06-4070 - Terry H. Fullwiley, Appellant v. Union Pacific Corporation, etc., et al.; National Employment Lawyers Association, Amicus Curiae
U.S. Tenth Circuit Court of Appeals
(March 8, 2007)
Briefs
Briefs require requires Adobe Acrobat Reader.
- Appellant's Brief (1.5 MB PDF)
- Brief of Appellees (744 KB PDF)
- Appellant's Reply Brief (1.4 MB PDF)
- Reply Memorandum in Support of Motion (31 KB PDF)
- Brief of Amicus Curiae, National Employment Lawyers Association on Behalf of Appellant (671 KB PDF)
Case Summary (prepared at Washburn Law)
Procedure
Appeal from a motion of summary judgment issued by the United States District Court, District of Utah. Appellant seeks to reverse the district court's dismissal of a hostile work environment claim pursuant to 42 USC § 1981.
Facts
Appellant Fullwiley was employed by Appellee Union Pacific (UP) as an engineer in 1974. Fullwiley alleges that over a thirty year period, he and other minority coworkers suffered pervasive racial harassment from several of his coworkers, in the form of racial slurs (the "n-word"), threats of KKK-style violence, and an assault in 1999. He alleges that whenever he complained about the harassment to the equal employment opportunity office (EEO), he was ignored, and when he complained about the assault six months after the event, was disciplined for failing to file a timely report. After 2000, Fullwiley alleges he suffered several more incidents of racial harassment and threats that were ignored by the EEO, and alleges that the harassment continued even after he filed his lawsuit. UP alleges that Fullwiley knew about the EEO policies and did not report eight of nine alleged harassment incidents taking place after 2000 to the EEO, and the one he did report, he did not complain about racial harassment. UP alleges that Fullwiley's complaints of harassment after the lawsuit was filed also had nothing to do with racial harassment. Furthermore, all the alleged incidents prior to 2000 were heard secondhand.
Issues
- Whether the district court properly limited its review of evidence claiming a racist hostile work environment to only acts occurring within the four year statute of limitations, when appellant had presented evidence of racial harassment throughout his 30 year career.
- Whether appellant suffered a pervasive hostile work environment since July 2000, and if so, was appropriate remedial action taken so as to incur no liability on appellee.
Appellant's Arguments
- Issue 1: Fullwiley argues that the District Court incorrectly refused to consider events outside § 1981's four-year statute of limitations. Fullwiley argues that National Railroad Passenger Corp. v. Morgan requires the court to look at the incidents as one unlawful employment practice and the entire period must be considered in a § 1981 claim.
- Issue 2: Fullwiley argues that the District Court refused to admit into evidence the majority of the harassment incidents, and impermissibly viewed each event in isolation. The court also incorrectly considered the harassing events not to be racial, and it incorrectly refused to admit evidence of harassment directed at other minority coworkers. Furthermore, the court incorrectly ignored his reports to the EEO prior to 2000, and that the pervasiveness of the harassment should have given UP notice of a hostile work environment. He also argues that the court failed to look at the inadequate remedial measures that UP took on all but two of his reported incidents.
Respondent's Arguments
- Issue 1: UP argues that Morgan applies only to Title VII claims, and not section 1981 claims. Even if it does, under Morgan, Fullwiley must relate the timely claims to the untimely claims to be part of the same hostile work environment, which he did not. Admitting only the claims after 2000 was correct.
- Issue 2: Since only the 9 claims after 2000 should be considered, the court correctly concluded that Fullwiley's claims never rose to the level of a "steady barrage of opprobrious racial" conduct necessary to establish a prima facie harassment claim. Even if it did, UP responded effectively to Fullwiley's complaints, and stopped all harassment of Fullwiley, so summary judgment was proper.
