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Tinner v. United Insurance Company of America

October 10, 2002


Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 98 C 12--Richard L. Young, Judge.

Before Bauer, Manion, and Rovner, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge


Plaintiff Will Tinner ("Tinner") brought an action under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq., against his employer, United Insurance Company of America ("United"), for race discrimination, a racially hostile working environment, retaliation, wrongful termination, and state and federal counts of constructive discharge. The district court dismissed several of Tinner's claims on summary judgment and a trial proceeded on Tinner's claim for unlawful termination. A jury returned a verdict in favor of United and judgment was entered on the verdict. Tinner first appeals the district court's denial of his Batson challenge, which arose out of United's peremptory strike of the only African-American member of the venire panel. Tinner also appeals the district court's grant of partial summary judgment on several of his discrimination claims because they were time-barred and not subject to a continuing violation theory. We affirm on both counts.


A. Tinner's Employment History with United

United employed Tinner as a Sales Representative at its Evansville, Indiana office from March 19, 1990, through June 10, 1996. United is a home service insurance company whose coverage is generally provided to low-income families. As a Sales Representative, Tinner went door-to-door to service his customers and solicit new business within his assigned geographical area, known as a "debit route." Tinner's compensation came primarily from commissions, and his income fluctuated from month to month based on his level of sales and/or charge backs to his commission as a result of unpaid premiums. During his six years of employment with United, Tinner developed a very successful book of business and twice received the salesman of the year award.

According to Tinner, shortly after beginning his employment, United transferred his debit route from a middle class area of Evansville to the predominately African-American area of the city. Tinner, who is African-American, was told by his superiors that they believed he would be more successful in this area. Tinner, by his own admission, excelled in his new debit route and "did better than anyone else ever has or probably ever will." Tinner believed, however, that United's decision to transfer his debit route in 1990 was discriminatory.

Three years later, in the spring of 1993, an incident occurred between Tinner and Jane Merchant ("Merchant"), a white, female office administrator for United. Apparently, Tinner asked Merchant to complete some paperwork for him, but Merchant took offense at the way in which Tinner carried himself when making the request. Merchant complained to management and Tinner voluntarily apologized to her. The District Manager also admonished Tinner to be careful with the way he treated Merchant in the future. Tinner believed that United discriminated against him in this instance.

In the winter of 1994, following a heavy snowstorm in Evansville, Tinner arrived at work wearing blue jeans, sneakers, and a shirt. United's dress code at the time required Sales Representatives to wear a tie and dress slacks. Tinner's manager told him to return home and change his clothing before attending a sales meeting in the office later that day. The following day, the District Manager presented Tinner with a written warning that Tinner refused to sign. The Regional Manager for United subsequently told Tinner that he would not have to sign the warning. Tinner claims that other employees frequently wore such attire but that management singled him out in discriminatory fashion.

Nothing further occurred until May 1996 when Tinner's District Manager, Angie Petts ("Petts"), asked him to apply for a new Staff Manager position in the Evansville office. After interviewing with the Regional Vice-President, Tinner received a job offer at a salary ten dollars per week higher than his then-average weekly salary. The offer was also fifty dollars per week higher than the then-standard Staff Manager salary. The Regional Vice-President offered Tinner the higher salary because he felt that Tinner's past experience and performance justified the increase. Tinner, however, believed that the offer had the potential to reduce his income by over $400 per month because it was less than his actual salary at that time. Accordingly, he rejected the promotion offer and remained a Sales Representative. *fn1 Tinner believed that United's actions were also discriminatory at the time.

Finally, shortly after rejecting the promotion offer, Tinner requested vacation time from June 10, 1996, through June 14, 1996. Petts denied his request because he had taken a week off in mid-April and because he was not meeting the expected sales increase for his debit route. On June 3, 1996, Tinner called in sick with back pain, for which he sought some form of medical treatment. *fn2 Petts unsuccessfully attempted to reach Tinner at home on the following two days. United introduced evidence at trial establishing that Tinner sought other employment during this time. In fact, on May 30, 1996, Tinner filled out a job application with American General Financial Group. On June 6, Petts spoke with Tinner and informed him that he was to report to work on June 10 or present a doctor's note as to why he could not work. Petts also sent a letter to Tinner's home reiterating the conversation of June 6.

On June 10, 1996, Tinner arrived at United's office and gave an office administrator a letter addressed to Petts containing his two-week resignation notice effective June 21, 1996, as well as a note signed by his doctor stating that he could return to work on June 10. Tinner, however, did not work that day for United, though he did sign an employment contract with American General on June 10, 1996. On June 11, 1996, Tinner received notice that United terminated his employment as of June 10, 1996, because of his failure to return to work that day.

B. Tinner's Claims and the Procedural History

Following his termination, Tinner filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) on September 3, 1996. The EEOC issued Tinner a right-to-sue letter, and he timely filed the instant case on January 20, 1998. Tinner raised claims for race discrimination, a racially hostile working environment, retaliation, wrongful termination, and state and federal counts of constructive discharge.

United filed a motion for summary judgment arguing that the debit route transfer in 1990, the incident with Merchant in 1993, and the dress code violation in 1994 were time-barred because Tinner had failed to file a charge with the EEOC within 300 days of those events. They also argued that the 1996 termination was devoid of discriminatory intent.

Tinner responded that the actions, when taken as a whole under a continuing violation theory, demonstrated a hostile work environment and racial harassment. The district court granted partial summary judgment in favor of United on the three alleged discriminatory acts in 1990, 1993, and 1994 because they were time-barred. It further granted summary judgment to United on Tinner's claims that the promotion offer at lower pay and the denial of vacation in May 1996 were discriminatory. Finally, the court granted summary judgment for United on Tinner's federal constructive discharge, hostile working environment, and retaliation claims.

The court's order left Tinner with only his state constructive discharge claim, for which the court instructed him to file a more definite statement. Tinner complied with that order in December 1999. In March 2000, however, Tinner filed a motion asking the court to reconsider the previous ruling regarding his unlawful termination, claiming new evidence created a genuine issue of material fact as to Petts' racial animus towards Tinner. Specifically, Tinner pointed to affidavit testimony by Clarence James ("James"), a United employee, about a conversation James overheard prior ...

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