Joseph Carter v. Atrium Hospitality ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1192
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Joseph Carter
lllllllllllllllllllllPlaintiff - Appellant
v.
Atrium Hospitality
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: January 12, 2021
Filed: May 17, 2021
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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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KELLY, Circuit Judge.
Joseph Carter was a Front Desk Clerk at the Sheraton Hotel in West Des
Moines, Iowa. In 2017, Atrium Hospitality, which manages the hotel, terminated
Carter’s employment after an internal investigation found that he allowed a hotel key
card to fall into the hands of unauthorized guests. Shortly thereafter, Carter filed a
complaint with the Iowa Civil Rights Commission (ICRC). He later filed suit in state
court asserting claims for race discrimination, failure to promote, and hostile work
environment in violation of the Iowa Civil Rights Act (ICRA). See Iowa Code
§ 216.6(1)(a) (2018). Atrium removed the case to federal court on the basis of
diversity jurisdiction, and the district court1 subsequently granted summary judgment
in favor of Atrium on each of Carter’s claims. Carter now appeals.
I.
Atrium hired Carter as a Front Desk Clerk in March 2015. In that role, he was
responsible for checking guests in and out of the hotel, issuing room keys, and
resolving guest requests. Carter, a Black man, says that he repeatedly experienced
race discrimination and harassment during his employment with Atrium. As
evidence, he points to racial slurs made by nonsupervisory employees at the hotel as
well as hiring decisions that resulted in non-Black applicants being chosen to fill
positions he applied for.
In a letter attached to his ICRC complaint, Carter states that maintenance
workers at the hotel persisted in calling him “boy” the “entire time” he worked there,
despite his repeated complaints to management. The record also shows that, on
January 16, 2016, an anonymous caller informed Atrium’s Ethics Line that another
Front Desk Clerk, Matt Glenn, had called Carter a “stupid n---er” during a recent
argument. Atrium interviewed Carter as part of its investigation into this incident.
Notes from the interview state that, although Carter heard Glenn use the word “n---
er,” it was “not towards anyone and he was probably repeating it because [Carter]
sa[id] it sometimes.” When asked whether any other Atrium employee had ever
called him “a derogatory name,” Carter responded, “No.” Because Carter acknowl-
edged using the n-word, Atrium issued both him and Glenn written disciplinary write-
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
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ups at the conclusion of the investigation for using “foul language” that “created a
hostile work environment.”
In January 2017, Atrium received another anonymous complaint of race
discrimination through the Ethics Line. The caller alleged that Atrium “treat[s] Black
employees differently than others. This is shown by write-ups and cutting hours.”
Atrium spoke with Carter as part of its investigation into the complaint. He expressed
frustration that Atrium had trained him to carry out the responsibilities of the Night
Auditor position yet provided few opportunities for him to perform that role. It is
undisputed, however, that Carter was not a Night Auditor and instead merely filled
in from time to time for the person who held that role.
During Carter’s deposition, he brought up several additional instances of
nonsupervisory Atrium employees calling him racial slurs during 2016 and 2017.
None of these incidents are mentioned in his ICRC complaint. Carter was unable to
provide specifics about these incidents, but he claims that maintenance employees
repeatedly used language such as “porch monkeys,” “lazy n---ers,” and “cotton
picking” around him, despite him reporting their comments to management. Carter’s
Manager as well as the hotel Front Desk Manager, Human Resources Director, and
General Manager all denied hearing complaints about any Atrium employee using
racial slurs at the West Des Moines Sheraton, including against Carter.
In addition to experiencing racial slurs during his employment with Atrium,
Carter asserts the company engaged in discriminatory hiring practices. At issue are
the Assistant Front Office Manager positions Carter applied for in 2016. He contends
his Manager told him that Atrium would not promote him to Assistant Front Office
Manager because he was Black. Atrium indeed hired three other individuals for the
positions, none of whom are Black, rather than promoting Carter.
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The following year, in April 2017, Atrium terminated Carter’s employment
after determining that he was responsible for allowing a hotel key card to come into
the possession of unauthorized guests. On April 16, 2017, a Domino’s Pizza
deliveryman arrived at the West Des Moines Sheraton to deliver a pizza to Room 617.
When he was unable to get in touch with the room’s occupants, the deliveryman
asked the Front Desk Manager to call them. But the hotel’s booking software
revealed that the room was neither occupied by nor reserved for any Sheraton guest,
and was in fact marked out of service. When a young girl came down to the lobby to
collect the pizza, hotel security followed her and observed her entering Room 617.
The Front Desk Manager called the police, and law enforcement discovered a man
and two girls in the room as well as evidence of illegal drug use.
During Atrium’s investigation into the incident, Carter admitted that he made
a key card for the room despite it not being booked, marked the room out of service,
and took the key card off hotel premises. A report generated by Atrium’s key system
revealed that the key the unauthorized guests used to access Room 617 was the same
one generated by Carter. At the conclusion of its investigation, Atrium terminated
Carter’s employment. He acknowledged during his deposition that Atrium fired him
over the key incident.
On May 10, 2017, Carter filed a complaint with the ICRC alleging harassment,
failure to promote, and wrongful termination. After pursuing his claims before the
ICRC, he filed suit in Iowa state court. Atrium removed the case to federal court, and
the district court subsequently granted summary judgment in Atrium’s favor.2
2
Carter had also alleged retaliation but voluntarily dismissed that claim after
the parties completed summary judgment briefing.
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II.
We review the district court’s grant of summary judgment de novo, drawing all
reasonable inferences in Carter’s favor. Turner v. XTO Energy, Inc., 989 F.3d 625,
627 (8th Cir. 2021). Summary judgment is warranted if “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). To defeat summary judgment, “the nonmoving party must
come forward with ‘specific facts showing that there is a genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (cleaned
up) (quoting Fed. R. Civ. P. 56(e)).
III.
Carter asserts claims under the ICRA, which prohibits employers from
discriminating against employees or applicants for employment on the basis of race.
See Iowa Code § 216.6(1)(a). As the ICRA was modeled after Title VII of the Civil
Rights Act of 1964, Iowa courts often “turn to federal law for guidance” on
adjudicating claims under the state employment discrimination statute. Vivian v.
Madison, 601 N.W.2d 872, 873 (Iowa 1999). Yet Iowa courts are “not bound by
federal law, despite [their] consistent utilization of the federal analytical framework.”
Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003).
Although both parties agree that Iowa law governs, they disagree about the
causal standard we apply to ICRA race discrimination and failure to promote claims
at summary judgment. Atrium asserts we must apply the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), whereas
Carter argues that, under Iowa law, we are bound to apply the motivating factor
analysis developed in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality
opinion).
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This same disagreement came before the Iowa Supreme Court in Hedlund v.
State, but the court declined to address it squarely. 930 N.W.2d 707, 719 (Iowa
2019). Historically, Iowa courts have applied the McDonnell Douglas framework to
ICRA claims at summary judgment when there is no direct evidence of discrimina-
tion. See, e.g., Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa 2005); Landals v. George A.
Rolfes Co., 454 N.W.2d 891, 893 (Iowa 1990). But, in Hawkins v. Grinnell Regional
Medical Center, the Iowa Supreme Court held that the court would “no longer rely
on the McDonnell Douglas burden-shifting analysis and determinating-factor
standard when instructing the jury” in an ICRA case. 929 N.W.2d 261, 272 (Iowa
2019). Instead, courts applying Iowa law must now use the Price Waterhouse
motivating factor standard at trial, which permits an employer to assert the defense
that it would have made the same employment decision even had it not taken into
account the plaintiff’s race or membership in another protected class. Id.; see also
Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1017
(2020) (summarizing the Price Waterhouse framework and same-decision affirmative
defense). Hedlund, however, reassured courts that Hawkins “did not disturb [the
Iowa Supreme Court’s] prior law as it applies to summary judgment.” Hedlund, 930
N.W.2d at 719 n.8. Accordingly, absent further instruction from the Iowa Supreme
Court to the contrary, we will continue to apply the McDonnell Douglas framework
to ICRA discrimination claims at summary judgment. Accord Couch v. Am. Bottling
Co., 955 F.3d 1106, 1110 (8th Cir. 2020) (reaching this same conclusion).
Under McDonnell Douglas, Carter has the initial burden to establish a prima
facie case for his race discrimination and failure to promote claims. See Pye v. Nu
Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). Successfully doing so “creates a
rebuttable presumption of discrimination” and shifts the burden to Atrium to produce
“a legitimate, nondiscriminatory reason for its decision.” Id. If Atrium provides such
a reason, “the presumption disappears” and the burden returns to Carter to present
evidence “that the proffered reason was pretext for discrimination.” Id. (citing Lake
v. Yellow Transp., Inc., 596 F.3d 871, 873–74 (8th Cir. 2010)). The district court
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determined that Carter’s claims for race discrimination and failure to promote failed
at the prima facie stage and that, even if he had met the elements of his prima facie
case, he would be unable to establish pretext on this record.
To make out a prima facie case of race discrimination, Carter must show that:
(1) he “is a member of a protected class,” (2) he met Atrium’s “legitimate expecta-
tions,” (3) he “suffered an adverse employment action,” and (4) “the circumstances
give rise to an inference of discrimination (for example, similarly situated employees
outside the protected class were treated differently).” Carter v. Pulaski Cnty. Special
Sch. Dist., 956 F.3d 1055, 1058 (8th Cir. 2020) (quoting Macklin v. FMC Transp.,
Inc., 815 F.3d 425, 427 (8th Cir. 2016)). Atrium does not contest that Carter, a Black
man whose employment Atrium terminated, has met the first, second, and third
elements. The parties disagree only on the fourth element—whether the circum-
stances warrant an inference of discrimination.
Carter contends the circumstances suggest discrimination because he was
disciplined for conduct that Atrium’s white employees engaged in with impunity. For
example, he asserts he was disciplined for being on Facebook and using his cell
phone at work and for failing to account for missing bills from the lobby cash drawer,
while other white employees were not. But Carter acknowledges that he was fired
over the hotel key incident, rather than as a result of these comparatively minor
infractions. He has not presented evidence of any situation in which a white Atrium
employee took a hotel room out of service, made a key to it, and then allowed
unregistered guests to gain possession of the key, without being fired as a result. Nor
is there evidence of white Atrium employees engaging in comparably serious
misconduct without experiencing similarly harsh employment consequences. As
such, Carter has not shown that similarly situated employees outside of his protected
class were treated more favorably than him after engaging in similar misconduct. See
Pye, 641 F.3d 1019 (explaining that to be similarly situated employees must be
“involved in or accused of the same or similar conduct and . . . disciplined in different
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ways” (cleaned up) (quoting Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir.
2009))).
Further, although a plaintiff can satisfy the fourth element of the prima facie
case with evidence of “biased comments by a decisionmaker,” Pye, 641 F.3d at 1019,
the racial slurs Carter experienced at Atrium were made by maintenance workers, a
fellow Front Desk Clerk, and other unidentified employees, none of whom Carter
claims exercised authority over employment decisions at the company. See Lewis v.
Heartland Inns of Am., LLC, 591 F.3d 1033, 1041 (8th Cir. 2010) (describing a
decisionmaker as someone “with authority to hire and fire employees”). Under these
circumstances, Carter has not presented evidence that the context of his termination
warrants an inference of discrimination. Summary judgment in favor of Atrium on
the race discrimination claim was therefore appropriate.
We next consider whether Carter carried his burden of establishing a prima
face case of race discrimination in the context of Atrium’s decision not to promote
him to Assistant Front Office Manager. In the hiring context, a plaintiff seeking to
prove race discrimination must make a prima facie showing that: (1) he “is in a
protected class,” (2) he “was qualified for [the] position,” (3) he “was denied that
position,” and (4) “[the employer] filled the position with a person not in the same
protected class.” Nelson v. USAble Mut. Ins. Co., 918 F.3d 990, 993 (8th Cir. 2019)
(quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1046 (8th Cir. 2011) (en
banc)).
Although the parties agree that Carter belongs to a protected class, that he was
denied the promotion, and that none of the three individuals Atrium hired for the
Assistant Front Office Manager are Black, they dispute whether Carter was qualified
for the position. Presumably for this reason the district court assumed without
deciding that Carter satisfied his burden of establishing a prima facie case for failure
to promote. The court nonetheless entered summary judgment in favor of Atrium
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because Carter did not present evidence that the company’s stated reason for denying
him promotion was pretextual.
Atrium avers that the three individuals it hired for the Assistant Front Office
Manager position were more qualified than Carter. This is a satisfactory nondiscrimi-
natory justification for its hiring decision. See Torgerson, 643 F.3d at 1047 (“The
burden to articulate a nondiscriminatory justification is not onerous, and the
explanation need not be demonstrated by a preponderance of the evidence.” (quoting
Floyd v. Mo. Dep’t of Soc. Servs., Div. of Fam. Servs., 188 F.3d 932, 936 (8th Cir.
1999))). The burden thus returns to Carter to present evidence that Atrium’s
proffered reason for denying him promotion was “a mere pretext for intentional
discrimination.” Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 650 (8th Cir. 2001).
The record shows that the first of the three Assistant Front Office Managers
Atrium hired was a former Atrium employee with a great track record at the company
who had left to attend hospitality school. The second had an undergraduate degree
in event management. And the third served as a Night Auditor at another hotel for
five years, which both parties acknowledge represents management experience. In
contrast, Carter had no formal hospitality or event management education, lacked
management experience, and received a number of disciplinary write-ups from
Atrium before being passed over for promotion. In addition, the record shows that
Atrium has hired Black men for the Assistant Front Office Manager position in the
past. Even drawing all reasonable inferences in Carter’s favor, after a careful review
of the record we conclude that he has not presented evidence to show that Atrium’s
stated reason for declining to promote him was “not the true reason,” but rather a
“pretext for discrimination.” Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir.
1997) (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)).
Summary judgment on the failure to promote claim was warranted.
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Finally, we examine the district court’s entry of summary judgment on Carter’s
hostile work environment claim. The district court deemed this claim untimely
because almost all of the incidents of harassment Carter relies on to support it
occurred outside the ICRA’s statute of limitations. Under the statute, a plaintiff must
file a complaint with the ICRC “within three hundred days after the alleged
discriminatory or unfair practice occurred.” Iowa Code § 216.15(13). Because Carter
filed his complaint with the ICRC on May 10, 2017, any incidents of harassment that
occurred before July 15, 2016 are presumptively non-actionable. But even though the
vast majority of the discriminatory comments and conduct Carter describes indeed
occurred before this date and as such cannot provide an independent factual basis for
his hostile work environment claim, we may nonetheless consider “the entire time
period of the hostile environment . . . for the purposes of determining liability” so
long as he presents evidence of “an act contributing to the claim [that] occur[ed]
within the filing period.” Farmland Foods, Inc. v. Dubuque Hum. Rts. Comm’n, 672
N.W.2d 733, 741 (Iowa 2003) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 117 (2002)).
Carter’s letter to the ICRC and his deposition testimony provide at least some
evidence of racial harassment that occurred after July 15, 2016, including mainte-
nance workers calling him “boy” throughout his employment with Atrium and using
racial slurs on unspecified dates during 2016 and 2017. Although Carter’s
deposition testimony is to some extent inconsistent with statements he made in his
letter to the ICRC, we do not consider it so plainly self-serving or at odds with the
letter such that we should discount it. Cf. Stewart v. Rise, Inc., 791 F.3d 849, 861
(8th Cir. 2015) (“We may discount a plaintiff’s self-serving affidavit or deposition
testimony as a matter of law where it clearly contradicts the plaintiff’s earlier
testimony under oath and where the plaintiff offers no explanation for the
inconsistencies.”). Because Carter presented evidence of race-based harassment that
occurred within the statute of limitations period, his hostile work environment claim
is timely. See Farmland Foods, 672 N.W.2d at 741; Morgan, 536 U.S. at 117.
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To establish a hostile work environment, Carter must show that: (1) he
“belongs to a protected group,” (2) he “was subjected to unwelcome harassment,” (3)
“the harassment was based on a protected characteristic,” and (4) “the harassment
affected a term, condition, or privilege of employment.” Farmland Foods, 672
N.W.2d at 744. Where, as here, “the harassment [was] perpetrated by a
nonsupervisory employee, the plaintiff must [also] show the employer knew or should
have known of the harassment and failed to take proper remedial action.” Id.(cleaned up) (quoting Stuart v. Gen. Motors. Corp., 217 F.3d 621, 631 (8th Cir.
2000)).
The fourth element of a hostile work environment claim, which requires a
plaintiff to show that the “harassment affected a term, condition, or privilege of
employment,” id., “involves both objective and subjective components,” Sandoval
v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 801 (8th Cir. 2009). Accordingly, to
prevail on the claim Carter must demonstrate both that the cumulative use of racial
slurs created “an environment that a reasonable person would find hostile or abusive,”
and that he “subjectively perceive[d] the environment to be abusive.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Construing the evidence favorably to
Carter, he has shown that he belongs to a protected group, that he was subjected to
unwelcome harassment, and that the harassment was based on a protected characteris-
tic, namely, race. Whether the record contains evidence that the harassment Carter
experienced was so severe as to alter the conditions of his employment is a closer
question.
The racial slurs Carter describes experiencing at work are inexcusable. We do
not question that use of such epithets may form the basis for a successful hostile work
environment claim. See Simon Seeding & Sod, Inc. v. Dubuque Hum. Rts. Comm’n,
895 N.W.2d 446, 469–70 (Iowa 2017). But even assuming the racial harassment
Carter experienced was “severe or pervasive enough to create an objectively hostile
or abusive work environment,” his claim falters because he has not shown that he
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“subjectively perceive[d] the environment to be abusive.” Harris, 510 U.S. at 21; see
Gibson v. Concrete Equip. Co., 960 F.3d 1057, 1064 (8th Cir. 2020). Our precedent
suggests that conduct which “may have certainly offended” an employee does not
necessarily “subjectively alter the conditions of his employment.” Anderson v.
Durham D&M, L.L.C., 606 F.3d 513, 520 (8th Cir. 2010). Cf. Ellis v. Houston, 742
F.3d 307, 319 (8th Cir. 2014) (finding plaintiffs’ testimony that they experienced
“anxiety, dread, and panic attacks,” that “they felt like they were being treated more
like inmates than fellow officers,” and that “they had previously enjoyed going to
work but now found the job to be depressing and anxiety producing,” among other
stress and trauma, sufficient to demonstrate that they subjectively perceived “severe
and pervasive” harassment). Here, Carter testified that Atrium employees called him
by racial slurs on several occasions, and he said that he was offended and bothered
by this conduct. But he provides few details about when, where, or in what context
the incidents occurred, and he offers no description of how the misconduct impacted
his subjective experience in the workplace.
On this record, Carter has not shown that he experienced the workplace as
abusive or that he felt that the harassment was so severe that it in effect altered the
terms of his employment. As such, he has not satisfied the fourth element of his
hostile work environment claim. The district court did not err in granting summary
judgment to Atrium.
IV.
The district court’s entry of summary judgment is affirmed.
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