ERIC F. MELGREN, District Judge.
Plaintiff Edwin Asebedo brings a hostile work environment claim against Defendant Kansas State University ("KSU"). Currently before the Court is Defendant's Motion for Summary Judgment (Doc. 63). The Court finds that there is no genuine issue of material fact as to the existence of a hostile work environment. Furthermore, the Court finds that even if Plaintiff could demonstrate the existence of a hostile work environment, Defendant's response to the harassment was reasonably calculated to end the harassment. Thus, the Court grants Defendant's Motion for Summary Judgment for the reasons more fully stated below.
Plaintiff Edwin Asebedo is Hispanic. Defendant KSU has employed Plaintiff since January of 2007, and Plaintiff has worked in Central Mail since February 2009. Plaintiff has received satisfactory or "meets expectations" on his job in Central Mail, and his personnel file contains no statutory discipline.
Defendant employs eighteen people in Central Mail. Tom Filippino was employed as an Administrative Officer in Central Mail from April 2010 through May 6, 2012. Mr. Filippino is no longer employed by Defendant. Mr. Filippino's supervisor was Loleta Sump. Ms. Sump, as Manager of Central Mail, had responsibilities over Central Mail. Ms. Sump's office is not located in Central Mail, but in another location.
Prior to July 1, 2014, all employees in Defendant's Central Mail Services, including supervisors, were subject to the State Civil Service System. State Civil Service employees may only be disciplined in accordance with State Civil Service statutes and regulations. As an administrative officer, Mr. Filippino lacked the power to hire, fire, or promote employees, or to significantly change responsibilities of employees. He also could not impose statutory discipline.
On October 13, 2010, Plaintiff left a voice mail with Ms. Sump at 5:25 p.m. stating that he did not feel comfortable coming to work the next day and asked Ms. Sump to call him. Ms. Sump received the message the next day when she checked her voice mail from home. Ms. Sump and Plaintiff spoke on October 14, 2010, and Plaintiff told Ms. Sump that another co-worker, Russell Thompson, had remarked that Plaintiff's wife was gay. Plaintiff stated that Mr. Filippino had told a story about a biker bar which had led to Mr. Thompson's comment. Plaintiff also told Ms. Sump that Mr. Filippino had used racist language before but he had chosen to keep quiet about it. Plaintiff did not state that Mr. Filippino had directed racial slurs or comments toward him directly.
Ms. Sump followed up on Plaintiff's complaint and spoke to Mr. Filippino on October 14, 2010. Mr. Filippino admitted to telling a joke about an Indian, a black man, and a cowboy, and he immediately stated that he should not have done it. Mr. Filippino also admitted to telling some true stories from his life, which included the comment about the biker bar, but he denied using racial slurs. Ms. Sump told Mr. Filippino that if the language and behavior were occurring, she was disappointed and angry and that she had zero tolerance for this language and behavior.
After Ms. Sump spoke to her boss, she referred Plaintiff to the Office of Affirmative Action regarding his complaints. The Office of Affirmative Action is responsible for administering the Policy and Procedure for Discrimination and Harassment Complaints, which includes but is not limited to, receiving and investigating complaints, reporting the results of investigations, and making recommendations. Plaintiff first visited the Office of Affirmative Action on October 14, 2010, and met with Pamela Foster, Associate Director of the Office. On October 19, 2010, Plaintiff filed a comprehensive, written complaint with the Office of Affirmative Action stating that Mr. Filippino and certain workers made offensive comments to him.
The Office of Affirmative Action investigated Plaintiff's complaint. The administrative review team included Ms. Foster. The team interviewed Plaintiff and also obtained statements from and interviewed all of the individuals named as respondents in Plaintiff's complaint. The administrative review team informed Plaintiff and all of the respondents of the Policy and Procedure on Discrimination and Harassment, explained racial/ethnic harassment, the complaint procedure, the expectation of confidentiality, and the prohibition against retaliation. Plaintiff signed a document requesting that he be returned to the mailroom and agreed to report any acts that he considered to be retaliatory.
In December 2010, the Office of Affirmative Action issued its report with findings on Plaintiff's allegations. The report found that Mr. Filippino had violated university policy by telling true stories with racial elements and telling racial jokes.
The Office of Affirmative Action made recommendations as to the actions to be taken based upon its investigation, which included a combination of sanctions and training. Specific recommendations and actions included: (1) issuing letters of reprimand to Mr. Filippino and Ms. Sump and ordering both to attend Respect Training and (2) ordering Russell Thompson and Barb Larson to attend Respect Training.
Plaintiff did not appeal the December 2010 report, its findings, or the proposed sanctions. Plaintiff asked Defendant to return leave to him because of his October 2010 complaint.
On July 20, 2011, a KSU police officer, Jim Younkes, swerved his police vehicle in Plaintiff's direction. Plaintiff believed it was a retaliatory action towards Plaintiff because he thought Officer Younkes was friends with Mr. Filippino. On July 22, 2011, Plaintiff, upon learning that a silent witness had reported to the police department that the Officer Younkes' incident appeared to be racially motivated, abandoned his work vehicle to retrieve his wife and remove her safely from campus.
On August 3, 2011, Plaintiff received a written reminder for the incident in which he left his university mail truck with the keys in it and left work without telling his supervisors. The written reminder is considered counseling and is not statutory discipline. The written reminder is not included in Plaintiff's official personnel file.
Plaintiff filed another complaint with the Office of Affirmative Action in September 2011. In this written complaint, Plaintiff reported the incident involving Officer Younkes. Plaintiff alleged that this incident was in retaliation for his prior complaint. Plaintiff also stated that Mr. Filippino continued to tell racist jokes, mentioning specifically a joke told by Mr. Fillipino that the economy was so bad that the cat sold the dog to the Korean restaurant next door.
The Office of Affirmative Action, with Ms. Foster again on the review team, investigated Plaintiff's complaint. In December 2011, the Office of Affirmative Action issued its report and findings. It found no evidence of retaliation,
Plaintiff appealed the findings in the 2011 report, including the sanction on Mr. Filippino. A KSU official affirmed the findings and proposed discipline. Plaintiff did not make any complaint to the Office of Affirmative Action about any racial comment, joke, story, or slur by Mr. Filippino after the December 2011 report.
On February 12, 2012, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). He received a notice of a right to sue. Plaintiff filed suit in this Court on October 3, 2012. He filed an Amended Complaint on February 8, 2013.
Defendant then filed a Motion to Dismiss, or, in the alternative, a Motion for Judgment on the Pleadings. In granting Defendant's motion, this Court first found that Plaintiff failed to allege sufficient facts in his Complaint that Defendant's response to Plaintiff's allegations of discrimination was not reasonable. Thus, the Court dismissed Plaintiff's discrimination/hostile environment claim. Next, the Court found that Plaintiff's retaliation claim should be dismissed because Plaintiff failed to allege sufficient facts of a causal connection between his discrimination complaint and the alleged retaliatory actions.
Plaintiff appealed this decision to the Tenth Circuit Court of Appeals. On March 17, 2014, the Tenth Circuit affirmed in part and reversed in part this Court's order. It affirmed the dismissal of Plaintiff's retaliation claim. The circuit, however, reversed the dismissal of the discrimination/hostile work environment claim.
Defendant has now filed a Motion for Summary Judgment as to Plaintiff's remaining discrimination claim. This motion is currently before the Court.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.
Defendant offers three theories as to why Plaintiff's discrimination claim fails as a matter of law. First, Defendant argues that the evidence demonstrates that its response to Plaintiff's complaint of discrimination, i.e., a hostile work environment was reasonable. Next, Defendant asserts that the Court lacks subject matter jurisdiction over Plaintiff's discrimination claim because Plaintiff's February 12, 2012, EEOC discrimination charge does not encompass the discriminatory events occurring in October 2010.
To survive a summary judgment motion on a hostile work environment claim, "a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
Plaintiff's evidence of severe or pervasive behavior based upon his race is lacking in the record. Plaintiff relies upon isolated incidents spanning a one-year period. These incidents include several race-based jokes. These racial jokes, however, were not directed toward Plaintiff's race/ethnicity and only occurred several times throughout the year. Plaintiff also states that racial comments were made throughout the year, but there is no evidence of the frequency or specifics. Plaintiff simply makes broad, general allegations. Vague and conclusory statements regarding the use of racial slurs with no content or context does not support an inference of pervasive racial/ethnic harassment.
Plaintiff primarily relies upon the Office of Affirmative Action's reports for support that a hostile environment existed because these reports state this proposition. These internal findings by Defendant, however, are not binding on this Court. There is no evidence that the Office of Affirmative Action considered case law or court decisions in determining that a hostile work environment existed. Indeed, the reports state that the framework for analyzing the situation was provided by Defendant's Policy and Procedure for Discrimination and Harassment Complaints.
Racially offensive speech is inappropriate and has no place in the workplace. But the standard this Court must use in evaluating a hostile work environment claim requires Plaintiff to show that the workplace was permeated with discriminatory intimidation sufficiently severe or pervasive that it altered Plaintiff's work environment and that it was based on Plaintiff's race. "A plaintiff does not make a sufficient showing of a pervasively hostile work environment by demonstrating a few isolated incidents of ... sporadic ... slurs .... Instead, there must be a steady barrage of opprobrious ... comments."
Even if Plaintiff could establish a hostile work environment, Plaintiff's claim still fails. "To survive summary judgment under Title VII, the record must support an inference of a racially hostile work environment and a basis for employer liability."
There are two steps to consider when assessing negligence and Defendant's response to the harassment.
The second step requires the Court to consider the adequacy, or reasonableness, of Defendant's response to the racial hostility.
Plaintiff's first complaint regarding harassment occurred in October 2010. On the day Ms. Sump received Plaintiff's voicemail about the complaint, she spoke to Mr. Filippino about the incident. Ms. Sump referred Plaintiff to the Office of Affirmative Action. Plaintiff visited the office on October 14, 2010, and met with the Associate Director of the Office. Five days later, on October 19, 2010, Plaintiff filed a written complaint. The office thoroughly investigated the complaint, interviewing all of the witnesesses and respondents. At the conclusion of the investigation, the Office of Affirmative Action recommended that several individuals, including Mr. Filippino, attend Respect Training. Mr. Filippino and Ms. Sump were also issued letters of reprimand. "[Employer] responses that have been held reasonable have often included prompt investigation of the allegations, proactive solicitation of complaints, scheduling changes and transfers, oral or written warnings to refrain from harassing conduct, reprimands, and warnings that future misconduct could result in progressive discipline, including suspension and termination."
Plaintiff, however, argues that Defendant's first response was not reasonable. He first argues that there is no letter of reprimand in Mr. Filippino's personnel file. Plaintiff cites to one of Defendant's affidavits which stated that Mr. Filippino's personnel file contained no statutory discipline prior to December 2011.
In addition, Plaintiff asserts that Mr. Filippino was a probationary employee at the filing of Plaintiff's complaint and therefore Defendant's later promotion of Mr. Filippino to permanent employee status demonstrates the unreasonableness of Defendant's response. Plaintiff, however, is mistaken as to Mr. Filippino's employment status because Defendant provides evidence that Mr. Filippino gained permanent or protected civil status on October 1, 2010, which is prior to Plaintiff's October 2010 complaint. Accordingly, Plaintiff's argument on this point fails. With regard to the first complaint, Defendant's response was reasonably calculated to end the harassment.
Plaintiff filed a second written complaint in September 2011. "[A]n employer is not liable, although a perpetrator persists, so long as each response was reasonable."
In sum, the Court finds that a genuine issue of material fact does not exist as to whether a hostile work environment existed. Even if the Court would find that a hostile work environment existed, Defendant's responses were reasonably calculated to end the harassment. Thus, the Court concludes that Defendant is entitled to summary judgment.
