Opinion
CA 99-0889-C
August 1, 2000
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendant's motion for summary judgment (Doc. 14; see also Doc. 15 (brief in support of the motion for summary judgment)), the plaintiff's response in opposition to the summary judgment motion (Doc. 18), the defendant's reply brief (Doc. 21), plaintiff's response to the defendant's reply brief (Doc. 24), and the parties' oral arguments on July 13, 2000. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings, including disposition of this motion. (See Doc. 26 ("In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all proceedings in this case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.")) Upon consideration of the contents of the briefs, all pertinent materials submitted in support of the briefs, and the arguments of counsel, the Court GRANTS the motion for summary judgment on plaintiff's claims and ORDERS that plaintiff's complaint be DISMISSED WITH PREJUDICE.
Any appeal taken from this memorandum opinion and order and judgment shall be made to the Eleventh circuit Court of Appeals. (See Doc. 26 ("An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court."))
FINDINGS OF FACT
1. Plaintiff, John B. Potts, is of Native American heritage. (Doc. 18, Plaintiff's Exhibit 1, Deposition of John B. Potts, at 10-11 13-14) He is a descendant of the Monack tribe of Creek Indians ( id. at 10-11) and is an official member of the Atmore Creek Indians, having at least one-quarter Indian blood (id. at 14).2. Potts began his employment with the defendant in August of 1993 (id. at 9) as a pipe fitter/welder (id. at 32). Over the course of his employment, plaintiff performed numerous and varied duties which included laying pipe, setting meters and welding pipes. (See Id. at 35-39) Plaintiff was informed of a job opening at Conecuh-Monroe Counties Gas District (hereinafter, "Conecuh- Monroe Gas") by Jerry Johnson and Pete Hicks. (Id. at 31 98; see also id. at 97 (Potts' testimony that Johnson had something to do with him getting a job with Conecuh-Monroe Gas); see Doc. 18, Exhibit 3, Deposition of Gerald Borden, at 14 (Jerry Johnson recommended Potts to him))
3. Plaintiff's job as a pipe fitter/welder placed him in the construction department of Conecuh-Monroe Gas as opposed to the service/appliance department of the defendant. (Doc. 18, Exhibit 1, Potts depo., at 43; see Doc. 18, Exhibit 2, Deposition of Jerry Johnson, at 17 ("We have got a construction department and a service department. Johnny was in the construction part most of the time. When we needed him, he would help us.")) At all times, Mike Presley was plaintiff's direct supervisor. (Doc. 18, Exhibit 1, Potts depo., at 36 43)
4. Jerry Johnson, a service technician with Conecuh-Monroe Gas for twenty-three years (Doc. 18, Exhibit 2, Johnson depo., at 3), and the service supervisor of the defendant since approximately 1980 (id. at 15; Doc. 18, Exhibit 1, Potts depo. at 46), worked under the direct supervision of Mike Presley (Doc. 18, Exhibit 2, Johnson depo., at 6; see also Doc. 18, Exhibit 3, Borden depo., at 13 (Johnson reported to Presley); Doc. 18, Exhibit 4, Deposition of Mike Presley, at 13). Johnson supervised Potts only when the two men worked together; otherwise, Presley supervised Potts inasmuch as Presley was the general foreman and Potts was hired to perform construction work rather than service work. (See Doc. 18, Exhibit 2, Johnson depo., at 14-16; Doc. 18, Exhibit 3, Borden depo., at 8 (Mike Presley was the general foreman at Conecuh-Monroe Gas)) In other words, when Potts performed service department work Johnson was his supervisor; otherwise, Presley was Potts' supervisor. (See Doc. 18, Exhibit 2, Johnson depo., at 18; Doc. 18, Exhibit 3, Borden depo., at 10 ("[A]s is typical with any organizational chart, anyone above you on that chart is your supervisor. Whether they are called a service supervisor or foreman or transmission tech supervisor, anyone you are below in that organizational chart, you are under their supervision."))
The none-too-cooperative deponent was arrested on numerous occasions throughout high school, and perhaps thereafter, for fighting and disorderly conduct. (See id. at 11-13) It was Johnson's testimony that he never threatened to fight with Potts because "[i]f [he] want[s] to fight, [he] fight[s]." (Doc. 18, Exhibit 2, Johnson depo., at 56)
5. Johnson is of Creek and Cherokee descent, according to what he has been told by his parents and grandparents, but is not a member of any tribe or Indian organization and does not really consider himself to be an Indian. (Doc. 18, Exhibit 2, Johnson depo., at 53-54; see also Doc. 18, Exhibit 1, Potts depo., at 58-59 ("Some of his kin people claim to have some [I]ndian heritage on them, but whether he is a member of the reservation or any reservation tribe, I have no idea. I mean, you know, so far as I know, he has no documentation or anything, you know, to my knowledge."))
Q What do you think of Indians?
A I have no problem with them.
Q What about being like a bunch of negroes? Do you have a problem with that?
A What I meant by that, they are wanting everything for nothing. They accuse the white man. The white man is taking all the blame for them. Johnny, he is just on and on and on and on.
Q So, basically, you believe that black people are wanting something for nothing?
A Yes.
Q All black people?
A No.
Q How many? Half?
A About a third of them probably.
Q About a third?
A The ones sitting around on the street down on the corner down here wa[i]ting on a hand-out.
(Doc. 18, Exhibit 2, Johnson depo., at 54)
6. Approximately one to one and one-half years prior to November 19, 1996, Potts began having problems with Johnson. (See Doc. 18, Exhibit 1, Potts depo. at 47-48) On one occasion, while digging a hole with a backhoe on Wolf Log Road, Johnson started hollering at him, cussing him and then stepped on the backhoe blade and grabbed his collar. (id. at 50 52) Potts characterized Johnson's demeanor following completion of the digging of the hole, as follows: "[H]e started talking about this, that — you know, what I was doing wrong, fussing and car[ry]ing on, first one thing and then another. . . . [H]e told me if I didn't like the way he was doing things, that we'd go to the woods and settle it." (id. at 51) Potts admitted, however, that on this occasion, Johnson never said anything racial or ethnic in character (id. at 52) and, in addition, admitted that prior to this time no one else had joked or kidded him about his Indian heritage and that any physical confrontations or problems that occurred all involved Johnson (see id at 53). During this period of time, Potts kept matters to himself and did not inform Presley or anyone else about his problems with Johnson because he chalked everything up to normal working conditions. (Id. at 53-54) "I had — working construction you run up on all kind of incidents. You know, lot of times though, you know, you know a job's only going to last so long. So instead of causing trouble, getting fired or something like that you just kind of tolerate certain incidents and just go on about your business." (Id. at 54)
7. On another occasion prior to November 19, 1996, while working on installing a gas main somewhere on Highway 31, Johnson began a normal diatribe of cussing, hollering and screaming because he perceived that the work was not getting done because everyone was spending too much time at the water cooler drinking water. (Id. at 54-5 5) The following day, Johnson left the gas company without a water keg on his truck and when the water keg on Potts truck got close to where Johnson and Presley were working, Presley asked for the water keg to be left with them. (Id. at 55) Thereafter, the following occurred: "I told him it looked like to me Jerry didn't need no water keg because he complained about us drinking so much water that he, you know, must have undoubtedly been able to get along without it. Well, that's when he [Jerry] got mad again. . . . Jerry, again, asked me if I wanted to go to the woods and settle it. . . . It all kind of blew up after that, but Mike separated us. We went on, cooled down and things kind of got back to normal." (Id. at 55 56) Again, Johnson did not make any comments I, about Potts' Indian heritage during this physical confrontation on Highway 31 (see id. at 57-58), but between the log road incident and the Highway 31 incident such remarks had been made by Johnson (e.g., Indians not being any better than a bunch of Niggers) to the .point that Potts was finding them "hard to tolerate." (Id. at 58) Potts reiterated that no employee of the defendant other than Johnson ever used any racially derogatory language or slurs to him or about him. (See id. at 60) However, Potts did complain to Presley about Johnson's harassing treatment of him. (See id. at 84-88) "[I]t was made plain to me that Jerry Johnson was my supervisor, I was to take orders from him and that there was nothing wrong with the way he was treating me." (Id. at 84)
8. Potts testified that on more than one occasion, Johnson made the comment that Indians were no better than welfare Niggers. (Id. at 60-61) According to Potts, these comments were made in the presence of just about every employee in the office, out in the field and in the shop where the workers assembled each morning. (Id. at 61) On or about November 15, 1996 (id. at 121), prior to the Alabama/Auburn football game, when the workers were gathering in the shop, a discussion about casinos on Indian reservations came up and during that discussion Johnson commented that the Indians on reservations were "like a bunch of damn Niggers wanting something for nothing." (Id. at 66; see also id. at 64-67; cf. Doc. 18, Exhibit 2, Johnson depo., at 29 3 3-34 (Potts provoked him to say that the Creek Indians, plaintiffs people, were like a bunch of Niggers or Negroes, wanting something for nothing, by running his mouth about the casino business in Atmore and complaining about the white man taking Indian land)) Barry Stewart, a construction worker at the defendant, was present during the conversation regarding a gambling casino on the Indian reservation and heard Johnson comment that the Indians on the reservation were like a bunch of Niggers. (See Doc. 18, Exhibit 5, Barry Stewart depo. at 5)
Johnson tries to discipline himself to say black people most of the time, and never calls a black person Nigger to his/her face, but, on occasion, when no black people are present, refers to black people as Niggers. (Doc. 18, Exhibit 2, Johnson depo., at 37)
9. Mike Presley gave the following relevant testimony about comments made about Indians:
Q Did you ever witness or did you ever hear Mr. Jerry Johnson make any disparaging remarks about Indians?
A No, not that I recall. You know, people — everybody around here might joke, you know. But as far as just pointing one out and saying something about it, no.
Q Explain to me about joking.
A Well, everybody has nicknames. They call me "Shorty" and like that.
Q But I am talking specifically about Indians at this point. Do you recall any type of remarks or comments made by Mr. Jerry Johnson about Indians?
A Not just 100 percent to say he was just directing it right at Johnny, no.
Q Again, I am asking you about Indians; not John. We can talk about John in a second.
A He might have made some about the history, you know, just small talk about the history of the Indians.
. . .
Q What would be some of the things that he talks about with the history of Indians that you are telling me about?
A Just like where they come from and how long they have been over here and just stuff like that. He don't discuss a lot of that with me, no.
. . .
Q Now, with regard to John Potts, in particular, do you recall any type of comments or remarks made by Mr. Jerry Johnson about John Potts being an Indian?
A Well, he knew he had Indian in him.
Q Did he make any remarks about that?
A He may have called him an Indian.
Q What would he have said?
A Hey, Indian, Let's go to work or something. He might have called him, or something like that. I am not 100-percent sure on that.
Q But you recall things of that nature?
A I have heard it, yes.
Q Who were those comments made in the presence of, besides yourself?
A Everyone that works here.
Q What about Mr. Borden?
A I don't know about him now. A lot of time he wouldn't be out back with us while we are getting ready to go to work.
Q What about Mr. Fred Kelley, would he have heard any of that?
A I'm not sure about that.
Q When you said everyone who works here, what did you mean?
A The group here that usually reports here in Evergreen.
Q Would Mr. Jerry Parker have been part of that group that reports here?
A He was. A lot of mornings he wouldn't be out back with us, you know, when we were getting ready to go to work. He would come in and get him some coffee, but I don't know if he heard him or not.
Q But you heard him and you recall?
A I have heard the Indian remark, him being an Indian.
Q About on how many occasions do you recall hearing this?
A I don't know.
Q More than once?
A Yes, I have heard it more than once.
Q Would he have done it more than maybe once a week?
A I don't know. I didn't keep a document of it. It is possible, yes.
Q Did you ever mention or report this type of behavior to any one of your supervisors?
A No, because it was in a joking manner, from what I heard. Q Mr. Johnson thought it was a joke?
A Yeah, and Johnny did too, as far as what I am aware of, because he never came to me and told me that the remarks that anybody was making to him bothered him or he wanted them to quit.
Q . . . Any other instances with regard to John Potts, in particular, being an Indian?
A Not that I can just pinpoint, no.
Q Let me ask you this: There has been some testimony about an occasion where John Potts and Jerry Johnson and, now, I think we know that Barry Stewart were present, where John and Jerry were evidently discussing a casino or an attempt to get a casino nearby and Jerry Johnson made some type of a comment with regard to, Indians are like a bunch of Niggers or a bunch of Negroes. Do you recall hearing that?
A I didn't hear it out of their mouth, no. I heard everybody else talking that it could have been said, but I didn't hear him say it.
Q Would you consider the statements that were made by Mr. Johnson with regard to Indians being like a bunch of Niggers or Negroes, would you consider that a disparaging remark or a discriminatory remark?
A Not in a joking manner; not when everybody — I mean, you take a bunch of people working there and everybody has got nicknames and they joke with one another. It was never presented that Johnny, either it was hurting his feelings or if he was even saying that was against him, because he joked a lot of times with everybody else.
Q What did he joke about?
A Just calling a lot of people nicknames.
Q What did he call them?
A Well, he called Franklin Williamson the Hog; Barry Stewart Rooter.
Q So you felt all of this was done in a playful manner, in your opinion?
A That's right. And no one, neither one of them has come to me, or anybody has said, I don't like those remarks. I would like him to quit.
Q If someone would have come to you and said that, what would you have done?
A Well, I would have taken the appropriate action, talked to them, made them stop. And if they didn't do that, you know, write them up, reprimand them.
(Doc. 18, Exhibit 4, Presley depo., at 14-20)
10. A third physical confrontation eventually occurred between Potts and Johnson, once again on Highway 31 (see Doc. 18, Exhibit 1, Potts depo., at 70-75), on November 19, 1996 (Doc. 15, Exhibits 1-3 to Potts depo.). This confrontation took place after Potts made complaints to management about Johnson. (Doc. 18, Exhibit 1, Potts depo., at 70) "I never specifically said "racial slurs' because I figured all of them had heard it, or just about all of them except for Mike. So, you know, I felt like all of them was — when I said `harassment', I felt like all of them was aware of the type harassment I was going through." (Id.)
11. On this third occasion, Potts and Johnson were out in the field running service to a house when the father of the person they were running service to, a man Potts previously worked with, stopped to talk with the plaintiff. (Id. at 72-73) During the ten minutes Potts initially spoke to Arthur Wilder, Johnson glared at him. (Id. at 73)
Anyway, Arthur goes back around the house, he looks, I reckon just checking his daughter's trailer out, you know, she just set it up. I went back over there and started to work. Well, when Arthur come back out from around the house and doing his little tour of his daughter's trailer, he come back over there where I was working at and stopped for a minute before he left. Well, that's when Jerry goes to hollering and screaming from the road. Well, I turned around then and told him, you know, `I'm taking a break, Jerry'. Well, about that time, you know, Arthur kind of gets upset because he can tell Jerry's done getting bent out of shape and told me, he said, `I don't want to get you in trouble', he said `I'll go ahead and leave'. But anyway, Arthur went ahead and left, so I started back to work.
Well, I was doing some welding[;] when I flipped my hood up Jerry was standing in front of me. All right. He commenced to cussing and fussing and carrying on, first one thing, then another, raising sand. Well, it completely got out of control, that's when he run his hand in his pocket. Now, Jerry had been rumored to have threatened several people with knives, okay? I mean, Doug Williams — like I said, poor Doug's passed away. But there's enough people in the shop that can verify that the man got after him with a machete.
Well, when he run his hand in his pocket down there that's when I figured he was going for . . . his knife. Well, I told him, I said, "Boy", I said, "I hope you do come out of there with a knife". I had a hammer laying right there beside me. I ain't going to lie to you, I was fixing to lay his head wide open if he come out [of] there with a knife.
. . . Well, when he come out of his pocket he didn't bring nothing out with him, nothing. No cigarette lighter, no knife, nothing.
Well, he was already up there in my face getting mad and bent out of shape and stuff and screaming. I told him, I said, "Look boy", I said, "If you want a knife", I said, "I'll give you a knife". And I said, "I hope you do try to cut me". I did, I opened my knife up and handed it to him; held it out for him. I would rather him to have took that knife and me standing there with that hammer in my hand th[a]n me go back to welding and he come up behind me with a knife. . . . I told him then, I said, "Jerry", I said, "The best thing for you to do is get away from me". No, I told him to get out of my face. He turned around and then said, "I ain't in your face". I said, "Jerry, get away from me". I was done mad now. A man shouldn't be pushed to the point to where he's ready to take a hammer and beat somebody's brains out. But that man had done gotten to the point to where something had to happen. . . . Well, anyway, he went on back there and sat on that trailer back there. I went ahead and finished welding the pipe.(Id. at 73-77)
12. It was after this Highway 31 trailer incident that Potts made most of his complaints about Johnson to Mike Presley and Gerald Borden (see id. at 79) no doubt prompted, at least in part, by the company's decision to issue a written warning to both men for their actions on November 19, 1996 (compare id. with id. at 81). Both men refused to sign the employee warning report (see id. at 81-83; see Exhibit 2 to Potts depo.) and instead, each prepared a written statement of the incident (see, e.g., Doc. 18, Exhibit 1, Potts depo., at 90). Potts statement, dated January 27, 1997, reads in its entirety as follows:
This report reads in its entirety as follows:
On November 19, 1996, Jerry Johnson called Mike Presley on the radio and wanted Mike to come to the job site because he was having a problem with Johnny Potts. Mike was unable to go to the job site then because of his work assignments.
Mike asked Jerry Parker if he would meet with him and the two employees concerning the matter that occurred on the 19th. They met on Friday the 22nd.
Jerry Johnson stated that while he was boring Highway 31, Johnny stopped welding to talk to a man for 45 minutes that did not work for Conecuh-Monroe. Jerry said that he stopped and told Johnny that he needed to get the pipe welded-up so that they could get the pipe under the highway. When he told Johnny this, Johnny started arguing and wanted to fight. Jerry stated that he reached into his pocket to get his lighter and Johnny thought he was going for his knife so Johnny asked him if he wanted to use his knife. Jerry said that he walked away from him and went back to work.
Johnny Potts stated that he was talking to a friend that had stopped by to see him. He said the friend was asking him if anyone had to be home with the work that they were doing. He said that while he was talking to his friend Jerry was yelling and screaming at him from the highway. Johnny said that his friend got upset and left. After his friend left Johnny thought that Jerry was going to pull a knife on him.
Johnny said that he did not talk to his friend for 45 minutes and that Jerry did not know what they were talking about. Johnny also stated that he had the pipe welded-up by the time the bore was made.
Both employees have received previous verbal warnings to stop arguing on the job. Jerry Parker and I made it clear that the appropriate action would be taken the next time this took place. It seemed that nothing was resolved concerning this conflict.
(Doc. 15, Exhibit 3 to Potts depo.)
On January 3, 1997 I, John E. Potts received an employee warning report, which is included in this report. I was told I was to read and sign it. upon reading I realized not only was it incomplete but it was very inaccurate. Since the incident took place on November 19, 1996 I assumed short memory was to blame. Being aware of the fact that this was to go on my permanent record and that the incident was reported inaccurately, I refused to sign it and was asked to write my version.
About two months after Jerry and I started working together, I was operating the backhoe, Jerry obviously did not like the way I was working because he was yelling and making motions with his hands. I did not appreciate the way he was acting but I tried to overlook it in order to get along with him. Unfortunately, I must have messed up the dig I was making really bad because Jerry stood on the top edge of the blade and made a motion with his hands like he was going to grab my shirt collar only to brush it, as if he had changed his mind. He later denied touching my shirt collar.
In the discussion that followed Jerry stated that if I was not pleased with the way things were going we could go to the woods to settle it. In light of Jerry's tone of voice and the circumstances surrounding the situation there was no doubt in my mind that he was challenging me to fight in order to settle the matter. Knowing it would cost us our jobs, I chose not to fight. I did tell him that if he ever touched me in anger that we would fight, but we would not make it to the woods before we did. Jerry denied having touched my collar, but verified the remarks were made.
While Jerry and I have been working together, there have been several times in which he inappropriately shouted, screamed and yelled at me. Jerry has belittled and embarrassed me in front of strangers and friends alike with his treatment of and his actions toward me. I have endured all of this in order to keep my job and try to get along.
About three weeks before the second incident I went to Mike and told him Jerry was getting worse and was constantly rushing, shouting at me to hurry up. I told Mike that Jerry's constant fussing was beginning to be more than I could handle and I felt like I was going to have to somehow, slow him down. Mike's comment was for me not to let things get out of hand and not to start a fight with Jerry.
The second incident occurred on Highway 31 north during the month of June or July. Henry Palmer, myself, and one of the part- time help were putting the line down and Jerry was fusing it together ahead of us, most of the time, around a curve out of our sight. Once again, I was not performing to his expectations. Jerry accused me of being slow and the reason that I was so slow was because I was taking to[o] many trips to the water cooler. Jerry, once again, remarked that we could take this to the woods if I did not like it. This challenge, issued by Jerry, was witnessed by Mike Presley. The cause of this incident is still uncertain and not agreed upon.
During the meeting that followed it was brought up that I was probably under a lot of stress, having just been through a divorce. Mike Presley also made it clear to me that Jerry was my boss and I was subject to his orders. Mike Presley also stated that Jerry had always talked to people this way and no one else had thought anything about it and he could not see why it should bother me. Mike later denied saying this. This meeting gave me the impression that my stress was the blame for me losing my temper. I also understood that I was to take orders from Jerry and should be willing to take any verbal abuse that he might throw my way. It was never made clear how much water I could consume or how many trips to the water cooler I was allowed to make. Since this issue was not addressed and nothing was said to Jerry about his treatment of me, I must assume I did indeed abuse my water privileges. In the months to follow I was treated for a kidney infection. My physician told me the best preventive measure would be to drink plenty of fluids.
On November 19, 1996, Jerry and I had left to run a service on Highway 31 south. When we arrived on the job site, I put the signs out and was setting up my welding equipment. I was missing the C-clamps and went back to town and purchased two more. I came back to the job site and continued with my duties. A short time later the father of the customer we were servicing stopped by to see if we needed anything. I recognized him as a person I had worked with for many years. I had not seen him for several years and I stopped to talk with him. I noticed Jerry standing behind me glaring at me and I started paying attention to Author's watch. Taking into account the time before I started paying attention to the time, I believe I could not have talked more than fifteen minutes. I have since talked to Author Wilder and he will verify that we talked for no more than fifteen minutes. After I started back to work Author came around the trailer to ask more questions about what might be needed of him in order to get the gas hooked up to the trailer. This is when Jerry started to yell from the highway. Not wanting to be humiliated and belittled in front of an old friend[,] I replied, in the same tone as he had used, that I was taking a break. Keep in mind that on this particular day we had started work at seven a.m. and it was now after nine. Author got upset, said he did not want to get me in trouble, and left.
I started back to work and Jerry was still at the road making the bore. I had my welding shield on doing some brushing on a weld on a high pressure line that was to go under a major state highway. When I raised my hood Jerry was standing in front of me. I stopped to see what he wanted and he started to argue. After seeing he was not going to leave and continued to argue I took my welding hood off. The argument took place in my work area which was about six foot by six foot. I never left my work area. We continued to argue and both of us were getting angrier. I had heard rumors of Jerry making threats with a knife and when Jerry went into his pocket I thought he was going to get his knife. When Jerry said he did not have a knife, I offered him mine. I had no intention of being cut, verbally abused, nor harassed any longer. I felt I could not continue to work under these conditions. My personal safety, well being, and peace of mind were worth more than this.
Seeing that things had gotten well out of hand and that bodily harm could result, I told Jerry that the best thing for him to do would be to get out of my face. He said that he was not in my face. I then replied that he had best get away from me. When I went to slide the pipe under the road, the hose to the boring tool was still in the hole and I had to wait for it to be removed. Even with all the time lost putting out signs, going back to town, and our arguing I had welder four joints of pipe together, the tap was welded in position in the hole, the no-blow was welded on top of the main pipe, the valve was welded on the other end, and I still had the test on at 12:50 p.m.
It was suggested in the meeting that Jerry was in my work area because he had to get to the radio to call Mike about his problem with me. Taking into account the completion time of the job and the fact that I was in my work area during the argument, I say he had no problem to call about. Even if he did need to use the radio, Unit 26 had a working radio and was closer to where he was working.
I have been [a] construction worker for many years and have worked under various conditions on many jobs. I have never encountered the type of treatment or verbal abuse as I have been subjected to while working for this company. As a welder I have a good reputation and do good quality work when given a reasonable amount of time.
Jerry Johnson, to the best of my knowledge, has a limited knowledge of the type of work I do as a welder. I am not complaining about him being my boss but I do not believe he is qualified to tell me how to do or how long it should take me to complete my job. His help or suggestions are welcome and in most cases appreciated. Jerry has challenged me to fight two times, this has been witnessed by Mike Presley and verified by Jerry Johnson in the presence of Jerry Parker. I cannot comprehend why a company would allow their employees to be treated in such a manner nor why they did nothing to remedy the situation when it was presented to them.
(Doc. 15, Exhibit 1 to Potts' depo.) Johnson's written statement reads in its entirety as follows:
The bore took 45 minutes to complete. I checked my beeper clock when bore started and when it came out on other side of Hwy 31.
Meanwhile when I started the bore, second time, first came out shallow, a black man pulled up on high side of drive beside bore pit and stopped. The pierce arrow was far enough in bank that I let go from holding back end up and got out of bore pit[,] walked over to truck, said good morning[;] he wanted to know if we knew where to set meter[.] I replied yes the woman was home and she would leave door open to get in to connect furnace[.] I told him it probably would take all day to get gas line to trailer[.] [H]e said okay "I was just checking." I started back to bore pit when welding machine shut off Johnny come walking up driveway [and] commenced talking to the man[.] I got back in bore pit to watch marks on hose to know how far pierce arrow was under road. When it was about across, I got out of bore pit[,] got on ditch witch and dug exit pit across highway[.] While I was digging hole[,] Johnny and [the] man pulled down driveway to [the] welding truck [and] started to talking. What they were talking about I don't know or care. When the bore come out I looked at the beeper clock[.] [I]t took 45 minutes to make the bore. I walked across the road and hollered to Johnny about finish[ing] welding pipe before state man came by[;] exit pit was dug close to shoulder of Hwy. Johnny replied, I'm on break[;] I replied[,] you don't get a 45 minute break. He wouldn't finish welding[; instead, he] kept on talking to the man. I called Mike on [the] radio to see if he would come to [the] job site, [but] he said he couldn't right then but he would if I needed him to[.] I said disregard, that[']s okay[.] After I called Mike [the] man left. Johnny was mad about [me] calling Mike to come down. I went to welding truck to get [a] [P]epsi cola out and set in truck and drank it. I finished the [P]epsi[,] got out of [the] truck to light a cigarette when Johnny started running his mouth about don't never talk to him in front of his friends. Hollering at him[,] I said I didn't holler at you, I said you needed to finish welding pipe up. He was mad then about me calling Mike[.] I reached in my pocket to get my lighter out when he said what are you going to do pull a knife on me and I said one Johnny I'm getting my lighter out and don't need a knife for you. He then reached and got his knife out of his pocket and said take mine, I hope you do. I replied[,] Potts one of us is fixing to get hurt you or me one! A few more words was said [and then] I turned and went back to where [the] bore pit was before [the] fight broke out. After things cooled down[,] nothing else was said. Johnny finished welding [the] pipe and asked if I would help push it under [the] highway[.] I said yes, but let me back pierce arrow up[.] [W]e completed [the] job with nothing else said[.]
About previous verbal warnings[:] We have received only one to my knowledge [and] that was up on Hwy 31 North at bore site with directional boring machine. When Johnny[,] Mike and I discussed it in his office it pretained (sic) to [the] same incident. Mike contends this is the third time. If this is the third time[,] I [would] like to know [the] dates of these warnings[.] A record should be kept if its that important [and] not just someone's word to be taken. If no dates can be verified[,] I consider [that] only one [prior] verbal warning [was given.]
Doc. 15, Exhibit 2 to Potts depo.; see Doc. 18, Exhibit 2, Johnson depo., at 20 (testified that Potts would not do his work on this occasion but instead insisted on talking to "[s]ome black guy down there. I don't know who it was. I didn't ask him."))
13. Potts also spoke with Jerry Parker about this specific incident and told him he was being harassed, as reflected in his written statement. (Doc. 18, Exhibit 1, Potts depo., at 92-93) Potts "did not say anything to Parker on this occasion about race or ethnic remarks made by Johnson but testified Parker knew about such comments since he was present in the shop when one of those comments was made. (Id. at 93)
14. After this third incident, Potts made several comments to Mike Presley about things getting worse with Johnson. (Id. at 91; see id. (Potts would tell Presley, "It looks like it's going down[.]"))
15. Potts filed a charge of race discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 5, 1997. (Doc. 15, Exhibit A)
Since 1995, and on a continuing basis, I have been subjected to racial slurs about my Native American race, by my foreman. I have been employed since 1993, and I was assigned to work under my present foreman, Jerry Johnson, during 1995. Although Mr. Johnson made racial slurs towards me prior to 1995, the slurs and discriminatory treatment increased after he was assigned to be my foreman. Additionally, Mr. Johnson has made derogatory statements about my visits to the reservation for dental appointments, and has made critical statements about Native American gambling enterprises. I informed Jerry Johnson that I did not appreciate his treatment of me, however, he told me that we could go out to the woods to settle the matter.
Jerry Johnson, Foreman, has stated in the presence of my co-workers that ". . . an Indian is no better than a Nigger." Although I have complained to the general foreman and general manager about the harassment, I was informed that there was nothing wrong with the way Johnson speaks to me.
I believe that I am being discriminated against on the basis of my race, Native American, in violation of Title VII of the 1964 Civil Rights Act, as amended.(Id.)
16. On March 20, 1997, Jerry Johnson was issued an employee warning report by General Manager Gerald Borden. (Doc. 15, Exhibit 9 to Potts depo.) The company statement on this report reads as follows: "You have made statements to John E. Potts which are racially offensive, and which amount to racial harassment in the course of employment." (Id.) The warning decision on the report states: "The District has a policy which absolutely forbids racial harassment in any form. Such conduct will not be tolerated, and you are strongly warned and admonished to refrain from all such conduct in the future. You shall not take any retaliatory action against John E. Potts for making this complaint." (Id.)
Johnson admitted to Borden that he had made all statements attributed to him by Potts in the EEOC charge but stated that they were made "mostly in a joking form[.]" (Doc. 18, Exhibit 2, Johnson depo.; at 39)
17. The Conecuh-Monroe Counties Gas District personnel handbook reads, in pertinent part, as follows:
7.3.3. Group Two Offenses. Group Two offenses are defined as instances of unacceptable conduct by an employee which are very serious and may constitute grounds for dismissal upon the first occurrence of such conduct, unless mitigating circumstances, as determined by the general manager, render lesser discipline more appropriate. Examples of Group Two offenses include, but are not limited to, the following types of situations:
. . .
7.3.3.17. Harassment — any form of harassment including sexual, racial, political, and religious of another employee or the public[.]
(Doc. 18, Exhibit 6) Borden considered it discrimination for Johnson to have said "Indians are like a bunch of Niggers" and this was why he was reprimanded under company policy. (See Doc. 18, Exhibit 3, Borden depo., at 42-43) Borden explained the mitigating circumstances that spared Johnson's job: "Mr. Johnson's explanation of the statements that had been made and were made, were made as they are done normally by a bunch of guys working together, cutting up, kidding, not serious kinds of things, made me feel like that it did not warrant a firing. A reprimand, yes." (Id. at 45) Thereafter, the following discussion took place:
Q Do you have any black employees here?
A Yes.
Q If I am understanding you correct[ly], the term "nigger" would be just cutting up?
A Not necessarily.
Q Please explain.
A It depends on how it was said.
Q As it was said by Mr. Jerry Johnson, is that just cutting up to you?
A Yes, it was.
Q That was just cutting up?
A Yes, sir.
Q Do you think that any of the black employees, if they overheard it, would have been offended?
A About the Little Mowac?
Q No. About Indians being like a bunch of Niggers.
A I can't address how somebody would feel. I don't know. I assume they might. Some people don't. Some blacks in my employment call other blacks Niggers.(Id. at 45-46)
18. Johnson's rebuttal statement to this warning, made on or about March 21, 1997, reads, in pertinent part, as follows:
In no form or fashion have I made any discriminatory remarks about his heritage of being [I]ndian descent in a serious manner. Everything ever said about Johnny usually was brought up by him, myself or fellow co-workers while sitting around [the] break table in [the] warehouse drinking coffee and talking about anything and everything[.] Most times[,] the Indian subject was brought up by Johnny! [F]or instance[,] [h]e read in the paper one morning about the legislators was (sic) going to turn down [a] bill for placing a casino on reservation land in Atmore[.] [S]o, everyone at [the] table voiced there (sic) opinion about the casino. I asked Johnny why did they deserve a casino when no-one else did in the state. Johnny replied, the Creek land didn't belong to the state [but rather] was Indian land[.] I said[,] so we pay taxes . . . which helps to support the reservation don't we? He said[, "] Yes, ain't it nice.["] I said if you all can have one why can't we. Johnny said because you're not [I]ndian[;] you can come and spend your money at the casino and not have to drive to Biloxi [and] besides when we get it I'll have a big check. I told Johnny the Bingo Palace didn't get my money[,] I know the casino wouldn't[.] Then Johnny started laughing and jokingly saying won't it be nice, I might be able to quit work and let you support me. Well[, the] conversation kept on about why should they have a casino and we couldn't. Johnny said if it wasn't for the white man lying and cheating us we would still have all our lands. I replied, "Johnny[,] we didn't take your land and we didn't have slaves[.] [lit was our ancestors[,] not us[,] who took your lands and brought the slaves over. But we're still paying for things our ancestors did!["] I told Johnny they were like a bunch of Negroes thinking white men owed them a living for things our ancestors did two hundred years ago[.]
On to the matter about remarks made about Johnny going to the dentist on the reservation. All I've ever said to him was why not find another dentist, you've been there twice for the same problem, you do know we have dental insurance[,] don't you? His reply was yea (sic) but this is free and I can visit around while my work on my parcel (sic) is being fixed and if they can't fix them I can get a new set made at no cost.
If Johnny was uncomfortable with our discussion about his Indian heritage he never mentioned it to me or anyone else to my knowledge. During his time frame from 1995 to present day, I've been to his home on weekends and holidays during 1995 working on a[n] 18 ft utility trail[e]r for him and I to build and use for hauling equipment around. I've also been to his home during same time frame to show him how to dig his sweet potatoes with a middle buster, after work hours[.]
My closing statement is if his problem with me has been going on since 1994 (sic) why wait until now to accuse me of racial discrimination. I honestly believe these charges were made in retaliation for the incident that happened on [the] work site in November [of] 1996, which he wasn't happy with the results.
If I'm guilty of any racial remarks about him being of Indian descent, then 90% of the employees at Conecuh Monroe Gas district office in Evergreen is guilty of [the] same thing[.] Everyone here jokes with him about being Indian. Johnny's main problem is he doesn't like me telling him what to do. He's mentioned this to Mike before[.] [H]e doesn't want anyone but Mike to be his boss. Finally[,] the only other remark made by me is sometimes when we're leaving [the] office I'll say are you really lill (sic) MOWAC, which he doesn't mind I guess because he has it on [his] truck door[.]
(Doc. 15, Exhibit 9 to Potts depo.)
19. Either on the 21st or 22nd of March, 1997, Johnson threatened Potts saying, "`If I lose my job over this, I'm coming to [F]latrock[.]" (Doc. 18, Exhibit 1, Potts depo., at 115) Potts believed that Johnson was making a threat upon his life. (Id. at 115 116) Potts did not tell anybody about Johnson's threat because he felt that management had turned its back on him but instead, the following day told Johnson, "Boy[,] . . . [t]hat's the last time you better ever threaten me again[.]" (Id. at 117 118)
20. The EEOC, during their investigation, noted that ninety percent of the employees of Conecuh-Monroe Gas made jokes about Potts' national origin and plaintiff admitted that such joking went on but that he could not remember the content of those jokes because they were not tinged with anger like the comments made by Johnson. (Id. at 125-126)
21. The "Little Mowac" sticker or decal placed on the driver's side of plaintiff's work truck offended Potts but he made no request that it be removed because he felt that if he "let them know it bothered [him], there [would] just be more coming behind it." (Id. at 126-130; but cf. Doc. 18, Exhibit 2, Johnson depo., at 35 (Johnson testified that Potts was proud of the sticker because he "[l]aughed and carried on and giggled about it.")) Plaintiff felt that the decal was a reference to his heritage as opposed to his small stature even though he was not a member of the unrecognized Mowa tribe. ( See Doc. 18, Exhibit 1, Potts depo., at 128-130) The decal remained on Potts' truck for approximately the final two years of his employment (see id. at 169); plaintiff does not know who placed the decal on his truck but his suspicions are that it was placed there by Jerry Johnson and/or Franklin Williamson since both men directed his attention to it (see Id. at 129). According to Barry Stewart, only Potts' truck had a sticker/decal. (Doc. 18, Exhibit 5, Deposition of Barry Stewart,. at 7; see id. at 8 (no one else had his name or nickname on his truck); but cf. Doc. 18, Exhibit 3, Borden depo., at 35-36 (most of the employees had their name on the door of their truck, for example, Ray Madden had "Ray-Ray", and some had "Roll Tide" or "War Eagle")) Johnson took the decal off the truck after plaintiff's employment was terminated. (Doc. 18, Exhibit 2, Johnson depo., at 36)
Borden was aware of the decal but never asked what it meant. (See Doc. 18, Exhibit 3, Borden depo., at 35-36)
22. On August 1, 1997, Mike Presley evaluated Potts' performance for the preceding year. (See Doc. 18, Exhibit 1, Potts depo., at 131) Presley rated Potts' overall job performance as good and specifically rated as good plaintiff's job understanding, job performance, job productivity and dependability. (Doc. 15, Exhibit 9-1 to Potts depo.) The only rating lower than good was plaintiff's cooperation rating which was listed as fair. (Id.) Presley specifically noted the following regarding Potts' cooperation: "Seems to work OK with someone not in the supervisor level. Seems to have questions about orders that are given [and] refused to standby on an emergency leak call when I told him to do so." (Doc. 15, Exhibit 9-1 to Potts depo.) In addition, Presley made the following general comments: "The quality of work he does has been fine, you don't have to go behind him to repair leaks or rework anything that he has done. Improvements that I recommend would be a better attitude towards work and improve on the time it takes to run a service line." (Id.) Presley discussed the evaluation with Potts on August 8, 1997 and noted on the form that plaintiff did not agree with the evaluation. (See Id.) The reason Potts did not agree with the evaluation was because his memory of the standby leak incident, as set forth below, differed from Presley's. ( See Doc. 18, Exhibit 1, Potts depo., at 134-135)
Presley's previous evaluations of Potts' performance, specifically those dated January 4, 1995, August 15, 1995, and August 7, 1996, reflect nothing less than excellent or good ratings. (Doc. 18, Exhibit 3, Borden depo., at 22-28)
He [Mike Presley] come around and said, "They got a call down there, cut the gas line, what about hanging around and see if the[y're] going to need you". Well, when he said that, you know, I [am] thinking, hang around, I got people to meet. Am I going to even get paid for it even. So, I said "Mike", I said, "I got somebody I'm suppose to meet" and I said, "Why don't you do it, or can't you do it"? Well, I done forgotten what was said after that, but he got rather p'od and walked off.
Well, I come back through the shop then and followed him over here to the truck clean across the shop. I told him, I said "Mike", I said, "Go on", I said, "I'll call [those] people and tell them I can't get there". By that time, he was done good and mad, so he [said], "No, just go on", so I went on.
But he put on my evaluation that I had refused, which I never refused, I asked him, "Why don't you do it?" I never said, "I will not do it" or "I'm not going to" or whatever, you know, I just — when he asked me what about hanging around I said, "Why don't you do it?"(Id. at 136-137) Therefore, on August 8, 1997, after reading the evaluation, Potts told Presley that he had not refused to stay for the call and when Presley twice insisted that plaintiff had refused to stay (see id. at 138-139), the following occurred:
According to Potts, this standby leak incident occurred as much as a month or more before his yearly evaluation. (Id. at 137)
[O]n the third time I said, "Mike", I said, "You know good and well that's not the way it happened", I said, "If you insist on saying that's the way it happened", I said, "I'm going to call you a liar to your face". Well, he said, "I might want to call you a liar". Well, that's when I threatened him, I said, "If you call me a liar", I said, "You're going to pick your butt up off the floor". Now, that is — I did. I mean, I got upset over it. I mean, for somebody that had lied to me and [to] turn around wanting to call me a liar, I got upset, yes. . . . I think I might have put some profanity in it.(Id. at 139-140) Thereafter, Potts and Presley took their heated evaluation discussion into Gerald Borden's office. (See id. at 141-142) At some point, Borden leaned over his desk and holding his thumb and forefinger just a little bit apart told Potts that he was that close to being fired if he did not quiet down. (Id. at 143)
And I'm sitting [t]here. I mean, I'm sitting in the chair just like this here, and in this position and I'm thinking to myself, "If I don't calm down", what's he talking about? I said, "Mr. Borden", I said, "You can fire me if you want to but", I was going to say, "You need to understand what's happening out back". About that time, he come out of his chair and leaned across and said, "Okay, you're fired", that was it.(Id.) Borden described the reasons for plaintiffs firing, as follows: "No. 1, he probably would have been fired, following an evaluation, for threatening his supervisor. He probably would have been fired for that. I would have had to think about that and hear all sides of the story. The reason he was fired instantly was he said, Fire me. So I obliged him." (Doc. 18, Exhibit 3, Borden depo., at 55-56) Either that same day or a few days later, Potts went back to get a termination slip from Borden for unemployment compensation purposes; Borden refused his request telling the plaintiff, "`I'm not going to give anything to you, in fact, if you don't get out of here, I'm going to call the police and have them escort you off the premises'." (Doc. 18, Exhibit 1, Potts depo., at 147 148)
23. Mike Presley testified that the quality of the work plaintiff did was fine and that the only time he had a problem with Potts not obeying an order was one day when he asked the plaintiff to stay after 5:00 p.m. for a cut gas line and the plaintiff responded that he did not want to stay. (Doc. 18, Exhibit 4, Presley depo., at 5)
24. At some time during the course of his employment when plaintiff claimed in his discrimination charge that the discrimination had begun, Potts socialized with Jerry Johnson outside of work. (Compare Doc. 18, Exhibit 1, Potts depo., at 100 with Doc. 15, Exhibit 9 to Potts depo.) More specifically, Potts built a trailer for Johnson and Johnson showed Potts how to dig sweet potatoes. (Id.)
25. According to Gerald Borden, the first inclination he had that Potts was complaining of race discrimination was when he received written notice of the charge of discrimination from the EEOC. (Doc. 18, Exhibit 3, Borden depo., at 33-34) It was Borden's testimony that Potts never voiced any concern that he was being discriminated against or that other employees were speaking about his Indian heritage. (Id. at 39) Borden testified that he never heard the Indians/Niggers comment made by Johnson. (Id. at 40) "Mr. Johnson stated to me upon the investigation following this EEOC notice that he had made such statements. I think that is in writing, and he received a written reprimand from me for making those statements. That should all be in the file." (Id.)
26. The EEOC ruled in Potts' favor following his termination. (Doc. 18, Exhibit 1, Potts depo., at 133)
CONCLUSIONS OF LAW
A. Summary Judgment Standard .
1. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."). The clear language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof by the non-movant on an element essential to his case renders all facts immaterial, so the movant is entitled to judgment as a matter of law. Id. at 323, 106 S.Ct. at 2553; see Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir. 1990) ("Facts in dispute cease to be `material' facts when the plaintiff fails to establish a prima facie case."), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d .1085 (1991).
The substantive law will identify which facts are material. 477 U.S. at 248, 106 S.Ct. at 2510. The Supreme Court concluded in Anderson "that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Id. at 255, 106 S.Ct. at 2514.
2. This Court must inquire "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict —' whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (citation omitted) (emphasis in original). The party seeking summary judgment has the initial responsibility of informing the court of the basis for the motion and of establishing, based upon the discovery instruments outlined in Rule 56(c), that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. When the burden of proof at trial belongs to the nonmovant, as is the case here, the moving party need not support its motion with affidavits or other similar materials negating the opponent's claim," id, but rather, "a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324, 106 S.Ct. at 2553. Once this initial demonstration is made, Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id., quoting Fed.R.Civ.P. 56(e).
Forbidding reliance upon pleadings precludes a party from "choos[ing] to wait until trial to develop claims or defenses relevant to the summary judgment motion." . . . This effectuates the purpose of summary judgment which "`is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" . . . Thus, "mere general allegations which do not reveal detailed and precise facts" will not prevent the award of summary judgment upon a court's determination that no genuine issue for trial exists.Resolution Trust Corp. V. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub nom. Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995). In other words, there is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
3. In considering whether the defendant is entitled to summary judgment, the Magistrate Judge has viewed the facts in the light most favorable to the plaintiff. Beleher v. City of Foley, 30 F.3d 1390, 1392 (11th Cir. 1994). Therefore, what the undersigned has stated the facts to be in this opinion may not be the facts that would be established at trial. See id. at 1393 (citation omitted).
B. Wrongful Termination Claim in Violation of Title VII .
4. Plaintiff claims that his termination was the result of racial discrimination and in retaliation for the filing of his charge of race discrimination with the EEOC on March 5, 1997. In a Tide VII disparate treatment case, a plaintiff must prove intentional discrimination. See Armindo v. Padlocker, Inc., 209 F.3d 1319, 1320-1322 (11th Cir. 2000); Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 1267 (11th Cir. 1999). A plaintiff may use three different kinds of evidence of discriminatory intent: direct evidence. circumstantial evidence or statistical evidence." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Potts seeks to show discrimination using circumstantial evidence. (See Pretrial Document)
When a plaintiff attempts to prove intentional discrimination in violation of Title VII using circumstantial evidence, we apply the now familiar shifting burden framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination . . . If he meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. . . . The burden then shifts to the employer to "articulate" a legitimate, non-discriminatory reason for its action. . . . If the employer successfully articulates such a reason, then the burden shifts back to the plaintiff to show that the proffered reason is really pretext for unlawful discrimination.Schoenfeld, supra, 168 F.3d at 1267 (citations omitted). "[T]he same analytical framework applies to retaliation claims as applies to other employment discrimination claims, including the availability of the McDonnell Douglas presumption." Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999), citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993).
5. In order to make out a prima facie case of discriminatory termination on account of race, plaintiff must show: (1) he is a member of a protected class; (2) he suffered an adverse job action; (3) his employer treated similarly-situated employees outside his classification more favorably; and (4) he was qualified to do the job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (citations omitted). "`To establish a prima facie case of retaliation, a plaintiff must show (1) statutorily protected expression; (2) adverse employment action; and (3) a causal link between the protected expression and the adverse action.'" Griffin v. GTE Florida, Inc., 182 F.3d 1279, 1281 (11th Cir. 1999) (citation omitted). The Court has grouped together the prima facie cases of racially motivated/retaliatory termination as this step of the analysis offers no real obstacles in addressing the ultimate question of whether the defendant wrongfully terminated the plaintiff because where, as here, the defendant has volunteered a legitimate, nondiscriminatory reason for the plaintiffs termination, there is no need for a district court to engage in the McDonnell Douglas analysis, Wright, supra, 187 F.3d at 1305 n. 24, citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); cf. Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000) (" Aikens . . . mandates that at least with respect to the employer's proffered nondiscriminatory reason, the prima facie case is no longer relevant — it has `dropped out' of the inquiry.").
If the Court was to engage in this analysis, such analysis might well be fatal to plaintiff's claim of wrongful termination on the basis of race but not his retaliation claim. The conclusion respecting the race-based termination claim might be reached because plaintiff cannot satisfy his burden of showing "that his conduct was similar to that of dissimilarly treated employees of another race[,]" Abel v. Dubberly, 210 F.3d 1334, 1338-1339 (11th Cir. 2000), since the only person he compares himself to, Jerry Johnson, is also a descendent of Creek Indians. However, the prima facie case of retaliatory termination is easily met. See Cline, supra, 206 F.3d at 660 ("The prima facie requirement for making a Title VII claim `is not onerous,' . . . and poses `a burden easily met.'"). It is stipulated that plaintiff engaged in statutorily protected expression in filing his charge of race discrimination with the EEOC on March 5, 1997 and that plaintiff was terminated some five months later on August 8, 1997. Moreover, the Court must find that the remaining prima facie element of a causal link between the protected expression and the adverse action has been satisfied in this case given the Eleventh Circuit's broad construction of that element. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998) ("`[A] plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.'"); see also Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525 (11th Cir. 1991) ("`[T]he causal link in the [retaliatory discharge] formula [is not] the sort of logical connection that would justify a prescription that the protected participation in fact prompted the adverse action. Such a connection would rise to the level of direct evidence of discrimination, shifting the burden of persuasion to the defendant.'"). Borden's knowledge of Potts' EEOC charge of discrimination at the time he terminated the plaintiff, standing alone, is sufficient to prove at this stage in the proceedings a causal link between the protected conduct and the adverse job action. See id. at 1460-1461.
6. As heretofore alluded to, the plaintiffs prima facie case of both discriminatory and retaliatory termination may be rebutted by the defendant's proffer of a legitimate, nondiscriminatory reason for the termination. Wright, supra, 187 F.3d at 1292 1305. "The reason offered by an employer for an action `"does not have to be a reason that the judge or jurors would act on or approve.'" . . . Instead, all that matters is that the employer advance an explanation for its action that is not discriminatory in nature." Schoenfeld, supra, 168 F.3d at 1269 (citations omitted).
The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs [termination]. The explanation provided must be legally sufficient to justify a judgment for the defendant.Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981) (internal citation and footnotes omitted). Here the defendant has proffered a legitimate, nondiscriminatory reason for plaintiff's termination, namely, his direct threat to Mike Presley, that if Presley called him a liar, he [Presley] was going to have to pick his butt up off the floor and his failure to calm himself down following a heated exchange with Presley. The Court does not hesitate in finding that the defendant has satisfied its burden of production in this regard.
7. In an effort to establish that the reason offered by the defendant for his termination is a mere pretext for unlawful race discrimination and in retaliation for filing the EEOC charge of discrimination, plaintiff contends that Jerry Johnson committed a Level 2 offense, like plaintiff, albeit a different offense than that which he committed, yet was not terminated for his conduct. The plaintiffs burden of demonstrating pretext "merges with the ultimate burden of persuading the court that he has been the victim of intentional discrimination. [H]e may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence." Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095 (citation omitted).
Once a defendant articulates a legitimate, non-discriminatory reason for its action, the initial inference of discrimination "drops" from the case. . . . The burden then shifts back to the plaintiff to show that the proffered reason was pretext for intentional discrimination and that the defendant intentionally discriminated against him. . . . A plaintiff may show pretext and survive summary judgment by "presenting evidence sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of the employer's legitimate, nondiscriminatory reasons."Schoenfeld, 168 F.3d at 1269 (citations omitted). The Court finds that Potts simply cannot create a genuine issue of material fact on the issue of pretext by comparing himself to Johnson since Johnson is a descendant of Native Americans the same as plaintiff. It avails plaintiff nothing to argue that a discriminatory reason motivated Borden to fire him since Johnson, another Native American, was not terminated for a comparable, albeit not the same, offense. Moreover, plaintiff has offered no evidence that Borden, Presley, or any other supervisory personnel of the defendant, made any comments of a racial or retaliatory nature either at the time of his termination or between the filing of his EEOC charge of discrimination and his termination. Cf. Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361-1366 (11th Cir. 1999) (lengthy discussion of pretext), cert. denied, ___ U.S ___, 120 S.Ct. 1962, 146 L.Ed.2d 793 (2000). In fact, there is no indicia of record that plaintiff was terminated because of his race as opposed to the reason given. Plaintiff has admitted that he lost his temper with Presley over Presley's yearly evaluation and physically threatened Presley. What fueled Potts' anger was the fair rating Presley gave him in the category of cooperation, as opposed to good or excellent, because of what Presley described as plaintiff's refusal to standby on an emergency leak call when told to do so. Potts admittedly called Presley a liar regarding this incident and also admitted to threatening Presley because his supervisor would not admit that his documentation of this incident was incorrect and thereby, in Potts' mind, had called him a liar. Even Potts' recollection of the underlying incident is .that Presley asked him to stay at work after 5:00 p.m. for an emergency leak call and that he initially demurred by suggesting or asking that Presley stay since he was supposed to meet some people after work. Certainly, individuals' perception of conversations and actions can differ, as they did here, but the Court finds nothing surreptitiously unreasonable about Presley's documentation of the incident. Accordingly, the Court sees plaintiffs termination for what it was, a termination arising after a heated discussion and a threat of physical harm to a superior, rather than a calculated retaliatory and racebased means by which to rid the company of the plaintiff. Therefore, the Court finds that the plaintiff has failed to offer any material evidence sufficient to demonstrate pretext in the defendants' legitimate, non-discriminatory reason for his termination.
The Court considers Potts' termination to have arisen "in the heat of the moment" which sets it in stark contrast to the company's punishment of Johnson for violating the same category of offense that plaintiff violated, albeit not the same exact offense. This is but an additional reason why the company's differential treatment of Potts and Johnson cannot be viewed as a pretext for unlawful or retaliatory discrimination.
8. Because plaintiff cannot rebut defendant's legitimate, nondiscriminatory reason for his termination, his retaliatory and discriminatory termination claims must fail. Plaintiff simply has not satisfied his ultimate burden of proving that he was terminated either because of his race or in retaliation for filing a charge of race discrimination with the EEOC.
C. Hostile Working Environment Racial Harassment .
9. To establish a hostile working environment racial harassment claim under Title VII based on harassment by a supervisor, an employee must show: (1) he belongs to a protected group; (2) he has been subject to unwelcome harassment; (3) the harassment was based on his race; (4) that the harassment was sufficiently severe or pervasive enough to alter the terms and conditions of his employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable. St. Hilaire v. The Pep Boys — Manny, Moe Jack, 73 F. Supp.2d 1350, 1364 (S.D.Fla. 1999) (citation omitted); cf. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (delineating elements of a hostile-environment sexual-harassment claim under Title VII), cert. denied, ___ U.S. ___, 120 S.Ct. 1674, 146 L.Ed.2d 483 (2000).
10. The Court will focus solely upon the fourth element of plaintiff's hostile working environment racial harassment claim because, though a close call, it is clear that the harassment to which Potts was subjected was not sufficiently severe or pervasive enough to alter the terms and conditions of his employment and create an abusive working environment. There is both a subjective and an objective component that must be considered in determining whether harassing conduct was sufficiently severe or pervasive to alter the plaintiffs terms or conditions of employment. See Mendoza, supra, 195 F.3d at 1246.
The employee must "subjectively perceive" the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable. The environment must be one that "a reasonable person would find hostile or abusive" and that "the victim . . . subjectively perceive[s] . . . to be abusive." Furthermore, "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'"
The objective component of this analysis is somewhat fact intensive. Nevertheless, the Supreme Court and this Court have identified the following four factors that should be considered in determining whether harassment objectively altered an employee's terms or conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. The courts should examine the conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to alter the terms or conditions of the plaintiff's employment and create a hostile or abusive working environment.Id. (internal citations omitted); see also Edwards v. Wallace Community College, 49 F.3d 1517, 1521-1522 (11th Cir. 1995) ("In deciding whether a hostile environment was created factors to consider include the frequency of the discriminatory conduct, the severity of the discriminatory conduct, whether the conduct is threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiff's performance at work.").
11. The Court finds that the harassing conduct which Potts has alleged was not sufficiently severe or pervasive to alter the terms or conditions of his employment. Construing the evidente in the light most favorable to Potts, he has presented evidence of four categories of harassing conduct: (1) one specific occasion, during the course of a coffee table conversation about whether gambling should be legalized on Indian reservations, in which Johnson commented that reservation Indians were like a bunch of Niggers wanting something for nothing; (2) three instances in which Johnson yelled and cursed at him and was physically confrontational while working at certain job sites; (3) Johnson's constant "Hey, Indian" comments; and (4) plaintiff's work truck being adorned with the decal "Little Mowac." In analyzing this conduct in the context of the four factors outlined in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), as set forth above, the Court finds two of the factors — interference with job performance and severity — decidedly absent from the conduct established by Potts and the other two factors — physically threatening or humiliating conduct and frequency of the harassing conduct — for the most part lacking and therefore, insufficient to compensate for the absence of the first two identified factors.
12. While Potts has presented evidence that Johnson's conduct was physically threatening and humiliating on three occasions during his approximately four years of employment with the defendant, on none of these occasions did Johnson use racial slurs or otherwise denigrate plaintiff's heritage. This omission is important because it leads inexorably to the conclusion that Johnson's conduct was not race driven, it being contrary to common sense that a supervisor guilty of racial harassment would refrain from racial epithets during those times when he is physically threatening an employee and roundly yelling at and cursing the employee, but rather, was perforce driven by Johnson's unredeemable and self-loathing boorish, bullying, offensive and unpleasant character and personality. Title VII simply cannot be used as a shield to protect against physically threatening and humiliating conduct that is not race-based, see St. Hilaire, supra, 73 F. Supp.2d at 1363 ("Title VII does not address generally offensive or unpleasant conduct. . . . Title VII does not provide a cause of action for employees who are exposed to harassment that has no reference to race, sex or national origin."); rather, such protection must necessarily come from an enlightened and sensitive employer.
13. Second, nothing in the evidence of record indicates that Johnson's conduct impaired Potts' job performance. Potts' job performance was consistently rated as good by his immediate supervisor, Mike Presley, with one exception that had nothing to do with Johnson. More importantly, on each of the three physically threatening incidents, the "Nigger/want something for nothing" incident, those occasions when Johnson said "Hey, Indian," and each day plaintiff saw "Little Mowac" on his truck's door, Potts successfully completed his job duties without the need to take off the remainder of the day or the following day. Accordingly, Johnson's conduct did not impair Potts' job performance.
14. Third, none of the conduct alleged by Potts is severe. While Johnson's comparison of reservation Indians' support for casino gambling on reservations to a "bunch of Niggers wanting something for nothing" was insensitive and offensive it is not severe given the context in which the comment arose. It was during a coffee table conversation about legislation dealing with casino gambling on Indian reservations in Alabama, a not unemotional subject raised by Potts, the plaintiff himself commenting that the white man had taken Indian land, that Johnson made his pea-brain comment. Moreover, Johnson's physically threatening behavior can, at best, be described as generally offensive, not severe, since that conduct was not tinged with racial epithets. Johnson's "Hey, Indian" comments, comments which Presley, not Potts, identified, cannot even be described as offensive, much less severe, since they were made in a joking manner not unlike the joking that freely took place among employees of the defendant. Finally, Potts offered no evidence that Johnson was the individual who placed the "Little Mowac" sticker and therefore, this fact adds nothing to the severity issue.
15. Finally, aside from the "Little Mowac" decal that was on plaintiff's truck every day, for the final two years of Potts' employment, and Johnson's perhaps weekly "Hey, Indian" comment, the conduct asserted by Potts was not frequent. Besides these two categories of conduct, Potts has established a single specific instance of racially abusive language and three instances of physically threatening but non-racial behavior. These instances occurred over a twenty-seven month period and therefore, were "far too infrequent to alter the conditions under which [the plaintiff] was required to perform his job." Mendoza, supra, 195 F.3d at 1249 (citation omitted). Moreover, to the extent the "Little Mowac" decal and "Hey, Indian" comments establish the frequency factor, this evidence does not create a jury question on Potts' racial harassment claim because plaintiff has offered no evidence that Johnson placed the decal on his truck and, as importantly, has no evidence that the "Hey, Indian" comments were delivered in a derogatory manner as opposed to the joking manner which Presley described.
16. In light of the foregoing, the Court finds that the conduct established by Potts was not sufficiently severe or pervasive enough to alter his terms or conditions of employment and therefore, his racial harassment claim fails.
CONCLUSION
For the reasons stated above, the defendant's motion for summary judgment is due to be GRANTED and therefore, plaintiff's complaint is due to be DISMISSED WITH PREJUDICE.
DONE and ORDERED this the 1st day of August,
JUDGMENT
In accordance with the memorandum opinion and order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the defendant's motion for summary judgment be GRANTED, that plaintiffs complaint be DISMISSED WITH PREJUDICE, and that the costs of this action be taxed to the plaintiff.