Barkley v. Singing River Electric Power Ass'n

433 F. App'x 254
Court of Appeals for the Fifth Circuit·Decided July 19, 2011·No. No. 10-60599·Published·Cited by 20 cases

Opinion

JERRY E. SMITH, Circuit Judge: *

Jon Barkley appeals a summary judgment on his hostile work environment and retaliation claims against his employer, Singing River Electric Power Association (“SREPA”), under 42 U.S.C. § 1981. We affirm.

I.

Barkley worked at SREPA for nearly eleven years starting in 1997 as a meter reader. He alleges that during that time, his coworkers called him names such as “n* * * *r” and “black gorilla” on a nearly daily basis and made references to “shackles” and “plantations.” It is unclear how many of those comments were made in Barkley’s presence or were even about him, because he only vaguely described the alleged harassment1 and said that he heard most of the racial slurs second-hand from a hidden tape recorder he left around his coworkers.

Barkley reported the racial slurs only to his immediate supervisor and friend, Ken Papania. In 2001, Barkley complained to Papania about one specific instance, a coworker, Danny Dillard, calling him a “n* * * *r” during an argument. Papania notified the General Supervisor, Lee Hedegaard, about Barkley’s complaint, and Hedegaard spoke to Barkley and Dillard. During the meeting, Barkley admitted that he had started the altercation by making disparaging remarks about Dillard’s daughter and that Dillard did not actually call him the offensive word during the argument but had used the term months earlier. Regardless of that, Hedegaard told them he would not tolerate such language.

Barkley complained to Papania a second time, seven years later in January 2008, about his coworkers using the term “n* * * *r.”2 Papania told Barkley that he should be used to hearing that word, “because blacks used the term so much,” and that his coworkers “were just a ‘bunch of rednecks’ [so] he should not be offended.”3 Barkley also vaguely asserts that he told Papania about the racial slurs “throughout my whole years of really being there, really,” but he does not support [256] that broad statement with any other specific examples. Barkley claims he told other people about the discrimination, but he never deposed those individuals, nor did they submit affidavits.

In April 2008, Barkley informed Papania that he intended to resign on July 23 to spend time with his wife, who was pregnant with triplets in a high-risk pregnancy. Although Barkley signed an acknowledgment of resignation on April 4, he claims that ten minutes later, he called Hedegaard to rescind the resignation. Hedegaard denies that he spoke to Barkley, and although Barkley claims that in the ten minutes between signing the resignation and calling Hedegaard, he also told a friend and another employee that he wanted to rescind his resignation, he has not provided their testimony.

On April 25, Barkley called Annette Riley, the Human Resources Manager, to discuss rescinding his resignation.4 Riley denies that Barkley told her he wanted to rescind his resignation; instead, she claims that Barkley asked to change his resignation date to July 25. Riley provided a copy of Barkley’s signed resignation form on which she wrote, “Mr. Barkley called at 5:22 p.m. and changed the date to July 25.” Riley signed and dated those comments April 15, and Barkley has not refuted the document’s authenticity.

Barkley’s last day of work was June 8. He testified that he finished early because of changes in his wife’s condition. Before he left SREPA on his last day, he met with Papania and recorded the conversation.5 He did not discuss wanting to rescind his resignation. Instead, he told Papania he had another job offer. Papania told Barkley numerous times that he was sorry to see him go, and they talked at length about Barkley’s children and future plans. Barkley told Papania about the tapes he had made and that he had sent them to various national news organizations. Papania said that he did not understand what Barkley was talking about and that he was shocked.

II.

After leaving SREPA, Barkley sued it for violations of title VII and § 1981 alleging that he was subjected to a hostile work environment and that SREPA fired him in retaliation for complaining about racial discrimination. The district court granted SREPA’s motion for summary judgment on the title VII claims, because they were filed with the EEOC more than 180 days after Barkley’s employment had ended.6 The court also granted SREPA summary judgment on Barkley’s § 1981 claims. Barkley appeals on only the § 1981 claims.

III.

We review a summary judgment de novo. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir.2006). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. [257]*2572505, 91 L.Ed.2d 202 (1986). We view the evidence in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), but once the moving party has carried its burden, the non-movant must come forward with specific facts showing a genuine factual issue for trial. Id. Conclusional allegations and denials, speculation, and unsupported assertions are insufficient to avoid summary judgment. SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993).

A.

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Barkley v. Singing River Electric Power Ass'n, 433 F. App'x 254 (5th Cir. 2011).

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