George McGinest v. Gte Service Corp. Mike Biggs

George McGinest, an African-American employee of GTE Service Corporation (“GTE”), sued GTE under Title VII for creation of a racially hostile work environment, failure to promote due to racial discrimination, and failure to promote due to retaliation. McGinest claims that GTE created a racially hostile work environment based both upon its perpetration of and its failure to adequately respond to a large number of incidents that occurred over a fifteen year period. In support of his hostile work environment claim, McGi-nest alleges that he was placed in dangerous working conditions because of his race, prevented from collecting bonus pay available to non-African American coworkers, forced to endure racial taunts and insults by supervisors and coworkers, and subjected to racist graffiti in GTE’s bathrooms and on switch boxes. Additionally, McGi-nest claims that he was denied a promotion in late 1998 due to his race and in retaliation for filing an EEOC complaint; GTE responds that it was unable to promote him due to a hiring freeze.

The district court granted summary judgment to GTE. The court found that the incidents comprising the hostile work *1107 environment claim were…

concurring in part and dissenting in part.

I agree that the court must reverse the grant of GTE’s motion for summary judgment and remand for further proceedings on McGinest’s hostile work environment; regrettably, however, I cannot concur in the majority’s analysis, and thus dissent from the reasoning of Part III. I disagree with the court’s reversal of the dismissal on summary judgment of McGinest’s discriminatory failure to promote claim and thus dissent from Part IV.A.; I would affirm. But I do agree that we must affirm dismissal on summary judgment of McGinest’s retaliatory failure to promote claim, and thus concur in Part IV.B. of the court’s opinion as to result and analysis.

Because I believe the majority’s opinion sidesteps Raytheon Co. v. Hernandez, — U.S.-, 124 S.Ct. 513 , 157 L.Ed.2d 357 (2003), essentially abandons Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (2002), and creates an unreasonable expansion of Title VII liability in the workplace, I must respectfully dissent from the opinion of the court to the foregoing extent.

I

Title VII prevents the establishment of a “hostile work environment” that becomes “sufficiently…

360 F.3d 1103 George McGINEST, Plaintiff-Appellant, v. GTE SERVICE CORP.; Mike Biggs, Defendants-Appellees. No. 01-57065. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 2, 2002 — Pasadena, California. Filed March 11, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED David A. Cohn, Mancini & Associates, Encino, California; Gerald M. Serlin, Benedon & Serlin, Woodland Hills, California, for the plaintiff-appellant. Jennifer L. Nutter and Thomas P. Brown IV, Epstein, Becker & Green, Los Angeles, California, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV-99-13432-CAS. Before: Stephen REINHARDT, Diarmuid F. O'SCANNLAIN, and Richard A. PAEZ, Circuit Judges. Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge O'Scannlain. OPINION PAEZ, Circuit Judge: 1 George McGinest, an African-American employee of GTE Service Corporation ("GTE"), sued GTE under Title VII for creation of a racially hostile work environment, failure to promote due to racial discrimination, and failure to promote due to…