Carpenter v. Southwestern Bell Telephone Co.

27 F. Supp. 3d 1168, 2014 WL 2707869, 2014 U.S. Dist. LEXIS 80452, 123 Fair Empl. Prac. Cas. (BNA) 520
CourtDistrict Court, D. Kansas
DecidedJune 13, 2014
DocketCase No. 12-2483-CM
StatusPublished
Cited by1 cases

This text of 27 F. Supp. 3d 1168 (Carpenter v. Southwestern Bell Telephone Co.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carpenter v. Southwestern Bell Telephone Co., 27 F. Supp. 3d 1168, 2014 WL 2707869, 2014 U.S. Dist. LEXIS 80452, 123 Fair Empl. Prac. Cas. (BNA) 520 (D. Kan. 2014).

Opinion

[1170]*1170 MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

Plaintiff John E. Carpenter brings hostile work environment claims against his former employer, Southwestern Bell Telephone Company (“Southwestern Bell”), and his former supervisor, Joseph Arri. Plaintiff initially brought discrimination, retaliation, and hostile work environment claims under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. This court granted defendants’ summary judgment motion on plaintiffs discrimination and retaliation claims. But the hostile work environment claims remain, as defendants did not address them in their first motion for summary judgment. The hostile environment claims are now before the court on defendants’ second Motion for Summary Judgment (Doc. 67). For the following reasons, the court grants the motion.

I. Factual Background

Plaintiff is an African-American who worked for defendant Southwestern Bell in its Kansas facility. Several of his co-workers made whistling noises throughout the workday. The whistling annoyed and offended plaintiff, who repeatedly complained about it. Defendant Arri took steps to reduce the whistling, including distributing an office memo and asking the whistling employees to whistle less frequently. But defendants did not expressly prohibit whistling in the office.

On September 4, 2008, plaintiff was sent home after complaining of the noise. That day, plaintiff reported four coworkers for racial harassment to the Equal Employment Opportunity hotline.

In addition to the whistling, plaintiff points to one comment as evidence of a hostile work environment: about six years ago, a co-worker said, “This is the dark side in more ways than one,” while passing plaintiffs cubicle. (Doc. 71-1 at 3.)

II. Summary Judgment Standard

The court grants summary judgment if the record demonstrates 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(a). The moving party bears the burden of showing that there is no genuine issue of material fact. Fasbinder v. City of Overland Park, No. 09-2043-JAR, 2010 WL 1930974, at *1 (D.Kan. May 10, 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the moving party meets this burden, the nonmovant must set forth specific facts from which a rational trier of fact could find for the nonmovant. Id. (citing Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003)). Although the court construes pro se filings liberally, pro se plaintiffs still must offer factual support for their claims. Douglass v. Gen. Motors Corp., 368 F.Supp.2d 1220, 1228 (D.Kan.2005) (citing Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988)). The court need not provide additional factual allegations or accept a plaintiffs conclusory allegations. Nichols v. Schmidling, 10-2086-JAR, 2011 WL 5837173, at *2 (D.Kan. Nov. 21, 2011) (citations omitted).

III. Analysis

A. Individual Claim Against Defendant Arri

The court dismisses the Title VII claim against defendant Arri in his individual capacity. Plaintiffs may bring Title VII suits against individuals only in their official capacities, not in their'personal capacities. Id. The parties agree there is no valid claim against defendant Arri in his [1171]*1171individual capacity. Accordingly, the court dismisses the claim.

B. Hostile Work Environment Claim

For a hostile work environment claim to survive summary judgment, the plaintiff must show that “under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was racial or stemmed from racial animus.” Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994) (citation omitted). This is true under either Title VII or § 1981. Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir.1994) (citations omitted) (observing that the burdens are the same under Title VII and § 1981). And the court evaluates these factors both subjectively and objectively. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir.2007) (citation omitted).

2. The harassment was not sufficiently severe or pervasive to create an abusive environment.

Plaintiff has not shown harassment that rises to the level necessary to establish a hostile work environment. The harassment need not be both pervasive and severe; it may be sufficiently pervasive in its scope éc sufficiently severe in its intensity. Hudson v. AIH Receivable Mgmt. Servs., 10-CV-2287-JAR, 2012 WL 5306277, at *3 (D.Kan. Oct. 29, 2012) (citing Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir.1997)).

To determine the level of the harassment, the court looks both to “whether the plaintiff was offended by the work environment and whether a reasonable person would likewise be offended.” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir.2012). Title VII is not meant to police the workplace for general civility. Id. The court, therefore, requires more than evidence of “mere snubs, unjust criticisms, and discourteous conduct.” Hudson, 2012 WL 5306277, at *2 (quotation marks and citation omitted). The court considers the totality of the circumstances, including the frequency of the conduct, its severity, whether it rises to the level of a threat, and whether it unreasonably interferes with the plaintiffs ability to work. Id. (citation omitted).

Here, plaintiff was subjectively offended by the work environment. He states that he found the whistling offensive and took it personally. He maintains that the continuous whistling is “impermissible in an indoor office setting particularly when an employee complains of such.” (Doc. 71 at 15-17.)

The conduct, however, was not severe or pervasive enough to create an objectively abusive environment. One incident — or even a few isolated incidents — is not enough to meet the burden. Plaintiff must instead show “a steady barrage” of racial acts or comments. Douglass, 368 F.Supp.2d at 1231 (quotation marks and citation omitted). In Hernandez, the plaintiff had overheard at least a dozen racially offensive comments and jokes over fourteen months. 684 F.3d at 958.

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27 F. Supp. 3d 1168, 2014 WL 2707869, 2014 U.S. Dist. LEXIS 80452, 123 Fair Empl. Prac. Cas. (BNA) 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carpenter-v-southwestern-bell-telephone-co-ksd-2014.