Moore v . Dartmouth College CV-99-037-M 09/28/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Thurman Moore, Plaintiff
v. Civil N o . 99-37-M Opinion N o . 2001 DNH 180 Dartmouth College, Defendant
O R D E R
Thurman Moore, proceeding pro s e , brings this suit against
his former employer, Dartmouth College. He says that when
Dartmouth was informed that his co-workers were subjecting him to
a racially hostile work environment, it failed to take effective
corrective action. He seeks damages under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Dartmouth moves
for summary judgment, asserting that most of Moore’s claims are
time barred and, more importantly, because it did take prompt and
appropriate remedial steps to address Moore’s complaints, it did
not, as a matter of law, violate Title VII. Moore objects and
has himself moved for summary judgment. Standard of Review
When ruling upon a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate
when the record reveals “no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Intern’l Ass’n of
Machinists and Aerospace Workers v . Winship Green Nursing Center,
103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
The key, then, to defeating a properly supported motion for
summary judgment is the non-movant’s ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party. While a
2 reviewing court must take into account all appropriately
documented facts, it may ignore bald assertions, unsupported
conclusions, and mere speculation, see Serapion v . Martinez, 119
F.3d 982, 987 (1st Cir. 1997), as well as those allegations
“which have since been conclusively contradicted by [the non-
moving party’s] concessions or otherwise.” Chongris v . Board of
Appeals, 811 F.2d 3 6 , 37 (1st Cir. 1987). And, while pleadings
submitted by pro se litigants are “liberally construed,” even pro
se litigants must comply with the requirements of Rule 5 6 . See
Posadas de Puerto Rico, Inc. v . Radin, 856 F.2d 399, 401 (1st
Cir. 1988).
Here, only one of Moore’s submissions even arguably
constitutes an “affidavit” as contemplated by Rule 56(e).
Liberally construed, his “Answer to the Affidavit of M s . Linda
Hathorn” (document no. 40) might meet the requirements of 28
U.S.C. § 1746, which allows for the submission of unsworn
declarations, provided they are executed “under penalty of
perjury.” Although Moore’s submission does not specifically
3 purport to be an unsworn declaration under penalty of perjury, he
does represent that, “the foregoing statements are true to the
best of my knowledge and belief.” His memorandum in support of
his objection to defendant’s motion for summary judgment
(document n o . 3 9 ) , however, is unsigned, and consists primarily
of a lengthy chronology of the various forms of harassment to
which he claims to have been subjected (involving events
referenced in the complaint as well as previously undisclosed
events) and a series of denials of many statements made in the
affidavits submitted by Dartmouth. There are no references to
documents, depositions, answers to interrogatories, or
affidavits. His motion for summary judgment (document n o . 52)
suffers from the same shortcomings.
Background
Moore initially worked as a temporary custodian for
Dartmouth beginning in the fall of 1996. He was hired as a
permanent employee on October 2 7 , 1997, and continued his
employment until June 5 , 1998, when he resigned. He says he was
4 subjected to racial discrimination “almost from the start” of his
tenure at Dartmouth. Although his complaint does not describe
any of the alleged instances of harassment (nor does it
specifically identify his claims as having been brought pursuant
to Title V I I ) , it does incorporate by reference the charge of
discrimination he filed with the New Hampshire Commission for
Human Rights (“NHCHR”) and the Equal Employment Opportunity
Commission (“EEOC”). In that charge, Moore identifies several
instances of alleged workplace discrimination. First, shortly
after he was hired in the fall of 1996, he says a co-worker named
John told him he was hired to meet a quota. Charge of
Discrimination (attached to complaint), at para. 2 . Moore
contends he discussed this event with his squad leader. There
i s , however, no written evidence of Moore’s having told his
supervisor of the event. Dartmouth asserts that the incident was
unreported and, for that reason, it says no remedial action was
taken.
5 In November 1997, Moore says he told a co-worker, Bruno,
that he was looking for a temporary job at the post office over
the holidays. He claims Bruno responded by saying Moore was
interested in the position so he could steal checks and “send
them to his people in Africa.” Id. Moore reported the statement
to his supervisor, Linda Hathorn. As a result, Bruno and Moore
participated in a meeting with Hathorn, at which the event was
discussed. Bruno was verbally reprimanded for his behavior and a
statement to that effect was placed in his personnel file.
Moore was fired on December 1 2 , 1997, for “not getting
[along] with the squad.” Id., at para. 5 . He claims the reason
offered by Dartmouth was a pretext and says he was actually fired
because he had reported incidents of racial harassment to his
supervisor the previous day. Id. See also Exhibit N to
defendant’s motion (document n o . 3 6 ) , Moore’s response to
interrogatory n o . 13 (“I know I was terminated because of
reporting racial remarks the day before I was fired.”).
Dartmouth, on the other hand, denies that Moore reported any
6 racial incidents on December 11 (there is no documentation of any
such report) and, more generally, says Moore was not terminated
for having reported any incidents of racial harassment. Instead,
it says that Moore was discharged because he was a probationary
employee, had a poor attendance record, and experienced problems
working with other members of his team.
Following Moore’s discharge, Dartmouth’s Office of Equal
Opportunity and Affirmative Action (the “OEO”) conducted an
independent internal investigation and recommended that Moore be
rehired, concluding that discriminatory remarks had been made
towards him, and his superiors had not provided him with
“adequate feedback” regarding his questionable, possibly
termination-worthy, performance and attendance record.
Accordingly, Moore was reinstated with full back pay and no loss
of seniority on January 1 2 , 1998. After Moore returned to work,
Dartmouth conducted several meetings to increase the sensitivity
of Moore’s fellow workers to racial issues in the workplace.
7 In the wake of those meetings, Moore claims his co-workers
told him that he was the cause of the problems in the workplace,
since he complained that discriminatory conduct had been directed
at him. Id., at para. 7 . Moore did not report the alleged co-
worker response to the meetings as a specific or identifiable
event, yet Dartmouth acknowledges that there was tension between
Moore and his shop steward. Whether that animosity was racially
based o r , instead, simply the result of a personality conflict,
is unclear. It i s , however, apparent from the record that
Dartmouth was unhappy with Moore’s job performance, particularly
between February and May, 1998. As before, Moore’s problems
related to his attendance record and poor working relationship
with other employees. Three formal warnings were issued to Moore
during that period.
In late January, a co-worker named Shirley allegedly told
Moore to be careful and “watch his back,” or someone would
“shoot” him for causing too much trouble. Id., at para. 4 . The
parties dispute when Moore reported that event to Dartmouth. In
8 April 1998, Moore says another co-worker (Ray) told him that he
believed Moore was receiving special treatment because of his
race. Id. at para. 8 . Moore reported the comment to members of
the OEO, who convened a meeting between the parties, at which Ray
acknowledged that his statement was inappropriate and apologized
to Moore. Finally, on May 2 8 , 1998, a note appeared on a door in
Dartmouth’s Hopkins Center that said, “Nigger quit you are not
wanted here.” Id., at para. 9. See also Exhibit H (attachment
3 ) to defendant’s memorandum (a copy of the note). Moore says at
that point he decided he could no longer endure the stressful
work environment and, on June 5 , 1998, he resigned. The OEO
again investigated, interviewing seventeen staff members and
temporary contract employees, but was unable to identify the
author of the racially charged graffiti.
Dartmouth has had, and continues to maintain, an affirmative
action/equal opportunity policy and office. Moore was well aware
of Dartmouth’s policy and, indeed, visited the office almost
routinely. See, e.g., Exhibit H to defendant’s memorandum,
9 Affidavit of Ozzie Harris, Director of Dartmouth’s Office of
Equal Opportunity and Affirmative Action (documenting 163
contacts with or regarding Moore between November 1 6 , 1996, and
June 1 7 , 1998). Dartmouth says it responded promptly and
effectively to all incidents of harassment and/or discrimination
of which it was informed and, at the same time, worked diligently
to manage a difficult employee with attendance, substance abuse,
and co-worker relationship problems.
Moore filed a charge of discrimination with the NHCHR on
September 2 9 , 1998. Notice of the charge was received by the
EEOC on October 9, 1998, which subsequently determined that it
lacked sufficient time and resources to fully investigate Moore’s
complaint. Accordingly, the EEOC issued Moore a right to sue
letter on January 1 1 , 1999. Moore filed his complaint in this
court on January 2 6 , 1999.
10 Discussion
I. Timely Filing.
Title VII requires a plaintiff to file charges of
discrimination with the EEOC within 180 days of the
discriminatory act. See 42 U.S.C. § 2000e-5(e)(1). Importantly,
however, that requirement is not considered jurisdictional and,
like a statute of limitations, is “subject to waiver, estoppel,
and equitable tolling.” Zipes v . Trans World Airlines, Inc., 455
U.S. 385, 393 (1982). See also Rice v . New England College, 676
F.2d 9, 10 (1st Cir. 1982).
Moreover, the EEOC 180 day filing requirement may be
extended to 300 days if the charge of discrimination is filed
with an authorized state agency in a deferral jurisdiction. See
42 U.S.C. § 2000e-5(e). See also Landrau-Romero v . Banco
Popular de Puerto Rico, 212 F.3d 607, 611 (1st Cir. 2000). New
Hampshire is a deferral jurisdiction, and filing with its agency,
the NHCHR, generally increases the filing period to 300 days.
See Madison v . S t . Joseph Hosp., 949 F. Supp. 953, 957-58 (D.N.H.
11 1996). Whether an extension to 300 days is available, however,
depends upon the provisions of state law and the terms of an
annual Worksharing Agreement between the EEOC and the state
agency. See Kleine v . Connell Communications, Inc., 955 F. Supp.
154, 156 (D.N.H. 1996). In this case, however, the provisions of
the Worksharing Agreement are not at issue, since NHCHR’s
jurisdiction does not extend to educational or non-profit
organizations, like Dartmouth. See N.H. Rev. Stat. Ann. § 354-
A:2 VII. Consequently, the administrative filing deadline in
this case was limited to 180 days. See 29 C.F.R. § 1601.13(a)(2)
(“A jurisdiction having an FEP agency without subject matter
jurisdiction over a charge . . . is equivalent to a jurisdiction
having no FEP agency.”). S o , to be actionable under Title V I I , a
discriminatory act directed against Moore must have taken place
on or after April 2 , 1998. Three events - the asserted remark
from co-worker Ray (“you’re receiving special treatment”), the
highly offensive graffiti, and Moore’s resignation - all occurred
after April 2 , 1998.
12 II. Continuing Violation.
Moore contends he was harassed “almost from the start” of
his employment at Dartmouth, thereby (implicitly, at least)
making a claim of continuing violation. See generally O’Rourke
v . City of Providence, 235 F.3d 713, 730-33 (1st Cir. 2001)
(discussing in detail the concept of serial violations and the
continuing violation doctrine). Dartmouth disagrees.
The continuing violation doctrine allows for the
consideration of otherwise time-barred events if they are shown
to have been part of an ongoing series of discriminatory acts and
at least one violation within the limitations period “anchors the
earlier claims.” Id., at 730 (citing Provencher v . CVS Pharmacy,
Div. of Melville Corp., 145 F.3d 5 , 14 (1st Cir. 1998)). Even
giving Moore the benefit of the doubt, however, and assuming that
he is entitled to invoke the continuing violation doctrine to
revive his otherwise time-barred claims, the record establishes
that Dartmouth i s , for the reasons discussed below, entitled to
judgment as a matter of law.
13 III. Hostile Work Environment.
Title VII of the Civil Rights Act makes it “an unlawful
employment practice for an employer . . . to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Hostile work environment, though not
specifically referenced in the text of Title VII, describes one
form of discrimination that is actionable under the statute. See
Burlington Indus., Inc. v . Ellerth, 524 U.S. 742, 753-54 (1998).
An abusive or hostile work environment is created 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.’” Harris v .
Forklift Systems, Inc., 510 U.S. 1 7 , 21 (1993) (citation
omitted). Consequently, the “mere utterance of an ethnic or
racial epithet which engenders offensive feelings in an employee”
does not violate Title VII. Meritor Sav. Bank, FSB v . Vinson,
477 U.S. 5 7 , 67 (1986) (citation omitted). In other words, Title
14 VII is intended to protect employees from severe and/or pervasive
discrimination in the workplace; it does not operate as a
“general civility code” for the American worker. See Oncale v .
Sundowner Offshore Services, Inc., 523 U.S. 7 5 , 81 (1998).
The hostile work environment theory is equally applicable to
sexual and racial harassment claims. See Lattimore v . Polaroid
Corp., 99 F.3d 456, 463 (1st Cir. 1996) (“Harassment based on
membership in a protected class is one form of employment
discrimination.”). See also Meritor, 477 U.S. at 6 6 . To prevail
on such a claim, a plaintiff must establish each of the following
essential elements:
(1) that she (or he) is a member of a protected class; (2) that she was subjected to unwelcome [racial] harassment; (3) that the harassment was based upon [race]; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment and create an abusive work environment; (5) that [racially] objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.
15 O’Rourke, 235 F.3d at 728 (presenting the test with reference to
sexual harassment) (citing Faragher v . City of Boca Raton, 524
U.S. 775, 787-89 (1998)).
Moore, an African American, is a member of a protected class
and, therefore, the first element is plainly met. And, while
some of the incidents he recounts fail to rise to the level of
actionable, racially motivated harassment, the graffiti incident
certainly constitutes race-based harassment (assuming, of course,
that the graffiti was authored by a Dartmouth employee or someone
over whom Dartmouth exercised control). Accordingly, the second
and third elements are also met. And, giving Moore the benefit
of the doubt, the court will assume that his allegations are
sufficient (if credited as true) to warrant the conclusion that
he has established each of the remaining factual elements of a
prima facie claim under Title VII (or, at a minimum, shown that
there is a genuine dispute as to one or more elements).
16 IV. Employer Liability for Co-Worker Harassment.
An employer violates Title VII and engages in unlawful
discrimination when its conduct “has the purpose or effect of
unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive working
environment.” Meritor Savings Bank v . Vinson, 477 U.S. at 65
(citation omitted). Hostile work environment cases fall into two
categories: those in which the plaintiff is harassed by a
supervisor and those in which he or she is harassed by a co-
worker. Perhaps not surprisingly, the standards for employer
liability are quite different depending on whether the
plaintiff’s alleged harasser held a supervisory position. See,
e.g., O’Rourke, 235 F.3d at 736-37; White, 221 F.3d at 261.
This case presents a situation in which the plaintiff seeks
to hold his former employer liable for alleged harassment at the
hands of non-supervisory co-workers. The Court of Appeals for
the Sixth Circuit has provided a clear and thoughtful discussion
17 of the basis for imposing liability on an employer under those
circumstances.
[T]he employer’s liability in cases of co-worker harassment is direct, not derivative; the employer is being held directly responsible for its own acts or omissions. Thus, when an employer responds to charges of co-worker [racial] harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known. The act of discrimination by the employer in such a case is not the harassment, but rather the inappropriate response to the charges of harassment.
Blankenship v . Parke Care Centers, Inc., 123 F.3d 868, 873 (6th
Cir. 1997) (emphasis supplied). See also Tutman v . WBBM-TV,
Inc., 209 F.3d 1044, 1048 (7th Cir. 2000) (“[A]n employer is not
strictly liable under Title VII for [racial] harassment
perpetrated by its employees.”), cert. denied, 531 U.S. 1078
(2001).
Notwithstanding his lack of formal legal training, Moore
certainly appears to understand that his claim against Dartmouth
is based upon its alleged failure to address his hostile work
18 environment; he does not seek to impose indirect liability on
Dartmouth merely because his co-workers subjected him to an
arguably hostile workplace. See Plaintiff’s pretrial statement
(document n o . 48) (“Plaintiff does not allege that Dartmouth
itself engaged in discriminatory conduct against him nor that it
is liable on an agency or respondeat superior basis.”).
As the court of appeals for this circuit has observed, “[i]f
the harassment is caused by a co-employee, the employer is liable
it if ‘knew or should have known of the charged [racial]
harassment and failed to implement prompt and appropriate
corrective action.’” White v . New Hampshire Dept. of
Corrections, 221 F.3d 254, 261 (1st Cir. 2000) (quoting
Blankenship, 123 F.3d at 8 7 2 ) . The Blankenship court discussed
in some detail the obligations imposed on employers by Title VII
and concluded:
Once an employer is aware of and responds to charges of [racial] harassment, . . . mere negligence as to the content of the response cannot be enough to make the employer liable. When an employer responds with good- faith remedial action, we cannot say that the employer
19 has itself committed an act of discrimination. In sum, although negligence as to the existence of harassment may be enough, . . . for an employer to incur liability for discrimination, negligence in the fashioning of a remedy is not. When an employer implements a remedy, it can be liable for [racial] discrimination in violation of Title VII only if that remedy exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination.
Blankenship, 123 F.3d at 873 (citations omitted) (emphasis
supplied).
Like so many other courts that have addressed this issue,
the court of appeals for this circuit has held that the standard
by which an employer’s conduct is measured is one of
“reasonableness.”
We agree with defendants that an employer who has taken reasonable steps under the circumstances to correct and/or prevent racial harassment by its nonsupervisory personnel has not violated Title VII. . . . It may not always be within an employer’s power to guarantee an environment free from all bigotry. He cannot change the personal beliefs of his employees; he can let it be known, however, that racial harassment will not be tolerated, and he can take all reasonable measures to enforce this policy. To what lengths an employer must go we do not venture to say. The seriousness of the harm posed by the conduct will be a factor. But once
20 an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think he can be charged with discriminating on the basis of race.
DeGrace v . Rumsfeld, 614 F.2d 796, 805 (1st Cir. 1980). See also
Adler v . Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir.
1998) (“[W]e adopt the test employed by some of our sister
circuits, asking whether the remedial and preventative action was
‘reasonably calculated to end the harassment.’”). Several
factors are relevant when considering the “reasonableness” of an
employer’s response to reports of racial discrimination and/or
harassment in the workplace. They include: (1) whether the
employer was successful in stopping such conduct; (2) the
timeliness of the plaintiff’s complaint(s); (3) the promptness of
the employer’s response; and (4) whether that response was
proportional to the seriousness and frequency of the harassment.
See, e.g., Distasio v . Perkin Elmer Corp., 157 F.3d 5 5 , 65 (2d
Cir. 1998); Adler, 114 F.3d at 676.
21 V. Dartmouth’s Responses to Moore’s Complaints.
As noted above, Dartmouth has submitted documentation
evidencing over 150 contacts by its Office of Equal Opportunity
and Affirmative Action, either directly with or involving Moore.
Each time Dartmouth was informed of unacceptable conduct having
been directed at Moore, it took prompt steps to remedy the
situation, escalating the nature of its response with each
successive incident. According to Dartmouth’s Director of Equal
Opportunity and Affirmative Action, “In no instance did a
complaint of Mr. Moore’s fail to receive a response, and in no
instance did Mr. Moore complain to me that an employee repeated
offensive behavior after being warned about such behavior by a
College official.” Exhibit H to defendant’s memorandum,
affidavit of Ozzie Harris at para. 1 3 .
With regard to the first incident identified in Moore’s
complaint (co-worker Bruno’s statement about stealing checks),
Moore reported the statement to his supervisor, Linda Hathorn.
According to Hathorn, she spoke with Earl Sweet, president of the
22 union that represents custodial, maintenance, and food service
workers at Dartmouth, who urged her to issue a written warning to
Bruno. See Exhibit F to defendant’s memorandum, Affidavit of
Linda Hathorn at para. 4 . Hathorn then met with Bruno, Moore,
and Tim Beebe (Moore’s counselor at the Veterans’ Administration
Hospital in White River Junction, Vermont). According to
Hathorn, Bruno acknowledged making the statement and admitted it
was wrong. Hathorn then said she was inclined to issue Bruno a
written warning, but Moore urged her not to do s o . Id. See also
Moore’s objection (document n o . 39) at 4 (“At the meeting, I did
say I did not want [Bruno] to get fired for making these
comments, just to talk with him.”). Accordingly, Hathorn issued
Bruno a verbal warning, documentation of which is attached to her
affidavit.
With regard to the second incident identified in Moore’s
complaint (co-worker statement that he was hired to meet a
quota), Dartmouth says Moore never reported that event. It does,
however, acknowledge that during his initial six-month
23 probationary period, Moore periodically complained to Hathorn
about unspecified incidents of co-workers being “unfair” and
“lying.” Several of Moore’s reports were made when he telephoned
Hathorn and other supervisors at home on nights and weekends.
Moore was specifically instructed t o : (1) deal with such issues
during work hours; and (2) provide details about any offensive
behavior directed at him, so that Dartmouth might formulate an
appropriate response. See Exhibit F (attachment 3 ) to
defendant’s memorandum.
With regard to the comments from Moore’s co-worker Shirley
(“watch your back”), Dartmouth says Moore did report that the
comments were made, but refused to provide sufficient details to
permit any sort of investigation. Nevertheless, through a series
of meetings, Dartmouth attempted to develop a better working
relationship between Moore and his co-workers, some of whom said
they found Moore to be “intimidating and volatile” and that they
avoided him out of concern they might “set him off.” According
to Hathorn, Moore participated in some of those meetings and
24 expressed satisfaction with the steps Dartmouth had taken to
address his concerns. See Exhibit F to defendant’s memorandum,
Hathorn affidavit at para. 8 .
With regard to Moore’s claim that co-workers blamed him for
causing problems in the workplace, Dartmouth says it was never
informed of that specific event (or events). Nevertheless, it
recognized that Moore was having difficulty working with other
employees and, therefore, convened several meetings with the
custodial staff (in consultation with the Office Equal
Opportunity and Affirmative Action) to discuss issues of
diversity, racial tolerance, and the importance of working
together as a team.
Subsequently, Moore told Ozzie Harris, the head of the OEO,
that a co-worker remarked that Moore was receiving special
treatment because he is black. Harris met with both Moore and
the co-worker, Ray Landry. Landry acknowledged making the remark
and apologized to Moore. According to both Harris and Hathorn,
25 Moore and Landry remained on friendly terms after Landry
apologized and Moore never again complained of any problems with
him.
Finally, after Moore reported his discovery of the offensive
graffiti, Dartmouth immediately began an investigation. Michael
Getter, Director of Facilities Operation and Maintenance (Moore’s
department head), met with Moore and various supervisors to try
to determine who might have posted the note. Additionally, the
OEO began its own investigation, during which it interviewed
nearly twenty college employees and temporary contract workers.
Despite its investigative efforts, Dartmouth was unable to
determine who had left the note. Moore was given paid leave
after the incident and encouraged to provide Dartmouth with any
relevant information he might have concerning who might have left
the note. When Moore indicated that he intended to resign,
representatives of the OEO again met with him and counseled him
against doing s o . They told him that in light of his medical
problems (he said he would be enrolling in a residential alcohol
26 treatment program at the VA Hospital), he could go on short-term
disability, thereby preserving the option to return to his
position when he finished his treatment, and decide at that time
whether he still wished to resign. Moore elected not to follow
that advice and submitted his resignation.
In summary, on each occasion that Dartmouth became aware
that Moore had been subjected to offensive or potentially
offensive comments by co-workers, it investigated the matter and
took prompt remedial action, escalating the nature of its
response with each subsequent incident. That involved, among
other things, formally reprimanding two employees about their
conduct, warning them to immediately discontinue such behavior,
and making appropriate notations in their personnel files;
conducting several meetings with Moore’s co-workers to sensitize
them to issues of race in the workplace; meeting frequently with
Moore, listening to his complaints, soliciting his ideas on ways
to resolve his concerns about his relationship with co-workers,
and offering various forms of support (including paid leave, the
27 option to elect short-term disability leave, e t c . ) ; and
conducting an extensive investigation into the graffiti incident.
Reasonable minds might honestly debate the efficacy of
Dartmouth’s various responses and/or the availability of other
potential remedies that it might have pursued. But, Dartmouth is
not strictly liable for harassment perpetrated by its employees
on fellow employees. It can be held liable under Title VII only
if its responses “indicate an attitude of permissiveness that
amounts to discrimination,” Blankenship, 123 F.3d at 873, or, at
a minimum, if it failed to acted “reasonably” under the
circumstances. See, e.g., DeGrace, 614 F.2d at 805 (imposing on
employers the obligation to take “reasonable steps under the
circumstances to correct and/or prevent racial harassment”).
Although Dartmouth was not able to completely rid the workplace
of unpleasant comments and/or harassment directed toward Moore,
it certainly responded promptly and in a manner reasonably
calculated to address each of his specific complaints (through
counseling and formal disciplinary action) and designed to
28 prevent any risk of systemic harassment (by addressing and
counseling Moore’s co-workers in group meetings). As the Court
of Appeals for the Tenth Circuit has observed:
A stoppage of harassment shows effectiveness, which in turn evidences such reasonable calculation. However, this is not the sole factor to be considered. Because there is no strict liability and an employer must only respond reasonably, a response may be so calculated even though the perpetrator might persist.
[A]n employer is not liable, although a perpetrator persists, so long as each response was reasonable. It follows that an employer is not required to terminate a perpetrator except where termination is the only response that would be reasonably calculated to end the harassment. Unfortunately, some harassers may simply never change. Just as unfortunate, a victim may have to suffer repeated harassment while an employer progressively disciplines the perpetrator to determine whether he or she is just such a “hard head” case.
Adler, 144 F.3d at 676. See also Landgraf v . USI Film Products,
968 F.2d 4 2 7 , 430 (5th Cir. 1992) (“Title VII does not require
that an employer use the most serious sanction available to
punish an offender, particularly where, as here, this was the
first documented offense by an individual employee.”).
29 Under the circumstances presented in this case (particularly
since the majority of harassment constituted racially-oriented
comments from separate perpetrators, each of whom stopped after
being disciplined or counseled by the employer), no rational
trier of fact could justifiably conclude that Dartmouth’s conduct
was not reasonably calculated to bring a prompt end to the
hostility to which Moore was subjected. “Once an employer has in
good faith taken those measures which are both feasible and
reasonable under the circumstances to combat the offensive
conduct we do not think he can be charged with discriminating on
the basis of race.” DeGrace, 614 F.2d at 805.
Dartmouth’s conduct certainly does not indicate an “attitude
of permissiveness” toward racial harassment sufficient to warrant
the conclusion that it discriminated against Moore. To the
contrary, the record reveals that Dartmouth acted promptly,
reasonably, and in a good faith effort to end any harassment or
even potential harassment to which Moore was or might have been
subjected. That is precisely what Title VII demands. While
30 Dartmouth’s “remedial efforts did not meet [Moore’s]
expectations, they were both timely and reasonably likely to
prevent the conduct underlying [his] complaint from recurring.”
Saxton v . American Tel. & Tel. Co., 10 F.3d 526, 535 (7th Cir.
1993). Dartmouth i s , therefore, entitled to judgment as a matter
of law with regard to Moore’s Title VII hostile work environment
claim.
VI. Title VII and Constructive Discharge.
Because Moore’s complaint is somewhat vague, it is unclear
whether he also seeks damages under Title VII for constructive
discharge. Assuming he is advancing such a claim, the record
reveals that Dartmouth is entitled to judgment as a matter of
law.
The Court of Appeals for the First Circuit has held that a
plaintiff alleging discriminatory constructive discharge under
Title VII must establish:
31 that he (1) was within a protected class; (2) met the employer’s legitimate performance expectations; (3) was actually or constructively discharged; and (4) was replaced by another with similar skill and qualifications. Alleging constructive discharge presents a “special wrinkle” that amounts to an additional prima facie element. In such cases, the plaintiff must prove that his employer imposed working conditions so intolerable that a reasonable person would feel compelled to forsake his job rather than to submit to looming indignities.
Landrau-Romero v . Banco Popular de Puerto Rico, 212 F.3d 607,
612-13 (1st Cir. 2000) (citations and internal quotation marks
omitted) (emphasis supplied). For the reasons discussed above,
Dartmouth did not, as a matter of law, “impose” on Moore working
conditions so intolerable that a reasonable person would feel
compelled to resign. While Moore’s co-workers may have subjected
him to racially charged comments, and while it is possible that
one of them was responsible for the offensive graffiti, Dartmouth
undertook prompt and reasonable action to alleviate such
harassment. Consequently, Moore’s constructive discharge claim
necessarily fails.
32 In other words, because Dartmouth responded appropriately to
Moore’s complaints of workplace harassment (and, for that reason,
cannot be said to have discriminated against h i m ) , it cannot have
“imposed” on him a hostile work environment. Moreover, as many
courts have recognized, if a plaintiff cannot, as a matter of
law, prevail on his or her hostile work environment claim, he or
she necessarily cannot prevail as to a Title VII constructive
discharge claim. See Hernandez-Torres v . Intercontinental
Trading, Inc., 158 F.3d 4 3 , 48 (1st Cir. 1998) (citing cases).
See also Landgraf, 968 F.2d at 430 (“To prove constructive
discharge, the plaintiff must demonstrate a greater severity or
pervasiveness of harassment than the minimum required to prove a
hostile working environment.”).
Conclusion
As the Supreme Court has observed, Title VII is not a code
of civility for the workplace. Oncale, 523 U.S. at 8 1 . Nor does
it impose on employers the obligation to insure an antiseptic
working environment in which employees are guaranteed the right
33 to be free from insult, ridicule, or even discrimination by co-
workers. Instead, Title VII imposes on employers who are (or
should be) aware of co-worker harassment in the workplace the
obligation to take prompt and reasonable measures designed to end
the offensive conduct.
Here, in response to Moore’s complaints of racial
harassment, Dartmouth undertook prompt and reasonable corrective
action designed to end such harassment. Consequently, no
reasonable factfinder could conclude that Dartmouth’s conduct
constituted an inadequate response to Moore’s complaints or that
it discriminated against Moore in violation of Title VII.
Dartmouth i s , therefore, entitled to judgment as a matter of law
and its motion for summary judgment (document n o . 36) is granted.
Moore’s motion for summary judgment (document n o . 52) is denied.
Dartmouth’s motion to strike (document n o . 44) is denied as moot.
The Clerk of the Court shall enter judgment in favor of defendant
and close the case.
34 SO ORDERED.
Steven J. McAuliffe United States District Judge
September 2 8 , 2001
cc: Thurman Moore, pro se Sean M. Gorman, Esq.