Jones v. GT Contracting Corporation

Filing 29

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 2/23/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
QUINTON JONES

:

v.

:

Civil Action No. DKC 14-3539

:
GT CONTRACTING CORPORATION
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case is a motion for summary judgment
filed by Defendant GT Contracting Corporation (“Defendant” or
the “GT”).

(ECF No. 23).

The issues have been fully briefed,

and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.

For the following reasons, Defendant’s motion

for summary judgment will be granted in part and denied in part.
I.

Background
A.

Factual Background1

This case involves claims of discrimination, retaliation,
and harassment brought by Plaintiff against his former employer.
Defendant

is

a

construction

company

that

is

registered

in

Maryland and operates a work yard in Capitol Heights, Maryland.
(ECF Nos. 2 ¶ 2; 24, at 4).

1

Plaintiff is an African-American

The following facts are uncontroverted, alleged
Plaintiff, or construed in the light most favorable to him.

by

male who began his employment with Defendant in April 2013 as a
skilled laborer.
Barbosa,

the

(ECF No. 24, at 4).

president

of

GT,

He was hired by Fernando

on

Plaintiff’s uncle, Julius Jones.

the

recommendation

of

Plaintiff had recently been

released from prison on parole after approximately 20 years of
incarceration.

Defendant was Plaintiff’s first employer since

his release from prison.
In

his

role

as

a

(Id. at 4-5).
skilled

laborer,

Plaintiff

worked

on

outdoor construction sites and received a starting hourly wage
of $12.00.

(Id. at 4).

Defendant’s laborers typically work in

crews of six or seven people and report to the central work yard
before

traveling

to

respective crews.

assigned

construction

sites

with

their

As president, Mr. Barbosa was often present

at the Capitol Heights work yard in the morning as employees
reported for their work assignments.
transport

the

employees

to

the

Each crew has a foreman to

construction

site,

allocate

responsibilities among the laborers, and oversee the work on
site.

At GT, however, the foreman does not have authority to

hire, fire, promote, set pay rates, or staff and assign work
crews.

(Id. at 5).

2

When Plaintiff began working for Defendant, he was assigned
to a crew with Hector Marroquin, Jr. as foreman.2

On November 8,

2013,

retrieve

Mr.

Marroquin

requested

equipment from a truck.

that

Plaintiff

some

When “Plaintiff replied that he would

do it after he finished moving the bricks” (ECF No. 2 ¶ 18), Mr.
Marroquin “came up and grabbed [Plaintiff], then tugged on [him]
and told [him] to go get the [equipment] off the truck [now]”
(ECF No. 27-4, at 55).

Concerned about engaging in a physical

altercation

jeopardize

from

prison,

Plaintiff walked away and contacted his parole officer.

(Id. at

56-57).
shirt,

that

could

his

release

Plaintiff alleges that Mr. Marroquin grabbed him by the
but

acknowledges

Plaintiff

and

that

injuries.

(Id. at 57).

that

Mr.

Plaintiff

did

Marroquin
not

did

suffer

not

any

strike
physical

Furthermore, Mr. Marroquin did not make

any statements about race during this altercation.

(Id. at 89-

90).
Plaintiff reported the incident to Mr. Barbosa on or about
November 12.

(Id. at 119).

Plaintiff also informed Mr. Barbosa

that Mr. Marroquin made racist remarks to the effect of “I don’t
like black people.”

(Id. at 58).

According to Plaintiff, Mr.

Marroquin never used the word “nigger,” but would remark that
“black people don’t work, black people don’t do that, all the
2

Plaintiff refers to Mr. Marroquin, his original foreman,
as “Mr. Malacon” or by his nickname, “Geronni.”
3

time.”

(Id.).

Plaintiff recounted to Mr. Barbosa two instances

when Mr. Marroquin voiced these sentiments.
recalled

that

Mr.

Marroquin

and

First, Plaintiff

Plaintiff’s

uncle

had

an

argument in which Mr. Marroquin said, “[Y]ou don’t do nothing
new all day, I don’t like black people.”

(Id. at 61).

In the

second incident, Plaintiff recollected that he, his uncle, and
his cousin were working at a construction site in Beltsville,
Maryland.

Mr. Marroquin walked up to them saying that “black

people [are] always late . . . .
work.

[B]lack people don’t like [to]

I don’t like black people.

(Id. at 63).

You all go home, go home.”

Immediately thereafter, Plaintiff’s uncle and Mr.

Marroquin spoke and resolved the issue.
When

Plaintiff

made

his

complaint

on

November

12,

Barbosa told Plaintiff to take the rest of the day off.

Mr.
Mr.

Barbosa later informed Plaintiff that he had investigated the
matter by speaking to the supervisor and witnesses who were
present.

(Id. at 71).

Also on November 12, after Plaintiff

reported the physical altercation and Mr. Marroquin’s two racial
remarks

to

discrimination

Mr.

Barbosa,

with

Commission (“EEOC”).3

the

Plaintiff

U.S.

Equal

filed

a

Employment

charge

Opportunity

(ECF No. 24, at 6; see ECF No. 27-3).

3

of

The

Although Mr. Marroquin was Plaintiff’s original foreman
during his employment with Defendant, it is apparent that
Plaintiff also worked on crews with other foremen between April
4

written charge was not provided to Defendant for approximately
one month.

(ECF Nos. 24-2, at 4 (“[Defendant] first learned of

Plaintiff’s

complaint

with

the

[EEOC]

in

or

around

early

December[] 2013, when [it] received a Notice of Charge from the
EEOC.”); 27, at 4).
Plaintiff did not return for one week.

When he did return,

Plaintiff was not subjected to any disciplinary measures and was
assigned to a new crew with a different foreman.
at 7).

Anxious about another physical altercation with Mr.

Marroquin,

Plaintiff

was

“[a]pprehensive

Barbosa assigned him to a new crew.
Plaintiff

(ECF No. 24,

testified

that

he

decided

but

happy”

that

Mr.

(ECF No. 27-4, at 73).
not

to

complain

to

Mr.

Barbosa about workplace harassment and racial slurs because he
“just wanted to keep [his] job.
complain about [it].”

[Plaintiff] didn’t want to

(Id. at 118).

Plaintiff also explained

that he failed to report the harassment because Mr. Barbosa did
not give Plaintiff the opportunity to describe fully the nature
of

the

racially-motivated

harassment

he

felt

on

the

job.

According to Plaintiff, “Mr. Barbosa, when you talk to him, he
screams at you.

. . .

He [doesn’t] give you a chance to

and November 2013.
Plaintiff’s EEOC charge, filed on November
12, alleges the use of racial slurs by another foreman, Mr. Nery
“Nutty” Cortez, as well as two co-workers. Plaintiff, however,
does not recall precise dates or time periods. (See ECF No. 274, at 97-98).
5

communicate.”

(Id.

at

119-20).

Even

so,

when

Plaintiff

complained of the physical altercation with Mr. Marroquin’s to
Mr. Barbosa, he did report two race-based statements by Mr.
Marroquin.
As of November, when he had only received Plaintiff’s oral
complaint, Mr. Barbosa “believed that the placement of Plaintiff
on a crew separate from Mr. Marroquin[] resolved the incident
between the two men.”
163).

Mr.

Barbosa

(ECF No. 24-2, at 4; see ECF No. 27-4, at
maintains

that

he

was

first

alerted

to

Plaintiff’s allegations of racially-charged statements at the
workplace upon receipt of the written EEOC charge.
2,

at

4).

Plaintiff’s

Mr.

Barbosa

written

EEOC

states
charge

in

that,

when

December,

Plaintiff about the allegations . . . .

(ECF No. 24-

he
he

learned
“spoke

of

with

[He] confirmed with

Plaintiff that things were going well on his new crew and any
issues that may have existed were resolved.”

(Id.).

Plaintiff

submitted an affidavit declaring that, “[u]pon receipt of [his
EEOC] complaint, . . . Mr. Barbosa called [him] into his office
and was belligerent.
this?

He told [Plaintiff]: ‘What the fuck is

Why are you creating problems for my company?

have time for this.’”

I don’t

(ECF No. 27-1, at 3).

Plaintiff worked with foremen Mr. Cortez, Mr. Francisco,
and

Mr.

Hector,

among

others,

6

during

his

remaining

time

in

Defendant’s

employ.

(ECF

No.

27-4,

80-81).4

at

Plaintiff

asserts that, after his return to work and assignment to a crew
with Mr. Hector as foreman, Mr. Hector denied Plaintiff lunch
breaks almost every day.

(ECF No. 27-4, at 81-84).

Plaintiff’s

co-workers on the crew, including black and Hispanic laborers,
were given time to eat lunch.

Plaintiff speculates that he was

denied lunch breaks as a result of filing his EEOC charge.
at

86).

He

does

not

offer

any

evidence,

however,

(Id.

that

he

reported the denial of lunch breaks to any supervisors of GT
management.

Similarly, Plaintiff speculates that he was docked

pay due to his protected EEOC complaint.
that

ten

hours

were

missing

from

When Plaintiff noticed

his

paycheck,

he

took

the

advice of a co-worker who suggested that Plaintiff “write it up
and

just

act

like

you

kept

hours.

Even

didn’t keep them, [he] wrote them up.”
showed

the

document

to

Mr.

though

[Plaintiff]

(Id. at 87).

Barbosa

and

Mr.

Plaintiff

Hector,

acknowledged his mistake, and Plaintiff was reimbursed.
87-88).

Plaintiff

has

no

evidence

that

any

foremen were aware of Plaintiff’s EEOC charge.

of

who

(Id. at

Defendant’s

(Id. at 151-52).

In addition, Defendant maintains an employee handbook and
posts

employer

policies

establishing

4

a

company

protocol

for

Plaintiff does not provide full names for these foremen.
Throughout the record, Plaintiff refers to Mr. Cortez as “Mr.
Cortes” and “Nutty.” Defendant also identifies “Foreman Nutty”
as Nery Tobar. (See ECF No. 24-1, at 88).
7

employees to report complaints to “his or her supervisor, their
supervisor’s

manager

before

the

conduct

becomes

severe

or

pervasive, regardless of the offender’s identity or position.”
(ECF No. 24-2, at 15-16).

Plaintiff was aware of these policy

documents posted in Defendant’s office.

(ECF No. 27-4, at 171).

Plaintiff asserts that offensive language was used often by
Defendant’s

employees

at

construction

sites.

According

to

Plaintiff, it began during his first week of employment with
Defendant:
When I first heard the word nigger used on
the site when I was working, it was from
Diego, but he used it frequently, like it’s
– and I figured it was because . . . he
thought it was cool to use it, and he used
it in that term, like, hey, nigger, like
it’s a good thing.
So I told him, don’t –
you don’t do that. You don’t do that. You
don’t use that word.
(Id. at 90).
the

racial

Plaintiff was offended by his co-worker’s use of

slur

because

he

“didn’t

think

Diego

had

a

clear

understanding [of] what that term meant, and I wanted him to
understand what it meant to me.”

(Id. at 100-01).

Plaintiff

complained about the use of the racial slur to his uncle, but he
never reported its use to Mr. Barbosa or any supervisor at GT.
(Id.

at

95,

104,

118).

Although

Plaintiff

denies

that

Mr.

Marroquin used the word “nigger” (id. at 58), Plaintiff asserts
that Mr. Marroquin and others referred to black employees as
“monkeys.”

(Id. at 92-94).
8

Plaintiff further states that another foreman, Mr. Cortez,
also used the racial slur.

Plaintiff recalled instances when

Mr. Cortez would walk past Plaintiff and co-workers at break
time and ask, “[W]hat, you all having a nigger moment?

Or if

you’re smoking – if I pulled out a pack of cigarettes in the
truck,

he

like,

cigarettes.”

only

black

(Id. at 98).

people

smoke

.

.

.

them

nigger

Mr. Cortez continued to use the term

despite Plaintiff’s requests that he stop.

(Id. at 98-99).

Mr.

Cortez used the racial slur more than ten times in Plaintiff’s
presence, but never around managers or other foremen.
113-15).
“negro”

(Id. at

Mr. Cortez also used the Spanish words “moreno” and
to

refer

to

Plaintiff

and

other

black

employees.

Plaintiff understood these terms were directed at him by coworkers and foremen because “they point[ed] at [Plaintiff]” and
said, “[G]et the negro to do it, or . . . get the moreno.”

(Id.

at 103).
Plaintiff did not use racial slurs on the job site, but his
cousin and uncle – both African-American males – did.
99-100).
employees

Plaintiff
used

the

did
term

not

take

because

offense

they

did

when
not

(Id. at

other

use

it

derogatory way . . . meant to cause [Plaintiff] problems.”
at 101).

black
“in

a

(Id.

He acknowledged that “it didn’t sound like [his non-

black co-workers were] using [the slur] offensively,” but “it
became disrespectful” after Plaintiff had asked them to stop.
9

(Id. at 102).

In addition, derogatory terms and slurs were

written in the bathroom stalls or walls at job sites.
106).

(Id. at

During another incident in January 2014, a co-worker, Mr.

Tómas, confronted Plaintiff and used the Spanish word, “negro,”
when

referring

finished

to

digging

Plaintiff.

a

hole,

Upset

Mr.

Tómas

said, “I fucking kick you in your face.
fucking kick you in your face.”

that

Plaintiff

. . .

not

Plaintiff

approached

had

and

Fucking negro, I

(Id. at 107).

Once again,

Plaintiff did not complain to Mr. Barbosa or GT management about
the incident.

(Id. at 108).

Plaintiff received a raise in January 2014.
97).

(Id. at 196-

Defendant’s construction work slowed during the winter

months, however, and by February “there wasn’t work for a couple
of weeks.”

(Id. at 133; see ECF No. 24-2, at 5).

Plaintiff’s

uncle suggested that they take unemployment, and they asked GT
personnel in Mr. Barbosa’s office to be laid off.
4,

at

134).

After

receiving

unemployment

(ECF No. 27-

benefits

for

six

months, Plaintiff did not return to Defendant for work because
he “wanted another job.

[He] didn’t really want to go back

there.”

While drawing unemployment benefits,

Plaintiff

(Id. at 135).
searched

opportunities.

(Id.

for

other

at 137).

employment

and

education

During his search, Plaintiff

listed Mr. Barbosa as a job reference.

(Id. at 143).

Plaintiff

acknowledges that he requested the “winter layoff” and has no
10

reason to believe that he would not have been allowed to resume
employment with Defendant as a laborer had he returned.
144-45).

According to Mr. Barbosa, Plaintiff was “welcome to

return to work at GT at any time.”
B.

(Id. at

(ECF No. 24-2, at 5).

Procedural History

Plaintiff filed an EEOC charge alleging discrimination on
November 12, 2013.

(ECF No. 27-3).

Defendant received notice

of the charge from the EEOC in December 2013 and responded on
April 18, 2014.

(ECF No. 24, at 7; see ECF No. 24-1, at 87).

On September 15, 2014, Plaintiff initiated this action against
Defendant in the Circuit Court for Prince George’s County.
No.

2).

The

termination

in

six-count
violation

complaint
of

the

alleges:
Maryland

(ECF

discriminatory
Fair

Employment

Practices Act (“MFEPA”), Md. Code Ann., State Gov’t § 20–601 et
seq. (Count I); unlawful retaliation under MFEPA (Count II);
unlawful

harassment

discriminatory

in

termination

violation
in

of

violation

MFEPA
of

(Count

Title

VII

III);
of

the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq. (Count IV); unlawful retaliation under Title VII (Count V);
and unlawful harassment in violation of Title VII (Count VI).5

5

The complaint mislabels Count VI as duplicative of Count
III. (ECF No. 2, at 6). This memorandum opinion will refer to
Count VI. In addition, Plaintiff fails to cite the appropriate
MFEPA section. See Md. Code Ann., State Gov’t § 20-606.
11

Defendant timely removed the case to this court on the
basis of federal question jurisdiction over claims brought under
Title VII.

(ECF No. 1).

On November 26, Defendant answered the

complaint.

(ECF No. 14).

Defendant moved for summary judgment

(ECF No. 23), Plaintiff responded in opposition (ECF No. 27),
and Defendant replied (ECF No. 28).
II.

Standard of Review
A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”

Liberty

Lobby, 477 U.S. at 250; JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.

However, no genuine

issue of material fact exists if the nonmoving party fails to
make a sufficient showing on an essential element of his or her
case as to which he or she would have the burden of proof.
Celotex, 477 U.S. at 322–23.

Therefore, on those issues for

which the nonmoving party has the burden of proof, it is his or
12

her responsibility to confront the summary judgment motion with
an “affidavit or other evidentiary showing” demonstrating that
there is a genuine issue for trial.

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir.
2014).

“A mere scintilla of proof . . . will not suffice to

prevent summary judgment.”
(4th Cir. 2003).
significantly

Peters v. Jenney, 327 F.3d 307, 314

“If the evidence is merely colorable, or is not

probative,

summary

judgment

may

be

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
pro

se

litigants

are

to

be

standards apply to everyone.

given

some

latitude,

granted.”
Although
the

above

Thus, as courts have recognized

repeatedly, even a pro se party may not avoid summary judgment
by relying on bald assertions and speculative arguments.

See

Smith v. Vilsack, 832 F.Supp.2d 573, 580 (D.Md. 2011) (citing
cases).
III. Analysis
Plaintiff’s
discriminated

six-count

against

complaint

Plaintiff

by

alleges
fostering

that
a

Defendant

hostile

work

environment, retaliating against Plaintiff in response to his
EEOC charge, and terminating his employment due to his race.
A.

Discriminatory Discharge Claims (Counts I and IV)

Plaintiff has alleged identical claims for discriminatory
discharge under Title VII and MFEPA.
law analogue of Title VII.

“The MFEPA is the state

Maryland courts interpreting MFEPA
13

have often found federal cases arising under Title VII to be
persuasive

authority.”

McCleary-Evans

v.

Maryland

Dep’t

of

Transp., No. ELH-12-1550, 2015 WL 1285325, at *22 (D.Md. Mar.
20,

2015)

(citations

and

internal

quotation

marks

omitted),

aff’d, No. 15-1409, 2016 WL 362287 (4th Cir. Jan. 29, 2016).
When, as here, the “plaintiff has not asserted a distinction
between [his] federal and Maryland discrimination claims,” the
court will apply the same standards of analysis under Title VII
and

MFEPA.

Id.

(citing

Blakes

v.

City

of

Hyattsville,

909

F.Supp.2d 431, 444 (D.Md. 2012)).
Title VII prohibits status-based discrimination based on an
employee’s

personal

characteristics

religion, sex, or national origin.”

such

as

“race,

color,

42 U.S.C. § 2000e-2(a);

Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525
(2013).

To survive a motion for summary judgment, a plaintiff

must provide evidence of intentional discrimination through one
of two avenues of proof: (1) direct or circumstantial evidence
that discrimination motivated the employer’s adverse employment
decision; or (2) the McDonnell Douglas “pretext framework” that
requires

a

plaintiff

to

show

that

“the

employer’s

proffered

permissible reason for taking an adverse employment action is
actually

a

pretext

for

[discrimination].”

Hill

v.

Lockheed

Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)
(en banc) (citing Texas Dep’t of Comm. Affairs v. Burdine, 450
14

U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411
U.S.

792,

807

(1973)).

Here,

Plaintiff

must

rely

on

the

McDonnell Douglas framework because he offers no direct evidence
of discrimination.6
Under

the

McDonnell

Douglas

framework,

once

a

plaintiff

meets his initial burden of establishing a prima facie case for
discrimination, “the burden shifts to the employer to articulate
a

legitimate,

nondiscriminatory

employment action.”

reason

for

Hill, 354 F.3d at 285.

the

adverse

Once the employer

meets this burden of production, “the burden shifts back to the
plaintiff to prove by a preponderance of the evidence that the
employer’s stated reasons ‘were not its true reasons, but were a
pretext for discrimination.’”

Id. (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

“The final

pretext inquiry merges with the ultimate burden of persuading
the

court

that

[the

plaintiff]

6

has

been

the

victim

of

Plaintiff argues that he provides direct evidence of
unlawful discrimination.
(ECF No. 27, at 6).
Direct evidence
of discrimination, however, includes “conduct or statements that
both reflect directly the alleged discriminatory attitude and
that bear on the contested employment decision.” Warch v. Ohio
Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (internal
quotation marks omitted).
If believed, direct evidence “would
prove the existence of a fact . . . without any inference or
presumptions.” O’Connor v. Consol. Coin Caterers Corp., 56 F.3d
542, 548 (4th Cir. 1995) (citation and internal quotation marks
omitted), rev’d on other grounds, 517 U.S. 308 (1996).
Plaintiff presents no direct evidence that Defendant terminated
his
employment
due
to
unlawful
retaliation
or
race
discrimination.
15

intentional discrimination, which at all times remains with the
plaintiff.”

Merritt v. Old Dominion Freight Line, Inc., 601

F.3d 289, 294 (4th Cir. 2010) (internal quotation marks omitted).
To

establish

a

prima

facie

case

of

discriminatory

discharge, Plaintiff must show that he is: (1) a member of a
protected class; (2) he suffered adverse employment action; (3)
he

was

performing

his

job

duties

at

a

level

that

met

his

employer’s legitimate expectations at the time of the adverse
employment action; and (4) the position remained open or was
filled by similarly qualified applicants outside the protected
class.

Hill,

354

F.3d

at

285.

Here,

Plaintiff

fails

to

establish a prima facie case of discrimination because he has
not put forth sufficient evidence to satisfy the second and
fourth prongs.
Defendant challenges whether Plaintiff can demonstrate an
adverse employment action.
employment

action

is

a

(ECF No. 24, at 12).
discriminatory

act

that

“An adverse
‘adversely

affect[s] the terms, conditions, or benefits of the plaintiff’s
employment.’”

Holland v. Wash. Homes, Inc., 487 F.3d 208, 219

(4th Cir. 2007) (quoting James v. Booz-Allen & Hamilton, Inc.,
368

F.3d

371,

375

(4th

Cir.

2004)).

It

“constitutes

a

significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
16

benefits.”

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

761 (1998).

Critically, Plaintiff cannot demonstrate that he

was discharged or demoted, or that he otherwise suffered an
adverse employment action.

Plaintiff asked to be laid off in

order to receive unemployment benefits.

(ECF No. 27-4, at 134).

During his deposition, Plaintiff conceded that Defendant had not
terminated his employment on the basis of race.

(Id. at 146).

In fact, Defendant obliged Plaintiff’s layoff request in order
to be helpful.
benefits

for

(Id. at 149-150).
six

months,

Plaintiff drew unemployment

searched

for

other

employment

and

educational opportunities, and ultimately decided not to return
to Defendant’s employ.

(Id. at 134-138, 144-145).

Accordingly,

he cannot demonstrate an adverse employment action by requesting
to be laid off during the slow winter months and then choosing
not to seek work with Defendant again.
Similarly, Plaintiff offers no evidence that his “position
remained

open

or

was

filled

by

[a]

applicant[] outside the protected class.”
(citation omitted).
States

Court

of

similarly

qualified

Hill, 354 F.3d at 285

Indeed, as a general rule in the United

Appeals

for

the

Fourth

Circuit,

“Title

VII

plaintiffs must show that they were replaced by someone outside
their protected class in order to make out a prima facie case.”
Miles v. Dell, Inc., 429 F.3d 480, 486 (4th Cir. 2005).

Aside

from evidence that Plaintiff’s uncle, an African-American male,
17

returned to work after drawing unemployment benefits, Plaintiff
puts

forth

February

no

evidence

2014.

regarding

Accordingly,

Defendant’s

Plaintiff

employees

cannot

after

establish

the

fourth prong of a prima facie case of discriminatory discharge.
Even assuming arguendo that Plaintiff can establish a prima
facie

case

of

discriminatory

discharge,

Defendant

advances

a

legitimate, nondiscriminatory reason for its purported decision
to

terminate

Plaintiff’s

employment.

Contrary

to

the

allegations in the complaint, Plaintiff conceded that Defendant
did not terminate his employment or discharge him due to his
race.

Plaintiff requested to be laid off so that he could

collect unemployment benefits and search for other employment or
educational opportunities.
must

“prove

both

that

In order to show pretext, Plaintiff
the

reason

discrimination was the real reason.”

was

false,

and

that

Adams v. Trustees of the

Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011)
(emphases in original) (citation and internal quotation marks
omitted).

Moreover,

“plaintiff’s

own

assertions

of

discrimination in and of themselves are insufficient to counter
substantial evidence of nondiscriminatory reasons for an adverse
employment action.”

Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281

(4th Cir. 2000) (citation and internal quotation marks omitted).
Here,

because

discrimination

the
was

not

uncontroverted
the

reason
18

evidence
for

shows

Plaintiff’s

that
layoff,

Defendant is entitled to summary judgment on the discriminatory
discharge claims in Counts I and IV.
B.

Retaliation Claims (Counts II and V)

Plaintiff alleges only that, “[b]y and through its conduct,
Defendant

retaliated

against

Plaintiff

for

filing

a

racial

discrimination claim with the EEOC” in violation of Title VII
and MFEPA.

(ECF No. 2 ¶¶ 36, 51).

As in the discriminatory

discharge context, MFEPA “tracks Title VII’s anti-retaliation
provision

and

pursues

the

same

objectives.”

Jarvis

v.

Analytical Lab. Servs., Inc., No. RWT-10CV1540, 2011 WL 3680257,
at

*9

(D.Md.

Maryland

Aug.

Hosp.,

19,

Inc.,

2011)

320

Md.

(citing
483,

Chappell

494

v.

(1990)),

Southern

aff’d,

459

F.App’x 292 (4th Cir. 2011).
Title
employees

VII
who

2000e–2(a).

prohibits
engage

in

Protected

retaliation

by

a

activity.

protected

activity

the

includes

employer
42

against
U.S.C.

opposing

§

“unlawful

employment practice[s] [under] this subchapter” or “ma[king] a
charge, testif[ying], assist[ing], or participat[ing] in . . .
[a

Title

U.S.C.

VII]

§

investigation,

2000e–3(a).

To

proceeding,

establish

a

or
prima

hearing[.]”
facie

case

42
of

retaliation under Title VII, a plaintiff must show that: (1) he
engaged

in

a

protected

activity;

(2)

an

adverse

employment

action was taken against him; and (3) the protected activity was
causally

connected

to

the

adverse
19

action.

See

Balas

v.

Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir.
2013); Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir.
2007).

Again, because Plaintiff presents no direct evidence of

retaliation, his retaliation claim will be analyzed under the
McDonnell
F.App’x.

Douglas
153,

framework.

155

(4th

See

Cir.

Staley

2014).

v.

Gruenberg,

Plaintiff

575

engaged

in

protected activity by filing an EEOC charge in November 2013,
and Defendant received notice of the charge the following month.
Defendant asserts that Plaintiff cannot establish the second and
third prongs of a prima facie retaliation case.

(ECF No. 24, at

22).
There can be no viable argument that Defendant terminated
his employment in retaliation for filing the EEOC charge because
the evidence demonstrates that Plaintiff voluntarily requested
to be laid off in order to draw unemployment benefits.
result,

Plaintiff

cannot

demonstrate

an

adverse

As a

employment

action, and his prima facie case of retaliation fails.

It also

bears repeating that, as explained above, Defendant has provided
a legitimate, nondiscriminatory reason for laying off Plaintiff,
which is that the pace of work slowed in the winter months and
Plaintiff

requested

unemployment

to

benefits.

be

laid

Beyond

off

offering

in

order

mere

to

collect

speculation

and

inference, Plaintiff concedes that he has no evidence to the
contrary.

(See

ECF

No.

27-4,
20

at

146-50).

As

with

his

discriminatory

discharge

claim,

Plaintiff

fails

to

provide

evidence - or even a forecast of evidence - that Defendant’s
explanation constitutes pretext.
Furthermore, to the extent that Plaintiff argues that the
denial of lunch breaks or his docked pay constitute unlawful
retaliation, Plaintiff cannot show any causal connection.
causal

connection

“exists

where

[an]

employer

takes

A

adverse

employment action against an employee shortly after learning of
the protected activity.”

Price v. Thompson, 380 F.3d 209, 213

(4th Cir. 2004) (citation omitted).

In addition, because “an

employer cannot take action because of a factor of which it is
unaware, the employer’s knowledge that the plaintiff engaged in
a protected activity is absolutely necessary to establish the
third element of the prima facie case.”
F.Supp.2d

573,

quotation

marks

586

(D.Md.

omitted).

2011)
Here,

Smith v. Vilsack, 832

(citations
Defendant

did

notice of Plaintiff’s EEOC charge until December.
2, at 4; 27, at 4).

and
not

internal
receive

(ECF Nos. 24-

Plaintiff offers no evidence that Mr.

Hector was aware of the EEOC charge at the time he allegedly
denied Plaintiff’s lunch breaks or docked his pay.

(See ECF No.

27-4,

linking

denial

at

86).

of

speculation.

Moreover,

his

lunch

(Id.).

Plaintiff

breaks

to

agreed

the

EEOC

that

charge

is

the
mere

Concerning the lost hours on Plaintiff’s

21

paycheck, he similarly conceded that a causal connection with
the EEOC charge is only speculative.
Plaintiff

cannot

point

to

(Id. at 87).

any

evidence

that

raises

a

genuine issue of material fact about the Mr. Hector’s awareness
concerning his earlier EEOC charge.
prior

protected

activity

alone

Knowledge of an applicant’s
would

be

insufficient

establish causation for the purposes of retaliation.

to

Gibson v.

Old Town Trolley Tours of Washington, D.C., Inc., 160 F.3d 177,
182 (4th Cir. 1998) (citations omitted).
that

Defendant

was

motivated

in

There must be evidence

some

way

by

Plaintiff’s

protected activity to take adverse employment action.

See id.

Here, Plaintiff presents no such evidence, and he cannot create
a genuine issue of material fact through mere speculation or the
building of inference upon inference.
213, 214 (4th Cir. 1985).
connection

between

Beale v. Hardy, 769 F.2d

Accordingly, there can be no causal

Plaintiff’s

protected

activity

and

any

adverse employment actions taken by Defendant or its employees.
Summary

judgment

will

be

entered

against

Plaintiff

on

the

retaliation claims in Counts II and V.
C.

Hostile Work Environment Claims (Counts III and VI)

Plaintiff

alleges

that,

“[b]y

and

through

its

conduct,

Defendant subjected Plaintiff to a hostile work environment [due
to] racial harassment” in violation of Title VII and MFEPA.
(ECF No. 2 ¶¶ 41, 56).

Given that “Maryland courts routinely
22

look

to

the

Title

VII

context

to

determine

the

scope

of

liability under the [MFEPA],” Plaintiff’s identical claims of
hostile work environment will be analyzed together.

Roberts v.

Office of the Sheriff for Charles Cty., No. DKC-10-3359, 2012 WL
12762, at *11 n.17 (D.Md. Jan. 3, 2012) (citations omitted).
Under

Title

workplace

VII,

is

a

hostile

permeated

environment

with

exists

discriminatory

“[w]hen

the

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.”

Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (citations and internal quotation marks
omitted).
To prevail on a hostile work environment claim, a plaintiff
must show that there is: (1) unwelcome conduct; (2) that is
based on the plaintiff’s race; (3) which is sufficiently severe
or pervasive to alter the plaintiff’s conditions of employment
and to create an abusive work environment; and (4) which is
imputable
Corp.,

786

to

the

F.3d

employer.
264,

277

Boyer-Liberto

(4th

Cir.

2015);

v.
Okoli

Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).

Fontainebleau
v.

City

Of

Courts determine

whether an environment is sufficiently hostile or abusive by
looking at all of the circumstances, “including the frequency of
the

discriminatory

physically

conduct;

threatening

or

its

severity;

humiliating,
23

or

whether
a

mere

it

is

offensive

utterance;

and

whether

it

unreasonably

employee’s work performance.”

interferes

with

an

Faragher v. City of Boca Raton,

524 U.S. 775, 787-88 (1998) (citation and internal quotation
marks omitted).
can

show

that

Here, Defendant challenges whether Plaintiff
the

harassment

was

sufficiently

severe

or

pervasive and that the harassment is imputable to Defendant.
Plaintiff argues that he experienced severe or pervasive
harassment that altered his conditions of employment and created
an abusive work environment.

(ECF No. 27, at 9).

As detailed

above, Plaintiff has presented evidence that he was subjected to
numerous racial slurs and racist declarations at the workplace
by

co-workers

physical

and

foremen

altercation

Plaintiff’s

race,

with

there

alike.
Mr.

remains

Even

Marroquin

assuming

that

the

was

based

on

sufficient

abusive and hostile work environment.

not

evidence

of

an

The slurs he says were

used by Defendant’s employees – “nigger” and “monkey” – are
odious epithets far beyond mere offensive utterances.

The use

of “the word ‘nigger’ is pure anathema to African–Americans.”
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001).
“Similarly, describing an African–American as a ‘monkey,’ and
thereby ‘suggest[ing] that a human being’s physical appearance
is essentially a caricature of a jungle beast[,] goes far beyond
the merely unflattering; it is degrading and humiliating in the
extreme.”

Boyer-Liberto, 786 F.3d at 280 (quoting Spriggs, 242
24

F.3d at 185).
conditions

“Perhaps no single act can more quickly alter the

of

employment

and

create

an

abusive

working

environment than the use of an unambiguously racial epithet such
as

‘nigger’

by

subordinates.”
Western–Southern
1993)).

a

supervisor

in

the

presence

of

his

Spriggs, 242 F.3d at 185 (quoting Rodgers v.
Life

Ins.

Co.,

12

F.3d

668,

675

(7th

Cir.

The evidence of frequent and highly repugnant racial

slurs is sufficient to demonstrate a severe or pervasive (or
both)

hostile

sensibilities.
Plaintiff

work

environment

See id.

himself

for

a

person

of

ordinary

There is also sufficient evidence that

regarded

the

conduct

as

offensive,

as

he

testified that he complained to Mr. Barbosa of Mr. Marroquin’s
racist declarations and to both Mr. Cortez and Diego about their
use of racial slurs.

Accordingly, a reasonable jury examining

the totality of the circumstances could find that Plaintiff was
subjected to severe or pervasive conduct, based on his race,
that created an abusive work environment during his employment
with Defendant.
Plaintiff must also demonstrate, however, that the hostile
work environment is imputable to Defendant.

Employers are not

automatically liable for acts of harassment levied by co-workers
or supervisors against subordinates.

Rather, there must be some

basis in law for imputing the acts of co-workers or supervisors
to the employer, and the status of the harasser is relevant.
25

Regarding harassment by co-workers, the Fourth Circuit has “held
that an employer cannot be held liable for isolated remarks of
its employees unless the employer ‘knew or should have known of
the harassment, and took no effectual action to correct the
situation.’”

Spicer v. Com. of Va., Dep’t of Corr., 66 F.3d

705, 710 (4th Cir. 1995) (quoting Katz v. Dole, 709 F.2d 251, 256
(4th

Cir. 1983));

“[n]egligence

see Ellerth, 524 U.S. at 759 (noting that

sets

under Title VII”).

a

minimum

standard

for

employer

liability

In cases of harassment by a supervisor “with

immediate (or successively higher) authority over the employee,”
an

employer

may

be

found

vicariously

liable.

Ocheltree

v.

Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (citing
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807–08).7
employer

may

escape

liability

if

it

demonstrates,

“as

The
an

affirmative defense, that (1) the employer exercised reasonable
care to prevent and correct any harassing behavior and (2) that
the

plaintiff

preventive

or

unreasonably
corrective

failed

to

take

opportunities

7

advantage

that

the

of

the

employer

The harasser qualifies as a supervisor, rather than a coworker, “if he or she is empowered by the employer to take
tangible employment actions against the victim.” Vance v. Ball
State Univ., 133 S.Ct. 2434, 2439 (2013).
An employee so
empowered can “effect a ‘significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits.’”
Id. at 2443
(quoting Ellerth, 524 U.S. at 761).
A supervisor has the
“authority to inflict direct economic injury.” Id. at 2448.
26

provided” or to avoid harm otherwise.

Vance, 133 S.Ct. at 2439;

see Spriggs, 242 F.3d at 186.
Plaintiff offers no evidence that Defendant’s foremen were
supervisors,

“empowered

by

the

employer

to

take

tangible

employment actions against the victim.”

Vance, 133 S.Ct. at

2439.

Here,

work

foreman

to

according

drive

to

them

to

Mr.
the

Barbosa,
job

site,

crews

assist

“have
with

a

the

allocation of job duties, and help oversee the workers while at
the job site.
hire

or

The foremen have no authority to set pay rates,

fire.”

(ECF

No.

24-2,

at

2).

The

uncontroverted

evidence is that Mr. Barbosa is “solely responsible for all
decisions

related

to

promoting employees.”

hiring,

firing,

(Id. at 3).

setting

pay

rates

and

Defendant’s foremen “did not

possess any hierarchical significance . . . and are perhaps best
characterized as team leaders or firsts among equals . . . as
opposed

to

the

types

of

employees

that

could

be

supervisors for establishing vicarious liability.”

considered
E.E.O.C. v.

L.A. Pipeline Constr., Inc., No. 2:08-CV-840, 2010 WL 2301292,
at *11 (S.D.Ohio June 8, 2010); see E.E.O.C. v. Ralph Jones
Sheet Metal, Inc., 777 F.Supp.2d 1119, 1124 (W.D.Tenn. 2011)
(explaining

that

because

the

foreman

“exercised

supervisory

authority, imposed discipline, and influenced hiring and firing
at the company,” he “clearly functioned as a supervisor” such
that his actions were attributable to the defendant); E.E.O.C.
27

v.

Ceisel

Masonry,

Inc.,

594

F.Supp.2d

1018,

1025

(N.D.Ill.

2009) (“The bulk of [the foreman’s] job duties consisted of
supervising the work of bricklayers and laborers and ensuring
the safety of the jobsite.
authority

to

employees.”).

hire,

[The foreman] did not have the

fire,

demote,

promote

or

transfer

“In the absence of the requisite authority, a

title such as ‘foreman’ does not transmogrify a line employee
into a supervisor for Title VII purposes.”

Wilson v. Moulison

N. Corp., 639 F.3d 1, 10 (1st Cir. 2011) (citing Cheshewalla v.
Rand & Son Constr. Co., 415 F.3d 847, 850–51 (8th Cir. 2005)).
Defendant’s foremen are not supervisors under Title VII, and the
court need not consider whether Defendant has established the
affirmative defense to vicarious liability.
Although Plaintiff creates no material dispute of facts as
to

whether

Defendant

Defendant’s
nonetheless

foremen
can

be

environment

created

by

controlling

working

can

be

liable

co-workers

conditions.”

“if

deemed
for

a

it

was

Vance,

133

supervisors,
hostile

work

negligent

S.Ct.

at

in

2439.

Under the negligence standard, Defendant may be liable “if it
knew or should have known about the harassment and failed to
take effective action to stop it.”
(citing Spicer, 66 F.3d at 710).

Ocheltree, 335 F.3d 333-34

Moreover, “a plaintiff seeking

to impute liability to [his] employer for harassment by a coworker may not be able to establish the employer’s negligence if
28

[he] did not report the harassment.”
278.

Boyer-Liberto, 786 F.3d at

Here, Plaintiff complained orally to Mr. Barbosa of the

physical altercation with Mr. Marroquin, as well as two separate
incidents

during

which

Mr.

Marroquin,

in

the

presence

Plaintiff, stated that he did not like black people.

of

Plaintiff,

however, never reported the harassing conduct of co-workers and
foremen directly to Mr. Barbosa or any supervisor at GT.
No. 27-4, at 95, 104, 118).

(ECF

Plaintiff also was aware that

Defendant maintained company policies establishing a protocol
for employees to report complaints of harassment.

(Id. at 171).

Until receiving Plaintiff’s EEOC charge in December 2013, Mr.
Barbosa knew only that Plaintiff and Mr. Marroquin had a single
physical altercation and that Plaintiff heard Mr. Marroquin make
two

racially

insensitive

remarks.

In

November,

Mr.

Barbosa

sought to remedy the situation by placing Plaintiff on a crew
with

a

different

Marroquin,
incident.

Mr.

foreman.

Barbosa

By

separating

believed

that

he

Plaintiff
had

and

Mr.

resolved

the

(ECF No. 24-2, at 4; see ECF No. 27-4, at 163).

Plaintiff’s written EEOC charge, filed in November 2013 but
not received by Defendant until the following month, provided
Defendant with notice of allegations beyond the circumstances of
Plaintiff’s

altercation

with

Mr.

Marroquin.

The

charge

described the harassing use of racial slurs by co-workers and
foremen, including Mr. Cortez.
29

(ECF No. 27-3, at 2 (“I was

subjected to racially offensive comments and conduct by my co[]workers and [f]oremen.

For example, . . . a co[-]worker said,

‘Nigger do this,’ or ‘Nigger do that.’
[b]lack

co[-]worker

moment?’”)).
the

and

me,

[Mr. Cortez] said to a

‘What

is

this?

A

nigger

There is no evidence that Plaintiff complained of

pervasive

use

of

racial

slurs

to

Mr.

Barbosa

directly

through company complaint protocol or in any informal manner.
Neither is there evidence that Mr. Barbosa and GT management
were

aware

notice

of

of

alleged

Plaintiff’s

workplace
EEOC

harassment

charge

in

early

before

receiving

December.

When

Defendant “received a Notice of Charge from the EEOC,” however,
it “became aware of Plaintiff’s allegations of racially-charged
statements
question

at

is,

the
then,

workplace.”
whether

(ECF

No.

Defendant

24-2,

at

responded

4).

promptly

The
and

effectively, and whether Plaintiff was subjected to workplace
harassment

between

December

2013

Plaintiff requested to be laid off.
(“When

presented

with

the

and

February

2014,

when

See Spicer, 66 F.3d at 711

existence

of

illegal

conduct,

employers can be required to respond promptly and effectively,
but

when

an

employer’s

remedial

response

results

in

the

cessation of the complained of conduct, liability must cease as
well.”).
There
subjected

is
to

evidence
race-based

on

the

workplace
30

record

that

harassment

Plaintiff
after

was

Defendant

received notice of his EEOC charge in December.

In January

2014, a co-worker, Mr. Tómas, confronted Plaintiff and referred
to

him

by

the

Spanish

word,

“negro.”

Mr.

Tómas

Plaintiff, “I fucking kick you in your face.

said

. . .

to

Fucking

negro, I fucking kick you in your face.”

(ECF No. 27-4, at

107).

most

Construing

Plaintiff,
after

there

Defendant

Consequently,
responded

the
is

facts

evidence

received

the

promptly

of

notice

court
and

in

must

the

light

continued
of

racial

Plaintiff’s

consider

effectively,

which

favorable

harassment

EEOC

whether
is

in

to

charge.

Defendant
effect

an

affirmative defense under the negligence standard.
There

is

Defendant’s

a

genuine

response

to

issue

of

material

Plaintiff’s

fact

harassment

concerning

allegations.

According to Plaintiff, “Upon receipt of [the EEOC] complaint, .
.

.

Mr.

Barbosa

belligerent.

called

[him]

into

and

was

He told [Plaintiff]: ‘What the fuck is this?

Why

are you creating problems for my company?
this.’”

(ECF No. 27-1, at 3).

his

office

I don’t have time for

Plaintiff also noted that,

“[t]hereafter, my work environment became even more hostile” as
“derogatory abuse” continued.

(Id.).

Defendant’s version of

events creates a genuine issue of material fact:
“After [Defendant] received the [c]harge,
[Mr. Barbosa] spoke with Plaintiff about the
allegations
.
.
.
.
During
that
conversation, Plaintiff indicated to [Mr.
Barbosa] that he was on parole, and his
31

parole officer told him to file the EEOC
[c]harge following his decision to walk off
the jobsite.
[Mr. Barbosa] confirmed with
Plaintiff that things were going well on his
new crew and any issues that may have
existed were resolved.”
(ECF No. 24-2, at 4).
Defendant

responded

Accordingly, the parties dispute whether
promptly

and

effectively

notice of alleged race-based harassment.

upon

receiving

Although “[t]he law

against harassment is not self-enforcing and an employer cannot
be expected to correct harassment unless the employee makes a
concerted effort to inform the employer that a problem exists,”
Plaintiff’s EEOC charge placed Defendant on notice of harassing
conduct

beyond

Plaintiff’s

altercation

with

Mr.

Marroquin.

Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th
Cir.

2001)

Defendant

(citation
“cannot

and

avoid

internal
Title

quotation

VII

marks

liability

omitted).

for

coworker

harassment by adopting a ‘see no evil, hear no evil’ strategy.”
Ocheltree, 335 F.3d at 334.
Liability cannot be imputed to Defendant under a negligence
standard for any harassment occurring before Defendant received
notice

of

Defendant

Plaintiff’s
is

entitled

EEOC
to

charge
summary

in

December

judgment

on

2013.

Thus,

hostile

work

environment claims in Counts III and VI arising from harassment
prior

to

December.

There

are

questions

of

fact,

however,

concerning whether Defendant was negligent in allowing workplace

32

harassment

to

continue

from

December

2013

until

requested that he be laid off in February 2014.

Plaintiff

See Howard v.

Winter, 446 F.3d 559, 567 (4th Cir. 2006) (“[T]here are questions
of

fact

as

to

reasonable.”).

whether
Plaintiff’s

the

[defendant’s]

hostile

work

response

environment

was

claims

related to this period will remain.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion for summary

judgment will be granted in part and denied in part.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

33