Richardson v. Tri-State Iron and Metal Co.

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

REGINALD D. RICHARDSON PLAINTIFF

v. Case No. 4:19-4095

TRI-STATE IRON AND METAL CO. DEFENDANT

ORDER

Before the Court is a Report and Recommendation prepared by the Honorable Barry A.

Bryant, United States Magistrate Judge for the Western District of Arkansas. ECF No. 75.

Plaintiff has filed objections (ECF No. 76) and Supplements to Objections. ECF No. 77. The

Court finds the matter ripe for consideration.

I. BACKGROUND

On August 19, 2019, Plaintiff filed his pro se Complaint and alleged two claims of unlawful

discrimination against his former employer Tri-State Iron and Metal Co. (“Defendant”). ECF No.

1. Plaintiff, an African American, is currently incarcerated in the Arkansas Department of

Correction, Randall L. Williams Correctional Facility. Plaintiff, while incarcerated, participated

in a work-release program where he was employed at Defendant’s scrap metal processing facility.

First, Plaintiff claims that Defendant subjected him to an unlawfully hostile work

environment due to his race. ECF No. 1, p. 4. Plaintiff lists several incidents he believes created

this hostile work environment:

A. Plaintiff describes how on December 13, 2017, his supervisor, Gary Griffin (“Griffin”),

and he had an encounter where Griffin responded by saying “Why every time your kind . .

. . Hey from here on out when I ask you to do something don’t respond just do it. If you do

respond address me by saying yes sir, that is if you like working here.” ECF No. 1, p. 4-

5;

B. Plaintiff describes a February 2, 2018, conversation with Griffin regarding the Super

Bowl where Griffin referred to Plaintiff as “you motherf***er.” ECF No. 1, p. 5-6;

C. Plaintiff states, that following that Super Bowl incident he learned from some night

shift employees that Griffin had made “numerous derogatory statements indicating his

dislike towards” him. Plaintiff states Griffin’s dislike for him caused co-workers to be

“reluctant to work with” him. ECF No. 1, p. 6-7;

D. Plaintiff describes how on March 9, 2018, he was singing at work and Griffin responded

by asking what Plaintiff was singing and stating Plaintiff sounded like a “f***ing idiot”.

ECF No. 1, p. 7-8;

E. Plaintiff describes how on April 18, 2018, he removed his hard hat because he was

sweating profusely. Griffin became upset seeing Plaintiff not wearing his hard hat and said

“Motherf***er I must have told your black ass a hundred times about wearing your P.P.E’s

(personal protective equipment) at all times while you are on the yard! Your kind don’t

ever f***ing listen!” I’ve told your monkey ass that the [safety inspection people] can pop

up at any time, and if they see you without your P.P.E’s on then they will fine us! Do you

understand what the f*** I’m saying? We are not going to be fined because of your dumb

ass . . . .” ECF No. 1, p. 8-11; and

F. His employer, Tri-State Iron and Metal Company, did not give him overtime work

despite making a promise to do so. ECF No. 1, p. 11-13.

During a deposition, Plaintiff also described an instance in which an employee joked that a new

time clock system might need to also have instructions in “Ebonics.” ECF No. 62-1, p. 32-33.

Plaintiff’s second claim against Defendant is for unlawfully discharging him from

employment in retaliation for complaints about his work environment. ECF No. 1, p. 13-14.

Specifically, Plaintiff alleges that his work-release was terminated because a co-worker informed

a separate employee of Defendant, Chris Moerke1 (“Moerke”), about their shared complaints

regarding supervisor Griffin and their desire to work a different shift away from Griffin. Id. at p.

14-24. Plaintiff alleges that his termination is connected because he had prior discussions with

that co-worker regarding shared complaints about working for supervisor Griffin and their hopes

to speak with the plant manager about him. Id. at p. 15-20. Plaintiff brings his discrimination

claims pursuant to: (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

et seq. (“Title VII”); (2) the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”); and, (3)

the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-123-101 et seq. (“ACRA”). Id. at p.

1.

Defendant filed a Motion for Summary Judgement. ECF No. 60. Defendant argues that

Plaintiff fails to make a prima facie case for both claims and thus is entitled to judgement as a

matter of law. ECF No 62, p. 2. First, Defendant contends that Plaintiff has not made a prima

facie case for his hostile work environment claim because he has failed to connect his race to the

harassment he alleges and because he has failed to show how the harassment affected a term or

condition of his employment. Id. at p. 5-9. Second, Defendant contends that Plaintiff has not

made a prima facie case for unlawful retaliation because he has failed to establish a genuine issue

of fact as to any of the three elements required. Id. at p. 9-14. Defendant contends that Plaintiff

failed to show that he engaged in protected activity, that he was discharged by Defendant, and that

the discharge is causally related to engaging in protected activity. Id. at p. 9-14. Plaintiff has

1 Plaintiff states that Moerke was the assistant plant manager (ECF No. 1, p. 15), but Defendant refutes that by

noting that Moerke’s official position is “nonferrous crew leader.” ECF No. 62-3, p. 1.

filed a Response (ECF No. 64) to Defendant’s Motion for Summary Judgment. Plaintiff primarily

argues that there is adequate proof in the record to show that his work environment was hostile

and that Defendant, not a prison official, discharged him from the work release program. Id. at p.

7-12.

On March 11, 2021, Judge Bryant issued his Report and Recommendation (ECF No. 75)

on Defendant’s Motion for Summary Judgment. Judge Bryant recommends that Defendant’s

motion be granted and that Plaintiff’s claims be dismissed with prejudice. Id. at p. 7. On April 1,

2021, Plaintiff filed objections to Judge Bryant’s recommendations. ECF No. 76. On April 15,

2021, Plaintiff filed Supplements to the objections. ECF No. 77.

II. Legal Standard

“Summary judgment is appropriate 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.” Hess v. Union Pac.

R.R. Co., 898 F.3d 852, 856 (8th Cir. 2018) (citation omitted). Summary judgment is a “threshold

inquiry of . . . whether there is a need for trial—whether, in other words, there are genuine factual

issues that properly can be resolved only by a finder of fact because they reasonably may be

resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A

fact is material only when its resolution affects the outcome of the case. See id. at 248. A dispute

is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either

party. See id. at 252.

In deciding a motion for summary judgment, the Court must consider all the evidence and

all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving

party. See Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The

moving party bears the burden of showing that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747

(8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the

record that create a genuine issue for trial. See Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th

Cir. 1995). However, a party opposing a properly supported summary judgment motion “may not

rest upon mere allegations or denials . . . but must set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 256. Summary judgment determinations are not

unique for discrimination cases and “district courts should not ‘treat discrimination differently

from other ultimate questions of fact.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th

Cir. 2011) (quotation omitted). “Although employment discrimination cases are ‘often fact

intensive and dependent on nuance in the workplace, they are not immune from summary

judgment.’” Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 459 (8th Cir. 2011) (quotation

omitted).

A court conducts a “de novo” review of any portion of a report prepared by a magistrate to

which an objection is made. 28 U.S.C. § 636(b)(1) (2006). Generally, “objections must be timely

and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d 356, 358-59 (8th Cir. 1990).

The Court applies a liberal construction when determining whether pro se objections are specific.

See Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995). Courts should apply a “clearly

erroneous” standard of review to the portions of a magistrate judge’s report and recommendation

to which no objections have been made. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.

1996). In doing so, the Court “need only satisfy itself that there is no clear error on the face of the

record.” Fed. R. Civ. P. 72 advisory committee’s note, subd. (b).

III. Discussion

In the absence of direct evidence, discrimination claims under Title VII, ACRA, and

Section 1981 are analyzed under the McDonnel Douglas burden-shifting framework. See DePriest

v. Milligan, 823 F.3d 1179, 1185-86 (8th Cir. 2016) (applying McDonnel Douglas burden-shifting

framework to discrimination claims under ACRA and Title VII); Sayger v. Riceland Foods, Inc.,

735 F.3d 1025, 1030-1031 (8th Cir. 2013) (applying burden-shifting framework to discrimination

claim under section 1981). Under this framework, the plaintiff must make a prima facie case of

discrimination under the circumstances, which then places the burden on the defendant to offer a

legitimate non-discriminatory reason for any action. See DePriest v. Milligan, 823 F.3d at 1185-

86 (citations omitted). If the defendant meets that burden, then plaintiff must show that the reason

offered by the defendant for the action is pretextual for unlawful discrimination. See id at 1185-

86.

A. Claim of Hostile Work Environment

First, the Court will address Plaintiff’s claim of a hostile work environment.

Plaintiff alleges that he was subjected to a hostile work environment based on alleged

derogatory comments made by his supervisor, Gary Griffin, and the Defendant denying him

Saturday overtime work. To make a prima facie claim of a race-based hostile work environment

“a plaintiff must show that: (1) he or she is a member of a protected group; (2) he or she is subjected

to unwelcome race-based harassment; (3) the harassment was because of membership in the

protected group; and (4) the harassment affected a term, condition, or privilege of his or her

employment.” Singletary v. Missouri Dept. of Corrections, 423 F.3d 886, 892 (8th Cir. 2005)

(citation omitted). “A hostile work environment exists when ‘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.’” Smith v.

Fairview Ridges Hosp., 625 F.3d 1076, 1083 (8th Cir. 2010) (quotation omitted). The environment

has to be both objectively hostile to a reasonable person and subjectively hostile to the plaintiff.

See Sallis v. University of Minn., 408 F.3d 470, 476 (8th Cir. 2005).

All circumstances need to be examined to determine if the work environment is objectively

offensive. See Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004). “Relevant

factors for determining whether conduct rises to the level of harassment include the ‘frequency of

the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a

mere offensive utterance; and whether it unreasonably interfered with an employee's work

performance.’” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1018 (8th Cir. 2011) (quotation omitted). “A

hostile work environment exists when the workplace is dominated by racial slurs, but not when

the offensive conduct consists of offhand comments and isolated incidents.” Bainbridge v.

Loffredo Gardens, Inc., 378 F.3d at 759. Title VII does not enforce a general code of civility for

the workplace and conduct that is simply rude and unpleasant cannot support a claim of a hostile

work environment. See Wilkie v. Department of Health and Human Services, 638 F.3d 944, 953

(8th Cir. 2011) (citation omitted).

Judge Bryant’s Report and Recommendation concludes that Plaintiff has failed to make a

prima facie case for hostile work environment. ECF No. 75, p. 5. First, Judge Bryant finds that

Plaintiff has not shown that the harassing behaviors he describes were based on his race. Id. Judge

Bryant notes that the April 18, 2018, incident with Griffin saying “black ass” and the undated

incident involving the joke about “Ebonics” are the only two instances in which direct references

to Plaintiff’s race were made. Id. He finds that while comments like these can certainly be deemed

offensive, they were too infrequent to establish that the harassment Plaintiff alleges was caused by

his race. Id. (citing EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 687 (8th Cir. 2012)).

Plaintiff objects to Judge Bryant’s conclusion that Plaintiff failed to alleged facts connecting the

harassment to his race. ECF No. 76, p. 34. Plaintiff argues that a prior recommendation (ECF No.

40, p. 2-5) by Judge Bryant concluding that Plaintiff had pleaded his first claim adequately, and

the order by this Court adopting that recommendation (ECF No. 49), show that he has made a

satisfactory prima facie case for this element. ECF No. 76, p. 34-37.

The Court finds that Judge Bryant’s conclusion is sound. Judge Bryant’s reasoning is

supported by Plaintiff only alleging two instances when his race was directly connected to

statements made by employees of the Defendant. Only the April 18, 2018 statements by Griffin

were directed at Plaintiff and it is the only incident that involved what could be considered a racial

slur. Plaintiff’s objection regarding the prior orders on pleadings mistakes the lower standard a

pleading is required to meet compared to what opposition to summary judgment must show. A

pleading must simply allege facts that make a claim more than speculative and does not have to be

probable for success on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Here,

Plaintiff cannot rest on mere denials of the facts put forth by Defendant and state that his adequate

pleading allows him to survive Defendant’s motion for summary judgment. See Anderson, 477

U.S. at 256. The facts put forth in Plaintiff’s pleadings regarding derogatory comments are

insufficient to make a prima facie claim and Plaintiff has not alleged any new facts or provided

new evidence for this aspect of his claim. Additionally, Plaintiff’s allegations regarding not being

selected to work Saturday overtime do not directly relate to his race. His issue with not getting

overtime is tied entirely to another employee having worked for Defendant a shorter length of time

and not being as deserving as Plaintiff. (ECF No. 64, p. 8-10; ECF No. 76, p. 37-42). He never

alleges or puts forth evidence that the less deserving employee was of a different race or was

chosen for the work because of that difference. Accordingly, the Court finds that Plaintiff has not

sufficiently connected the alleged harassment to his race.

Judge Bryant also concludes that Defendant’s alleged failure to give the Plaintiff overtime

work on Saturdays was insufficient to create a hostile work environment. ECF No. 75, p. 5. He

based this conclusion on Plaintiff’s failure to show how denial of overtime work affected a term

or condition of his employment, the fourth element of his prima facie case. Id. The Court finds

that Judge Bryant’s ultimate conclusion is sound. However, there appears to be confusion among

the parties and within Judge Bryant’s recommendation as to the nature of the allegation and the

fourth element of Plaintiff’s hostile work environment claim. Plaintiff initially listed not being

chosen to work overtime on Saturdays as a circumstance that contributed to his hostile work

environment. ECF No. 1, p. 11-12. However, Defendant’s summary judgment motion treated the

lack of Saturday overtime work itself as making up the fourth element of the claim, that it “affected

a term, condition, or privilege of his employment.” Singletary v. Missouri Dept. of Corrections,

423 F.3d at 892. The parties thereafter, and Judge Bryant’s recommendation on their arguments,

treat this alleged circumstance as potentially the fourth element standing alone.

The Court believes this is a mistake.2 The focus of the fourth element of a hostile work

environment claim is whether the severity and frequency of race based harassment rises to such a

level that it has altered the conditions of employment through creating an impermissibly abusive

environment. See Smith v. Fairview Ridges Hosp., 625 F.3d at 1083. Instances when an employee

believes they were denied opportunities and benefits they deserved on account of their race

contributes to the overall circumstances that potentially create hostile work environment and are

not encapsulations of the fourth element. See Clay v. Credit Bureau Enterprises, Inc., 754 F.3d

535, 537-540 (8th Cir. 2014) (treating incidents where a plaintiff alleged they were denied use of

employment benefits and not given leadership opportunities as circumstances that could contribute

to the overall claim for a hostile work environment, and not the crux of the fourth element).

2 The parties may have inadvertently conflated the fourth element of the hostile work environment claim with the

second element of Plaintiff’s retaliation claim, which requires that Plaintiff suffer a “materially adverse employment

action.” See Jackman v. Fifth Judicial Dist. Dept. of Correctional Services, 728 F.3d 800, 804 (8th Cir. 2013).

Analyzing Plaintiff’s claim accordingly, the Court still finds that he has failed to allege

sufficient facts to establish the fourth element of his prima facie case. Most of the comments by

Griffin to the Plaintiff during this 5-month period were simply rude and vulgar in nature. There

were only two instances that involved comments regarding race and only one of those instances

could be viewed as a racial slur. While these comments were clearly offensive, they were too

infrequent to create a work environment that was either hostile or abusive. See Bainbridge v.

Loffredo Gardens, Inc., 378 F.3d at 759-60 (holding that direct use of racial slurs once a month in

a workplace does not create an issue of fact as to a hostile work environment); but see Ross v.

Douglas County, Nebraska, 234 F.3d 391, 396-97 (8th Cir. 2000) (a supervisor constantly

directing racial slurs at black employee creates sufficient facts to support a claim for racially hostile

work environment). Also, even if Plaintiff was entitled to overtime work and another employee

unjustly received it instead of him, that additional allegation fails to show that his workplace was

permeated with discriminatory intimidation and insult that was sufficiently severe or pervasive as

to alter the conditions of his employment, and thus, create an abusive environment. See Clay v.

Credit Bureau Enterprises, Inc., 754 F.3d at 537-540 (finding that allegations of not receiving

employee benefits and leadership opportunities, among several other allegations in a race based

hostile work environment claim, did not create a genuine question of fact as to whether the

harassment affected a term and condition of employment).

Accordingly, the Court finds that Plaintiff has failed to make his prima facie case for a

hostile work environment.

B. Claim for Unlawful Retaliation

Next, the Court will address Plaintiff’s claim of unlawful retaliation.

Plaintiff alleges that he was unlawfully discharged by Defendant in retaliation for

complaints about his work environment. An employer cannot discriminate against an employee

because they have opposed a practice made unlawful under Title VII. See 42 U.S.C. § 2000e-3.

To establish a prima facie claim for unlawful retaliation under Title VII, a plaintiff has the initial

burden of showing that “(1) he engaged in protected conduct; (2) he suffered a materially adverse

employment action; and (3) the adverse action was causally linked to the protected conduct.” Pye

v. Nu Aire, Inc., 641 F.3d at 1021. When an employee informs his or her employer that they

believe the employer has engaged in unlawfully discriminatory practices under Title VII, that

employee has “opposed” an unlawful practice and engaged in protected conduct. See Crawford v.

Metropolitan Government of Nashville and Davidson County, Tenn., 555 U.S. 271, 276 (2009).

An employee must have an objectively reasonable basis for believing that the company practice

was unlawful under Title VII for their opposition to the practice to be considered protected

conduct. See Gibson v. Concrete Equipment Company, Inc., 960 F.3d 1057, 1065 (8th Cir. 2020)

(citation omitted).

“An adverse employment action is defined as a tangible change in working conditions that

produces a material employment disadvantage, including but not limited to, termination, cuts in

pay or benefits, and changes that affect an employee's future career prospects, as well as

circumstances amounting to a constructive discharge.” Jackman v. Fifth Judicial Dist. Dept.

Correctional Services, 728 F.3d 800, 804 (8th Cir. 2013). To establish the causation element, a

plaintiff is required to allege facts that show the adverse employment action would not have

occurred without the employee engaging in protected activity. See University of Texas

Southwestern Medical Center v. Nassar, 570 U.S. 338, 359-63 (2013). In some instances, it is

possible for an employee to bring a Title VII retaliation claim when the protected conduct of a

third-party resulted in the employee suffering an adverse employment action. See Thompson v.

North American Stainless, LP, 562 U.S. 170, 173-178 (2011) (finding that the fired spouse of an

individual that filed a workplace discrimination complaint could bring a title VII retaliation claim).

Judge Bryant’s Report and Recommendation concludes that Plaintiff failed to allege

sufficient facts for every element of unlawful retaliation. ECF No. 75, p. 6-7. For the protected

conduct element, Judge Bryant finds that Plaintiff failed to show what conduct he undertook that

would be considered protected under Title VII. Id. at p. 6. Judge Bryant finds that Plaintiff has

failed to support the other two elements with sufficient facts because the only evidence he brings

to support his claim regarding those elements is an uncorroborated affidavit. Id. at p. 6-7. Plaintiff

objects to Judge Bryant’s recommendation and argues that the record contains facts sufficient to

support each element of his claim. ECF No. 76, p. 43-50. He contends that his conversation with

co-workers about Griffin’s behavior and those co-workers sharing their thoughts with a third-party

employee about their hopes of being placed on a different shift constitutes protected conduct. Id.

at p. 43-45. Plaintiff also contends that letters of termination (ECF No. 64, p. 29-31) from

Defendant that he has submitted into the record show that he and his co-workers did experience

an adverse employment action. Id. at p. 45-47. Lastly, Plaintiff argues that he has alleged

sufficient facts to show causation because he and his co-workers were terminated by Defendant

within a day of his co-worker informing Moerke of their issues with Griffin and their desire to be

moved to a different shift. Id. at p. 47-50.

The Court finds that Judge Bryant’s conclusion is sound. As to the first element, the Court

finds that Plaintiff has failed to show facts sufficient to establish that he engaged in protected

conduct. The only facts Plaintiff puts forth regarding his own actions are his discussions with two

co-workers about their similar frustrations with Griffin and plans to ask management to move them

to a different shift away from Griffin. ECF No. 1, p. 14. Plaintiff’s Complaint states that the

conversation with management never occurred and never alleges that he personally raised a

complaint to management. Id. Plaintiff also failed to show that his co-worker who spoke to

Moerke was engaging in protected activity. Plaintiff’s Complaint simply states that he overheard

his co-worker telling Moerke about his and Plainitff’s frustration over how “disrespectful” Griffin

had been towards them. Id. at p. 15. That co-worker subsequently informed Plaintiff that he had

shared their issues regarding Griffin and their desire to move to the day shift with Moerke. Id.

Plaintiff fails to show how sharing these frustrations amounted to protected conduct because at no

point has he indicated that he or his co-workers reasonably believed that they were opposing illegal

employment practices by their employer. See Gibson v. Concrete Equipment Company, Inc., 960

F.3d at 1065. While Plaintiff alleges that part of he and his co-workers’ frustrations were Griffin’s

racially deragatory comments, he puts forth no facts that either he or his co-workers believed

Griffin’s behavior amounted to unlawful employment discrimination. ECF No.1, p. 14. At most,

the factual allegations presented by Plaintiff indicate that he and his co-workers were simply

desiring to air a personal grievance with management about Griffin’s behavior and that they hoped

for a different supervisor.3 Accordingly, Plaintiff’s claim for unlawful retaliation must fail.

Because Plaintiff has failed to make a prima facie case for unlawful retaliation regarding

the first element, the Court declines to analyze and address the remaining elements of Plaintiff’s

claim.

3 Even if Plaintiff’s co-worker engaged in protected activity and Plaintiff’s employment was terminated because of

that protected activity, it is still unsettled as to whether Plaintiff could bring a retaliation claim under Title VII for

third-party reprisal under these facts. See Thompson v. North American Stainless, LP, 562 U.S. at 175 (“We must also

decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a

close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere

acquaintance will almost never do so, but beyond that we are reluctant to generalize. . . . Given the broad statutory

text and the variety of workplace contexts in which retaliation may occur, Title VII's antiretaliation provision is simply

not reducible to a comprehensive set of clear rules.”).

IV. Conclusion

Based on its de novo review, the Court overrules Plaintiff’s objections (ECF No. 76) and

adopts Judge Bryant’s Report and Recommendations in toto. ECF No. 75. Accordingly,

Defendant’s Motion for Summary Judgment (ECF No. 60) is GRANTED. Plaintiff claims are

hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED, this 6th day of May, 2021.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge