United States District Court, W.D. Oklahoma
DERRICK W. HOWARD, Plaintiff,
OKLAHOMA DEPARTMENT OF CORRECTIONS, a state agency; MICHAEL ADDISON, an individual; and MICHAEL SHELITE, an individual, Defendants.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Oklahoma
Department of Corrections (ODOC), Michael Addison, and
Michael Shelite's (collectively, Defendants) Motion for
Summary Judgment [Doc. No. 16]. Plaintiff Derrick Howard
(Howard) has filed his response in opposition [Doc. No. 19],
and Defendants have replied [Doc. No. 22]. The matter is
fully briefed and at issue.
lawsuit arises from Howard's employment as a corrections
officer at the Joseph Harp Correctional Center (JHCC), where
he alleges he was subjected to a hostile work environment and
retaliated against due to his race and disability. Howard is
African-American and suffers from Post-Traumatic Stress
Disorder (PTSD). His claims arise under the civil rights
statutes, specifically, 42 U.S.C. § 1981; the Americans
with Disabilities Act (ADA), as amended by ADA
Amendments Act of 2008 (ADAAA), 42 U.S.C. § 12101 et
seq.,  and the common law. At all relevant times,
Defendant Addison was warden of JHCC and Defendant Shelite
was JHCC's chief of security. The following material
facts are undisputed, and, along with all reasonable
inferences, are viewed in the light most favorable to Howard.
Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306
(10th Cir. 2017).
was employed at JHCC from June 14, 2010 to December 3, 2013.
He states his problems at JHCC began in May 2012, when JHCC
officer Lieutenant Dooley began harassing him. According to
Howard, Dooley began to constantly monitor him on security
cameras and accused Howard at one point not performing his
security checks. Howard also states Dooley accused him of
being too friendly with inmates and behaving like a
“dirty” officer. In October 2012, Howard was
accused of failing to provide medical assistance to an inmate
who had suffered facial injuries in the segregated housing
unit (SHU). Although the inmate's injuries were
determined to have been accidental or self-inflicted, Howard
was removed from SHU. Howard contends his removal was due to
false accusations by another JHCC officer, Captain Day, whom
Howard also accuses of racial harassment and retaliation, as
discussed more fully below.
describes an incident that occurred in November 2012 in which
a random drug search was performed on JHCC employees by a K-9
unit. When Howard appeared, the K-9 officer, Sergeant
Stephens, began snapping his fingers around Howard and made a
gesture with his arm. The drug dog sat down, indicating
Howard was in possession of contraband. Stephens told Howard
to stay seated and asked for his identification badge. The
same dog had previously sniffed at another employee, but
Stephens pulled it away, commenting that the employee must
have owned a female dog. No contraband was found on Howard,
but the incident left him feeling embarrassed. Howard alleges
he was targeted by Stephens, although there were other black
officers present who did not draw attention from Stephens.
However, another officer who had observed the incident
believed Stephens' actions toward Howard were
disrespectful, and an internal memorandum sent to Addison
stated there was a sentiment among the inmate population that
Stephens targeted minorities.
the same period, an inmate was caught in possession of a cell
phone. The inmate accused Howard and two other officers (both
African-American) of bringing contraband into the facility.
A yearlong investigation ensued, resulting in disciplinary
action being recommended against officers and inmates. Howard
was found to have given false statements concerning his
ownership of a prepaid debit card. No disciplinary action was
taken against him, however, and neither Howard nor the other
officers were found to have brought contraband into JHCC.
Officials at JHCC planned an undercover operation to
determine whether Howard and other officers were bringing
contraband into the facility, but there is no evidence in the
record that the plan was implemented.
describes another incident in which Captain Day expressed his
disdain for a black inmate before Howard and other officers.
Day repeatedly called the inmate “boy” while
looking at Howard. This embarrassed Howard, who was the only
black officer present, and he felt Day's comments were
meant to dehumanize him. In addition, Howard also alleges Day
falsely accused him of placing handcuffs too tight on an
inmate. Howard believes Day's accusations were
retaliation against him for filing a racial discrimination
met with Shelite to discuss Day's conduct. During their
meeting, Shelite told Howard that everyone says
“boy” and he felt the term was innocuous. Shelite
asked Howard if he was happy at JHCC and said he could get
him a job someplace else where he could be happy. Howard felt
his career had been threatened and filed an incident report.
In his report, Howard stated Shelite “ha[d] his point
of view made up” and believed his questions bore no
relevance to the incident at issue. Howard and Shelite had
three more encounters, two of which occurred in the JHCC
parking lot. During the first incident, Shelite greeted
Howard but became upset when Howard did not respond in kind.
The next day, Shelite demanded a meeting with Howard, but
Howard refused, stating he did not feel safe meeting with
Shelite alone. The third occurred in Shelite's office,
where Shelite intended to reprimand Howard for the previous
confrontations. Shelite ordered Howard to sit down, but
Howard refused and instead handed Shelite his attorney's
business card. Shelite told Howard to leave and reprimanded
him for failing to follow his directions and afford the
respect and courtesy due an officer.
filed two internal grievances with JHCC. His first grievance
contended his aforementioned removal from segregated housing
was due to continued harassment by Day and other officers in
JHCC's security office. Howard concluded his complaint by
stating, “[b]ecause of this latest charge I cannot even
work overtime because of fear of being demoted and or losing
my job PLEASE HELP.” (Emphasis in original).
Howard's second grievance complained of Day's
“boy” comments. Howard stated he had had
“many incidents” with officers at JHCC, the
latest of which was with Day. In his request for relief,
Howard stated he “pray[ed] that this and other racial
behavior would stop ... I do not want any RETALIATION for
making this statement of this and ... other incidents that I
am bring[ing] forward[.]” (Emphasis in original).
Howard concluded by stating “I just pray that I can get
this and other incidents resolved without any prejudice and
Howard's employment, another JHCC officer emailed Addison
and stated there appeared to be “an all-out
attack” on Black officers at JHCC since Shelite's
arrival. The officer's email cited several incidents
other black/minority officers had with Shelite, including
Howard's meeting with Shelite over Day's comments.
Addison, in response, contacted ODOC investigators and stated
that there was “an increasing atmosphere of alleged
discrimination being voiced by several staff at JHCC.”
Addison shared his concern that such animosity was
detrimental to the facility, affecting the inmate population,
and requested an investigation be conducted to determine
whether any of the allegations could be substantiated.
ODOC's Civil Rights Administrator found that Day's
“boy” comments were unbecoming for the workplace
and in violation of policy and Day was reprimanded. However,
Howard's other complaints of racial discrimination were
determined to be unsubstantiated.
April 19, 2013, Howard filed a charge of discrimination with
the Equal Employment Opportunity Commission (EEOC) wherein he
alleged he was being harassed and subjected to a hostile work
environment. Howard cited the “false hit” by the
drug dog, his separation from segregated housing, the
allegations of contraband, and Stephen's alleged comments
about the King Holiday. Howard contended that despite his
protests, no corrective action was taken. On June 5, 2013,
Howard amended his charge to include (1) allegations that
Dooley continued to harass him, (2) Day's
“boy” comments, (3) Shelite's alleged threats
against him, and (4) the undercover operation that had been
planned. Howard also stated that a recent investigation
opened against him, discussed below, was retaliation for his
repeated complaints of discrimination.
year, ODOC receives a list of individuals the Oklahoma Tax
Commission (OTC) has deemed non-compliant with state income
taxes. The list of employees who have been identified as
non-compliant for three years or more is provided to ODOC
human resources for further action. Although individuals who
are listed as non-compliant for four years generally depart
from ODOC for various reasons, employees with three or more
violations have remained employed. Howard had a payment plan
set up with OTC to pay his taxes; however, he stopped making
payments in May 2013. On July 12, 2013, a notice containing
non-compliant JHCC employees, including Howard, was sent to
Addison. Shortly after the list was issued, Howard took leave
pursuant to the Family and Medical Leave Act (FMLA) to enter
a substance abuse clinic. Howard's FMLA medical
certification form provided a provisional diagnosis of PTSD
and stated Howard was suffering from severe anxiety,
alcoholism and depression, which he attributed to the
harassment at JHCC. Howard said these conditions interfered
with his ability to function and take care of his health.
Howard informed Shelite that he was on anxiety medication.
unsuccessfully applied for positions elsewhere, but was
chosen for transfer to another facility, Lexington Assessment
and Reception Center (LARC), where his pay, benefits, and
duties would have been the same. Howard refused the
assignment because Shelite had a friend who worked at LARC.
On November 7, 2013, Howard was served with a Pre-Termination
Hearing Notice based on his failure to pay taxes. The next
day, Howard sent a letter to JHCC stating he was not
returning to work due to stress. Howard did not appear at the
termination hearing and on December 3, 2013, he was
terminated from JHCC for failing to pay taxes. At the time of
his termination, Howard's medical leave had been
expended. Howard filed another administrative charge wherein
he alleged he was fired for seeking medical leave and
complaining of racial discrimination.
filed suit against ODOC, Addison, and Shelite in Cleveland
County District Court, alleging discrimination and
retaliation based on race and disability. Howard also
contended Defendants' actions constituted intentional and
negligent infliction of emotional distress. Defendants
removed the action to this Court and now seek summary
judgment on the grounds that (1) Howard has not established a
prima facie claim of either discriminatory treatment or
retaliation; (2) Howard has not established that his work
environment was hostile; (3) Defendants are not liable for
Howard's ADA claim by virtue of sovereign immunity; (4)
Howard has not established individual liability against
Addison and Shelite; and (5) Howard has failed to establish a
claim for either intentional or negligent infliction of
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Universal
Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105
(10th Cir. 2016) (quoting Fed.R.Civ.P. 56(a)). The movant may
make such a showing through the pleadings, depositions, other
discovery materials, and affidavits. Water Pik, Inc. v.
Med-Systems, Inc., 726 F.3d 1136, 1142 (10th Cir. 2013).
As stated, at the summary judgment stage, the Court views the
facts in the light most favorable to the non-movant, Howard,
and draws all reasonable inferences from the record in his
favor. Dewitt, 845 F.3d at 1306.
Howard is entitled to all reasonable inferences from the
record, he must still marshal sufficient evidence requiring
submission to the jury to avoid summary judgment.
Id.; Piercy v. Maketa, 480 F.3d 1192, 1197
(10th Cir. 2007). Thus, if Howard bears the burden of
persuasion on a claim at trial, summary judgment may be
warranted if Defendants point out a lack of evidence to
support an essential element of that claim and Howard cannot
identify specific facts that would create a genuine issue.
Water Pik, 726 F.3d at 1143-44. “An issue is
‘genuine' if there is sufficient evidence on each
side so that a rational trier of fact could resolve the issue
either way, ” and “[a]n issue of fact is
‘material' if under the substantive law it is
essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998).
Howard's Claims Under The ADAAA