UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-10145 __________________
STEPHANIE WALKER; NYREE PRESTON,
Plaintiffs-Appellants,
versus
CHERYL THOMPSON; DON KINGSTON; GLASFLOSS INDUSTRIES, INC.,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court for the Northern District of Texas ______________________________________________ June 13, 2000
Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This appeal is from a district court’s grant of summary
judgment in favor of an employer in a race discrimination case. We
conclude that the district court properly granted summary judgment
with respect to the appellants’ claims of failure to promote,
retaliation, and intentional infliction of emotional distress and,
thus, affirm in part. However, after a thorough review of the
record, we are convinced that the appellants have raised a genuine
issue of material fact regarding their claim of hostile work environment. We therefore vacate the district court’s grant of
summary judgment on that claim and remand for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
Because this case is before us on appeal from a summary
judgment, we set forth the evidence in the light most favorable to
the appellants. Glasfloss Industries, Inc. (Glasfloss), a closely
held Texas corporation with facilities in Dallas and Houston,
manufactures and sells air filtration products. Scott Lange
(Lange), who resides in Wisconsin,1 is president of Glasfloss. Don
Kingston (Kingston) is vice-president and general manager, and
Cheryl Thompson (Thompson) holds the position of office manager.
In January of 1994, Thompson hired Stephanie Walker (Walker),
an African-American woman, as an accounts-receivable clerk.
Thompson was Walker’s immediate supervisor. The next month, during
a conversation on the topic of babysitting, Thompson told Walker
that her grandmother would rub a little black boy’s head for good
luck much like the slave masters did to slaves.2 Walker responded
that “it wasn’t funny” and that she “hadn’t [ever] heard anything
like that before.”
1 Lange is president of two other related Glasfloss companies, Glasfloss Industries, Inc. (which is incorporated in Wisconsin) and Glasfloss Industries, Inc. of Ohio. Lange is also the general manager of Glasfloss in Wisconsin. 2 During her deposition, Thompson admitted to making this remark to Walker; however, she asserts that it was in the context of explaining that her grandmother had never been around African- Americans.
2 Approximately a month later, Bill McKnight (McKnight), the
operations manager at Glasfloss, asked Walker “where she was from
[sic].” She replied Africa. McKnight laughed and retorted that
Walker did not look like she swung from the trees. Thompson was
present when McKnight made that remark. The next day, Thompson’s
husband was at the office and inquired of Walker “where did you say
you were from, your people was [sic] from?” Walker again responded
Africa, and Thompson’s husband said “I thought you looked like one
of my grandmother’s slaves.” Thompson and her husband laughed.
Late in 1994, Thompson hired Barbara Scoggins, a Caucasian
woman, for a position in the payroll department. In March of 1995,
Thompson mentioned to Walker that a customer service supervisor
position was being created. Walker informed Thompson that she
would be interested in such a position, and Thompson responded that
“nothing is official right now. . . . [W]e’ll let everybody know.”
Walker did not hear anything else about the position until it was
announced that Thompson had promoted Scoggins to the position of
customer service supervisor.
In April or May of 1995, a data entry position became
available. Walker again expressed interest to Thompson. According
to Walker, a white woman named Karen was hired to fill the data
entry position, a position Walker believed would be a functional
promotion. Walker later complained to Bert Hibl, who was the sales
manager, that she would never be promoted because of the prejudice
in the office. Hibl responded “you’re probably right.”
3 In the context of discussing the collection of accounts for a
customer, Mark Filewood, marketing and product development manager,
told Walker he would send her back to Africa with her family if she
was not careful. Filewood made this “threat” once during the
summer of 1995, and again several months later.
On one occasion there were Brazilian nuts in the office, and
Thompson asked Walker whether she knew what they were called.
Thompson informed her that some people called them “nigger toes.”
Scoggins hired Nyree Preston (Preston), an African-American
woman, for the position of customer service representative in March
of 1996. Subsequently, Scoggins hired Denise Porter (Porter), an
African-American woman, for a position in the customer service
department. Scoggins was the immediate supervisor for both Preston
and Porter, and Scoggins reported to Thompson.
In the spring of 1996, Amy Langsford (Langsford), an employee
at Glasfloss, was upset that her estranged husband would not return
her young son’s tennis shoes. In Walker’s presence, a crying
Langsford exclaimed that her husband wanted to hang the shoes from
his rear view mirror “like those niggers.” Upon hearing this,
Scoggins burst into laughter, and Langsford apologized to Walker.3
During a conversation with Walker, Thompson indicated that any
race was acceptable except African-Americans. Thompson stated that
Matilda Faz (Faz), an Hispanic Glasfloss employee, was “still white
3 During her deposition, Scoggins testified that she heard Langsford make the remark about the tennis shoes.
4 as long as she wasn’t black.” At a subsequent time, McKnight
observed that Juby, an Indian Glasfloss employee, was as dark
complected as Walker. Thompson explained that Juby was acceptable
because his hair was different from the hair of black people.
At various other times, the managers at Glasfloss made several
offensive remarks regarding African-American hair. In Walker’s
presence, McKnight, for no apparent reason, began talking about a
cat that had “nappy” hair like “black people.” Walker asked
McKnight if he was trying to make a point, and McKnight did not
respond. At a different time, Scoggins was planning to hold some
sort of beauty demonstration and asked Walker if she could “do”
Walker’s hair. Scoggins said “[a]fter all, I do [my dog’s] hair.”
Walker refused. One other time, while in the break room, Walker
overheard Thompson tell Faz to ask Walker about what she did with
her hair when it got wet and “nappy.” Faz complied with Thompson’s
request, but Walker did not respond.
As Walker was leaving a Glasfloss anniversary party held at a
local establishment, McKnight “yelled out that [she] needed to
hurry up and get to [her] car.” When Walker asked him why, he
blurted out “because somebody would think [she] was there to rob
them.” Everyone there, including Kingston, laughed.
For Thompson’s 30th birthday in June of 1996, she received a
birthday card from another employee with a photographic likeness of
a monkey on the face of the card. The card itself, commercially
produced by American Greetings, contained an innocuous birthday
5 message.4 Thompson claims that she displayed it on her desk among
other birthday cards. Contrary to Thompson’s assertion, Walker and
Preston contend that the card was not among the others on
Thompson’s desk but instead was the lone card taped to Thompson’s
window with the picture of the monkey facing the desks of the
African-American employees. During the month that this card was on
display, Thompson, Scoggins, and McKnight would view the card in
relation to its position vis-a-vis the three African-Americans,
laugh, and make jokes about the “little black monkey.”
It was around this time that Scoggins decided to move Porter
to a desk away from Preston’s desk in order to keep them from
talking. Scoggins separated the two African-American employees
despite Preston’s protest that she was supposed to be training
Porter. Additionally, Scoggins stated to Preston that she had a
personal problem with her conversing with Walker, and that although
she could not control Walker because Walker was not in her
department, she could control Preston and Porter, who worked under
her.
At one point, Porter took one day of personal leave but needed
to call the office regarding work. When she called and asked to
speak to Preston, the receptionist “screamed out” that Preston had
a “personal call.” This upset Porter because the call was work-
4 The printed message inside the card read as follows: “After awhile birthdays can get pretty hairy! Have a good one!” There was also a handwritten message to Thompson from an employee at Glasfloss, which simply was an expression of good will.
6 related and there had been recent instructions to limit personal
calls. When Porter returned to Glasfloss the next day she
addressed her complaint to the receptionist. Scoggins reproached
her for doing so even though previously management had instructed
the employees to attempt to resolve their problems with co-workers
prior to resorting to making a complaint to management.5
As a result of her encounter with Scoggins, Porter became very
upset. After attempting to regain her composure in the restroom,
she returned to the office. Walker apparently noticed some lint
from a facial tissue in Porter’s braided hair and began removing
it. While Walker was doing so, Kingston walked by and said “What
are you doing [Walker], picking fleas?”
Sometime during the latter part of 1996, Sandra, an employee
in the Glasfloss human resources department, told Walker and
Preston that Thompson instructed the receptionist to listen to
Walker’s and Preston’s phone conversations. Also, Diane Cantu,
another human resources employee, stated that Thompson instructed
her “to act a certain way towards” Walker, Preston, and Porter.
In December of 1996, Preston had a question regarding the
computer system and Walker, who was on a break, walked up to assist
her. Upon seeing the two women talking, Thompson inquired whether
Walker had any work to do. Walker replied that she was on a break
5 Porter had observed white employees directly address problems with other departments and co-workers; however, it appeared that African-Americans were forced to address all their complaints through their supervisors, Thompson or Scoggins.
7 and helping Preston with a work-related question. Thompson
countered that regardless of what they were discussing, they should
not be talking. Walker expressly inquired of Thompson “[a]re you
saying that the black ladies shouldn’t be talking?” Thompson
angrily responded “[t]hat’s exactly what I’m saying.” Further,
around this same time, Thompson asserted that Kingston did not want
Walker, Porter, and Preston talking to one another. Thompson would
enforce this “policy” by standing with her hands on her hips and
staring at these women whenever she caught them talking.
That same month Walker contacted an attorney named Judith
Gregg regarding the racial discrimination and harassment she
perceived at Glasfloss. On January 8, 1997, Gregg sent Lange a
letter that summarized Walker’s complaints, including some of the
above-described incidents, and made clear that Walker did not want
to resign or take legal action but instead wanted the illegal
conduct to cease. Lange promptly responded in writing to Gregg
indicating that Glasfloss did not condone discrimination and that
he had authorized Kingston to take immediate action and investigate
the allegations.
As a result of the investigation, Kingston gave Thompson a
written warning for her lack of self control and diplomacy in
regard to the time she snapped at Walker and Preston for talking to
each other. Kingston concluded, however, that there was no racial
discrimination or harassment in the office environment at
8 Glasfloss.6
Sometime in early 1997, Walker observed two African-American
men attempting to apply for positions in the warehouse. McKnight
informed them Glasfloss was not hiring. Less than an hour later
McKnight gave applications for employment to two Hispanic men who
requested them. Walker witnessed this on two separate occasions.7
After realizing that Kingston did not interview any of the
other African-Americans with respect to Walker’s complaint of
racism, Porter believed Walker’s letter to Lange had not
accomplished anything. She stated that she resigned because she
could no longer tolerate the racism and discrimination at
Glasfloss.
On February 26, 1997, Walker and Preston, without the
assistance of counsel, filed a notice of charge of discrimination
with the Equal Employment Opportunity Commission (EEOC) because
they felt the letter had not adequately addressed the racial
discrimination at Glasfloss. Moreover, they felt Kingston was
biased because (1) he made the “picking fleas” comment; (2) he
laughed at McKnight’s comment that people would think Walker was
there to rob them; and (3) he did not interview the other two
6 Although Kingston concluded that there had been no racial discrimination or harassment, he testified during his deposition that he reprimanded Thompson for making the comment about rubbing the head of a black child for good luck. 7 McKnight also referred to an apparently homeless black man who was walking near the grounds at Glasfloss as a “black drag queen.” McKnight called the police to complain, and eventually the police came and removed him.
9 African-American employees at the office, Porter and Preston,
regarding Walker’s complaint.
After the EEOC complaint was filed, Walker and Preston felt
that the employees and managers were hostile to them. Kingston
began greeting them every morning in a loud, sarcastic manner.
When Filewood came to the accounting office with papers, instead of
handing her the papers or placing them on Walker’s desk, he would
throw them on her desk. Occasionally, the papers would land on the
floor. Walker complained to Kingston about Filewood’s actions, and
Filewood later apologized to Walker. Nevertheless, he continued to
give Walker hostile looks after the apology.
Preston believed that McKnight would stand by the facsimile
machine and stare at her. Preston’s chair sat on a plastic strip,
and McKnight would step on that strip in order to cause Preston’s
chair to roll.
McKnight apologized to Walker but at the same time made a
request of Walker to “do a rain dance . . . what y’all do.” Walker
perceived this to be a racist remark.
On March 6, 1997, Thompson instructed Walker to retrieve some
paperwork from the warehouse. Walker responded that the warehouse
was too cold, and, further, Thompson had previously said the
administrative office employees should not go to the warehouse
because they were not covered under the insurance policy. After
her initial refusal, Walker complied with Thompson’s request.
Based on this event, Thompson reprimanded Walker with a written
10 warning.
Preston tape-recorded a conversation she had with Scoggins
without Scoggins’ knowledge. According to Preston, in that
conversation, Scoggins agreed that there was a division between
black and white people in the office and that the black people were
not treated fairly with respect to the no-talking policy. Scoggins
told Preston she was proud of Preston for standing up for her
rights. Preston nevertheless believed that Scoggins had
discriminated against her.
Walker and Preston and certain representatives of Glasfloss8
met with the EEOC. The EEOC was satisfied with Glasfloss’s
cooperation and the proposed agreement.9 Nevertheless, Walker and
8 The appellants state that Lange, the president, did not attend this meeting. 9 The proposed agreement provided that the appellants would not institute a lawsuit in exchange for the following:
a. Respondent agrees that the Company’s policy regarding socializing and talking in the work place will apply equally to all employees. The Company policy permits employees to socialize and talk to each other provided such socialization and talk does not unsuitably interrupt others who are working or unsuitably affect employees’ productivity. This policy will be put in writing and disseminated to all employees via memorandum no later than 20 days from the date of this Agreement.
b. Respondent hereby confirms that it has a policy that has been distributed to all employees, including supervisors, managers and officials, against racial harassment, to include racially offensive comments, slurs, jokes, etc. Any violation of the letter or
11 Preston refused to be parties to the agreement because they
believed that Kingston was biased against them because of the
allegations they made against him. They believed Lange, the
spirit of this policy by any employee will result in disciplinary action up to and including termination.
c. Respondent agrees to require all of its managers in the Dallas office to attend diversity/sensitivity training. This training will be done as soon as practical but no later than 60 days from the date of this Agreement.
d. Respondent agrees that the Dallas Vice President/General manager will be designated to receive all EEO complaints and that Respondent’s managers will not retaliate against any persons filing EEO complaints and will timely and effectively investigate each such complaint.
e. The parties to this Agreement agree that Respondent will reiterate its policy that all employees should be respectful to other employees, and that all employees are to refrain from conduct that amounts to insubordination.
f. Respondent agrees to disseminate to all employees a reminder about its policy on overtime pay via memorandum within 20 days from the date of this Agreement.
g. Respondent agrees to sign and conspicuously post a copy of the “Notice” which is attached to this Agreement. The notice will be on Commission letterhead and shall remain posted for 30 days from the effective date of this Agreement in Respondent’s office . . . .
h. Respondent agrees that [the appellants] will not be penalized in future considerations for transfers, promotions, wage increases, or other employment related matters . . . .
12 president, was the only person who could resolve the problems, and
he had not been involved in the process.
Pursuant to the proposed agreement, Glasfloss subsequently
held mandatory diversity/sensitivity training for all managers and
office employees. Also, Glasfloss circulated a memo stating that
“all employees are free to visit with any co-workers as long as the
visiting does not unsuitably interrupt others who are working or
unsuitably affect employees’ productivity.”
During a team meeting the week before Preston resigned, she
was seated at the conference table when Brenda Barrett (Barrett),
a fellow Glasfloss employee, walked into the room. Thompson asked
Barrett what kind of candy she had, and Barret replied that the
candy was from the “hood.” According to Preston, the “hood” is in
South Dallas, and the population is 90% African-American. Barrett
then offered Preston a piece of candy but did not offer it to
anyone else at the meeting. Preston was the only African-American
at the meeting.
On May 13, 1997, Walker10 and Preston11 resigned from Glasfloss.
Approximately three months later they filed suit in state district
court, asserting discrimination claims against Glasfloss, Kingston,
and Thompson. The defendants removed the case to federal court.
10 During Walker’s tenure at Glasfloss, Thompson gave Walker several good performance reviews that resulted in pay increases. Walker’s initial pay rate rose from $7.50 to $9.25 per hour. 11 Preston received six raises during her employment at Glasfloss and was promoted to lead customer service representative. Her pay increased from $7.50 to $9.65 per hour.
13 The plaintiffs filed an amended complaint alleging race
discrimination and retaliation under Title VII, race discrimination
under 42 U.S.C. § 1981, and intentional infliction of emotional
distress under Texas law. After discovery, the defendants moved
for summary judgment on all of the plaintiffs’ claims. The
district court granted that motion and dismissed the plaintiffs’
claims. Walker and Preston now appeal to this Court.
II. ANALYSIS
A. STANDARD OF REVIEW
The appellants appeal the district court’s grant of the
appellees’ motion for summary judgment. This Court evaluates a
district court's decision to grant summary judgment by reviewing
the record under the same standards the district court applied to
determine whether summary judgment was appropriate. Herrera v.
Millsap, 862 F.2d 1157, 1159 (5th Cir. 1989). Therefore, the
summary judgment will be affirmed only when this Court is
"convinced, after an independent review of the record, that `there
is no genuine issue as to any material fact' and that the movant is
entitled to judgment as a matter of law.'" Id. (quoting Brooks,
Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins.
Co., 832 F.2d 1358, 1364 (5th Cir. 1987) and Fed.R.Civ.P. 56(c)).
Fact questions must be considered with deference to the nonmovant.
Herrera, 862 F.2d at 1159. Thus, if a fact question is dispositive
of a motion for summary judgment, "we must review the facts drawing
all inferences most favorable to the party opposing the motion.'"
14 Id. (quoting Brooks, 832 F.2d at 1364). Questions of law are
reviewed de novo. Id.
B. FAILURE TO PROMOTE UNDER SECTION 1981
Walker argues that the district court erred in granting
summary judgment on her failure to promote claims under 42 U.S.C.
section 1981.12 In the district court, Walker raised failure to
promote claims under both Title VII and section 1981. Walker now
appeals only the district court’s dismissal of her failure to
promote claims under section 1981, arguing that there is no
requirement under section 1981 to exhaust administrative remedies.
The appellees respond that the district court did not dismiss
the § 1981 claims on the basis of failure to exhaust administrative
remedies. Although the district court’s opinion could have been
drafted more precisely, a careful reading convinces us that the
district court dismissed the § 1981 claims for failure to exhaust
and, in the alternative, on the merits.
In the district court’s discussion regarding whether Walker
had exhausted her administrative remedies by raising her failure to
promote claims in the EEOC charge, the district court referred only
to the Title VII claim and made no mention of the section 1981
basis for those claims. However, in a separate section of the
opinion discussing the defendants’ argument that Walker’s failure
to promote claims under Title VII and section 1981 were barred by
the relevant statutes of limitations, the district court stated
12 Preston did not allege a failure to promote claim.
15 that because those claims were not exhausted, it did not need to
decide whether the claims were time barred. Additionally, later in
the opinion, the district court stated that “[f]or the same reasons
that this Court has dismissed Walker’s Title VII claims, this Court
hereby GRANTS Defendants’ Motion for Summary Judgment on Plaintiff
Walker’s Section 1981 claim.” Thus, through incorporation by
reference, the district court apparently did dismiss the section
1981 failure to promote claims for failure to exhaust.
The district court erred in dismissing the § 1981 claims on
that basis. “The use of section 1981 as an avenue for redress of
employment discrimination is not constrained by the administrative
prerequisites [applicable to] Title VII claims . . . .” Scarlett
v. Seaboard Coast Line R. Co., 676 F.2d 1043, 1050 (5th Cir. Unit
B 1982).
Nevertheless, as previously stated, the district court
alternatively dismissed the section 1981 failure to promote claims
on the merits. In the section of the opinion discussing whether
the Title VII failure to promote claims were exhausted, the
district court noted that even if it had been able to reach the
merits of the claim, it would have dismissed the claims as a matter
of law. Thus, in the alternative, the district court denied the
Title VII failure to promote claims on the merits, finding that
although Walker had demonstrated a prima facie case of
discrimination, Glasfloss had articulated legitimate, non-
discriminatory reasons for not promoting Walker, and she had failed
16 to demonstrate that the reasons were pretextual. In that footnote
the court never referred to the section 1981 basis for the failure
to promote claims--it only mentioned the Title VII basis for the
claim. As set forth above, however, the district court in a later
section of the opinion expressly stated that it granted the
defendant’s motion for summary judgment on the section 1981 claims
for the same reasons it granted summary judgment on the Title VII
claims. Again, the district court was incorporating by reference
another section of the opinion. Thus, the only fair reading of the
opinion is that the district court also denied in the alternative
the § 1981 claims on the merits. The district court was free to
adopt the same basis for deciding both types of failure to promote
claims because employment discrimination claims brought under both
§ 1981 and Title VII are analyzed under the Title VII evidentiary
framework. Lawrence v. University of Tx. Med. Branch at Galveston,
163 F.3d 309, 311 (5th Cir. 1999).
We conclude that Walker incorrectly argues that the district
court dismissed the § 1981 claims solely on the basis that she had
failed to exhaust her administrative remedies. Walker does not
challenge the district court’s denial of her § 1981 claim on the
merits in her appellate brief. By failing to do so, she has
abandoned that argument on appeal. See Williams v. Time Warner
Operation, Inc., 98 F.3d 179, 183 n.5 (5th Cir. 1996). We
therefore affirm the district court’s grant of summary judgment on
Walker’s section 1981 failure to promote claims.
17 C. HOSTILE WORK ENVIRONMENT CLAIMS
The appellants argue that the district court erred in granting
summary judgment in favor of the appellees on the claim of hostile
work environment in violation of Title VII. To survive summary
judgment, the appellants must create a fact issue on each of the
elements of a hostile work environment claim: (1) racially
discriminatory intimidation, ridicule and insults that are; (2)
sufficiently severe or pervasive that they; (3) alter the
conditions of employment; and (4) create an abusive working
environment. See DeAngelis v. El Paso Mun. Police Officers Ass’n,
51 F.3d 591, 594 (5th Cir. 1995) (hostile work environment based on
sexual harassment). In determining whether a working environment
is hostile or abusive, all circumstances must be considered,
including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris v. Forklift Systems,
Inc., 114 S.Ct. 367, 371 (1993).
The appellants must show that the discriminatory conduct was
severe or pervasive enough to create an objectively hostile or
abusive work environment. Id. at 370. This Court has opined that
“[d]iscriminatory verbal intimidation, ridicule, and insults may be
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment that
violates Title VII.” Wallace v. Texas Tech University, 80 F.3d
18 1042, 1049 n.9 (5th Cir. 1996) (citing DeAngelis, 51 F.3d at 593).
In that case, we assumed arguendo that if there was specific
evidence of “routinely [made] racist remarks,” then a fact issue
had been raised to prevent summary judgment. Id. at 1049 (brackets
in opinion).
In the instant case, the district court granted summary
judgment, concluding that “[n]one of these comments were physically
threatening or humiliating, nor did they unreasonably interfere
with Walker and Preston’s work. Instead, they were simply truly
offensive.” We disagree.
Without restating all the evidence of racial remarks and
allegations set forth previously in this opinion, we conclude that,
viewing the evidence in the light most favorable to the appellants,
they have created a genuine issue of material fact with respect to
their claim of hostile work environment. The offensive remarks
began in 1994, shortly after Walker was hired and had not ceased
the week prior to the appellants’ resignations in May of 1997.
While working for Glasfloss, the appellants at various times were
subjected to: comparisons to slaves and monkeys, derisive remarks
regarding their African heritage, patently offensive remarks
regarding the hair of African-Americans, and conversations in which
a co-worker and supervisor used the word “nigger.” The office
manager also informed them that the vice-president did not want the
African-American women to talk to each other.
Further, we note that the district court never mentioned the
19 fact that Porter, an African-American woman not party to this suit,
resigned because she felt she could no longer tolerate the racism
and discrimination at Glasfloss. Under these circumstances, we are
persuaded that the appellants have created a fact issue with
respect to whether the racial insults they endured were
sufficiently severe or pervasive to alter the conditions of
employment and create a hostile or abusive work environment.
Relying on two Supreme Court cases, the appellees argue that
even if we determine that there is a fact issue in regard to the
hostile work environment claim, there are entitled to summary
judgment because of the prompt, remedial action taken after
receiving Walker’s letter outlining her complaints. Burlington
Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) (sexual
harassment under Title VII); Faragher v. City of Boca Raton, 118
S.Ct. 2275 (1998) (same).13 In those two cases, the Supreme Court
held that “[a]n employer is subject to vicarious liability to a
victimized employee for an actionable hostile environment created
by a supervisor with immediate (or successively higher) authority
over the employee.” Burlington, 118 S.Ct. at 2270; Faragher, 118
S.Ct. at 2292-93. However, when no tangible employment action has
been shown, an employer is entitled to raise an affirmative defense
to such claim. The two elements of this affirmative defense are:
13 Although those two cases involved sexual harassment instead of racial harassment, the Supreme Court indicated its approval of Courts of Appeals in sexual harassment cases drawing from standards developed in racial harassment cases. Faragher, 118 S.Ct. at 2283 n.1.
20 “(a) that the employer exercised reasonable care to prevent and
correct promptly any [racially] harassing behavior, and (b) that
the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or
to avoid harm otherwise.” 118 S.Ct. at 2270; 118 S.Ct. at 2293.
Here, as discussed elsewhere in our opinion, no tangible
employment action has been shown. This affirmative defense
therefore is available to the appellees. Apparently, in an attempt
to demonstrate the first element of the affirmative defense, the
appellees point to the policy statement it had against
discrimination. It is undisputed that the Glasfloss employee
handbook contained an EEOC policy statement against
discrimination,14 however, it appears that Glasfloss had not
promulgated a complaint procedure specifically to address racial
harassment.15 In his deposition, Lange, the president of Glasfloss,
testified that there were no specific policies for the vice-
14 The policy statement read as follows:
It is the policy of the company not to discriminate in recruitment, hiring, compensation, promotion or any other condition of employment on the basis of race, color, national origin, religion, sex, age, physical or mental handicaps, marital status, pregnancy or parenthood. 15 The handbook instructs employees who believe they have been subject to sexual harassment to notify management immediately. The handbook also has a section regarding employee complaints in general. That section instructs the employee to contact his immediate supervisor regarding the problem. If the problem is not resolved, then the employee should inform the appropriate manager.
21 president to follow if he received a race discrimination complaint
against the office manager. The Supreme Court explained that
although it is not necessary as a matter of law for an employer to
have “promulgated an antiharassment policy with complaint
procedure,” the need for such an expressed policy may be raised
when litigating the first element of the defense. Faragher, 118
S.Ct. at 2293. The lack of such a written policy procedure at
Glasfloss certainly weighs in the appellants’ favor in determining
whether there is a genuine issue of material fact with regard to
whether Glasfloss exercised reasonable care to prevent any racially
harassing behavior.
We are not persuaded that the appellees have shown as a matter
of law that they exercised reasonable care in correcting the
racially harassing behavior. It is undisputed that Lange, who
resided in Wisconsin, promptly responded in writing to Walker’s
complaint letter dated January 8, 1997. He then charged Kingston
with the responsibility of investigating Walker’s allegations of
racism. The appellants’ evidence, when viewed in the light most
favorable to them, has demonstrated that Kingston (1) made the
“picking fleas” remark; (2) laughed at McKnight’s comment that
people would think Walker was there to rob them; (3) had a policy
against African-Americans talking to one another; and (4) greeted
the appellants in a sarcastic manner every morning after the
complaint. Additionally, it is undisputed that Kingston did not
interview the other two African-American employees at the office,
22 Porter and Preston, regarding Walker’s complaints of racism.
Finally, it should be noted that Kingston’s investigation
purportedly revealed no racial harassment or discrimination
whatsoever. Kingston reached this conclusion even though (1) he
testified during his deposition that Thompson was reprimanded for
saying her grandmother rubbed a black child’s head for good luck
and (2) Thompson testified that Kingston informed her she should
not have said to Walker that Brazilian nuts were called “nigger
toes.”
Based on the above alleged facts, we conclude that the
appellees have failed to demonstrate as a matter of law the first
element of the defense, i.e., “that the employer exercised
reasonable care to prevent and correct promptly any [racially]
harassing behavior.”
In regard to the second element of this defense--whether the
employee unreasonably failed to utilize any opportunities provided
by the employer or whether the employee failed to avoid harm
otherwise16--the appellees point to the fact that the appellants
16 Although the appellants did not report to Glasfloss the first racially offensive remarks, we do not believe that such delay entitles the appellees to judgment as a matter of law with respect to their affirmative defense. Cf. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 266 (5th Cir. 1999)(explaining that a “plaintiff’s failure or delay in invoking anti-harassment procedures may suggest that a company lacked vigilance or determination to enforce them or that it appeared to turn a blind eye toward . . . harassment”); Watts v. Kroger Co., 170 F.3d 505, 510-11 (5th Cir. 1999) (simply because an employee waited several months to complain of sexual harassment did not entitled employer as a matter of law to Burlington/Faragher affirmative defense).
23 refused to agree to the proposed settlement negotiated by the EEOC.
However, in light of the appellants’ testimony that the racial
remarks and hostile actions continued after the internal
investigation at Glasfloss, we are not persuaded that the
appellants’ refusal to sign the proposed settlement demonstrates
the second element of this defense as a matter of law. Thus,
because there is a genuine issue of material fact regarding this
affirmative defense, and for the reasons stated earlier in this
section, the district court’s grant of summary judgment on the
hostile work environment claim must be vacated and remanded.
D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
There are four elements of a claim for intentional infliction
of emotional distress under Texas law. See Skidmore v. Precision
Printing and Pkg., Inc., 188 F.3d 606, 613 (5th Cir. 1999). First,
a plaintiff must show that the defendant acted intentionally or
recklessly. Second, the defendant’s conduct must have been extreme
and outrageous--so outrageous as to go beyond all possible bounds
of decency. Third and fourth, the actions of the defendant must
have caused the plaintiff to suffer emotional distress, and the
distress must be severe. Id. In the employer-employee context,
Texas courts have found few incidents to constitute extreme and
outrageous conduct. Horton v. Montgomery Ward & Co., 827 S.W.2d
361, 369 (Tex.App.--San Antonio 1992, writ denied).17
17 This Court has held that causing an innocent employee to be subject to an accusation of theft because she opposed an illegal employment practice constituted extreme and outrageous conduct.
24 Insults, indignities, threats, annoyances, or petty
oppressions, without more, do not rise to the level of intentional
infliction of emotional distress. Id. (citing RESTATEMENT (SECOND)
OF TORTS § 46 cmt. d (1965)). Conduct that is illegal in the
context of employment does not necessarily constitute extreme and
outrageous conduct. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d
239, 243 (5th Cir. 1993). Neither does condemnable conduct
necessarily translate into conduct that rises to the level of
extreme and outrageous. Id. (explaining that although we condemned
supervisor’s use of ethnic slurs against employee on a few
occasions, such conduct was not sufficiently extreme or outrageous
to support claim for intentional infliction of emotional distress).
In Thomas v. Clayton Williams Energy, Inc., the Texas Court of
Appeals found that a supervisor’s frequent use of racial epithets
against an employee did not rise to the level of extreme and
outrageous conduct. 2 S.W.3d 734, 740-41 (Tex.App.--Hous.
(14(Dist.) Sept. 23, 1999)). In the case at bar, although the
appellee’s racial harassment of the appellants may have been
illegal (we have found there is a genuine issue of material fact
with respect to their claim of hostile work environment under Title
VII), it does not rise to the level of extreme and outrageous
conduct under Texas law.18 Accordingly, the district court properly
Dean v. Ford Motor Credit Co., 885 F.2d 300, 307 (5th Cir. 1989).
18 As to the third and fourth factors involving the emotional distress itself, the appellants simply assert that “they have
25 granted summary judgment for the appellees on the Texas tort claim
of intentional infliction of emotional distress.
E. RETALIATION CLAIMS
To demonstrate a claim for retaliation, the appellants must
prove (1) that they engaged in an activity that was protected; (2)
an adverse employment action occurred; and (3) a causal connection
existed between the participation in the activity and the adverse
employment action. Webb v. Cardiothoracic Surgery Assoc, 139 F.3d
532, 540 (5th Cir. 1998). Here, we are concerned solely with
ultimate employment decisions. Id.
The appellants correctly assert that they engaged in a
protected activity when they filed a complaint with the EEOC.
Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (explaining that
“[t]here can be no question that [the employee’s] retaliation
claims satisfy the first element of the analysis, filing an
administrative complaint is clearly protected activity”). Thus,
the first prong is satisfied.
Preston contends that she suffered an adverse employment
action when Glasfloss took from her a major account, the Kansas
City Air Filter account. The parties recognize that ultimate
employment decisions include acts “such as hiring, granting leave,
discharging, promoting, and compensating.” Dollis, 77 F.3d at 782.
Our case law indicates that the removal of an account would not
testified that they have suffered feelings of emotional distress sufficient to allow for emotional distress damages.”
26 constitute an adverse employment action. In Dollis, the employee
alleged, among other things, that she was refused consideration for
promotion, refused attendance at a training conference, and her
work was criticized to a government vendor. 77 F.3d at 779-80. We
held that these were at most “tangential” to future decisions that
might be ultimate employment decisions. Likewise, in Mattern v.
Eastman Kodak Company, 104 F.3d 702, 708 (5th Cir. 1997), this
Court found the following events did not constitute adverse
employment actions because of their lack of consequence: verbal
threat of being fired, reprimand for not being at assigned station,
missed pay increase, and being placed on “final warning.”
Preston’s removal from a major account without other consequences
(such as an unwanted reassignment)19 “does not equal being
discharged” nor does it “rise above having mere tangential effect
on a possible future ultimate employment decision.” Mattern, 104
F.3d at 708.
As stated above, to prove retaliation, both Walker and Preston
recognize that they must demonstrate their employer discriminated
against them in such things as “hiring, granting leave, discharge,
promoting and compensating.”20 The appellants argue that they were
discriminated against in the context of taking leave. They assert
19 Burlington, 118 S.Ct. at 2268. 20 Although the appellants raised the issue of constructive discharge in the district court, on appeal the appellants do not allege constructive discharge to satisfy the requirement of adverse employment action.
27 that Thompson prevented “them from taking their breaks together
after they complained to the EEOC.” More specifically, the
appellants claim that “Thompson would seek out the two ladies while
they were on break and look at them in distaste and put her hands
on her hips in a gesture of disapproval.” The appellants cite no
authority to support their contention that “granting leave” in this
context would encompass taking a short break. They have not shown
that this constitutes an adverse employment action.
Finally, Walker contends that when Thompson deducted her
overtime pay on one occasion in 1997, it was in retaliation for
Walker’s EEOC complaint. This claim is premised entirely on the
fact that Walker was not initially paid $2.89 for overtime she
failed to have approved in advance pursuant to Glasfloss’s policy.
Again, Walker cites no authority that would support her argument on
this issue and cannot demonstrate that this de minimis loss of pay
rose to the level of an adverse employment action.
Accordingly, both Walker’s and Preston’s retaliation claims
fail.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s
summary judgment against Walker with respect to her section 1981
failure to promote claims. We AFFIRM the district court’s summary
judgment against Walker and Preston with respect to their
intentional inflection of emotional distress and retaliation
claims. We VACATE the district court’s grant of summary judgment
28 against Walker and Preston with respect to their hostile work
environment claims and REMAND for trial.
AFFIRMED in part, VACATED and REMANDED in part.