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Garrett v. Tyco Fire Products, LP

United States District Court, N.D. Alabama, Southern Division

March 14, 2018

JOSEPH GARRETT, et al., Plaintiffs,
v.
TYCO FIRE PRODUCTS, LP, Defendant.

          MEMORANDUM OPINION [1]

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE.

         Plaintiffs Joseph Garrett, Theresa Hall, Garron Mixon, Rodney Watts, Thomas Foster, and Darren Turner filed a complaint against Tyco Fire Products, LP, alleging racial harassment in violation of 42 U.S.C. § 1981. (Docs. 1, 12, 20). The court has before it the June 15, 2017 motion for summary judgment filed by Tyco. (Doc. 26). The motion was deemed submitted without oral argument as of September 28, 2017. After a thorough review of the briefs and evidence, the motion is due to be granted for the following reasons.

         I. STATEMENT OF FACTS

         Defendant Tyco Fire Products, LP (“Tyco”) manufactures water-based fire suppression system components and ancillary building construction products. (Doc. 27-13 at 2). The six Plaintiffs are all former hourly workers at Tyco's Anniston plant who allege they were subjected to racially harassing comments and graffiti at the plant in violation of 42 U.S.C. § 1981. (Docs. 12 & 20).

         A. Tyco's anti-discrimination and anti-harassment policies

         Every newly hired employee, including the six Plaintiffs, attends orientation sessions where all Tyco policies for the Anniston facility are explained. (Doc. 27-13 at 5). As part of orientation, a member of Tyco management reviews the anti-harassment and anti-discrimination policies in the employee handbook, the Tyco guide to ethical conduct, and the “Speak Up” resources. (Id.).

         During orientation, the process of making a complaint is explained. (Id.). The handbook encourages employees to bring any complaints of harassment to Human Resources or to their supervisors. (Id.). If an employee feels uncomfortable complaining at the plant level, the handbook directs the employee to complain to the director of Human Resources for the Americas team or through the Tyco concern line contained in the handbook and posted in the plant. (Id. at 3, 10-12, 18-19).

         Additionally, Tyco provides employees with training on various ethical issues and trains its employees on a yearly basis on the guide to ethical conduct. (Id. at 4, 13-17). The guide provides a website where all Tyco's policies and procedures are located. (Id. at 4, 16). The guide details the resources available for an employee to lodge a complaint. (Id. at 4, 13-17). The guide also provides “Speak Up” resources, wherein several additional avenues for lodging complaints are listed, including a toll-free 1-800 concern line, legal or compliance teams, and the Tyco ombudsman office. (Id. at 4, 16). An employee can also submit a complaint via the internet. (Id. at 4).

         The employee handbook was published and distributed to all employees at the Anniston plant throughout the Plaintiffs' employment. (Id. at 3). A summary of both the guide to ethical conduct and the “Speak Up” resources was posted by the time clock in the plant. (Id. at 18-19).

         B. Plaintiffs' employment with Tyco

         1. Thomas Foster

         a. Allegations of harassment

         Thomas Foster worked at the Anniston foundry from 1996[2] until September of 2013. (Doc. 27-1 at 9, 25). Foster's direct supervisor during his employment with Tyco was superintendent Phillip Shivers. (Id. at 15). Although his direct supervisor was David Landers when he was in the finishing department, Foster remained under the supervision of Shivers, who was in charge of the entire third shift. (Id. at 15-16).

         Shivers made a single racial comment to Foster when he was working in the mold department sometime in the 2000s. (Id. at 27-29). Foster turned off the furnace to recharge it, and Shivers asked, “What the hell is going on, n*****? What happened?” (Id. at 29). Additionally, Foster testified Shivers wore a helmet with a hand-drawn lightning bolt on the side. (Id. at 33). Foster was told after his termination, in a meeting he attended with the other Plaintiffs, the lightning bolt symbolized part of the Ku Klux Klan.[3] (Id. at 7-8, 33-34).

         Foster testified Landers used the word “boy” on two occasions. (Id. at 27, 30-32). In March 2011, Landers said, “You need to hurry up, boy, and get this stuff cleaned up, get these shocks and stuff.” (Id. at 31). In September 2013, Landers approached Foster after he mistakenly ran his forklift into the duct work in the ceiling of the plant and said, “Oh, boy, what have you done now?” (Id. at 30-31). Foster also claims someone he could only identify as “Ken” said something to the effect of “how many black men do you think I've done killed now?” after Foster complained they were working too hard. (Id. at 32).

         Additionally, in the summer of 2008, Foster saw a drawing in a stall in the men's restroom of a black person's face with a rope drawn around the face. (Id. at 27-28). The next time he went to the restroom, within a month or so, it had been painted over and removed. (Id. at 28).

         b. Training and reporting of allegations

         Foster was trained on Tyco's policies and understood he could take complaints to his supervisor or to Human Resources. (Id. at 12-13, 43). Foster admits the policies were explained to him when he was trained on the handbook in 2003, after Tyco took over the plant. (Id. at 12, 44). Foster signed an acknowledgment form on November 11, 2003, stating, “I have received the handbook, and I understand that it is my responsibility to read and follow the policies in the handbook and any changes made to it, ” but testified in his deposition he did not receive a handbook on that occasion. (Id.). He testified he signed the form because he feared for his job but admitted no one threatened his job or otherwise pressured him. (Id. at 11). Foster has trouble reading but never asked anyone to read the policies to him, even though “they would [have], but [he] didn't never ask them.” (Id.).

         Foster never made any complaints to Human Resources or to anyone else in Tyco management about any of the alleged harassing conduct at any point in time during his employment with Tyco. (Id. at 13, 37). Foster testified he did not complain because Human Resources “wouldn't do nothing.” (Id. at 12-13). The first time Foster made any complaint of discrimination was when he filed his EEOC Charge after his employment was terminated. (Id. at 13, 48). Foster did not identify any harassment and did not mention the “boy” or “n” comments in his EEOC charge. (Id. at 31, 48).

         2. Theresa Hall

         a. Allegations of harassment

         Theresa Hall first worked for Tyco from 2001 until 2004, when she was terminated for attendance violations. (Doc. 27-2 at 7-8). She was employed subsequently from February 2013 until January 2014, when she was again terminated for attendance issues. (Id. at 8; Doc. 27-3 at 1).

         Hall contends David Landers said “y'all” when addressing her and three other female African-American employees. (Doc. 27-2 at 23-24). Specifically, Landers would say things such as, “Y'all. Y'all lazy.” and “Y'all ain't getting nothing out.” (Id. at 23). These comments occurred 10-15 times over a 2-3 month period in late 2013. (Id. at 25). Aside from these “y'all” comments, Landers never directed any other supposedly racial comments at her. (Id. at 25). She did, however, hear Landers ask “Where Joe Garrett at? Where that boy at?” (Id. at 24). In addition to these comments, Hall saw lightning bolts on Phillip Shivers' helmet. (Id. at 28, 29; Doc. 27-3 at 35). She testified she did a Google search for “thunderbolt” and “it had something about Nazi.” (Doc. 27-2 at 29).

         b. Training and reporting of allegations

         During her first employment with Tyco, Hall was trained by the Human Resources manager and understood she could report any harassing behavior to her supervisor or to Human Resources. (Id. at 15). Hall received a handbook during her first employment and was trained on the harassment policies during her new-employee orientation. (Id.). Upon her re-hire in February 2013, Hall again went through new-employee orientation and was provided similar training by Human Resources assistant Heidi Chambers. (Id. at 12). Hall signed a form dated February 18, 2013, acknowledging she received training on the EEO policies, the employee handbook, and the topic of “Tyco Complaint Procedures; Resolution, Reporting to Chain of Command; No Retaliation, and Contact Numbers.” (Id. at 17; Doc. 27-3 at 5). Although she signed this acknowledgement of receipt, Hall testified she never received a copy of Tyco's employee handbook and she could not recall receiving training on the harassment and discrimination policies. (Doc. 27-2 at 14, 16-17).

         Hall also received training on Tyco's guide to ethical conduct and signed an acknowledgment form confirming her training. (Id. at 17-18, 21; Doc. 27-3 at 8). The form, signed by Hall on February 18, 2013, states: “I hereby certify that I have read and understand the information set forth in the Tyco Guide to Ethical Conduct and will comply with those policies and principles in my daily work activities . . . Should I have a concern about a violation of Tyco policy, I will raise the concern through the appropriate channels as outlined in the Guide.” (Doc. 27-3 at 8). Hall was aware of Tyco's corporate complaint hotline number and knew the number was posted in the hallway of the plant. (Doc. 27-2 at 18).

         Hall never reported any of the alleged harassing conduct to anyone in Tyco management or Human Resources. (Id. at 26). Hall chose not to report any conduct because she “felt like [she] handled” it herself and did not want to be labeled a “snitch.” (Id. at 15, 26). The first time Hall made any complaint of discrimination was with her February 7, 2017 EEOC charge, when she alleged she was discriminated against in her termination because of her race. (Id. at 11; Doc. 27-3 at 1). The EEOC charge did not make any reference to racial harassment or the alleged “y'all” or “boy” comments. (Doc. 27-3 at 1).

         3. Garron Mixon

         a. Allegations of harassment

         Mixon worked for Tyco for three months from June 2013 until September 2013. (Doc. 27-4 at 14, 45). Mixon testified he was subjected to four instances of racial slurs from Phillip Shivers over approximately five days in September 2013. (Id. at 27, 30). On one occasion, Mixon asked Shivers for a pair of work gloves, and Shivers responded by saying to another individual, “[L]et me help this n***** out.” (Id. at 27-28). On another occasion, Shivers said, “[D]amn, your black ass in here again? I don't like you mother f*cker. I don't like you.” (Id. at 27). Shivers also made a comment regarding Mixon's blood pressure medication, saying, “[D]amn, your black ass don't know how to take a pill?” (Id.). Finally, Shivers called Mixon a “lazy n*****” on one occasion when he became dizzy at work and sat down. (Id. at 27, 29).

         Additionally, Mixon saw the phrase “I hate n*****s” written in the restroom on two occasions within approximately a one week period. (Id. at 36). The graffiti was later removed. (Id.). He could not recall if he saw racial graffiti in the restroom aside from these two occasions. (Id. at 37). Mixon also saw lightning bolts on Shivers' and David Landers' hardhats and equated them to a white supremacy symbol. (Id.).

         b. Training and reporting of allegations

         Mixon attended new employee orientation and signed a form dated June 18, 2013, acknowledging the handbook, Tyco policies, and guide to ethical conduct were covered in the training and that there was “no tolerance for violence, harassment, drugs, weapons.” (Id. at 15-17). Mixon also signed an acknowledgment of receipt of the handbook stating, “I have received the handbook, and I understand that it is my responsibility to read and follow the policies in this handbook and any changes made to it.” (Id. at 17-18, 52). Mixon attended a one-hour training session on the Tyco guide to ethical conduct and signed an acknowledgment confirming he read and understood the guide and he should raise any possible violations through the appropriate channels. (Id. at 20, 60 & 61). Mixon testified, however, he never saw these policies despite his signature on the forms acknowledging receipt of the policies. (Id. at 20-21).

         Mixon did not report any of the alleged comments to Human Resources or Tyco management because he “didn't trust them.” (Id. at 30). Mixon did not report the graffiti because he was told someone else reported it and he felt there was no point in doing so. (Id. at 38-39). Mixon did not report the lightning bolts on Shivers and Landers' helmets. (Id. at 38). However, after Mixon was informed of his termination by Human Resource representative Grey Terry, Mixon testified he told Terry “[W]ell you've got some people in high positions that seem to think it's okay to call somebody a lazy n****** or lazy SOB or whatever and you don't see anything wrong with that.” (Id. at 31). In response, Mixon stated Terry told him, “[G]ood luck boy. Good luck finding you another job.” (Id. at 33).

         Mixon filed an EEOC charge on February 7, 2014, alleging discrimination in his termination. (Id. at 45). The allegations contained in his EEOC charge do not mention any alleged racist comments or graffiti. (Id.).

         4. Rodney Watts

         a. Allegations of harassment

         Watts worked for Tyco from October 2011 until January 2016. (Doc. 27-5 at 8, 10; Doc. 27-6 at 16). Watts testified he heard the words “boy” and the “n” word “constantly” and “every day” while working at Tyco. (Doc. 27-5 at 17, 28).

         Specifically, Watts testified about one incident in 2012, when he heard Phillip Shivers use the “n” word. (Id. at 26, 28). Shivers was frustrated with downtime on the furnace and said, “[M]an, I don't understand. Y'all n*****s. These n*****s just can't do right. Y'all n*****s - - I don't understand. Y'all n*****s just don't do right. I don't understand what the problem is.” (Id. at 27). Watts responded by telling Shivers he could not call him that name, but Shivers did not apologize. (Id. at 28).

         Watts testified Shivers used the word “boy” throughout the first year of Watts' employment with Tyco. (Id. at 26). On one occasion, Watts asked Shivers for some welding gloves, and Shivers responded, “I ain't got nothing to do with that, boy. Get out of my office.” (Id. at 28). Another time, Watts was driving a forklift and Shivers said, “[H]ey, boy, you think you can go give one of the bull pushers a break?” (Id.). Watts responded, “I'm not a boy. Come on, man. I'm a man.” (Id.). Shivers also asked a group of workers, “I want y'all boys to be careful now. I want y'all boys to do this.” (Id. at 29). Watts also saw the lightning bolts on Shivers' helmet and equated it with a Nazi symbol. (Doc. 27-6 at 1).

         Watts testified Greg Terry also used the term “boy” on several occasions. In 2014, in response to Watts' interest in a different position, Terry said “[L]ook, boy, what you can do is come in on your off day and try and get some experience like that.” (Doc. 27-5 at 30). On two occasions, Terry held the door for him when they were coming into the plant together and he said, “[C]ome on in, boy, ” or words to that effect. (Id. at 30-31). Watts also saw a tattoo of the confederate flag on Terry's right forearm. (Doc. 27-6 at 1).

         Watts testified supervisors Patrick Young and Joe McLain and plant manager Paul Campbell also used the term “boy.” According to Watts, Young used the word “boy” in a “sneaky way, ” such as in 2014 Young screamed, “[H]ey boy, I need you to put that pattern on the pattern table, ” when they were about to start production. (Doc. 27-5 at 33-34). Watts overheard McLain say to another person, “I got a black boy as a son-in-law . . . . I don't know why she . . . ended up marrying that boy.” (Id. at 34). Finally, in 2014 or 2015, an employee spilled hot iron onto the floor, and Campbell came to the area and said, “[W]hat's wrong with that boy?” (Doc. 27-6 at 1-2).

         Sometime in 2014, Watts saw the “n” word written on the wall of the first bathroom stall in the men's restroom. (Doc. 27-5 at 37). Although he did not tell anyone about the graffiti, it was removed within approximately two months. (Id. at 38). Additionally, Watts saw a rope tied into a noose hanging from a water hydrant pipe in the back of the plant. (Id.). The rope was there for approximately a month, and Watts never reported it. (Id.; Doc. 27-6 at 1).

         b. Training and reporting of allegations

         During his orientation, Tyco reviewed the handbook, anti-harassment policy, and diversity policy with Watts. (Doc. 27-5 at 9, 12-14; Doc. 27-6 at 18-22). On October 17, 2011, Watts signed an acknowledgment of training on Tyco's guide to ethical conduct and a statement he was given handouts regarding the guide. (Doc. 27-5 at 8-9 13; Doc. 27-6 at 17). Watts also signed a form the same day confirming he was trained on Tyco policies, including the anti-harassment and diversity awareness policy, the open door policy, and the Equal Employment Opportunity Policy. (Id. at 21-23). Watts received additional training on the guide to ethical conduct in December of 2011, 2012, and 2014. (Id. at 23-31).

         Watts never made any complaints of race discrimination or harassment to anyone in Tyco management or to anyone in Human Resources at the plant. (Doc. 27-5 at 19). Watts testified that in May 2014, he made a telephone call to an unknown number[4] from his cell phone, but he does not recall with whom he spoke. (Id. at 15-16). During the call, Watts reported supervisors were “calling black men boys and the ‘n' word. And [he] didn't approve with it.” (Id.).

         On June 23, 2014, while he was still employed at Tyco, Watts filed a charge of discrimination with the EEOC alleging he was discriminated against because of his race. (Doc. 27-6 at 32). Specifically, Watts alleged he was not considered for a position because of his race, he was paid less than similarly situated white employees, and he was disciplined differently than white employees with regard to the attendance policy. (Id.). The allegations contained in his EEOC charge do not mention any alleged racist comments, graffiti, noose, or any other harassment. (Id.).

         5. Darren Turner

         a. Allegations of harassment

         Darren Turner worked at the Anniston facility from June of 2010 until October of 2014, when his employment was terminated for leaving the plant without proper authorization from management. (Doc. 27-7 at 6, 37). Turner testified Shivers called him the “n” word on two occasions in 2011. (Id. at 26-29). The first time was in April 2011 when Shivers slapped the shield on Turner's helmet when he made a mistake in the pouring iron and called him the “n” word. (Id. at 26-27). ...


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