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Howard v. Oklahoma Department of Corrections

United States District Court, W.D. Oklahoma

March 20, 2017

OKLAHOMA DEPARTMENT OF CORRECTIONS, a state agency; MICHAEL ADDISON, an individual; and MICHAEL SHELITE, an individual, Defendants.



         This 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.

         This 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., [1] 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).


         Howard 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.

         Howard 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.[2]

         During the same period, an inmate was caught in possession of a cell phone. The inmate accused Howard and two other officers (both African-American)[3] 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.

         Howard 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 complaint.

         Howard 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.

         Howard 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 no retaliation.”

         During 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.

         On 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.

         Each 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.

         Howard 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.

         Howard 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 emotional distress.


         Summary 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.

         Although 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).


         I. Howard's Claims Under The ADAAA

         A. ...

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