                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 04a0079n.06
                               Filed: November 10, 2004

                                           No. 03-5620


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

JEFFREY JOHNSON and JOHN GOODWIN,

       Plaintiffs-Appellants,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
UNITED PARCEL SERVICE, INC.,                          EASTERN DISTRICT OF TENNESSEE

       Defendant-Appellee.

                                               /



BEFORE:        CLAY and GILMAN, Circuit Judges; O’Malley, District Judge.*

       CLAY, Circuit Judge. Plaintiffs, Jeffrey Johnson and John Goodwin, appeal from the order

entered by the United States District Court for the Eastern District of Tennessee, on March 26, 2003,

granting judgment as a matter of law to Defendant United Parcel Service (“UPS”), so as to dismiss

with prejudice Plaintiffs’ claims in this action for employment discrimination on the basis of race,

under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and the

Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. For the reasons set forth below,

we AFFIRM the district court’s order as to the disparate treatment claims of both Plaintiffs, and we




       *
        The Honorable Kathleen M. O’Malley, United States District Judge for the Northern District
of Ohio, sitting by designation.
                                            No. 03-5620

REVERSE the district court’s order and REMAND for a new trial on Plaintiffs’ racial harassment

claims under federal and state law.

                                         BACKGROUND

                                        Procedural History

       On September 15, 2000, Plaintiffs in the present appeal, Jeffrey Johnson and John Goodwin,

as well Johnny L. Boyd, Eric Kelley, Ken Cameron, Donnie Ware, Eddie J. Thomas, Jr., and

Gregory Owens, filed a complaint alleging violations of Title VII, 42 U.S.C. § 1981 and the

Tennessee Human Rights Act. An amended complaint was filed on August 10, 2001.

       On September 13, 2001, the claims of Johnny L. Boyd were dismissed with prejudice, by

agreed stipulation. On January 14, 2002, a second amended complaint was filed. On February 26,

2002, a third amended complaint was filed; this was the final complaint filed, and it was filed by all

the plaintiffs to the original complaint, except for Boyd. The third amended complaint charged

Defendant UPS with violations of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.,

and violations of 42 U.S.C. § 1981 and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-

101 et seq., as a result of racial discrimination against the plaintiffs, all of whom are African-

American, in the form of disciplinary actions and the denial of promotion, as well as the existence

of a hostile work environment on the basis of race; the complaint also charged retaliation.

       In April, July, and August of 2002, a jury trial was conducted, lasting eleven days. Before

the case reached the jury, Defendant filed a motion for judgment as a matter of law, pursuant to FED.

R. CIV. P. 50. On August 6, 2002, arguments were heard on this motion, and a ruling was issued

from the bench by the district court, dismissing with prejudice numerous claims, including all claims



                                                  2
                                           No. 03-5620

of Plaintiffs Johnson and Goodwin, the parties to the present appeal. On August 7, 2002, the trial

continued with respect to Ware’s retaliation claim and Cameron’s hostile work environment claim.

       On August 28 and 30, 2002, Plaintiffs Johnson and Goodwin appealed. On September 24,

2002, in an unpublished decision, the appeal of Plaintiff Johnson was dismissed by this Court for

lack of appellate jurisdiction, on grounds that no ruling had yet been entered terminating all issues

in the case as to all litigants and that no appealable order as to Johnson had been issued under FED.

R. CIV. P. 54(b) (allowing a court to enter a final judgment as to one party in a multi-party action,

before final judgments have been entered as to all parties in the action).

       The trial concluded on November 4, 2002.1 On March 26, 2003, a final order was entered,

dismissing with prejudice the claims of Johnson and Goodwin.

       On April 23, 2003, Plaintiffs filed a timely notice of appeal.

                                         Substantive Facts

       Plaintiff Johnson was hired by Defendant, UPS, in 1984 as a package car driver and remains

employed with Defendant in this capacity as of the time of the most recent filings in the case.

Plaintiff Johnson sought but was denied promotions into management positions. Plaintiff Johnson

filed an administrative complaint with the U.S. Equal Opportunity Commission (“EEOC”), in April

of 2000, at which time Johnson also served as a union steward for the Teamsters.

       Plaintiff Goodwin began work part-time with Defendant in 1988, began to work full-time

as a package car driver in 1994, and remains employed with Defendant in this capacity as of the time


       1
        The jury found in favor of Ware on the retaliation claim, awarding a total of $125,000
(comprised of $45,133 in mental or emotional injury and $79,867 in back pay). The jury found in
favor of Defendant on Cameron’s hostile work environment claim.

                                                 3
                                              No. 03-5620

of the most recent filings in the case. Plaintiff Goodwin filed an EEOC charge against Defendant

in March of 2000.

        Plaintiffs present an in-depth account of facts relating to their claims. However, because the

factual allegations of the two Plaintiffs differ, and because each Plaintiff presents a separate set of

factual allegations for the claims of disparate treatment and of hostile work environment, explaining

all of the details together here could become confusing. Consequently, for the sake of clarity, factual

details are provided in the sections analyzing the claims, below.

                                             DISCUSSION

        Plaintiffs Johnson and Goodwin raise two issues. First, Plaintiffs argue that the district

court erred in granting judgment as a matter of law to Defendant on their claims for disparate

treatment on the basis of race. Secondly, Plaintiffs contend that the district court erred in granting

judgment as a matter of law to Defendant on their claims for racially hostile work environment. We

regard all claims as alleging discrimination under both Title VII and the Tennessee Human Rights

Act, although hereafter we rely solely on federal law.2


        2
         On appeal, Plaintiff never argues that 42 U.S.C. § 1981, pertaining to the right to make and
enforce contracts, was violated. Thus, this issue (stated in the complaint) is waived.
         None of the parties expressly argues whether the appeal pertains only to the federal claims
or also to the state claims. It appears to us that Plaintiffs appeal not only their federal claims but also
their state law claims. The prohibitions on discrimination in the Tennessee Human Rights Act are
generally coterminous with those under Title VII of the Civil Rights Act of 1964. The relevant
language of the state statute is almost identical to Title VII, and is not different in any way that is
material to the instant case. 42 U.S.C. § 2000e-2(a); Tenn. Code Ann. § 4-21-401(a). Although
Tennessee courts are not bound to construe state law discrimination claims in a manner consistent
with federal courts’ interpretations of Title VII, see Carr v. Robertson County, 29 S.W.3d 466, 474
(Tenn. 2000), Tennessee courts have often tried to preserve consistency between federal and state
discrimination law. E.g., Parker v. Warren County Util. Dist., 2 S.W.3d 170, 176 (Tenn. 1999) (“we
hold that the stated purpose behind the enactment of our THRA will be best served by maintaining

                                                    4
                                            No. 03-5620

       We take the two issues in order, examining each Plaintiff’s factual circumstances separately,

under each issue.

       This Court has stated:

       We review de novo a district court's decision to grant judgment as a matter of law
       under Rule 50(a). . . . Judgment as a matter of law on a specific issue is appropriate
       when, viewing the evidence in the light most favorable to the nonmovant, (1) “there
       is no legally sufficient evidentiary basis for a reasonable jury to find for that party
       on that issue” or (2) the nonmovant's position on that issue represents “a claim or
       defense that cannot under the controlling law be maintained.” Fed. R. Civ. Proc.
       50(a) . . . .

Diamond v. Howd, 288 F.3d 932, 935 (6th Cir. 2002) (citations omitted).

                                                   I.

       Plaintiffs argue that the district court erred in granting judgment as a matter of law on their

claims of disparate treatment on the basis of race.

       A. Legal Framework

       Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “because

of . . . race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). In a Title VII case, a

plaintiff bears the ultimate burden of persuading the factfinder that the defendant intentionally

discriminated against the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143




continuity between our state law and the federal law on the issue of imposing employer liability for
supervisor sexual harassment. We, therefore, adopt the Supreme Court's recently articulated
standard of vicarious liability in all supervisor sexual harassment cases.”); Spann v. Abraham, 36
S.W.3d 452, 465, 465 n.7 (Tenn. Ct. App. 1999) (applying federal law regarding disparate treatment
to state claims). At trial, the verdict form as to the claims of Cameron and Ware (both of whose
claims were brought pursuant to both federal and state law) did not distinguish between federal and
state harassment claims. Consequently, our discussion of Plaintiffs’ claims pertains to both state and
federal claims.

                                                   5
                                           No. 03-5620

(2000). Unlawful discrimination need not be the only reason for an adverse employment action, to

violate Title VII, but rather need only be an essential component of an employer’s mixed motive.3

A plaintiff may carry the burden by introducing direct evidence which shows that in treating a

plaintiff adversely the defendant was motivated by discriminatory intent, or by introducing

circumstantial evidence that supports an inference of discrimination. Logan v. Denny’s, Inc., 259

F.3d 558, 566-67 (6th Cir. 2001).

       Where, as here, plaintiffs’ evidence is circumstantial, a disparate treatment claim proceeds

through a three-step framework. First, a plaintiff bears the burden of making a prima facie showing

by demonstrating that 1) she is a member of a protected class; 2) she was qualified for the job and

performed it satisfactorily; 3) despite her qualifications and performance, she suffered an adverse

employment action; and 4) she was replaced by a person outside the protected class or was treated

less favorably than a similarly situated individual outside her protected class. Id. at 567 (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as later

clarified by Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207

(1981)). The prima facie test is meant as a relatively light burden. Tex. Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981) (a Title VII case, stating, “The burden of establishing a prima

facie case of disparate treatment is not onerous.”).




       3
        Price Waterhouse v. Hopkins, 490 U.S. 228, 240-41, 104 L. Ed. 2d 268, 109 S. Ct. 1775
(1989). In a mixed motive case, where direct evidence of discriminatory intent is produced, the
burden shifts to the employer to show by a preponderance that the adverse employment action would
have been taken even if the discriminatory motive had not existed. Wexler v. White's Fine
Furniture, 317 F.3d 564, 571 (6th Cir. 2003) (describing Price-Waterhouse).

                                                 6
                                            No. 03-5620

       If plaintiffs carry that burden, then, in the second step in the framework, the defendant faces

the burden to offer a legitimate, nondiscriminatory reason for the adverse employment action.

Reeves, 530 U.S. at 142. “This burden is one of production, not persuasion; it ‘can involve no

credibility assessment.’ St. Mary's Honor Center, supra, at 509.” Id. at 143.

       If the defendant carries its burden, then, in the final stage in the process, plaintiffs may

demonstrate to the factfinder that the defendant’s proffered reason is a mere pretext for intentional

discrimination. Id. at 142-43. The factfinder may consider the evidence and inferences from the

plaintiff’s prima facie case, along with other evidence. Id. at 143. In showing pretext, plaintiffs

bear the burden of disproving the defendant’s proffered reason by a preponderance of the evidence.

Id. Methods of disproving the defendant’s reason include demonstrating that the reason 1) had no

basis in fact, 2) was not the actual reason, and 3) was insufficient to explain the defendant's action.

Logan, 259 F.3d at 567. To make a showing of pretext, in addition to disproving the defendant’s

stated reason, the plaintiff must also show by a preponderance of the evidence that the true

motivation for the adverse employment action included intentional discrimination. St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (“a reason cannot be proved to be ‘a pretext for

discrimination’ unless it is shown both that the reason was false, and that discrimination was the real

reason.”) (emphasis in original). From an evidentiary standpoint, in some (but not all) cases,

sufficient evidence of discriminatory intent may come solely from the prima facie case. Reeves, 530

U.S. at 147-48.

       On appeal Defendant contests only the third prima facie element (an adverse employment

action) and the fourth element (treatment less favorable than that accorded to a similarly situated



                                                  7
                                             No. 03-5620

individual outside of the protected class) of the disparate treatment claims of Plaintiffs Johnson and

Goodwin.

        B. Johnson’s claim

        Plaintiff Johnson argues that there were four adverse employment actions (any one of which

would have been sufficient to satisfy the third element of the prima facie case). Plaintiff contends

that a written reprimand was issued, threatening to terminate Johnson if he continued to engage in

the practice of moving his name on the staffing board that assigned drivers to routes. Plaintiff also

argues that there was discrimination in scheduling, in not allowing him to move his name on the

staffing board; Plaintiff states, “Mr. Johnson . . . was denied the right to exercise his seniority under

the contract[4] with respect to delivery routes, requiring him to take more difficult workloads and

assignments.” (Plaintiffs’ Br. at 22.) Allegedly, drivers with less seniority than Plaintiff were

allowed to switch their names (and thereby alter their assignments) on the staffing board. Plaintiff

also alleges discrimination as a result of Defendant not promoting him, after he submitted multiple

letters (pursuant to Defendant’s promotion procedure requirements), requesting promotion to

management. Finally, Plaintiff alleges discrimination in training, stating that Defendant “fail[ed]

to train him on rural delivery areas when it had agreed to do [so] more than a year before.”

(Plaintiffs’ Br. at 22-23.)

        Examining each of these instances individually, none appear to satisfy both the third and

fourth elements of the prima facie case. Regarding the written reprimand, Plaintiff concedes that



        4
       The collective bargaining agreement specifies that “seniority will be considered when
making work assignments.” (J.A. at 599.)

                                                   8
                                              No. 03-5620

no EEOC charge was filed within the statute of limitations. On this basis, Plaintiff admits that there

is no adverse employment action here; at most, there is background evidence of discrimination that

would be relevant to other charges of discrimination. AMTRAK v. Morgan, 536 U.S. 101, 113

(2002).

          Regarding scheduling, this does not appear to be an adverse employment action. Case law

indicates that, absent changes in salary or the number of hours of work, scheduling matters would

not normally classify as potential adverse employment actions. Kocsis v. Multi-Care Mgmt., 97 F.3d

876, 885 (6th Cir. 1996) (“reassignments without salary or work hour changes do not ordinarily

constitute adverse employment decisions in employment discrimination claims. Yates v. Avco Corp.,

819 F.2d 630, 638 (6th Cir. 1987)”); see also White v. Burlington Northern & Santa Fe Ry., 364

F.3d 789, 800 (6th Cir. 2004) (en banc) (“we reaffirm the definition [of adverse employment action]

that we have developed in cases such as Kocsis and its progeny.”).

          Regarding failure to promote, as stated in Nguyen v. City of Cleveland:

          [A] failure to promote is an adverse employment action. In order to establish a prima
          facie case of racial discrimination based upon a failure to promote, the plaintiff must
          demonstrate that: (1) he is a member of a protected class; (2) he applied for and was
          qualified for a promotion, (3) he was considered for and denied the promotion; and
          (4) other employees of similar qualifications who were not members of the protected
          class received promotions at the time the plaintiff's request for promotion was
          denied.

229 F.3d 559, 562-63 (6th Cir. 2000) (citations omitted). Hence, Plaintiff meets the third element

of the prima facie case. But Plaintiff fails to allege that promotions were given to employees outside

of the protected class–nor does Plaintiff point to any evidence suggesting such a conclusion.




                                                    9
                                            No. 03-5620

Consequently, Plaintiff fails to satisfy the fourth prima facie element for discriminatory failure to

promote. Moreover, Plaintiff does not counter Defendant’s assertion that this claim is time-barred.

       Regarding training, the allegation that Plaintiff was not trained on rural deliveries does not

meet the standard for adverse employment action that is described above, of “a materially adverse

change in the terms and conditions of employment” that is “more disruptive than a mere

inconvenience or an alteration of job responsibilities.” Bowman v. Shawnee State Univ., 220 F.3d

at 461. Nor does Plaintiff even allege that similarly-situated employees outside of the protected

class were given the type of training on rural delivery routes in question (to satisfy the fourth prima

facie element).

       Overall, Plaintiff Johnson fails to make out a prima facie case for disparate treatment. For

the only adverse employment action, failure to promote, Plaintiff failed to allege that the fourth

prima facie element was met.

       C. Goodwin’s claim

       Plaintiff Goodwin alleges three adverse employment actions. First, Plaintiff alleges having

been wrongfully suspended. The collective bargaining agreement authorizes supervisors to ride with

drivers, on occasion, to monitor their productivity. According to the trial testimony of union

business agent Wes Trotterchaud, the supervisor-monitored runs were directed disproportionately

at black employees. Plaintiff states that supervisor Steve Burtnett rode with Plaintiff and established

the rate at which Plaintiff could make deliveries. Although the collective bargaining agreement

forbade supervisors from assisting the drivers during the rides–presumably because this would

inflate the delivery rate to which drivers would later be held–Plaintiff asserts that Burtnett “actually



                                                  10
                                            No. 03-5620

helped deliver packages” during the ride. Later, Burtnett notified Plaintiff of Burtnett’s intent to

suspend Plaintiff for failing to meet the delivery rate established with Burtnett’s help. Secondly,

Plaintiff had filed grievances alleging that Burtnett supervised him too closely by engaging in an

excessive number of supervised rides. Finally, Plaintiff alleges discriminatory failure to promote,

in denying his application for a position in the feeder department, “which is the 18-wheeler

department.” (J.A. at 164).

        Regarding the alleged suspension, this Court has held that an employee who was suspended

and later, as a result of a union grievance procedure, was reinstated with full back pay had suffered

an adverse employment action. Burlington Northern, 364 F.3d at 800-03; but see id. at 803 (“a

suspension with pay and full benefits pending a timely investigation into suspected wrongdoing is

not an adverse employment action.”) (citing Jackson v. City of Columbus, 194 F.3d 737, 752 (6th

Cir. 1999)). However, there is no evidence that Plaintiff was actually suspended. According to

Plaintiff’s trial testimony, Burtnett notified Plaintiff of his intent to suspend Plaintiff, but a union

grievance procedure was required, before Plaintiff could be suspended. Plaintiff prevailed in this

procedure and, consequently, was never suspended. Hence, there is no adverse employment action,

here.

        Regarding the alleged problem of close supervision, the allegation here does not meet the

definition of an adverse employment action, as set forth above. Also, on the fourth prima facie

element, Plaintiff failed to allege that similarly situated individuals outside of the protected class

were supervised less closely. (J.A. at 173) (Plaintiff Goodwin, on cross-examination, admitted to

not knowing how closely other employees were supervised).



                                                  11
                                            No. 03-5620

        Regarding failure to promote, the analysis is a bit more complicated. At issue is the fourth

element of the prima facie case; as stated above, this element requires that other employees with

similar qualifications outside of the protected class received promotions when the plaintiff's request

was denied. In direct examination, Plaintiff recounted that a white driver, Ralph Kennedy, applied

for the feeder department; Kennedy had a driving accident on his record, meaning that under

established procedures he should have been ineligible for the promotion for one year. However,

after a one-month disqualification, Kennedy was promoted. There is a question as to whether or not

Kennedy was similarly situated. Defendant refers to Kennedy as a “higher seniority driver.”

Plaintiff has not countered this. Thus, it is not clear that Plaintiff has presented sufficient evidence

to meet the somewhat demanding standard for being “similarly situated.” E.g., Mitchell v. Toledo

Hosp., 964 F.2d 577, 583 (6th Cir. 1992) (describing a demanding standard for being similarly

situated). We need not decide whether Plaintiff has met the standard for similarly situated, because

the claim fails otherwise.

        Even if, arguendo, Plaintiff has met the prima facie burden for the failure to promote claim,

Plaintiff fails to show pretext. It appears that Plaintiff’s own direct testimony provides Defendant’s

legitimate, non-discriminatory reason for promoting Kennedy instead of Plaintiff. As Plaintiff

admitted at trial, the manager was engaging in favoritism, because Kennedy’s father got the manager

his first job.

        Any motivation that is not tied to the prohibited grounds will suffice to meet a defendant’s

burden to produce a legitimate, non-discriminatory reason for the adverse employment action. Tex.

Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981) (“The explanation provided [by a



                                                  12
                                            No. 03-5620

defendant] must be legally sufficient to justify a judgment for the defendant.”). Hence, Defendant’s

reason (“favoritism”) would be legitimate under Title VII. Plaintiff does not attempt to disprove this

motive; consequently, Plaintiff fails to allege pretext regarding failure to promote, which is the only

adverse employment action that Plaintiff has established.

       There is not sufficient evidence to support a jury finding in favor of either Plaintiff, on a

disparate treatment claim.

                                                  II.

       Plaintiffs also argue that the district court erred in granting judgment as a matter of law

on their claims of racial harassment.

       A. Legal Framework

       Under Title VII, a plaintiff may show unlawful discrimination by demonstrating the

existence of a hostile work environment:

       In order to establish a prima facie case of hostile work environment based on either
       race or religion, [a plaintiff] must establish the following five elements:

       1. He was a member of a protected class;

       2. He was subjected to unwelcomed racial and/or religious harassment;

       3. The harassment was based on race or religion;

       4. The harassment had the effect of unreasonably interfering with Hafford's work
       performance by creating an intimidating, hostile, or offensive work environment; and

       5. The existence of employer liability.

Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999) (citation omitted); accord Bowman v. Shawnee

State Univ., 220 F.3d 456, 462-63 (6th Cir. 2000) (sexual harassment).



                                                  13
                                           No. 03-5620

       There is an affirmative defense–namely that in a harassment case an employer may avoid

liability by showing that the employer had taken reasonable care to prevent and correct harassment

and that the plaintiff failed to avail himself or herself of the employer’s mechanisms for redressing

harassment. See EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 510 (6th Cir. 2001).

       Looking at certain of the elements more closely, under the fourth element: “whether an

environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”

Harris v. Forklift Sys., 510 U.S. 17, 23 (1993). Here, there is a subjective component: the plaintiff

must regard the environment as abusive. Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th

Cir. 2000). Also, to be actionable, harassment must be severe or pervasive, creating an objectively

hostile work environment (for a reasonable person), thus altering the conditions of employment.

Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Bowman, 220 F.3d at 463. Relevant

considerations in determining whether conduct is actionable “may include the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee's work performance.”

Harris v. Forklift Sys., 510 U.S. at 23; Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 635 (6th Cir.

2003) (quoting these factors from Harris).

       Under the fifth element, employer liability is established if the harassment was by a

supervisor; if the harassment was by co-workers, then there is employer liability if the employer had

actual or constructive knowledge of the harassment. Jackson v. Quanex Corp., 191 F.3d 647, 663

(6th Cir. 1999).

               B. Johnson’s claim



                                                 14
                                             No. 03-5620

        Plaintiff Johnson presents trial testimony that is probative of harassment. Plaintiff testified

that in July of 1999: “[supervisor ] Steve Burtnett came up to me and told me that Jimmy Buquo was

going to ride with me this day . . . , and he was gong to haul me around all day, and I was to listen

with my ears and eyes wide open.” (J.A. at 198-99). Plaintiff was upset by the term “haul.” When

Plaintiff spoke with Chatanooga division manager Gary Todd about this, Todd expressed some

sympathy. However, regarding Plaintiff’s plan to file a grievance based upon alleged racial

discrimination, Todd “said he’s tired of African Americans complaining.” (J.A. at 201.)

        Plaintiff’s trial testimony described a July 20, 1999 grievance. A supervisor had “trained

[Johnson] to sheet each package as a different stop.” (J.A. at 212.) Yet, Plaintiff testified that when

he began following this practice, another supervisor, Steve Burtnett, accused him of “stealing,

falsifying records and stealing company time.” (J.A. at 206.) These accusations provided grounds

for termination on the spot. In fact, another African-American employee, John Boyd, had recently

been fired for “stealing time,” i.e., reporting working hours that exceeded the actual amount of time

that the employee had worked, for instance, by taking a break longer than that permitted. To

disprove the “stealing time” allegation, Plaintiff requested records relating to his training, but this

request was not granted.

        Around this time, Plaintiff spoke with union business agent Wes Trotterchaud about

Plaintiff’s grievances for racial discrimination. Trotterchaud stated that Defendant would not

address the grievance, because Todd harbored racial animus. As Plaintiff stated at trial, “Gary

[Todd] likes to tell jokes, from what I hear from Wes [Trotterchaud], and he loves to talk about black

this, black that, and he’s a racist.” (J.A. at 209.) At trial, Trotterchaud testified that on at least ten



                                                   15
                                            No. 03-5620

occasions, Todd had mocked African Americans, for instance, by mimicking stereotypical speaking

styles of African-Americans.

       At trial, Plaintiff also related another incident involving Todd. On a morning, at some point

in 2000, Plaintiff and Gregory Owens (who also was a Plaintiff in this action originally) had

overheard a conversation between Todd and Trotterchaud, in which Plaintiff and Owens “heard

[Todd use] the word nigger.” (J.A. at 210) (emphasis in original). When Plaintiff and Owens

approached Trotterchaud, after hearing this, Trotterchaud “was kind of bashful at first, and he finally

told me [Johnson] – he didn’t go into any details, but he said, ‘Man, he mocks the way you-all talk

and act.’” (J.A. at 210.)

       Regarding this particular incident, Plaintiff testified, “It hurt. In the year 2000 . . . I didn’t

expect to hear anything like that from a man of his position.” (J.A. at 210); id. (“The man in his

position is the man who ultimately determines what discipline you receive at that center . . . .”).

Plaintiff testified that he “lost trust” in Todd, also because of his perception that “blacks started

getting fired once they arrived [at the Chatanooga center].” (J.A. at 211.)

       Additionally, there was a November 1999 incident in which, while making racial comments,

white employee John Althoff hit black employee Eddie J. Thomas, Jr. in the face with a package.

Plaintiff offered trial testimony regarding this incident; he was aware of the incident although he was

not present when it occurred. At some point prior to the incident, Althoff had made racial comments

that led to his being suspended for two weeks. Althoff was suspended for only one day for the

incident involving Thomas, even though under Defendant’s zero tolerance policy Althoff could have

been terminated. Thomas was later terminated for falsifying his employment application. At trial,



                                                  16
                                           No. 03-5620

Thomas testified that Althoff had initiated all physical contact between the two of them. There is

no indication that Defendant ever offered other employees any explanation for the lenient treatment

of Althoff, such as a finding that Thomas had somehow provoked Althoff.

       Finally, Plaintiff points to other incidents involving Burtnett. According to Trotterchaud,

Burtnett and others attempted to discipline Plaintiff for wearing his prescription sunglasses while

indoors. Also, Burtnett approached Plaintiff about taking too long for his deliveries, even though

Johnson was ahead of schedule at the time.

       Plaintiff also testified that the overall situation led him to seek “professional help” and

caused him to revise his earlier plan to work at Defendant until retirement. (J.A. at 230.)

       The various considerations of Harris v. Forklift must be examined. The frequency of

discriminatory conduct was considerable, over the time period in question.5 The fact that Althoff

received only meager punishment for striking Thomas in the face with a package, while emitting

racial slurs, made the workplace somewhat “physically threatening.” Harris v. Forklift Sys., 510

U.S. at 23.

       It is also true that the discriminatory conduct was severe. Case law makes clear that the use

of the word “nigger,” even taken in isolation, is not a “mere offensive utterance.” E.g., McGinest

v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004); Spriggs v. Diamond Auto Glass, 242 F.3d




       5
        In or about July 1999, Todd “said he’s tired of African Americans complaining.” (J.A. at
201.) The July 20, 1999 grievance described Burtnett’s accusations of “time stealing” and
Trotterchaud’s description of Todd’s racial humor and animus. Althoff struck Thomas, while
making racial slurs, in November of 1999. Todd allegedly used the word “nigger” at some point in
2000.

                                                17
                                            No. 03-5620

179, 185 (4th Cir. 2001). In the instant case, the fact that the slur was allegedly uttered by the

division manager, Todd, would have greatly increased its severity.

        Burtnett’s accusation of Plaintiff’s “stealing time” was also severe because, standing alone,

it would have provided grounds for immediate termination. Nor can we discount Todd’s statement,

directed at Plaintiff, that “he’s tired of African Americans complaining.” (J.A. at 201.) The fact

that, as division manager, Todd was such an integral figure in the grievance process–and expressed

this racially-derogatory comment in the context of responding to Johnson’s July 2000 grievance–is

significant.

        Viewing the evidence in the light most favorable to Plaintiff as the nonmovant, the

conditions of employment were altered, by an environment of management hostility towards

African-Americans. Plaintiff’s subjective feelings of hurt and loss of trust were objectively

reasonable.

        In rebuttal, Defendant argues that there is no evidence that certain of Burtnett’s actions

toward Plaintiff Johnson were racially motivated. This is true; however, incidents cannot be viewed

individually but rather must be seen in the totality of the circumstances. Harris v. Forklift Sys., 510

U.S. at 23.6

        There were certain incidents that clearly established racial harassment. Regarding Plaintiff’s

testimony as to having overheard Todd use the word “nigger” during a conversation with


        6
         Contrary to the dissent’s approach, incidents of harassment which appear on the surface to
be race neutral should not be singled out, but rather should be analyzed in context and as part of the
totality of the circumstances. See Williams v. General Motors Corp., 187 F.3d 553, 563 (6th Cir.
1999) (“This totality-of-the circumstances examination should be viewed as the most basic tenet of
the hostile-work-environment cause of action.”)

                                                  18
                                            No. 03-5620

Trotterchaud, Defendant points out that Trotterchaud would not confirm this at trial. (J.A. at 292)

(“I don’t recall him ever using inappropriate language.”). Defendant also points to Plaintiff’s failure

to establish the context in which the word was used; Defendant goes so far as to speculate, “In fact,

Todd may have been admonishing Trotterchaud not to use the word.” (Respondent’s Br. at 41 n.11.)

       Defendant’s arguments regarding Todd’s alleged use of the word “nigger” would be

permissible before a jury, but these arguments have no relevance in the present proceeding. In

ruling on a motion for judgment as a matter of law, the evidence must be viewed in the light most

favorable to the nonmovant. Trotterchaud’s failure to recall whether inappropriate language was

used is ambiguous–Trotterchaud never testified as to having a good recollection for such matters.

Trotterchaud is not African-American and did not necessarily have high sensitivity to such remarks.

       Given Todd’s other statements regarding African-Americans (the statement that he was tired

of complaints by African-Americans and the mocking behavior), the differing testimony regarding

Todd’s alleged use of the word “nigger” must be resolved in Plaintiff’s favor, in a ruling on

Defendant’s motion for judgment as a matter of law. It must be assumed that, as Johnson testified,

the word was used. Also, given Todd’s other statements, it was reasonable for Plaintiff to be upset

at the use of this word–instead of believing that the word was used to admonish Trotterchaud. The

theory now set forth by Defendant–that Todd used the word to admonish Trotterchaud not to say the

slur himself–was not supported by any trial testimony; viewing the evidence in the light most

favorable to Plaintiff as the nonmovant we must infer that the term was not used in the manner that

Defendant now alleges. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“the Fifth Amendment




                                                  19
                                           No. 03-5620

does not forbid adverse inferences against parties to civil actions when they refuse to testify in

response to probative evidence offered against them”).

       Defendant states that Todd’s alleged mocking of African-Americans is not harassment,

because “the only specific example Trotterchaud provided was about Johnson’s approach as a union

steward, not his race.” (Respondent’s Br. at 41.) Although Trotterchaud recounted Todd’s mocking

of Johnson’s approach as a union representative, this mocking was apparently racially oriented.

(J.A. at 291) (the mocking of “the way African Americans talk.”).

       In addition to these arguments, Defendant also cites to an unpublished case, which states,

“We have held in the past that the gender-based comments are of diminished probative value when

they are not directed at the plaintiff.” Bryant v. Martinez, 46 Fed. Appx. 293, 297 (6th Cir. 2002)

(citing Smith v. Leggett Wire Co., 220 F.3d 752, 761 (6th Cir. 2000)). Defendant argues, based on

this authority, that racially derogatory comments are not actionable unless specifically directed at

a plaintiff. To be sure, harassment will be more severe if offensive comments were directed at a

plaintiff. Leggett Wire, 220 F.3d at 760; Burnett v. Tyco Corp., 203 F.3d 980, 984 (6th Cir. 2000).

       Nonetheless, Defendant’s argument fails. Contrary to the statement in the unpublished

Bryant opinion, this Court has made clear that a comment need not be “directed at” a plaintiff, in

order to constitute harassment. Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999) (“in the

sexual harassment context, this Court has deemed probative remarks that demeaned women

generally while not demeaning any one woman in particular.”). In fact, Quanex also clarified that

a plaintiff need not even witness remarks or behavior first-hand, in order to allege that the remarks

or behavior contributed to a hostile work environment. Id. at 661. Thus, Trotterchaud’s telling



                                                 20
                                            No. 03-5620

Plaintiff of Todd’s mocking behavior and racial animus provides relevant evidence,7 which must be

taken as credible, viewing the evidence in the light most favorable to Plaintiff as the nonmovant.

Hence, Defendant’s attempt to diminish the significance of remarks not “directed at” a plaintiff is

largely nullified by Quanex’s ruling that such remarks can prove relevant.

       Additionally, it is significant that certain instances of harassment were, in fact, “directed at”

Plaintiff. Todd’s statement about being tired of complaints by African-Americans was directed at

Plaintiff, in the context of Plaintiff’s discussion of a racial grievance. Also, Burtnett’s “stealing

time” allegation was directed at Plaintiff–although this statement did not explicitly mention race,

the statement still may be considered as evidence of harassment, in the totality of the circumstances.

Landrau-Romero v. Banco-Popular de Puerto Rico, 212 F.3d 607, 614 (1st Cir. 2000) (“Alleged

conduct that is not explicitly racial in nature may, in appropriate circumstances, be considered along

with more overtly discriminatory conduct in assessing a Title VII harassment claim.”) (citation

omitted); see also Harris v. Forklift Sys., 510 U.S. at 23 (the harassment inquiry evaluates the

totality of the circumstances). Viewing the evidence in the light most favorable to Plaintiff as the

nonmovant, it would be reasonable to accept Plaintiff’s testimony that in actuality Plaintiff was not

“stealing time” and thus to infer that Burtnett’s allegations were based on stereotyping, i.e., Burtnett

made the accusation simply because another African-American employee (Boyd) had recently been

discharged for “stealing time.”




       7
       The statement was admissible under the hearsay exception for an admission by a party-
opponent. FED. R. EVID. 801(d)(2).

                                                  21
                                           No. 03-5620

       Hence, Defendant fails in the argument that the offensive remarks were not directed at

Plaintiff. There were certain remarks, directed at Plaintiff, that provide relevant evidence of a

hostile work environment, on the basis of race; also, there were other incidents not directed at

Plaintiff that nonetheless can be considered, under Quanex.

       Defendant’s rebuttals do nothing to sway our earlier conclusion that, viewing the evidence

in the light most favorable to Plaintiff as the nonmovant, there is sufficient evidence to support a

finding in favor of Plaintiff. The district court erred in granting judgment as a matter of law to

Defendant on Plaintiff Johnson’s claim of racial harassment.

       C. Goodwin’s claim

       Like Plaintiff Johnson, Plaintiff Goodwin testified that he had knowledge of the incident

involving Althoff striking Thomas, while emitting slurs. In fact, Goodwin testified as to Thomas’

termination.

       In making the harassment claim, Plaintiff Goodwin reiterates the allegation (also made in

Plaintiff’s disparate treatment claim) that Burtnett supervised him too closely, engaging in an

excessive number of supervised rides. According to Trotterchaud’s trial testimony, these supervised

rides were unpleasant–“I call them ‘harassment rides’”–and were directed disproportionately at

black employees. (J.A. at 302.) Also, Plaintiff testified at trial that during the course of the

attempted suspension (in June of 1999), Burtnett once began “screaming at” Plaintiff to roll down

his sleeves, even though white employees were allowed to have their sleeves rolled up. (J.A. at

150.) Here, Plaintiff had contact with Todd, who told him to leave the building.




                                                22
                                            No. 03-5620

       Plaintiff’s testimony described daily employee meetings, each morning, at which African-

Americans were given less latitude (than white employees) to interact freely with peers:

       the white guys . . . constantly play. Like, a supervisor wears a suit to work every
       day. They will take the supervisor’s coat, hang it off the television, drag it on the
       floor . . . just really cutting up. And then if I’m standing there and perhaps lean to
       whisper to another black, the meeting will stop, and it’s like, “We need your
       attention.” But all of this other chaos . . . goes on daily at the meeting. But as far as
       blacks go who are there at the meeting . . . there is no talking–“We need you to be
       up front. We need you to be paying attention to what we are telling you.”

(J.A. at 169.)

       Also Plaintiff recounted at trial that in 1994:

       when I was off hurt with an injury that management had caused to me, not of my
       own wrongdoing, Mr. Milligan [who was Plaintiff Goodwin’s manager] was calling
       me during that Christmas holiday, telling me how I was going to have a slim
       Christmas, and at the same time taking up money for hurt white drivers.

(J.A. at 162.)

       Additionally, in 1993, Plaintiff applied for a driver position in the “north center” but was

denied the position, which allegedly was awarded to a white driver who had less seniority. (J.A. at

143.) In connection with this situation, Goodwin testified that “one of the drivers asked me was I

going to the north center . . . . And Mike Clements, who was the north center manager[,]

comment[ed] . . . , ‘No, he’s going to Alton Park, with his own kind,’ which is an inner-city projects

here in the city.” (J.A. at 144.)

       Plaintiff testified that the harassment upset him and alienated him, thereby interfering with

his family life. Johnson corroborated the effects on Goodwin, stating that the harassment had altered

his previously pleasant demeanor.




                                                  23
                                            No. 03-5620

       Before assessing the merits of Goodwin’s claim, a procedural question must be addressed.

Goodwin’s grievance was filed in March of 2000. While Defendant does not contest that the

grievance was filed within the appropriate time period as to more recent charges of alleged

harassment,8 Defendant argues that the grievance filing date precludes consideration of the incidents

from 1993 and 1994. Defendant’s argument lacks merit; prior acts (outside of the statutory time

period) may be considered in evaluating a harassment claim. AMTRAK v. Morgan, 536 U.S. 101,

117 (2002) (“It does not matter, for purposes of the statute, that some of the component acts of the

hostile work environment fall outside the statutory time period. Provided that an act contributing

to the claim occurs within the filing period, the entire time period of the hostile environment may

be considered by a court for the purposes of determining liability.”).

       Under the totality of the circumstances inquiry, the harassment experienced by Plaintiff was

pervasive. Overall, there was trial testimony as to at least six forms of harassment: (1)

Althoff striking Thomas, while emitting slurs; (2) closely supervised rides by Burtnett, which were

directed disproportionately at black employees; (3) Burtnett’s “screaming at” Plaintiff to roll down

his sleeves, when white employees were allowed to wear their shirts with their sleeves up; (4) the

daily employee meetings with closer supervision of African-Americans than white employees; (5)

a manager, Milligan, commenting that the injured Goodwin would have “a slim Christmas,” while

Milligan was collecting money for injured white drivers; and (6) a manager, Clements, making

comments that Plaintiff’s assignment would put him “with his own kind.” But there were far more


       8
         AMTRAK v. Morgan, 536 U.S. 101, 122 (2002) (“a Title VII plaintiff raising claims of
discrete discriminatory or retaliatory acts must file his charge within the appropriate time period --
180 or 300 days -- set forth in 42 U.S.C. § 2000e-5(e)(1).”).

                                                 24
                                            No. 03-5620

than six instances of alleged harassment, taking into account the restrictive supervision that occurred

each morning, at the daily employee meetings.9

       Overall, there was sufficient evidence to harassment to support Plaintiff’s claim. Due in part

to the daily restrictions, the frequency of the harassment was great. As stated in the analysis of

Plaintiff Johnson’s claim, the Althoff incident created a threatening work environment. Burtnett’s

screaming would have been intimidating to a reasonable person. Other incidents, such as the “slim

Christmas” comment, were humiliating. There was hostility in the closer discipline at the morning

meetings, and the “his own kind” comment. Under the totality of the circumstances, there was

sufficient evidence such that it would have been reasonable for a jury to find that Plaintiff Goodwin

experienced a racially hostile work environment.

       The district court erred in granting judgment as a matter of law to Defendant on the claims

of racial harassment of both Plaintiff Johnson and Plaintiff Goodwin.

                                          CONCLUSION

       For the aforementioned reasons, we AFFIRM the district court’s grant of judgment as a

matter of law as to Plaintiffs’ disparate treatment claims, and we REVERSE the district court’s

judgment and REMAND for a new trial on Plaintiffs’ hostile work environment claims under Title

VII and the Tennessee Human Rights Act.


       9
         The dissent mischaracterizes Plaintiff Goodwin’s evidence of harassment, claiming that
Goodwin offers two “minor” complaints relating to white employees horsing around and being
allowed to roll their sleeves up. This clearly ignores the amount of evidence Goodwin offered, as
well as the severity of the mentioned incidents. By discounting or failing to acknowledge
Goodwin’s evidence, the dissent incorrectly argues that Goodwin is merely attempting to
“piggyback” on Johnson’s claim. However as we have noted, Goodwin presented testimony on at
least six different incidents of pervasive harassment.

                                                  25
                                            No. 03-5620

       RONALD LEE GILMAN, Circuit Judge. I concur in Part I of the majority opinion

regarding Johnson’s and Goodwin’s disparate treatment claims. But I disagree with the majority’s

conclusion in Part II that the district court erred in granting judgment as a matter of law to UPS on

Johnson’s and Goodwin’s claims of racial harassment.

       Johnson cites seven occurrences to support his claim of racial harassment: (1) Todd’s alleged

use of the word “nigger” in an unknown context, (2) Todd’s mimicking the way African-Americans

speak, (3) Burtnett’s references to someone “hauling” Johnson around, (4) Burtnett’s admonishment

of Johnson regarding “stealing time,” (5) the failure of the UPS management to respond to Johnson’s

complaints, (6) Burtnett’s request that Johnson remove his sunglasses, and (7) Burtnett’s request that

Johnson not move his name on the work assignment board.

       All of the allegedly offensive actions on Burtnett’s part are facially neutral from a racial

viewpoint. Johnson has not demonstrated, for example, that he was asked to remove his sunglasses

because of race. I therefore find it difficult to conclude, without additional evidence, that Burtnett’s

actions were motivated by racism. Conduct composed primarily of race-neutral disputes relating

to discipline, work assignments, training, and other work-related issues does not rise to the level of

an actionable hostile work environment. Cf. Bowman v. Shawnee State Univ., 220 F.3d 456 (6th Cir.

2000) (holding that certain offensive acts could not be considered in the hostile-environment

analysis because the plaintiff did not show that the harassment had an anti-male bias).

       As for Todd’s actions, which were racially based, I find it equally hard to conclude that the

conduct alleged was so “severe and pervasive” as to “unreasonably interfere[] with [Johnson’s] work

performance.” Harris. v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). According to the Supreme



                                                  26
                                             No. 03-5620

Court, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City

of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations omitted).

        The majority makes much of Todd’s isolated and unexplained use of the word “nigger” to

a third party, but the cases it relies on to support the significance of this racial slur are readily

distinguishable. In McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004), for example, the

plaintiff was subjected to extreme verbal insults, racist graffiti, an inability to collect overtime pay,

and his supervisor’s refusal to ensure that his vehicle received necessary maintenance, which

ultimately resulted in a serious automobile accident. Likewise, in Spriggs v. Diamond Auto Glass,

242 F.3d 179 (4th Cir. 2001), the plaintiff was directly exposed to his supervisor’s highly offensive

racist comments on a daily basis.

        The totality of the alleged conduct here, while certainly unwelcome and offensive, occurred

only a few times over a period spanning several years. Johnson has therefore failed to show that

Todd’s purported actions were common or ongoing. This court has held that conduct far more

severe and pervasive than that alleged by Johnson is not sufficient to create a hostile work

environment. In Smith v. Leggett Wire Co., 220 F.3d 752 (6th Cir. 2000), for example, the plaintiff

testified that his coworkers and supervisors regularly made racially discriminatory comments and

racially-motivated threats in his presence and circulated a crass cartoon captioned “How a Black

Man Commits Suicide” around the plant. Yet this court reversed the jury’s verdict for the plaintiff,

holding that the conduct was “simply not ‘severe or pervasive enough’ to create an objectively

hostile work environment.” Id. at 760. If the conduct at issue in Smith did not rise to the level of



                                                   27
                                            No. 03-5620

racial harassment, then Todd’s actions here also fall short of this standard. Cf. Burnett v. Tyco

Corp., 203 F.3d 980 (6th Cir. 2000) (holding that three allegations of sexual harassment, although

offensive, did not give rise to a genuine issue of material fact regarding whether the conduct was

sufficiently pervasive to create a hostile work environment because they occurred over a six-month

period of time).

       As for Goodwin’s racial harassment claim, it is essentially an attempt to piggyback on

Johnson’s claim. But Goodwin was not even aware of the incidents in question at the time they

occurred. These incidents are therefore not relevant to his claim of racial harassment. Cf. Abeita

v. Transamerica Mailings, Inc., 159 F.3d 246, 249 n.4 (6th Cir. 1998) (noting that testimony

showing that a company president had made comments outside of the plaintiff’s presence was

irrelevant to the plaintiff’s claims because she was unaware of the comments at the time).

       Goodwin also complains that white employees were allowed to horse around, but that black

employees were not, and that he was required to roll his sleeves down while white employees were

not required to do so. These minor complaints, however, simply do not rise to the level of

workplace harassment based on race as mandated by Harris v. Forklift Systems., Inc. 510 U.S. 17,

21 (1993) (“When the workplace is permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment, Title VII is violated.”) (internal citations omitted).

       Accordingly, I would AFFIRM the decision of the district court.




                                                 28
