Bernard v. City of Dallas Water Department Petition for a Writ of Certiorari

    No. 94-

In The

Supreme Court of tfje (Hrn'tct) States
October Term, 1994

Clem en t  Bernard ,
Petitioner,

v.

C ity of Dallas W ater  D epartm ent , et al.,
Respondents.

On Petition for a W rit of Certiorari 
to the United States Court of Appeals 

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

E laine  R. J ones 
Director Counsel 

T heodore M. Shaw 
Associate Director Counsel 

Charles  Steph en  Ralston 
J udith R e ed  
E ric Sc h n a ppe r*
NAACP L egal De fen se  & E ducational 

F und , In c .
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel fo r Petitioner

*Counsel o f Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



1

QUESTIONS PRESENTED

(1) Did the Court of Appeals err in holding, 
contrary to decisions of this Court and of the Fourth and 
Sixth Circuits, that an employer which knows of a pattern of 
racial harassment need not act to prevent the harassment of 
any particular victim until that victim has filed a complaint?

(2) Did the Court of Appeals err in holding, 
contrary to decisions in other circuits, that a claim of a 
discrimination in promotions cannot be grounded on proof 
of intentional racial discrimination in the training necessary 
to qualify for the promotion at issue?



u

PARTIES

The parties who participated below are the petitioner, 
Clement Bernard, and the respondents, the City of Dallas 
and the City of Dallas Water Department.



iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ...........................................  i

PARTIES .............................................................................  ii

OPINIONS BELOW ..........................................................  2

JURISDICTION .................................................................  2

STATUTE INVOLVED ................................................... 2

REASONS FOR GRANTING THE W R I T .................  7

I. T H E  D E C I S I O N  B E L O W
CONFLICTS WITH DECISIONS OF 
THIS COURT AND OF THE
FOURTH AND SIXTH CIRCUITS 
REGARDING THE OBLIGATION 
OF AN EMPLOYER TO STOP 
KNOWN INVIDIOUS 
H A RA SSM EN T.........................................  7

II T H E  D E C I S I O N  B E L O W
CONFLICTS WITH DECISIONS OF 
OTHER CIRCUITS THAT A 
PROMOTION CLAIM CAN BE
B A S E D  O N  T H E
DISCRIMINATORY DENIAL OF 
THE TRAINING REQUIRED FOR 
PROMOTION...........................................  13

CONCLUSION 15



IV

TABLE OF AUTHORITIES

Cases: Pages:

Long v. Ford Motor Company,
496 F.2d 500 (6th Cir. 1974) .............................  15

Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)...........................................  7, 8, 9

Paroline v Unisys Corp.,
879 F.2d 100 (4th Cir. 1989) modified on other 
grounds 900 F.2d 27 (4th Cir. 1990) . . . . . .  10, 11

Rowlett v. Anheuser-Busch, Inc.,
832 F.2d 194 (1st Cir. 1 9 8 7 ).............. ...........  14, 15

Wright v National Archives & Records Service,
609 F.2d 702 (4th Cir. 1979) .............. .. 14

Yates v. Avco Corp.,
819 F.2d 630 (6th Cir. 1987) .............................  10

Statutes: Pages:

28 U.S.C. §1254(1) .............................................. ........... .. 2

42 U.S.C. §2000e et seq................  passim



In The

Supreme Court of tfje Um teb S ta te s
October Term, 1994 

CLEMENT BERNARD,

Petitioner,

V.

CITY OF DALLAS WATER DEPARTMENT, et al.,

Respondents.

On Petition for a Writ of Certiorari to 
the United States Court of Appeals 

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Clement Bernard respectfully prays that a writ of 
certiorari issue to review the judgment and opinion of the 
United States Court of Appeals for the Fifth Circuit entered 
in this proceeding on April 7, 1994.



2

OPTNTONS BELOW

The opinion of the United States District Court for 
the Northern District of Texas, which is not officially 
reported, is set out at pp. la-20a of the Appendix. The 
opinion of the Fifth Circuit Court of Appeals, which is not 
published, is set out at pp. 22a-25a of the Appendix.

JURISDICTION

The decision of the Fifth Circuit was entered on 
April 7, 1994. Jurisdiction of this Court is invoked under 28 
U.S.C. §1254(1).

STATUTE INVOLVED

Section 2000e-2(a) of 42 U.S.C. states in pertinent
part:

It shall be an unlawful employment practice 
for an employer -

(1) to ... discriminate against any individual 
with respect to his ... terms, conditions, or 
privileges of employment, because of such 
individual’s race ....

STATEMENT OF THE CASE

This is an action under Title VII of the 1964 Civil 
Rights Act, 42 U.S.C. §2000e et seq., seeking redress for



3

discrimination in the terms and conditions of petitioner’s 
employment. Petitioner is an employee at a water treatment 
plant operated by the respondent City of Dallas Water 
Department. The complaint alleged, inter alia, that 
petitioner had been the victim of racial harassment and had 
been denied promotions because of his race. The complaint 
was filed on July 31, 1990, in the United States District 
Court for the Northern District of Texas.

On June 23, 1993, the district court granted 
respondents’ motion for summary judgment, dismissing all of 
petitioner’s claims with prejudice. (la-21a). On April 7, 
1994, the Fifth Circuit affirmed that dismissal. (22a-25a).

Certain facts with regard to petitioner’s harassment 
claim are not in dispute. For several years an employee at 
the Water Department, one Harry B. Ketter, had engaged 
in systematic harassment of minorities and women in the 
unit where petitioner worked. Ketter was a higher ranking 
employee who was often assigned to work as petitioner’s 
supervisor.1 The harassment had begun well before 
petitioner was hired into that unit,2 and prior to petitioner’s 
arrival Ketter had directed that abuse to other employees. 
As the district court noted, Ketter generated and distributed

1 District Court Record (hereinafter "D. Ct. Rec.") 162 
(affidavit of Linda Kelsey).

2 D. Ct. Rec. 159-60 ("I can verify that the racial . . . 
harassment was going on long before Mr. Bernard went to work for 
DWU . . . Marvin Williams is a black male at [the unit involved], 
[He] has been there for years before Mr. Bernard. [He] also was 
subjected to this type of racial harassment . . ..") (affidavit of Linda 
Kelsey); D. Ct. Rec. 164 (graffiti all over the walls "even before 
Clement Bernard started working") (affidavit of Danny Holland); D. 
Ct. Rec. 168 (racist material displayed from 1987 onwards) (affidavit 
of Michael Gonzalez); D. Ct. Rec. 169 (racist displays obvious when 
affiant hired in mid-1987) (affidavit of Mark DuPree).



4

racist paraphernalia (15a), and used racial epithets. (3a, 14a) 
Id. Ketter prominently displayed a statue depicting black 
female genitalia, an object he had carved on government 
time.3 Ketter repeatedly accosted black workers with 
accusations that blacks were intellectually inferior and that 
"the white race, like the Germans, are superior."4 Ketter 
openly used the plant walls and bulletin boards to display his 
racist propaganda,5 and created a display of racist 
paraphernalia that for months was "in full view" of anyone 
in the unit.6 A number of black and female workers had 
resigned when it became apparent that respondent was 
taking no steps to end the harassment.7 The district court 
concluded that Ketter’s "many transgressions" were "indeed 
unconscionable" and "indefensible". (16a-18a). The Court of 
Appeals held that petitioner had adduced "sufficient 
evidence of a racially hostile working environment," 
including Ketter’s "racially insulting conduct and display ... 
[of] materials derogatory of blacks in the workplace." (24a).

In response to the motion for summary judgment, 
petitioner also submitted several undisputed affidavits 
demonstrating that the plant managers were understandably 
aware of Ketter’s harassing activities before petitioner was 
victimized. A prior black worker had been harassed by 
Ketter "with management’s knowledge."8 Victims of 
harassment were instructed on several occasions that they

3 D. Ct. Rec. 161 (affidavit of Linda Kelsey).

4 D. Ct. Rec. 166 (affidavit of Danny Holland).

5 Id.-, D. Ct. Rec. 168 (affidavit of Michael Gonzalez).

6 D. Ct. Rec. (affidavit of Mark DuPree).

7 D. Ct. Rec. 163 (affidavit of Linda Kelsey).

8 D. Ct. Rec. 160 (affidavit of Linda Kelsey).



5

would have to "ignore" the abusive remarks.9 The offensive 
statue was displayed where management officials regularly 
saw it, and had been created by Ketter out of city materials 
"with the knowledge of management."10 Ketter’s more 
elaborate display of racist paraphernalia was in a room 
regularly visited by managers and supervisors.11 The Court 
of Appeals correctly observed that although ”[t]his activity 
apparently went on for some time, ... management did not 
take action to stop it until ... October, 1988". (24a).

The Court of Appeals nonetheless concluded that on 
this record summary judgment should be granted to the 
respondent employer. The Fifth Circuit held that under 
Title VII the employer’s only obligation to petitioner was to 
take action if and when petitioner complained about Ketter. 
Petitioner filed such a complaint in October, 1988, objecting 
that he, like other employees at the plant, had been 
repeatedly harassed by Ketter. After Ketter had "persisted 
in his disruptive and antagonistic behavior" (15a) for three 
additional months, respondent finally reassigned him to an 
area of the plant where he would have less contact with 
petitioner. The Fifth Circuit reasoned that respondents’ 
knowing inaction prior to October 1988 was legally 
irrelevant, and that the legal inquiry was limited to whether 
the city had responded adequately once Bernard formally 
complained. Finding the city’s actions after October 1988 
sufficient, the court of appeals concluded that summary 
judgment in favor of respondent was required on the racial 
harassment claim.

Petitioner’s promotion claim concerned his 
unsuccessful efforts to promote to the position of T-9

10 D. Ct. Rec. 161 (affidavit of Linda Kelsey).

11 D. Ct. Rec. 170 (affidavit of Mark DuPree).



6

Instrument Technician. Petitioner had been hired as a T-7 
Apprentice Instrument Technician (la). Petitioner alleged 
that because of his race he was denied the training needed 
to promote to Instrument Technician.12 As a journeyman 
Instrument Technician, Harry Ketter was responsible for 
providing that training. In addition to the evidence of racial 
harassment by Ketter described supra, petitioner adduced 
direct evidence of a discriminatory motive behind the denial 
of training. In response to the summary judgment motion, 
petitioner submitted an affidavit describing remarks by 
Ketter and by petitioner’s regular supervisor, Don Pierce:

It was ... Harry Ketter[’]s place to train T-7’s 
for promotions. [He] made the comment on 
several occasions as long as he was there no 
black man Mr. Bernard or [another black 
worker] would become [a] T-9 or higher.
Don Pierce the T-10 had the same opinion.
He also said that on several occasions.13

Having been denied the necessary training, petitioner was 
unable to pass the civil service examination for promotion to 
Instrument Technician. After repeatedly failing in his 
attempts to promote to the position of Instrument

12 2a, 10a. The complaint alleged, inter alia:

"Plaintiff ... was required ... to be 
trained by one of Defendant’s em­
ployees, Harry Ketter. Defendant’s 
agent Ketter flatly refused to train 
Plaintiff because of Plaintiffs race, 
black, and Plaintiff reported this to 
... [the] Assistant Manager of the 
Plant"

Par. 5.

13 D. Ct. Rec. 162 (affidavit of Linda Kelsey).



7

Technician, petitioner ultimately found another worker who 
would train him to work as a Mechanic Technician, and he 
succeeded in promoting into that position. (13a).

Both courts below held that any such discrimination 
in training was legally irrelevant. They reasoned that the 
proper inquiry under Title VII was limited to whether there 
was discrimination in the promotion decisions themselves. 
Ketter’s racial animus was irrelevant, they insisted, because 
Ketter himself did not make the actual promotion 
decisions.14 The court of appeals concluded that summary 
judgement was mandated by the fact that petitioner "did not 
pass the required test for promotion." (23a).

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS 
WITH DECISIONS OF THIS COURT AND 
OF TH E FO U R TH  AND SIXTH 
CIRCUITS REGARDING THE OBLIGA­
TION OF AN EMPLOYER TO STOP 
KNOWN INVIDIOUS HARASSMENT

The decision below reopens a loophole in the 
nation’s anti-discrimination laws which this Court intended 
to close eight years ago. In Meritor Savings Bank v. Vinson, 
A ll  U.S. 57 (1986), this Court unanimously rejected the 
argument that an employer had no obligation to stop the 
sexual (or racial) harassment of an employee until and 
unless that employee lodged a complaint objecting to such 
discrimination.

14 2a ("At no time during plaintiffs employment ... did Harry 
Ketter have the power to ... promote ... the plaintiffjf]."), 23a ("Harry 
Ketter ... could not directly influence this decision").



8

[W]e reject [the employer’s] view that the 
mere existence of a grievance procedure ... 
coupled with [the employee’s] failure to 
invoke that procedure, must insulate [the 
employer] from liability.

477 U.S. at 72. In Meritor the employer expressly conceded 
that it would have been liable if it "knew [or] reasonably 
could have known of the alleged misconduct." 477 U.S. at 70. 
This Court observed that an employer would of course be in 
violation of Title VII if the acts of harassment were "so 
pervasive and so long continuing ... that the employer must 
have become conscious of [them]." 477 U.S. at 72.

The Fifth Circuit decision in the instant case 
endorses an interpretation of Title VII expressly rejected by 
this Court and disavowed by the employer in Meritor. Under 
the decision below, even actual knowledge by the employer 
that racial harassment is occurring imposes no obligation on 
the employer to act unless, and until, each particular victim 
complains. On the Fifth Circuit’s view, an employer has no 
general duty to end known racial harassment, or to protect 
employees whom it has reason to know will be or are being 
harassed. Only when and if one of those known victims 
chooses to complain does Title VII impose any 
responsibility, the circuit court concluded, and that 
responsibility is limited to assisting to that particular victim. 
A failure to respond to such a complaint does not expose 
the employer to lability to any other victim of the known 
harassment.

In this case the court of appeals acknowledged there 
was sufficient, largely undisputed evidence to establish that 
the harassment had created "a racially hostile working 
environment." (24a-25a). The Fifth Circuit also 
acknowledged that racial harassment at the facility was a



9

longstanding problem, which the employer did nothing about 
until October, 1988:

The activity apparently went on for some 
time, but management did not take action to 
stop it until Bernard complained in October,
1988. At that time, management began 
regularly to enforce its policy of preventing 
displays of offensive material.

(24a) (Emphases added). The undisputed evidence made 
clear that management had known about the harassment 
long before October 1988. (See pp. 4-5, supra).

Under these circumstances, Mentor clearly dictated a 
finding of employer liability. The Fifth Circuit reached 
precisely the opposite result, holding that liability to Bernard 
was to be determined, not based on the years of knowing in­
action by respondents prior to October 1988, but solely by 
how the city had responded after petitioner Bernard 
complained:

[T]he circumstances demonstrate that the 
managers ... took prompt action when 
informed that Bernard found Ketter’s conduct 
offensive ...

(25a) (Emphasis added). Although plant managers had 
earlier failed to act on misconduct known to all, and thus 
clearly signaled that the misconduct was acceptable, the Fifth 
Circuit thought it sufficient to defeat this action that 
"[management's handling of this situation after Bernard 
complained never suggested that Ketter’s offensive conduct 
was tolerated or excusable." (25a) (Emphasis added). 
Although city officials had cavalierly instructed previous 
harassment victims that they would have to try to ignore 
Ketter’s harassment, that deliberate inaction, the Fifth 
Circuit held, was irrelevant because management did not



10

"advise Bernard to ignore Ketter’s behavior." (25a) 
(Emphasis added.)

The Fourth and Sixth Circuits have expressly rejected 
the Fifth Circuit rule in this case, holding instead that once 
an employer learns of ongoing harassment it must act to 
protect all employees, not merely those, if any, who have 
complained. In Yates v. Avco Corp., 819 F. 2d 630 (6th Cir. 
1987), the company sought to avoid liability to the plaintiffs 
at issue by insisting it "took remedial action once the 
plaintiffs registered complaints." 819 F.2d at 636. The Sixth 
Circuit rejected that argument, noting that the employer 
"had notice" of the problem years earlier. 819 F.2d at 835). 
Under "agency principles", the Sixth Circuit reasoned, the 
employer was liable to the plaintiffs and any other 
subsequent victims because their injuries were "foreseeable." 
819 F.2d at 636.

[The employer’s] duty to remedy the problem, 
or at a minimum, inquire, was created earlier 
when the initial allegations of harassment 
were reported.

Id.

Similarly, in Paroline v Unisys Corp., 879 F.2d 100 
(4th Cir. 1989) modified on other grounds 900 F.2d 27 (4th 
Cir. 1990), the Fourth Circuit reversed a district court 
decision which had granted summary judgment "because 
Unisys took prompt remedial action after Paroline’s 
complaint." 879 F.2d at 102 (Emphasis added). The Fourth 
Circuit rejected the employer’s argument that it was entitled 
to summary judgement if it merely proved that it "took 
prompt and adequate remedial steps once Paroline 
complained." 879 F.2d at 106 (Emphasis added). The 
Fourth Circuit noted that there had been prior complaints 
by other employees about sexual harassment by the same 
individual who ultimately victimized the plaintiff, and that 
there was evidence suggesting that Unisys had earlier taken



11

only nominal measures in response to the known 
harassment. 879 F.2d at 106-07. The Fourth Circuit held:

In a hostile environment case under Title VII, 
we will impute liability to an employer who 
anticipated or reasonably should have 
anticipated that the plaintiff would become a 
victim of sexual harassment in the work-place 
and yet failed to take action reasonably 
calculated to prevent such harassment. An 
employer’s knowledge that a male worker has 
previously harassed female employees other 
than the plaintiff will often prove highly 
relevant in deciding whether the employer 
should have anticipated that the plaintiff too 
would become a victim of the male 
employee’s harassing conduct.

879 F.2d at 107 (Emphasis in original). The Fifth Circuit’s 
decision in the instant case applies precisely the opposite 
rule.15

The Fifth Circuit decision in this case has the effect 
of virtually suspending in Texas, Louisiana and Mississippi 
the Title VII prohibition against sexual and racial 
harassment. Employers in those states no longer need 
prevent foreseeable acts of harassment or deal with known 
harassers. Faced with a substantiated complaint of racial or 
sexual harassment, employers in the Fifth Circuit are under 
no legal obligation to end the misconduct or discipline the 
wrongdoer, but are required only to protect the specific 
complainant. An employer may now meet its statutory 
obligations in the Fifth Circuit merely by separating the

15 The reasoning of the courts below that the respondents’ 
conduct did not violate Title VII is not affected by the changes in 
Title VII remedies under the 1991 Civil Rights Act.



12

complainant and the wrongdoer, even though the harasser 
remains free to redirect his abuse at other employees.

That is precisely what occurred in the instant case. 
Both courts below concluded that respondents had met their 
obligations under Title VII simply by relocating Ketter, an 
employee whose record of racial and sexual harassment was 
well known, to another part of the plant;

[After] Ketter proved unwilling to conform 
his behavior to the standards of the workplace 
... he [was] transferred out of plaintiffs work 
area. While Ketter’s behavior in the 
workplace is indefensible, there is nothing 
inherently unlawful or inequitable about the 

treatment accorded Ketter by his 
supervisors....

(17a).16 On this view, Title VII imposes on employers, not 
an obligation to prevent sexual or racial harassment, but 
only a duty to periodically provide the harasser with a fresh 
set of victims. Under the decision of the courts below, 
respondents could tomorrow knowingly and deliberately 
designate as petitioner’s supervisor an avowed bigot with a 
persistent history of racial harassment, so long as they chose 
a racist other than Harry Ketter.

16See also 15a (employer concedes Ketter remained "uncontrite 
and persisted in his disruptive and antagonistic behavior")



13

II THE DECISION BELOW CONFLICTS 
WITH DECISIONS OF OTHER CIRCUITS 
THAT A PROMOTION CLAIM CAN BE 
BASED ON THE DISCRIMINATORY 
DENIAL OF THE TRAINING REQUIRED 
FOR PROMOTION.

The second question presented by the decision below 
is whether the Title VII prohibition against discrimination in 
promotions can be evaded by the simple expedient of 
denying black workers the training needed to qualify for 
promotion.

The circumstances of this case present a classic case 
of such a scheme to circumvent Title VII. Petitioner offered 
uncontradicted evidence that Ketter was responsible for 
providing to T-7 Apprentice Instrument Technicians the 
training required to promote to T-9 Instrument Technician. 
(See p. 6, supra). Both courts below recognized that Ketter 
had a long history of racial harassment of black workers. 
Petitioner also adduced direct evidence of statements by 
Ketter, and by petitioner’s regular supervisor, that they were 
determined to prevent any black worker from promoting into 
a T-9 position. Petitioner’s allegation that he was in fact 
denied needed training was also uncontradicted.

Both courts below dismissed this evidence as legally 
irrelevant. Candidly recognizing Ketter’s racial animus, the 
lower courts regarded as irrelevant Ketter’s training 
responsibilities, insisting his racism was unimportant so long 
as Ketter himself did not make the actual promotion 
decisions. (2a, 23a). The dispositive fact, the Fifth Circuit 
insisted, was that Bernard "did not pass the required test for 
promotion." (23a). To the Court of Appeals it was of no 
legal significance that petitioner alleged he was unable to 
pass that test precisely because Ketter refused to give him 
the needed training.



14

The three other circuits to address this issue have all 
held, contrary to the decision of the Fifth Circuit in this 
case, that Title VII prohibits an adverse employment action 
that is grounded on a discriminatory denial of training. In 
Wright v National Archives & Records Service, 609 F.2d 702 
(4th Cir. 1979) (en banc), the plaintiff claimed that he had 
been unlawfully denied the training necessary for promotion 
from a GS-5 position to a GS-9 position. Although the en 
banc court was divided as to whether the plaintiff had 
proven intentional racial discrimination in training, all 
members of the Fourth Circuit agreed that such proof would 
have entitled the plaintiff to relief for the ensuing promotion 
denial.

In Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (1st 
Cir. 1987), the plaintiff alleged that he had been unfairly 
denied pay raises because his job performance was adversely 
affected by the discriminatory denial of job training accorded 
to whites. 832 F.2d at 196-97. There, as alleged here, the 
individual responsible for providing the relevant training 
flatly refused to do so. The First Circuit upheld a finding of 
liability based in part on that discrimination. 832 F.2d at 
201-02:

The district court found that Anheuser-Busch 
had discriminated against Rowlett on the 
basis of race in the pay raises he received. 
He established ... that he received smaller 
raises than the white foremen received. 
Anheuser-Busch explained this ... as resulting 
from Rowlett’s evaluations. The district court 
found this reason to be ... intricately related 
to the denial of training. Rowlett had been 
criticized for his lack of skills .... Yet the 
court found that the lack of skills were



15

directly related to the discriminatorily denied 
training .... We find this reasoning persuasive

832 F.2d at 202.

Finally, in Long v. Ford Motor Company, 496 F.2d 500 
(6th Cir. 1974), the plaintiff, who had been dismissed for 
allegedly inadequate job performance, claimed that any such 
deficiencies were due to inadequate training by the 
employer. 496 F.2d at 502. The Sixth Circuit held that the 
plaintiff would be entitled to prevail if he could demonstrate 
that the denial of training was the result of intentional 
discrimination on the basis of race. 496 F2d at 505.

As a result of the decision below, the scope of the 
protections afforded by Title VII now vary according to the 
location of the employer. An employer in the Fifth Circuit 
can legally discriminate in promotions -- and, presumably in 
wages or discharges -  by intentionally denying needed 
training to minorities or women. In the First, Fourth and 
Sixth Circuits, on the other hand, such a scheme of 
intentional discrimination is a per se violation of federal law.

CONCLUSION

For the above reasons, a writ of certiorari should be 
granted to review the judgment and opinion of the Fifth 
Circuit Court of Appeals.

Respectfully submitted,

ELAINE R. JONES 
Director Counsel



THEODORE M. SHAW 
Associate Director Counsel 
CHARLES STEPHEN RALSTON 
JUDITH REED 
ERIC SCHNAPPER*
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner 
*Counsel of Record



No. 93-1651

IN THE
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF YTEXAS 
DALLAS DIVISION__________

CLEMENT BERNARD,

Plaintiff,

VS.

CITY OF DALLAS, CITY OF DALLAS WATER 
DEPARTMENT 

(Dallas Water Utilities),

Defendants.

MEMORANDUM OPINION AND ORDER 

Now before the Court is Defendant’s Motion For 

Summary Judgment, filed on February 6, 1992. Plaintiffs 

Response was filed on March 11, 1992.

I. UNDISPUTED FACTS

1. Plaintiff is a black male who began work on 

March 12, 1986 as an Apprentice Water Instrument 

Technician T-7 at the Southside Wastewater Treatment 

Plant’s Instrument Section ("SSWWTP") for the Dallas 

Water Utilities ("DWU”).



2a

2. On July 31, 1990, Plaintiff filed this lawsuit 

against Defendants City of Dallas and DWU alleging racial 

discrimination in training, racial harassment and retaliation 

under 42 U.S.C., §2000(e).

3. Harry B. Ketter was also an employee of 

DWU. He was a Water Instrumentation Technician T-9. 

At no time during Plaintiffs employment with DWU did 

Harry Ketter have the power to fire, promote or otherwise 

directly affect the plaintiffs employment

4. Plaintiff alleged racial discrimination and/or 

intimidation on January 23, 1989 in his first EEOC 

complaint (#310-89-0858), two years after he began working 

at SSWWTP. The EEOC determination on these charges 

found that there was no evidence that Plaintiff was denied 

proper training because of his race. The EEOC cause 

determination also concluded that the City of Dallas took 

remedial action once made aware of harassment by a fellow 

employee, and that no additional relief was necessary.

5. In October, 1988, Plaintiff verbally complained



3a

to Ted Kilpatrick, Southside Wastewater Treatment Plant 

(SSWWTP) Manager. The verbal complaint involved 

ongoing disagreements Plaintiff had with fellow employee 

Harry Ketter who had made derogatory statements 

concerning Plaintiffs race (black). Plaintiff further alleged 

Ketter had posted derogatory drawings and pictures on the 

walls of the Instrument Section work area. Ted Kilpatrick 

directed Don Perez, SSWWTP Assistant Manager, to 

investigate the incidents, and to monitor the employees of 

the Instrument Section for inappropriate activities. 

Approximately one week later, Don Perez reported to 

Kilpatrick that he had counseled with the parties, and each 

party was committed to going forward and working 

harmoniously. As plant manager, Kilpatrick also had a 

policy of maintaining the work place free of inappropriate 

literature. The investigation did find some pictures of a 

sexual and religious connotation and Mr. Kilpatrick ordered 

that they be removed immediately. On December 14, 1988, 

Kilpatrick met with Plaintiff to determine the status of the



4a

grievance. According to the Plaintiff, the concerns expressed 

in the complaints were resolved.

6. On or about December 22, 1988, Ted 

Kilpatrick held a counseling session with Plaintiff, Ketter 

and Don Pierce, who then was the supervisor of Plaintiff 

and Ketter. Kilpatrick again discussed his policy of 

maintaining the work place free of inappropriate literature 

and the responsibility of each employee to work 

cooperatively. Plaintiff and Ketter both pledged that they 

would work cooperatively in the work place. Also, on 

December 22, 1988, Ted Kilpatrick conducted a separate 

counseling session with Don Pierce concerning his 

responsibilities in overseeing the Instrumentation Group. 

Ted Kilpatrick directed Don Pierce to monitor the 

employees and document any misconduct.

7. On December 28,1988, Plaintiff again verbally 

complained with Ted Kilpatrick. Plaintiff alleged that the 

incidents of harassment by Harry Ketter were continuing. In 

response Ted Kilpatrick directed another investigation. On



5a

or about January 9, 1989, Kilpatrick ordered that the 

Instrument Section be reorganized and that the parties 

having conflicts in the work place be assigned to different 

areas of the plant, and not to work together. Kilpatrick also 

ordered that Harry Ketter not be left in charge as acting 

supervisor should the supervisor Don Pierce not be on duty. 

Plaintiff did not appeal Kilpatrick’s actions to his complaint.

8. Inspections for inappropriate literature and 

materials were continually conducted until September, 1989 

by Kilpatrick, Don Perez/SSWWTP Assistant Manager, Jesse 

Beard/SSWWTP Maintenance Supervisor and Kathryn 

Hedges/Dallas Water Utilities Personnel Representative.

9. Plaintiff alleged retaliation in violation of Title 

VII in his second EEOC complaint filed April 13, 1990. 

Plaintiff asserted that the retaliation occurred when he was 

denied a merit increase as a result of his yearly performance 

evaluation. The performance evaluation was received from 

Plaintiffs direct supervisor, Don Pierce, a white male. Don 

Pierce notified Plaintiff the year earlier that his performance



6a

would have to improve to get the Top Step merit increase. 

Don Pierce gave Plaintiff a satisfactory performance rating, 

however, he had also recommended that Plaintiff needed to 

perform at a higher rate in order to qualify for the top merit 

increase. Don Pierce did not deny the increase, but 

recommended another evaluation in six months.

As a standard procedure, all performance evaluations 

and recommendations of merit increases are reviewed by the 

section’s division manager, which in this case was Ted 

Kilpatrick, also a white male. After discussing with Plaintiff 

his concerns regarding his annual evaluation and merit 

increase recommendation, Division Manager Kilpatrick met 

with Plaintiffs immediate supervisor Don Pierce. In this 

meeting with Kilpatrick, Pierce reviewed his evaluation 

process and his recommendation that Plaintiff needed to be 

performing at a higher level to qualify for his top merit 

increase. Thereafter, as is standard practice for all 

employees, Kilpatrick reviewed P lain tiff’s merit 

recommendation and the information provided by Plaintiff



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and Pierce. Subsequently, Kilpatrick recommended that 

Plaintiff receive his merit raise.

10. Dallas Water Utilities Management had a 

policy of maintaining all work areas free of inappropriate 

literature. On or about December 9, 1988, Mr. Ted 

Kilpatrick/SSWWTP Plant Manager discovered several 

playboy-type magazines in Ketter’s desk area. Kilpatrick 

confiscated those magazines and verbally reprimanded 

Ketter for having inappropriate material in the work place. 

When questioned about the magazines, Ketter acknowledged 

he had read the magazines, but denied ownership. Ketter 

received a written reprimand for insubordination on March 

22, 1989.

11. After counseling sessions proved unsuccessful, 

Kilpatrick ordered the permanent transfer of Ketter from 

the Instrumentation Section in September, 1990.

12. On or about May 11, 1990, the EEOC issued 

a Right to Sue letter based on a second EEOC charge, No. 

310890858, filed against the City of Dallas Water



8a

Department by Plaintiff.

13. Plaintiff filed suit based on the Right to Sue 

Letter on July 31, 1990.

II. SUMMARY JUDGMENT REQUIREMENTS

Summary judgment is proper when the pleadings and 

evidence on file show that no genuine issue exists as to any 

material fact and that the moving party is entitled to 

judgment or partial judgment as a matter of law. See Fed. 

R. Civ. P. 56. As the Fifth Circuit stated in Christophersen 

v. Allied-Signal Corp., 902 F.2d 362, 364 (5th Cir. 1990), 

"[bjefore a court may grant summary judgment, the moving 

party must demonstrate that it is entitled to judgment as a 

matter of law because there is no actual dispute as to an 

essential element of the plaintiffs case."

Where the nonmovant bears the burden of proof at 

trial, the movant may discharge its burden by showing, that 

is, by pointing out to the court, that there is an absence of 

evidence to support the nonmovant’s case. Celotex Corp. v. 

Catrett, A ll  U.S. 317, 324 (1986). Where the nonmovant



9a

bears the burden of proof at trial, the movant is not required 

to produce evidence to negate the opponent’s claims. Lujan 

v. National Wildlife Fed’n, 497 U.S. 871, 110 S.Ct. 3177, 3187, 

111 L.Ed.2d 695 (1990). For that reason, there is no burden 

on the movant to support its motion with affidavits or other 

similar materials where the nonmovant will bear the burden 

of proof at trial. Celotex, 477 U.S. at 323. Rather, the 

movant need only demonstrate that the evidence which does 

exist does not "present a sufficient disagreement to require 

submission to a jury...." Anderson v. Liberty Lobby, Inc., A ll  

U.S. 242, 251-252, 106 S.Ct. 2505, 91 Led. 2d 202, 214 

(1986).

Federal Rule of Civil Procedure 56(e) prescribes

what form the non-movant’s response must take in order to

defeat a properly pled and supported motion for summary

judgment or partial summary judgment:

When a motion for summary judgment is made and 
supported as provided in this rule, an adverse party 
may not rest upon the mere allegations or denials of 
the adverse party’s pleading, but the adverse party’s 
response, by affidavits or as otherwise provided in 
this rule, must set forth specific facts showing that



10a

there is a genuine issue for trial. If the adverse part 
does not so respond, summary judgment, if 
appropriate, shall be entered against the adverse 
party. Fed.R.Civ.p. 56(e).

III. PLAINTIFF’S CAUSES OF ACTION

Plaintiff alleges three basic causes of action in his

complaint against Defendant:

(1) . Plaintiff claims he was discriminated against 

and discharged in violation of Title VII of the Civil Rights 

Act of 1964, as amended, 42 U.S.C. §2000e et seq. in 

retaliation for his filing of the initial EEOC charge.

(2) . Plaintiff claims that he suffered racial 

harassment in the workplace while employed by Defendant, 

in violation of Title VII of the Civil Rights Act of 1964, as 

amended, 42 U.S.C. §2000e et seq.

(3) Plaintiff claims racial discrimination against 

him by Defendant in job training and promotions in 

violation of Title VII of the Civil Rights Act of 1964, as 

amended, 42 U.S.C. §2000e et seq.

(3). Plaintiff seeks the following:

A. A declaratory judgment that the practices



11a

alleged in Plaintiffs Original Complaint are in violation of 

Title VII of the Civil Rights Act of 1964, as amended, 42 

U.S.C. §2000e et seq.

B. An injunction prohibiting Defendant from

engaging in the aforesaid practices.

C. An injunction prohibiting Defendant from

engaging in racial discrimination.

D. An injunction prohibiting Defendant from

engaging in retaliation for the exercise of protected rights.

E. Damages in the form of wages and other 

benefits he would have received but for Defendant’s 

discrimination, including promotion to a position that he is 

qualified to hold, and in a department where he will not 

have to work with or be supervised by those individuals who 

have discriminated against Plaintiff, and pre-judgment and 

post-judgment interest.

F. An award to Plaintiff of costs and attorneys’

fees



12a

IV. DEFENDANTS MOTION FOR SUMMARY 
JUDGMENT

A DISPARATE TREATMENT THEORY  
ARGUMENTS

Defendant asserts that Plaintiff cannot recover under 

a disparate treatment theory because Plaintiff cannot meet 

the burden of proof for such cases established by the 

Supreme Court in McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). In McDonnell, Id., the Supreme Court 

required that a plaintiff can recover against an employer 

under a disparate treatment theory only by making a prima 

facie showing that (1) he is a member of a protected group;

(2) he is qualified for the job to which he sought promotion;

(3) he was denied promotion; and, (4) after his denial of a 

promotion, others who are not members of the protected 

class were promoted into those positions.

If a prima facie case is made by a plaintiff, then 

under McDonnell the employer must articulate a legitimate 

nondiscriminatory reason for its action.



13a

If a legitimate nondiscriminatory reason is articulated 

by the employer, then McDonnell requires the plaintiff to 

show by a preponderance of the evidence that the 

employer’s reason is merely pretextual.

Defendant argues that Plaintiff has not made a prima 

facie case of disparate treatment. Defendant contends that 

Plaintiff had every opportunity to train for and compete for 

promotions within his department, that in fact he passed the 

T-9 Mechanic Technician Test with the help of a white 

supervisor, after failing the examination several times. 

Plaintiff has not shown, Defendant argues, where similarly 

situated white employees were provided training to qualify 

for promotions, while black employees like himself were not.

B. H O S T I L E  W O R K  E N V I R O N M E N T  

ARGUMENTS

Defendant argues that Plaintiff also cannot prevail 

under a Title VII hostile work environment action because 

to do so requires that Plaintiff must prove that the work 

environment is "so heavily polluted with discrimination as to



14a

destroy completely the emotional and psychological stability 

of minority group workers...." Rogers v. Equal Employment 

Opportunity Commission, 454 F.2d 234 (5th Cir. 1971).

First, Defendant contends that the primary 

contributor to work pollution in Plaintiffs work 

environment, Harry Ketter, was in no position to affect 

adversely Plaintiff because Ketter was not Plaintiffs 

supervisor.

Second, Defendant argues that Plaintiff and Ketter 

voluntarily engaged in acrimonious conversations with each 

other about various racial, religious, and sexual issues.

Third, Ketter’s use of racial epithets alone do not rise 

to the level of work environment pollution that would violate 

Title VII.

Fourth, the behavior of Ketter was not the norm in 

the workplace.

And his activities were not condoned by his 

supervisors. And, fifth, the racist paraphernalia generated 

and distributed by Ketter was limited and not pervasive in



15a

the work environment.

Defendant also argues that management at the Dallas 

Water Department took an active role in curtaining the 

activities of Ketter, and eventually transferred him out of 

Plaintiffs work area when he proved uncontrite and 

persisted in his disruptive and antagonistic behavior.

C. RETALIATION THEORY ARGUMENTS

Defendant argues that Plaintiff cannot prevail under 

his retaliatory action theory under 42 U.S.C. §2000(e) 

because he cannot meet the burden of proof to maintain 

such an action: (1) that he was engaged in a protected 

activity; (2) that an adverse employment action occurred; 

and (3) that there is a causal connection between the 

protected activity and the adverse employment decision. 

Jones v. Flagship Intemat’l, 793 F.2d at 714, 724 (5th Cir. 

1986).

Defendant contends that Plaintiff fails the second 

prong of the test because he has not established that his 

performance evaluations and timely merit increase in salary



16a

on March 12,1990 constitute an adverse employment action.

V. PLAINTIFF’S RESPONSE

Plaintiffs Response to Defendant’s Summary 

Judgment Motion consists of four affidavits, all of which are 

from fellow co-workers who discussed their recollection of 

the many transgressions in the work place of Harry Ketter.

VI. DISCUSSION

The Court finds persuasive Defendant’s arguments 

refuting Plaintiffs disparate treatment claim. Plaintiff has 

not established a prima facie case of disparate treatment with 

respect to promotions. A summary judgment ruling in favor 

of Defendant on the disparate treatment claim is justified.

The Court finds persuasive Defendant’s arguments 

refuting Plaintiffs hostile work environment theory. Harry 

Ketter’s behavior in the workplace, gleaned from affidavits, 

depositions and exhibits submitted by Plaintiff and 

Defendant, was indeed unconscionable. But the Court finds

that Plaintiff has not met the standard for a hostile work



17a

environment set forth in Rogers, supra. While in retrospect 

it may appear that Ketter’s supervisors should have taken 

decisive action against Ketter in a more expeditious manner, 

they cannot be faulted for taking the course they followed. 

Ketter was afforded every opportunity to improve his 

behavior. After Plaintiff advised Ketter’s supervisors of 

Ketter’s disruptive and antagonistic activities, they began to 

monitor Ketter’s activities and warned or reprimanded 

Ketter when he transgressed. It was only after Ketter 

proved unwilling to conform his behavior to the standards of 

the workplace was he transferred out of Plaintiffs work area. 

While Ketter’s behavior in the workplace is indefensible, 

there is nothing inherently unlawful or inequitable about the 

even handed and judicious treatment accorded Ketter by his 

supervisors at DWU.

Furthermore, the very fact that Ketter was 

indiscriminate in his antagonistic remarks and activities 

mitigates against a finding that there exists a hostile work 

environment within the meaning of Rogers. Ketter did not



18a

focus exclusively on Plaintiff. Rather, as the affidavits 

Plaintiff cites in his Response attest, Ketter harassed all his 

section co-workers equally. See Vaughn v. Pool Offshore Co., 

Etc., 683 F.2d 922 (1982).

The Court finds persuasive Defendant’s argument 

countering Plaintiffs retaliation theory claims. Plaintiff does 

indeed fail to meet the second prong of the three prong test 

set forth in Jones, Id. He has not shown that an adverse 

employment action occurred as a result of his engaging in a 

protected activity, to wit: filing a complaint with the EEOC. 

Consequently, Plaintiff also fails to meet the third prong of 

the Jones test. A Summary judgment ruling in favor of 

Defendant on Plaintiffs retaliation theory is therefore 

justified.

C. RULING

Having considered the law and the evidence, the 

Court GRANTS Defendant’s Motion For Summary 

Judgment in all respects.

SO ORDERED.



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Signed this 23rd day of June, 1993

_____________ S/S______________
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE



20a

3:90-CV-1783-P

IN THE
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF YTEXAS 
DALLAS DIVISION 

Filed July 23

CLEMENT BERNARD,

Plaintiff,

CITY OF DALLAS, CITY OF DALLAS WATER 
DEPARTMENT 

(Dallas Water Utilities),

Defendants.

FINAL JUDGMENT

By Memorandum Opinion and Order of this date, the 

Court has granted Defendants’ Motion for Summary 

Judgment.

It is ORDERED AND ADJUDGED that Plaintiff, 

CLEMENT BERNARD, take nothing, and that the action 

be dismissed with prejudice.

It is further ORDERED AND ADJUDGED that all



21a

relief not specifically granted herein is denied.

Signed this 23rd day of June, 1993

_____________ S/S______________
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE



22a

Filed Apr. 07, 1994

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 93-1651 
Summary Calenndar

CLEMENT BERNARD, 

Plaintiff-Appellants,

vs.

CITY OF DALLAS AND CITY OF DALLAS WATER 
DEPARTMENT 

(Dallas Water Utilities),

Defendants-Appeliees.

On Appeal from the United States District Court 
for the Northern District of Texas 

3:90-CV-1783-P

Before DAVIS, JONES, and DUHE, Circuit Judges.* 

PER CURIAM:

"Local Rule 47.5 provides: "The publication of 
opinions that have no precedential value and merely decide 
particular cases on the basis of well-settled principles of law 
imposes needless expense on the public and burdens on the 
legal profession." Pursuant to that Rule, the Court has 
determined that this opinion should not be published.



23a

On appeal from the trial court’s grant of summary 

judgment against his claim of racial discrimination in 

employment, appellant Bernard raises two issues. He 

contends there were genuine issues of material fact 

regarding whether the City of Dallas water department in 

which he works was charged by a racially hostile 

environment and whether he was denied a promotion 

because of discrimination.

Although our analysis differs somewhat from that of 

the district court, we affirm the grant of summary judgment.

1. The promotion claim.

Bernard asserts that he was discriminated against in 

his attempts to be promoted to the rank of T-9 Instrument 

Technician, but he did not present sufficient admissible 

evidence that this was based on racial animus. Harry Ketter, 

a coworker, could not directly influence this decision. 

Further, Bernard did not pass the required test for 

promotion. He was, however, promoted to T-9 Mechanic 

Technician. He did not bring forth enough evidence to



24a

create a genuine fact issue concerning this claim.

2. The hostile environment claim.

We disagree with the district court’s conclusion that 

Bernard did not produce sufficient evidence of a racially 

hostile working environment. His coworker Ketter, who 

substituted as supervisor occasionally, engaged in racially 

insulting conduct and displayed materials derogatory of 

blacks (and religion) in the workplace. This activity 

apparently went on for some time, but management did not 

take action to stop it until Bernard complained in October, 

1988. At that time, management began regularly to enforce 

its policy of preventing displays of offensive material. 

Management also counseled regularly with Bernard and 

Ketter in order to stem Ketter’s offensive conduct and insure 

that everyone could work together. In January, 1989 Ketter 

was transferred to another part of the plant where he would 

not encounter Bernard. Later, Ketter was permanently 

transferred.

While the circumstances, including Bernard’s



25a

summary judgment affidavits of coworkers, suggest that a 

racially hostile working environment may have existed, they 

also demonstrate that the managers of the water plant took 

prompt remedial action when informed that Bernard found 

Ketter’s conduct offensive. Within three months of 

Bernard’s first complaint, Ketter was transferred to another 

part of the plant. During that interval, management 

counseled Ketter on several occasions to shape up.

Management’s handling of this situation after 

Bernard complained never suggested that Ketter’s offensive 

conduct was tolerated or excusable, nor did management 

ever advise Bernard to ignore Ketter’s behavior. Bernard’s 

summary judgment evidence did not contest the facts 

concerning the city’s handling of Ketter’s misbehavior. The 

city’s uncontroverted actions constituted a prompt remedial 

response to Bernard’s complaints.

Because there was no genuine issue of material fact 

raised in the foregoing particulars, the district court’s 

judgment is AFFIRMED.