godwin first said “numerous people” called Van Pelt the grand
wizard, and then later said he only heard Leroy Watson and Bernard Witherspoon, two African
American employees, doing so. However, Cooler also testified that Van Pelt said to him “you
got a problem with [] me being the grand wizard?”
3
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Godwin testified that Van Pelt generally refused to speak to any employees at
Cooler’s level, including, on occasion, white employees. 5 Cooler said that the one
time Van Pelt spoke to him, Van Pelt called him “you people” as well as “boy,”
and also let him know that black people were not welcome in the break room. In
that breakroom conversation, Van Pelt said to him “you people think you can come
in here and do whatever you want.” Nevertheless, Cooler ate in the break room a
few times, usually alone. Cooler testified that he complained to other supervisors
about Van Pelt’s behavior, but they never addressed it.
Cooler also said he was subject to daily harassment. White employees,
including Eric, Alpo, and Dustin Lambert, made comments about Cooler’s hair,
which he wore in long braids. They called him “sugar pants” and said to each
other that “gays,” “faggots,” “sissies,” and girls wore their hair in braids. Cooler
reported the gay slurs to his supervisors. Cooler also saw confederate flag decals
on Eric’s and Lambert’s cars. In addition, Cooler felt he was given more
degrading assignments than his white coworkers, including anything that would get
him dirty. Then, in October 2013, Cooler began dating a white woman, at which
point his coworkers increased their hostile treatment of him. Godwin told Cooler
5
Watson testified that Van Pelt showed Watson his “KKK card.” Watson also testified
that on another occasion, Van Pelt was reacting in the break room to a local murder and said:
“That nigger came in there and killed that white woman. . . . Them police should have give us
that nigger like they used to give us them niggers, and we will hang that nigger.” The record is
unclear as to when Cooler learned of these incidents.
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directly that he was being mistreated because of his relationship with a white
woman. Cooler reported the difference in work assignments and the “racial
treatment” to his supervisors. Despite assurances that the supervisors would
investigate, they never followed up with Cooler.
B.
From April 29 to May 1, 2014, Layne held a training in Baton Rouge,
Louisiana, conducted by Don Lewison and Jason Little. Cooler attended the
training at Layne’s expense. On the final day, Cooler left training to pack his bags
and check out of his hotel room. On his way out, he asked Lewison, who was also
out of the room on a phone call, for permission to pack and take his luggage to his
car. Lewison motioned for Cooler to go ahead. When Cooler returned, he met
Little, who was looking for him. Little and Lewison thought Cooler had missed as
much as forty minutes more than the ten to fifteen minutes allowed for breaks, and
decided they could not certify him for the training. Cooler testified that he was
away from the training for a total of twenty to twenty-five minutes.
Cooler then spoke with Darryl Ross, an African American man who was a
manager at Layne. Ross submitted a declaration saying “Cooler refused to accept
any responsibility for [his] misconduct, and refused to even acknowledge that his
truancy was misconduct at all.” Because Cooler “had wasted company time and
resources” and did not accept responsibility for his conduct, Ross decided to fire
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Cooler. Ross also filled out a Disciplinary Action Form, which said Cooler argued
with the instructor when he returned from his break and that Cooler “seemed to
have an excuse or challenge supervision” throughout his employment at Layne. 6
Cooler filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). The EEOC sent Cooler a letter granting him
the right to sue. He filed suit against Layne, alleging, as relevant here: retaliation;
race discrimination; and a hostile work environment, all under § 1981 and Title
VII. Layne moved for summary judgment, which the district court granted. This
appeal followed. We address Cooler’s arguments as to each claim in turn.
II.
We review de novo a district court’s grant of summary judgment, “taking all
of the facts in the record and drawing all reasonable inferences in the light most
favorable to the non-moving party.” Peppers, 835 F.3d at 1295. Summary
judgment is proper where “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). We
will grant summary judgment if no “reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510 (1986).
6
Cooler says he did not argue with either Little or Lewison.
6
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A.
To establish a claim of retaliation under § 1981, a plaintiff must show:
(1) statutorily protected activity; (2) a materially adverse action; and (3) a causal
link between the protected activity and the adverse action.7 Goldsmith v. Bagby
Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008). Cooler challenges the district
court’s finding that he failed to show the causal connection element required to
make a retaliation claim. “We construe the causal link element broadly so that a
plaintiff merely has to prove that the protected activity and the negative
employment action are not completely unrelated.” Id. at 1278 (quotation omitted).
But when there is a substantial delay between the protected activity and the adverse
action, a plaintiff must submit other evidence supporting causation to survive
summary judgment. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th Cir. 2007) (per curiam).
Cooler admits that his firing was not close in time to his protected activity.
Instead, he argues he was fired at Layne’s first opportunity to retaliate against him.
Cooler explains that he was not disciplined in any way before the training, so
missing part of the training was the first time Layne had any excuse to fire him.
Cooler supports his “first opportunity” argument with a case from the Fourth
Circuit. See Price v. Thompson, 380 F.3d 209 (4th Cir. 2004), abrogated on other
7
The district court found Cooler abandoned his Title VII retaliation claim. Cooler does
not challenge this finding, so we do not consider that claim.
7
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grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, 133 S. Ct. 2517(2013). In Price, the plaintiff filed an EEOC complaint against the defendant after
not receiving a job, and six months later applied for another job with the defendant
without success. Id. at 211–12. In this “failure-to-hire context” the Fourth Circuit
assumed “the employer’s knowledge [of the EEOC complaint] coupled with an
adverse action taken at the first opportunity satisfies the causal connection element
of the prima facie case.” Id. at 213.
But we have very different facts here. In Price, until the plaintiff filed the
second job application, the defendant had no contact with the plaintiff, and thus no
way to retaliate against him. Here, Cooler was employed by Layne, giving Layne
a continuous opportunity to retaliate against him. And there is no record evidence
otherwise explaining the delay between Cooler’s protected activity and the adverse
action. 8 Therefore, without other evidence tending to show causation, Cooler’s
retaliation claim fails as a matter of law. See Thomas, 506 F.3d at 1364.
B.
Cooler next argues he presented enough circumstantial evidence to support a
prima facie case of race discrimination. Cooler acknowledges that he did not
8
Other circuits have found sufficient evidence to support a theory of first opportunity in
the employment context, for example, where the retaliator had just assumed a position of power
over the plaintiff. See Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 895 (9th Cir. 2005); Ford v.
Gen. Motors Corp., 305 F.3d 545, 554–55 (6th Cir. 2002). However, this case does not present
such facts.
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identify a similarly situated employee that Layne treated better than him, so he
cannot establish a prima facie case of employment discrimination under the burden
shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817 (1973). 9 However, establishing the elements of the McDonnell
Douglas framework is not the only way for a plaintiff to survive a summary
judgment motion in an employment discrimination case. Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff can still proceed
past summary judgment if he “presents a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.” Id. (quotation and footnote omitted). Therefore, a plaintiff’s
failure to find similarly situated employees “does not necessarily doom [his] case.”
Id.Cooler argues he provided evidence that he was ignored by the “grand
wizard,” Van Pelt; called “boy” and “you people” by his supervisors; and refused
air conditioning when he was showing signs of heat exhaustion. Cooler asserts
9
“Racial discrimination claims based on circumstantial evidence are evaluated under the
McDonnell Douglas burden shifting framework.” Burke-Fowler v. Orange Cty., 447 F.3d 1319,
1323 (11th Cir. 2006) (per curiam). Under that framework, a plaintiff first needs to establish a
prima facie case of discrimination. Id. A plaintiff can do this by showing “(1) she belongs to a
protected class; (2) she was subjected to adverse employment action; (3) her employer treated
similarly situated employees outside her classification more favorably; and (4) she was qualified
to do the job.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). This
analytical framework applies to both Title VII and § 1981 claims. Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
9
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these actions resulted in his receiving more demeaning work assignments, as well
as his being terminated for taking a long break at the training.
There are two reasons that Cooler’s evidence does not “present[] a
convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Id. (quotation and footnote
omitted). First, Ross, who made the decision to fire Cooler, committed none of the
discriminatory acts. See Holifield v. Reno, 115 F.3d 1555, 1563–64 (11th Cir.
1997) (per curiam) (“The biases of one who neither makes nor influences the
challenged personnel decision are not probative in an employment discrimination
case.” (quotation omitted)). Second, Cooler’s evidence is much weaker than that
in Smith, where the plaintiff demonstrated a motive to discriminate, a number of
incidents of white and black employees being treated differently, and the
employer’s conscious tracking of race in disciplinary decisions. Smith, 644 F.3d at1329–46; see also Connelly v. Metro. Atlanta Rapid Transit Auth., 764 F.3d 1358,
1364–65 (11th Cir. 2014). Cooler’s race discrimination claim therefore fails.
C.
Cooler last argues that he presented enough evidence of severe and
pervasive harassment to support his claim of a hostile work environment. Title VII
and § 1981 are violated “[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
10
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conditions of the victim’s employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370
(1993) (quotations and citations omitted); Bryant v. Jones, 575 F.3d 1281, 1296
n.20 (11th Cir. 2009). To establish a hostile work environment claim based on
race, a plaintiff must show:
(1) that he is a member of a protected class; (2) that he was subjected
to unwelcome racial harassment; (3) that the harassment was based on
his race; (4) that the harassment was severe or pervasive enough to
alter the terms and conditions of his employment and create a
discriminatorily abusive working environment; and (5) that the
employer is responsible for the environment under a theory of either
vicarious or direct liability.
Adams v. Austal, USA, LLC, 754 F.3d 1240, 1248–49 (11th Cir. 2014).
The district court found Cooler failed to show the fourth element. The
fourth element has both subjective and objective components. Jones v. UPS
Ground Freight, 683 F.3d 1283, 1299 (11th Cir. 2012). At summary judgment, we
accept that the plaintiff satisfied the subjective component, and review whether a
reasonable person would perceive that the harassment was severe and pervasive
enough to alter the terms of employment. See id. In doing so, we evaluate
whether the discriminatory conduct was (1) frequent; (2) severe; (3) physically
threatening or humiliating; and (4) an unreasonable interference to the employee’s
work. Id. We must consider the totality of circumstances in evaluating Cooler’s
claim. Id. at 1302. We “examine the conduct in context, not as isolated acts” and
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include other employees’ experiences that the plaintiff was aware of at the time.
Adams, 754 F.3d at 1250 (quotation omitted).
Cooler presents the following evidence in support of his hostile workplace
claim. Two of Cooler’s supervisors used the word “nigger” while talking with
him. While neither use of the word was directed at Cooler, Cooler felt that both
supervisors told him about instances in which they had gotten in trouble for using
the slur at work in order to gauge his reaction to their use of the word around him.
One of those supervisors, Godwin, also told Cooler he was being mistreated at
work because of his relationship with a white woman.
The other supervisor, Alpo, would call Cooler “you people” or “boy,”
instead of saying his name. And another coworker, Van Pelt, used “you people”
and “boy”—on the one occasion he was willing to speak with Cooler—in order to
tell Cooler he was not welcome in the break room. Eric also called Cooler “boy,”
and drove a car with a confederate flag decal. In addition, there was the incident in
which Cooler complained of overheating while on a project site and Eric sent him
to a hot toolshed, leaving space in the air-conditioned truck for Eric and another
white employee. Cooler also said he received more degrading assignments than
his white coworkers, including anything that would get him dirty.
“[T]he use of the slur ‘nigger’ is severe.” See id. at 1255. But we have held
that, in isolation, the use of a racial epithet on one occasion is not enough evidence
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of severe or pervasive harassment to make a hostile work environment claim.
Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008). In Adams,
this Court distinguished between supervisors using severe slurs like “nigger” to
humiliate the plaintiffs and supervisors using slurs in ways that were not “directly
humiliating or threatening.” Id. at 1253–55. Here, two of Cooler’s supervisors
used the severe slur “nigger” in an attempt to get a reaction out of him. A
reasonable person could perceive their intent was to humiliate Cooler. Also, unlike
in Butler where the incident was isolated, there is much more evidence of other
racial hostility here. Indeed, one of Cooler’s supervisors admitted to him he was
being mistreated because of his relationship with a white woman.
With regard to Cooler’s supervisors and coworkers calling him “boy” and
“you people,” the district court noted that calling a black man “boy” is “not always
evidence of racial animus.” This is because the speaker’s meaning may depend on
context. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S. Ct. 1195, 1197
(2006) (per curiam). The court added that white employees at Layne were
sometimes called “boy.” But the district court ignored the context here: Of the
people who called Cooler “boy” and “you people,” one was known at Layne as the
“grand wizard,”10 another used “nigger” when speaking with Cooler, and others
10
Cooler also may have known that Van Pelt had talked about lynching “niggers” in front
of Watson. It is not clear from the record when Cooler learned of this incident.
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called him gay slurs, 11 drove cars with confederate flag decals, or refused him—
but not white employees—air conditioning.12 A reasonable person, given that
context, could find that the word “boy” was meant with racial hostility. See
Adams, 754 F.3d at 1250.
His coworkers’ discriminatory acts also interfered with Cooler’s work. As
explained above, one of Cooler’s supervisors told him that he was being mistreated
at work because of his relationship with a white woman. Cooler was also told he
was not welcome in the break room. And Cooler felt that he received more
demeaning work than his white colleagues. Further, Cooler ended up in the
hospital after his white supervisor sent him to “cool off” in a hot toolshed, instead
of the air-conditioned truck, which the supervisor and another white employee
used for themselves. Given the totality of the circumstances, a reasonable person
could find the harassment was severe and pervasive enough to alter the terms of
Cooler’s employment. Jones, 683 F.3d at 1299, 1302. Cooler has therefore
created a genuine dispute of material fact as to the fourth element of a racial hostile
work environment claim. We remand for further proceedings on this claim.
11
A reasonable person could find that the people who regularly used gay slurs in
reference to Cooler’s hair, also called Cooler “boy and “you people” with racial animus, rather
than mere benign intent. See Ash, 546 U.S. at 456, 126 S. Ct. at 1197.
12
The district court also failed to discuss the use of racial slurs by Cooler’s supervisors in
its hostile work environment analysis, despite noting them in its fact section.
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AFFIRMED IN PART AND REVERSED AND REMANDED IN
PART.
15