Ellis v. Houston

JARYL ELLIS, MICHAEL HUNTER, TIFFANY JOHNSON, PAUL ZEIGER, and AARON DELANEY, Plaintiffs,

v. ROBERT P. HOUSTON, Director of Nebraska Department of Correctional Services, DENNIS BAKEWELL,Warden of Nebraska State Penitentiary, CATHY SHEAIR, Associate Warden of Nebraska State Penitentiary,JOSEPH STALEY, Associate Warden of Nebraska State Penitentiary, BARRY LOOCK, KEVIN STONER,CHAD MILES, CHAD HANEY, SEAN RUNGE, and TIMOTHY FURBY,all in their individual capacities and official capacities, Defendants.

8:10CV3222

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

April 26, 2012

MEMORANDUMAND ORDER

This is a discrimination case brought pursuant to 42 U.S.C. § 1983 by five African American employees of the Nebraska Department of Correctional Services ("DCS"), all of whom were assigned to work the first shift at the Nebraska State Penitentiary ("NSP"). (Amended complaint (filing 37), ¶ 1) Three plaintiffs (Jaryl Ellis, Tiffany Johnson, and Aaron Delaney) are correction officers; one plaintiff (Paul Zeiger) holds the rank of corporal; and one plaintiff (Michael Hunter) is a caseworker. (Id., ¶¶ 3-7) All claim to have experienced a hostile work environment and to have received disparate treatment because of their race, in violation of 42 U.S.C. § 1981and their right to equal protection under the Fourteenth Amendment to the United States Constitution.¹ (Id., ¶¶ 2, 21, 26, 59-60, 62) They also claim to have been retaliated against for reporting workplace harassment and filing suit, in violation of § 1981 and the equal protection clause. (Id., ¶ 55) Named as defendants, in their official and individual capacities, are the DSC director (Robert Houston), the NPS warden (Dennis Bakewell), two associate wardens (Carthy Sheair and Joseph Staley), one major (Barry Loock), four lieutenants (Kevin Stoner, Chad Miles, Chad Haney, and Sean Runge), and one sergeant (Timothy Furby). (Id., ¶¶ 9-19)

The defendants have filed motions for summary judgment. (Filings 98, 109)² The plaintiffs, in responding to the motions, have "stipulate[d] to the dismissal of Defendants Sheair and Staley." (Filing 123 at 1) Because I find there is not sufficient evidence to support any of the plaintiffs' claims against any of the defendants, the motions for summary judgment will be granted and the plaintiffs' action will be dismissed with prejudice.

I. BACKGROUND

A. Plaintiffs' Allegations

This action was commenced on November 17, 2010, but the operative pleading is an amended complaint filed on May 4, 2011, wherein Delaney joined the action asa plaintiff and Loock, Stoner, Miles, Runge, and Furby were named as additional defendants.³ In the amended complaint the plaintiffs allege that:

24. . . . Over the last year,⁴ it became common practice for a significant number of the non-African American [NSP] staff to make comments in the presence of the first shift Plaintiffs to the effect of: "Looks like the back of the bus is here;" "Smells like fried chicken;" "The gang has arrived;" "The 'hood has arrived;" "If the lights went out, all you would see were white teeth;" and other racially charged comments . . .. At various times Defendants Miles, Runge, Stoner, Furby, and Haney have been present for and/or joined in the comments.

25. Once the NSP employees pass through the turnkey entrance, a sergeant is regularly stationed nearby handling a drug-sniffing canine. As non-African American employees would walk by, the canine-handler would usually stand back and let them pass without incident. When certain of the Plaintiffs walked through, however, the canine-handler would usually move forward or position himself as to have the canine drug-sniff the Plaintiffs.⁵

26. . . . [T]he Plaintiffs were told that they should not fraternize with the African-American inmates or spend too much time together with each other on duty because "it looks bad." . . . In addition, the Plaintiffs are routinely singled out for additional duties at NSP that non-African American employees are not called upon to perform as often. When Plaintiffs have raised concerns about the disparate treatmentthey have endured they have been labeled by co-workers and supervisors as 'lazy' or 'sandbaggers.'"

27. . . . NSP staff have used the word "nigger" and "niggers" in referencing inmates, as well as the term "black mother fuckers." When observing African American inmate behavior, the Plaintiffs have been asked by non-African American staff: "Why do you blacks act that way?"⁶

28. In the summer of 2010, an NSP corporal stated to one of the Plaintiffs that he "hates how blacks act" and that if all blacks could be lined up he "would shoot them all." The corporal professed to be a member of a white supremacist group. When these comments were reported by one of the Plaintiffs to Defendant Furby, the Plaintiff was told to "Stay away from him; he's a racist."

29. When Plaintiffs advised their co-workers and supervisors, including the Defendants, that such terms and comments were inappropriate, they were told that they were "throwing out the black card" or were being "old school militant."⁷

30. In August 2010, the Plaintiffs, following the chain of command, verbally reported their concerns to Defendants Furby and Stoner. . . . No investigation was undertaken by NSP management, including the Defendants, even though they knew or should have known of the racially hostile work environment that existed at NSP and were supposed to follow written policies requiring the reporting and investigation of workplace harassment.

31. In early September 2010, the Plaintiffs put their their [sic] complaints into an Incident Report and submitted them to Defendant Loock. Again, weeks passed and the Plaintiffs received no response from Defendant Loock.

41. . . . [I]n October, 2010, Defendant Associate Warden Cathy Sheair undertook an inquiry into the complaints of the Plaintiffs. Despite the [NSP anti-harassment] policy's assurance of confidentiality, word immediately began circulating among NSP staff, as well as the inmate population, that the Plaintiffs had complained of a racially hostile environment.

42[-44]. After Plaintiffs' complaints became generally known, two of the Plaintiffs' vehicles were vandalized while parked in the NSP parking lot[,] . . . one of the Plaintiffs was told by a non-African American NSP officer that "the problem around here" is that "hotheads stir up trouble" and "they" (meaning the plaintiffs) had better "watch their backs[,]" . . . [and] one of the Plaintiffs was told by a non-African American officer that when he (the Plaintiff) went out into the yard, he had "better pair up because you never know what might happen in the yard."

. . .

47. When Plaintiffs reported these comments in late October 2010 to Defendant Sheair and Defendant Bakewell, the Defendants responded that they would have an outside law enforcement agency investigate the matter. . . . [The outside investigator] advised the Plaintiffs that the comments did not rise to the level of an illegal threat.

48. In late October 2010 Plaintiffs Ellis, Hunter, Johnson, and Zeiger were summoned to meet with Defendants Bakewell, Sheair, and Staley. . . . Plaintiffs were informed at the outset of the meeting by Defendant Bakewell that this was the first he had heard of any racial problems at NSP. . . . Defendant Bakewell was dismissive of the Plaintiffs' racial concerns and he advised the Plaintiffs that he was going to split them up and transfer them out of NSP to different NDCS facilities. . . .

51. On November 10, 2010 Plaintiffs Ellis, Hunter, Johnson, and Zeiger were summoned to central office for a meeting with Defendants Houston, Bakewell, and Sheair about their complaints of a racially hostile working environment. Plaintiffs were shocked and degraded when they were made to wait in a room that had a picture featuring an African-American man stooped over picking crops. . . .

52. During the November 10, 2010 meeting with Defendants Houston, Bakewell, and Sheair, Plaintiffs advised the Defendants of their good faith concern that they were receiving extra scrutiny. Defendant Houston said he agreed and "that's going to happen' when one complains about co-workers." . . .⁸

53. During the November 10, 2010 meeting, Plaintiffs advised Defendants Houston, Bakewell, and Sheair that they were concerned about the lack of confidentiality of the investigation (in violation of A.R. [Administrative Regulation] 112). Defendants advised the Plaintiffs that they (the Defendants) were powerless to prevent breaches of confidence in the investigation process.

. . .

55. Since the filing of the lawsuit, the . . . plaintiffs have been under continuing scrutiny by white co-workers and white supervisors. Plaintiffs have received numerous written warnings that adversely affect their employment at NSP and put them in jeopardy of being disciplined for petty infractions that white employees routinely commit. For example:

a. On January 5, 2011 Plaintiff Johnson was written up by Defendant Stoner for notifying NSP at 6:02 a.m. that she would not be to work at 7:20 a.m. when regulations require a 2 hour advance call-in notice;⁹ b. On March 24, 2011, Plaintiff Ellis was written up by a white supervisor for letting an African-American inmate get a haircut in the barbershop when the inmate's name did not appear on the pass list;¹⁰

c. On March 25, 2011 Plaintiff Hunter was accused by a white co-worker of "shadow boxing" with an unidentified "black" inmate. Despite Hunter's denials that such an incident occurred, he was written up by his white supervisor[;]

d. On March 26, 2011 Plaintiff Michael Hunter was written up by Defendant Runge for leaving the institution without "pre-approval" from his supervisor;

e. On March 31, 2011 Plaintiff Jaryl Ellis was written up by Defendant Stoner for being two minutes late to his post at metal detector when returning from lunch.¹¹

(Filing 37 at 6-14)

B. Defendant's Evidence; Uncontoverted Facts

In accordance with the requirements of our local rules, ...