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Burton v. Heckmann Water Resources

United States District Court, M.D. Pennsylvania

March 27, 2015

CARY BURTON, Plaintiff,


MARTIN C. CARLSON, Magistrate Judge.


The plaintiff in this action, Cary Burton ("Burton" or the "plaintiff"), is an African American man. For several months in 2011, he was employed as a driver by the defendant, Heckmann Water Resources ("Heckmann" or the "defendant"), a company in the business of delivering water for use in hydraulic fracturing by companies extracting natural gas in the Marcellus Shale found in Pennsylvania's Northern Tier counties. Burton drove a truck for Heckmann, delivering water to job sites, and performing related tasks. Burton's time at Heckmann was short, spanning approximately four months. During his tenure, Burton claims that his employment was a distinctly hostile work experience, polluted by a campaign of racially bigoted and threatening comments by his co-workers directed specifically at him, and further aggravated by a lack of support from Burton's direct supervisors, some of whom are also claimed to have been overheard making their own racially insensitive or insulting remarks and responding ineffectively to Burton's complaints for months. After Burton felt physically threatened by a co-worker, and was himself disciplined for a minor accident in a manner he found to be unfair, he left his employment with Heckmann, having found that his work environment was overtly hostile, and having found that management responded ineffectively to his complaints. This lawsuit followed, with Burton claiming that Heckmann discriminated against him on the basis of race, in violation of state and federal law.[1]

The defendant has a very different take on Burton's claims, and particularly on the adequacy of the company's response to Burton's complaints of discrimination by co-workers. Heckmann claims that Burton contributed to the problems he faced at work by failing to assist in the investigation into his allegations of abuse by co-workers by refusing to identify them, and that when the company was later armed with sufficient information about the conduct, it took what it insists was prompt, decisive and appropriate action, including by firing certain employees and providing targeted training by human resources staff. The defendant also suggests that Burton's work environment was not as corrosive as he alleges, and in any event the company maintains that it acted in an appropriate manner when made aware of all of the circumstances surrounding Burton's claims. The defendant further argues that even if the plaintiff encountered regular and routine use of racial epithets in the workplace, the conduct should be declared as a matter of law not to be sufficiently serious as to amount to a hostile work environment that is actionable under state and federal civil rights laws.

The defendant has moved for summary judgment on Burton's claims. Burton has responded to the motion, arguing that the defendant misconstrues the record and that Heckmann improperly urges the Court to view this matter in the light most favorable to Heckmann - something inappropriate at the summary judgment stage. The defendant's motion is fully briefed and is ripe for disposition.

Upon consideration of the entire record, viewing that record in the light most favorable to Burton as we must, and resolving all ambiguities and inferences in Burton's favor, we find that Burton has provided adequate evidentiary support for his hostile work environment claims, and that there remain disputed issues of fact that cannot be resolved through summary judgment motions practice, but require that the claims be put before a jury at trial. Accordingly, the defendant's motion for summary judgment will be denied.


Heckmann Water Resources is a subsidiary of Heckmann Corporation, a Delaware corporation that, along with its various subsidiaries, is an environmental solutions company providing full-cycle environmental solutions to its customers in the energy and industrial end-markets. Heckmann provides fresh water for fracking activities in the Marcellus Shale region, and uses trucks and employs company drivers to transport the water to natural gas sites.

Burton is an African American man, and was hired by Heckmann as a water truck driver in mid-April 2011. He was initially assigned to the night shift, and was compensated at $16 per hour. During each shift, Burton and Heckmann's other drivers would make several runs to and from client sites to deliver fresh water and take away used water.

Heckmann maintained terminals in Hughesville, Pennsylvania, and in Wysox, Pennsylvania. Heckmann also maintained a management office in Williamsport. Ron Eichenlaub, Desmond Warzel, Kevin Little, and Brandon Johnson were among the supervisors at the Hughesville terminal. Bernie Hoover was the site manager at the Hughesville terminal, and Cliff Davis was the operations manager. The supervisors ran nightly meetings with the drivers prior to the start of their shifts.

Shortly after Burton was hired, Karen Martin was hired as Heckmann's Regional Human Resources Manager, stationed in Coraopolis, Pennsylvania. She was hired on May 2, 2011, and remained with the company through the fall of 2013. Deborah Carter-Gordley was Heckmann's Director of Human Resources from January 2011 until June 2012, when her employment ended. While she was with the company, Carter-Gordley was Martin's direct supervisor. (Doc. 48, Dep. of Deborah Carter-Gordley at 11, 12, 20.) At the time Burton was hired, Heckmann had a two-page non-discrimination and reporting policy. (Doc. 56, Ex. 3.) The policy provides, in relevant part, that "Employees with questions or concerns about discrimination in the workplace are encouraged to bring these issues to the attention of their supervisor. Employees can raise concerns and make reports without fear of reprisal." (Id. at 1.)

Within a week after he was hired, the plaintiff found himself exposed to offensive racial slurs uttered within his presence by a white co-worker, David Weidler, who said that "this place is run by niggers." (Doc. 55, Ex. 4, Pl. Verified PHRC Charge; Ex. 5, Pl. Letter to Cliff Davis.) Burton claims that he asked Weidler to refrain from using the word "nigger" in front of him, but alleges that Weidler continued to use offensive and racially derogatory language at work, using terms such as "niggahjew" and making comments like "nigger, please" within Burton's hearing. According to Burton, Weidler used the word "nigger" in front of 15 people, including supervisors, during a pre-shift meeting. (Doc. 52, Burton Dep. at 51-56.)

Burton complained to his supervisors about these statements, including particularly to Rob Eichenlaub and Desmond Warzel. Nevertheless, Burton testified during his deposition that Weidler persisted in using the word "nigger" in front of him and other co-workers, and in the presence of supervisors Eichenlaub, Johnson and Little. (Id. at 54-55.) According to Burton, Weidler would also hold out his hand in a Nazi salute and bark out "Heil, Hitler" during pre-shift meetings, in the plaintiff's presence, and in the presence of Eichenlaub, Johnson and Little. (Id. at 53-55.) During his deposition, Ron Eichenlaub acknowledged that he did not do anything upon hearing the racist remarks. (Eichenlaub Dep. at 68-69.)

Burton complained about not only Weidler's comments, but also those claimed to have been made by another co-worker, Ralph "Zip" Geswhite, who is claimed to have also frequently used the term "nigger" at work sites. Eichenlaub acknowledged that he had overheard Geswhite use the term "quite a bit" and that he reported it to Hoover, the site manager, on multiple occasions. (Eichenlaub Dep. at 58-59.) Burton claims that Geswhite also once said that "old black dogs should be hung with new white rope, " and made this statement while standing a few feet away from the plaintiff, who was the only African American present. (Doc. 52, Burton Dep. at 55-56; Doc. 56, Ex. 1, Eichenlaub Dep. at 46; Pl. SMF Ex. 19 (PHRC letter).) Burton reported this remark to Eichenlaub, who in turn alerted Hoover, who replied that he already knew about it and would take care of it. (Doc. 56, Ex. 1, Eichenlaub Dep. at 47-48.)

Heckmann claims that it acted upon learning of Burton's complaints in May 2011. Thus, Heckmann represents that in May 2011, during a pre-shift meeting Heckmann supervisors made some comments regarding harassment, but it appears that the discussion on the subject was limited, and may not have even touched on racial harassment at all, but may have been focused on sexual harassment in the workplace. (Doc. 59, Pl. Response to Def. Statement of Facts ("Pl. SMF") ¶ 21 and Ex. 29.)

Whatever may have been discussed at one pre-shift meeting in May 2011, according to Burton it did nothing to ameliorate or put a stop to the racially offensive commentary being routinely used by Burton's co-workers. Thus, Burton maintains that David Weidler used the word "nigger" every day in the plaintiff's presence, through May and June 2011. In July 2011, Weidler was overheard describing a location as "the town of Niggerama."

By the end of July, the plaintiff again complained to his supervisors, this time writing a letter to Cliff Davis, the operations manager. Shortly thereafter, the plaintiff was moved to the first shift, although the record contains conflicting evidence as to whether this move was intended to accommodate the plaintiff's concerns about racist comments being made in his presence, or if it was entirely unrelated to this issue. (Def. SMF ¶ 30, Ex. C, Deposition ...

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