Berry v. City of Bossier City9/8/2005
or to be moved up in class to the status of driver for a shift when no replacement driver was available, even though he had seniority over other firefighters who were allowed to "drive out of class." In an affidavit, Chief Faith stated that, due to absences for such reasons as sickness or vacations, firefighters may "drive out of class" on a shift even though they have a lower date of certification than other firefighters on another shift. He states that this is the "product of imperfect scheduling," not race-based discrimination.
We note that McGee's complaint does not appear to deal with an actual promotion, but with a temporary scheduling reassignment due to absences. Since "driving out of class" was only temporary and not a promotional opportunity, it does not constitute an ultimate employment decision under Title VII, and summary judgment in the employer's favor is appropriate. See Johnson v. Louisiana ex rel. Louisiana Board of Supervisors for Louisiana State University Agricultural and Mechanical College, 79 Fed. Appx. 684 (5th Cir. 2003).
HOSTILE WORK ENVIRONMENT
A hostile environment is one that does not affect an employee's economic benefits, but instead creates a hostile or offensive working environment. In order to prevail in a hostile work environment claim, plaintiffs must assert and prove: (1) they belong to a protected group; (2) they were subjected to harassment; (3) the harassment was motivated by discriminatory animus (race); (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Hicks v. Central Louisiana Electric Company, Inc., 1997-1232 (La. App. 1st Cir. 5/15/98), 712 So. 2d 656; King v. Phelps Dunbar, L.L.P., 2001-1735 (La. App. 4th Cir. 4/2/03), 844 So. 2d 1012, writ denied, 2003-1220 (La. 11/21/03), 860 So. 2d 541.
For racist comments, slurs, and jokes to constitute a hostile environment, there must be more than a few isolated incidents of racial enmity. Hicks v. Central Louisiana Electric Company, Inc., supra. See also Powell v. Missouri State Highway and Transportation Department, 822 F. 2d 798 (8th Cir. 1987), wherein a maintenance crew member was subjected to isolated instances of racially derogatory language; however, he also participated in what was described as "racial joking" himself. To constitute actionable harassment, the conduct must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Bolden v. PRC Inc., 43 F. 3d 545 (10th 1994), cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed. 2d 48 (1995). Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. Bolden, supra.
The evidence in the record before us does not support the inference of pervasive racial harassment as to Lacoure. Instead it demonstrated isolated incidents of racial comments, slurs and jokes. Some of the racial comments described by Lacoure in his deposition appear to be banter in which he participated with a white firefighter whom he described as a friend. Consequently, summary judgment in the defendant's favor is appropriate on the issue of hostile work environment.
CERTIFICATION
To establish a prima facie case of discrimination under Title VII, a plaintiff may prove his claim either through direct evidence, statistical proof, or the test established by the U. S. Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). Brittain v. Family Care Services, Inc., 34,787 (La. App. 2d Cir. 6/20/01), 801 So. 2d 457. First, the plaintiff has
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