Wednesday, May 26, 2010

Anderson v. Durham D & M, L.L.C.[1]

Opinion handed down May 26, 2010
Link to Eighth Circuit Opinion

The Eighth Circuit Court of Appeals affirmed a ruling of a United States Court for the Western District of Missouri, granting summary judgment for a bus company accused of maintaining a racially hostile work environment and of discriminating against an employee because of his age and race.

I. Facts and Holding

In August 2006, Durham D & M, LLC (Durham), a student transportation company operating in Grandview, Missouri, employed Richard Anderson, a 73-year-old white male, as a school bus driver. [2] While Anderson’s initial performance evaluations from his African American supervisor were “excellent” and that he “meets expectation,” his first formal evaluation from a Durham driving performance monitor, also an African American, was that his driving “needs improvement.” [3] Within his first month of employment, subsequent bus monitors reported specific concerns to his supervisor, but no formal action was taken. [4] Later that month, Anderson’s general manager (GM) notified him that he would need to complete a driving test on October 5, but Anderson declined to take the test. [5] After three days, the GM considered that Anderson had quit his position. [6] In January 2007, Anderson approached the GM once again and asked to take the driving test so that he could be reinstated. [7] He was allowed to do so and his performance, as evaluated by his previous supervisor and initial driving monitor, was “great.” [8]

In March and April of that year, Anderson was involved in three accidents, all deemed preventable by Durham. [9] Durham’s company policy mandated termination after three preventable accidents in a twenty-four month period and that it reserved the right to terminate for a combination of other reasons before the three-accident limit. [10] After his third accident, Anderson was taken off his route immediately and offered a job at lower pay as a monitor, but he declined the position. [11] Anderson later asserted that he would have taken the position if it paid as much as a driver. [12] Anderson’s position was subsequently filled with an older, white male. [13]

After leaving Durham, Anderson made several broad legal assertions of discrimination and workplace hostility, but in each case he could not assert definitively that race or age was a substantial motivating factor. [14] He alleged that he was held to a different standard than African American employees but could not prove that they were treated more favorably. [15] Anderson also claimed that during his tenure he was called various names, including “white bitch,” “cracker,” and other curses because of his age or race. [16] However, he did not report this harassment as being racially motivated at the time and noted that his supervisors were not present during the alleged harassment. [17]

Given these facts, the district court granted summary judgment to Durham on Anderson’s race discrimination and hostile work environment claims and determined that Anderson “failed to exhaust his administrative remedies as to the age discrimination claim.” [18] After reviewing the case, the Eighth Circuit agreed with the lower court’s ruling on all of Anderson’s claims and affirmed summary judgment in Durham’s favor for each claim. [19]

II. Legal Background

A. Racially Hostile Work Environment

To sustain a claim for hostile work environment, “a plaintiff must show that (1) he or she is a member of a protected class; (2) he or she is subjected to unwelcome race-based harassment; (3) the harassment was because of membership in the protected class; and (4) the harassment affected a term, condition, or privilege of his or her employment.” [20] Furthermore, a claimant must establish both that the environment was objectively hostile under a reasonable person standard as well as subjectively hostile to the claimant himself. [21] Finally, the claimant must establish that the employer “knew or should have known” of the abusive situation and failed to respond in a prompt and efficient manner. [22]

In analyzing his claim, the court considered whether Anderson had established that either his supervisors or his coworkers had created a racially hostile environment. Regarding Anderson’s supervisors, the court stated that neither his supervisors’ criticisms of his performance nor the alleged name calling were objectively hostile on the basis of Anderson’s race. [23] The court also noted two other factors that were not indicative of a hostile work environment: the fact that Anderson was willing to return to work in January 2007 and Anderson’s contention that he was willing to remain at Durham if the hourly wages for a bus monitor had equaled that of a bus driver. [24] The Circuit Court reasoned that the evidence indicates that, while Anderson may have been offended, his work conditions had not been “subjectively altered.” [25]

Furthermore, the court stated that the alleged taunts by Anderson’s African American coworkers, even if they reached the level of objectively hostile on the basis of race, were not clearly known by Durham. The record showed that there were no supervisors present when such comments were made and that Anderson failed to report these taunts as having a racial motivation. [26] Given the lack of evidence to support Anderson’s claim of a racially hostile environment, the lower court’s summary judgment in favor of Durham on this point was upheld. [27]

B. Racial Discrimination

In absence of direct evidence of discrimination, the burden of proof shifts to the alleged victim of discrimination. [28] In order to establish a prima facie claim of racial discrimination, an alleged victim must show “that (1) he is a member of a protected class; (2) . . . [he met] the employer’s legitimate expectations . . . ; (3) he suffered an adverse employment action; (4) under circumstances permitting an inference that the action was a result of unlawful discrimination.” [29] Once such a case has been established the burden then shifts to the employer to show a “‘legitimate, nondiscriminatory reason for taking the allegedly discriminatory action.’” [30] Ultimately, an alleged victim must present evidence that casts suspicion on the employer’s proffered reason for taking action and must show that the reasoning was pretext for the actual discriminatory motivations. [31]

The Eighth Circuit agreed with the lower court that Anderson failed to establish that he had met the legitimate expectations of his employer, given that he had been cited for poor performance in the past and he had accumulated three accidents the company deemed preventable at the time of his termination. [32] Furthermore, even if Anderson had established a prima facie claim for this allegation, he failed to show proof that Durham’s stated reasons for termination amounted to pretext for the company’s actual reason of racial discrimination as the basis of his termination. [33] As a result, the court affirmed the summary judgment against Anderson for his claim of racial discrimination. [34]

C. Age Discrimination

While the Eighth Circuit agreed that Anderson had not exhausted his administrative remedies, it utilized its discretion to reach the merits of the case given that such a decision would provide a “sounder basis for resolving the case.” [35] The ADEA protects individuals over the age of forty and prohibits an employer from, inter alia, discharging or otherwise discriminating against such a person because of his or her age. [36] Additionally, the Eighth Circuit has established that a prima facie case for age discrimination under the ADEA may be established in part by showing that the individual was “replaced by a substantially younger individual.” [37]

Given that Anderson’s position was filled by an employer who was older than Anderson, he was clearly unable to establish his prima facie case. [38] Furthermore, as with the claims of race discrimination, the court noted once again that Anderson failed to produce evidence that similarly situated younger drivers were subjected to less severe disciplinary measures than he received for similar performance deficiencies. [39] For these reasons, the court held that summary judgment denying Anderson’s claim of age discrimination was appropriate and affirmed the lower court ruling. [40]

III. Comment

Richard Anderson’s actions and comments made during and after his employment with Durham prevented his case from moving beyond summary judgment. Anderson reaffirms that in the Eighth Circuit a wide range of factors will be considered in cases of racial and age discrimination in the workplace, not the least of which include the alleged victim’s words and actions that are inconsistent with the charges asserted. Anderson’s failure to report the taunts of his co-workers as racially motivated, his willingness to return to Durham as an employee, his inability to point to disparate treatment on the basis of race or to prove that his performance was not a factor in the company’s decisions regarding his continued employment, and the fact that his vacated position was filled by a older white male counter his assertion that the workplace was racially hostile or that he was discriminated against on the basis of his race or age. For the Eighth Circuit, future claims of race and age discrimination in the workplace have been put on notice: claims that are inconsistent with the words and deeds of the alleged victim should be left at home. Such claims will be sent home summarily and with prejudice.

-Ronald K. Rowe II

[1] 606 F.3d 513 (8th Cir. 2010).
[2] Id. at 515.
[3] Id.
[4] Id. at 515-16.
[5] Id. at 516.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 517.
[12] Id.
[13] Id.
[14] Id. at 517-18.
[15] Id. at 517.
[16] Id.
[17] Id.
[18] Id. at 515.
[19] Id. at 524.
[20] Id. at 518 (quoting Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 892 (8th Cir. 2005)).
[21] Id.
[22] Id. at 519 (citing Arraleh v. County of Ramsey, 461 F.3d 967, 969 (8th Cir. 2006)).
[23] Id. at 519.
[24] Id. at 520.
[25] Id.
[26] Id. at 519-20.
[27] Id. at 520.
[28] Id. (citing Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009)).
[29] Id.
[30] Id. at 521. (citing Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688, 692-93 (8th Cir. 2009)).
[31] Id.
[32] Id. at 522-23.
[33] Id. at 523.
[34] Id.
[35] Id.
[36] Id. (citing 29 U.S.C. § 623(a)).
[37] Id.
[38] Id.
[39] Id.
[40] Id. at 524.