Herman Jackson v. Flint Ink North American Corporation, Also Known as Flint Ink Corporation

Citations: 370 F.3d 791; 2004 WL 1237648Docket: 03-2189

Court: Court of Appeals for the Eighth Circuit; July 7, 2004; Federal Appellate Court

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Herman Jackson, a former paste operator at Flint Ink North American Corporation, filed a lawsuit alleging violations of Title VII of the Civil Rights Act due to a racially hostile work environment and retaliation after reporting such conduct. Despite being disciplined twenty times and terminated three times (with reinstatement after the first two), the district court granted Flint Ink's motion for summary judgment on both claims. 

To establish a hostile work environment under Title VII, Jackson needed to prove he was part of a protected group, endured unwelcome harassment due to that membership, and that the harassment affected his employment conditions. Additionally, if the harassment was not by supervisors, he had to demonstrate that Flint Ink was aware or should have been aware of the harassment and did not respond adequately.

The court analyzed whether the work environment was both objectively and subjectively offensive, considering factors such as the frequency and severity of the conduct. While Jackson presented evidence of racial harassment, including racial slurs and derogatory graffiti, the court evaluated whether such conduct was severe or pervasive enough to alter the conditions of his employment. Ultimately, the appellate court affirmed the district court's summary judgment, indicating that the claims did not meet the necessary legal standards for a hostile work environment.

Mr. Jackson reports two instances of racial harassment by management, specifically alleging that his supervisor, Larry Stordahl, referred to him using a racial slur following a workplace altercation. Additionally, he claims to have overheard plant manager Frank Schreiner using derogatory terms related to race. Jackson also recounts four incidents involving co-workers making racially offensive remarks: one used the term "nigger-rigging," another directly called him a "nigger," and a third disparaged his music by saying, "we don't listen to that damn black music around here, nigger shit, radio," while also using the slur during a confrontation involving Jackson. 

Furthermore, Jackson described finding "KKK sign" graffiti at the Flint Ink facility, which he interpreted as a threatening gesture, especially given his background from Mississippi. The graffiti depicted a burning cross with "KKK" and included writings that seemed to reference Jackson's previous disciplinary issues for sleeping at work. Another employee corroborated that he viewed the graffiti as a threat against Jackson. 

Jackson's recollections regarding the graffiti's details became inconsistent during his deposition, as he initially stated that his name was associated with the KKK symbol but later clarified that it was actually written on a separate molding piece. Despite this, he acknowledged uncertainty about some of the graffiti and could not confirm the presence of his name in the pictures shown to him. The record includes images of the graffiti, but does not clearly show the name he claimed was present.

Conduct must be extreme to constitute a change in employment terms under Title VII, but harassment does not need to produce tangible negative effects on job performance or psychological well-being. The determination of whether racially derogatory behavior creates a hostile work environment hinges on the severity and pervasiveness of the conduct. A high severity can offset low pervasiveness, and vice versa. Previous cases have indicated that environments rife with racial slurs violate Title VII, while isolated or casual comments do not typically meet this threshold unless exceptionally severe.

In Johnson v. Bunny Bread Co., the court found no Title VII violation due to the infrequency and casual nature of racial comments, necessitating more than a few isolated incidents to establish a hostile environment. Similarly, in Powell v. Missouri State Highway and Transp. Dep't, a finding of no racially hostile environment was upheld based on few isolated slurs. Conversely, Delph v. Dr. Pepper Bottling Co. confirmed a hostile environment due to consistent racial name-calling, and Ways v. City of Lincoln found hostility with numerous harassment examples.

In Mr. Jackson's case, he encountered at most six isolated instances of derogatory language over a year and a half, with no direct targeting from managers. Some comments were made in heated situations, and many were not directed at Mr. Jackson specifically. The infrequency and nature of the remarks suggest a lack of a "steady barrage of opprobrious racial comment." Thus, the identified language does not meet Title VII's requirements for actionable harassment, as it does not impose a standard of workplace civility.

The presence of burning cross graffiti in the workplace is assessed as potentially more hostile and intimidating than racial slurs, which could support a Title VII claim. The analysis draws on two key cases: *Woodland v. Joseph T. Ryerson & Son, Inc.*, where racist graffiti was deemed insufficiently severe to constitute a hostile work environment, and *Reedy v. Quebecor Printing Eagle, Inc.*, where explicitly threatening graffiti aimed directly at the plaintiff was found to create a hostile environment. The burning cross graffiti in Mr. Jackson's case is seen as less severe than the threats in *Reedy*, as it does not appear to directly target him but rather expresses a general sympathy for Ku Klux Klan ideology. While the burning cross is recognized as a symbol of hate, its depiction as graffiti is less intimidating than an actual burning cross. The evidence does not sufficiently establish that the graffiti was a direct threat to Mr. Jackson, and any inferred connection between the graffiti and him remains vague and ambiguous compared to the explicit threats in *Reedy*.

Graffiti and racial slurs at Flint Ink were deemed insufficient to establish a Title VII claim, as Mr. Jackson did not provide adequate evidence that the harassment severely affected his employment. The district court did not assess whether Flint Ink was aware of the harassment by non-supervisors or failed to act, but noted that management had removed other graffiti when informed. Mr. Jackson reported his supervisor's racism to the supervisor himself, which is relevant to his retaliation claim.

Under Title VII, it is unlawful for an employer to retaliate against an employee for opposing discriminatory practices. To prove retaliation, a plaintiff must show they engaged in a protected activity, experienced an adverse employment action, and establish a causal link between the two. The district court found that while Mr. Jackson proved he engaged in protected activity and faced termination, he did not demonstrate a causal connection between his complaint and his firing.

Mr. Jackson argues he was terminated for complaining about discrimination, citing the timing of events. Although the timeline of his complaints is inconsistent, it is assumed for summary judgment that he complained a month before his termination. Throughout his employment, he faced twenty disciplinary actions, primarily related to attendance and job performance issues, which ultimately led to his dismissal.

Mr. Jackson's grievance regarding his third termination was arbitrated, with the arbitrator concluding that Flint Ink's disciplinary actions adhered to the principles of Progressive Discipline. The arbitrator noted Mr. Jackson's repeated inappropriate behavior constituted a significant abuse of time, justifying his discharge. Additionally, the arbitrator found no evidence supporting Mr. Jackson's claims of discrimination, stating that Flint Ink had clearly communicated its work hour expectations and consistently enforced discipline for violations.

Mr. Jackson argued that the disciplinary actions leading to his termination were racially motivated and claimed the warnings he received were irrelevant to the discharge decision. However, the district court found he provided no substantial evidence to support his allegations or to suggest that his disciplinary record was fabricated. Evidence indicated that other employees, regardless of race, faced similar disciplinary measures for equivalent rule violations.

While a plaintiff can establish a causal link between protected activities and adverse employment actions through circumstantial evidence, in this case, the evidence overwhelmingly pointed to legitimate reasons for Mr. Jackson’s termination, particularly his inadequate job performance. Title VII does not protect employees from consequences resulting from unsatisfactory performance, and the timing of his termination relative to his discrimination complaint was insufficient to establish retaliation. The record supports that a reasonable jury would not find his termination was due to his complaints rather than his work performance issues.

The district court's decision to grant Flint Ink's motion for summary judgment is affirmed. Circuit Judge John R. Gibson dissents, arguing that the connection between the graffiti stating "H. J. slept here" and the KKK, along with a burning cross, constitutes a factual issue that should be evaluated by a jury. He emphasizes that in summary judgment, facts must be viewed favorably for the non-moving party, and that credibility and inference drawing are jury responsibilities, not judicial ones. Gibson criticizes the majority opinion for dismissing reasonable inferences regarding the connection between the graffiti and the burning cross, which he believes were intended to intimidate. He notes the Supreme Court's recognition of the burning cross as a powerful symbol of hate and intimidation. The evidence presented, including the context of hostility towards the plaintiff, Jackson, suggests that the graffiti was threatening. Unlike a previous case where prompt action was taken to remove graffiti, in this instance, the burning cross remained visible and was contextually linked to Jackson, indicating a personal threat and creating a hostile work environment.

Sufficient evidence of racial harassment was presented by Jackson to withstand a motion for summary judgment. Jackson testified about finding a KKK sign with his name in his work area and described a photo showing KKK symbols and his name in a shower setting. Gloria Lawler provided an affidavit supporting Jackson's claims, confirming she saw KKK drawings prominently displayed at the workplace. Jackson interpreted the graffiti, which included phrases like "HJ slept here," as threatening, suggesting that it communicated an intent to harm him. Although defense counsel noted that the name was located on a different part of the door frame from the KKK symbol, Jackson acknowledged this distinction. The quality of the reproduced photo in the appendix was deemed insufficient for resolving any ambiguities in the evidence.