Coleman v. Altec, Inc.

Filing 66

ORDER denying 40 Motion to Compel; denying as untimely 64 Motion for Summary Judgment; granting in part and denying in part 22 Motion for Summary Judgment. The parties shall engage in a court-hosted mediation with United States Magistrate Judge James E. Gates. Signed by Chief Judge James C. Dever III on 9/7/2018. Sent to Leroy Coleman, Jr. at 5844 Smithboro Rd. Mullins, SC 29574 via US Mail. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16..:CV-954-D

LEROY COLEMAN, JR.
Plaintiff,
v.
ALTEC, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER

On December 28, 2016, Leroy Coleman, Jr. ("Coleman" or "plaintifl), proceeding prose,
filed a complaint against Altec, Inc. ("Altec" or defendant") alleging race discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, and wrongful
discharge in violation of North Carolina public policy. See Compl. [D.E. 5]; [D.E. 34]. On
November 17, 2017, Altec moved for summary judgment [D.E. 22] and filed a memorandum in
upport [D.E. 23]. On February 5, 2018, Coleman responded in opposition [D.E. 45]. As explained
below, the court grants in part and denies in part Altec's motion for summary judgment.

I.
Altec provides products and services to the electric utility, telecommunications, tree care,
lights and signs, and contractor markets. See [D.E. 24] ~ 1. In 2011, Altec hired Coleman to work
atAltec'sfacilityinCreedmoor,North.Carolina. SeeJeffTingenDecl. [D.E. 28] ~2. In2014,Altec
promoted Coleman to the group leader position of the second shift. See Chris Rice Decl. [D.E. 31]
~ 2.

In this position, Coleman reported to Chris Rice who was the secon4 shift supervisor. See id.
Beginning in the fall of2014, Chris Rice, James Ladd, Mark Waters, William Slaughter, and

Jeff Tingen touched or slapped Coleman on different occasions. See Coleman Dep. [D.E. 26] 2-4,

5-8, 12-21, 33-36, 44, 47-49. In March 2015, Coleman sent Tingen a certified letter stating that
Rice had hit him on the arm in December 2014. See Jeff Tingen Decl. [D.E. 28] ~ 4; [D.E. 28-1].
In June and July 2015, Coleman informed Sandra Whitfield, a senior human resources specialist, that

Ladd, Slaughter, Waters, and Tingen had also touched him. See Sandra Whitfield Decl. [D.E. 29]
~~ 4--6.

Around the same time, Altec demoted Coleman back to a non-lead position. See Coleman

Dep. at 50; Tingen Decl. ~ 8; [D.E. 28-4].
Between November 2015 and February 2016, Coleman filed criminal assault charges against
Rice, Ladd, Waters, and Slaughter. See Coleman Dep. at 44-46; Tingen Decl. ~ 11. After learning
about the charges, Patrick Wooten, the facility manager, decided to fire Coleman because he believed
the underlying charges were frivolous and caused a disruption to the workplace. See Patrick Wooten
Decl. [D.E. 27] ~~ 4-5. Wooten consulted with Tingen concerning the best way to infonn.Coleman
of his termination, and they decided to hold a meeting with Coleman together on February 19, 2016.
See Wooten Decl. ~ 5.
On Februaryl9, 2016, Wooten and Tingen asked Coleman to come to Tingen's office. See
id.

~~

5-6. Coleman came to Tingen's office, but he refused to sit down and talk. See id.

~

6;

Tingen Decl. ~ 14. After a disagreement, Coleman left the meeting. See Tingen Decl. ~~ 14-16.
Tingen followed Coleman and asked Coleman to return to the meeting. See id.

~

16. Coleman

refused to return to the meeting, and Tingen told Coleman he was fired. See id. ~ 17.
Approximately a week before Altec terminated Coleman's employment, Coleman asked
Whitfield for a copy of the letter he sent to human resources concerning the incident in which Rice
touched him. See Coleman Dep. at '38-39. Whitfield told Coleman that he needed to ask Tingen
for a copy of the letter. See id. Coleman then went to Tingen's office to ask for a copy of the letter.
See id. at 39. In response to Coleman's request, Tingen allegedly responded ''you stupid nigger."

2

Id. at 39; Tingen Decl. ~ 22. Tingen then said "You don't have a copy? You don't have a copy of
it?" Coleman Dep. at 39. Coleman walked out of Tingen's office and did not respond. See id.
On August 11, 2016, Coleman filled out an EEOC intake questionnaire: See [D.E. 34-1].
On September 19, 2016, Coleman filed a charge of discrimination with the EEOC alleging race
discrimination and retaliation. See [D.E. 34].

II.
Summary judgment is appropriate when, after reviewing the record as a whole, no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter oflaw. See Fed.

R. Civ. P. 56(a); Anderson v. Liberty Lobby. Inc., 477 U.S. 242,247-48 (1986). The party seeking
summary judgmen~ initially must demonstrate the absence of a genuine issue of material fact or the
absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the moving party has met its burden, the nonmoving party may not rest on
the allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, but "must come forward
with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court
reviewing amotion for summary judgment should determine whether a genuine issue ofmaterial fact
exists for trial. See Anderso!!, 477 U.S. at 249. In making this determination, the court must view
the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party.
See Scott v. Harris, 550 U.S. 372, 378 (2007).

A.
Coleman alleges that he was discriminated against based on his race when (1) he was not
selected for a "leadman" position at Altec; (2) he was demoted in July 2015; (3) Tingen harassed him
using a heinous racial epithet on approximately February 12, 20 16; and (4) he was fired on February

3

19,2016. See [D.E. 34-1] 1; [D.E. 23] 13.
1.
Coleman's claims conc~rning his non-selection and demotion are untimely. Under Title VII,
Coleman had to file an EEOC charge within 180 days of each discrete adverse employment action
described in the complaint.

See,~'

42 U.S.C. § 2000e-5(e)(l); Nat'l R.R. Passenger Com. v.

Morgan, 536U.S. 101, 109-15 (2002); EEOC v. Commercial Office Prods. Co., 486U.S. 107, 110
(1988); Williams v. Giant Food Inc., 370 F.3d 423,428 (4th Cir. 2004); Barclift v. N.C. League of
Municipalities, No. 5:10--CV-244-D, 2011 WL 3290578, at *2 (E.D.N.C. Aug. 1, 2011)
(unpublished); Bratcher v. Pharm. Prod. Dev.. Inc., 545 F. Supp. 2d 533, 539 (E.D.N.C. 2008);
McDougal-Wilson v. GoodyearTire&RubberCo., 427 F. Supp. 2d 595, 606n.3 (E.D.N.C. 2006).
Generally, each adverse employment action "starts a new clock" for filing an EEOC charge
concerning that action. See Morg@, 536 U.S. at 114; White v. Tire Ctrs .• LLC, No. 3:13-cv-2GCM, 2013 WL 1146255, at *3 (W.D.N.C. Mar. 19, 2013) (unpublished). Generally, "only
incidents that took place within the timely filing period are actionable." Morg@, 536 U.S. at 114.
Coleman filed his EEOC charge on August 11, 2016, at the earliest. 1 Coleman's alleged nonselection occurred in March 2015 and his demotion occurred in July 2015, well outside the 180-day
filing period. Accordingly, Coleman's non-selection and demotion claims are time-barred.

See,~'

Morg@, 536 U.S. at 114; Roach v. Hilton World-Wide, Inc., No. 5:12--CV-309-D, 2013 WL

1

An EEOC filing (such as an intake questionnaire) may be considered a charge if it contains
all regulatory requirements and can be "reasonably construed as a request for the agency to take
remedial action to protect the employee's rights or otherwise settle a dispute between the employer
and the employee." Fed. Express Com. v. Holowecki, 552 U.S. 389,402 (2008); see Pizio v. HTMT
Glob. Sols., 555 F. App'x 169, 173-76 (3d Cir. 2014) (unpublished); EEOC v. Summer Classics.
Inc.,471 F. App'x 868,871-72 (llthCir. 2012) (per curiam) (unpublished). Altec does not dispute
that Coleman filed his EEOC charge on August 11, 2016, when he submitted an intake
questionnaire. See [D.E. 23] 13.
4

556195, at *2 (E.D.N.C. Feb. 12, 2013) (unpublished), affd, 533 F. App'x 341 (4th Cir. 2013) (per
curiam) (unpublished); Harris v. Cmty. Alts., No. 5:11-CV-52-D, 2011 WL 2111851, at *1
(E.D.N.C. 2011) (unpublished); Bratcher, 545 F. Supp. 2d at 539.

2.
As for Coleman's hostile work environment claim, to sustain a hostile work environment
claim under Title VII, an employee must prove that (1) he experienced unwelcome conduct; (2) the
conduct was based on a protected characteristic under Title VII; (3) the conduct was sufficiently
severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4)
the conduct is imputable to the employer.

See,~' Boyer-Liberto v.

Fontainebleau Corp;, 786 F.3d

264, 277 (4th Cir. 2015) (en bane); Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011);
EEOC v. FairbrookMed. Clinic. P.A., 609 F.3d 320, 327 (4th Cir. 2010); Ziskie v. Mine:m, 547 F.3d
220, 224 (4th Cir. 2008); Ocheltree v. Scollon Prods .. Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en
bane). An employee also must show that his protected characteristic under Title VII was the "but
for'' cause of the alleged harassment.

See,~'

Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d

134, 142 (4th Cir. 2007).
To determine whether conduct was sufficiently severe or pervasive to alter the employee's
terms and conditions of employment and to create an abusive working environment, the court
examines the allegations both subjectively and objectively.

See,~'

Harris v. Forklift Sys.. Inc.,

510 U.S. 17, 21-22 (1993). First, the employee must subjectively consider the conduct to be
sufficiently severe or pervasive as to alter his conditions of employment. See, ~ Clark Cty. Sch.
Dist. v. Breede!!, 532 U.S. 268, 270-71 (2001) (per curiam); Faragher v. City of Boca Rato!!, 524
U.S. 775, 787-88 (1998); Boyer-Liberto, 786 F.3d at 277. Second, a court views the conduct from
the perspective of a reasonable person in the employee's position to determine whether it is

5

objectively severe or pervasive.

See,~'

Breeden, 532 U.S. at 271; Faragher, 524 U.S. at 787-88;

Oncale v. Sundowner Offshore Servs.• Inc., 523 U.S. 75, 81-82 (1998); Boyer-Liberto, 786 F.3d at
277.
The objective component helps courts ''to police the baseline for hostile environment
claims." Mendoza v. Borden. Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en bane) (quotation
omitted). The court considers the "frequency of the discriminatory conduct; its severity; whether it
. is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Harris, 510 U.S. at 23. The conduct must be
severe or pervasive to be actionable. See id.; Faragher, 524 U.S. at 787-88; Boyer-Liberto, 786 F.3d
at 277-78. Title VII does not create "a general civility code for the American workplace." Oncale,
523 U.S. at 80. The. "conduct must . . . amount to a change in the terms and conditions of
employment." Faragher, 524 U.S. at 788; see Boyer-Liberto, 786 F.3d at 277-81. Simple teasing,
sporadic rude language, offhand comments, jokes related to a protected status, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment. SeeBurlingtonN. & SantaFeRy. v. White, 548 U.S. 53,68--69 (2006); Breede!1, 532
U.S. at 270-71; Faragher, 524 U.S. at 788; cf. Boyer-Liberto, 786 F.3d at 277-81. Likewise, mere
rude or insensitive treatment cannot sustain a hostile work environment claim.

See,~'

Baqir v.

Principi,434F.3d 733,746-47 (4thCir. 2006); see also Breeden, 532U.S. at270-71;Faragher, 524
U.S. at 787-88; Oncale, 523 U.S. at 81-82; Brown v. Wake Cty. Gov't, No. 5:16-CV-806-D, 2017
WL2982971, at *5 (E.D.N.C. July 12,2017) (unpublished); cf. Boyer-Liberto, 786F.3dat277-81;
Walker v. Mod-U-KrafHomes. LLC, 775 F.3d 202,207-10 (4th Cir. 2014); Freeman v. Dal-Tile
Cotp., 750 F.3d 413,420-24 (4th Cir. 2014); Okoli, 648 F.3d at 220-22.
1,

Although hostile work environment claims often involve repeated conduct, an "isolated

6

incident of harassment can amount to discriminatory changes in the terms and conditions of
employment, if that incident is extremely serious." Boyer-Liberto, 786 F.3d at 277 (quotations and
alterations omitted); see Pryor v. United Air Lines, Inc., 791 F.3d 488,496 (4th Cir. 2015); Okoli,
648 F.3d at 220 & n.5. Furthermore, in assessing the severity of the harassing conduct, the status
of the harasser is an important factor. See Boyer-Liberto, 786 F.3d at 278; Sonnier v. Diamond
Healthcare Cor.p., 114 F. Supp. 3d 349,356 (E.D. Va. 2015). A "supervisor's power and authority
invests his or her harassing conduct with a particular threatening character." Burlington Indus .. Inc.
v. Ellerth, 524 U.S. 742, 763 (1998); see Boyer-Liberto, 786 F.3d at 278.
Tingen vehemently denies Coleman's allegation that he used a racial epithet, and other
witnesses support Tingen. Nonetheless, genuine issues ofmaterial exist concerning whether Tingen
used the racial epithet and whether Tingen's conduct was sufficiently severe to alter the conditions
of Coleman's employment and create a hostile work environment, particularly in light of Tingen's
role as a human resources manager.

See,~.

Pryor, 791 F.3d at 496--97; Boyer-Liberto, 786 F.3d

at 280. 2 Accordingly, the court denies Altec' s motion for summary judgment concerning Coleman's
hostile work environment claim.

3.
As for Coleman's claim that Altec terminated his employment due to his race, an employer
cannot "discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national origin."
42 U.S. C. § 2000e-2(a)(l ). A plaintiffmay establish such a violation of Title VII in two ways. First,
a plaintiff may demonstrate through direct evidence that illegal discrimination motivated an

2

16--17.

Altec does not dispute that Tingen's alleged actions are imputable t~ Altec. See [D.E. 23]
.

7

employer's adverse employment action. If a plaintiff does not have any direct evidence of illegal
discrimination, the plaintiff may proceed under the burden-shifting pretext framework established
in McDonnell Douglas Cor_p. v. Green, 411 U.S. 792 (1973). See generally Hill v. Lockheed Martin
Logistics Mgmt.. Inc., 354 F.3d 277,284--85 (4th Cir. 2004) (en bane), abrogated on other grounds
by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013).

Direct evidence is evidence from which no inference is required. To show race or gender
discrimination by direct evidence, a plaintiff typically must show discriminatory motivation on the
part of the decisionmaker involved in the adverse employment action. See generally Hill, 354 F.3d
at 286-91. Such direct evidence would include a decisionmaker' s .statement that he terminated the
plaintiff's employment due to his race or gender. The decisionmaker must be either the employer's
formal decisionmaker or a subordinate who was "principally responsible for," or ''the actual
decisionmaker behind," the allegedly discriminatory action. Reeves v. Sanderson Plumbing Prods ..
Inc., 530 U.S. 133, 151-52 (2000).
Coleman has not produced any direct evidence that Altec terminated his employment due to
his race. Although Tingen allegedly directed a racial epithet at Coleman approximately one week
before Coleman's termination, the undisputed evidence shows that Wooten, not Tingen, made the
decision to terminate Coleman. See Wooten Decl.

~~

4--5; Tingen Decl.

~

12. Moreover, no

evidence suggests that Tingen's alleged comment influenced Wooten, the actual decisionmaker
concerning the termination. See, ~' Torgerson v. City ofRochester, 643 F .3d 1031, 1044 (8th Cir.
2011); Arraleh v. Cty. of Ramsey, 461 F.3d 967, 975 (8th Cir. 2006); Hill, 354 F.3d at 286.
Furthermore, Coleman has not shown any link between the alleged racial epithet and the decisional
process itself.

See,~.

Finkle v. Howard Cty., 640 F. App'x 245,248 (4th Cir. 2016) (per curiam)

(unpublished); Hill, 354 F.3d at 286. Thus, because Coleman has not shown direct evidence of

8

discriminatory termination, Coleman relies on the burden-shifting analysis in McDonnell Douglas.
Under McDonnell Douglas, a plaintiff may prove a prima facie case of illegal discrimination
by showing that (1) he is a member of a protected class; (2) he was discharged; (3) at the time of his
discharge, he was performing her job at a level that met his employer's legitimate expectation; and
(4) similarly situated employees received more favorable treatment.

See,~'

Hill, 354 F .3d at 285;

White v. BFI Waste Servs .. LLC, 375 F.3d 288, 295 (4th Cir. 2004).

If the plaintiff establishes a prima facie case, the burden shifts to the employer to produce
evidence that the adverse employment action was "for a legitimate, nondiscriminatory reason." Tex.
Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). This burden is one of production, not
persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509-11 (1993). If the employer offers
admissible evidence sufficient to meet its 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." Hill, 354 F.3d at 285 (quotation omitted); see,
~'Reeves,

530 U.S. at 143; Kingv. Rumsfield, 328 F.3d 145, 150-54 (4th Cir. 2003). A plaintiff

can demonstrate pretext by showing that the employer's "explanation is unworthy of credence or by
offering other forms of circumstantial evidence sufficiently probative of [illegal] discrimination."
Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004) (quotation omitted).
Assuming without deciding that Coleman established a prima facie case, Altec articulated
a non-discriminatory reason for firing Coleman. Altec fired Coleman because Coleman filed
criminal assault charges against five employees, which Wooten believed to be frivolous and
disruptive to the work environment. See Wooten Decl. ,, 4-5. This reason is a legitimate, nondiscriminatory reason for firing Coleman.

See,~'

Morrall v. Gates, 370 F. App'x 396, 398 (4th

Cir. 2010) (per curiam) (unpublished); EEOC v. Electrolux Corp., 611 F. Supp. 926,932 (E.D. Va.

9

1985). Thus, the burden shifts back to Coleman to demonstrate that Altec's non-discriminatory
reason is a pretext for race discrimination. See, e.g., Hux v. City ofNewport News, 451 F.3d 311,
314-15 (4th Cir. 2006). Coleman has failed to offer any evidence concerning pretext. Accordingly,
the court grants Altec's motion for summary judgment on Coleman's discriminatory termination
claim.

B.
As for Coleman's retaliation claim, Coleman contends that he was fired in retaliation for
reporting Tingen to human resources for touching him. See [D.E. 34]; Coleman Dep. at 59.
Coleman also argues that he was retaliated against when Rice conducted Coleman's performance
review after Coleman complained to human resources that Rice hit him. See Coleman Dep. at 58.
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in
protected activity; (2) his employer took an action against him that a reasonable employee would find
materially adverse; and, (3) a casual connection existed between the protected activity and the
adverse employment action.

See,~. Burlington N.

& Santa Fe Ry., 548 U.S. at 67-70; DeMasters

vCarilionClinic, 796F.3d409, 416 (4th Cir. 2015); Fosterv. Univ. ofMd.-E. Shore, 787 F.3d243,
250 (4th Cir. 2015); Boyer-Liberto, 786 F.3d at 271; Balas v. Huntington Ingalls Indus., Inc., 711
F.3d 401, 410 (4th Cir. 2013); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.
2007); Pricev. Thompson, 380 F.3d209, 212 (4th Cir. 2004); Bryantv. AikenReg'lMed. Ctrs. Inc.,
333 F.3d 536, 543 (4th Cir. 2003); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 190 (4th Cir.
2001).
As for the first element, protected activities include using "informal grievance procedures
as well as staging informal protests and voicing one's opinions in order to bring attention to an
employer's discriminatory activities." Laughlin v. Metro. Wash. A.imorts Auth., 149 F.3d 253,259
10

(4thCir. 1998); see Chang Lim v. Azar, 310 F. Supp. 3d 588,603-04 (D. Md. 2018). Furthermore,
the plaintiff must show that the employment practices he opposed were either "actually unlawful
under Title Vll" or that he reasonably believed the employment practices were unlawful. Breeden,
532 U.S. at271; DeMasters, 796 F.3d at 417; Boyer-Liberto, 786 F.3d at 282; Bonds v. Leavitt, 629
F.3d369, 384 (4thCir. 2011); EEOC v. NayyFed. CreditUnioll, 424 F.3d397, 406 (4th Cir. 2005);
Chang Lim, 310 F. Supp.

~d

at 603-04. "Complaints about management activities that would not

constitute unlawful discrimination do ~ot count as protected activity." Chang Lim, 310 F. Supp. 3d
at 604; see Freilich v. Uwer Chesapeake Health. Inc., 313 F.3d 205,216-17 (4th Cir. 2002); Brown
v. Goodwill Indus. ofE. N.C .. Inc., No. 4:17-CV-144-0,2018 WL2422315, at *2-3 (E.D.N.C. May
29, 2018) (unpublished).
As for Coleman's retaliation claim concerning Rice giving Coleman a performance review,
this claim is untimely. See Morgan, 536 U.S. at 114. Rice gave Coleman a performance review in
February and July 2015. See Rice Decl. ~~ 9, 17. As stated, Coleman did not file his EEOC charge
until August 2016.
Alternatively, even viewing the evidence in the light most favorable to Coleman, Coleman
did not produce any evidence that he engaged in a protected activity. Although Coleman reported
to human resources that Rice touched him, Coleman did not allege that such incident was racially .
motivated. See [D.E. 28-1]; Coleman Dep. at 58--60. Complaints about employment niisconduct
such as hitting or touching must "concern race discrimination to constitute protected activity under
Title Vll." Howard v. Indianapolis Pub. Sch., 727 F. App'x 198, 201-02 (7th Cir. 2018) (per
curiam) (unpublished).

Furthermore,

Colem~

did not produce any evidence that Rice's

participation in his performance review constitutes an action that a reasonable employee would find
materially adverse. "An adverse employment action is a discriminatory act that adversely affects the
11

terms, conditions, or benefits of the plaintiff's employment." Holland, 487 F.3d at 219; see James
v. Booz-Allen & Hamilton. Inc., 368 F.3d 371, 375 (4th Cir. 2004); Cherry v. Elizabeth City State
Univ., 147 F. Supp. 3d414, 426 (E.D.N.C. 2015); Mitchell v. N.C. Div. ofEmp't Sec., 76 F. Supp.
3d 620, 625 (E.D.N.C. 2014), aff'd, 599 F. App'x 517 (4th Cir. 2015) (per curiam) (unpublished);
Holleyv. N.C. Dep'tofAdmin., 846F. Supp. 2d416,442-43 (E.D.N.C. 2012). Rice's participation
in Coleman's performance review is not a materially adverse action. See, ~' Mitchell, 76 F. Supp.
3d at 625; Holley, 846 F. Supp. 2d at 442-43.
As for Coleman's retaliation claim concerning his termination, this claim also fails.
Although Coleman reported to human resources that Tingen touched him, Coleman did not allege
that such incidents were racially motivated. See Coleman Dep. at 58-60. Complaints about
employment misconduct such as hitting or touching must "concern race discrimination to constitute
protected activity under Title VII." Howard, 727 F. App'x at 201-02. Furthermore, the time lapse
between Coleman reporting the touching incidents and his termination defeats any inference of
causation. On July 30, 2015, Coleman reported to Sandra Whitfield that Tingen had touched him
on two occasions. See Whitfield Decl. ~ 6. Coleman, however, was not terminated until February
2016. This time lapse defeats any inference of causation.
Hooven-Lewis v.

Calder~

See,~'

Breede!l, 532 U.S. at 273-74;

249 F.3d 259, 278 (4th Cir. 2001) ("A six month lag is sufficient to
;

negate any inference of causation."); Dowe v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 657 (4th Cir. 1998) (a "lengthy time lapse" between protected activity and adverse
employment action negates any inference of causation); Graves v. Bank of America. N.A., 54 F.
Supp. 3d 434, 443 (M.D.N.C. 2014); cf. King. 328 F.3d at 151 (a two-month time lapse between
protected activity and adverse employment action is sufficient to show the causation element of a
prime facie case of retaliation). Accordingly, the court grants summary judgment to Altec on
12

Coleman's retaliation claim.

c.
As· for Coleman's wrongful discharge claim, under North Carolina law, an employer
generally may terminate an at-will employee for any reason. Garner v. Rentenbach Constructors
Inc., 350 N.C. 567, 568-72, 515 S.E.2d 438, 439-41 (1999). North Carolina recognizes a narrow
exception to that general rule if an employee's termination violates North Carolina public policy.
See,~'

Whitt v. Harris Teeter. Inc., 359 N.C. 625, 625, 614 S.E.2d 531, 532 (2005) (per curiam)

(adopting dissenting opinion at 165 N.C. App. 32, 43-50, 598 S.E.2d 151, 159-63 (2004)
(McCullough, J., dissenting)); Garner, 350N.C. at568-72, 515 S.E.2dat439-41; Amos v. Oakdale
Knitting Co., 331 N.C. 348,350--54,416 S.E.2d 166, 167-70 (1992); Coman v. Thomas Mfg. Co.,
325 N.C. 172, 176-78, 381 S.E.2d 445, 447-49 (1989). To prove a claim of wrongful discharge in
violation of North Carolina public policy, a plaintiff must identify and rely upon a specific North
Carolina statute or North Carolina constitutional provision stating North Carolina's public policy.
See Garner, 350 N.C. at 568-72,515 S.E.2d at 439-41; Amos, 331 N.C. at 350--54,416 S.E.2d at
- 167-70; Coman, 325 N.C. at 176, 381 S.E.2d at 447; Home v. Cumberland Cty. Hosp. Sys.• Inc.,
228 N.C. App. 142, 146,746 S.E.2d 13, 17-19 (2013); Gillis v. Montgomery Cty. Sheriff's Dep't,
191 N.C. App. 377, 379-81, 663 S.E.2d 447,449-50 (2008); Whitings v. Wolfson Casing Com.,
173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005); Considine v. Compass Grp. USA. Inc., 145
N.C. App. 314,321,551 S.E.2d 179, 184 (2001), aff'd, 354 N.C.-568, 557 S.E.2d 528 (2001) (per
curiam).
Coleman relies on N.C. Gen. Stat. § 143-422.2 as the source of North Carolina's public

13

policy.3 Coleman contends that Altec terminated his employment due to his race. Coleman's claim
fails for the same reason his Title Vll race-discrimination claim fails.

See,~.

Ricketts v. Logics.

LLC, No. 5:15-CV-293-D, 2017 WL 4293406, at *8 (E.D.N.C. Sept. 27, 2017) (unpublished);
McDougal-Wilson, 427 F. Supp. 2d at 621. Accordingly, the court grants Altec's motion for
summary judgment on Coleman's wrongful discharge claim.
Ill.

In sum, the court GRANTS in part and DENIES in part Altec's motion for summary
judgment [D.E. 22], DENIES as untimely Coleman's motion for summary judgment [D.E. 64], and
DENIES Coleman's motion to compel [D.E. 40]. The parties shall engage in a court-hosted
mediation with United States Magistrate Judge James E. Gates.
SO ORDERED. This _1_ day of September 2018.

3

N.C. Gen. Stat. § 143-422.2 states:

It is the public policy of this State to protect and safeguard the right and opportunity
of all persons to seek, obtain and hold employment without discrimination or
abridgement on account of race, religion, color, national origin, age, sex or handicap
by employers which regularly employ 15 or more employees.
It is recognized that the practice of denying employment opportunity and
discriminating in the terms of employment foments domestic strife and unrest,
deprives the State of the fullest utilization of its eapacities for advancement and
development, and substantially and adversely affects the interests of employees,
employers, and the public in general.

N.C. Gen. Stat. § 143-422.2.
14