White v. Caterpillar, Inc.

Filing 70

ORDER granting #57 Motion for Summary Judgment. The parties are reminded to read the order in its entirety for further information. Signed by Senior Judge James C. Fox on 12/16/2014. Copy sent via US Mail to Anthony White 1460 Distribution Drive, Apt. #8311, Suwanee, GA 30024. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-684-F

ANTHONY E. WHITE,
Plaintiff

)
)
)
v.
)
)
CATERPILLAR LOGISTICS, INC.,
)
Defendant.
)
___________________________________ )

ORDER

This matter is before the court on the Motion for Summary Judgment [DE-57] filed by
Defendant Caterpillar Logistics, Inc. (“CLI”). Pro se Plaintiff Anthony E. White has responded, and
CLI has replied. For the reasons stated below, the motion for summary judgment is ALLOWED.
I. PROCEDURAL HISTORY
White initiated this action by filing motion for leave to proceed in forma pauperis [DE-1]
which was allowed on October 7, 2013 [DE-3]. In the Complaint [DE-4], White alleges the unlawful
termination of his employment, the failure to promote him, retaliation, and harassment, all based on
his race and in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e
et seq. The court later allowed White to amend his complaint [DE-13], although the substance of
his claims did not change markedly.
After a series of pretrial motions filed by both parties, CLI filed its Motion for Summary
Judgment [DE-57] on September 2, 2014. After receiving an extension of time [DE-62], White filed
his response [DE-63; DE-64] on October 9, 2014. CLI filed its Reply [DE-65] on October 23, 2014.

II. FACTS
The facts, stated in the light most favorable to White, are as follows.
A.

The parties
Caterpillar, Inc. (“Caterpillar”) is a Delaware corporation and a manufacturer of construction

and mining equipment, diesel and natural gas engines, and industrial gas turbines. Decl. of Terrill
Merritt [DE-58-2] ¶ 3. CLI is a wholly-owned subsidiary of Capterillar, and has a facility located
inside Caterpillar’s Clayton, North Carolina assembly plant. Id. ¶ 4. The Clayton CLI facility is
responsible for the receipt, storage, and distribution of Caterpillar parts to Caterpillar’s Clayton
assembly plant and several other manufacturing facilities nearby. Id. ¶ 6.
White was hired by CLI on August 27, 2012, as a full-time Warehouse Associate Team Lead,
and more specifically, a Grief Analyst, at the Clayton facility. Id. ¶ 13; Dep. of White [DE-58-1] at
19.1 In this position, White was primarily responsible for dealing with and solving discrepancies in
CLI’s parts inventory, including tracing missing or misrouted parts and identifying the causes of
parts overages or shortages. Dec. of Terrill Merritt [DE-58-2] ¶ 14; Dep. of White [DE-58-1] at 1920.

1

In his opposition to CLI’s Motion for Summary Judgment, White objected to CLI’s use of his
deposition transcript because he “later amended the transcript for countless errors.” Pl.’s Mem. in Opp. to
Mot. for Summ. J. [DE-64] at 9. Presumably relying on Federal Rule of Civil Procedure 30(e),White
correctly observes that a deponent is allowed “(A) to review the transcript; and (B) if there are changes in
form or substance, to sign a statement listing the changes and the reasons for making them.” Fed. R. Civ.
P. 30(e)(1)(A)-(B). This court, however, agrees with the other courts that have concluded that the rule
“does not permit a party to make changes that substantively contradict or modify sworn deposition”
testimony. William L. Thorp Revocable Trust v. Ameritas Inv. Corp., ___ F. Supp. 3d ___, No. 4:11-CV193-D, 2014 WL 4923597, at *4 (E.D.N.C. Sept. 30, 2014). Accordingly, to the extent that White’s
corrections [DE-64-11] contradict or materially alter his sworn deposition testimony, the court has not
considered them.
2

White worked on the second shift during his employment at CLI. Dep. of White [DE-58-1]
at 25-26. When he began working at the Clayton CLI facility, the second shift had one Supervisor,
one Team Lead, and a Grief Analyst. Id. at 26. White reported to the Supervisor, Chris Richardson.
Id. The Team Lead when White began his employment was Kirk Gardinier, who also reported to
Richardson. Id.
In or around January 2013, Bryan Keen replaced Chris Richardson in the Supervisor position,
and Brett Ryan became a second Team Lead on the shift. Id. at 27. The Team Leads directed the
work of hourly warehouse workers, but did not directly oversee White. Id. at 28. After Keen became
the second shift Supervisor, White reported directly to Keen and indirectly to Keen’s superior and
CLI’s Clayton Facility Manager, Mansur Kadavanthode. Id. at 28; Decl. of Terrill Merritt [DE-58-2]
¶ 15.
B.

White’s employment at CLI
CLI asserts that after about seven months of employment, White was still failing to follow

standard operating procedures and to perform adequate investigations into inventory discrepancies.
Decl. of Terrill Merritt [DE-58-2] ¶ 17. According to CLI, the effect of these errors was that parts
were reported as having already been sent to the line or as having gone missing when they were still
on the receiving dock or simply in the wrong location in the warehouse. Id. ¶ 18. This, in turn,
caused the logistics operation to hold up Caterpillar’s assembly process or to needlessly expedite
replacement parts from other facilities at great cost. Id. ¶ 19.
CLI asserts that it has a policy that when an employee fails to meet performance expectations,
he may be placed on an Employment Improvement Plan, or EIP, which outlines the specific
performance failure and identifies the behavior that is expected to result in acceptable performance.
3

Id. ¶ 20. According to CLI, it is a coaching tool, and CLI does not consider it to be a disciplinary or
other adverse action to the employee, but rather, a training mechanism to assist the employee with
improving performance. Id. ¶ 21.
In accordance with this policy, White was placed on an EIP on April 11, 2012. Id. ¶ 22; Dep.
of White [DE-58-1], Ex. 9. White had a meeting with his Supervisor, Keen, to discuss the issues
outlined in the EIP and means for improvement. Decl. of Terrill Merrit [DE-58-2] ¶ 23; Dep. of
White [DE-58-1] at 109. The EIP states that White’s performance is unsatisfactory, and lists the
following areas where Keen wanted White to improve:
1. [White] constantly makes incorrect system moves which ends up having to be
corrected by other people later. [White’s] BAP (gate in) access has been taken away
because of his constant improper use of the function.
2. [White] has extreme lack of know[ledge] of the system considering how long he’s
been in the position and dispite [sic] constant training, retraining and coaching. He
has to be constantly coached and retrained by his Team Leads and others on proper
system moves.
3. [White] displays a lack of focus on the job. His mind is on things other than his
job. Some examples of this are: spending a lot of time texting on his phone and
performing job searches during production hours.
4. [White] doesn’t to [sic] retain knowledge of the training and coaching that he
receives. He forgets things that he’s been shown multiple times.
5. [White] does not spend enough time or effort investigating grief issues. . . . .
6. [White] rarely seeks assiatance [sic] from his counterpart or the audit team when
he can’t locate parts . . . .
Dep. of White [DE-58-1], Ex. 9. The EIP also lists specific actions to be taken by White, over the
90-day period of the improvement plan, which included sending out a daily grief report to all section
managers, not using his phone on the floor and during production hours, and using his own time to
conduct job searches. Id. The EIP specifically states: “Sustained improvements must be achieved.
If not, the employee will be reassigned, demoted, or discharged.” Id.

4

The EIP also lists Keen’s assessment of White’s progress following the EIP meeting. It lists
Keen’s April 18, 2013, notes as White “has made great improvements from where he was so far,”
and on April 29, 2013, Keen notes that White “is maintaining his progress.” Id. On May 9, 2013,
however, Keen notes that he “found [White] out of his work area and on his phone at 2am. He was
in Mansur’s office reading something on this phone.” Id. According to CLI, this not only violated
its rule against leaving the floor during the working hours and the rule against using a cell phone
during working hours, it also raised concerns about the security of confidential information that
might be in the Facility Manager’s office. Decl. of Terrill Merit [DE-58-2] ¶ 25. CLI subsequently
issued White a disciplinary suspension for this incident. Id. ¶ 26.
Keen’s May 22, 2013, notes reflects a number of errors he felt White had made over the
previous two weeks, including incorrectly tagging parts, incorrectly sending parts to grief (i.e.,
declaring them to be lost) before doing a proper investigation, and failing to send out a grief report.
Id. Keen’s June 23, 2013 notes document more similar errors over the time period of June 6, 2013
through June 17, 2013. Id. The July 11, 2013, notes reflect similar errors by White, as well as a
failure to reorder additional parts.
According to CLI, at the conclusion of the 90-day period, Keen and Kadavanthode
determinted that white was not a good fit for the position. Instead of terminating him from
employment, however, Keen and Kadavanthode made the decision, with input from Human
Resources Manager Terrill Merritt, to demote White to a Warehouse Associate effective July 11,
2013. Decl. of Terrill Merritt [DE-58-2] ¶¶ 27-28. The “Final Review” section in the EIP states:
Upon completion of [White’s] 90 day Employee Improvement Plan, it has been
determined that [White] is not a good fit for this job description. [White] made great
improvements in the beginning, but failed to sustain and build on those
improvements. Based on the evidence and documentation provided it has been
5

concluded that [White] either lacks the ability or is unwilling to follow the process
and procedures of the job role. As a result, [White] will be removed from his current
job role as Warehouse Associate Team Lead, 2nd shift Grief Analyst and demoted
to Warehouse Associate effective July 11th, 2013.
Dep. of White [DE-58-1], Ex. 9.
Keen and Merritt met with White on July 11, 2013, to inform him of the decision to demote
him to a Warehouse Associate position effective that date. Id. at 124; Decl. of Terrill Merritt [DE-582] ¶ 29. During the meeting, Keen reviewed the EIP and weekly progress reviews with White, and
then explained that White would be demoted to a Warehouse Associate position because the EIP
goals were not met. Decl. of Terrill Merritt [DE-58-2] ¶¶ 29-30. White became upset during the
meeting and used profanity, at which time Merritt broke off the meeting. Id. ¶¶ 29-30; Dep. of White
[DE-58-1] at 124. Merritt instructed White to leave for the day, and took his badge. Dep. of White
[DE-58-1] at 127. Merritt contends that he suspended White pending a determination as to
appropriate further action. Dec. of Terrill Merritt [DE-58-2] ¶ 32. Ultimately, Merritt, Keen and
Kadavanthode made the decision to terminate White’s employment because of his behavior during
the demotion meeting, and Merritt and Keen met with White on July 17, 2013, to communicate that
decision. Id. ¶ 33.
C.

White’s complaints at CLI
When White was discovered in the office of the Facility Manager using his smartphone and

reprimanded, he allegedly told Keen “y’all are racists around here.” Pl.’s Opp., Ex. H [DE-64-8].
Additionally, White sent an email to Merritt on May 14, 2013, regarding concerns he had
with Keen and two co-workers, Team Leads Brett Ryan and Kirk Gardinier. Id. ¶ 34; Dep. of White
[DE-58-1], Ex. 3. In the email, White indicated that notes that Keen had recorded about an injury
White had sustained were inaccurate. Id. Additionally, at the conclusion of the email, White wrote:
6

I feel Mr. Ryan is assaulting my character by false pretense and tried to intimidate me
when asking for assistance by trying to belittle me with his comments which I have
mentioned to Brian Keen before. Mr. Ryan has a record for intimidating people and
causing conflict. Please investigate this matter thoroughly.
Id.
Merritt has stated that he looked into the concerns White raised with regard to Ryan, but
found no evidence that anyone had behaved inappropriately toward White. Decl. of Terrill Merrit
[DE-58-2] ¶ 35. Merritt still suggested to Keen that he hold a meeting with Ryan, Gardinier, and
White to discuss these concerns and Ryan’s communication style. Id. According to Merritt, Keen
did so, and reported back after the meeting that the issue had been resolved. Id.
White also testified in his deposition in that in June 2013, he was looking for some parts in
an aisle, and Ryan came by and said, “you look like a little black monkey . . . looking for a banana.”
Dep. of White [DE-58-1] at 23. White reported the comment to Keen, who told White that Ryan
“shouldn’t be saying that and I’m going to talk to him.” Id. at 23-24. White did not report the
comment to anyone else. Id. at 24.
Merritt, the Human Resources Manager, contends that prior to the July 11, 2013, meeting
regarding White’s demotion, White had never complained to him about race discrimination or racial
harassment. Decl. of Terrill Merritt [DE-58-2] ¶ 36. He admits, however, that White did make an
accusation of racism during the July 11, 2013, demotion meeting. Id ¶ 37. According to Merritt,
however, at that time the decision to demote White already had been made, and his profane outburst
during the meeting “had all but assured his termination as well.” Id.
D.

White’s post-termination allegations of discrimination and harassment
On July 15, 2012, White filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”) alleging that he had been harassed and discriminated against
7

on the basis of his race (African American) and retaliated against for engaging in protected activity.
Specifically, he stated:
I. Since early 2013, I was harassed while in the work environment by my team leader,
Mr. Brent Ryan, Caucasian, who tried to intimidate me, refused to communicate with
me and directed total disrespect toward me. In April 2013, I engaged in protected
activity when I complained via electronic e-mail to a manager, Mr. Monsour [sic]
Kadavanthode, Caucasian, and to the human resources manager, Mr. Terrill Merritt,
Black, about the harassment directed toward me by Ryan because of my race, Black.
Consequently, materials were purposefully moved and hid from me, belittling
comments and gestures were directed toward me by Mr. Brian Keen, Mr. Brent Ryan,
and Mr. Kirk Gardiner [sic], all Caucasians, and on July 11, 2013, Mr. Keen
recommended that I be demoted from a logistics grief analyst position to a warehouse
associate position. I have been employed by the above named employer since August
2012.
II. No reason was given to me by team leader, Mr. Brent Ryan, Caucasian, for his
intimidation, lack of communications or the total disrespect he directed toward me.
No action was taken by the employer to resolve the complaints I submitted to Mr.
Kadavanthode, and Mr. Merritt in April 2012 about the harassment directed toward
me by Mr. Keen because of my race, Black.
Unlike me, a similarly situated co-worker, Mr. Alan Thomas, Caucasian, was not
harassed or intimidated while in the work environment.
III. I believe that I was discriminated against because of my race, Black, and
retaliation for complaining via electronic e-mail to Mr. Kadavanthode and Mr.
Merritt, about the harassment directed toward me by Mr. Ryan because of my race,
Black, in violation of the Title VII of the Civil Rights Act of 9164 [sic], as amended.
Dep. of White [DE-58-1], Ex. 7. After receiving a right to sue letter, White initiated the instant
action.
III. STANDARD OF REVIEW
At summary judgment, the court must examine the evidence presented by both parties and
determine if there is a need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt.,
721 F.3d 264, 283 (4th Cir. 2013). The court examines “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must prevail
8

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Where the
moving party shows that the evidence is so one-sided that it should prevail as a matter of law, the
burden shifts to the nonmoving party to come forward with affidavits, depositions, answers to
interrogatories, or other evidence demonstrating that there is a genuine issue of material fact that
requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986); Matsushita, 475 U.S. at 587;
Pension Benefit Guar. Corp. v. Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005). An issue of fact is
genuine if a reasonable jury could find for the nonmoving party. Liberty Lobby, 477 U.S. at 248.
A fact is material if proof of the fact might affect the outcome of the case under the substantive law.
Id. The facts should be viewed in the light most favorable to the nonmoving party and all reasonable
inferences should be made in favor of the nonmoving party. Id. at 255; Smith v. Va. Commonwealth
Univ., 84 F.3d 672, 675 (4th Cir. 1996).
IV. ANALYSIS
White asserts four claims in his Complaint and Amended Complaint: (1) unlawful failure to
promote or hire; (2) unlawful termination of his employment; (3) unlawful retaliation; and (4)
harassment, all based on his race and/or protected activity and in violation of Title VII. CLI has
moved for summary judgment on all of White’s claims. The court will examine each claim in turn.
A.

White’s failure to hire or promote claim is barred for failure to exhaust administrative
remedies
Title VII makes it an “unlawful employment practice for an employer . . . to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race . . . [or] sex . . .
.” 42 U.S.C. § 2000e-2(a)(l). “Before a plaintiff may file suit under Title VII . . . he is required to

9

file a charge of discrimination with the EEOC,” thereby exhausting his administrative remedies.
Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42 U.S.C. § 2000e-5(f)(l)).
The exhaustion of administrative remedies is a statutory prerequisite to properly invoke the
jurisdiction of the federal court. Id. (“[A] failure by the plaintiff to exhaust administrative remedies
concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the
claim.”). To be timely, a charge of discrimination must be filed within 180 days after the alleged
discrimination occurred. See 42 U.S.C. § 2000e-5(e)(1) and 29 U.S.C. § 626(d); see also E.E.O.C.
v. Commercial Office Prods. Co., 486 U.S. 107, 110 (1988).
The allegations contained in the EEOC charge “generally operate to limit the scope of any
subsequent judicial complaint.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,962-63 (4th
Cir. 1996) (citation omitted). “If the claims raised under Title VII exceed the scope of the EEOC
charge and any charges that would naturally have arisen from an investigation thereof, they are
procedurally barred.” Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) (quotation
omitted). Consequently, the Fourth Circuit has held that “if the factual foundation in the
administrative charge is too vague to support a claim that is later presented in subsequent litigation,
that claim will also be procedurally barred.” Id. (citation omitted).
Under these principles, White’s claim alleging a discriminatory failure to promote or hire is
barred for failure to exhaust administrative remedies. The charge White filed with the EEOC fails
to mention any facts concerning White applying and/or being rejected for any employment positions
at his employer. See Dep. of White [DE-58-1], Ex. 7. The Fourth Circuit has made clear that “[a]
claim will . . . typically also be barred if the administrative charge alleges one type of
discrimination—such as discriminatory failure to promote—and the claim encompasses another
10

type—such as discrimination in pay and benefits.” Chacko, 429 F.3d at 509; see also Lawson v.
Burlington Indus., Inc., 683 F.2d 862, 863-64 (4th Cir. 1982) (barring claim of discriminatory failure
to rehire because charge only alleged illegal layoff). Accordingly, CLI is entitled to judgment on
White’s claim for failure to promote or hire.
B.

White has failed to proffer sufficient evidence to establish a prima facie case of
discriminatory discharge
Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . race . . . .” 42 U.S.C. § 2000e-2(a)(1). Title VII
plaintiffs may establish a claim for intentional discrimination via two avenues of proof: (1) the
burden-shifting pretext method, as espoused in McDonnell Douglas Corporation v. Green, 411 U.S.
792 (1973), or (2) the mixed motive method. See Hill v. Lockheed Martin Logistics Mgmt., Inc. 354
F.3d 277, 284-85 (4th Cir. 2004) (en banc).
Under the familiar McDonnell Douglas scheme, a plaintiff first must establish a prima facie
case of discrimination. See id., 411 U.S. at 802. To establish a prima facie case of race
discrimination, a plaintiff must proffer evidence showing that (1) he is a member of a protected class;
(2) he suffered an adverse employment action; (3) there were circumstances giving rise to an
inference of discrimination, and (4) at the time of the adverse employment action, he was meeting
his employer’s legitimate expectations. See McDonnell Douglas, 411 U.S. at 802.
If the plaintiff establishes a prima facie case of discrimination, the burden shifts to defendant
to produce a legitimate, nondiscriminatory reason for the adverse employment action. See Hill, 354
F.3d at 285. If the defendant meets it burden of production by setting for a legitimate,
nondiscriminatory reason for the action, the plaintiff then bears the burden of showing, by a
11

preponderance of the evidence, that the defendant’s proffered neutral reasons were not its true
reasons, but were instead a pretext for discrimination or retaliation. Merritt v. Old Dominion Freight
Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). “[T]he burden to demonstrate pretext has merged with
the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional
discrimination.” Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (quotation
omitted).
In this case White has failed to come forward with evidence showing that his demotion and
eventual termination involved circumstances giving rise to an inference of race discrimination.
Ordinarily, to establish a prima facie case of discriminatory discharge, a plaintiff must show that his
position ultimately was filled by someone outside the protected class. Miles v. Dell, Inc., 429 F.3d
480, 486 (4th Cir. 2005) (“It is thus clear that the law in this circuit is that, as a general rule, Title
VII plaintiffs must show that they were replaced by someone outside their protected class in order
to make out a prima facie case.”). The reason for this rule is because when “someone within [the]
protected class is hired as a replacement, that fact ordinarily gives rise to an inference that the
defendant did not fire the plaintiff because of [the] protected status.” Id. at 488. Here, the record
shows that the individual selected to fill White’s position as the second shift Grief Analyst also was
African American. See Decl. of Terrill Merritt [DE-58-2] ¶ 38. Moreover, White has not come
forward with any evidence tending to negate this inference of non-discrimination. See Miles, 429
F.3d at 487-89 (recognizing that there may exceptions to the fourth prong of the prima facie case,
including where “a significant lapse of time occurs between the adverse employment aciton and the
decision to hire another a person” and where “the firing and replacement hiring decisions are made
by different decisionmakers”).
12

To the extent that White contends that CLI’s decision to demote him and terminate his
employment constitutes discriminatory discipline, he also fails to establish a prima facie case. “In
the employee discipline context, a prima facie case of discrimination is established if the plaintiff
shows that he ‘engaged in prohibited conduct similar to that of a person [outside the protected class]
. . . and . . . that disciplinary measures enforced against the plaintiff were more severe than those
enforced against the other person.” Kelley v. United Parcel Service, Inc., 528 F. App’x 285, 286 (4th
Cir. 2013) (quoting Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985)). White
suggested in his EEOC Charge that Alan Thomas, a Caucasian co-worker, was treated more
favorably than him. See Dep. of White [DE-58-1], Ex. 7. The record is bereft of evidence, however,
that Thomas had any of the same perceived performance deficiencies as White or that he had an
angry outburst directed at management. Without such evidence, White cannot show Thomas engaged
behavior similar to that which led to White’s demotion and termination.
As the foregoing shows, White has failed to proffer sufficient evidence to establish a prima
facie case of race discrimination. Accordingly, CLI is entitled to summary judgment on his
discriminatory discharge claim.
C.

White has failed to proffer sufficient evidence to show pretext to support his retaliation
claim
CLI also moves for summary judgment on White’s Title VII retaliation claim. Title VII

provides:
It shall be an unlawful employment practice for an employer to discriminate against
any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.

13

42 U.S.C. § 2000e-3(a). A plaintiff may establish a Title VII retaliation claim under the burdenshifting framework set forth in McDonnell Douglas. First, a plaintiff bears the burden of
establishing a prima facie case of retaliation, whereupon the burden shifts to the employer to
establish a legitimate, non-retaliatory reason for the adverse action. If the employer sets forth a
legitimate, non-retaliatory reason for the action, the plaintiff then bears the burden of showing the
employer’s proffered reasons are pretextual or his claim will fail. Price v. Thompson, 380 F.3d 209,
212 (4th Cir. 2004).
To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in
a protected activity; (2) her employer took an adverse action against her; and (3) a causal connection
exists between the protected activity and the asserted adverse action. King v. Rumsfeld, 328 F.3d
145, 151-52 (2003). For many years, courts in the Fourth Circuit adhered to the view that a close
temporal proximity between the protected activity and the adverse action is sufficient to establish
the causal connection of the prima facie case. See, e.g., Williams v. Cerebronics, Inc., 871 F.2d 452,
457 (4th Cir.1989). The United States Supreme Court has recently held that “Title VII retaliation
claims must be proved according to traditional principles of but-for causation . . . requir[ing] proof
that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action
or actions of the employer.” Univ. of Texas Southwestern Med. Ctr. v. Nassar, ___ U.S.___, 133
S.Ct. 2517, 2533 (2013). Some courts have interpreted the Nassar decision as imposing a heightened
causation requirement at the prima facie stage. See, Askins v. Belissary, Civil Action No. 4:12-cv1856-RBH, 2014 WL 507279, at * (D.S.C. Feb. 6, 2014) (“Several courts from within the Fourth
Circuit appear to be in agreement that Nassar requires that a plaintiff must establish the third element
of her prima facie case, the causation element, pursuant to the but-for standard.”) (collecting cases).
14

Other courts, however, have rejected the idea that Nassar impacts the analysis as to whether a
plaintiff has established a prima facie case. See, e.g., Taylor v. Peninsula Regional Med. Ctr., 3 F.
Supp. 3d 462, 472 (D. Md. 2014) (“The Court does not believe that Nassar significantly impacts
where a plaintiff asserts a causal connection based on close temporal proximity between the
protected conduct and the adverse employment action.”). The Fourth Circuit has yet to directly
address the issue.
Assuming that pre-Nassar law regarding temporal proximity remains good law, the court
could conclude that White has satisfied the light burden of establishing a prima facie case. The
record shows that in June 2013, he complained to Keen about Ryan’s racially offensive
remark–which constitutes protected activity–and a month later he was terminated. See Price, 380
F.2d at 213. Nevertheless, the court need not determine whether Nassar impacts the burden of
establishing a prima facie case, because regardless of whether White has established a prima facie
case, the record shows that CLI has articulated a legitimate, non-discriminatory reason for White’s
discharge that White has not shown is pretext.
Specifically, CLI has stated that White was demoted “because of a series of performance
problems and his failure to correct those problems despite numerous attempts to coach and counsel
him, and . . . it terminated his employment because of his angry and profane outburst in the demotion
meeting.” Mem. in Support of Mot. for Summ. J. [DE-58] at 14. The burden now shifts to White
to adduce sufficient evidence that, if believed, would allow the finding that CLI’s purported reason
for his demotion and subsequent termination was a pretext, and retaliation was in fact the “but for”
causation of his termination. White has not met this burden.

15

Broadly construing White’s opposition to the motion for summary judgment, it appears that
he makes two arguments as to why he has shown that CIL’s reason for his termination was pretext
for retaliation. First, he appears to take issue with being put on an EIP at all. Second, he contends
that CLI failed to follow its own policy with regard to investigating his complaints of discrimination.
With regard to White’s first argument, his disagreement with being put an EIP does not
constitute sufficient evidence to establish pretext. First, his placement on the EIP preceded any of
his alleged protected activity. White was placed on the EIP on April 11, 2013; he made his
complaint about Ryan’s offensive remark in June 2013.2 It, therefore, is not evidence of pretext that
would show that retaliation was the true reason for his demotion and subsequent termination.
Additionally, Keen reprimanded White for his use of his personal smartphone during work hours
in the Facility Manager’s office, something explicitly prohibited by the EIP, prior to White’s first
complaint about racism. Moreover, the fact that White disagrees with Keen’s assessment of his
performance subsequent to the issuance of the EIP is irrelevant, absent evidence showing that Keen
truly did not believe White was not performing up to par. See King v. Rumsfeld, 328 F.3d 145, 149
(4th Cir. 2003) (“It is the perception of the decision maker which is relevant, not the self-assessment
of the plaintiff.”); Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 444 (4th Cir. 1998) (affirming
grant of summary judgment because the plaintiff “offer[ed] no evidence that the events recounted
in [the decisionmaker’s affidavit] are untrue or that retaliation was the true reason for her firing”),

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Even if the court considers White’s email to Merritt complaining about intimidation and
harassment to constitute protected activity—even though it did not reference race or another protected
trait under Title VII–this email also was sent after the EIP was imposed. The same analysis applies to
White’s alleged statements to Keen in May 2013 that “y’all are all racists around here.”
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overruled on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).
Without such evidence, White has not established pretext.
Nor does White’s contention that CLI failed to investigate his complaints, allegedly in
violation of its internal policies, suffice to show that retaliation was the but-for causation of his
termination. This assertion does nothing to counter the stated reasons for his demotion and
termination. Indeed, his opposition to the motion for summary judgment appears to concede the
fact that he reacted angrily in the July 11, 2013 meeting about his demotion—which was the stated
reason for his termination. Pl.’s Mem. in Opp. to Mot. for Summ. J. [DE-64] at 5-6 (“CLI upper
management let the conspiracy go on letting the harassment, intimidation and bulling [sic] continue,
which was [sic] lead to a [sic] angry display built up in the Plaintiff from the frustration of
resentment and hopelessness through the months of complaining to management about their
behavior and acts.”). Put simply, White has not proffered sufficient evidence from which the finder
of fact could conclude that retaliation was “but for” cause of his termination. As such, CLI is
entitled to judgment on his retaliation claim.
D.

White has proffered insufficient evidence to show he was subjected to a hostile work
environment on the basis of his race
As the court already has observed, Title VII makes it “an unlawful employment practice for

an employer . . . to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s . . . race . . . .” 42 U.S.C. §
2000e-2(a)(1). “Since an employee’s work environment is a term or condition of employment, Title
VII creates a hostile working environment cause of action.” EEOC v. R & R Ventures, 244 F.3d 334,
338 (4th Cir. 2001).

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To survive a motion for summary judgment on a hostile work environment claim, a plaintiff
must show that the evidence, viewed in his favor,
would allow a reasonable jury to conclude that the harassment was (1) unwelcome
(2) based on [a plaintiff’s] . . . race, (3) sufficiently severe or pervasive to alter the
conditions of h[is] employment and create an abusive atmosphere, and (4) imputable
to [his employer.].
EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). White has not done this, and
accordingly, CLI is entitled to summary judgment on his hostile work environment claim.
As CLI recounts in its memorandum in support of its motion for summary judgment, White
asserts that the following conduct supports his hostile work environment claim:
Ryan and Keen following him around the facility, including into the bathroom to
check on his whereabouts and to see if he was on his phone; Ryan would often tell
people White was incompetent and stupid; Ryan told White on one occasion that he
looked like a “little black monkey”; Gardiner withheld information from White and
excluded him from meetings; Gardiner would ignore White when he asked
questions; Gardiner would move material and put it in the wrong location; Keen did
not instruct the team leads to stop doing what he was complaining about; Keen told
White that if he did not like working at the facility he should just leave.
Mem. in Support of Mot. for Summ. J. [DE-58] at 24 (citing Dep. of White [DE-58-1] at 17, 29,
32-33, 36-37, 47-48, Ex. 7). This is insufficient to establish either that the conduct was based on
White’s race, or that it was sufficiently severe or pervasive such as to alter the conditions of his
employment.
To meet the “severe or pervasive” element, a plaintiff’s workplace must be “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 atmosphere.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (internal citations and quotations omitted). “Relevant
considerations ‘may include the frequency of the discriminatory conduct, its severity; whether it is
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physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Spriggs v. Diamond Auto Glass, 242 F.3d 179,
184 (4th Cir. 2001) (quoting Harris, 410 U.S. at 23). Courts have found complaints based on merely
rude treatment, Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006), "callous behavior by [one's]
superiors," Bass v. E.l Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003), and
superiors," or "a routine difference of opinion and personality conflict with [one's] superior" to be
insufficient to establish harassment. Here, most of White's allegations concerning his co-worker's
and supervisor's conduct amount to nothing more than the routine disagreements and conflict found
in numerous workplaces, and are not actionable under Title VII.
Nor does the bulk of the White's allegations concern race. White does reference the
indisputably offensive and race-based comment by his co-worker, Ryan, comparing White to a
"little black monkey." However, "[a] single, isolated remark by a non decision-maker does not
constitute 'severe' or 'pervasive' harassment, as those terms have been interpreted by the courts."

Bennett v. City of Greensboro, No. 1:02CV00366, 2002 WL 32086528, at* 1 (M.D.N.C. Nov. 7,
2002) (memorandum and recommendation) adopted by 2002 Wl 32087733 (Dec. 13, 2002).
Accordingly, the court finds that White has failed to proffer sufficient evidence that he was
subjected to severe or pervasive harassment that was based on his race.
V. CONCLUSION

For the foregoing reasons, CLI's Motion for Summary Judgment [DE-57] is ALLOWED,
and Plaintiffs' claims are DISMISSED. The Clerk of Court is DIRECTED to close this case.
SO ORDERED.
This the_!_!__ day of December, 2014.

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J
ESC. FOX
Senior United States District Judge

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