U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. A.C. WIDENHOUSE, INC.

Filing 51

MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 12/19/2012, recommending that Defendant's Motion for Summary Judgment [Doc. # 24 ] be granted as to Plaintiff Gill's s tate law claim of wrongful discharge, but otherwise be denied. FURTHER, ordering that Defendant's Motion to Strike [Doc. # 27 ] is GRANTED without prejudice to the decision being reconsidered to the extent it pertains to evidence admissible at trial. (Israel, Lisa) Modified to include language erroneously omitted in original text entry on 12/19/2012 (Israel, Lisa).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
CONTONIUS GILL,
Intervenor-Plaintiff,
v.
A.C. WIDENHOUSE, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

1:11CV498

MEMORANDUM OPINION AND ORDER AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a partial Motion for Summary Judgment [Doc. #24]
filed by Defendant A.C. Widenhouse, Inc. (“Widenhouse” or “Defendant”) in this employment
discrimination action.

In this case, the Plaintiff U.S. Equal Employment Opportunity

Commission (“Plaintiff EEOC”) has asserted a single claim pursuant to Title VII of the Civil
Rights Acts of 1964 and Title I of the Civil Rights Act of 1991, alleging that Defendant
discriminated on the basis of race by subjecting employees to a racially hostile work
environment. Intervenor-Plaintiff Contonius Gill (“Plaintiff Gill”) filed a Complaint in
Intervention, asserting claims against Defendant for (1) violation of Title VII based on a racially
hostile work environment, racially discriminatory discharge, and retaliatory discharge; (2)
discrimination on the basis of race in violation of 42 U.S.C. § 1981; and (3) wrongful discharge

in violation of state public policy.1 In the present Motion for Partial Summary Judgment,
Defendant seeks judgment in its favor on the claims asserted by Plaintiff Gill related to his
discharge, but Defendant does not seek to dismiss the hostile work environment claim asserted
by Plaintiff EEOC. Defendant Widenhouse has also filed a Motion to Strike [Doc. #27],
seeking to strike portions of Plaintiff Gill’s summary judgment evidence. For the reasons set
out below, the Court will grant Defendant’s Motion to Strike and will recommend that
Defendant’s Motion for Summary Judgment be granted in part and denied in part, and that this
action proceed to trial on Plaintiff Gill’s claims alleging racially hostile work environment,
discriminatory discharge, and retaliatory discharge in violation of federal law, and on Plaintiff
EEOC’s claim alleging hostile work environment in violation of Title VII and Title I.
I.

FACTUAL BACKGROUND
Widenhouse is located in Concord, N.C., and is engaged in the business of hauling

asphalt and other material. (Gill Dep. at 72-85 [Doc. #26-7 at 3-16].) Plaintiff Gill was
employed as a truck (tanker) driver hauling molten asphalt in the area surrounding the
company’s Concord base of operations (Old Charlotte Road facility) from May 2007 until June
2008. (Id.) Plaintiff was hired by the company’s terminal manager, Mr. Buddy Waller (“Manager
Waller”), whose office was located in the Old Charlotte Road facility. (Id.) Plaintiff was
supervised by Manager Waller and worked directly with the company dispatcher, Ms. Kim

1

Plaintiff Gill also originally asserted a claim alleging disparate treatment based on race, but he has
voluntarily dismissed that claim [Doc. #20].

-2-

Griffin (“Dispatcher Griffin”), who also occupied an office at the Old Charlotte Road facility.
(Id.)
Plaintiff testified at his deposition that he was subjected to racial harassment throughout
the time that he was employed at Widenhouse. He testified that Manager Waller, Dispatcher
Griffin, and several of his co-workers frequently used the terms “nigger,” “coon,” “tar baby,”
“monkey,” “Tyrone,” and “lawn jockeys” in his presence to refer to African Americans. (Gill
Dep. at 170-86 [Doc. #26-7 at 45-61].) Manager Waller, Dispatcher Griffin, and the co-workers
who allegedly used these terms are all Caucasian. Specifically with respect to Manager Waller,
Plaintiff Gill contends that Manager Waller would often ask Plaintiff Gill if he was going to vote
for “Obammy,” meaning President Obama, and that Manager Waller told him that “if one of
his daughters brought home a black man,” he would “kill them both.” (Id. at 184, 194-95 [Doc.
#26-7 at 59, 69-70].) Plaintiff testified that he complained to Manager Waller about his use of
the “N-word,” and Manager Waller would “say okay” or smile but never stopped using the
word. (Id.) Plaintiff recalled complaining to Manager Waller approximately 25 times about
racial terms being used at Widenhouse, and also complained to Manager Waller when he saw
a noose hanging in the Widenhouse shop. (Id. at 196-99 [Doc. #26-7 at 71-74].)
In addition to his own testimony regarding Manager Wallace, Plaintiff presented
testimony of his co-workers. One co-worker, Carl Hewitt, testified at deposition that he heard
Manager Waller use the term “nigger” toward Defendant Widenhouse a few times, and that he
recalled Manager Waller telling a joke which included the term “nigger.” (Hewitt Dep. at 30-31,
36 [Doc. #26-10 at 3-4, 9].) He further testified that he had seen a “Son of the South” business
-3-

card, displaying a confederate flag, on Manager Waller’s desk. (Id. at 46-47 [Doc. #26-10 at 1920].) Mr. Hewitt stated that Manager Waller was “very racist.” (Id. at 53 [Doc. #26-10 at 24].)
Mr. Robert Floyd, an African American driver for Widenhouse, testified at deposition
that a phrase often used in Defendant’s offices was “family tree,” which referred to a place on
the Widenhouse property “where they would hang the Black people.” (Floyd Dep. at 95 [Doc.
#26-11 at 18].) Mr. Floyd testified that he had seen a noose placed in the back of Manager
Waller’s truck, and he had seen a noose hanging from one of the rafters in Defendant’s shop.
(Id. at 101, 105-07 [Doc. #26-11 at 24, 28-30].) Mr. Floyd further testified that on one occasion,
he had an argument with Manager Waller, and Manager Waller made a reference to finding a
noose with Mr. Floyd’s name on it. Mr. Floyd said that Manager Waller referred to “friends
visit[ing] during the middle of the night,” which Mr. Floyd took as a reference to the Ku Klux
Klan. (Id. at 134-36 [Doc. #26-11 at 52-54].) Mr. Floyd had also seen the “Son of the South”
card with the confederate flag on it upon Manager Waller’s desk. (Id. at 148 [Doc. #26-11 at
66].) He associated the card with the KKK. (Id. at 155-56 [Doc. #26-11 at 73-74].) Mr. Floyd
testified at that he complained to Owner Barbour about Manager Waller’s racist comments, but
Owner Barbour told him to “just let it go.” (Floyd Dep. at 30-31, 39 [Doc. #26-11 at 3-4, 12].)
According to Mr. Floyd, Owner Barbour told him that he hired Manager Waller to be his
terminal or general operations manager and that Owner Barbour “backed” Manager Waller “100
percent.” (Id. at 111 [Doc. #26-11 at 34].)
In addition to the alleged harassment by Manager Waller, Plaintiff also testified regarding
racial harassment by a Widenhouse mechanic, Brian Christy (“Mechanic Christy”). Plaintiff
-4-

testified that Mechanic Christy presented a noose to him on more than one occasion and once
told him that the noose was for him and asked Plaintiff if he wanted to “hang from our family
tree.” (Gill Dep. at 192 [Doc. #26-7 at 67].) Plaintiff testified that Mr. Christy frequently made
comments such as “Look at that tar baby,” “We don’t have a colored bathroom,” and “We’re
out of black paint, can we borrow some off you?” (Id. at 193 [Doc. #26-7 at 68].) In addition,
Plaintiff presented testimony that another driver named Bud would use terms such as “nigger,
porch monkey, coon” more or less every day while at work, often in Manager Waller’s presence,
that Bud would talk about black people “constantly” and tell racial jokes on the CB radio used
by the drivers, and that there was a hangman’s noose in the truck driven by Bud. (Hewitt Dep.
at 32-33, 39-41, 44-45 [Doc. #26-10 at 5-6, 12-14, 17-18].)
Plaintiff’s employment was terminated on June 9, 2008. Plaintiff testified at deposition
that on June 9, 2008, he was at Blythe Construction where he was picking up loads of molten
asphalt when he “got a little ill.” (Gill Dep. at 106 [Doc. #26-7 at 18].) He testified that he
“slipped off the side of the tanker” and attempted to call Dispatcher Griffin on his Nextel phone
to report his illness. (Id.) He further testified that after unsuccessfully trying to reach her for
30 to 45 minutes, he returned to the Old Charlotte Road facility. (Id.) On his way there,
Plaintiff Gill stated that he had to pull his truck over one time because he “was really dizzy, really
dizzy,” and almost vomited. (Id.)2 Plaintiff testified that he arrived at the Old Charlotte Road
facility and was pumping gas into his truck when he heard Dispatcher Griffin yelling at him on

2

Plaintiff’s co-worker, Mr. Floyd, confirmed that when hauling asphalt the fumes given off from the
tanker were very strong and capable of making one nauseous. (Floyd Dep. at 160 [Doc. #26-11 at 78].)

-5-

the Nextel and asking him, “What the hell are you doing here?” (Id.) He testified that he also
heard her say that he had better “get [his] ass back over to Blythe.” (Id. at 109 [Doc. #26-7 at
21].) He said that he did not respond by Nextel, and intended to go across the street to the
office and talk to Dispatcher Griffin, when he saw her come out of the office and leave in her
car. (Id. at 107 [Doc. # 26-7 at 19].) Plaintiff testified that he attempted unsuccessfully to talk
to Dispatcher Griffin again on the Nextel, but she did not respond. (Id. at 110 [Doc. #26-7 at
22].)
Plaintiff testified that a few minutes later, he heard Manager Waller, who was with Owner
Barbour, on the Nextel. (Id.) Plaintiff stated that he talked to Manager Waller for a minute or
so and their conversation ended when Manager Waller told Plaintiff that he was “tired of some
shit, my shit or something, and clean out the truck” and for Plaintiff to leave his “stuff with
Brian.” (Id. at 113 [Doc. #26-7 at 25].) Plaintiff further testified that Manager Waller may have
told him to go back to Blythe Construction to run some loads, and that he responded by telling
Manager Waller that he was not feeling well. (Id.) Plaintiff said that “at no time did [he] talk to
Owner Barbour,” although he assumed that the voice he heard in the background while talking
to Manager Waller was Owner Barbour. (Id. at 115 [Doc. #26-7 at 27].) Plaintiff testified that
he took Manager Waller’s comment to “clean out” his truck to mean that he was fired. (Id.)
Plaintiff testified that he left the facility and went to the doctor that same day. (Id. at 116
[Doc. #26-7 at 28].)

He stated that he was given breathing treatments and “steroidal

medication.” (Id.) The doctor wrote Plaintiff a note stating that Plaintiff could return to work
on the 11th of June. (Id.) Plaintiff said that he returned to the Old Charlotte Road office on
-6-

the 11th but that Dispatcher Griffin would not accept his note. (Id. at 117 [Doc. #26-7 at 29].)
According to Plaintiff, Dispatcher Griffen told Plaintiff to give it to Manager Waller, but
Manager Waller was not at the office and refused to speak to Plaintiff by phone. (Id.)
The record reveals at least two other versions of the above events on June 9, 2008.
Dispatcher Kim Griffin testified that, to her recollection, Manager Waller and Plaintiff met in
person in the office at the Old Charlotte Road facility on June 9. (Griffin Dep. at 155-57 [Doc.
#26-12 at 11-12].) According to her, Plaintiff told Manager Waller that he did not feel well and
was not going to finish his runs. (Id.) According to Dispatcher Griffin, Owner Barbour was not
present, and Manager Waller told Plaintiff that he needed to go back and finish his runs, but
Plaintiff said that he was not going back. (Id. at 158-59 [Doc. #26-12 at 13-14].) Dispatcher
Griffin testified that after 15 or 20 minutes of hearing them arguing, she left the office for lunch,
and when she returned to the office, Manager Waller told her that he “had to let Mr. Gill go.”
(Id. at 161, 165 [Doc. #26-12 at 16, 20].)
For his part, Manager Waller testified at deposition that on June 9, he was riding with
Owner Barbour close to Hickory, N.C., when Dispatcher Griffin called him on his Nextel and
told him that Plaintiff Gill refused to haul a load to Blythe Construction and that she “had to
have it to Blythe.” (Waller Dep. at 217 [Doc. #26-8 at 19].) Manager Waller contends that he
called Plaintiff Gill to see what the problem was, and Plaintiff Gill said that it was too hot and
that he did not want to work. (Id. at 219 [Doc. #26-8 at 21].) According to Manager Waller,
Plaintiff Gill did not say that he was feeling sick or dizzy. (Id.) Manager Waller further testified
that he gave the Nextel to Owner Barbour, who offered Plaintiff Gill an extra $25 to haul the
-7-

load, but that Plaintiff Gill still refused. (Id. at 224 [Doc. #26-8 at 26].) Manager Waller testified
that “Owner Barbour is the one that let [Plaintiff Gill] go.” (Id.) Manager Waller testified that
when he returned to Concord, Plaintiff Gill was not at the office, and he had no further
conversation with Plaintiff Gill. (Id. at 225 [Doc. # 26-8 at 27].)
Owner Barbour similarly testified at his deposition that on June 9, he and Manager Waller
were riding together when Dispatcher Griffin called Manager Waller on his Nextel to inform
him that Plaintiff Gill refused to take the load. (Barbour Dep. at 102 [Doc. #26-6 at 27].) Mr.
Barbour said that he talked to Plaintiff Gill by Nextel, offered him $25 extra to take the load to
Blythe Construction, and told Plaintiff Gill that “if he did not take the load I was going to
interpret that as he was quitting.” (Id.) Owner Barbour contends that Plaintiff Gill did not
mention that he was feeling sick, and only complained that it was too hot. (Id. at 106-08 [Doc.
#26-6 at 31-33].) Owner Barbour testified that he told Plaintiff Gill to turn in his uniforms and
Nextel if he did not haul the loads. (Id. at 109 [Doc. #26-6 at 34].) According to Owner
Barbour, Plaintiff Gill responded, “okay,” and Owner Barbour said that with that response he
expected Plaintiff to haul the loads. (Id.) Owner Barbour contends that he based his decision
to terminate Plaintiff Gill solely on his refusal to haul the load. (Id. at 115 [Doc. #26-6 at 40].)
Plaintiff Gill filed his Charge of Discrimination with the EEOC on August 19, 2008.
(Charge [Doc. #25-3] at 2.) He claimed race discrimination and retaliation by being discharged
for complaining about racial harassment. (Id.)3 After the EEOC filed the present suit alleging
3

In addition, on August 10, 2008, Plaintiff filed an Employment Discrimination Complaint with the
North Carolina Department of Labor. In the Department of Labor Complaint Questionnaire, Plaintiff alleged
that he became sick at work on June 9 while driving a truck with faulty air conditioning and loading molten

-8-

discrimination based on a racially hostile work environment, Plaintiff intervened, adding his
claims for discriminatory and retaliatory discharge. In the present Motion for Summary
Judgment, Defendant seeks dismissal of the claims related to Plaintiff’s discharge, contending
that Plaintiff has failed to present sufficient evidence in support of his claims.
II.

DISCUSSION
A.

Summary Judgment Standard

Summary judgment is appropriate only when no genuine issue of material fact exists.
Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). A genuine issue of fact exists if the
evidence presented could lead a reasonable fact-finder to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court considering
a motion for summary judgment must view all facts and draw all reasonable inferences from the
evidence before it in a light most favorable to the non-moving party. Id. The proponent of
summary judgment “bears the initial burden of pointing to the absence of a genuine issue of
material fact.” Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the movant carries this burden, then the
burden “shifts to the non-moving party to come forward with facts sufficient to create a triable
issue of fact.” (Id. at 718-19 (citing Anderson, 477 U.S. at 247-48).)
Title VII prohibits an employer from discharging an individual or otherwise
discriminating against him with respect to compensation, terms, conditions, or privileges of

asphalt, that he informed Dispatcher Griffin and Manager Waller of the illness, and that he was fired on June
9 when he complained of his illness.

-9-

employment, because of that person’s race. 42 U.S.C. § 2000e-2(a)(1). If a plaintiff has no direct
evidence of discrimination, he may use the burden-shifting scheme of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981). Under that framework, if the plaintiff establishes a prima facie case of discrimination,
the burden of going forward shifts to the employer who must articulate a legitimate, nondiscriminatory reason for the alleged discriminatory act. Burdine, 450 U.S. at 253. Should the
employer carry this burden, the plaintiff has the opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the employer were not its true reasons, but were
a pretext for discrimination. Id. see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 147-48 (2000) (holding that “a plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated”). The ultimate burden of proving
discrimination remains at all times with the plaintiff. Id.4

4

The Court notes that Plaintiff has asserted the same claims under both Title VII and 42 U.S.C. § 1981.
Section 1981 ensures that certain rights, such as the right to make and enforce contracts, are enjoyed by all
persons. 42 U.S.C.A. § 1981. Plaintiff “must satisfy the same elements to establish a prima facie case of racial
discrimination under either Title VII or 42 U.S.C. § 1981.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,
376 & n.1 (4th Cir. 2004); see also Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1136 (4th Cir.
1988) (Burdine standard applicable to cases under Title VII and section 1981, where proof of discriminatory
intent is required). The Fourth Circuit has noted that “[o]ur case law recognizes that ‘the framework of proof
for disparate treatment claims—that is, whether the employer intentionally discriminated against the
employee—is the same for actions brought under Title VII or § 1981.’” Lowery v. Circuit City Stores, Inc., 158
F.3d 742 (4th Cir. 1998) (quoting Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir. 1989)),
vacated on other grounds, 527 U.S. 1031 (1999). In the present case, as in Lowery, the Court’s discussion
“regarding the Plaintiffs’ Title VII claims encompasses [his] claims under § 1981.” Id.

-10-

B.

Plaintiff’s Claim of Discriminatory Discharge

To state a prima facie case of discriminatory discharge, Plaintiff must show that (1) he
is a member of a protected class; (2) he suffered an adverse employment action; (3) he was
performing his job at a level that met his employer’s expectations at the time of discharge; and
(4) the adverse employment action occurred under circumstances that support an inference of
unlawful discrimination. See Royster v. Costco Wholesale Corp., 378 F. Supp. 2d 595, 604
(M.D.N.C. 2005).
In this case, Defendant Widenhouse concedes that Plaintiff Gill can establish the first
two elements of the prima facie case. It argues, however, that Plaintiff cannot establish elements
three and four. Specifically, Defendant argues that because Plaintiff refused to perform his
duties on June 9, 2008, he was not meeting its expectations at the time of discharge because he
did not haul the loads as required. (Def.’s Mem. [Doc. #25] at 6.) However, in considering this
contention, the Court notes that Manager Waller testified that under the company’s health and
wellness policy, a driver who felt nauseated and dizzy would need to come off the road. (Waller
Dep. at 198 [Doc. #26-8 at 13].) Plaintiff has testified that he felt dizzy and nauseous on that
day, which prevented him from safely operating his vehicle. (Gill Dep. at 106-08 [Doc. #26-7
at 18-20].) Moreover, Owner Barbour testified that drivers had become ill while working for
Widenhouse and were allowed to come in off of the road. (Barbour Dep. at 136-37 [Doc. #26-6
at 56-57].) Although Manager Waller denies hearing anything about Plaintiff Gill being sick on
June 9, Dispatcher Griffin testified that she heard Plaintiff tell Manager Waller that he was sick.
(Griffin Dep. at 155-57 [Doc. #26-12 at 11-12].) In addition, Plaintiff testified that Manager
-11-

Waller may have told him to go back to Blythe Construction to run some loads, and that he
responded by telling Manager Waller that he was not feeling well. (Gill Dep. at 113 [Doc. #26-7
at 25].) Plaintiff also testified that he left the facility and went to the doctor that same day, that
he was given “breathing treatments,” and that the doctor told him not to return to work until
June 11. (Id. at 116 [Doc. #26-7 at 28].) In light of the company policies noted by Manager
Waller and Owner Barbour, Plaintiff’s failure to continue delivering loads after he became ill and
dizzy would not reflect a failure to meet his employer’s legitimate expectations.
Additionally with respect to whether Plaintiff was otherwise meeting his employer’s
legitimate expectations, Plaintiff testified that he had never been disciplined for poor
performance at work. (Gill Dep. at 185-86 [Doc. #26-7 at 60-61].) In an effort to nevertheless
establish that Plaintiff was not meeting expectations, Defendant prepared Plaintiff’s purported
attendance records for the EEOC investigation. (Records [Doc. #26-12] at 57-59.) These
records show that on several days Plaintiff Gill refused to work. (Id.) However, Dispatcher
Griffin testified that she created these records after Plaintiff was terminated in order to show a
“pattern of laziness” on Plaintiff’s part. The depositions of Manager Waller and Dispatcher
Griffin show that many of the entries cannot be reconciled with Plaintiff Gill’s payroll and other
attendance records. (Griffin Dep. at 175-202 [Doc. #26-12 at 28-55].) Therefore, there are
questions regarding the reliability of the records, as well as the circumstances surrounding the
creation of those records. In the circumstances, the Court finds that Plaintiff has presented
sufficient evidence to establish that he was meeting Defendant Widenhouse’s legitimate
employment expectations when he was discharged.
-12-

Defendant Widenhouse also contends that Plaintiff has not established the fourth
element of the test, that his discharge occurred under circumstances that support an inference
of unlawful discrimination. However, the deposition testimony of both Plaintiff and Dispatcher
Griffin allows the conclusion that Manager Waller fired Plaintiff, and not Owner Barbour as
Defendant now contends. In addition, the record contains considerable evidence that Manager
Waller participated in or allowed many of the forms of racial harassment of which Plaintiff
complains. There is also evidence that white employees were not fired even though one failed
a drug test for which company policy required termination. (Waller Dep. at [Doc. #26-9] at 38;
Griffin Dep. at 141-42, 146 [Doc. #26-12 at 4-5, 9].) A jury could infer unlawful discrimination
based upon Plaintiff’s termination in the circumstances and in light of the significant evidence
of racial hostility and harassment. Therefore, Plaintiff Gill has established all of the elements
of his prima facie case.
Because Plaintiff can establish the elements of his prima facie case, the burden shifts to
Defendant Widenhouse to articulate a legitimate, non-discriminatory reason for firing Plaintiff.
In this case, Defendant Widenhouse contends that it can establish a legitimate nondiscriminatory reason for terminating Plaintiff’s employment, based on his refusal to work on
June 9, 2008, even if he was sick. Plaintiff contends that the reason proffered by Defendant is
not its true reason, but is a pretext for discrimination. In this regard, as noted above, the
evidence presented indicates that under Widenhouse policy, a driver who felt nauseated and
dizzy would need to come off the road, and Owner Barbour testified that drivers had become
ill while working for Widenhouse and were allowed to come off of the road. (Barbour Dep. at
-13-

136-37 [Doc. #26-6 at 56-57].) In addition, the evidence shows that Defendant believed in
giving “second chances” to its white employees, including the employee who failed the random
drug test but was not fired. (Waller Dep. [Doc. #26-9] at 38 (company drug policy stating that
employees “with positive test results will immediately be terminated from employment”); Griffin
Dep. at 142-43, 146 [Doc. #26-12 at 4-5, 9].)
In addition, as discussed above, there is evidence that Widenhouse created inaccurate
attendance records to establish a basis for Defendant’s termination. Similarly, Defendant has
offered inconsistent versions of the circumstances surrounding Plaintiff’s termination,
specifically as to the identity of the decision-maker. In this regard, Defendant Widenhouse now
contends that Owner Barbour was the sole decision-maker with respect to Plaintiff’s
termination, rather than Manager Waller. (Inter. Resp. [Doc. #26-6] at 63-64; Barbour Dep. at
114-15 [Doc. #26-6 at 39-40].) A determination that Owner Barbour rather than Manager
Waller terminated Plaintiff’s employment would work in Defendant’s favor because of the
extensive evidence of racial bias of Manager Waller. However, during the EEOC investigation,
counsel for Defendant Widenhouse wrote a letter to the EEOC dated September 21, 2008,
stating that Manager Waller told Plaintiff Gill to either haul the load or clean out his truck,
without mention of any action by Owner Barbour.5 (Barbour Dep. [Doc. #26-6] at 72.) Thus,
5

Defendant Widenhouse has filed a Motion to Strike [Doc. #27], seeking to strike from the summary
judgment record a July 29, 2008 letter [Doc. #38-1] from Defendant’s counsel to Plaintiff Gill’s counsel at the
time. Defendant argues that the letter should be disregarded in its entirety pursuant to Fed. R. Evid. 408 because
it was made for settlement purposes. Plaintiff Gill relies on this evidence for its contention that Manager Waller,
rather than Owner Barbour, fired Plaintiff. However, the same information is set out in the September 21, 2008,
letter from Defendant’s counsel to Mr. Fulp of the EEOC, to which no objection is made. Therefore, the July
29 letter need not be considered in any event. In these circumstances, Defendant’s Motion to Strike will be
granted for purposes of this motion, and any further use or consideration of the July 29 letter may be considered

-14-

Plaintiff has presented evidence of inconsistencies by Defendant that can be considered in
determining whether Defendant’s proffered reason is pretextual. Cf. E.E.O.C. v. Sears
Roebuck and Co., 243 F.3d 846, 852-53 (4th Cir. 2001) (noting that an employee may impeach
an employer’s proffered reason for the discharge if the company offers different and arguably
inconsistent explanations for the dismissal of an employee); Reeves, 530 U.S. at 147 (noting that
a fact-finder may be “entitled to consider a party’s dishonesty about a material fact as ‘affirmative
evidence of guilt’”). After considering the evidence of record, a jury could determine that
Defendant Widenhouse’s proffered reason for terminating Plaintiff’s employment was a pretext
for racial discrimination.
Of course, Plaintiff bears the ultimate burden to prove discrimination, and in the context
of a motion for summary judgment, Plaintiff must establish that a genuine issue of fact exists
as to the ultimate question of whether Defendant Widenhouse intentionally discriminated against
him. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005). Here,
Plaintiff has impeached Defendant’s proffered reason for his discharge as noted above, and has
presented significant evidence of racial hostility and harassment. The Court concludes that
Plaintiff has presented sufficient evidence from which a reasonable jury could conclude that his
discharge was a result of racial discrimination.6 Therefore, the Court will recommend that

at trial.
6

The Court notes that Plaintiff has proceeded under the McDonnell Douglas burden-shifting scheme,
and the Court has therefore analyzed his claims under that framework. However, the evidence of extensive racial
hostility at Widenhouse could also be considered in determining whether Plaintiff has presented “sufficient
evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race . . . was a motivating
factor” for the employment action. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

-15-

Defendant’s Motion for Summary Judgment as to Plaintiff Gill’s claim of discriminatory
discharge should be denied.
C.

Plaintiff’s Claim for Retaliatory Discharge

Plaintiff Gill also contends that his discharge was in retaliation for his complaints of racial
discrimination. “Title VII’s antiretaliation provision forbids employer actions that ‘discriminate
against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids
or has ‘made a charge, testified, assisted, or participated in’ a Title VII ‘investigation, proceeding,
or hearing.’” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)
(quoting 42 U.S.C. § 2000e–3(a)). To state a prima facie case of retaliation under Title VII,
Plaintiff must establish that (1) he engaged in a protected activity; (2) Defendant took materially
adverse action against him; and (3) a sufficient causal connection exists between the protected
activity and Defendant’s adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir.
2011).
In this case, Defendant concedes that Plaintiff has produced sufficient evidence to
establish the first and second elements of the prima facie case for retaliation. (Def.’s Mem.
[Doc. #25] at 8.) Specifically, Plaintiff has presented evidence that he complained to his
supervisor regarding racial harassment. Cf. Laughlin v. Metropolitan Washington Airports
Auth., 149 F.3d 253, 259 (4th Cir. 1998) (noting that “protected activity” includes “opposition
activity,” which “encompasses utilizing 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.”) In addition, Plaintiff suffered a materially adverse action when he was discharged.
-16-

However, Defendant contends that Plaintiff cannot establish a causal connection between his
discharge and the protected activity. In this regard, Defendant contends that Plaintiff Gill has
not provided any evidence that Owner Barbour, whom it contends was the decision-maker, was
aware of any of Plaintiff’s racial discrimination complaints. However, as described above, there
is a genuine issue of fact whether Owner Barbour or Manager Waller was the decision-maker.
In addition, there is evidence in the record from which a jury could find that Manager Waller
knew of Plaintiff’s complaints. Plaintiff testified that on May 5, 2008, he complained to both
Manager Waller and Dispatcher Griffin that he was tired of hearing “the N-word,” but they were
indifferent to his complaint. (Gill Dep. at 157-59 [Doc. #26-7 at 32-34].) The record contains
a notation written by Dispatcher Griffin stating that Plaintiff “said he overheard drivers saying
the ‘N’ word not directly to him.” (Griffin Dep. [Doc. #26-12] at 56.) Dispatcher Griffin
testified that she did not remember writing the note and did not remember what she did with
it after she wrote it, “unless I give [sic] it to Buddy [Waller] and it was put in his file.” (Id. at 95
[Doc. #26-12 at 3].)
Defendant also contends that “temporal proximity alone is insufficient to prevail on a
retaliation claim.” However, the evidence would support a conclusion that Plaintiff Gill
complained to Manager Waller about racial harassment at the workplace on May 5, 2008, about
four weeks prior to the day Plaintiff’s employment was terminated on June 9. Such close
temporal proximity between the complaint and the materially adverse action supports a finding
that the two were connected. See Lettieri v Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007).
Moreover, the evidence set forth above of the racially discriminatory attitudes toward African
-17-

Americans at Widenhouse “would allow a trier of fact to conclude that these discriminatory
attitudes led to [Plaintiff’s] ultimate termination.” Id. at 649. Therefore, Plaintiff has presented
sufficient evidence to establish a prima facie case of retaliation.
As with the discriminatory discharge claim, the burden then shifts to Defendant to
articulate a legitimate, non-retaliatory reason for the action. As discussed above, Defendant
submits that Plaintiff was discharged for refusing to work. However, for all of the reasons set
out above, Plaintiff has presented evidence to impeach that proffered reason, and has also
presented evidence of racial discrimination and hostility. This evidence would also include
evidence of Defendant’s indifference to Plaintiff’s concerns and failure to correct those engaging
in racial harassment even after Plaintiff’s complaints. The Court concludes that the evidence
presented would allow a reasonable jury to conclude that Plaintiff’s discharge was in retaliation
for his efforts to oppose racial discrimination at Widenhouse. Therefore, the Court will
recommend that Defendant’s Motion for Summary Judgment as to Plaintiff Gill’s claim of
discriminatory discharge and retaliation be denied.
D.

State Law Wrongful Discharge Claims

Finally, as to Plaintiff Gill’s claim for wrongful discharge in violation of public policy
under state law, Defendant seeks dismissal of that claim as barred by the statute of limitations.
In Response, Plaintiff Gill notes that he “does not intend to advance this claim as the applicable
state statute of limitations has expired.” (Pl.’s Br. [Doc. #26] at 1 n.1.) Therefore, Defendant’s
Motion for Summary Judgment should be granted with respect to that state law claim.

-18-

III.

CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that Defendant’s Motion for

Summary Judgment [Doc. #24] be granted as to Plaintiff Gill’s state law claim of wrongful
discharge, but otherwise be denied.
IT IS ORDERED that Defendant’s Motion to Strike [Doc. #27] is GRANTED without
prejudice to the decision being reconsidered to the extent it pertains to evidence admissible at
trial.
This, the 19th day of December, 2012.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

-19-