Albert ALLEN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee

165 F.3d 405, 1999 U.S. App. LEXIS 89, 74 Empl. Prac. Dec. (CCH) 45,732, 78 Fair Empl. Prac. Cas. (BNA) 1578, 1999 WL 2480
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 6, 1999
Docket97-1720
StatusPublished
Cited by200 cases

This text of 165 F.3d 405 (Albert ALLEN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albert ALLEN, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee, 165 F.3d 405, 1999 U.S. App. LEXIS 89, 74 Empl. Prac. Dec. (CCH) 45,732, 78 Fair Empl. Prac. Cas. (BNA) 1578, 1999 WL 2480 (6th Cir. 1999).

Opinions

COLE, J., delivered the opinion of the court, in which KEITH, J., joined. BATCHELDER, J. (pp. 413-418), delivered a separate opinion concurring in part and dissenting in part.

COLE, Circuit Judge.

Plaintiff-Appellant Albert Allen appeals the district court’s grant of summary judgment in favor of Allen’s employer, the Michigan Department of Corrections (“MDOC”) on Allen’s Title VII claims of racial discrimination, harassment and retaliation for engaging in protected activity. For the reasons that follow, we AFFIRM in part and REVERSE in part, and REMAND to the district court for further proceedings in accordance with this opinion.

I.

Allen, who is African American, has been employed by MDOC in various capacities since 1985. Beginning in 1989, Allen complained of discriminatory conduct directed towards him by white supervisory personnel while Allen was employed on Cell Block Eight at Jackson Correctional Facility (“Block Eight”). Allen’s complaints appear to have started when the three black officers working in Block Eight were transferred out of the block in September 1989 because “[i]t was not customary for black officers to work [408]*408on Cell Block 8.” Allen filed a grievance objecting to his transfer and was reassigned to Block Eight. After reassignment, Allen was the only black officer on Block Eight.

Allen claims that as a result of filing a grievance regarding the transfer, he was subjected to “numerous acts of haussment, retaliation, and discrimination on account of his race.” Allen’s allegations can be summarized as follows:

12/28/89: A white officer used bolt cutters to cut the lock on Allen’s locker. No investigation or disciplinary action took place.
1/8/90: Allen was disciplined by receiving a “counseling memorandum” for leaving a break box unsecured and a gate opened “when other white officers also had keys to the box and gate and could have been blamed for the occurrence but were not.”
3/3/90: Allen successfully passed the examination for sergeant and was placed in the “first band” of persons passing the examination. However, Allen was never promoted to sergeant despite the fact that white employees in the “second band” were promoted.
10/9/90: Allen was told by Assistant Resident Unit Manager Hilton that “he was lazy like the rest of his people and that is why they are all in prison.”
Late '■RgO/Early 1991: Resident Unit Manager Bailey was advised in writing to allow three white officers who had not passed the sergeant’s examination and had less experience and seniority than Allen to assume the duties of “acting-sergeant” when a sergeant was not present on the shift.
6/27/91: Allen bid and obtained a job on Block Eight. Allen found a note among his possessions that said “Allen IV. Pull bid — if not, you will be looking for a job or die. Nigger out.” The note was written on departmental forms, was signed “KKK” and had a picture drawn on it of a stick figure with a noose around its neck. MDOC investigated this incident by taking handwriting samples and interviewing employees, but the perpetrator was never discovered. Allen claims that MDOC should have fingerprinted the threatening note.
Late 1991: On several occasions, Allen’s notations in the Block Eight sign-in log were improperly changed to reflect that Allen took longer than the allotted thirty-minutes for lunch. Allen received “counseling memoran-da” for these incidents.
10/27/91: Allen was leaving work when told by his supervisor, Sergeant Madery, that he had to return to finish a report. Allen replied that he would finish it on his next work day. Madery then made the following comments to Allen: “I’m writing your black ass up,” “Boy, I told you to get your black ass back into the block and finish your paper work” and “Allen you can’t make sergeanc because you won’t play team ball.” As a continuation of this incident, Madery told Allen that he was transferring him to an area in which he could be watched more closely because “[njiggers can’t be trusted.” Allen reported Madery’s statements to the shift commander.
4/8/93: Allen submitted a resume to MDOC for a sergeant position and was informed that he was not on the list of eligible individuals for the position of sergeant.
In general: Allen complains that he was constantly observed and followed by Madery, Bailey and Hilton, although non-black employees were not so followed.

Allen filed additional complaints regarding these incidents with the Michigan Department of Civil Rights and the Equal Employment Opportunity Commission (“EEOC”). [409]*409In 1994, Allen went on long-term disability leave because of stress; in addition, Allen now takes antidepressant medication and undergoes counseling, allegedly as a result of Ms employment conditions.

On January 23, 1996, the EEOC issued a “right to sue” letter to Allen. Thereafter, Allen filed a complaint in the United States District Court for the Eastern District of MicMgan, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., and MicMgan’s Elliott-Larsen Civil Rights Act, Mich. Comp. Laws Ann. § 37.2101 et seq. Specifically, Allen’s complaint alleged racial discrimination, harassment, and retaliation for engaging in protected activities. On May 2, 1996, the district court dismissed Allen’s state-law claims.

MDOC then filed a motion for summary judgment on Allen’s Title VII claims, which the district court granted on June 10, 1997. The district court found that Allen: (1) failed to establish a prima facie case of race discrimination because he did not show that he applied for any promotions received by non-black employees; (2) failed to establish a prima facie case of harassment because he did not show that MDOC tolerated or condoned the conduct at issue; and (3) failed to establish a prima facie case of retaliation because he did not show that the defendants were aware of his protected activity or that there was a causal connection between the protected activity and the alleged adverse employment action. Accordingly, the district court entered judgment in favor of MDOC. TMs timely appeal followed.

II.

We review de novo a district court’s grant of summary judgment. See City Management Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir.1994); Adams v. Metiva, 31 F.3d 375, 378 (6th Cir.1994). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(e). When reviewing a motion for summary judgment, the evidence, all facts, and any inferences that may be drawn from the facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc.,

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165 F.3d 405, 1999 U.S. App. LEXIS 89, 74 Empl. Prac. Dec. (CCH) 45,732, 78 Fair Empl. Prac. Cas. (BNA) 1578, 1999 WL 2480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-allen-plaintiff-appellant-v-michigan-department-of-corrections-ca6-1999.