Submitted January 16, 2013.
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Appeal from United States District Court for the District of Nebraska - Omaha.
For Jaryl Ellis, Michael Hunter, Tiffany Johnson, Paul Zeiger, Aaron Delaney, Plaintiffs - Appellants: Jefferson Downing, KEATING & O'GARA, Lincoln, NE.
For Robert P. Houston, Director of Nebraska Department of Correctional Services, all in their individual capacities and official capacities, Dennis Blakewell, Warden of Nebraska State Penitentiary, all in their individual capacities and official capacities, Cathy Sheair, Associate Warden of Nebraska State Penitentiary, all in their individual capacities and official capacities, Joseph Staley, Associate Warden of Nebraska State Penitentiary, all in their individual capacities and official capacities, Barry Loock, all in their individual capacities and official capacities, Kevin Stoner, all in their individual capacities and official capacities, Chad Miles, all in their individual capacities and official capacities, Chad Haney, all in their individual capacities and official capacities, Sean Runge, all in their individual capacities and official capacities, Timothy Furby, all in their individual capacities and official capacities, Defendants - Appellees: Linda Louise Willard, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Lincoln, NE.
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges. LOKEN, Circuit Judge, concurring in the judgment, joined by COLLOTON, Circuit Judge.
MURPHY, Circuit Judge.
Five African American officers who worked in the maximum security Nebraska State Penitentiary brought this action under 42 U.S.C. § § 1981 and 1983 against five supervisors for race based harassment and retaliation. They seek both injunctive relief and monetary damages. The district court granted summary judgment to the defendants after examining the evidence " as if there were but a single plaintiff and a single defendant." The black officers appeal, arguing that the district court dismissed valid claims for racial harassment and retaliation. After studying the record, we reverse the dismissal of the harassment claims against Sergeant Miles and the retaliation claims of Officer Ellis
against Lieutenants Stoner and Haney but otherwise affirm.
Appellants Jaryl Ellis, Aaron Delaney, Michael Hunter, Tiffany Johnson, and Paul Zeiger are black prison guards who worked in the first shift at the Nebraska State Penitentiary during the relevant time period. The hours of the first shift were 6 AM to 2 PM. While 30 percent of the prison population is black, the five appellants were at the time the only African Americans among the 95 guards working on the first shift. Hunter began at the prison in 2006; the others started in 2008 and 2009. Appellants Ellis, Delaney, and Johnson are all officers; Hunter is a caseworker; and Zeiger is a corporal. Their five immediate supervisors on the first shift were Lieutenants Sean Runge, Kevin Stoner, and Chad Haney; Sergeants Chad Miles and Timothy Furby.
On review of the summary judgment granted to the supervisors, we must view the facts in the light most favorable to the black officers. Wierman v. Casey's Gen. Stores, 638 F.3d 984, 989 (8th Cir. 2011). Our review of the factual background is based on an extensive record which includes discovery taken from each plaintiff and from each defendant, as well as from uninvolved officers on the first shift and from prison officials. Our task at this point is not to decide disputed facts or to weigh issues of veracity, and we begin with the record produced in the district court.
See Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1063 (8th Cir. 2008).
The record does not reveal a single starting date for the race based harassment the plaintiffs say they suffered at the penitentiary. Caseworker Hunter, the plaintiff who had been employed at the penitentiary the longest, testified that many former black employees had left the prison because they became " fed up" with the racial environment. Plaintiffs have provided evidence that by early summer 2010 they were experiencing demoralizing race based taunts and jokes which were permitted and joined in by their supervisors. The supervisors made insulting racial remarks in their presence and failed to stop or reprimand similar conduct by other guards.
After enduring such harassment for months, the black officers reported it to authorities in the Nebraska prison system. Thereafter, the supervisors retaliated against them by increasing workloads and assigning them undesirable jobs. After raising their concerns about the harassment to prison officials, two of the five plaintiffs were transferred to less significant penal institutions with fewer overtime possibilities.
As soon as the black officers entered the prison to begin their work day, they faced humiliating and aggressive treatment by drug dog handlers stationed at the entrance. The dogs were used to ensure that contraband was not smuggled into the prison, but the appellants testified that the handlers would aggressively press the dogs onto them while white officers were allowed to proceed into the hallway unmolested. Then in the hallway on the way to roll call, the black officers were regularly subjected to offensive statements referring
to them as " the gang," the " home boys," or " the back of the bus."
The morning roll call at the penitentiary was a point at which much of the harassing conduct occurred. The black officers allege that they were subjected to an ongoing stream of racial jokes and remarks by members of the first shift. Roll call was held in the cafeteria at the beginning of the work day, and all 95 members of the first shift and their five supervisors were typically present. The atmosphere was generally loud and boisterous, with members of the shift conversing and exchanging news prior to beginning the day's work. There were frequent race based comments like " it smells like fried chicken" or the black officers must be happy with watermelon on the menu. The officers also heard statements like " it's dark in the corner" if any of them happened to gather at one end of the cafeteria and remarks like " if the lights went out all you would see is white teeth."
The supervisors gave out the day's assignments to each member of the shift at the roll call. The record indicates that individual officers on the first shift did not perform a single function at the penitentiary. Rather, each officer was rotated through a variety of different jobs, some of which were more desirable and prestigious than others. While officers were permitted to request particular positions, the supervisors had authority to decide which officer would fill each job.
There was evidence that the five supervisors were present and often laughing, smirking, or chuckling at the racial taunts. Several white members of the first shift testified in their depositions that supervisors not only laughed at the racially derogatory remarks made in their presence, but took no cautionary or disciplinary action against the speakers. The black officers testified that they felt powerless to respond to the remarks directed at them. In the words of Caseworker Hunter, " the people that you report to [are] the same people that's laughing and joking" with those making racial comments.
The record indicates that supervisors also joined more directly in the harassing conduct. In front of the roll call, Sergeant Miles linked the black guards with fried chicken and watermelon and making it " dark in the corner" where they typically lined up. Miles also made negative statements in reference to Officer Tiffany Johnson's hair style like " this ain't no hair show" and " this isn't the hood." Lieutenant Runge referred to the black officers as the " back of the bus" and " the hood." Lieutenant Stoner referred to Corporal Zeiger as " Corporal Zigger," and Sergeant Furby used the word " nigger." The record indicates that all the black officers became aware of such comments even if each was not present when every one was made.
Appellants testified that the harassment caused them severe stress, anxiety attacks, depression, and heightened blood pressure. Hunter's hair began to fall out due to the strain he was under, and Delaney suffered outbreaks of hives. The record indicates that the hostility directed at the appellants reached a point where they even came to believe that their fellow officers would not assist them if they were attacked by inmates or found themselves in danger. Some white members of the first shift warned the black officers to " watch [their] back[s]." The black officers' fears were amplified when no white officer came to help Officer Johnson when her alarm activated accidentally.
Ellis testified that while the black officers had initially tried to ignore the offensive remarks, their restraint only encouraged more " brazen" conduct by the first shift staff. On a day when Officer Ellis
had had enough of the harassment, he exclaimed " damn the jokes" and " enough is enough." Although supervisors Miles, Runge, and Stoner were present when Ellis expressed his frustration, they failed to say anything or take any action in response. The record reflects that they just grinned. Ellis later reported specific instances of racial harassment to both Lieutenant Runge and Sergeant Furby, but no action was taken by either in response.
The penitentiary's administrative regulation 112.07 governs how supervisors and managers are required to respond to instances of racial harassment. The regulation defines " workplace harassment" as " any verbal or physical conduct of a discriminatory nature, (inflammatory comments, jokes, printed material and/or innuendo), based, in whole or in part, on race, color, sex, religion, age, disability or natural origin" if its intention or result is an intimidating, hostile, or offensive work environment or it unreasonably interferes with a person's work or employment opportunities. The regulation requires that any supervisor " who receives a complaint alleging workplace harassment or who is otherwise aware of a situation involving a potential workplace harassment" must immediately inform the prison administrators about it. A.R. 112.07(I)(A).
According to Officer Ellis, he reported instances of harassment to Lieutenant Runge and Sergeant Furby and made the reports required by regulation 112.07. After two weeks went by without any response, Ellis asked Sergeant Furby for an update. Furby replied that he had spoken to one officer whom Ellis had complained about for making racist remarks and he advised Ellis to stay away from that individual. Sergeant Furby did not report these events to the prison administrators as required by regulation 112.07. When questioned during a subsequent investigation, Furby stated that Ellis had asked that his complaint be kept quiet.
Appellants became dissatisfied with the lack of action in response to the ongoing harassment they experienced. In September 2010 they wrote a joint letter to Major Barry Loock, the ranking officer in charge of the prison guards. In this letter they described the racially hostile environment that they experienced in the Nebraska State Penitentiary. They reported that there were persistent racial remarks made in conversations and at roll call. They complained that supervisors and guards frequently asked them to explain why " blacks act that way" when black inmates misbehaved. Offensive comments were made about the qualities of black hair and black hairstyles. The black officers complained that they were being given extra work compared to white guards and being warned that it was " suspicious" if they talked too long to black inmates. The five officers also told Major Loock that the complaints made by Officer Ellis to Sergeant Furby and Lieutenant Runge had gone unaddressed. The black officers asserted that the lack of responsive action showed that their supervisors were not serious about combating racial harassment in the prison. They told Major Loock that such acts made them feel like inmates themselves.
An investigation by the prison authorities followed Major Loock's receipt of the September letter. In October 2010 prison officials visited the penitentiary and interviewed the black officers, as well as their supervisors and members of the first shift alleged to have engaged in racial harassment. During these interviews Warden Dennis Bakewell initially indicated that the black officers would all be transferred to separate institutions, but he retreated
from that plan after they all objected. Sanctions were eventually imposed by prison authorities on three of the supervisors: Lieutenant Runge and Sergeant Furby were disciplined for having failed to report the harassment complaint submitted by Officer Ellis, and Sergeant Miles was disciplined for his own racist remarks.
The black officers claim that these sanctions did not change their environment or supervisor participation in the continuing harassment. The same type of offensive remarks were repeated " over and over again" after the sanctions had been imposed by the prison authorities.
Appellants allege that their supervisors retaliated against them for having submitted their complaint to Major Loock. Even though their complaint was supposedly confidential, other officers on their shift acted as if the black officers were responsible for the subsequent investigation by prison officials. Appellants contend that a deputy warden leaked details about the investigation to other employees at the prison, which allowed the supervisors and everyone else on the first shift to know that the black officers had complained.
According to appellants and to independent witnesses, treatment of the black officers changed dramatically after the supervisors learned about the official investigation. The black officers report that they were then shunned by supervisors and other officers, who either glared at them when they entered a room or refused to acknowledge their presence. Some of the white officers on the first shift later testified that the supervisors ran a " good old boys" system, doling out preferential treatment to officers they liked and punishing those they disfavored.
In his deposition Lieutenant Stoner could not recall ever having issued a citation to Ellis prior to the black officers' written complaint to Major Loock, but the record indicates that in the months following their complaint both Lieutenants Stoner and Haney charged Ellis for more infractions than any other prison guard received. At one point Stoner cited Ellis for allegedly laughing when a black inmate talked about assaulting a white prison guard. Officer Ellis and two independent officers at the scene denied that he had laughed or behaved inappropriately. On another occasion, Lieutenant Stoner instructed a subordinate to cite Ellis for briefly leaving his post to use the bathroom. Nothing in the employee manual required that an officer be relieved in order to use the bathroom, and there was evidence that other officers used the bathroom during their shifts without requesting permission.
Negative citations were part of a pattern of acts which discouraged black officers from spending much time interacting with black inmates. While Lieutenant Stoner claimed that interaction between black officers and black prisoners was unprofessional, Warden Bakewell testified in his deposition that prison guards were encouraged to have positive interaction with prisoners, particularly with the goal of providing role models for inmates of the same race. One guard testified that Lieutenant Stoner instructed her to write up Caseworker Hunter for coming to her unit in the middle of a shift even though other staff regularly did so and she had never before been told to report someone who did.
After the black officers' complaint was received by Major Loock, Lieutenant Haney also began issuing additional citations against Officer Ellis. For example, Lieutenant Haney cited Ellis for allegedly faking
an illness and required him to produce a doctor's note even though prison policy only required such notes for sick leave longer than 72 hours. Lieutenant Haney later recommended that both Officer Ellis and Corporal Zeiger be transferred out of the penitentiary, claiming both posed a direct threat to the safety of the institution. Lieutenant Haney also accused Ellis of being disrespectful, fabricating racial incidents, and causing
unnecessary disruption, jeopardiz[ing] the careers of staff members assigned to supervise him and could potentially pose a threat to the safety and security of the facility due to the unpredictable nature of Ellis' behavior and his willingness to lie with regard to any incident.
After Corporal Zeiger indicated he did not want Lieutenant Haney to know his home address, Haney ...