Equal Employment Opportunity Commission v. Xerxes Corp.

639 F.3d 658, 2011 U.S. App. LEXIS 8481, 112 Fair Empl. Prac. Cas. (BNA) 109
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 26, 2011
Docket10-1156
StatusPublished
Cited by69 cases

This text of 639 F.3d 658 (Equal Employment Opportunity Commission v. Xerxes Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equal Employment Opportunity Commission v. Xerxes Corp., 639 F.3d 658, 2011 U.S. App. LEXIS 8481, 112 Fair Empl. Prac. Cas. (BNA) 109 (4th Cir. 2011).

Opinions

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge MOTZ joined. Judge WILKINSON and Judge MOTZ each wrote a separate concurring opinion.

OPINION

TRAXLER, Chief Judge:

This appeal arises from an action brought by the Equal Employment Opportunity Commission (“EEOC”) on behalf of Albert Bernard Pearson, Keith Wilson, and Gradian Graham, present or former African-American employees of Xerxes Corporation (“Xerxes”), alleging a hostile work environment on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”). The district court granted summary judgment for Xerxes. We affirm in part, vacate in part, and remand.

I.

A.

Xerxes is a fiberglass tank manufacturer based in Minneapolis, Minnesota. Pearson, Wilson, and Graham worked as assemblers at Xerxes’ plant in Williamsport, Maryland. Bob Shifflett was their shift supervisor. He reported to plant superintendent Greg Carty, who reported to plant manager Wayne Green.

[662]*662At all times, Xerxes had in place a comprehensive Corporate Compliance Program and Program Guide, prohibiting discrimination and harassment in the plant. Plant employees were instructed to report any violations to their “supervisor, Plant Manager, ... or a member of Xerxes’ Compliance Committee.” J.A. 487, 493. In addition, as of at least January 9, 2006, Xerxes also had in place a separate anti-harassment policy, which prohibited “Sexual, Racial and Other Objectionable Conduct or Unlawful Harassment.” J.A. 480. The policy provided specific examples of prohibited conduct and, among other directions, instructed plant employees to “Immediately Report The Incident To Your Supervisor And Plant Manager.” J.A. 481. All employees received copies of Xerxes’ anti-harassment policies and were trained in them at the time of hire. Refresher training was conducted annually.

Xerxes and its nonsupervisory employees were also subject to a Collective Bargaining Agreement (the “CBA”) between Xerxes and the United Automobile, Aerospace and Agricultural Implement Workers of America, Local No. 171 (the “Union”). The CBA prohibited “unlawful discrimination against employees on account of race, color, creed, national origin, religion, sex, sexual orientation, pregnancy, marital status, age, disability, or Union affiliation, or any other legally protected class status.” J.A. 501. The CBA also protected Union employees from being “disciplined or discharged without just cause.” J.A. 498. The CBA contained a grievance procedure for alleged violations, and Union representatives were regularly available to meet with employees about any concerns. The Union president testified that Xerxes took “a strong stance against discrimination,” J.A. 307, and “seem[ed] to respond very quickly whenever there [were] allegations” of discrimination. J.A. 308.

B.

Bernard Pearson was hired by Xerxes to work at the plant on a temporary basis in April 2005 and as a full-time employee in June 2005. He testified that from June 2005 until February 2006, his coworkers subjected him to repeated racial slurs and pranks in the plant. He testified that Amber Gatrell used the word “n* ****” in his presence on repeated occasions and referred to him as “Boy.” He testified that Floyd Myers called him “Boy” and “black Polack,” and called a white woman a “n* * * * * lover.” He also testified that unknown coworkers occasionally played pranks on him, such as turning the lights off in the bathroom and throwing wet paper towels at him, placing gel on the doorknob in the bathroom so that he could not open the door, tampering with his toolbox lock, and hiding his toolbox. Pearson testified that he reported these .incidents to Shifflett as they occurred, but that Shifflett did nothing until February 2006. He did not complain to any other members of management.

Keith Wilson was hired by Xerxes as a temporary employee in October 2005 and as a full-time employee in December 2005. He alleges that he was first subjected to racial harassment by his coworkers in November 2005. He testified that on two or three occasions someone stole or threw away his and Pearson’s lunches. He also complained that Tammy Smith called him by racially-tinged names, including “Buckwheat,” “Benson,” and ‘Yellow Boy.”1 Wilson testified that he reported the inei[663]*663dents to Shifflett as they occurred, but did not complain to any other management employee because the Union representative told him he had to report them to his direct supervisor first.

On February 3, 2006, however, two related incidents involving Gatrell and Myers were reported to Shifflett and to Green. Wilson testified that while he was working with Gatrell, she said to him, “Boy you don’t lay up no manway like that.” J.A. 353. Wilson reported the incident to Shifflett and told Shifflett that “where I come from ... boy is another name for the N word.” J.A. 353. Shifflett memorialized the complaint and his response in writing, as follows:

[Gatrell] and [Wilson] were working [together and] it was at the end of the shift. [Wilson] started to take the dumpster up to dump it. [Gatrell] said to [Wilson] hey boy you can’t dump the dumpster yet because its not 9:30 p.m. Later [Wilson] and [Pearson] came to me and said that they were tired of people saying boy to them and other racial slurs. I told [Wilson] and [Pearson] that no they don’t have to listen to this and that it would be dealt with right away. I went to [Gatrell] and told her that I think the best thing to do is go to [Wilson] and say to him that if he took [o]ffense about her saying boy to him that she was sorry. The next day [Gatrell] talked to [Wilson] and [Pearson] in the parking lot and told [Wilson] just what I said to.

J.A. 641. Gatrell admitted using the term “boy,” but claimed that she did not intend it to be racially offensive. Later that same evening, Myers exchanged words with Pearson and Wilson in the lunchroom and “said something like, yeah, Boy, well I’ll see you outside.” J.A. 354. Myers also admitted using the term “boy” during the exchange, but claimed that he did not intend it to be racially offensive. After Green met with Myers about the incident, Myers apologized to Pearson and Wilson. Green also held a meeting with the shift employees to review Xerxes’ anti-harassment policies. Green reminded the employees that racial harassment, including race-based comments, was prohibited and warned that future misconduct would result in disciplinary action.

After February 2006, Wilson reported no further incidents of racial harassment until June 2007.2 In May 2006, however, Pearson complained to Shifflett that two different coworkers had referred to music being played in the plant as “jungle music” and “n* * * * * music.” Shifflett told Pearson that he should report the incidents to Carty. Carty, in turn, met with Pearson and the Union representative. At the meeting, Pearson also told Carty about the problems he had experienced with Gatrell and Myers, and told Carty that he “wanted it to stop.” J.A. 548. Carty told Pearson not to say anything to anyone and that he would take care of it.

When Green learned of Pearson’s complaint, he notified Xerxes’ corporate office and Ronald Bachmeier, the EEO coordinator, traveled to the plant to investigate.

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639 F.3d 658, 2011 U.S. App. LEXIS 8481, 112 Fair Empl. Prac. Cas. (BNA) 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equal-employment-opportunity-commission-v-xerxes-corp-ca4-2011.