Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 1 of 50
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`CIVIL ACTION NO .
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`1 :04-CV-1135-JEC
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`MOHAMED HYATH,
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`Plaintiff,
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`V .
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`CITY OF DECATUR, W .S : RICHARDS,
`individually and in his
`official capacity as
`Lieutenant, T .G . KAROLYI,
`individually and in his
`official capacity as Corporal,
`and M .H . HENSEL, individually
`and in his official capacity as
`Corporal,
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`Defendants .
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`O R D E R & O P I N I O N
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`This case is presently before the Court on defendant Richards'
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`Motion for Summary Judgment [29], defendant H e nsel's Mot i on for .
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`Summary Judgment [30], defendant Karolyi's Mot ion for Summary '
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`Judgment [3 1 ], defendant City of Decatur's Motion for Summary
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`Judgment [33], defendant City of Decatur's Motion for Sanctions [40],
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`plaintiff's Motion for Summary Judgment [44], and defendant City of
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`Decatur's Motion to Strike [69] .
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`The Court has reviewed the record
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`and the arguments of the parties and, for the reasons set out below,
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`concludes that defendant Richards' Motion for Summary Judgment [29]
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`AO 72A
`(Rev, $/82)
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`

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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 2 of 50
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`should be GRANTED , defendant Hensel 's Motion for Summary Judgment)
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`[30] should be GRANTED , defendant Karolyi's Motion for Summary
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`Judgment [31] should be GRANTED , defendant City of Decatur's Motion
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`for Summary Judgment [33] should be GRANTED , defendant City ofi
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`Decatur's Motion for Sanctions [40] should be DENIED as moot,
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`plaintiff's Motion for Summary Judgment [44] should be DENIED , and
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`defendant City of Decatur's Motion to Strike [69] should be DENIED .
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`This is an employment discrimination case .
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`Plaintiff is al
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`practicing Muslim, of Mauritian origin . (Comp) . [ 1 j at 9[ 4 .)
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`Defendant City of Decatur ("Decatur" or "the City") hired plaintiff
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`as a police recruit in April, 2002 . (Def .'s Statement of Material
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`Facts ("DSMF") [33] at 91 1 .)'
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`Plaintiff spent the first 10 weeks of
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`his employment , in a trai ning course a t the North Central Police I
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`Academy in Austell, Georgia .
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`(Id . at 1 2 .) Following his graduation
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`from the police academy, plaintiff joined the Decatur police
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`department as a probationary officer in the patrol division . (Id . at
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`9[ 4 .)
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`1 The Court draws the facts from the undisputed facts in
`Defendant's Statement of Material Facts ("DSMF") [33], Plaintiff's .
`Statement of Material Facts ("PSMF") [46], and Plaintiff's Response to
`Defendant's Statement of Material Facts [46] . The majority of the
`facts underlying plaintiff's Complaint are undisputed .
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`2
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`AO 72A
`(Fiev .slsz)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 3 of 50
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`Plaintiff alleges that as soon as he joined the police
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`department, he became the object of "constant taunting and
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`harassment" based on his ethnicity and religion . (Plaintiff's
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`Statement of Material Facts ("PSMF") [46] at 91 12 .) Plaintiff's
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`fellow officers were aware that he was a practicing Muslim and,
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`because of his ethnicity, perceived him to be from the Middle East .
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`(Pl .'s Mot . for Summ . J . [44] at 19 .)
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`Plaintiff contends that, as a
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`result of his religion and ethnicity, officers in the police
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`department frequently referred to him by the nickname "Taliban" or
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`"Al Queada ."
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`(Id . at 17 .) In addition, plaintiff claims that
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`officers teased him about Muslim dress and dietary restrictions,
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`asking plaintiff why he did not eat pork or suggesting that he order
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`the "pork sandwich or hot dog" for lunch . (-Td . at 2 , 21 . ) In the
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`same vein, plaintiff alleges that defendant Karolyi, who was
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`plaintiff's field training officer and often rode with him in the
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`patrol car, asked plaintiff on several occasions whether women they
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`encountered in traditional Muslim dress were plaintiff's "wife" or I
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`In addition to these general comments, plaintiff asserts two I
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`specific incidents of alleged racial harassment by his co-worker,
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`defendant Hensel, and his shift commander and supervisor, defendant
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`Richards . (PSMF [46] at 9[9[ 13-18 .) The first incident involved
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`plaintiff's training in the use of oleoresin capsicum, more commonly
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`3
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`AO 72A
`( Rev.8/82)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 4 of 50
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`known as "OC" or "pepper spray ."
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`(Id . at ~[ 13 .) As part of their
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`training, all new police recruits are exposed to pepper spray for
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`three to five seconds .
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`(Id .)
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`Exposure to pepper spray causes an
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`unpleasant reaction, and .members of the police department typically
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`gather to watch the new recruits undergo the training .
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`(Id .)
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`Plaintiff received pepper spray training in July, 2002 . (DSMF [33] at
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`91
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`6 .) Approximately 25 people were present at the training,
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`including defendant Hensel, a Decatur police officer .
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`(Id . at 5[ 8 .)
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`Plaintiff alleges that after he was exposed to the pepper spray,
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`defendant Hensel stated, "That's what you get for bombing us you damn
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`Taliban ." (Id . at 9[ 9 .)
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`The second incident involved an altered FBI poster . (DSMF [33]
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`at 1 13 .) The Decatur police department occasionally receives FBIj
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`"Seeking Information" posters requesting information about suspected'
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`criminals . (Pl.'s Mot . for Summ . J . [44] at 17 .) In August, 2002,
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`the department received a "Seeking Information" poster concerning
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`A .S . Al-Rasheed, a Saudi Arabian suspected of being involved in the
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`September 11, 2001 hijacking . (Id . ; Richards Aff . [29] at 9I 15 .)
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`Defendant Richards used his computer to superimpose plaintiff's
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`photograph onto the FBI poster, so that the poster depicted plaintiff
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`as a suspected Islamic terrorist .
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`(Id .)
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`Richards showed the poster
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`to plaintiff, and then left it in the roll call room for other
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`officers to see . (Pl .'s Mot . for Summ . J . [44] at 18-19 .)
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`4
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`AO 72-A
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`t~eY.sis2}
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`11
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 5 of 50
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`Although the City maintains an anti-harassment palicy, 2 plaintiff
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`did not complain about any of these incidents when they occurred .'
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`(DSMF [33] at 1 23 .)
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`Neither did plaintiff tell defendants Hensel,
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`Karolyi, or Richards that he found their comments offensive, or ask
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`defendants to stop making the comments . (Id . at 1 21 .)
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`Plaintiff first complained about the alleged harassment when he
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`contacted Assistant Chief of Police David Junger by telephone on
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`September 11 or 12, 2002, and requested a meeting to discuss his
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`allegations . (DSMF [33] at T 28 .) Pursuant to plaintiff's request,
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`Junger scheduled a meeting for September 13, 2002 .
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`(Id .)
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`In
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`addition to plaintiff and Junger, Director of Public Safety Sherrard
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`White and Assistant Chief of Police William Clark attended the
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`meeting .
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`(Id . at 91 30 .)
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`During the meeting, plaintiff informed
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`White, Junger, and Clark about the alleged harassment . According to
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`2 The policy includes a gr i evance procedure, which is described ,
`in the City's Personnel Rules and Regulations manual . (DSMF [33] a t l
`1 27 .) Pursuant to the policy, an employee may present a grievance
`to his orr her superv i sor within f i ve work i ng days after the employee
`k new , o r in t h e exe r c i se o f d ue dil ig enc e sh o u ld have k no wn, of the
`conduc t or acts upon which the gri e vance is based .
`(Id .
`at 1 24 .)
`If the grievance is not resolved by the supervisor, the employee may
`present it to the head of his department within five work i ng days
`after the supervisor's response is given or is due .
`(Id .)
`If the
`grievance is still not resolved, the employee may present it to the
`City Manager w i thin five work ing days after t he department head's
`dec isi o n is ren de red o r due .
`( Id . a t T 2 5 .
`)
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`3 Plaintiff concedes that he received a copy of the pol i cy along
`with his offer of employment, and that the C i ty rev i ewed the policy
`wi th plaint i ff at an orientation session .
`(DSMF [33] at 9[ _ 23 .)
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`5
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`AO 72A
`(Aev. 8/82)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 6 of 50
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`plaintiff, Clark stated that he believed the comments were not
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`intended maliciously, but were a form of inappropriate joking . (Id .
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`at T 31 .) White added that he took plaintiff's complaints ser i ously,
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`and that the C i ty would i nvestigate the alleged conduct .
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`(Id . at ~
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`32 .) White further assured plaintiff that if h i s allegations were
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`true, the City would .discipline the individuals involved . ( Id . at T
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`33 . ) U pon p lain t iff's reque s t, White a greed t o a l l o w plaint i ff to
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`take a pa i d leave of absence during the investigat i on . (Id . at 11
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`34 .)
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`Fol l owing his meeting with plaintiff, White appo i nted Lieutenant
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`David Hipple to conduct an internal investigation into plaint i ff's,
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`alle gatio n s .
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`( D SMF [ 33 ] at 91 3 6 . ) H ipple s ubsequently met with
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`plaint i ff to discuss his complaint .
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`(Id .
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`at 9[ 37 .) Hipple thenll
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`interviewed defendants Hensel, Richards, and Karolyi, as well as !,
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`Officer Sibley, who worked with plain t i f f on a regular basis .
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`(Id•
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`at 9[ 39 .)
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`On September 19, 2002, while Hipple's investigation was ongoing,
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`pla i ntiff's wife sent a letter to Peggy Merriss, the C i ty Manager,
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`i ndicating plaintiff's desire to res ign from the police department .
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`I
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`I
`',
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`(DSMF [33] at J[
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`41 .) The fo ll owing day, Merriss responded in
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`writing, assuring plaintiff's wife that "the C i ty of Decatur takes
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`the conduct reported by Officer Hyath very seriously ."
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`(Id .
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`at 9[
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`42 .) Merriss further stated that "Off i cer Hyath is a valued member
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`AO 72A
`( Re v .8J82)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 7 of 50
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`of the City of Decatur Police Department, and we would like him to
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`continue employment" with the City .
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`(Id .)
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`Merriss reassured
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`plaintiff's wife that "[e]very effort is being made to address
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`[plaintiff's] complaint ." (Id .)
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`In late September, 2002, Clark . informed plaintiff that
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`Lieutenant H ipple had comp l eted his investigation and that discipline
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`of the offending officers was pending . 4
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`(DSMF [33] at 9[ 43 .)
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`Shortly ',
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`thereafter, plaintiff submitted his letter of resignation to Clark 'I
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`and Junger .
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`(Id . at 91
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`44 .) Plaint i ff claims that he resigned )
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`because he feared retaliation for having raised a harassment
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`complaint .
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`(Id . at 9[ 46 .) However, plaintiff never experienced any
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`harassment or retaliation after his meeting with White, Clark, and
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`Junger on September 13th . (Id . at S 35 .) Neither is plaintiff aware
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`of any other officers who have experienced retaliation for making
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`complaints against the City or fellow officers .
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`(Id .
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`at
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`91
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`46 .)
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`Plaintiff also concedes that, prior to resigning, he had .a telephone
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`conversation with defendant Richards, who indicated that he had no
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`ill feelings for plaintiff and encouraged plaintiff to return to
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`work .
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`(Id . at 9[ 47 .)
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`9 The City ultimately disciplined Hensel and Richards by issuing
`written letters of reprimand to both officers . (DSMF [33] at T 45 .)
`Karolyi was not disciplined, apparently because plaintiff did not
`identify Karolyi as one of the offending individuals in his initial
`conversation with Lieutenant Hippie or in his previous meeting with
`White . (Id . at 9[ 38 .)
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`7
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`AO 72A
`( Aev.$182)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 8 of 50
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`After plaintiff resigned, he filed for unemployment benefits .
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`(Compl . [ 11
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`at IH 26 .) The Department of Labor determined that
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`plaintiff had resigned from the police department for good cause, and
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`granted benefits .
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`(Id, at T 27 .) On appeal, the Dekalb County
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`Superior Court affirmed the decision, also finding that plaintiff
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`resigned for good cause . (Id . at 1 28 .)
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`Plaintiff subsequently filed a charge of discrimination with the
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`Equal Employment Opportunity Commission ("EEOC), claiming that he was
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`subjected to a hostile work environment . (Hyath Dep . at Ex . 14 .)
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`Although the EEOC never issued a notice of right to sue , plaintiff
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`filed this lawsuit on April 26 ,
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`2004 . 5 (Compl .
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`[1] .) In his
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`Complaint, plaint i ff alleges that he was sub j ected to a hostile work
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`env i ronment on the basis of his ethn i city and religion .
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`(Id : at 9[
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`30 .) Pla i ntiff seeks relief against the City, and against the
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`individual defendants i n their individual and , official capacities,
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`pursuant to 42 U .S .C . §§ 1981 and 1983 . Plaintiff also asserts
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`various state law theories of recovery, including negligent
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`~ Plaintiff initially indicated that he intended to amend his .
`Complaint when he received his Notice of Right to Sue . (Compl . [1 ]
`at 9[ 10 .) Presumably, .plaintiff intended this amendment to address
`a claim under Title VII, 42 U .S .C .
`§ 2000e-2, et seq . However,
`plaintiff never amended his Complaint and never produced a Notice of
`Right to Sue from the EEOC . Accordingly, the Court addresses only
`plaintiff's claims for relief under § 1981 and § 1983 .
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`8
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`AO 72A
`( Rev. 8/82)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 9 of 50
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`supervision and retention, and intentional infliction of emotional
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`distress .
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`(Id . at 9191 47-61 .)
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`All of the parties have filed motions for summary judgment,
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`which are presently before the Court . The City has also filed a
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`motion to strike untimely exhibits submitted by plaintiff, and a
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`motion for sanctions to address alleged discovery abuses .
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`I .
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`Summary Judgment Standard
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`DISCUSSION
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`Summary
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`j udgment is appropriate when the "pleadings, .,
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`depositions, answers to interrogatories, and admissions on file,
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`together w i th the affidavits, if any, show that there is no genuine
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`i ssue as to any material fact and that the . mov i ng party is entitled
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`to a judgment as a matter of law ."" FED . R . Czv . P . 56 (c ) . A fact's
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`materiality
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`i s determ i ned by the controll i ng substantive law .
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`Anderson v . L iberty Lobby, Inc ., 477 U .S . 242, 248 . (1986) . An issue
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`is genuine when the evidence is such that a reasonable j ury could
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`return a verdict for the nonmovant .
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`Id . at 249-50 .
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`Summary judgment i s not properly viewed as a device that the
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`trial court may, in its discretion, implement in lieu o f . a trial on
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`the mer i ts . Instead, Rule 56 of the Federal Rules of Civil Procedure
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`mandates the entry of summary judgment against a party who fa i ls to
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`make a showing sufficient to establish the existence of every element
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`essential to that party's case on which that party w i ll bear the
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`9
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`AO 72A
`(Rev.8182)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 10 of 50
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`burden o f proof at tr i al . Celotex Corp . v . Catrett, 477 U .S . 317,
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`322 (1986) . In such a situation, there can b e no genu i ne issue as to
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`any material fact, as a complete failure of proof concerning an
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`essential element of the non-mov i ng party's case necessarily renders ',
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`all other facts immaterial . Id . at 322-23 (quoting FED . R . C TV . P .
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`56(c)) .
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`The movant bears the in i t i al responsibility of assert ing the
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`basis for his motion .
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`Id . at 323 . However, the movant is not
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`required to negate his opponent's claim . The movant may discharge
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`his burden by merely "'showing'-- that is, pointing out to the
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`district court--that there is an absence of evidence to support the
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`non-moving party's case ."
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`Id . at 325 . After the movant has carried
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`his burden, the non-moving party is then required to "go beyond the
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`pleadings" and present competent evidence designating "'specific
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`facts showing that there is a genuine issue forr trial .'"
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`Id . at 324 .
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`While the court is to view all evidence and factual inferences in a
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`light most favorable to the non-moving party,
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`Samples v .
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`City of
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`Atlanta, 846 F .2d 1328, 1330 (11th Cir . 1988), "the mere existence of
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`some alleged factual dispute between the parties will not defeat an
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`otherwise properly supported motion for summary judgment ; the
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`requirement is that there be no genuine issue of mate ria l fact ."
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`Anderson, 477 U .S . at 247-48 (1986) .
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`10
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`AO 72A
`(Rev-8/82)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 11 of 50
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`II .
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`Defendant City ' s Motion for Summary Judgment
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`Plaintiff asserts claims against the City under .§ 1981 and §
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`1983 for creating and maintaining a hostile work environment .
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`(Compl . [1] at 9191 35 - 46 .) Section 1983 "provides the exclusive
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`federal damages remedy for the violation of rights guaranteed by §
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`1981 when the claim is pressed against a state actor ." Busby v . City
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`of Orlando, 931 F .2d 764, 771 (11th Cir . 1991) . Thus, the Court will
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`not separately consider plaintiff's claim under § 1981, which
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`"effectively merge[s] into [his] section 1983 claim ."
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`Id . See also,
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`Webster v . Futon County, 283 F .3d 1254, 1256 (11th Cir . 2002)
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`(noting that § 1981 is only enforceable against a state actor through
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`§ 1983) and Godby v . Montgomery County Bd, of Educ ., 996 F .Supp .
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`1390, 1411 (M .D . Ala . 1998) ("Where the defendants to a suit are
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`state actors, § 1981 claims merge into § 1983 clams .") . In order
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`to hold the City liable under § 1983, plaintiff must demonstrate that
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`the City : 1) deprived him of a constitutional right, 2) under color
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`of state law .
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`Edwards v . Wallace Community College, 49 F .3d 1517,
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`1522 (11th Cir . 1995) (citing Gomez v . Toledo, 446 U .S . 635 (1980)) .
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`In addition, plaintiff must show that the constitutional deprivation
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`occurred pursuant to a policy or custom of the City .
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`Griffin v . City
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`of Opa-Locka, 261 F .3d 1295, 1307 (11th Cir . 2001) .
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`The City 'contends that it is entitled to summary judgment
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`because plaintiff cannot demonstrate harassment sufficiently severe
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`11
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 12 of 50
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`and pervasive to rise to the level of a constitutional deprivation .
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`(Def . City's Mot . for Summ . J . [33] at 6-10 .)
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`The Court agrees . In
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`addition , the Court finds no evidence to suggest that any .policy or
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`custom of the City caused the alleged constitutional deprivation .
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`For both reasons, the City is entitled to summary judgment on
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`plaintiff's § 1983 claim .
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`A .
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`Plaint i ff has not suffered a cons t itut i onal deprivation .
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`Plaintiff alleges that the City deprived him of his
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`constitutional right to equal protection of the law, as guaranteed by
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`the Equal Protection Clause of the Fourteenth Amendment . (Compl . [1]
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`at
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`1
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`38 .) Specifically, plaintiff contends that he has a
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`constitutional right, under the Equal Protection Clause, to be free
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`from a hostile work environment .
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`(Td .)
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`According to plaintiff, the
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`City deprived him of that right by creating and condoning a work
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`environment in which he was subjected to harassment as a result of
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`his religion and his perceived Middle Eastern ethnicity .
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`(Id .)
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`The Eleventh Circuit has recognized a constitutional right,
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`arising under the Equal Protection Clause, to be free from unlawful
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`discrimination in public employment . See Busby, 931 F .2d at 775,
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`777 . See also, Cross v . State Dep't of Mental Health, 49 F .3d 1490,
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`1507 (11th Cir . 1995) (discussing § 1983 sexual harassment claim) .
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`This includes the right to be free from a hostile work environment .
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`Cross, 49 F .3d at 1507 . As the court explained in Busby and Cross,
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`12
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`( Rev. 8/82)
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 13 of 50
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`the elements of a hostile work environment claim under the Equal
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`Protection Clause are generally the same as the elements of a similar
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`claim under Title VII, 42 U .S .C . 2000e-2, et seq .
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`Bushy, 931 F .2d at
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`777 ; Cross, 49 F .3d at 1508 .
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`See also, Snider v . Jefferson State
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`Community College, 344 F .3d 1325, 1328 n . 4 (11th Cir . 2003) ("Wed
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`have written that `[w]hen section 1983 is used as a parallel remedy
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`for violation of Title VII the elements of the two causes of
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`action are the same .'") (quoting Hardin v . Stynchcomb, 691 F . 2d 1364,
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`1369 (11th Cir . 1982) )
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`.
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`Thus, in order to establish that the City deprived plaintiff of
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`his constitutional right to equal protection by maintaining a hostile
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`work environment, plaintiff must show that : 1) he belongs to a
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`protected group ; 2) he was subjected to unwelcome harassment ; 3) the
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`harassment was based on his race or ethnicity ; and 4) the harassment
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`was sufficiently severe or pervasive to alter the terms and
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`conditions of his employment .
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`Miller v . Ken worth of Dothan, Inc .,
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`277 F .3d 1269, 1275 (11th Cir . 2002) . See also, Gupta v . Flori da Bd .
`
`l
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`of Regents, 212 F .3d 571, 582 (11th Cir . 2000)
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`For purposes of th i s
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`motion, the City concedes that plaintiff has met his burden on the
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`first three factors . The focus of the Court' s inquiry is thus on the
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`fourth factor .
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`To prevail on the fourth factor , plaintiff must offer proof that
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`"the workplace is permeated with discriminatory intimidation ,
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`13
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 14 of 50
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`r i dicule,, and i nsult, that i s sufficiently severe or pervasive to
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`alter th e
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`co nditi o ns ' o f
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`[ hi s ]
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`empl o yment and c reate a n abus ive
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`working environment ." Harris v . Forkl i ft Systems, Inc ., 510 U .S . 17,
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`21
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`(1993)
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`(internal c i tations and quotation marks omitted) ; Gupta,
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`~~ 2 12 F .3d at 583 . Moreover, plaintiff must produce evidence that the .
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`harassment is "both sub j ectively and objectively severe
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`and,
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`pervasive ."
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`Johnson v . Booker T . Washington Broad . Svc . Inc ., 234
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`F . 3 d 5 01,
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`50 9
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`( 11th Ci r .
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`2 000 )
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`.
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`That is , pl aintiff must est ablish
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`"not only that he subjectively perce ived the environment as hostile
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`a n d abus ive, bu t a l so tha t a r eas o nabl e pers on wo u l d [s o ] perceive
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`t he environment ."
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`Gupta, 2 1 2 F .3d at 583 .
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`.
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`To determine whether
`
`harassment i s object i vely severe and pervasive, the Court considers :
`
`"(1) the frequency of the conduct ; (2) the severity of the conduct ;
`
`(3) whether the conduct is physically threaten i ng o r humiliat i ng, or
`
`a mere offensive utterance ; and (4) whether the conduct unreasonably
`
`interfe r es with the employee's j ob performance ." Mendoza v . Borden,
`
`Tnc ., 1 95
`
`F . 3 d 1 2 38, 1 2 46
`
`( 11th Cir .
`
`1 9 99) ;
`
`Hulsey v . P r ide
`
`Resta u rants, LL C, 367 F . 3 d 1238, 1247-48 ( 11th C ir .
`
`2 0 0 4) .
`
`Plaintiff alleges the following facts i n support of his host i le
`
`work environment claim :
`
`(1)
`
`frequently referred to hi m by the nickname
`Officers
`"Tal iban" or "Al Que ada" ;
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`1 4
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 15 of 50
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`(2) Officers insulted Muslim dietary restrictions by asking him
`if he was going to have "the pork sandwich or the hot dog "
`for lunch ;
`
`(3)
`
`Defendant Karolyi, when he encountered women in trad i tional
`Muslim dress wh i le r iding in the patrol car with plaintiff,
`asked plaint i ff
`i f the women were "his w i fe" or "his
`mother" ;
`
`I
`
`(4) On one occasion, while plaintiff was undergoing "pepper
`spray" training, defendant Hensel yelled, "That's what you
`get for bombing us, you damn Taliban!" ; and
`
`(5) On another occasion, defendant Richards superimpasedi
`plaintiff's face onto an FBI "Seeking Information" poster
`to depict plaintiff as an Islamic terrorist suspected of
`being associated with the September 11, 2001 hijackers .
`
`(PSMF [46] at 9191 1 -17 ; Pl .'s Resp . to Def .'s Statementt of Material
`
`Facts [46] at 9[ 20 . )
`
`As an initial matter, the Court notes that plaintiff's
`
`allegations cons i st almost entirely of offensive - statements . A '
`
`hostile work environment generally does not arise from the "mere
`
`utterance of an epithet which engenders offensive feelings in
`
`an employee ."
`
`Harris, 510 U .S . at 21 . To create a hostile work
`
`environment, rac i al slurs must be "`so commonplace, overt and
`
`denigrating that they create[] an atmosphere charged with racial
`
`hostility .'"
`
`Edwards, 49 F .3d at 1521 (quoting EEOC v . Beverage
`
`Canners, Inc ., 897 F .2d 1067, 1068 (11th Cir . 1990) -)
`
`.
`
`. Assuming that
`
`plaintiff'ss fellow officers made the statements that plaintiff
`
`attributes to them , the statements do not indicate an atmosphere
`
`"charged with racial hostility ."
`
`Id .
`
`(See PSMF [46] at 9[I 1-17 .)
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`Indeed, - Lieutenant Nipple's investigation revealed that, though the
`
`statements were inappropr iate, the officers expressed no hostility or
`
`i l l-w i ll t owards p la i n ti f f .
`
`( DSMF [3 3 ]
`
`at 91 4 0 .
`
`)
`
`Plaintiff also
`
`acknowledges that, wh i le he was offended by t he statements, they
`
`occurred i n t h e cont ext of pervasive "nicknames, joking and teas i ng"
`
`within the police department, as opposed to an atmosphere "charged
`
`with racial hostility ." (PSMF [ 4 6] at 91T 5-6 ; Hyath Dep, at 163 .)
`
`Mo re o v e r, applying th e
`
`rel ev ant fa c t o r s , the statements
`
`plaintiff alleges do not r i se to the level of severe and pervasive
`
`harassment . While some of the statemen t s were frequent, none were
`
`parti c ularly s evere .
`
`Se e Ko s e rei s v . R h o d e Islan d , 33 1 F . 3 d 2 0 7 , 21 6.
`
`(1st Cir . 2003 )
`
`(concluding that statements referring to Turkish
`
`plain t i f f as "turkey" and teas i ng him about his Turkish food,
`
`although frequent, were not sufficiently severe to support a hostile II
`
`~, work environment claim) . Further, plaintiff concedes that the
`
`statements did not affect his job pe r formance . (Hyath Dep, at
`
`176 .)
`
`Finally, there is no evidence that the statements were made in an
`
`i nt imidating manner, or accompanied by physical threats .
`
`Compare
`
`Mi l l er v . Ken worth of Dothan, 277 F .3d 1269 (11th Cir . 2002) (find i ng
`
`suff i c i ent evidence that racial epithets were severe where
`
`plaintiff's foreman called him "Spic" "wetback" and "Mexican
`
`motherfucker" i n an intimidating manner wh il e argu i ng w i th plaint i ff
`
`or berating him f o r hi s job perf o rma nce )
`
`.
`
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`
`The only allegation that involves more than an offensive
`
`statement is plaintiff's complaint about the altered FBI poster .
`
`(PSMF [46] at 911H 13-17 .) The poster incident, however, is in the
`
`same vein as the offensive statements . While inappropriate and
`
`offensive to plaintiff, there is no evidence that the poster was
`
`accompanied by threats or intimidation, or presented in a malicious
`
`or hostile manner . (See PSMF [46] at 11 13-18 ; DSMF [33] at $1 13-
`
`14 .) 14.) Richards has testified, and plaintiff does not dispute, that he
`
`presented the poster to plaintiff in a teasing, as opposed to a
`
`hostile manner, in an environment in which teasing among officers was
`
`routine . (Richards Aff . [29] at 91 16 ; Hyath Dep . at 163 .) See
`
`Oncale v . Sundowner Offshore Servs ., Inc ., 523 U .S . 75, 82 (1998)
`
`(instructing courts to consider the social context to distinguish
`
`between innocuous behavior and severe and pervasive harassment) .6
`
`Moreover, as with the offensive statements, plaintiff concedes that
`
`the poster incident did not interfere with his job performance .
`
`(Hyath Dep . at 176 .) Thus, like the offensive statements, the poster
`
`incident does not rise to the level of severe and pervasive racial
`
`harassment .
`
`See Baker v . Alabama Dept of Public Safety, 296 F .Supp .
`
`2d 1299, 1309 (M .D . Ala . 2003) (finding that computer image depicting
`
`6 In his Affidavit, Richards explains that he intended the
`poster as a joke . (Richards Aff . [29] at 9[ 15 .) Hyath similarly
`refers to the "teasing" or "joking" culture within the police
`department . (Hyath Dep, at 163, 241-42 .)
`
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`
`plaintiff as an Arab terrorist was not sufficiently severe to create
`
`a hostile work environment) .
`
`Particularly considering the social context surrounding
`
`plaintiff's alleged harassment, his reliance on Miller i s mi splaced .
`
`The plaint i ff i n Miller, a Mex i can-Ame ri can, presented evidence not
`
`o nl y that hi s co-workers and f o rema n r e ferred t o hi m by derogatory
`
`names, including "Julio," "Chico," "taco," "wetback," "spic," and
`
`"Mexi can mo therfuck e r", b ut a lso that h is co - wor ker s and f o reman u s e d
`
`these names in an intimidating manner, ' shouting racial epithets at
`
`plaintiff while arguing with him or berating him for his job
`
`performance .
`
`Miller, 277 F .3d at 1273 . Finding a question of fact
`
`as to whether plaintiff could show severe and pervasive racial
`
`harassment, the court emphasized that plaintiff had presented
`
`evidence of intimidation, as opposed to merely relying on "offensive
`
`utterances ." Id . at 1277 .
`
`As discussed, there is no similar evidence in this case of
`
`threatening or intimidating behavior . On the contrary, plaintiff
`
`does not dispute that although he found the officers' comments
`
`offensive, they were made in a teasing, as opposed to a hostile
`
`manner, in an environment in which teasing among officers was
`
`routine . (Hyath Dep, at 163, 241-42 ; Richards Aff . [29] at 91 1 5 ;
`
`Hensel Aff . . [30] at 9[9[ 8, 10-11 .)
`
`See Gupta, 212 F .3d at 584
`
`(emphasizing that "ordinary socializing in the workplace should not
`
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 19 of 50
`
`be mistaken for discriminatory `conditions of employment"'), and
`
`Faragher v . City of Boca Raton, 524 U .S . 775, 788 (1998) (noting that ;
`
`"simple teasing" does not constitute severe and pervasive
`
`harassment) .
`
`There is another important distinction between this case and
`
`Miller .
`
`In Miller, the plaintiff's foreman continued to refer to
`
`him as "wetback," "spic," and "Mexican motherfucker," even though
`
`plaintiff had complained about the name-calling, and management had
`
`discussed the complaint with plaintiff's foreman and co-workers .
`
`Miller, 277 F .3d at 1274 . In this case, on the contrary, plaintiff
`
`did not complain to anyone, including the offending officers, until
`
`he requested a meeting with Assistant Chief of Police Junger . (Hyath
`
`Dep . at 154-55) . Plaintiff concedes that he did not experience any
`
`harassment after his initial complaint .
`
`(Id . at 190, 214 .) Thus,
`
`while the verbal harassment in Miller continued despite the
`
`plaintiff's objections, in this case the offensive conduct ceased
`
`immediately upon plaintiff's complaint .
`
`(Id .
`
`)
`
`This distinction is
`
`significant, because the Miller Court based its holding, in part, on
`
`the proposition that, "it is `repeated incidents of verbal harassment
`
`that continue despite the employee's objections that are indicative
`
`of a hostile work environment ."' Miller, 277 F .3d at 1276 (quoting
`
`Shanoff v . 111-inois Dept of Human Sercrs . , 258 F .3d 696, 704 (7th
`
`Cir . 2001)) .
`
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`Case 1:04-cv-01135-JEC Document 78 Filed 03/28/06 Page 20 of 50
`
`In fact, plaintiff's allegations i n th i s case are more like
`
`those in Smith v . Beve rly Health and Rehab . Servs ., Inc ., 978 F .
`
`Supp . 1116 (N .D . Ga . 1997) (Hull, J .) . The plaint i ff in Smith, a
`
`bl a ck n ursing
`
`a ssi stant, a s sert e d a T it le
`
`VII
`
`h o stil e
`
`wo rk
`
`environment c l a im based on several racially charged statements,
`
`includ i ng h i s supervisor's comments that : 1 ) "all that mooly can do
`
`is make coffee and bring i t to me" ; 2) "these goddamn Georgia n i ggers
`
`think they own Georgia" ; and 3) "where I come from n i ggers knew their
`
`place ." '
`
`Smi th, 978 F .Supp . at 1121-22 . Cit i ng well-settled Eleventh
`
`Circuit law concerning "offensive utterances," Judge Hull concluded
`
`that plaintiff's allegat i ons did not rise to the level of severe and
`
`pervasive racial harassment .
`
`Id . at 1120, 1122 (citing Edwards v .
`
`Wal la ce Com muni ty Co l lege ,
`
`4 9
`
`F . 3 d 15 17 , 152 1
`
`( 11t h C ir . 1 995)) .
`
`As in Sm i th, pla intiff's allegations in th i s case pr imarily
`
`i nvolve "offensive utterances ." Indeed, th e statements pla i ntiff
`
`a l leges are arguab ly less of f e nsive t han th e stateme nts in Smith .
`
`'.
`
`Th e Court a g r ees with Judge Hu ll ' s r easo ning , a nd co n c lude s t hat t h e
`
`alleged stat ements, like those in Sm i th, do not constitute severe and
`
`pervasive racial harassment .
`
`Sm i th, 978 F . Supp . at 1122 . See
`
`also, Barrow v . Georgia Pac ifi c Corp ., 2005 WL 1926420 *3 (11th Car .
`
`7
`
`The plaintiff in Smith also alleged that his employer had
`placed a post-it note on a patient's chart directing that no black
`males care for the patient, per the patient's request .
`Smith, 97