IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. JOSEPH A. GOODEN,
Plaintiff, v. TIMPTE, INC., HAROLD CRABTREE, and Does 1 through 10,
Defendants.
COMPLAINT
Plaintiff Joseph Gooden, by and through his attorneys Fox & Robertson, P.C., hereby submits this Complaint for racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, intentional infliction of emotional distress and ethnic intimidation.
JURISDICTION 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. 2. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
PARTIES 3. Plaintiff Joseph Gooden is an African-American citizen and was at all times material hereto a resident of the State of Colorado.

4. Defendant Timpte, Inc. (“Timpte”) is a company that manufactures truck and van bodies and truck trailers. Timpte has a manufacturing plant in Commerce City, Colorado. It is incorporated in the State of Delaware and registered to do business in Colorado. Its principal places of business are Council Bluffs, Iowa and Commerce City, Colorado.
5. Defendant Harold Crabtree is a supervisor at Timpte. On information and belief, Defendant Crabtree is a resident of the State of Colorado.
6. Defendants Does 1 through 10 are employees, supervisors and/or managers of Timpte whose identity is unknown to Plaintiff at this time.
GENERAL ALLEGATIONS 7. Plaintiff Joseph Gooden was hired as an employee at Timpte’s Commerce City plant in April 1998. He was the only African-American employee in a plant with at least 65 employees. From the start of his employment at Timpte, Mr. Gooden experienced subtle discrimination in the form of being shunned by many of his co-workers. This continued throughout his employment at Timpte. 8. This subtle discrimination soon became quite blatant. Shortly after he began working at Timpte, Mr. Gooden found out that another employee referred to Mr. Gooden as a “nigger.” Despite the fact that this slur was made in the presence of a Timpte supervisor, Defendant Harold Crabtree, the employee who made the statement was not disciplined. 9. In July 1998, Defendant Crabtree -- anticipating and apparently condoning the appalling discrimination to come -- told Mr. Gooden that if he saw a noose around the shop he
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should not worry, that it would merely be a “joke” arising from the O.J. Simpson trial. Defendant Crabtree also said that there had been nooses in the shop in the past.
10. Also in July, Mr. Gooden discovered that another co-worker had referred to him as a “nigger” and that this slur had been voiced in Defendant Crabtree’s presence. Mr. Gooden discussed the incident with the President and the Human Resources Director at Timpte. Despite reassurances made to Mr. Gooden that they would deal with the situation, the employee who made the racial slur was not terminated and received only minor, if any, discipline.
11. On August 7, 1998, Mr. Gooden arrived at work and opened the cabinet where his tools and other belongings were kept. Inside he found a black doll with a noose around its neck hanging from the top of the cabinet. Finding a depiction of an African American being lynched appalled, distressed and frightened Mr. Gooden. Faced with a workplace in which he was the only African American employee, in which he had been the target of racial slurs, and in which his supervisors and managers did not nothing to stop the discrimination, Mr. Gooden feared for his personal safety.
12. On information and belief, the noose and doll were placed in Mr. Gooden’s locker by Timpte employees, supervisors and/or managers whose identity is unknown to Mr. Gooden. These individuals are designated herein as Does 1 through 10.
13. Mr. Gooden often witnessed other Timpte workers using offensive ethnic epithets in reference to and to the face of Latino co-workers. Such epithets were often used in the presence of Timpte supervisors and managers. Such supervisors and managers tolerated, approved of, and condoned the racially and ethnically hostile workplace.
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14. The conduct described herein created intolerable working conditions for Mr. Gooden. The racial harassment and intimidation were sufficiently severe and/or pervasive that they altered the terms, conditions and/or privileges of his employment. Mr. Gooden felt demeaned and humiliated by the environment of racial intolerance and abuse and felt fear for his personal safety in reaction to the mention and eventual appearance of a noose. A reasonable person in Mr. Gooden’s position would likewise feel demeaned, humiliated and frightened by the conduct he encountered.
15. The events described above had the effect of unreasonably interfering with Mr. Gooden’s work performance and of creating an intimidating, hostile, and offensive working environment.
16. Upon discovery of the noose in his locker, Mr. Gooden quit his position with Defendant Timpte. Based on the conduct described herein, this separation constituted a constructive discharge.
17. On information and belief, Timpte and its agents and/or its supervisory and management-level employees (including but not limited to Defendant Crabtree) knew of incidents of racial and ethnic harassment, hostility and slurs in the workplace including but not limited to those directed toward or concerning Mr. Gooden.
18. Defendant Timpte and its agents and/or supervisory and management-level employees (including but not limited to Defendant Crabtree) knew or should have known of the events described above and other incidents of racial and ethnic harassment, hostility and slurs and took no corrective action.
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19. Defendant Timpte was negligent and/or reckless in its failure to take appropriate action to remedy or prevent the hostile or offensive work environment of which its supervisory and management- level employees (including but not limited to Defendant Crabtree) knew, or in the exercise of reasonable care should have known.
20. Defendant Timpte reasonably could have foreseen that Mr. Gooden would encounter racial harassment and hostility in its workplace.
21. Defendant Timpte did not have an effective policy barring and/or remedying racial harassment. It did not provide preventive or corrective opportunities of which Mr. Gooden might have taken advantage.
22. Although Mr. Gooden reported the use of racial epithets to Timpte’s human resources department and although Defendant Crabtree explicitly stated that he was aware of the existence of a noose and the possibility that Mr. Gooden would be offended by its presence, neither Timpte nor Crabtree took any or sufficient action to punish the harassers and/or prevent further harassment. Defendants Timpte and Crabtree failed to exercise reasonable care to prevent and failed to correct promptly the racially hostile environment at the Commerce City plant.
23. Defendants Timpte and Crabtree approved, sanctioned, ratified and/or cooperated with the conduct described herein.
24. The conduct described herein was directed at Mr. Gooden based on his race. 25. Defendants Timpte, Crabtree and Does 1 through 10 acted maliciously, with evil motive or intent, and/or with reckless or callous indifference to Mr. Gooden’s federally protected rights.
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26. Mr. Gooden suffered injuries as a result of Defendants’ conduct including, but not limited to, loss of backpay, front pay, benefits and other compensation, loss of self-esteem, severe emotional distress, humiliation, embarrassment, anguish and fear.
27. On or about August 18, 1998, Mr. Gooden timely filed a charge of discrimination with the Colorado Civil Rights Division. A copy of this charge is attached hereto as Exhibit 1. On or about March 15, 1999, Mr. Gooden received a Notice of Right to Sue from the Equal Employment Opportunity Commission. A copy of this letter is attached hereto as Exhibit 2. Mr. Gooden has thus satisfied all conditions precedent to filing this suit under Title VII of the Civil Rights Act of 1964.
Count I: Violation of Title VII of the Civil Rights Act of 1964 (Against Defendant Timpte)
28. Plaintiff realleges and incorporates by reference the allegations set forth in paragraphs 1 - 27 above as if fully set forth herein.
29. Based on the facts set forth above, Defendant Timpte discriminated against Mr. Gooden on the basis of his race by causing his constructive discharge and with respect to the terms, conditions, and/or privileges of Mr. Gooden’s employment, in violation of 42 U.S.C. § 2000e et. seq.
30. Mr. Gooden was injured by Defendant Timpte’s discrimination as more fully set forth above.
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Count II: Violation of 42 U.S.C. § 1981 (Against all Defendants)
31. Plaintiff realleges and incorporates by reference the allegations set forth in paragraphs 1 - 30 above as if fully set forth herein.
32. Through the acts described above, Defendants intentionally interfered with Mr. Gooden’s right to make and enforce contracts as defined in 42 U.S.C. § 1981 and/or intentionally caused an infringement of Mr. Gooden’s rights under that statute.
33. Defendants’ conduct violated Mr. Gooden’s rights under 42 U.S.C. § 1981. 34. Mr. Gooden was injured by Defendants’ violation of 42 U.S.C. § 1981 as more fully set forth above.
Count III: Ethnic Intimidation (Against all Defendants)
35. Plaintiff realleges and incorporates by reference the allegations set forth in paragraphs 1 - 34 above as if fully set forth herein.
36. Defendants, by the words and conduct described herein, knowingly placed Mr. Gooden in fear of imminent lawless action directed at him and knew or should have known that such words or conduct were likely to produce bodily injury to Mr. Gooden.
37. Defendants engaged in the words and conduct described herein with the intent to intimidate or harass Mr. Gooden because of his race.
38. Defendants acted in violation of C.R.S. §§ 18-2-121(2) and 13-21-106.5. 39. Mr. Gooden was injured by Defendants’ ethnic intimidation as more fully set forth above.
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Count IV: Intentional Infliction of Emotional Distress (Against Defendants Does 1 through 10)
40. Plaintiff realleges and incorporates by reference the allegations set forth in paragraphs 1 - 39 above as if fully set forth herein.
41. The conduct described herein constitutes extreme and/or outrageous conduct. 42. Defendants Does 1 through 10 engaged in the conduct described above recklessly or with the intent of causing Mr. Gooden severe emotional distress. 43. The conduct described above caused Mr. Gooden severe emotional distress and other injuries as more fully set forth above.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays: 1. That this Court assume jurisdiction; 2. That this Court declare the actions of Defendant Timpte described herein to be in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and C.R.S. §§ 18-2121(2) and 13-21-106.5. 3. That this Court declare the actions of Defendant Crabtree described herein to be in violation of 42 U.S.C. § 1981 and C.R.S. §§ 18-2-121(2) and 13-21-106.5. 4. That this Court declare the actions of Defendants Does 1 through 10 described herein to be in violation of 42 U.S.C. § 1981 and C.R.S. §§ 18-2-121(2) and 13-21-106.5 and to constitute intentional infliction of emotional distress;
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5. That this Court award Mr. Gooden damages for backpay, front pay, benefits and other compensation in an amount to be proved at trial;
6. That this Court award Mr. Gooden compensatory damages in an amount to be proved at trial;
7. That this Court award Mr. Gooden exemplary and punitive damages for Defendants’ intentional, malicious and reckless conduct, such damages to be in an amount commensurate with each Defendant’s ability to pay and sufficient to deter future illegal conduct;
8. That this Court award Mr. Gooden his reasonable attorneys’ fees and costs; and 9. That this Court award such additional or alternative relief as may be just, proper and equitable. JURY DEMAND: Plaintiff demands a jury on all issues which can be heard by a jury.
Respectfully submitted, FOX & ROBERTSON, P.C.

Dated: April 22, 1999
Address of Plaintiff:
2180 91st Avenue, Thornton, Colorado, 80229.

Timothy P. Fox Amy F. Robertson 1675 Larimer Street, Suite 610 Denver, CO 80202 (303) 595-9700 Attorneys for Plaintiff
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-N-795 JOSEPH A. GOODEN,
Plaintiff, v. TIMPTE, INC.,
Defendant.
BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Joseph A. Gooden, by and through his counsel, Fox & Robertson, P.C., hereby submits this brief in support of his motion for partial summary judgment as to liability on his claims pursuant to 42 U.S.C. §§ 1981 and 2000e- 2(a)(1) for racial harassment.
Introduction Joseph A. Gooden worked at Timpte, Inc.’s Commerce City facility from April to August, 1998. For most of that time, he was the only African-American employee in a plant with over 65 employees; for the last month, he was one of two. It is undisputed that when he came to work on August 7, 1998 he discovered a naked Black doll with a noose around its neck hanging from the top of his tool cabinet – depicting the lynching of a Black man. Mr. Gooden is entitled to partial summary judgment against Timpte as to liability for racial harassment because: ! The discovery of a Black doll with a noose around its neck, standing alone, is
sufficient to create an actionable hostile environment; and

! Timpte knew or should have known of this hostile environment and did not take sufficient measures to prevent it: although its supervisors were aware of and even used racist language at Timpte and were aware that swastikas and nooses had previously been displayed there, Timpte had no racial harassment policy and conducted no training on the subject of harassment of any kind. Statement of Undisputed Material Facts
1. Joseph Gooden, an African-American, was hired by Timpte, Inc. (“Timpte”) in April 1998 as a mechanic/welder at Timpte’s Commerce City facility. Response to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents to Defendant Timpte, Inc. (Timpte Resp. to Igs.) No. 1 & Ex. 1 at 4 (Appx. Tab 12). Timpte builds truck bodies at this facility. In October, 1999, Timpte sold its Commerce City facility to Truck Parts, Inc. Manley Depo. at 35/13-19; 61/4-15 (Appx. Tab 1).
2. Gary Manley was the General Manager of Timpte’s Commerce City facility from 1987 to the October, 1999, sale. Id. at 30/8-14. Lynda Smittkamp was the Human Resource Manager at Timpte’s Commerce City facility. Timpte Resp. to Ig. No. 7.
3. Ryan Cofer and John Condon were managers at Timpte’s Commerce City facility. Manley Depo. at 65/1-4. Mr. Cofer had been a manager since 1995, in charge of all mechanics and welders. Cofer Depo. at 11/8-14 (Appx. Tab 2). Harold Crabtree was the supervisor of the welders and mechanics at Timpte’s Commerce City facility, a position he assumed in 1996. Crabtree Depo. at 13/5-20 (Appx. Tab 3). He reported to Mr. Cofer. Manley Depo. Ex. 13. As such, Mr. Cofer and Mr. Crabtree were Mr. Gooden’s supervisors when he worked at Timpte. Mr. Condon had been a manager at Timpte since 1965. Condon Depo. at 8/19 - 10/10 (Appx. Tab 5). James Wellbrock was a supervisor who reported to Mr. Condon. Id. at 10/2-6.
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4. In its interrogatory responses, Timpte admitted that “in the past, some [of its] employees used the term ‘beaner beater’ to refer to a particular tool, and used the terms ‘niggerrigged’ and ‘afro-engineered’ to refer to a jerry-built project.” Timpte Resp. to Ig. No. 12.
5. Manager Ryan Cofer heard the terms “nigger-rigged,” “beaner beater” and “afroengineered” as well as other slang words for race, for example “beaner” and “white trash,” and for nationality and religion while at Timpte. Cofer Depo. at 18/15-20, 21/11-16; 22/10-12; 23/35. He “might” have used the term “nigger-rigged” himself. Id. at 20/15-19. While he heard these terms more when he was a mechanic, he had no reason to believe the use of these terms changed after he became a supervisor. Id. at 19/25 - 20/9; 22/22 - 23/2. He has never told anyone at Timpte those words were unacceptable. Id. at 20/10-14.
6. Manager John Condon has heard approximately five racial jokes in the past five years at Timpte, but never told Timpte employees not to tell them. Condon Depo. at 50/17 51/15.
7. Supervisor Harold Crabtree admitted in his interrogatory responses to having heard and used the terms “beaner beater,” “afro-engineered,” and “nigger-rigged.” Response to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents to Defendant Harold Crabtree (Crabtree Resp. to Ig.) No. 8 (Appx Tab. 13). In his deposition, he admitted to using the first two terms but denied the last. Crabtree Depo. at 30/7-10; 33/22 - 34/9. Mr. Crabtree explained that “afro-engineered” meant “substandard workmanship,” id. at 34/10-11, and that while “beaner beater” was used to refer to a block of wood used as a tool, the term “signifies something that you would use to hit someone of Hispanic descent.” Id. at 30/7 -
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31/13. He admitted that “beaner beater” was the term that was generally used to refer to that particular tool. Id. at 31/25 - 32/2. Mr. Crabtree does not consider that term to be a slur because “[i]t wasn’t offensive to anyone,” which he says he knows because “[n]o one complained.” Id. at 33/5-10. Mr. Crabtree never told anyone not to use the term. Id. at 33/19-21.
8. David Bowland worked in the shop at Timpte from approximately 1996 to 1999. Bowland Depo. at 7/3-6 (Appx. Tab 8). During that time, he heard the word “nigger” used at Timpte “a couple thousand [times], easy,” that is, “a couple times a day on average.” Id. at 15/14 - 16/11. He used the word “nigger” himself many times, including in reference to fellow employees. Id. at 38/25 - 39/22. He heard the phrase “nigger-rig” at Timpte “quite a bit;” it was “a common statement around there,” used more than the word “nigger” alone. Id. at 67/14-22. No one in Timpte management ever told him that racial slurs or comments were inappropriate at Timpte. Id. at 13/7-10.
9. Jeffrey Fenstemaker worked in the shop at Timpte from 1993 to 1998. Fenstemaker Depo. at 7/15 - 8/5 (Appx. Tab 9). During that time, he heard the phrase “niggerrigged” at Timpte “all the time.” Id. at 95/15-16. He himself used the term, which he understood was “ a phrase used for substandard work.” Id. at 99/3-14. No one in Timpte management ever instructed him not to use racial slurs. Id. at 22/11-15.
10. Boyd Lusinger worked in the shop at Timpte from 1993 to 1998. During that time, he heard the word “nigger” used at Timpte about 10 times, mostly in the 1997 to 1998 time period. Lusinger Depo. at 39/24 - 40/25 (Appx. Tab 10). He heard the word “nigger-rigged” used at Timpte about 20 times, mainly toward the end of his time there. Id. at 58/2-8. He heard
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the word “spic” used at Timpte about 20 times. Id. at 52/16-23. He heard the word “beaner” about 20 times; the phrase “beaner beater” he heard “too many” times. Id. at 53/6-24. Timpte did not provide any formal training concerning racial harassment or the use of racial slurs or distribute any information that suggested that racial or ethnic slurs were inappropriate. Id. at 14/23 - 15/5.
11. Manager Ryan Cofer has observed swastikas drawn as graffiti in the men’s bathroom at Timpte, and stated that these symbols have “been in and out of [the bathroom] for years.” Cofer Depo. at 43/3 - 44/4. The most recent time he observed swastikas in the bathroom was over a year but less than two years prior to his deposition in October 1999. Id. at 44/5-9. He concedes that Timpte management has never discussed the swastikas with the workers. Id. at 44/10-14.
12. Supervisor Jim Wellbrock observed a noose hanging in the Timpte plant in approximately 1996. It consisted of a six-foot rope hanging from the ceiling of the woodshed, a building attached to the main plant that is used by “a lot of people.” Wellbrock Depo. at 26/20 27/15; 28/22-24 (Appx. Tab 6). Mr. Wellbrock told manager John Condon about it. Condon Depo. at 36/25 - 37/9. Mr. Condon spoke with three or four employees about it but did not point out the possible racial overtones of the noose. Id. at 40/10-13, 46/1-4. Neither Mr. Wellbrock nor Mr. Condon reported the incident to Mr. Manley or Ms. Smittkamp. Id. at 40/14-22; Wellbrock Depo. at 30/9-14.
13. Supervisor Harold Crabtree brought a noose to work at Timpte sometime in 1994 or 1995 – during the trial of O.J. Simpson. Crabtree Depo. at 43/17. This was prior to the time
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Mr. Crabtree was a supervisor. The noose was called “the O.J. Simpson Ribbon for Justice.” Id. at 41/25 - 42/3; Crabtree Resp. to Ig. No. 7, and was “intended to symbolize dissatisfaction with the result of the trial of O.J. Simpson for the deaths of Nicole Brown Simpson and Ron Goldman.” Crabtree Resp. to Ig. No. 9. The O.J. Simpson Ribbon for Justice was “a piece of string about eight inches long that resembled a noose, that was tied in a loop on the end.” Crabtree Depo. at 43/11-13. Mr. Crabtree tied it to his clipboard at work “[t]o symbolize justice for O.J. ribbon, to display it.” Id. at 45/20-21.
14. Although he was unaware of the “Justice for O.J.” noose at the time Mr. Crabtree brought it to Timpte, General Manager Gary Manley did not find the “notion of a justice for O.J. ribbon in the form of a noose to be offensive,” Manley Depo. at 110/10-12, and testified that it could be “appropriate to display your opinion on the trial of a black man through the display of a noose.” Id. at 111/6-21.
15. Despite this history of racial slurs and racist symbols, Timpte has only disciplined an employee for the use of a racial slur on one occasion – at the explicit request of Plaintiff Joseph Gooden in July, 1998. Timpte Resp. to Ig. 11.
16. Timpte did not have a racial harassment policy in effect during Mr. Gooden’s employment with that company. The only anti-harassment policy that was in effect during that time was a two-page “Sexual Harassment Policy” dated August 25, 1993. Manley Depo. at 138/2-14 and Ex. 15. The policy that was in effect prior to 1993 was a one-page memo on sexual harassment dated June 17, 1987. Timpte Resp. to Ig. 13 (referring to Bates No. TII000154, included in Appx. Tab 12).
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17. Although Timpte apparently now claims that the Sexual Harassment Policy covers racial harassment as well, General Manager Gary Manley conceded that the Sexual Harassment Policy did not “define[ ] or give[ ] examples of racial harassment.” Manley Depo. at 141/7-10; see also Crabtree Depo. at 78/20-23. It does not refer to slurs directed at race or jokes directed at race. Manley Depo. at 142/17-24. Mr. Crabtree could not think of anything that was “posted or in writing that . . . made specific reference to slurs.” Crabtree Depo. at 72/1-2. And Human Resources Director Lynda Smittkamp conceded that race harassment is not clearly covered by Timpte’s Sexual Harassment Policy. Smittkamp Depo. at 124/13-24.
18. Mr. Manley also claimed that Timpte’s general rules and regulations addressed racial harassment but conceded that there was no explicit reference to racial harassment or racial slurs in that document. Manley Depo. at 171/8-16 and Ex. 21.
19. Although Timpte representatives also pointed to the collective bargaining agreement with the United Auto Workers as an anti-harassment policy, the language they relied on was a generic prohibition on discrimination, with no mention of harassment except on the basis of membership and participation in the union. Manley Depo. at 168-69 and Ex. 18 (collective bargaining agreement) at 24; see also Crabtree Depo. at 82/22 - 83/1; 83/18 - 84/7.
20. Timpte admitted in its responses to interrogatories that the only steps it took to prevent the noose and doll incident – that is, steps taken prior to that incident – were the distribution and posting of the Sexual Harassment Policy, the earlier one-page sexual harassment memo, the collective bargaining agreement and the verbal reprimand of a single employee for a single racial epithet. Timpte Resp. to Ig. 14 (incorporating by reference its Resp. to Igs. 11 and
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13). None of the documents it relies on explicitly prohibit, refer to, describe or provide examples of racial harassment. See supra ¶¶ 17-19. Mr. Manley testified that the steps Timpte had taken to prevent noose and doll incident included those policies and the fact that “it’s our culture.” Manley Depo. at 136/23 - 137/21.
21. Timpte did not hire anyone to conduct training on harassment of any kind. Manley Depo. at 171/21 - 172/5; Smittkamp Depo. at 62/20 - 63/2.
22. Managers Ryan Cofer and Supervisor Harold Crabtree never received any training on harassment or discrimination. Cofer Depo. at 7/22 - 10/25; Crabtree Depo. at 74/9-12 and Crabtree Resp. to Ig. 10.
23. Prior to the incident described in paragraphs 30 through 32 below, Mr. Manley does not recall that he had ever “specifically told any Timpte employee that racial slurs were unacceptable at Timpte.” Manley Depo. at 143/14-17.
24. Although Supervisor Harold Crabtree had, himself, brought a noose onto Timpte premises and had, in the summer of 1998, become aware that a noose could be offensive to African-Americans, he never told the men working for him that nooses “could have the possibility of being offensive” or “would be unacceptable on the premises at Timpte.” Crabtree Depo. at 52/20 - 53/11.
25. At the time he was hired in April, 1998, Mr. Gooden was the only African American among the approximately 65 employees at Timpte’s Commerce City facility. Respondent’s Position Statement to the Colorado Civil Rights Division (“Pos. Stmt.”) at 1-2 (Appx. Tab 14). That remained the case for three months until July 16, 1999, when one other
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African-American individual was hired on a contract basis. Id. at 2. As such, on August 7, 1999, Mr. Gooden was one of two African-American workers in a facility that employed approximately 65 people. Timpte Resp. to Igs. Ex. 1.
26. During the years 1995 to 1999, four out of 257 or approximately 1.6% of Timpte’s employees were African-American. Timpte Resp. to Ig 1 and Ex. 1. There had been no other African-American employee at Timpte in almost three years prior to Mr. Gooden’s hire. Id. at 4, 8-9. Timpte has never had an African-American supervisor at its Commerce City facility. Manley Depo. at 84/6-8. Timpte has never had an African-American salesman at its Commerce City facility, a position that General Manager Gary Manley calls a “more visible position.” Id. at 37/17 - 39/3.
27. After Mr. Gooden had worked at Timpte for several months, his supervisor, Harold Crabtree approached him and told him about the noose that Mr. Crabtree had brought to work several years before. He told Mr. Gooden that he had had a noose at Timpte, that it was a “justice for O.J. ribbon,” and that he was looking for it but could not find it. Mr. Crabtree told Mr. Gooden that, if he found it first, “I’d appreciate it if it didn’t offend him.” Crabtree Depo. at 50/11 - 51/10.
28. Mr. Gooden recalls Mr. Crabtree discussing both of the earlier nooses – not just the “Justice for O.J.” noose – and found the discussion threatening because it suggested “that it was repetitive, that this happened in the past more than once.” Gooden Depo. at 33/21-22 (Appx. Tab 11).
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29. At some point during Mr. Gooden’s four months at Timpte, co-worker David Rodriguez told him that another co-worker by the name of Mickey Ford had used the word “nigger” to refer to him (Mr. Gooden). Specifically, Mr. Rodriguez told Mr. Gooden that Mr. Ford had asked him “how is his little nigger boy working out,” referring to Mr. Gooden. Rodriguez Depo. at 45/1 - 46/8 (Appx. Tab 7); Gooden Depo. at 180/9-15. Although Timpte apparently disputes that Mr. Ford made this comment, they cannot dispute that Mr. Rodriguez told Mr. Gooden that Mr. Ford made the comment.
30. Mr. Rodriguez later told Mr. Gooden that co-worker Tom Quinn had called him a “lazy fucking nigger.” Rodriguez Depo. at 68/4-15; Gooden Depo. at 117/21-24; 123/24 - 124/9.
31. Mr. Gooden reported this incident to Human Resources Director Lynda Smittkamp and General Manager Gary Manley. Gooden Depo. at 131/11 - 132/7; Smittkamp Depo. at 93/24 - 95/1; Manley Depo. at 95/23 - 96/19.
32. As a result, Mr. Manley and Mr. Cofer spoke with Mr. Quinn. Manley Depo. at 97/15 - 22. Mr. Quinn admitted to using the word “nigger.” Id. at 97/23 - 98/1. Mr. Manley and Mr. Cofer gave Mr. Quinn a verbal warning. Id. at 98/10-16. This was the only time anyone at Timpte was disciplined for harassment of any kind or for the use of slurs of any kind. Timpte Resp. to Ig. 11.
33. Mr. Gooden also heard the term “beaner beater” used around the shop, including by manager Ryan Cofer and supervisor Harold Crabtree. Gooden Depo. at 192/19 - 193/11; 195/6-10.
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34. On Friday, August 7, 1998, Mr. Gooden arrived at his workspace at Timpte, opened his tool cabinet and discovered a Black doll with a noose around its neck hanging from the top of the cabinet. Crabtree Depo. at 58/16 - 67/19 and Ex. 14 (photograph of the doll with the noose around its neck);1 Gooden Depo. at 144/20 - 145/21.
35. This incident made Mr. Gooden feel “threatened” and “disgusted.” Gooden Depo. at 152/14; 162/11. Mr. Gooden quit that same day because he “started getting spooked. [He] got scared and didn’t want to go back to the shop another time.” Id. at 161/19 - 162/4. When he got home, he called the Commerce City police. Id. at 166/25 - 167/10.
36. Mr. Manley understood that the noose and doll were “a representation of the lynching of a black person. . . . [N]o mistaking that.” Manley Depo. at 115/20-24. When he saw the noose and doll, he found it very upsetting, and was “in shock,” “very angry” and “quite distressed.” Id. at 114/17 - 115/19.
37. Mr. Crabtree acknowledged that a threat to lynch someone is a death threat, Crabtree Depo. at 28/22 - 29/2, and that he found the noose and doll “repulsive,” id. at 62/24, and “racially offensive.” Id. at 63/2-3. He thought it was “likely that Mr. Gooden saw it as something that was pretty hostile.” Id. at 63/4-5.
38. In response to the noose and doll incident, Timpte called the Commerce City police department, interviewed the workers in the Commerce City facility, offered a $500 reward

1

Exhibit 14 to the Deposition of Harold Crabtree is the doll with the noose around

its neck. Plaintiff submits a photograph of this exhibit that was taken at Mr. Crabtree’s

deposition.

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for information, redrafted their Sexual Harassment Policy to make reference to racial harassment and convened a half-hour-long company-wide meeting to discuss the incident and the new policy. Timpte Resp. to Ig. 14 (incorporating by reference Resp. to Ig. 10); see also Manley Depo. at 118/9 - 121/11; 126/8 - 128/8; 136/4-13; 141/19-20; Smittkamp Depo. at 104/17 105/19; 115/10-22; 118/8-10; Crabtree Depo. at 69/8-10; 70/15-18.
39. Although Ms. Smittkamp received a lead in response to the reward offer, she did not follow up. Smittkamp Depo. at 111/9 - 115/6.
40. Timpte did not do anything after the meeting at which the reward was offered. Manley Depo. at 136/19-22.
41. Even following the implementation of the new policy, which stated for the first time that racial harassment was prohibited, Timpte management remained ignorant of the meaning of the racist symbols that had been used at Timpte in the past:
a. Timpte’s Human Resources Manager still did not know what a swastika or a lynching was, nor was she aware that there was “a history in the United States of gangs of white people chasing down and hanging a black person.” Smittkamp Depo. at 83/23 - 84/7; 132/1-3.
b. Manager Ryan Cofer stated that he did not “really know what’s meant by” a swastika. Cofer Depo. at 46/5-8.
c. Manager John Condon stated that he did not think the new policy would cover a swastika because “it’s a symbol that was on the flag of a country at
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one time” so “a swastika on a toolbox is the same as an American flag.” Condon Depo. at 35/6-25. 42. Following the implementation of the new policy and its alleged promulgation to Timpte employees, employee Ryon Luscome displayed swastikas at his jobsite at Timpte. Condon Depo. at 23/21 - 24/17; Wellbrock Depo. at 31/25 - 32/10; Timpte Resp. to Ig 1 and Ex. 1 at 5 (showing that Ryon Luscome started working at Timpte in November, 1998 - after the new policy was in effect). Although supervisor Wellbrock saw the swastikas, he did not do anything about them. Wellbrock Depo. at 32/15-16.
Argument Joseph Gooden is entitled to summary judgment holding Timpte liable for race discrimination in employment pursuant to 42 U.S.C. §§ 1981 and 2000e- 2(a)(1) because the undisputed facts show (1) that the racial harassment he encountered at Timpte was sufficiently severe to alter the conditions of his employment and create an abusive working environment; and (2) that Timpte knew or should have known of this abusive environment and did virtually nothing to prevent the harassment Mr. Gooden encountered. There are, therefore, no genuine issues of material fact and Mr. Gooden is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
I. The Hanging Doll Incident Was Sufficiently Severe to Constitute Actionable Racial Harassment
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Mr. Gooden’s discovery of the simulated lynching in his tool cabinet – in and of itself – is sufficient to constitute racial harassment.
“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.”’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal citations omitted).2 In the case of racial harassment, the plaintiff must demonstrate that, “(1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was racial or stemmed from racial animus.” Bolden, 43 F.3d at 551 (citing Meritor, 477 U.S. at 67). It is beyond question in the present case that the harassment – the planting of a Black doll with a noose around its neck – stemmed from racial animus.
“Pervasiveness and severity are independent and equal grounds” to support a claim of racial harassment. Witt, 136 F.3d at 1432 (citing Meritor, 477 U.S. at 67, and Smith v. Norwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997)). “[A] single incident of physically threatening conduct can . . . be sufficient to create an abusive environment.” Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998). This Court has found a single noose – displayed in the workplace without a Black effigy – to satisfy this prong: “[T]he court accepts

2

Meritor was a sexual harassment case. It has long been recognized that the victim

of a racially hostile or abusive work environment may bring a cause of action pursuant to both 42

U.S.C. § 1981 and § 2000e- 2(a)(1). See, e.g., Bolden v. PRC, Inc., 43 F.3d 545, 550 (10th Cir.

1994), cert. denied 516 U.S. 826 (1995) (§ 2000e- 2(a)(1)); Witt v. Roadway Express, 136 F.3d

1424, 1432 (10th Cir.), cert. denied 525 U.S. 881 (1998) (§ 1981).

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that the connotations of a noose are sufficiently disturbing to create an actionable racially hostile work environment.” Ford v. West, Civil Action No. 97-S-1631 (D. Colo. Mar.18, 1999), Slip. Op at 7-8 (Appx. Tab 15).3
The hanging doll incident was severe from both an objective and subjective standpoint as required by Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). Mr. Gooden presents undisputed evidence of subjective severity: He left the Timpte facility almost immediately after encountering the simulated lynching and did not return to work there because he “started getting spooked. [He] got scared and didn’t want to go back to the shop another time.” Gooden Depo. at 161/19 - 162/4. When he got home, he called the Commerce City police. Id. at 166/25 167/10.
The Ford holding suggests that a noose (again, even without the suggestion of a Black lynching victim) is, as a matter of law, objectively severe and offensive. Furthermore, even Mr. Gooden’s white supervisor considered the hanging Black doll to be “repulsive” and “racially offensive” Crabtree Depo. at 62/24; 63/2-3, and it caused Mr. Manley to be “in shock,” “very angry” and “quite distressed.” Manley Depo. at 114/17 - 115/19. Where male co-workers found alleged sexual harassment directed at a female plaintiff to be “‘sexually inappropriate,’ ‘offensive,’ and ‘intimidating,’” the Tenth Circuit held the objective test to be satisfied. Smith, 129 F.3d at 1413.

3

Judge Sparr ultimately held that there was no evidence that the noose in the Ford

case – which was apparently not accompanied by a doll or other effigy – was racially motivated.

Id., slip. op. at 8. In contrast, the noose at issue here contained a naked Black doll, removing any

doubt of its racial nature and motivation.

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In sum, as a matter of law and undisputed fact, the discovery of a simulated lynching constituted a racially-motivated, objectively and subjectively severe, actionably hostile work environment. II. Timpte Is Liable for the Harassment to Which Mr. Gooden Was Subjected.
Because the “‘primary objective’” of Title VII is to “prevent” harm, and one of its “basic policies” is to “encourag[e] forethought by employers,” the Supreme Court has “recognize[d] the employer’s affirmative obligation to prevent violations.” Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998). Timpte management had been aware for years of the use of racist slurs and symbols at Timpte and took virtually no steps to prevent the appalling conduct Mr. Gooden encountered. Timpte is therefore liable for that harassment, whether it was perpetrated by a coworker, a supervisor or an outsider.
Timpte is liable for harassment committed by its supervisors unless it can show two things: “(a) that [it] exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807 (emphasis added). Thus, if Timpte did not use reasonable care to prevent the harassment Mr. Gooden undeniably encountered, it is liable for that harassment.
Timpte is liable for harassment by Mr. Gooden’s co-workers or others if its negligence caused the actionable work environment. Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (holding employer liable for acts of co-workers); Lockard, 162 F.3d at 1074 (holding employer liable for acts of non-employees). An employer is negligent if it “‘fail[s] to
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remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.’” Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 577 (10th Cir. 1990) (quoting EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989)); see also Baty, 172 F.3d at 1241-42 (holding that an employer is liable if “‘it knew or should have known about the conduct and failed to stop it’” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2267 (1998))). “In such instances, the combined knowledge and inaction may be seen as demonstrable negligence, or as the employer’s adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer’s policy.” Faragher, 524 U.S. at 789 (1998).
Timpte does not promote the objective of preventing harassment, Faragher, 524 U.S. at 806-07, by ignoring racist slurs and symbols – observed and even used by its management personnel – and waiting for its first African-American employee in three years to show up, experience harassment and then complain. Rather, Timpte had a legal obligation to take steps to ensure that Mr. Gooden would join a workplace free of such appalling conduct. Undisputed facts show that Timpte did not meet this standard:
! Timpte management was aware of the use of – and used – racist slurs and symbols.4

4

Knowledge of racist slurs and symbols by any of Messrs. Cofer, Condon, Crabtree

or Wellbrock is imputed to Timpte, Inc. “[A]n employee who is a ‘low-level supervisor’ may

also be a management-level employee for purposes of imputing knowledge to the employer when

he is titled supervisor and has some authority over other employees.” Wilson v. Tulsa Junior

College, 164 F.3d 534, 542 (10th Cir. 1998) (citation omitted).

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! Timpte had no racial harassment policy.
! Although Timpte claims that its sexual harassment policy was sufficient, management concedes that this policy did not define, give examples of or make reference to racial slurs, jokes or other harassment.
! Timpte provided no training on sexual or racial harassment to either workers or managers.
! Despite the known history of slurs and symbols, Timpte did not discipline anyone – or even tell its employees that such slurs were unacceptable at Timpte – until explicitly asked to do so by Mr. Gooden after he started working there.
Timpte did not take reasonable care to prevent the harassment Mr. Gooden encountered
through the portrayal of a lynching in his tool cabinet. Its lack of effort is similar to that which
the Supreme Court found inadequate as a matter of law in Faragher, 524 U.S. at 808 (the City
had failed to disseminate a policy against sexual harassment and made no attempt to keep track
of the conduct of the offending supervisors). In the context of holding an employer liable for
punitive damages – a higher standard for the plaintiff to meet – the Tenth Circuit has stated that
the extent to which an employer has adopted antidiscrimination policies and educated its employees about the requirements of the ADA is important in deciding whether it is insulated from vicarious punitive liability. [The defendant] certainly had a written policy against discrimination, but that alone is not enough. Our review of the record leaves us unconvinced that [the defendant] made a good faith effort to educate its employees about the ADA’s prohibitions.
EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248-49 (10th Cir. 1999). If the failure to
educate its employees about the requirements of federal employment law is sufficient to subject
an employer to punitive damages, it is certainly sufficient – as an initial matter – to subject
Timpte to liability.
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Timpte can present no evidence of steps it even intended would be effective at preventing the noose and doll incident. Indeed, Timpte’s complete failure to take steps to prevent racial harassment – when viewed in light of the slurs and symbols of which its management was aware – can only be viewed as “adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer's policy.” See Faragher, 524 U.S. at 789.
Conclusion For the reasons set forth above, Plaintiff Joseph A. Gooden respectfully requests that this Court grant partial summary judgment in his favor, finding Defendant Timpte, Inc. liable under 42 U.S.C. §§ 1981 and 2000e- 2(a)(1) for the harassment encountered by Mr. Gooden at Timpte.
Respectfully submitted, FOX & ROBERTSON, P.C.

Dated: January 24, 2000

Timothy P. Fox Amy F. Robertson 1675 Larimer Street, Suite 610 Denver, CO 80202 (303) 595-9700
Attorneys for Plaintiff

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-N-795 JOSEPH A. GOODEN,
Plaintiff, v. TIMPTE, INC.,
Defendant.
PLAINTIFF’S AMENDED BRIEF IN OPPOSITION TO DEFENDANT TIMPTE, INC.’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Joseph A. Gooden, by and through his counsel, Fox & Robertson, P.C., hereby submits this brief in opposition to Defendant Timpte, Inc’s, motion for summary judgment.
Introduction Plaintiff Joseph Gooden is entitled to prevail on his claims for racial harassment and ethnic intimidation because he was subjected to a course of racially hostile conduct at Defendant’s facility that culminated in his discovery of a naked Black doll hanging by a noose from the top of his tool cabinet. Timpte is liable for this harassment and intimidation because its managers knew of and participated in racially hostile acts and Timpte took no reasonable steps to prevent or correct such conduct. Gooden is entitled to recover punitive damages because Timpte acted at all times with malice and/or reckless indifference for his federally protected rights.
Response to Statement of Undisputed Material Facts 1. Admit.

2. Admit that Gooden was a member of United Automobile Workers. Admit that his employment was covered by a collective bargaining agreement that prohibited discrimination but only prohibited harassment based on membership or participation in the union. Def. Ex. A. at 24.
3. Deny that Timpte had an anti-harassment policy that covered anything other than sexual harassment. Def. Ex. B; Manley 141/7-10; Crabtree 78/20-23; Smittkamp 124/13-24.
4. Admit that the Sexual Harassment Policy was posted. Deny that it was disseminated to employees at orientation. Gooden 101/9-14; Smittkamp 39/5-46/20; 133/2135/18.
5. Admit that Timpte may have disseminated certain issues of Manger’s Legal Bulletin at staff meetings. Deny that racial harassment was discussed at such meetings and deny that this would have constituted “training.” Manley 72/2-4; Smittkamp 79/3-9. The staff meetings were limited to upper-level management. Manley 70/4-16. Cofer and Crabtree never received training on harassment or discrimination. Cofer 7/22-10/25; Crabtree 74/9-12 and Resp. to Ig. 10.
6. Admit that some issues of Manager’s Legal Bulletin “touched on” racial harassment and discrimination issues. Deny that they were circulated among Timpte managers. See Def. Ex. C.
7. Deny that Gooden’s claims are based only on six isolated incidents. His claim is that the environment in which he worked was racially hostile. See infra 4-7. Admit that David Rodriguez told Gooden that Mickey Ford had said words to the effect of, “how [is your] little nigger boy working out” and that Harold Crabtree was present for these words.
8. Unknown; admit for the purposes of this Motion. 9. Deny that Ryan Cofer spoke with Crabtree about the event. Cofer did not counsel or advise any employees concerning racial language or racial harassment other than Tom Quinn,
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Cofer 30/19-24, and never told anyone that racist language was unacceptable. Id. 20/10-14. Paragraphs 10 through 13: Admit. 14. Admit that Gooden did not report the incident to anyone at Timpte. Deny that the
incident was not covered by that Charge. Charge of Discrimination at 2. Paragraphs 15 through 19: Admit. 20. Admit that Crabtree testified that he went looking for the “Justice for O.J.” noose in
1998 after reading articles in the Rocky Mountain News. Admit that Crabtree told Gooden that he was looking for the “Justice for O.J.” noose, that he couldn’t find it, and that “if he found it first, that [he’d] appreciate it if it didn’t offend him.” Crabtree 50/15-25. Admit that Crabtree found and destroyed the “Justice for O.J.” noose.
Paragraphs 21 through 30: Admit 31. Deny. Gooden 87/23-25. Paragraphs 32 and 33: Unknown; admit for the purposes of this Motion. 34. Admit. 35. The paragraph as phrased is vague. Admit that Gooden received no further reports of Quinn referring to him as a “nigger.” Paragraphs 36 and 37: Admit 38. Admit that Gooden showed the doll to Robert Marshall and several other employees. Gooden 145/13-14. Paragraphs 39 through 51: Admit. 52. Deny. Lynda Smittkamp received a lead in response to the reward offer, but did not follow up. Smittkamp 111/9-115/6. Paragraphs 53 through 58: Admit.
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Statement of Additional Disputed and Undisputed Facts 1. Over the past five years, Timpte employees often used a variety of racial slurs, at times in the hearing of supervisors and managers. Timpte Resp. to Ig. No. 12; Crabtree Resp. to Ig. No. 8; Cofer 18/15-23/5; Crabtree 30/7-10; 33/22-34/9; Bowland 7/3-6; 8/11-10/8; 15/1416/11; 38/25-39/22; Lusinger 39/18-40/25; 52/16-58/8; Marshall 9/23-25; Fenstemaker 7/1512/24; 95/15-99/14; 139/7-141/21; Rodriguez 26/13-17; 76/14-20. 2. Timpte managers and supervisors used racial slurs. Bowland 11/2-4; 37/18-22; 47/3-14; 55/18-56/20; Fenstemaker 16/16-17/5; 98/20-104/22; Lusinger 9/11-13; Rodriguez 30/731/15; 39/23-40/14. 3. Neither Gary Manley, Cofer nor Crabtree ever told anyone at Timpte those words were unacceptable. Manley 143/14-17; Cofer 20/10-14; Crabtree 33/19-21. Timpte management did not instruct its employees that the use of racial slurs was inappropriate. Fenstemaker 22/1123/3; Bowland 13/7-10; Lusinger 15/2-5; 78/10-79/12; Rodriguez 121/9-10. 4. The men’s restroom at Timpte contained racist graffiti, including swastikas, “KKK,” “die nigger,” “nigger,” and a drawing of a “hooded guy.” Bowland 11/5-22; Lusinger 10/18-11/3; 69/5; Marshall 12/17-19. Cofer has observed the swastikas in the men’s restroom and stated that these symbols have “been in and out of [the restroom] for years,” most recently over a year but less than two years prior to his deposition in October 1999. Cofer 43/3-44/9. 5. Jim Wellbrock observed a noose – consisting of a six-foot rope hanging from the ceiling – in the woodshed at Timpte, a building used by “a lot of people.” Wellbrock 26/20-27/15; 28/22-24. Wellbrock told John Condon about it. Condon 36/25-37/9. Crabtree brought a noose to work at Timpte sometime in 1994 or 1995 – during the trial of O.J. Simpson – called “the O.J. Simpson Ribbon for Justice.” Crabtree 41/25-42/3; 43/17; Crabtree Resp. to Ig. No. 7.
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6. Despite this history of racial slurs and racist symbols, Timpte has only disciplined an employee for the use of a racial slur on one occasion – at the explicit request of Plaintiff Joseph Gooden in July, 1998. Timpte Resp. to Ig. No. 11.
7. Several employees testified that they either did not receive a copy of the 1993 Sexual Harassment Policy, that they did not recall it or that Timpte did not review it. Lusinger 15/6-17. Fenstemaker 24/3-5; Rodriguez 103/2-7; 109/11-21; Marshall 30/5-20.
8. Timpte did not conduct training on racial harassment. Manley 171/21-172/5; Smittkamp 62/20-63/2; Bowland 14/12-17; Lusinger 14/23-15/1; Marshall 15/18-24; Rodriguez 102/7-20. Cofer and Crabtree never received any training on harassment or discrimination. Cofer 7/22-10/25; Crabtree 74/9-12; Crabtree Resp. to Ig. No. 10.
9. At the time he was hired, Gooden was the only African-American among the approximately 65 employees at Timpte’s Commerce City facility. Position Statement at 1-2. On August 7, 1999, Gooden was one of two such employees at the facility. Timpte Resp. to Ig. Ex. 1.
10. Gooden did not receive the collective bargaining agreement. Gooden 90/13-91/11. He does not recall seeing Timpte’s Sexual Harassment Policy and did not think that Timpte had a harassment or discrimination policy. Id. 101/20-108/8. Although he thought he could report such matters to Smittkamp, he did not know what the company would do. Id. 109/13-110/7.
11. In addition to hearing that others had referred to him as a “nigger” on at least two occasions, Gooden also learned from a co-worker about the use of the words “beaner” and “niggerrig” at Timpte. Id. 190/21-25. When Gooden related that Rodriguez had told him that Quinn had called him a “nigger,” the co-worker explained, “‘that’s just the way it is. They say things like that around here all the time. They call me a beaner.’” Id. 191/17-24.
12. Gooden felt “shunned” and “avoided” by his co-workers at Timpte, a feeling that
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grew worse throughout his time at Timpte. Id. 27/2-23; 73/2-74/10. A number of workers expressed to Rodriguez that they did not want Gooden working near them, saying, “Keep the little nigger over there on your side.” Rodriguez 20/20-25/13. Gooden did not receive help or training when he requested it. Gooden 26/15-17; 154/8-25; 156/6-18; Rodriguez 19/6-9.
13. Gooden got the sense from his discussion with Crabtree about nooses that Crabtree was “taunting” him and that Timpte “promoted or just let slide” this type of thing. Gooden 186/616. He felt that this was “a subtle type of threat” because “We’re talking about a noose. We’re talking about these are things that people got hung by in the past.” Id. 186/20-187/18.
14. Gooden downplayed some of the earlier incidents because he was trying to keep his job, because he hoped the harassment would stop, and because did not want anyone to give him trouble because he had gotten someone fired. Id. 31/4-32/23; 77/13-19; 137/9-13. When Gooden first heard that Quinn had called him a “nigger,” he did not tell Crabtree because “he was present when it happened.” Id. 131/2.
15. Following the various incidents of harassment, Gooden felt frightened, disgusted, spooked, frustrated, angry and nervous. Gooden 33/7-25; 152/14; 161/19-162/11; 182/24-183/19. He felt a threat of “bodily injury.” Id. 214/9-16. Following the hanging Black doll incident, he called the Commerce City police because he “didn’t feel that Timpte was going to do anything about it as a company.” Id. 166/25-167/10; 175/7-17.
16. Manley found the hanging Black doll very upsetting, and was “in shock,” “very angry” and “quite distressed.” Manley 114/17-115/19. Crabtree acknowledged that he found the noose and doll “repulsive,” and “racially offensive.” Crabtree 62/24-63/3.
17. Following the implementation of the new policy and its alleged promulgation to Timpte employees, employee Ryon Luscome displayed swastikas at his jobsite at Timpte.
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Condon 23/21-24/17; Wellbrock 31/25-32/10. 18. Following his experience at Timpte, Gooden does not feel like the person he once
was, is unsure of himself, is more uncertain about race relations, has lost self-esteem, and is not as confident as he was and has trouble making friends. He feels depressed a lot. Gooden 48/22 50/6; 219/5-221/7. Gooden has been diagnosed with post-traumatic stress disorder and social phobia. Report of Robert L. Atwell, Psy. D. (filed under seal at Tab 20).
Argument I. Timpte Is Liable for the Racially Hostile Environment at its Commerce City Facility.
Because the “‘primary objective’” of Title VII is to “prevent” harm, and one of its “basic policies” is to “encourag[e] forethought by employers,” the Supreme Court has “recognize[d] the employer’s affirmative obligation to prevent violations.” Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998). Timpte management had been aware for years of the use of racist slurs and symbols at Timpte and took virtually no steps to prevent the appalling conduct Gooden encountered. Timpte is therefore liable for that harassment.
A. The Work Environment Gooden Encountered at Timpte Was Racially Hostile. For harassment to be actionable, “it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citations omitted). The environment must be hostile or abusive from both an objective and subjective perspective. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
1. The Harassment Gooden Encountered at Timpte Was Sufficiently Severe to Constitute a Cause of Action under Title VII.
“Pervasiveness and severity are independent and equal grounds” to support a claim of
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racial harassment. Witt v. Roadway Exp., 136 F.3d 1424, 1432 (10th Cir.), cert. denied 525 U.S. 881 (1998)(citations omitted). “[A] single incident of physically threatening conduct can . . . be sufficient to create an abusive environment.” Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998). While the harassment Gooden encountered was both severe and pervasive, the indisputably severe harassment he encountered in the form of the hanging doll is, in and of itself, sufficient to support a cause of action under Title VII.
Joseph Gooden’s discovery of the mock lynching constitutes a hostile environment as a matter of law. Timpte’s unsupported assertion to the contrary, Def. Br. at 12-13,1 cannot overcome the conclusion that, “the connotations of a noose are sufficiently disturbing to create an actionable racially hostile work environment.” Ford v. West, Civil Action No. 97-S-1631 (D. Colo. Mar.18, 1999), Slip. Op at 7-8 (Tab 17). “The grossness of hanging an object resembling a noose at the work station of a black female is self-evident.” Vance v. Southern Bell Tel. & Tel., 863 F.2d 1503, 1511 n.4 (11th Cir. 1989), rev’d on other grounds, 983 F.2d 1573 (11th Cir. 1993).
2. The Harassment Gooden Encountered at Timpte Was Sufficiently Pervasive to Constitute a Cause of Action under Title VII.
The harassment suffered by Gooden started long before he discovered the hanging Black doll. Among other things:
! Gooden was the only African-American employee at Timpte when he started – and was Timpte’s first African-American employee in three years.
! From the moment he arrived at Timpte, he felt ostracized by his co-workers and did

1

Timpte appears to rely on the fact that the mock lynching was anonymous to

argue that it could not have created a hostile environment. There is, however, no logical

connection between the knowledge of the perpetrator’s identity and the harm the incident caused.

In any event, as one court has held with respect to an anonymous hate-crime, “a reasonable fact

finder could readily conclude [it] was an ‘inside job’ perpetrated by a co-worker in the relatively

small workplace.” Demby v. Preston Trucking Company, Inc., 961 F. Supp. 873, 880 (D. Md.

1997).

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not receive proper training or responses to job-related inquiries. ! He learned that others were referring to him in the grossest racial terms – in the
presence of his supervisor – that his supervisor did nothing in response, and that such references were not unusual at Timpte. ! He heard other workers and his supervisors use an offensive ethnic slur in commonly referring to a tool used around the shop. ! His supervisor advised him that nooses had been found at Timpte – including one he himself had brought in – that the latter was “a joke” and that he would appreciate it if Gooden did not take offense. These circumstances must be considered together with the mock lynching. “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” Harris, 510 U.S. at 23. It is not appropriate, as Defendant has done, to examine each incident of harassment separately. Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999); West v. Philadelphia Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995). The Tenth Circuit has held that racist and sexist incidents may be aggregated in determining whether an environment is hostile. Smith v. Norwest Fin. Accept., Inc., 129 F.3d 1408 (10th Cir. 1997). That court held that an environment in which a woman had been subjected to three actionable sexist comments and one actionable racist comment was hostile. “The aggregate sexual and racial animus directed toward Plaintiff emphasizes our point: The cumulative evidence of severity was sufficient for the court to conclude that a reasonable person would find Plaintiff’s work environment hostile or abusive.” Id. at 1414.
Evidence of racist language used out of Gooden’s hearing is relevant to the atmosphere of racism at Timpte and to the motive behind the conduct that Gooden experienced first hand. See Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 111 (3d Cir. 1999), cert. denied, 68 U.S.L.W. 3429 (2000) (holding that evidence of sexist statements made among male workers outside the
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hearing of female workers was admissible to show the “motive behind the harassment, which may help the jury interpret otherwise ambiguous acts,” and to demonstrate the “pervasive sexism” in the defendant’s workplace.) For example, Rodriguez’s testimony that co-workers were regularly disparaging Gooden in racist terms and actively working to ensure that they did not have to work with or near him, see supra at 7, helps us understand Gooden’s feeling that he was being ostracized and shunned. Furthermore, “‘the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor can impact the work environment.” Jackson, 191 F.3d at 661 (citations omitted). Viewed together, this harassment was sufficiently pervasive to alter Gooden’s working conditions.
3. The Environment at Timpte Was Objectively Hostile The Ford case suggests that a noose – in that case, lacking even the suggestion of a Black lynching victim – is, as a matter of law, objectively severe and offensive. That Timpte’s white management considered the hanging Black doll to be “repulsive” and “racially offensive,” Crabtree 62/24-63/3, see also Manley 114/17-115/19, demonstrates objective hostility. See Smith, 129 F.3d at 1413 (Holding objective test satisfied where male co-workers found alleged sexual harassment to be offensive). The remainder of the harassment listed above – which must be considered together with the mock lynching, Harris, 510 U.S. at 23 – would be sufficient to alter the employment conditions and create an abusive working environment for a reasonable person in Gooden’s circumstances: the first African-American employee in three years at the facility and one of only two when he discovered the noose. See Oncale v. Sundowner Offshore Svcs, Inc., 523 U.S. 75, 81 (1998) (“the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position”).
4. The Environment at Timpte Was Subjectively Hostile.
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Gooden presents undisputed evidence of the subjective severity of the harassment at Timpte. See supra at 8-9. Timpte argues that Gooden’s attempts to ignore the racism and hostility he was encountering and get his job done are evidence that he did not find the conduct subjectively hostile. This is, as an initial matter, an improper attempt to analyze each “incident” separately and to separate the mock lynching from the other hostility he encountered. In addition, given the ostracism he faced at Timpte, Gooden had a Hobson’s choice: report all indicia of harassment and face further isolation; or buckle down and try to work in spite of his fears. The law should not ignore harassment that occurred at Timpte while Gooden was trying to fit in – before it had become apparent that the harassment and hostility were a part of the Timpte culture.
The Tenth Circuit rejected a similar approach in Davis v. United States Postal Svc., 142 F.3d 1334 (10th Cir. 1998), holding that
The trial court’s implicit conclusion -- that a plaintiff who otherwise enjoys her work, is successful, and testifies that she hopes to continue that employment cannot as a matter of law “subjectively perceive the [work] environment to be abusive,” -is erroneous. Davis, 142 F. 2d at 1341 (quoting Harris, 510 U.S. at 21). Similarly, the fact that a plaintiff ignores the initial signs of a hostile environment and tries to get his work done should not be construed to preclude the subjective perception that the environment is hostile. See Hansel v. Public Svc. Co. of Colorado, 778 F. Supp. 1126, 1129 (D. Colo. 1991) (recognizing that a plaintiff may keep quiet in the hopes that co-workers will eventually accept her and the harassment, cease.)
B. Timpte Is Liable for the Harassment Gooden Encountered. The standard to which Timpte is held in its failure to prevent or remedy co-worker or thirdparty harassment is negligence. See Def. Br. at 14. Timpte is liable because it “‘fail[ed] to
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remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.’” Lockard, 162 F.3d at 1074 (citations omitted). “In evaluating claims for negligence, proximate cause and foreseeability are typically employed to determine the scope of an employer’s duty.” Hirase-Doi v. U.S. West Comms, Inc., 61 F.3d 777, 783 (10th Cir. 1995)(citations omitted). At a workplace that had experienced two nooses – one explicitly racial – and a gallery of swastikas and other racially offensive graffiti, that had had no African-American employees for three years and many of whose employees were in the habit of referring to African-Americans in racist terms, it is entirely foreseeable that the next African-American employee to join the workforce will encounter racist language and racists symbols. See Demby, 961 F. Supp. at 880 (suggesting that a racist “hatecrime” involving the painting of a swastika on the desk of an African-American employee “was a foreseeable consequence of the employer’s seeming tolerance of bigoted behavior at the plant.”)
Timpte attempts to evade its responsibility to prevent racial harassment in its workplace by asserting that it is only liable if it “failed to respond in a reasonable manner.” Def. Br. at 13. But one of the principal cases on which it relies for this proposition makes clear that, “employer negligence is “‘failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.’” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998) (emphasis added). Timpte – which both knew and should have known of the racially hostile environment at its facility – took no reasonable measures to correct this environment and virtually no measures to prevent it. Although there were no African-American employees present at Timpte during much of the time the racist language and symbols were being used and displayed, this does not diminish Timpte’s knowledge of racist conduct nor its obligation, at the very least, to prepare the shop for the arrival
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of its first African-American employee in three years by announcing and enforcing a policy that such conduct would no longer be tolerated.
1. Timpte Knew or Should Have Known of the Racially Hostile Environment at its Commerce City Facility.
Timpte had actual knowledge of the use of racial slurs and racist symbols at Timpte. Managerial personnel both used and witnessed the use of racial slurs at Timpte. See supra at 4. The knowledge of Cofer, Crabtree, Condon and Wellbrock is attributable to Timpte. “[A]n employee who is a ‘low-level supervisor’ may also be a management-level employee for purposes of imputing knowledge to the employer when he is titled supervisor and has some authority over other employees.” Wilson v. Tulsa Junior College, 164 F.3d 534, 542 (10th Cir. 1998) (citation omitted). Timpte asserts, without support, that “[a]ctual knowledge exists where the plaintiff reports harassment to management-level employees.” Def. Br. at 13. Knowledge of racist conduct – like all other knowledge – can arise through observation or participation as well.
Timpte had constructive knowledge of the use of racial slurs and racist symbols at Timpte. “If the harassment complained of is so open and pervasive that the employer should have known of it, had it but opened its corporate eyes, it is unreasonable not to have done so, and there is constructive notice.” Sharp v. City of Houston, 164 F.3d 923, 930 (5th Cir. 1999), see also Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1270-71 (10th Cir. 1998). The use of racial slurs and racist graffiti was sufficiently pervasive to put Timpte’s management on constructive notice. See supra at 4. If management had but opened its eyes and ears, it would have been fully aware of the extensive use of racist language and racial symbols at Timpte.
2. Timpte Had an Obligation to Prevent and Correct the Racially Hostile Environment of Which it Was Aware
“Title VII affords employees the right to work in an environment free from discriminatory
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intimidation, ridicule, and insult.” Meritor, 477 U.S. at 65. Timpte argues that its obligation to provide such an environment arose only when Gooden first complained. The Tenth Circuit has rejected this standard and held that an employer may be placed on notice of workplace harassment before the plaintiff complains by harassment that does not involve the plaintiff. In Hirase-Doi, that court held that an employer is on notice if it knows of harassment that is “similar in nature and near in time to” the harassment suffered by the plaintiff or if the plaintiff can demonstrate that “the harassment was ‘so pervasive that employer awareness may be inferred.’” Id., 61 F.3d at 784 (quotation omitted). Gooden has provided evidence that satisfies both standards. The swastikas that were drawn on the restroom walls constitute harassment similar in type to the mock lynching – racist symbols on display in the workplace – and were present during the time Gooden worked at Timpte. The racist language that was ongoing before and during Gooden’s tenure was similar in type to the racist language that contributed to the hostile environment he experienced. Beyond these events that were “similar in nature and near in time,” Gooden has provided evidence of racist conduct so pervasive that Timpte’s awareness may be inferred. See supra at 4.
Timpte appears to argue that its duty to respond to racism at its Commerce City facility arose only upon receipt of a complaint. See Def. Br. at 14-15. The Tenth Circuit has explicitly rejected this approach, Wright-Simmons, 155 F.3d at 1270-71, and it is logically inconsistent with the constructive knowledge standard. Furthermore, “Title VII imposes on employers an affirmative duty to seek out and eradicate a hostile work environment. . . . An employer simply cannot sit back and wait for complaints. The very nature of sexual harassment inhibits its victims from coming forward because of fear of retaliation.” Hansel, 778 F. Supp. at 1133 (citations omitted); see also Nelson v. Foster-Wheeler Constructors, Inc., No. 97 C 4658, 1998 U.S. Dist. LEXIS 17923 at *18 (N.D. Ill. 1998) (holding that while the employer’s “complaint procedure is
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relevant as to whether it reasonably attempted to prevent harassment, it does not absolve it from liability if it knew or should have known about harassing conduct, yet failed to do anything about it.”) (Tab 18.)
3. Timpte Took No Reasonable Steps to Prevent or Correct the Racially Hostile Environment at its Commerce City Facility.
Timpte did not take steps to prevent racial harassment. Timpte had no racial harassment policy. Although it attempts to rely on its Sexual Harassment Policy, see Def. Br. at 2, 14, that policy did not “define[ ] or give[ ] examples of racial harassment,” Manley 141/7-10, or refer to slurs directed at race or jokes directed at race. Id. 142/17-24. The collective bargaining agreement did not make reference to racial or sexual harassment, but only to harassment on the basis of membership or participation in the union. Def. Ex. A at 24. A policy that does not mention racial harassment cannot satisfy Timpte’s obligation to prevent racial harassment.
Although it claims to have provided “training” to management through the use of legal bulletins, the General Manager could not point to one that mentioned racial harassment, Manley 143/22-145/18; 185/4-190/20, and Cofer and Crabtree testified that they never received any training on harassment or discrimination. Cofer 7/22-10/25; Crabtree 74/9-12. Timpte did not provide any training to its employees on harassment of any kind or instruct them that racist language was inappropriate at Timpte. See supra at 5.
These efforts fall so far short as to be insufficient as a matter of law. Because failure to take adequate measures to prevent racial harassment is, alone, sufficient to subject Timpte to liability, see Fall v. Indiana Univ. Bd of Trustees, 12 F. Supp. 2d 870, 881 (N.D. Ind. 1998)
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(holding defendant liable for failure to prevent harassment where its efforts to correct the problem had been sufficient), Plaintiff is entitled to summary judgment. See generally Brief in Support of Plaintiff’s Motion For Partial Summary Judgment (filed January 24, 2000). In the single paragraph in which Defendant describes its efforts at prevention, it cites no cases in support of its position that its efforts were sufficient. For example, it has no legal support whatsoever for the proposition that it can satisfy its obligation to prevent racial harassment without adopting a racial harassment policy or in any other way communicating to its employees that racial epithets and symbols are unacceptable. Def. Br. at 14.
On the other hand, many cases hold that – even after adopting a relevant anti-harassment policy – an employer may be liable for failure to prevent harassment if the policy is not wellpromulgated or enforced. The Tenth Circuit has held an employer liable where it adopted a policy and posted it on a bulletin board but conducted no training, Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1239 (10th Cir. 1999), and where, as here, a defendant had a policy that did not require a supervisor with knowledge of harassment to report the incident. Wilson, 164 F.3d at 541-42 (quotation omitted). Timpte’s efforts to discuss harassment with upper management in staff meetings were also insufficient. See Savino v. C.P. Hall Co., 988 F. Supp. 1171, 1189 (N.D. Ill. 1998) (holding that distribution of policy to managers and supervisors and posting at defendant’s facilities, while “better than having no policy at all,” was still “lacking”). An employer is liable where, as here, it has a policy but the policy is not well-known to employees. Nuri v. PRC, Inc.. 13 F. Supp. 2d 1296, 1305 (N.D. Ala. 1998).
Timpte’s attempts to remedy or correct racial harassment were insufficient to defeat liability. Although it is sufficient to impose liability on Timpte that plaintiff demonstrate, as he has above, that that company failed to take adequate measures to prevent racial harassment,
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Timpte’s corrective measures also fell short. Timpte’s tepid response was not sufficient to avoid liability. As one court has held, following a racist “hate-crime” not unlike the one at Gooden encountered at Timpte, an employer’s “random and informal questioning of employees, following, and in light of, [a manager’s] episodic and ineffectual warnings to employees on the use of racial epithets in the workplace, were not measures that were reasonably likely to curtail the possibility of similar (or more egregious) future occurrences.” Demby, 961 F. Supp. at 881.
Indeed, the only two cases relied on by Timpte in fact demonstrate a level of response far higher than it achieved. In Adler, following the first reported harassment – with no apparent prior history – the relevant supervisor immediately got the word out that harassment would not be tolerated and would have consequences. Many employees then apologized to the plaintiff. Id. 144 F.3d at 669. Individual incidents of harassment resulted in discipline with records in the harassers’ files and the requirement that the harasser apologize to the plaintiff. Id. Most important, all of this discipline was pursuant to an actual sexual harassment policy, see id. at 669-70, so the harassers received a consistent message that such harassment would not be tolerated. In Jeffries v. Kansas, 147 F. 3d 1220 (10th Cir. 1998), a not-necessarily unwelcome hug became the subject not only of reprimand of and apology by the alleged harasser (at which point the plaintiff offered a “make-up hug”), but also of countless “interpersonal relations group” meetings with plaintiff, the harasser, their supervisor and another co-worker. Id. at 1225. The supervisor’s employer later investigated the investigation and reprimanded the supervisor for its inadequacy. Id. at 1227. Again, in contrast to Timpte, this process occurred pursuant to an existing policy.
The best evidence of the inadequacy of Timpte’s response to Ford and Quinn was the hanging Black doll itself – an act that might have been prevented if Timpte had taken a strong, consistent, public stand against racial harassment even at the late date of the Tom Quinn incident.
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[U]nlike the dog of legal lore, which is said to be entitled to one free bite, unreconstructed bigots in the modern American workplace are not entitled to one unsanctioned act of racial bigotry. . . . Denby, 961 F. Supp. at 881. In light of the fact that it “essentially condoned . . . a regime [of racial bigotry],” id., at its Commerce City facility, it is liable for the results of that regime.
II. Timpte Is Liable for the Ethnic Intimidation Suffered by Gooden. A “person, organization, or association who commits or incites others to commit the
offense of ethnic intimidation as defined in section 18-9-121(2), C.R.S.” is civilly liable to the victim “for the actual damages, costs, and expenses incurred in connection with said action.” C.R.S. § § 13-21-106.5(1). A person, organization or association commits the offense of ethnic intimidation “if, with the intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, or national origin, he: (a) Knowingly causes bodily injury to another person; or (b) By words or conduct, knowingly places another person in fear of imminent lawless action directed at that person or that person’s property and such words or conduct are likely to produce bodily injury to that person or damage to that person’s property.” C.R.S. § 18-9-121(2).
Timpte argues that Gooden cannot demonstrate that anyone intended to intimidate or harass him or that their conduct was “practically certain to cause” bodily injury, the applicable knowledge standard. Def. Br. at 16. To the contrary, it is virtually certain that whoever placed the hanging Black doll in Gooden’s tool cabinet intended to place him in fear of imminent lawless action and cause bodily harm. The effigy is the representation of the death by hanging of a Black man, placed in the workspace of a Black employee. It is an unambiguous, racist death threat. Furthermore, Timpte’s inaction in the face of its history of racist language and racially threatening symbols such as swastikas and nooses and its managers’ participation in many of these events
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makes it liable as an “organization or association” that has “incite[d]” the commission of ethnic intimidation. As the Supreme Court has stated in the context of harassment, where employers have actual knowledge of harassing action and do nothing to stop it, “the combined knowledge and inaction may be seen as demonstrable negligence, or as the employer’s adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer’s policy.” Faragher, 524 U.S. at 789 (1998)(emphasis added). Given Timpte’s history, it is at least a question of fact whether its inaction can be held to have “authorized affirmatively” or “incited” the placement of the hanging Black doll in Gooden’s workspace. III. Timpte Is Liable to Gooden for Punitive Damages
The parties agree that, to recover punitive damages, Gooden must show that Timpte engaged in discriminatory conduct with malice or reckless indifference his federally-protected rights. 42 U.S.C. §1981a(b)(1); see Def. Br. at 18. Defendant’s argument on this point, however, applies the wrong standard to evaluate an employer’s liability for punitive damages for racial harassment. The Tenth Circuit has recently clarified the difference between vicarious liability for punitive damages – the standard applied by Defendant, see Def. Br. at 19 – and direct liability.
[E]mployer malice or reckless indifference in failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew or should have known is premised on direct liability, not derivative liability, according to the doctrine of respondeat superior. Deters v. Equifax Credit Information Svcs. Inc., No. 97-3340, 2000 U.S. App. LEXIS 1209 at *14 (10th Cir. Feb. 1, 2000)(Tab 19). Gooden alleges that Timpte failed to remedy or prevent the hostile work environment of which it knew or should have known, that is, that Timpte is directly liable for punitive damages. The list of factors Defendant sets up and knocks down on page 19 of its Brief are thus not relevant to the punitive damages inquiry in this case. See Deters at *20.
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Punitive damages are appropriate here because Timpte management was aware of and engaged in racially offensive conduct that Timpte took virtually no steps to curtail. In the face of the racially offensive language and conduct demonstrated by the attached deposition excerpts, see supra at 4-5, it is at the very least reckless indifference to fail to promulgate a policy against racial harassment and to make no efforts to inform employees that such conduct will not be tolerated. The Tenth Circuit reversed a directed verdict dismissing a claim for punitive damages in a sexual harassment case in which, prior to the plaintiff’s complaint, management was aware that its environment “was rife with foul language, sexual innuendo, and sexual advances which could reasonably be labeled as sexual harassment.” Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1187 (10th Cir. 1999).
Even if the good faith defense did apply in the present case, Timpte has not satisfied it. The mere existence of an anti-harassment policy is not sufficient; rather the employer must make “a good faith effort to educate its employees about the ADA’s prohibitions.” EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248-49 (10th Cir. 1999). Timpte, again, had no policy against racial harassment and made no effort to educate its employees that such conduct was illegal.
Conclusion Plaintiff respectfully requests that Defendant’s motion for summary judgment be denied Respectfully submitted,
FOX & ROBERTSON, P.C.
Timothy P. Fox Amy F. Robertson 910 - 16th Street Suite 610
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Dated: February 22, 2000

Denver, CO 80202 (303) 595-9700
Attorneys for Plaintiff

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 99-N-795 JOSEPH A. GOODEN,
Plaintiff, v. TIMPTE, INC.,
Defendant.
REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Joseph A. Gooden, by and through his counsel, Fox & Robertson, P.C., hereby submits this reply brief in support of his motion for partial summary judgment as to liability on his claims pursuant to 42 U.S.C. §§ 1981 and 2000e- 2(a)(1) for racial harassment.
Additional Undisputed Fact Since the filing of Plaintiff’s Motion for Summary Judgment, he has taken the deposition of Defendant’s expert witnesses. The following additional undisputed fact is based on the deposition of Dr. Dorothie Clark, which occurred on February 22, 2000. 1. Dr. Dorothie Clark, who was designated by Defendant as an expert witness on the subject of prevention of and response to discrimination, when asked whether the hanging Black doll was racially hostile, replied, “Well, obviously. The doll was black. And whether you kill by noose or anything else, the threat was there. It was found in his box.” Clark at 64/9-16 (attached hereto).

Response Concerning Disputed Facts 1. Undisputed but immaterial to the resolution of Plaintiff’s Motion. 2. Defendant’s additional statements do not dispute the accuracy of the concessions made by Manley and Crabtree in their depositions and by Timpte and Crabtree in their Responses to Interrogatories (quoted in paragraphs 16-18, 20 and 41) and cannot dispute the content of the Sexual Harassment Policy, which did not mention or provide examples of racial harassment. Manley Depo. Ex. 15. 3. Defendant’s additional statements do not dispute the fact that Cofer, Crabtree and a number of employees testified that they did not receive training concerning racial harassment. 4. Defendant’s additional statements do not dispute the testimony set forth in Plaintiff’s Statement of Undisputed Facts. 5. Undisputed but immaterial to the resolution of Plaintiff’s Motion. 6. To the extent these facts are disputed, the dispute is not relevant to the resolution of Plaintiff’s Motion. It remains undisputed that Rodriguez told Gooden that Quinn called him a “nigger.” 7. Undisputed but immaterial to the resolution of Plaintiff’s Motion.
Argument I. Plaintiff’s Evidence is Relevant and Admissible
Plaintiff Joseph Gooden relies only on harassment of which he was aware to establish the hostility of the environment at Timpte’s Commerce City facility. Evidence of the abundant use of racial slurs and racist symbols at Timpte is relevant to show both Timpte’s knowledge of that
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environment and to permit the finder of fact to understand the context of the harassment Mr. Gooden endured.
Timpte argues that the case of Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777 (10th Cir. 1995) limits Gooden to evidence relating to harassment of which he was aware. Timpte misreads Hirase-Doi and thus fails to recognize its distinction between evidence that, in and of itself, constitutes the hostile environment and evidence that goes to the defendant’s knowledge of that environment. In addition, the Hirase-Doi court did not address a third type of admissible evidence: that which does not, in and of itself, constitute an incident of harassment but which is relevant, under Rule 401 of the Federal Rules of Evidence, to the context in which the harassment was committed and experienced.
The Hirase-Doi decision addressed both hostility and knowledge. In the section cited by Timpte, see Defendant Timpte’s Response to Plaintiff’s Motion and Brief for Partial Summary Judgment (“Def. Opp.”) at 9, the court analyzed whether the environment at U.S. West was hostile. It held that the plaintiff could “establish the existence of a genuine issue of material fact as to whether she was subject to a hostile work environment based on evidence of [the harasser’s] sexually offensive conduct towards herself and/or others in her office, provided she was aware of such conduct.” Id. at 782 (emphasis added). Consistent with this holding, Gooden has argued in his motion for summary judgment that the hostile environment consisted, as a matter of undisputed fact, of the hanging Black doll he discovered in his tool cabinet.1 There is no dispute that Gooden experienced this appalling harassment first hand.

1

In his opposition to Defendant’s motion for summary judgment, he relies on a

number of other incidents that he personally experienced as well, but which may or may not be

disputed by Defendant.

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In a portion of its opinion separate from that cited by Timpte and headed “US West’s Knowledge of the Hostile Work Environment,” the Tenth Circuit addressed the question when the employer’s knowledge of harassment was sufficient to impose a duty to prevent or correct. Id. at 783. In that section, the court held that the plaintiff could rely on two types of evidence to establish U.S. West’s knowledge, neither of which was dependent on awareness by the plaintiff herself. She could rely on evidence of harassment that was “similar in nature and near in time” to that which she experienced or on evidence of the “overall pervasiveness” of the harassing conduct. Id. at 784. Because the question was the defendant’s knowledge of harassment and its concomitant responsibility to prevent such behavior, the plaintiff’s awareness was irrelevant.
Evidence of racist conduct not directly experienced by the plaintiff is also relevant to explain the conduct that he did experience. Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 110-11 (3d Cir. 1999). In Hurley, one of the questions explicitly before the court was the admissibility – in a sexual harassment case – of sexist comments made among male employees with no female employees present and harassment of other women that the plaintiff did not witness. Id. at 107. The district court had admitted the evidence based on Rules 401 and 403 of the Federal Rules of Evidence and had issued a limiting instruction so that it would not be considered as part of the hostile environment. Id. at 109. The Third Circuit affirmed, holding that, “A plaintiff’s knowledge of harassment or pervasively sexist attitudes is not . . . a requirement for admitting testimony on those subjects in a harassment suit.” Id. at 110.
Evidence of other acts of harassment is extremely probative as to whether the harassment was sexually discriminatory and whether the [defendant] knew or should have known that sexual harassment was occurring despite the formal existence of an anti-harassment policy. Neither of these questions depends on the plaintiff’s knowledge of incidents; instead, they go to the motive behind the
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harassment, which may help the jury interpret otherwise ambiguous acts, and to the employer’s liability. This kind of evidence is particularly important given the [defendant’s] main defenses at trial, which were that the incidents of abuse [plaintiff] suffered were trivial horseplay to which both men and women were subjected and that its written sexual harassment policy was sufficient to insulate it from liability. Contrary to the [defendant’s] position, it is implausible in the extreme that [plaintiff] was somehow immune from the pervasive sexism at the [defendant’s workplace] as it was described by both female and male officers. Id. at 111. In the present case, the undisputed evidence that Timpte managers knew of and used racial slurs and symbols, see infra at 8, demonstrates that Timpte was aware of racist conduct at its Commerce City facility and that it had a duty to prevent further such conduct. This same evidence reinforces the conclusion – required by the presence of the Black effigy in the noose – that the simulated lynching was motivated by racial animus. Timpte also complains about evidence that Gooden was the only African-American employee at Timpte when he started and one of two such employees the day he discovered the simulated lynching. This evidence is part of “all [of] the circumstances” surrounding the harassment that the Supreme Court has instructed must be examined. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)(“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”). While virtually nothing could reduce the hostility of what Gooden saw on August 7, 1998, the fact that he had been the only AfricanAmerican employee for most of his tenure, and one of two such employees for the preceding three weeks, vastly increases the feelings of isolation and threat. This court has considered such evidence – at least as part of the background – in assessing sexual harassment. See Hansel v. Public Svc. Co. of Colorado, 778 F. Supp. 1126, 1128 (D. Colo. 1991) (noting that, when the
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plaintiff was hired, “there was only one other woman employed [in her position] and there were no women in higher job categories within the operations department”).
Finally, Timpte complains that the previous two nooses that were found at its Commerce City facility are not relevant because they were not harassment. These nooses – which supervisors were or became aware of prior to Gooden’s discovery of the simulated lynching – are relevant to the state of Timpte’s knowledge and lack of action. The motive of the employees who displayed the nooses and the presence or absence of African-American employees when they were displayed are irrelevant to this question.2 II. The Undisputed Facts Demonstrate That Timpte Is Liable for the Hostile
Environment at its Commerce City Facility. A. The Hanging Black Doll Incident Constituted Actionable Racial Harassment. Timpte acknowledges that severity is an independent ground for establishing a violation of Title VII and that a single incident of physically threatening conduct may constitute an abusive environment. Def. Opp. at 10. It argues, however, that the discovery by an AfricanAmerican worker of a Black doll hanging by a noose in his tool cabinet is not subjectively or objectively hostile.

2

Although it is not directly at issue in this Motion – which relies only on the

hanging Black doll as undisputed harassment – Crabtree’s discussion with Gooden of the

“Justice for O.J.” noose is also part of the hostile environment that Gooden experienced, which

environment is to be evaluated from his perspective and from “the perspective of a reasonable

person in the plaintiff’s position.” Oncale v. Sundowner Offshore Svcs, Inc., 523 U.S. 75, 81

(1998). Crabtree’s motives in raising this topic are not as relevant as the thoughtless way in

which he did it and the way in which it was, as a result, perceived.

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Gooden’s initial brief presented sufficient evidence of subjective hostility. Timpte rejects as “conclusory” Gooden’s testimony that he was “scared,” and recites the testimony of a coworker quoting Gooden as saying he was not going to let the incident affect him and wanted to continue working. Timpte ignores most of Gooden’s testimony about his reaction to the simulated lynching, see Gooden Depo. at 152/14, 161/19 - 162/11 (the incident made Gooden feel “threatened” and “disgusted;” he quit that same day because he “started getting spooked” [and] “got scared and didn’t want to go back to the shop another time”) as well as the fact that Gooden did not, in fact, continue working but went home, called the police and never returned to work at Timpte. This is sufficient to demonstrate subjective hostility.
Timpte’s argument that the size of the rope used to form the noose distinguishes this case from Ford v. West, Civil Action No. 97-S-1631 (D. Colo. Mar.18, 1999), borders on absurd. This court’s holding that “the connotations of a noose are sufficiently disturbing to create an actionable racially hostile work environment” did not rely on the size of the noose or its ability to inflict harm but rather on its “connotations.” Id., slip. op. at 7-8. There is no question that a threat of death can be conveyed using words or symbols that cannot, themselves, cause death. See, e.g., Demby v. Preston Trucking Company, Inc., 961 F. Supp. 873, 878 n.9 (recognizing that swastika and words “woch [sic] your back nigger” were “on [their] face a direct threat of physical injury”).
Timpte misinterprets the “objectively hostile” standard to require a showing of motive or intent and claims to be off the hook because the perpetrator of the simulated lynching has not been identified. Def. Opp. at 11. There is no logical connection. The question is not what the perpetrator was thinking but whether the event was, from the perspective of reasonable person in
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the plaintiff’s circumstances, hostile and abusive. See Oncale v. Sundowner Offshore Svcs, Inc., 523 U.S. 75, 81 (1998) (“the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position”). That we do not know who put the objects in Gooden’s tool cabinet does not change the fact that they consisted of a Black doll arranged so as to simulate death by lynching. There can be no doubt that this was an act of racial animus (the Black doll) that was hostile (the simulation of death). Dr. Dorothie Clark, who was designated as an expert witness by Defendant, when asked whether the hanging Black doll was racially hostile, replied, “Well, obviously. The doll was black. And whether you kill by noose or anything else, the threat was there. It was found in his box.” Clark at 64/9-16. And, again, the fact that even Gooden’s white supervisor found it “repulsive” and “racially offensive,” Crabtree 62/24 - 63/2-3, demonstrates that the objective prong is satisfied. See Smith v. Norwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997).
B. Timpte Is Liable for the Harassment Gooden Encountered. Timpte’s misreading of the Hirase-Doi case infects its analysis of its liability for the harassment Gooden encountered. Citing that case and arguing that the hanging Black doll incident was the only incident of which Plaintiff was aware, Timpte asserts that its response to that single incident was sufficient to insulate it from liability. Def. Opp. at 12-13. The question of Timpte’s liability turns on its knowledge of more than just those incidents reported to it by Plaintiff. Rather, as set forth in detail above, see supra at 2-5, Timpte’s liability may be premised on its awareness of incidents “similar in nature and near in time” to the harassment experience by Plaintiff and on the “overall pervasiveness” of the harassing conduct. Hirase-Doi, 61 F.3d at 784. Because Timpte admits its managers knew of and used racial slurs, see Def. Opp. at 1 (¶¶
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1-6), knew that swastikas had been “in and out of [the bathroom] for years,” id. at 3 (¶ 11), and knew that nooses had been displayed at Timpte in the past, id. (¶ 12-13), and that use of racial epithets was widespread among at least some employees, id. at 2 (¶¶ 8-10), it had an obligation to prevent the racial harassment Gooden encountered after he started working at the Commerce City facility.
Timpte’s reliance on Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998) and Creamer v. Laidlaw Transit, Inc., 86 F. 3d 167 (10th Cir. 1996) – both sexual harassment cases – is similarly misplaced, as in neither of those cases was there evidence of sexist conduct prior to the harassment experienced by the plaintiff analogous to the awareness of racial slurs and symbols to which Timpte has admitted. See generally Adler, 144 F.3d at 669-70, Creamer, 86 F. 3d at 169. In contrast to those cases, Timpte’s legal obligation to prevent harassment arose long before Gooden’s first complaint.
Finally, although Timpte attempts to demonstrate that it took adequate preventive measures through general references to policies that prohibit “harassment,” see Def. Opp. at 13, it cannot point to a single policy that was in effect prior to Gooden’s discovery of the hanging Black doll that explicitly prohibited racial harassment, racial slurs, or racist symbols. It is not sufficient to promulgate a “Sexual Harassment Policy” with a general reference, in the final paragraph, to race discrimination and then sit back and hope your employees take it upon themselves to read and understand the caselaw that brings harassment within the purview of discrimination and then to deduce that such harassment can include words they have grown accustomed to using and to hearing their supervisors use. While there may be no “magic words,” Def. Opp. at 13, that constitute a racial harassment policy sufficient to insulate an employer from
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liability, the complete absence of such a policy in light of the undisputed evidence of racist language and conduct falls short, as a matter of law, of Timpte’s duty of prevention.
Conclusion For the reasons set forth above and in the Brief in Support of Plaintiff’s Motion for Partial Summary Judgment, Plaintiff respectfully requests that this Court grant partial summary judgment in his favor, finding Defendant Timpte, Inc. liable under 42 U.S.C. §§ 1981 and 2000e- 2(a)(1) for the harassment encountered by Mr. Gooden at Timpte.
Respectfully submitted, FOX & ROBERTSON, P.C.

Dated: February 28, 2000

Timothy P. Fox Amy F. Robertson 910 - 16th Street Suite 610 Denver, CO 80202 (303) 595-9700
Attorneys for Plaintiff

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Certificate of Service
The undersigned hereby certifies that on February 28, 2000, the foregoing REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT was served by first-class mail, postage prepaid, on:
Todd A. Fredrickson, Esq. Otten, Johnson, Robinson, Neff & Ragonetti 950 17th Street, Suite 1600 Denver, CO 80202

 
 United States District Court, D. Colorado.
Joseph A. GOODEN, Plaintiff, v.
TIMPTE, INC., and Harold Crabtree, Defendants. No. Civ.A. 99 N 795.
June 29, 2000.
Amy Farr Robertson, Timothy P. Fox, Fox & Robertson, P.C., Denver, CO, for Plaintiff.
Darin L. Mackender, Todd Arthur Fredrickson, Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, CO, for Defendants.

Summ. J. Br.”]; admitted at Pl.'s Am. Br. in Opp'n to Def. Timpte, Inc.'s Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts ¶ 1 [filed Feb. 22, 2000] [hereinafter “Pl.'s Am. Resp.”].) FN1 Gooden left Timpte's employ in early August 1998. (Id., Statement of Undisputed Material Facts ¶ 58; admitted at Pl.'s Am. Resp., Resp. to Statement of Undisputed Material Facts ¶ 58.) At the time of his hiring, Gooden was the only African-American employee among the approximately sixty-five employees at the Commerce City facility. (Pl.'s Am. Resp., Statement of Additional Disputed and Undisputed Facts ¶ 9; admitted at Reply in Supp. of Timpte's Mot. and Br. for Summ. J., Resp. Concerning Disputed Facts ¶ 9 [filed Apr. 3, 2000] [hereinafter “Def.'s Summ. J. Reply”].) At the time that he left Timpte's employ, he was one of two African-Americans at the Commerce City facility. (Id., Statement of Additional Disputed and Undisputed Facts ¶ 9; admitted at Def.'s Summ. J. Reply, Resp. Concerning Disputed Facts ¶ 9.)

ORDER AND MEMORANDUM OF DECISION
NOTTINGHAM, J.
*1 This is an employment-discrimination case. Plaintiff Joseph A. Gooden alleges that he was discriminated against on the basis of his race while employed by Defendant Timpte, Inc. (“Timpte”), in violation of title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994), as amended by the Civil Rights Act of 1991, 42 U.S.C.A. § 1981a, [hereinafter “title VII”], and 42 U.S.C.A. § 1981 [hereinafter “section 1981”]. Gooden also asserts state-law claims for ethnic intimidation and intentional infliction of emotional distress. This matter is before the court on: (1) “Defendant Timpte, Inc.'s Motion for Summary Judgment” filed January 24, 2000; and (2) “Plaintiff's Motion for Partial Summary Judgment” filed January 24, 2000. Jurisdiction is based on 28 U.S.C.A. §§ 1331 (West 1993 & Supp.1999), and 42 U.S.C.A. §§ 2000e-5(f)(3).

FN1. On February 16, 2000, Gooden filed his original response to Timpte's summary-judgment motion. (Pl.'s Br. in Opp'n to Def. Timpte, Inc.'s Mot. for Summ. J. [filed Feb. 16, 2000].) Plaintiff's original response weighed in at a whopping forty-one pages, more than double the page limit provided for in this court's Hearing, Conference, and Trial Procedures. On February 22, 2000, having had this error pointed out by opposing counsel, Gooden's counsel filed a motion for leave to exceed the page limit or, alternatively, to file an amended brief. (Pl.'s Mot. for Leave to Exceed the Page Limit or in the Alternative for Leave to File an Am. Br. in Opp'n to Def.'s Mot. for Summ. J. [filed Feb. 22, 2000].) Gooden's motion shall be granted in part and denied in part. The motion shall be granted to the extent that it seeks leave to file an amended response brief, and shall be denied in all other respects.

FACTS

a. Gooden's Employment with Timpte

1. General Background
In April 1998, Timpte hired Gooden, an African-American, as a mechanic/welder at Timpte's Commerce City facility. (Br. in Supp. of Def. Timpte, Inc.'s Mot. for Summ. J., Statement of Undisputed Material Facts ¶ 1 [filed Jan. 24, 2000] [hereinafter “Def.'s

Shortly after Gooden began his employment, co-worker David Rodriguez told Gooden that Mickey Ford, another co-worker, had asked Rodriguez “how was his little nigger boy working out” in the presence of Harold Crabtree, who held a management position directly supervising all welders and mechanics at the Commerce City facility, including Gooden. (Def.'s Summ. J. Br., Statement of Undisputed Material Facts ¶ 7; admitted in pertinent part at Pl.'s Am. Summ. J. Resp., Resp. to Statement of

Undisputed Material Facts ¶ 7.) Rodriguez also reported the exchange to Ryan Cofer, Crabtree's immediate supervisor. (Id., Statement of Undisputed Material Facts ¶ 8; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 8.) While the parties dispute whether Cofer actually spoke with Crabtree regarding Rodriguez's complaint, Rodriguez testified that Cofer told him that he would speak with Crabtree and, later that day, informed Rodriguez that he had done so. (Id., Attach. [Rodriguez Dep. at 43-44].) Following Rodriguez's complaint to Cofer, Rodriguez did not hear Ford use such racial slurs again. (Id., Statement of Undisputed Material Facts ¶ 10; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 10.) Gooden neither directly heard Ford's comment, nor did he complain about the event to other Timpte personnel or management. (Id., Statement of Undisputed Material Facts ¶ 10; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 10.) Sometime later, co-worker Harvey Donahue remarked to Gooden while Gooden washed his hands that “that's your skin, that don't come off .” (Id., Statement of Undisputed Material Facts ¶ 13; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 13.) Gooden did not report this incident to anyone at Timpte. (Id., Statement of Undisputed Material Facts ¶ 14; admitted in pertinent part at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 14.)
*2 In mid-July 1998, Crabtree, who as noted above was Gooden's immediate supervisor, told Gooden about two nooses which had been found in the Timpte shop in the past. (Id., Statement of Undisputed Material Facts ¶ 15; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 15.) Crabtree told Gooden that one noose had been in the shop a long time ago, and that a second, more recent noose had been a joke related to the O.J. Simpson trial. (Id., Statement of Undisputed Material Facts ¶¶ 15-16; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 15-16.) The second noose apparently was a piece of string tied in a loop which his son-in-law had given him as a “Justice for O.J. Simpson” ribbon. (Id., Statement of Undisputed Material Facts ¶ 19; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 19.) Crabtree told Gooden that he was looking for the “Justice for O.J. Simpson” noose but had been unable to locate it and that, if Gooden found it first, Crabtree would “appreciate it if it didn't offend him.” (Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 20.) Crabtree began looking for the “Justice for O.J. Simpson” noose at the Timpte shop after reading several newspaper articles about how similar

nooses found at other companies had been perceived as racial statements. (Def.'s Summ. J. Br., Statement of Undisputed Material Facts ¶ 20; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 20.) Crabtree found and destroyed the “Justice for O.J. Simpson” noose, and Gooden never complained to anyone at Timpte regarding the incident, although the parties vigorously dispute whether Gooden viewed the incident as harassing. (Id., Statement of Undisputed Material Facts ¶¶ 20-21; admitted and disputed at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 20-21.)
After this encounter with Crabtree, Ruben Benevidez, an Hispanic co-worker of Gooden's, told Gooden that Benevidez had been referred to on the Timpte workshop floor as a “beaner.” (Id., Statement of Undisputed Material Facts ¶ 22; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 22.) After hearing this, Gooden recalled that, in mid-April 1998, he had heard Cofer refer to a particular tool in the Timpte shop as a “beaner beater,” although he did not realize at the time that the term contained a derogatory reference to Hispanics. (Id., Statement of Undisputed Material Facts ¶ 23; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 23.) In all, Gooden heard references to the term “beaner beater” about four or five times, including once each by supervisors Crabtree and Cofer, but did not complain to anyone at Timpte regarding the use of the term. (Id., Statement of Undisputed Material Facts ¶¶ 24-25; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 24-25.)
*3 On July 13, 1998, Rodriguez and two other unidentified employees told Gooden that co-worker Tom Quinn had called Gooden a “lazy nigger or something like that....” (Id., Statement of Undisputed Material Facts ¶ 26; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 26.) Rodriguez told Gooden that Crabtree was present during the exchange between Rodriguez and Quinn, and that Crabtree had told both employees to get back to work. (Id., Statement of Undisputed Material Facts ¶ 26; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 26.) Two days later, Gooden complained to Lynda Smittkamp, Timpte's human resources manager, and she involved Gary Manley, a Timpte vice president. FN2 (Id., Statement of Undisputed Material Facts ¶ 26; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 26.) Gooden related the incident to Manley, and Manley responded that he would “handle it.” (Id., Statement of Undisputed Material Facts

¶ 30; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 30.) Gooden indicated to Manley that he did not wish to make a big deal out of the incident, and that he wished to keep the incident “kind of confidential....” (Id., Attach. [Pl.'s Dep. at 137].) Manley told Gooden that, while he could not control how his employees thought, he could control how they behaved in the workplace, and indicated that, whether Gooden wanted him to do something about it or not, Manley was obligated to respond to the situation. (Id., Statement of Undisputed Material Facts ¶ 31.) FN3
FN2. Manley was the general manager of Timpte's Commerce City facility from 1987 until October 1999, when Timpte sold this facility to non-party Truck Parts, Inc. (Br. in Supp. of Pl.'s Mot. for Partial Summ. J., Statement of Undisputed Material Facts ¶¶ 1-2 [filed Jan. 24, 2000] [hereinafter “Pl.'s Partial Summ. J. Br.”]; admitted at Def. Timpte's Resp. to Pl.'s Mot. and Br. for Partial Summ. J., Resp. to Statement of Undisputed Material Facts ¶¶ 1-2 [filed Feb. 16, 2000] [hereinafter “Def.'s Partial Summ. J. Resp.”].)
FN3. In certain instances, Gooden denies one of Timpte's offered undisputed fact but offers citation to evidence in the record which is unresponsive to the factual assertion. In such circumstances, Timpte's offered undisputed fact is deemed admitted for purposes of this order, and I cite only to Timpte's brief.
Manley then went to the shop, found Cofer, and Cofer and Manley proceeded to confront Quinn. (Id., Statement of Undisputed Material Facts ¶ 32; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 32.) Although Quinn denied that he had directed his comment at Gooden, Manley told him that it did not matter because the word was unacceptable at Timpte and would not be tolerated under any circumstances, and that Quinn's employment could be terminated if the conduct were repeated. (Id., Statement of Undisputed Material Facts ¶ 33; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 33.) Thereafter, Cofer told Gooden that he and Manley had spoken to Quinn, that conduct such as Quinn's would not be tolerated, and that if Gooden experienced further problems that he should raise them with Cofer. (Id., Statement of Undisputed Material Facts ¶ 34; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 34.) Gooden

asked whether Quinn would be suspended for the incident, but Cofer responded that he did not expect any further problems from Quinn. (Id., Statement of Undisputed Material Facts ¶ 34; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 34.)
*4 On August 7, 1998, Gooden arrived at his workspace at Timpte, opened his tool cabinet, and discovered a nude Black doll with a noose around its neck hanging from the top of the cabinet. (Br. in Supp. of Pl.'s Mot. for Partial Summ. J., Statement of Undisputed Material Facts ¶ 34 [filed Jan. 24, 2000] [hereinafter “Pl.'s Partial Summ. J. Br.”]; admitted at Def. Timpte's Resp. to Pl.'s Mot. and Br. for Partial Summ. J., Resp. to Statement of Undisputed Material Facts ¶ 34 [filed Feb. 16, 2000] [hereinafter “Def.'s Partial Summ. J. Resp.”].) Gooden pointed out the doll to co-worker Cory Martinez, who paged Crabtree and asked him to come to the area. (Def.'s Summ. J. Br., Statement of Undisputed Material Facts ¶ 37; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 37.) Before Crabtree arrived, Gooden grabbed the doll and showed it to two other co-workers. (Id., Statement of Undisputed Material Facts ¶ 38; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 38.) When Crabtree arrived, Gooden showed him the doll in the locker. Crabtree reacted by grabbing the doll and placing it behind his back. (Id., Statement of Undisputed Material Facts ¶ 39; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 39.) Gooden demanded to see the doll again, and, while Crabtree refused to show it to him initially, Crabtree ultimately relented and gave Gooden the doll. (Id., Statement of Undisputed Material Facts ¶ 39; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 39.) Gooden then confronted Crabtree and other employees with the noose and doll in order to see whether any of the employees acted in a guilty fashion. (Id., Statement of Undisputed Material Facts ¶ 40; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 40.) Crabtree told Gooden that he could go home for the weekend, and that they would talk about the incident the following Monday. (Id., Statement of Undisputed Material Facts ¶ 41; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 41.)
Crabtree immediately contacted Smittkamp and informed her of what had taken place and brought her the noose and doll. (Id., Statement of Undisputed Material Facts ¶ 43; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 43.) Smittkamp telephoned Gooden that morning and discussed the incident with him.

(Id., Statement of Undisputed Material Facts ¶ 45; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 45.) In the course of this conversation, Smittkamp told Gooden that Timpte would investigate the incident, apologized, and told him that Timpte wanted Gooden to return to work the following Monday. (Id., Statement of Undisputed Material Facts ¶¶ 46-47; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 46-47.)

distributed it at this meeting. (Id., Statement of Undisputed Material Facts ¶ 54; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 54.) Neither Gooden nor Timpte ever discovered who had planted the noose and doll in Gooden's locker. (Id., Statement of Undisputed Material Facts ¶ 56; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 56.)

*5 Manley and Smittkamp also met to discuss the noose and doll incident, and Manley contact the Commerce City Police Department to report the incident. (Id., Statement of Undisputed Material Facts ¶ 44; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 44.) Manley decided that, in addition to assisting the Commerce City Police Department with a criminal investigation, Timpte should conduct an internal investigation and, to that end, he and Smittkamp compiled a list of employees who had worked at the Commerce City facility the day before and the day of the incident. (Id., Statement of Undisputed Material Facts ¶ 44; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 44.) During the afternoon, Manley and Smittkamp began to interview shop employees regarding their knowledge of the incident. (Id., Statement of Undisputed Material Facts ¶¶ 49-50; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 49-50.) Manley then went through the shop again to attempt to obtain any additional information. (Id., Statement of Undisputed Material Facts ¶ 51; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 51.) No information was immediately forthcoming. Smittkamp eventually received a lead, but did not pursue it after she determined that the individual named probably had not worked at Timpte for three years prior to the noose and doll incident. (Def.'s Summ. J. Reply, Attach. [Smittkamp Dep. at 113].)
Manley and Smittkamp then held a meeting with all employees to review Timpte's policy against harassment and discrimination. (Def.'s Summ. J. Br., Statement of Undisputed Material Facts ¶ 53; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 53.) At this meeting, Smittkamp and Manley discussed the noose and doll incident and the fact that no information had yet surfaced, and offered the employees a $500 reward for such information. (Id., Statement of Undisputed Material Facts ¶ 53; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 53.) Additionally, Timpte revised its discrimination and harassment policy and

b. Timpte's Employment Policies and Work Environment
During Gooden's employment, Timpte maintained a policy which had gone into effect August 25, 1993, entitled “Company Policy Subject: Sexual Harassment” (“1993 Policy”). (Id., Attach. [Manley Dep ., Ex. B (1993 Policy) ].) The 1993 Policy defines sexual harassment, states management's position that the conduct defined in the 1993 Policy will not be tolerated, and sets forth a procedure for employees to follow for making complaints. (Id., Attach. [Manley Dep., Ex. B (1993 Policy) ].) The 1993 Policy states that it “applies to all employees of Timpte, Inc. in accordance with Federal and State regulations, and is written to inform you of your right to a harassment free work environment and what management at Timpte will do to insure you that we will do our best to protect our employees.” (Id., Attach. [Manley Dep., Ex. B (1993 Policy) ].) The 1993 Policy further provides that federal discrimination laws extend to race, color, religion, gender, national origin, age, and disability discrimination. (Id., Attach. [Manley Dep., Ex. B (1993 Policy) ].) The 1993 Policy was posted on several employee bulletin boards throughout the Timpte's Commerce City facility. (Id., Statement of Undisputed Material Facts ¶ 4; admitted in pertinent part at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 4.) In addition, Smittkamp informed Timpte employees of their ability to raise problems or complaints directly with her or Manley at employee orientation. (Id., Statement of Undisputed Material Facts ¶ 4.) Timpte also distributed an employment-law newsletter, the Manager's Legal Bulletin, to its managers and discussed issues related to discrimination in meetings. (Id., Statement of Undisputed Material Facts ¶¶ 5-6; admitted in pertinent part at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 5-6.)
*6 On August 27, 1998, ostensibly in response to the doll and noose incident, Timpte revised the 1993 Policy (“Revised Policy”). (Id ., Statement of Undisputed Material Facts ¶ 54; admitted at Pl.'s Am. Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 54.) The Revised Policy makes clear that prohibited

harassment includes harassment based upon the individual's race. (Id., Attach. [Manley Dep., Ex. D (Revised Policy) ].) Specifically, the Revised Policy provides that it is Timpte's policy “that all employee are entitle to work in an environment free from all forms of discrimination and harassment including sexual and racial harassment.” (Id., Attach. [Manley Dep., Ex. D (Revised Policy) ].) In addition, Timpte changed the subject line that appeared on the 1993 Policy from “Company Policy: Sexual Harassment” to “Company Policy: Discrimination” on the Revised Policy. (Id., Attach. [Manley Dep., Ex. D (Revised Policy) ].) The Revised Policy further: (1) provides that Timpte will not tolerate jokes or slurs directed at someone's race, color, or membership in any other protected class; (2) includes examples of conduct which may create a hostile work environment; (3) states that an employee engaging in such conduct will be subject to immediate disciplinary action, up to and including termination of employment; and (4) sets forth a procedure for employees to make complaints. (Id., Attach. [Manley Dep., Ex. D (Revised Policy) ].)
In spite of the policies in place at the time of Gooden's employment, it is undisputed that certain racially related remarks had bandied about Timpte's shop both prior to and during Gooden's employment. For example, Timpte admits that “in the past some [of its] employees used the term ‘beaner beater’ to refer to a particular tool, and used the terms ‘nigger-rigged’ and ‘afro-engineered’ to refer to a jerry-built project.” (Pl.'s Partial Summ J. Br., Statement of Undisputed Material Facts ¶ 4; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 4.) In addition, Cofer, a Timpte manager, testified that he heard terms such as “nigger-rigged,” “beaner beater,” and “afro-engineered,” as well as other slang works for race, both before and after becoming a supervisor, without ever telling anyone at Timpte that these terms were unacceptable. (Id., Statement of Undisputed Material Facts ¶ 5; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 5.) Cofer further testified that he observed swastikas drawn as graffiti in the men's restroom at Timpte and that swastika graffiti has “been in and out of [the restroom] for years.” (Id., Statement of Undisputed Material Facts ¶ 11; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 11.) Cofer most recently observed swastikas in the men's restroom more than one year but less than two years prior to October 1999. (Id., Statement of Undisputed Material Facts ¶ 11; admitted in pertinent part at Def.'s Partial Summ. J. Resp. ¶ 11.) Manager John Condon advised one employee who displayed the swastikas that “it was inappropriate to have them around,” and Timpte management told employees that they should not be

writing graffiti in the men's restroom. (Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 11.) In addition, various former Timpte employees testified that they heard and/or used the word “nigger” or “nigger-rigged” a varying numbers of times over their employment. (Id., Statement of Undisputed Material Facts ¶¶ 8-10; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 8-10.) Finally, as discussed above in some detail, two nooses had appeared at Timpte prior to the noose and doll which Gooden discovered in his locker.
2. Procedural History
*7 On April 22, 1999, after exhausting his administrative remedies, Gooden filed his complaint in this court naming Timpte, Crabtree, and “Defendants Does 1 through 10” as defendants. (Compl.¶¶ 4-6.) On August 18, 1999, Gooden filed an amended complaint. (Am. Compl. [filed Aug. 18, 2000].) Gooden alleges that Defendants Does 1 through 10 [hereinafter “unidentified defendants”] are “employees, supervisors[,] and/or managers of Timpte whose identity is unknown to [Gooden] at this time.” (Id. ¶ 6.) Gooden asserts the following claims: (1) constructive discharge and hostile-environment racial discrimination in violation of title VII against Timpte (“first claim”); (2) intentional interference with his right to make and enforce contracts as defined in 42 U.S.C.A. § 1981 against all defendants (“second claim”); (3) a state-law claim for ethnic intimidation in violation of Colo.Rev.Stat. §§ 18-2-121(2) and 13-21-106.5 (1999) against all defendants (“third claim”); and (4) intentional infliction of emotional distress against the unidentified defendants (“fourth claim”).FN4 (Id.)
FN4. In open court on June 23, 2000, at the hearing on the parties' summary-judgment motions, plaintiff's counsel represented to the court that plaintiff was abandoning all claims against the unidentified defendants. Counsel also represented that plaintiff was abandoning his fourth claim for intentional infliction of emotional distress. Based upon the representations of counsel in open court, it is therefore ordered that (1) plaintiff's third claim is dismissed insofar as that claim is asserted against the unidentified defendants, and (2) plaintiff's fourth claim is dismissed.
On January 24, 2000, Timpte moved for summary judgment as to all of Gooden's claims. (Def. Timpte, Inc.'s

Mot. for Summ. J. [filed Jan. 24, 2000].) Timpte contends that it is entitled to summary judgment as to Gooden's first and second claims because: (1) the environment at Timpte was insufficiently racially hostile as a matter of law for purposes of both Gooden's first and second claims; and (2) to the extent that Timpte's work environment was racially hostile, there is an insufficient basis upon which to hold Timpte liable for that environment. (Def.'s Summ. J. Br. at 10-15.) Timpte further contends that it is entitled to summary judgment as to Gooden's third claim for ethnic intimidation because: (1) Gooden cannot establish the elements of an ethnic intimidation claim; and (2) even if he can, Timpte cannot be held vicariously liable for the acts of its employees. (Id. at 16-18.) Finally, Timpte seeks summary judgment that Gooden is not entitled to punitive damages for either his first or second claim as a matter of law. (Id. at 18-20.) Also on January 24, 2000, Gooden moved for partial summary judgment on his first and second claims for racial harassment. (Pl.'s Mot. for Partial Summ. J. [filed Jan. 24, 2000].) Gooden contends that he is entitled to summary judgment on his first and second claims because the noose and doll incident was sufficiently severe as a matter of law to constitute actionable racial harassment. (Pl.'s Partial Summ. J. Br. at 13.)

summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985). The factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 [10th Cir.1990] ).
2. Hostile Environment Harassment-First and Second Claims
a. Timpte's Motion for Summary Judgment
*8 Timpte contends that it is entitled to summary judgment because the conduct of which Gooden complains was not severe or pervasive enough as a matter of law to create an actionably hostile work environment. (Def.'s Summ. J. Br. at 10-15.) Alternatively, Timpte contends that it is entitled to summary judgment because there is an insufficient basis upon which to hold Timpte liable under title VII for its employees' actions. I address each argument separately.

ANALYSIS

i. Severity and Pervasiveness of the Conduct

1. Legal Standard for Summary Judgment
Under rule 56(c), the court may grant summary judgment where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S.Ct. at 2554). The nonmoving party may not rest solely on the allegations in his or her pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). The court may consider only admissible evidence when ruling on a

Although title VII does not explicitly mention hostile-environment race-based harassment, it is well established that a victim of a work environment which is hostile or abusive because of the plaintiff's race may bring a cause of action pursuant to title VII.FN5 Bolden v. PRC, Inc., 43 F.3d 545, 550 (10th Cir.1994). The Tenth Circuit has held that “[f]or a hostile environment claim to survive a summary judgment motion, ‘a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” ’ Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1264 (10th Cir.1998) (quoting Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 [10th Cir.1998] ). In determining whether the conduct complained of was sufficiently severe or pervasive to have affected a term, condition or privilege of employment, a court must consider all pertinent circumstances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295; Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). Among the factors appropriately considered are (1) whether the discriminatory conduct is frequent or severe, (2) whether it is physically threatening or humiliating, or a mere

offensive utterance, and (3) whether it unreasonably interferes with an employee's work performance. Penry, 155 F.3d at 1264. The court also considers the context in which the conduct occurred. Smith v. Norwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir.1997). Not only must the conduct be sufficiently severe or pervasive to create a work environment that is objectively hostile or abusive, but it must also be perceived subjectively as abusive by the victim. “[I]f the victim does not subjectively perceive the environment as abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.” Harris, 510 U.S. at 21-22, 114 S.Ct. at 370. Not all workplace incivility violates title VII: general harassment, if not based upon gender, race, or national origin, is not actionable. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49; see also Bolden, 43 F.3d at 551 (“[G]eneral torment and taunting if not racially discriminatory [is] not actionable.”). Finally, the Tenth Circuit has noted that “the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is ‘quintessentially a question of fact.” ’ O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir.1999) (quoting Beardsley v. Webb, 30 F.3d 524, 530 [4th Cir.1994] [citation omitted] ). With these principles in mind, I turn to Gooden's hostile-environment claims.
FN5. Section 1981 “affords a federal remedy against discrimination in private employment on the basis of race[,]” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975), as does title VII, 42 U.S.C.A. § 2000e-2(a)(1). In 1975, the Supreme Court approved the prosecution of both causes of action by the same plaintiff based upon the same set of facts. Johnson, 421 U.S. at 459-62, 95 S.Ct. at 1719-21. Because the court applies the same standards and burdens to a plaintiff's claims regardless of whether they arise under title VII or section 1981, Aramburu v. Boeing Co., 112 F.3d 1398, 1403 n. 3 (10th Cir.1997), I shall discuss Gooden's first and second claims together.
*9 In order to withstand Timpte's summary-judgment motion, Gooden must show the existence of an issue of fact that the harassment which he suffered was both subjectively and objectively severe. Timpte contends that the conduct of which Gooden complains was not sufficiently severe from a subjective standpoint as a matter of law because Gooden did not view most of the incidents as harassing. (Id. at 12.) Specifically, Timpte relies on the

following statements in Gooden's deposition: (1) Gooden did not take Ford's “little nigger boy” remark seriously and that it was “one of the first incidents that [he] looked the other way on,” although he was angry, frustrated, and “kind of nervous” in response to the comment, (Def.'s Br., Attach. [Pl.'s Dep. at 183-84] ); (2) Gooden “downplayed” the incident with Donahue, (id., Attach. [Pl.'s Dep. at 76-77] ); (3) Gooden failed to complain about the conversation with Crabtree regarding the two nooses which had previously been at Timpte. (id., Attach. [Pl.'s Dep. at 188] ); (4) Gooden never complained about hearing his Hispanic co-workers being referred to as “beaners,” (id., Attach. [Pl.'s Dep. at 196-97] ). I am thoroughly unpersuaded. It does not follow from the fact that Gooden attempted to overlook some of the earlier remarks that he did not subjectively view the environment at Timpte as racially hostile on the whole. Indeed, Gooden testified that he downplayed some of the earlier incidents because he was trying to keep his job, because he hoped that the harassment would stop, and because he did not wish to get someone fired. (App. to Pl.'s Br. in Opp'n to Def. Timpte, Inc.'s Mot. for Summ. J., Ex. 1 [Pl.'s Dep. at 31-32, 77, 137] [filed Feb. 16, 2000] [hereinafter “Exs. to Pl.'s Summ. J. Resp.].) In addition, Gooden testified that, following various incidents, he felt frightened, disgusted, angry, nervous, and frustrated. (Id., Ex. 1 [Pl.'s Dep. at 33, 152, 161-62, 183-84].) Thus, there is, at a minimum, an issue of fact as to whether Gooden felt subjectively harassed.
More importantly, Timpte's argument is really an invitation to the court to examine Gooden's reaction to each “incident” in isolation, rather than consider whether Gooden subjectively viewed the environment as racially hostile as a whole. The question is not whether Gooden felt subjectively harassed in response to each individual instance, but, rather, whether he subjectively perceived that the environment was hostile or abusive under all the circumstances. See Harris, 510 U.S. at 23, 114 S.Ct. at 371 (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”); see also Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir.1999) (“Under the totality of the circumstances approach, a district court should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode.”) (internal quotation and citation omitted). “ ‘A hostile environment claim is a single cause of action rather than a sum total of a number of mutually distinct causes of action to be judged each on its own merits.... [T]he totality of the circumstances necessarily includes the severity, as well as the number, of incidents of harassment.” ’ Hansel v. Public Serv. Co. of Colo., 778 F.Supp. 1126, 1132 (D.Colo.1991) (quoting Vance v. Southern Bell Tel. & Tel.

Co., 863 F.2d 1503, 1511 [11th Cir.1989], overruled on other grounds, Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363 [1989] ). Because Gooden has produced evidence that he felt subjectively harassed overall while at Timpte, I conclude that Timpte is not entitled to summary judgment on this basis.
*10 Next, I turn to the question of whether the harassing conduct was “sufficiently severe that a reasonable person would find the work environment hostile or abusive.” Smith, 129 F.3d at 1413. Timpte argues that it is entitled to summary judgment because: (1) the remarks of which Gooden complains were “merely offensive utterances”; (2) Gooden downplayed the significance of the incidents occurring prior to the noose and doll incident, and, thus, those incidents should be disregarded; and (3) the only truly harassing incident was the noose and doll incident, which is insufficient as a matter of law to create an objectively hostile environment. (Def.'s Summ. J. Br. at 11-12.) Again, I am thoroughly unpersuaded. As discussed above, it is inappropriate for the court to parse out each and every alleged incident and consider each incident in a vacuum in order to determine whether a given incident was “severe.” See Harris, 510 U.S. at 23, 114 S.Ct. at 371; Jackson, 191 F.3d at 660. Thus, the earlier remarks cannot be disregarded and must, instead, be considered along with the noose and doll incident in assessing whether a reasonable jury could find that Timpte's workplace was racially abusive or hostile.
Timpte also argues that, because many of the remarks were not made directly to Gooden, the severity of the harassing effect of the remarks is lessened. While some of the remarks may have originally been made outside of Gooden's hearing, it is undisputed that Gooden's co-workers made him aware of these remarks and, thus, the remarks are relevant to both the subjective and objective hostility of the Timpte workplace. See Miller v. Regents of the Univ. of Colo., No. 98-1012, 1999 WL 506520, *9 (10th Cir. July 19, 1999) (holding that the court should consider all conduct of which plaintiff was aware in considering the hostility of the workplace); see also Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 111 (3d Cir.1999) (holding that evidence of sexist remarks made outside of female workers' hearing was admissible to show “motive behind harassment, which may help the jury interpret otherwise ambiguous acts,” and to demonstrate the “pervasive sexism” present in workplace), cert. denied, 528 U.S. 1074, 120 S.Ct. 786, 145 L.Ed.2d 663 (2000). In addition, the racial slurs directed at Timpte's Hispanic employees of which Gooden was aware are relevant to the existence of a hostile work environment.FN6 See Hirase-Doi v. U.S. West

Communications, Inc., 61 F.3d 777, 782 (10th Cir.1995) (“[E]vidence of a general work atmosphere, including evidence of harassment of other [minority members], may be considered in evaluating a claim.”); see also Cruz v. Coach Stores, Inc., 202 F.3d 560, (2nd Cir.2000) (“Remarks targeting members of other minorities, for example, may contribute to the overall hostility of the working environment for a minority employee.”); Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir.1997) (finding that harassment of other minorities relevant to whether a black police officer experienced a racially hostile or abusive working environment). Moreover, even if Gooden himself were not present or were not the target of some of the racial remarks that he was aware of, a jury plausibly could find that the persistently offensive conduct created an overall “hostile or abusive environment” which exacerbated the effect of the harassment Gooden experienced personally. Id. (citing Harris, 510 U.S. at 21, 114 S.Ct. at 371).
FN6. In Gooden's partial summary judgment motion, he also lists incidents of other racial remarks made or overheard by various members of Timpte's management and Timpte employees. (Pl.'s Partial Summ. J. Br., Statement of Undisputed Material Facts ¶¶ 4-14.) There is absolutely no indication, however, that Gooden was aware of any of these instances prior to discovery in this case. Because the severity-pervasiveness standard is a test aimed at determining whether Gooden experienced an abusive environment, I consider only that conduct of which Gooden was aware during his employment. Miller, 1999 WL 506520, *9 n. 10 (citing Hirase-Doi, 61 F.3d at 782. This is true whether I am evaluating the evidence from Gooden's subjective viewpoint or the reasonable person's objective viewpoint because “[e]ither way the focus remains on the conduct experienced by the plaintiff.” Id. (citations omitted).
*11 Timpte next contends that the noose and doll incident is insufficient to create an triable issue of fact regarding a hostile environment at Timpte because there is no evidence that the incident was racially motivated. (Def.'s Summ. J. Br. at 12.) Timpte may make that astonishing argument to a jury. In light of the undisputed fact that a nude Black doll-as opposed to a doll of some other race-was found hanging from a noose in the locker of an African-American man, it would not require a jury to make a herculean leap of logic to conclude that the noose and doll incident was racially motivated.

Finally, Timpte contends that the conduct complained of was insufficient as a matter of law to constitute pervasive harassment because of the relatively small number of instances and the relatively short period of time during which Gooden was subject to the harassment.FN7 (Id.) Timpte is correct that isolated instances of harassment, while inappropriate and offensive, generally do not constitute pervasive harassment. See, e.g., Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir.1998) (holding two incidents in a two-year period insufficient to create abusive work environment), cert. denied, 525 U.S. 881, 119 S.Ct. 188, 142 L.Ed.2d 154 (1998); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366 (10th Cir.1997) (holding five separate incidents over a span of approximately sixteen months not sufficiently pervasive to create abusive work environment); see also Griffin v. Pinkerton's, Inc., 173 F.3d 661, 665 (8th Cir.1999) (holding five incidents over period of approximately one year not sufficiently pervasive to constitute abusive work environment). Nevertheless, “ ‘there is neither a threshold “magic number” of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.” ’ Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 439 (2nd Cir.1999) (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 [7th Cir.1993] ). In this case, the record reflects several statements over the four months of Gooden's employment with Timpte, culminating with a mock lynching of a nude Black doll in Gooden's locker. In addition, the record taken in the light most favorable to Gooden establishes that these incidents were not sporadic in nature but, rather, occurred steadily over the course of his employment. Consequently, I conclude that a reasonable jury could find that these incidents were sufficiently pervasive, given the relatively short time span over which they occurred, to create a racially hostile environment. Accordingly, I conclude that Timpte is not entitled to summary judgment on this basis.
FN7. As the Tenth Circuit has noted, the test for hostile environment is a disjunctive one, “requiring that the harassing conduct be sufficiently pervasive or sufficiently severe to alter the terms, conditions, or privileges of [p]laintiff's employment.” Smith, 129 F.3d at 1413. Because I have concluded that there exist triable issues of fact with regard to the severity of the harassment, I only touch briefly on its pervasiveness.

Viewing the totality of the circumstances, including the general work atmosphere at the Timpte shop while Gooden was employed there and the specific conduct directed at Gooden and others, I conclude that a reasonable jury could find that Timpte's workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of Gooden's employment and create an abusive working environment. A reasonable jury could find from the evidence in this case, when viewed in the light most favorable to Gooden, that there existed at Timpte a patently offensive pattern of both direct and indirect abuse directed at Gooden and Timpte's Hispanic employees which meets the standard which the Tenth Circuit has established for hostile environment claims. Bolden, 43 F.3d at 551. Gooden has produced sufficient evidence from which a jury could reasonably infer that the racial epithets were more than just occasional utterances. Although Gooden has not cited a great number of instances of racial epithets directed towards him personally, he has cited other instances of racial epithets and other abusive conduct that he has witnessed directed toward other co-workers. This course of conduct culminated with Gooden's discovery of a nude, Black doll hanging from a noose in his locker. Hirase-Doi, 61 F.3d at 781-82 (evidence of a general work atmosphere, including evidence of harassment of others, may be considered in evaluating a claim) (citing Hicks, 833 F.2d at 1415-16). These incidents-of which the noose and doll incident is particularly appalling-have absolutely no place in our society, and a reasonable jury could find that these incidents created a “working environment [ ] so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.” Meritor Sav. Bank, 477 U.S. at 66, 106 S.Ct. at 2405. See also Allen v. Michigan Dep't of Corrections, 165 F.3d 405 (6th Cir.1999) (holding plaintiff made out case of racial harassment because he was, among other things, repeatedly subjected to racial epithets by supervisors and co-workers and received a note on departmental forms which used racial slurs, threatened his life, was signed by the “KKK” and depicted a stick figure with a noose around its neck). Accordingly, Timpte's motion for summary judgment on the basis that the harassment was not severe as a matter of law is denied.
ii. Employer Liability for Workplace Harassment
*12 Timpte next argues that, even if a rationale jury could find that the Timtpe workplace is racially hostile, Timpte is nevertheless entitled to summary judgment because it cannot be held liable for its employees' conduct. FN8 (Def.'s Summ. J. Br. at 13-15.) Where the harasser is a co-worker,

an employer may be liable on a claim of racial harassment for its own negligence in “failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 577 (10th Cir.1990) (setting forth standard in sexual harassment context). The court must make two inquiries in determining the liability of the employer for the racial harassment of a co-worker: “first, into the employer's actual or constructive knowledge of the harassment, and second, into the adequacy of the employer's remedial and preventive responses to any actually or constructively known harassment.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir.1998).
FN8. Different standards governing employer liability for hostile environment harassment exist for harassment undertaken by the victim's supervisors as opposed to the victim's co-workers. Because the parties are in agreement that the standard for co-worker harassment applies, I address only that standard.
Timpte contends that there is no basis upon which a reasonable jury could find that Timpte “acted negligently or recklessly in failing to deal with the alleged harassment of Gooden.” (Def.'s Summ. J. Br. at 14 [citation omitted].) Specifically, Timpte contends that it took adequate preventative measures to avoid harassment as a matter of law by: (1) maintaining and posting the 1993 Policy; (2) informing employees at orientation of their ability to raise problems with Timpte management; (3) training managers though the use of the Manager's Legal Bulletin and in discussion during management meetings; and (4) entering a collective bargaining agreement with the union which prevented discrimination and harassment on the basis of union membership. (Id.) Timpte further contends that its responses to the harassment which Gooden suffered were also reasonable as a matter of law. (Id.)
Timpte's argument appears to be based upon the incorrect assumption that an employer is under no duty to address an allegedly hostile work environment unless and until the harassed employee formally complains. In this case, it is undisputed that Timpte did react quickly in responding to Quinn's remarks and the noose and doll incident. The question, however, is whether the employer failed to “remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable case should have known” Adler, 144 F.3d at 673. Thus, the operative date for

assessing the employer's response to the hostile environment is date that the employer discovered or should have discovered the hostile environment-not necessarily the date upon which the employee actually complained. In cases where there is evidence suggesting that a company's supervisors and management had knowledge of an openly hostile work environment prior to the time that a plaintiff made complaints, yet took no action to intercede and address the hostile environment, courts have denied summary judgment, concluding that a genuine issue of material fact existed as to whether the employer took prompt and effective remedial actions once the employer became aware of the hostile work environment. See, e.g., Jackson, 191 F.3d at 664 (holding that plaintiff had raised issue of fact as to whether employer should have known of hostile environment where there was evidence, inter alia, that employer was slow to eliminate racially offensive graffiti and language which a supervisor knew of); Hurley, 174 F.3d at 111 (citing West v. Philadelphia Elec. Co., 45 F.3d 744, 752 [3d Cir.1995] ) (holding that “[e]vidence of other acts of harassment is extremely probative as to whether the harassment was sexually discriminatory and whether [the defendant employer] knew or should have known that sexual harassment was occurring despite the formal existence of an anti-harassment policy.”); Jackson v. T & N Van Serv., No. Civ. A 99-1267, 2000 WL 562741, at *9 (E.D.Pa. May 9, 2000) (denying summary judgment despite employer's quick response to plaintiff's complaint where there existed question of fact as to whether employer should have know of racially hostile environment before complaint made); Carney v. City of Shawnee, 38 F.Supp.2d 905, 910 (D.Kan.1999) (denying summary judgment where disputed facts existed regarding effectiveness of employer's anti-harassment/non-discrimination policy and whether employer should have known of hostile environment before employee's complaint). In addition, evidence of other acts of racial harassment is probative of whether an employer knew or should have known that racially discriminatory behavior was occurring in the workplace. See Kunin v. Sears Roebuck & Co., 175 F.3d 289, 294 (3rd Cir.1999) (holding that employer can be liable even without a formal complaint from employee “where an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer, or where the harassment is so pervasive and open that a reasonable employer would have had to be aware of it”).
*13 Although Gooden himself did not report each instance of racially related conduct to Timpte's management, there is evidence from which a reasonable jury could conclude that Timpte should have know of the hostile environment

prior to Gooden's complaints. Specifically, Timpte has admitted that “in the past some [of its] employees used the term ‘beaner beater’ to refer to a particular tool, and used the terms ‘nigger-rigged’ and ‘afro-engineered’ to refer to a jerry-built project.” (Pl.'s Partial Summ J. Br., Statement of Undisputed Material Facts ¶ 4; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 4.) In addition, Cofer, a Timpte manager, testified that he heard racially offensive terms both before and after becoming a supervisor. (Id., Statement of Undisputed Material Facts ¶ 5; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 5.) Cofer, moreover, testified that he observed swastikas drawn in the men's restroom at Timpte and that the swastikas have “been in and out of [the restroom] for years.” (Id., Statement of Undisputed Material Facts ¶ 11; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶ 11.) Finally, various former Timpte employees testified that they heard and/or used word “nigger” or “nigger-rigged” a varying numbers of times over their employment. (Id., Statement of Undisputed Material Facts ¶¶ 8-10; admitted at Def.'s Partial Summ. J. Resp., Resp. to Statement of Undisputed Material Facts ¶¶ 8-10.) Under the circumstances, a reasonable jury could find that Timpte should have discovered the allegedly racially hostile environment before Gooden made formal complaints.
Finally, I am unpersuaded by Timpte's attempt to absolve itself from liability on the basis of the 1993 Policy. While Timpte undisputedly had an explicit policy in place with regard to sexual harassment at the time of the events complained of, reasonable minds could differ as to whether the 1993 Policy effectively addressed the racial harassment at issue in this case. Indeed, the fact that Timpte revised the 1993 Policy immediately after the noose and doll incident in order to make crystal clear that racial harassment fell within the aegis of prohibited conduct in its workplace suggests that Timpte itself saw some ambiguity on the issue in the 1993 Policy.
Considered in the light most favorable to Gooden, there is evidence from which a reasonable jury could find that Timpte should have known of the allegedly hostile environment at its Commerce City facility prior to Gooden's complaints. There is evidence that Timpte's managers and employees alike were aware of various racial slurs being regularly circulated in the work place. In addition, there exist questions of fact as to the existence and efficacy of any policy towards racial harassment at Timpte during the relevant time period. Accordingly, Timpte is not entitled to summary judgment.

iii. Punitive Damages
*14 Timpte finally contends that, even if Gooden's first and second claims withstand its motion for summary judgment, Timpte is nevertheless entitled to summary judgment to the extent that Gooden seeks an award of punitive damages. (Def.'s Summ. J. Br. at 18-20.)
Both section 1981 and title VII provide a federal remedy for discrimination in private employment on the basis of race. Johnson, 421 U.S. at 460, 95 S.Ct. at 1720. A prevailing plaintiff in a cause of action under section 1981 is entitled to punitive damages under the common law “under certain circumstances.” Id. at 460, 95 S.Ct. at 1716. Specifically, before a plaintiff may recover punitive damages, section 1981 requires that the plaintiff demonstrate “that the discrimination must have been ‘malicious, willful, and in gross disregard of [plaintiff's] rights.” ’ Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1181 (10th Cir.1989) (quoting EEOC v. Gaddis, 733 F.2d 1373, 1380 [10th Cir.1984] ). Until Congress passed the Civil Rights Act of 1991, however, a plaintiff could not recover punitive damages under title VII. Kolstad v. American Dental Ass'n, 527 U.S. 526,-, 119 S.Ct. 2118, 2123-24 (1999). In 1991, Congress added a provision permitting title VII plaintiffs to recover compensatory and punitive damages where the defendant “engaged in unlawful intentional discrimination” prohibited by title VII. 42 U.S.C.A. § 1981a(a)(1). “A complaining party may recover punitive damages under this section against a respondent ... if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C.A. § 1981a(b)(1). Title VII provides that a plaintiff may only recover punitive damages under title VII if the plaintiff cannot recover punitive damages under section 1981.FN9 42 U.S.C.A. § 1981a(a)(1). As the Supreme Court noted in Kolstad, in adding the punitive damages provisions to title VII, Congress adopted a standard for punitive damages virtually identical to that which the Supreme Court had enunciated for cases brought pursuant to sections 1981 and 1982. Kolstad, 119 S.Ct. at 2124. Consequently, any case law construing the standard for punitive damages set forth in title VII is equally applicable to clarify the standard for punitive damages in a section 1981 claim. Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir.2000).

FN9. In other words, Gooden will only be able recover to punitive damages pursuant to title VII in the event that he does not prevail on his claim for punitive damages under section 1981.
Accordingly, I turn to the legal principles for assessing punitive damages in civil rights case. In order to be eligible for punitive damages, a plaintiff “must show that the [defendant] engaged in [a] discriminatory practice or practices with malice or with reckless indifference to federally protected rights. Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1269 (10th Cir.2000) (citing 42 U.S.C.A. § 1981a[b][1]; Knowlton v. Teltrust Phones, n. 189 F.3d 1177, 1186 [10th Cir.1999] ). The terms “malice” and “reckless indifference” “refer not to the egregiousness of the employer's conduct, but rather to the employer's knowledge that it may be acting in violation of federal law.” Id. (citing Kolstad, 119 S.Ct. at 2124). More specifically, recklessness and malice are to be inferred when a manager responsible for setting or enforcing policy in the area of discrimination does not respond to complaints, despite knowledge of serious harassment.” Id. (citing Baty v. Willamette Indus., Inc., 172 F.3d 1241, 1244-45 [10th Cir.1999] ).
*15 Timpte contends that there is no evidence that it acted with malice or reckless indifference. While it is a close question, construing the evidence in the light most favorable to Gooden, I conclude that there exist disputed issues of fact with regard to whether Gooden can obtain punitive damages should he prevail on either his first or second claim. As discussed above, there are disputed issues of fact as to: (1) when Timpte should have discovered the allegedly hostile nature of the work environment; (2) whether Timpte responded effectively once it knew of the harassment; and (3) the effectiveness of Timpte's anti-harassment policy and its application to Gooden's claim. See T & N Van Servs., Inc., 2000 WL 562741, at *14 (concluding that employer not entitled to summary judgment on punitive damages in co-worker racial harassment case where there existed questions regarding effectiveness of employer's anti-harassment/nondiscrimination policy and whether employer should have known of hostile environment before employee's complaint).
Timpte next argues that, even if there is evidence of recklessness or maliciousness, liability for punitive damages may not be imputed to Timpte itself because the harassers were not managerial-level employees. (Def.'s Summ. J. Br. at 19.) As the Tenth Circuit has noted, however, “employer malice or reckless indifference in

failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew or should have known is premised on direct liability, not derivative liability,....” Deters, 202 F.3d at 1270. The Tenth Circuit has explicitly held that the direct-liability theory is more appropriate where the employer fails to respond adequately to harassment of which management-level employees knew or should have known. Id. at 1270 n. 3. Thus, the relevant inquiry is not whether the conduct of Timpte's employees may be imputed to it under a theory of respondent superior but, rather, whether Timpte “had actual or constructive knowledge of the harassment, and whether its response was adequate.” Id. (citations omitted). Again, as discussed above, there are disputed issues of fact as to the state of Timpte's knowledge about its allegedly abusive work environment and whether its response was adequate. Consequently, Timpte's motion for summary judgment as to Gooden's first and second claims to the extent the Gooden seeks punitive damages must be denied.
b. Gooden's Cross-Motion for Partial Summary Judgment
In addition to Timpte's motion for summary judgment, the court has before it Gooden's motion for partial summary judgment. Gooden contends that he is entitled to judgment as a matter of law that Timpte's work environment was racially abusive or hostile on the basis of the noose and doll he found in his locker. (Pl.'s Partial Summ. J. Br. at 14-15.) Gooden relies primarily on Ford v. West, No. 97-S-1631 (D.Colo. Mar. 18, 1999), a case which was before Judge Sparr of this court. (Id. at15.) In Ford, the plaintiff, an African-American man, discovered an empty noose hanging over a chair in an employee break room at Fitzsimmons Army Medical Center. (App. to Pl.'s Mot. for Partial Summ. J., Ex. 15 [Mem. Op. and Order in Ford v. West, No. 97-S-1631, at 3-4 (D.Colo. Mar. 18, 1999) ] [filed Jan. 24, 2000] [hereinafter “Pl.'s Partial Summ. J. Exs.”].) Believing the noose to be directed at him because of his race, the plaintiff reported the incident, and the Army conducted an investigation. (Id., Ex. 15 [Mem. Op. and Order in Ford v. West, No. 97-S-1631, at 3-4 (D.Colo. Mar. 18, 1999) ].) After conducting an investigation, the Army concluded the noose was not directed at the plaintiff, but, rather, was a practical joke directed at a co-worker based on comments made during a game of dominoes. (Id., Ex. 15 [Mem. Opinion and Order in Ford v. West, No. 97-S-1631, at 3-4 (D.Colo. Mar. 18, 1999) ] .) In the civil action, the plaintiff asserted that the hanging of the noose was racially motivated and intended to harass him. (Id., Ex. 15 [Mem. Op. and Order in Ford v. West, No. 97-S-1631, at 4-5 (D.Colo. Mar. 18, 1999) ].) The plaintiff brought claims for, inter alia, hostile-environment

harassment based upon the hanging of the noose. Upon the defendant's motion for summary judgment, Judge Sparr held that although “the connotations of a noose are sufficiently disturbing to create an actionable racially hostile work environment[,]” the defendant was entitled to summary judgment because the plaintiff had no evidence beyond his subjective belief that the noose was not a joke directed at a co-worker, as the investigator had concluded. (Id., Ex. 15 [Mem. Op. and Order in Ford v. West, No. 97-S-1631, at 7-8 (D.Colo. Mar. 18, 1999) ].)
*16 Gooden contends that Judge Sparr held that the hanging of a noose is always objectively severe and offensive as a matter of law for purpose of a hostile-environment claim. (Pl.'s Partial Summ. J. Br. at 15.) Gooden further contends that the noose and doll in this case is even more offensive because of the presence of the naked, Black doll. (Id.) Thus, he reasons, this court should enter judgment in his favor on his first and second claims for hostile environment insofar as these claims are based on the noose and doll incident because no reasonable jury could find that the work environment at Timpte was not subjectively and objectively racially hostile. (Id.) I am not persuaded. First, I do not read Judge Sparr's opinion as concluding that the presence of a noose will always create a racially hostile environment as a matter of law. To the contrary, I read Judge Sparr's opinion as accepting that the noose could be viewed subjectively and objectively as racially hostile before proceeding to the dispositive issue-namely, that there was a racially neutral explanation for the noose in that case for which the plaintiff had failed to produce evidence tending to rebut that explanation. Thus, I find that Judge Sparr's opinion is inapposite to the case before the court.

Ultimately, a jury should decide this issue.FN10 Accordingly, Gooden's cross motion for partial summary judgment on his first and second claims is denied.
FN10. At least one court has held that a plaintiff had failed to raise an issue of fact as to whether his work environment was objectively abusive and hostile by presenting evidence of seven instances of racially related remarks or conduct over three years, including a black doll hung on doorframe near plaintiff's workstation. Stembridge v. City of New York, 88 F.Supp.2d 276 (S.D.N.Y.2000). While I may disagree with that court's conclusion that this conduct was not hostile as a matter of law, the existence of such a holding buttresses my conclusion that reasonable minds could differ on the issue.
3. Third Claim: Ethnic Intimidation
Under Colorado law, a person may recover damages from any person, organization, or association which commits or incites others to commit the offense of ethnic intimidation. Colo.Rev.Stat. § 13-21-106.5. According to the relevant statute,
(2) A person commits ethnic intimidation if, with the intent to intimidate or harass another person because of that person's actual or perceived race, color, religion, ancestry, or national origin, he or she:

Second, construing the evidence in the light most favorable to Timpte, which I must do for purposes of Gooden's motion for summary judgment, I conclude that Gooden is not entitled to summary judgment on his hostile environment claim as it relates to the noose and doll incident. Although, as discussed above, a jury could quite permissibly infer that the noose and doll incident was racially motivated, I have concluded that it is impermissible to parse out each individual incident in order to assess the objective and subjective hostility of the Timpte workplace. This standard applies with equal force to Gooden's summary-judgment motion. “ ‘A hostile environment claim is a single cause of action rather than a sum total of a number of mutually distinct causes of action to be judged each on its own merits.... [T]he totality of the circumstances necessarily includes the severity, as well as the number, of incidents of harassment.” ’ Hansel, 778 F.Supp. at 1132 (quoting Vance, 863 F.2d at 1511).

...
(b) By words or conduct, knowingly places another person in fear of imminent lawless action directed at that person or that person's property and such words or conduct are likely to produce bodily injury to that person or damage to that person's property....
*17 Colo.Rev.Stat. § 18-9-121(2) (1999).FN11 “A person acts ... ‘with intent’ when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial to the issue of specific intent whether or not the result actually occurred.” Colo.Rev.Stat. § 18-1-501(5) (1999). “A person acts ‘knowingly’ ... with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result. Id. § 18-1-501(6).

FN11. The statute also provides that one commits ethnic intimidation when one knowingly causes bodily injury to another person or damage to or destruction of another person's property with the intent to intimidate or harass that person because of his race, color, religion, ancestry, or national origin. Colo.Rev.Stat. § 18-9-121(2)(a), (c). Because it is undisputed that Gooden did not suffer bodily injury or damage to or destruction of his property, further discussion of these provisions is not required.

Based upon the foregoing, it is therefore
ORDERED as follows:
1. Defendant's motion for summary judgment is GRANTED in part and DENIED in part. The motion is GRANTED to the extent that Timpte seeks summary judgment as to Gooden's third claim against Timpte for ethnic intimidation. The motion is DENIED in all other respects.

Timpte contends that it is entitled to summary judgment on Gooden's third claim because Gooden cannot establish the elements of an ethnic intimidation claims as a matter of law. (Def.'s Summ. J. Br. at 16.) I agree. In order for Gooden to prevail on his ethnic intimidation claim against Timpte, he must show: (1) Timpte intimidated or harassed him; (2) Timpte intended to intimidate or harass Gooden because of his race; (3) Timpte knowingly placed Gooden in fear of imminent lawless action directed at him or his property by its conduct; and (4) Timpte did so knowing that such words or conduct are likely to produce bodily injury to Gooden or damage to his property. Colo.Rev.Stat. § 18-9-121(2)(b). Assuming arguendo that there exist issues of fact with regard to the first three elements of this claim, there is simply no evidence that Timpte engaged in this conduct knowing that “such words or conduct are likely to produce bodily injury to that person or damage to that person's property.” Gooden neither argues otherwise, nor points to any evidence which would suggest that Timpte knowingly undertook words or conduct likely to produce injury to Gooden or damage to his property. Accordingly, Timpte is entitled to summary judgment as to Gooden's third claim against Timpte.FN12

2. Gooden's motion for leave to exceed the page limit or, in the alternative, to file an amended brief is GRANTED in part and DENIED in part. The motion is GRANTED to the extent that Gooden seeks leave to file an amended response to Timpte's summary-judgment motion. The motion is DENIED in all other respects.
3. Plaintiff's motion for partial summary judgment is DENIED.
4. Plaintiff's claims against the unidentified defendants are hereby DISMISSED. Plaintiff's fourth claim is DISMISSED.
5. The court will hold a final pretrial conference in this matter at 2:30 o'clock p.m. on August 4, 2000.
CERTIFICATE OF MAILING

FN12. In his response, Gooden only argues that Timpte may be held directly liable for ethnic intimidation. (Pl.'s Am. Summ. J. Resp. at 18-19.) He appears to concede that Timpte cannot be held vicariously liable for the conduct of its employees, if any, which meets the definition of ethnic intimidation. (Id.) Accordingly, Timpte is also entitled to summary judgment to the extent that Gooden asserts that Timpte is vicariously liable for the conduct amounting to ethnic intimidation undertaken by Timpte's employees.

I hereby certify that a copy of the Order and Memorandum of Decision signed by Judge Edward W. Nottingham on June 28, 2000, was served on June 29, 2000, by hand delivery, where a “D.C.” box number or asterisk is indicated after the recipient's name, or otherwise by depositing it in the United States mail, postage prepaid, addressed to the recipient:
*18 Timothy P. Fox, Esq.
Amy F. Robertson

4. Conclusion

910 16th Street, Suite 610 Denver, CO 80202 Todd A. Fredrickson, Esq. Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, CO 80202 Magistrate Judge O. Edward Schlatter*

 
 Case: 1:99-cv-00795-EWN As of: 06/07/2010 09:37 PM MDT 1 of 6
SuppressAnsRpt, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:99−cv−00795−EWN

Gooden v. Timpte, Inc., et al Assigned to: Judge Edward W. Nottingham Demand: $0 Cause: 42:2000 Job Discrimination (Race)
Plaintiff
Joseph A. Gooden

Date Filed: 04/22/1999 Date Terminated: 10/30/2000 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Amy Farr Robertson Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: arob@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Patrick Fox Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: tfox@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Timpte, Inc.
Defendant

represented by Darin L. Mackender Fisher &Phillips, LLP−Denver 1999 Broadway #3300 Denver, CO 80202−5428 303−218−3650 Fax: 303−218−3651 Email: dmackender@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Arthur Fredrickson Fisher &Phillips, LLP−Denver 1999 Broadway #3300 Denver, CO 80202−5428 303−218−3650 Fax: 303−218−3651 Email: tfredrickson@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:99-cv-00795-EWN As of: 06/07/2010 09:37 PM MDT 2 of 6

Harold Crabtree and Does 1 through 10 TERMINATED: 12/01/1999

Darin L. Mackender (See above for address) TERMINATED: 12/01/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd Arthur Fredrickson (See above for address) TERMINATED: 12/01/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/22/1999 04/22/1999 05/12/1999
05/12/1999 05/17/1999
05/17/1999
05/18/1999 05/21/1999 05/21/1999 07/29/1999
07/29/1999 07/29/1999
07/29/1999 08/05/1999 08/09/1999 08/09/1999 08/10/1999

# Docket Text
1 COMPLAINT (Summons(es) issued); jury demand (former empl) (Entered: 04/23/1999)
FILING FEE PAID on 4/22/99 in the amount of $ 150.00, receipt # 205154. (former empl) (Entered: 04/23/1999)
2 RETURN OF SERVICE of Summons and Complaint upon / by defendant Timpte, Inc. on 4/28/99 giving to Douglas Walliser, Registered Agent (former empl) (Entered: 05/13/1999)
3 RETURN OF SERVICE of Summons and Complaint upon / by defendant Harold Crabtree on 5/5/99 (former empl) (Entered: 05/13/1999)
4 ORDER R16,stat,stlmt,pt,pto Cases referred to Magistrate Judge O. E. Schlatter and General Case Mgt Order by Judge Edward W. Nottingham (cc: to counsel) (former empl) (Entered: 05/18/1999)
5 ORDER FOR RULE 16 CONFERENCE by Magistrate Judge O. E. Schlatter ; Rule 16 conference set for 8:45 7/29/99 (cc: all counsel) (former empl) (Entered: 05/18/1999)
6 ANSWER by defendant complaint [1−1] (former empl) (Entered: 05/19/1999)
7 MEMORANDUM re: service by Judge Edward W. Nottingham (former empl) (Entered: 05/24/1999)
8 CERTIFICATE of Service by plaintiff Joseph A. Gooden (former empl) (Entered: 05/24/1999)
9 COURTROOM MINUTES by Magistrate Judge O. E. Schlatter ; discovery ddl set 12/7/99 ; settlement conf set for 9:00 10/14/99 ; pretrial conf set for 9:15 3/7/00 ; entry date : 7/29/99 Court Reporter: Tape OES 99−26 (gms) (Entered: 07/29/1999)
10 SCHEDULING ORDER Magistrate Judge O. E. Schlatter ; rule 16 conf held 8:45 7/29/99 (cc: all counsel) (gms) (Entered: 07/29/1999)
11 MINUTE ORDER : by Magistrate Judge O. E. Schlatter. Stlmt conf set 10/14/99 at 9:00 and pretrial conf set 3/7/00 at 9:15 a.m. (cc: all counsel) ; entry date : 7/29/99 (gms) (Entered: 07/29/1999)
12 Stipulated PROTECTIVE ORDER by Magistrate Judge O. E. Schlatter re: discovery material (cc: all counsel) (gms) (Entered: 07/29/1999)
13 Unopposed MOTION by plaintiff to amend schedule order (gms) (Entered: 08/06/1999)
14 Unopposed MOTION by plaintiff for leave to amend cmp (gms) (Entered: 08/10/1999)
Tendered Amended Complaint submitted by plaintiff re: motion for leave to amend cmp [14−1] (gms) (Entered: 08/10/1999)
15 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion for leave to amend cmp [14−1] (gms) (Entered:

Case: 1:99-cv-00795-EWN As of: 06/07/2010 09:37 PM MDT 3 of 6

08/18/1999 08/18/1999 08/19/1999 08/19/1999 08/20/1999 08/20/1999 08/27/1999 08/30/1999 08/31/1999 10/26/1999 10/27/1999 10/28/1999 11/10/1999 11/10/1999 11/15/1999 11/29/1999 12/01/1999 12/09/1999 12/10/1999

08/12/1999)
16 ORDER by Magistrate Judge O. E. Schlatter granting motion for leave to amend cmp [14−1] and amd cmp tendered is accepted (cc: all counsel) ; entry date : 8/20/99 (former empl) (Entered: 08/20/1999)
17 AMENDED COMPLAINT [1−1] by plaintiff Joseph A. Gooden; jury demand (former empl) (Entered: 08/20/1999)
18 Unopposed MOTION by plaintiff to extend time to respond to disc to 8/26/99 (former empl) (Entered: 08/20/1999)
19 ORDER by Judge Edward W. Nottingham granting motion to amend schedule order [13−1] ; disp mtn ddl set 1/24/00 (cc: all counsel) ; entry date : 8/20/99 (former empl) (Entered: 08/20/1999)
20 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion to extend time to respond to disc to 8/26/99 [18−1] (former empl) (Entered: 08/23/1999)
21 MINUTE ORDER : by Magistrate Judge O. E. Schlatter granting motion to extend time to respond to disc to 8/26/99 [18−1] (cc: all counsel) ; entry date : 8/23/99 (former empl) (Entered: 08/23/1999)
22 Unopposed MOTION by defendant to extend time to respond to discovery to 9/7/99 (former empl) (Entered: 08/30/1999)
23 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion to extend time to respond to discovery to 9/7/99 [22−1] (former empl) (Entered: 08/31/1999)
24 MINUTE ORDER : by Magistrate Judge O. E. Schlatter granting motion to extend time to respond to discovery to 9/7/99 [22−1] (cc: all counsel) ; entry date : 9/1/99 (former empl) (Entered: 09/01/1999)
25 Unopposed MOTION by plaintiff to amend paragraph 7(d)(1) of sched order (former empl) (Entered: 10/27/1999)
26 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion to amend paragraph 7(d)(1) of sched order [25−1] (former empl) (Entered: 10/28/1999)
27 MINUTE ORDER by Magistrate Judge O. E. Schlatter granting motion to amend paragraph 7(d)(1) of sched order [25−1] regarding [10−1] scheduling order (cc: all counsel) ; entry date : 10/29/99 (former empl) (Entered: 10/29/1999)
28 MOTION by defendant Timpte, Inc. to extend time to 11/17/99 to respond to 2nd set of requests for production (former empl) (Entered: 11/10/1999)
29 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion to extend time to 11/17/99 to respond to 2nd set of requests for production [28−1] (former empl) (Entered: 11/15/1999)
30 MINUTE ORDER by Magistrate Judge O. E. Schlatter granting motion to extend time to 11/17/99 to respond to 2nd set of requests for production [28−1] (cc: all counsel) ; entry date : 11/16/99 (former empl) (Entered: 11/16/1999)
31 Stipulation (MOTION) by plaintiff Joseph A. Gooden, defendant Harold Crabtree to dismiss (former empl) (Entered: 11/30/1999)
32 ORDER by Judge Edward W. Nottingham upon stip to dismiss [31−1], dismissing action w/prej as to party Harold Crabtree each party to pay own costs &fees (cc: all counsel) ; entry date : 12/2/99 (former empl) (Entered: 12/02/1999)
33 Stipulated MOTION by plaintiff, defendant to amend sched order (former empl) (Entered: 12/10/1999)
34 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion to amend sched order [33−1] (former empl) (Entered: 12/13/1999)

Case: 1:99-cv-00795-EWN As of: 06/07/2010 09:37 PM MDT 4 of 6

12/20/1999 01/11/2000 01/11/2000 01/13/2000
01/24/2000 01/24/2000 01/24/2000 01/24/2000 01/24/2000 02/10/2000 02/16/2000 02/16/2000 02/16/2000
02/22/2000 02/22/2000 02/24/2000 02/28/2000 02/28/2000 02/29/2000 02/29/2000

35 ORDER by Magistrate Judge O. E. Schlatter granting motion to amend sched order [33−1] regarding [10−1] scheduling order as set forth; discovery ddl extended to 2/4/00 (cc: all counsel) ; entry : 12/21/99 (former empl) (Entered: 12/21/1999)
36 Unopposed MOTION by defendant to amend sched order &cert of compliance (former empl) (Entered: 01/12/2000)
37 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion to amend sched order [36−1] (former empl) (Entered: 01/12/2000)
38 MINUTE ORDER by Magistrate Judge O. E. Schlatter granting motion to amend [36−1] [10−1] scheduling order on rep of counsel that it shall not affect dispo motion ddl (cc: all counsel) ; entry date : 1/14/00 (former empl) (Entered: 01/14/2000)
39 MOTION by defendant Timpte, Inc. for summary judgment (former empl) (Entered: 01/25/2000)
40 BRIEF by defendant Timpte, Inc. in support of motion for summary judgment [39−1] (former empl) (Entered: 01/25/2000)
41 MOTION by plaintiff Joseph A. Gooden for partial summary judgment as to liability on racial harassment claims (former empl) (Entered: 01/25/2000)
42 BRIEF by plaintiff Joseph A. Gooden in support of motion for partial summary judgment as to liability on racial harassment claims [41−1] (former empl) (Entered: 01/25/2000)
43 APPENDIX filed by plaintiff to motion for partial summary judgment as to liability on racial harassment claims [41−1] (PLACED IN EXHIBIT ROOM) (former empl) (Entered: 01/25/2000)
44 NOTICE of Change of Address of Fox &Robertson by plaintiff (former empl) (Entered: 02/11/2000)
45 RESPONSE by defendant to motion for partial summary judgment as to liability on racial harassment claims [41−1] (former empl) (Entered: 02/17/2000)
46 BRIEF by plaintiff in opposition to motion for summary judgment [39−1] (former empl) (Entered: 02/17/2000)
47 APPENDIX filed by plaintiff to opposition brief [46−1], to motion for summary judgment [39−1] (PLACED IN EXHIBIT ROOM; TAB 20 PLACED UNDER SEAL PURSUANT TO PROTECTIVE ORDER) (former empl) (Entered: 02/17/2000)
48 MOTION by plaintiff to exceed page limitation or for leave to file amd brief in opposition to motion for summary jgm (former empl) (Entered: 02/23/2000)
Tendered Amended Brief in Opposition to Motion for Summary Jgm submitted by plaintiff pending ruling on motion to exceed page limitation or for leave to file amd brief [48−1] (former empl) (Entered: 02/23/2000)
49 RESPONSE by defendant to motion to exceed page limitation or for leave to file amd brief [48−1] (former empl) (Entered: 02/25/2000)
50 MOTION by defendant to amend sched order &cert of compliance (former empl) (Entered: 02/29/2000)
51 REPLY Brief by plaintiff in support of motion for partial summary judgment as to liability on racial harassment claims [41−1] (former empl) (Entered: 02/29/2000)
52 MINUTE ORDER by Magistrate Judge O. E. Schlatter pretrial conf reset for 9:30 3/14/00 (cc: all counsel) ; entry date : 3/1/00 (former empl) (Entered: 03/01/2000)
53 Opposition (RESPONSE) by plaintiff to motion to amend sched order [50−1] (former empl) (Entered: 03/01/2000)

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02/29/2000 03/01/2000 03/03/2000
03/10/2000 03/14/2000 03/14/2000 03/21/2000 03/22/2000 03/23/2000
03/23/2000
03/23/2000 03/24/2000 03/24/2000
03/24/2000 03/27/2000 03/27/2000 03/27/2000 04/03/2000

54 MEMORANDUM by Judge Edward W. Nottingham referring to Magistrate Judge O. E. Schlatter the motion to amend sched order [50−1] (former empl) (Entered: 03/02/2000)
55 MINUTE ORDER by Magistrate Judge O. E. Schlatter regarding [50−1] motion to amend sched order, response due 3/10/00 (cc: all counsel) ; entry date : 3/2/00 (former empl) (Entered: 03/02/2000)
56 ORDER by Magistrate Judge O. E. Schlatter granting motion to amend sched order [50−1] regarding [10−1] scheduling order; defts have to 3/21/00 to designate new expert; plf has to 4/15/00 to depose the new expert (cc: all counsel) ; entry date : 3/6/00 (former empl) (Entered: 03/06/2000)
57 OBJECTIONS to 3/3/00 order granting defts motion to amend sched order by plaintiff concerning order [56−1] (former empl) (Entered: 03/13/2000)
58 COURTROOM MINUTES OF (PRELIM) PRETRIAL CONF by Magistrate Judge O. E. Schlatter ; pretrial conf held 3/14/00 ; proposed order executed; entry date : 3/15/00 Reporter: Tape 00−7 (former empl) (Entered: 03/15/2000)
59 Preliminary PRE−TRIAL ORDER by Magistrate Judge O. E. Schlatter (cc: all counsel) (former empl) (Entered: 03/15/2000)
60 MINUTE ORDER : by Judge Edward W. Nottingham ; motions hrg/in court hrg set for 10:00 5/5/00 (cc: all counsel) ; entry date : 3/22/00 (gms) (Entered: 03/22/2000)
61 RESPONSE by defendant Timpte, Inc. to Pltf's OBJECTIONS to 3/3/00 order [57−1], order [56−1] (gms) (Entered: 03/23/2000)
62 ORDER by Magistrate Judge O. E. Schlatter. Pltf shall have 2 wks following issuance of order by Judge Nottingham resolving matters raised in pltf's objections to order granting motion to amend sched order [56−1] to depose deft's newly designated expert. regarding [10−1] schedule order (cc: all counsel) ; entry date : 3/24/00 (gms) (Entered: 03/24/2000)
65 MINUTE ORDER : by Judge Edward W. Nottingham granting pltf's motion to exceed page limitation or for leave to file amd brief [48−1]. Hrg on objections to [56−1] order granting motion to amd sched order set for 4/27/00 at 6:30 (cc: all counsel) ; entry date : 3/27/00 (gms) (Entered: 03/27/2000)
66 AMENDMENT by plaintiff to brief oppos to deft's motion for sum jgm [46−1] (gms) (Entered: 03/27/2000)
63 MOTION by plaintiff for leave to file reply in support of obj to order granting deft's motion to amend sched order (gms) (Entered: 03/24/2000)
Tendered Reply in Support of Obj to Order Granting Deft's Motion to Amend Sched Order submitted by plaintiff re: motion for leave to file reply in support of obj to order granting deft's motion to amend sched order [63−1] (gms) (Entered: 03/24/2000)
64 Unopposed MOTION by defendant Timpte, Inc. to continue motions hrg set 5/5/00 &cert of compliance (gms) (Entered: 03/27/2000)
67 MINUTE ORDER : by Judge Edward W. Nottingham granting motion to continue motions hrg set 5/5/00 [64−1] ; in court hrg reset for 9:30 6/23/00 (cc: all counsel) ; entry date : 3/28/00 (gms) (Entered: 03/28/2000)
68 MINUTE ORDER : by Judge Edward W. Nottingham granting pltf's motion for leave to file reply in support of obj to order granting deft's motion to amend sched order [63−1] (cc: all counsel) ; entry date : 3/28/00 (gms) (Entered: 03/28/2000)
69 REPLY by plaintiff Joseph A. Gooden in support of objection [57−1] to order granting deft's motion to amend sched order [56−1] (gms) (Entered: 03/29/2000)
70 REPLY by defendant in support of motion &brief for summary judgment [39−1] (former empl) (Entered: 04/05/2000)

Case: 1:99-cv-00795-EWN As of: 06/07/2010 09:37 PM MDT 6 of 6

04/18/2000 05/30/2000 06/20/2000 06/23/2000 06/29/2000
06/29/2000 08/04/2000 08/04/2000 08/18/2000 09/14/2000 10/27/2000 10/30/2000

71 MINUTE ORDER : by Judge Edward W. Nottingham. Hrg set for 4/27/00 at 6:30 a.m. is vacated. (cc: all counsel) ; entry date : 4/19/00 (gms) (Entered: 04/19/2000)
72 ORDER by Judge Edward W. Nottingham: [57−1] OBJECTIONS to 3/3/00 order, [57−2] objections are OVERRULED; [56−1] order shall stand as order of court (cc: all counsel) ; entry date : 5/31/00 (former empl) (Entered: 05/31/2000)
73 MOTION by plaintiff for leave to submit recently decided authority in opp to deft's motion for sum jgm (authority is attached) (gms) Modified on 06/22/2000 (Entered: 06/22/2000)
74 COURTROOM MINUTES by Judge Edward W. Nottingham ; in court hrg held 6/23/00 granting in part and denying in part deft's motion for summary judgment [39−1]. Granted as to ethnic intimiation claim &denied in all other respects. ; entry date : 6/27/00 Court Reporter: Therese Lindblom (gms) (Entered: 06/27/2000)
75 ORDER &MEMORANDUM OF DECISION by Judge Edward W. Nottingham; GRANTING defts motion for summary judgment [39−1] as to 3rd claim for ethnic intimidation &DENYING the motion in all other respects; GRANTING motion to exceed page limitation or for leave to file amd brief [48−1] to extent it seeks leave to file amd response &DENYING the motion in all other respects; DENYING plfs motion for partial summary judgment as to liability on racial harassment claims [41−1]; DISMISSING claims against unidentified defts; DISMISSING 4th claim; final pretrial conf set for 2:30 8/4/00 (cc: all counsel) ; entry date : 6/29/00 (former empl) (Entered: 06/29/2000)
76 MINUTE ORDER : by Judge Edward W. Nottingham granting motion for leave to submit recently decided authority in opp to deft's motion for sum jgm [73−1] (cc: all counsel) ; entry date : 6/29/00 (former empl) (Entered: 06/29/2000)
77 MINUTE ORDER by Magistrate Judge O. E. Schlatter settlement conf set for 10:30 10/5/00 (cc: all counsel) ; entry date : 8/7/00 (former empl) (Entered: 08/07/2000)
78 COURTROOM MINUTES OF FINAL PRETRIAL CONF by Judge Edward W. Nottingham: pretrial conf held 8/4/00; new pto to be submitted w/in 30 days ; final pto NOT APPROVED; parties to schedule stlmt conf w/mag judge; entry date : 8/10/00 Court Reporter: Therese Lindblom (former empl) (Entered: 08/10/2000)
79 MINUTE ORDER by Magistrate Judge O. E. Schlatter settlement conf reset for 1:30 9/28/00 (cc: all counsel) ; entry date : 8/21/00 (former empl) (Entered: 08/21/2000)
80 MINUTE ORDER by Magistrate Judge O. E. Schlatter settlement conf reset for 3:00 11/29/00 (cc: all counsel) ; entry date : 9/15/00 (former empl) (Entered: 09/15/2000)
81 MINUTE ORDER by Magistrate Judge O. E. Schlatter: case has settled; stlmt / dsm papers ddl set for 11/13/00 (cc: all counsel) ; entry : 10/31/00 (former empl) (Entered: 10/31/2000)
82 Stipulation (NOTICE) For DISMISSAL OF CASE W/PREJ by plaintiff Joseph A. Gooden, defendant Timpte, Inc. entry date : 10/31/00 (former empl) (Entered: 10/31/2000)