WOODS v. SALEM ELECTRIC COMPANY
Filing
46
MEMORANDUM OPINION AND ORDER. Signed by JUDGE LORETTA C. BIGGS on 1/6/2017, that Defendant's Motion for Summary Judgment (ECF No. 13 ) on all claims is GRANTED and that Defendant Salem Electric Company's Motion to Dismiss based on Plaintiff's Failure to Comply with Court Orders and Failure to Prosecute (ECF No. 43 ) is DENIED AS MOOT. FURTHER, this matter is DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with this Order.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
FRED D. WOODS, JR.,
Plaintiff,
v.
SALEM ELECTRIC COMPANY,
Defendant.
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1:15CV525
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiff, Fred D. Woods, Jr., brings this action against his former employer, Defendant
Salem Electric Company (“Salem Electric”), alleging racial discrimination and retaliation in
violation of 42 U.S.C. § 2000e-2 et seq. (“Title VII”), and 42 U.S.C. § 1981 (“Section 1981”).
Before the Court is Defendant’s Motion for Summary Judgment (ECF No. 13). For the
reasons set forth below, the Court grants Defendant’s motion.
I.
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
court must view the evidence and “resolve all factual disputes and any competing, rational
inferences in the light most favorable” to the nonmoving party. Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st
Cir. 1996)). The role of the court is not “to weigh the evidence and determine the truth of the
matter” but rather “to determine whether there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists only when “there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Id. “If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted.” Id. at 249–50 (citations omitted); see Ennis v. Nat’l Ass’n of Bus. & Educ. Radio,
Inc., 53 F.3d 55, 62 (4th Cir. 1995) (finding that “unsupported speculation . . . is not enough
to defeat a summary judgment motion”).
In opposing a properly supported motion for summary judgment, the nonmoving party
cannot rest on “mere allegations or denials,” Liberty Lobby, 477 U.S. at 248, and “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The summary judgment inquiry
thus scrutinizes the plaintiff’s case to determine whether the plaintiff has proffered sufficient
proof, in the form of admissible evidence, that could carry the burden of proof of his claim at
trial.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
II.
FACTUAL BACKGROUND
“Salem Electric is an electrical contracting company offering commercial, industrial
and residential service, located in Winston-Salem, North Carolina.” (ECF No. 14 at 1.) In or
around August 2005, Plaintiff, who is African-American, began working for Salem Electric
through Tradesmen International, a temporary staffing agency. (ECF No. 1 ¶¶ 3, 6; ECF No.
20 at 3.) Plaintiff worked with, and reported to, Wayne Gordon (“Gordon”), Project Manager,
and Ronnie Thomas (“Thomas”), Supervisor. (ECF No. 1 ¶ 9; ECF No. 29 at 18:21–23.) At
the recommendation of Gordon and Thomas, in January 2007 Plaintiff applied for a full-time
position with Salem Electric. (ECF No. 31 at 9:20–22; ECF No. 20 at 2.) Plaintiff was hired
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by Salem Electric on January 22, 2007 as an Apprentice II at a pay rate of $12.50 per hour.
(ECF No. 20 at 2; ECF No. 29 at 72:2–3.) During Plaintiff’s full-time employment with Salem
Electric, he continued to be supervised by Thomas and Gordon, though Plaintiff directly
reported to Thomas. (ECF No. 1 ¶ 9; ECF No. 5 ¶ 9; ECF No. 29 at 25:20–22, 26:11–13;
ECF No. 30 at 15:9–12; ECF No. 31 at 7:2–3.)
On February 25, 2014, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“First EEOC Charge”) alleging that he was
discriminated against based on his race in that he was “subjected . . . to a racially hostile work
environment.” (ECF No. 14-1 at 1.) Specifically, among other things, Plaintiff alleged in his
First EEOC Charge that: (i) his Supervisor, Thomas, who was White, called him “boy” three
(3) times during a conversation; (ii) approximately four (4) years prior to the filing of his First
EEOC Charge, in response to having asked Thomas a question, Thomas told him that “he
was going to get a noose and tighten it every time [Plaintiff] asked [Thomas] a question”; (iii)
he was promoted to the position of Mechanic in November 20131 while a “less qualified”
White Salem Electric employee had been promoted to the position of Mechanic “in March or
May 2013”; and (iv) Thomas treated Plaintiff “less favorably” than the other employees.” (Id.
at 1–2.) Prior to filing the First EEOC Charge, Plaintiff did not report Thomas’ use of the
words “boy” and “noose” to Salem Electric. (ECF No. 29 at 42:19–43:4; 46:4–15.) Upon
notification of Plaintiff’s filing of this First EEOC Charge, Salem Electric’s Vice President and
EEO Coordinator, Stephen Sink (“Sink”), conducted an investigation of Plaintiff’s allegations
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Plaintiff’s Salem Electric personnel records reflect that Plaintiff was actually promoted to Mechanic
in September 2013, not November 2013 as stated in the First EEOC Charge. (ECF No. 20 at 4, 7,
11.)
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during which he interviewed Plaintiff, Thomas, and Gordon. (ECF No. 28 at 12:14–18, 87:3–
25.) Thomas admitted to having used the word “boy” but denied having used the word
“noose”. (ECF No. 28 at 88:6–12; ECF No. 30 at 27:8–12, 29:24–30:1.) As a result of Salem
Electric’s investigation, Thomas was given a verbal warning in which he was told “not to use
the word noose or . . . the word boy” and “that if he used it anymore, there’d be disciplinary
action taken up to and including termination.” (ECF No. 28 at 91:1–2, 93:15–20.)
On August 4, 2014, Plaintiff filed a second Charge of Discrimination with the EEOC
(“Second EEOC Charge”) alleging retaliation by Salem Electric for having filed the First
EEOC Charge. (ECF No. 14-2.) Plaintiff was ultimately terminated on September 8, 2014
for “[g]ross misconduct, sexual harassment.” (ECF No. 20 at 13.)
Plaintiff subsequently initiated the instant action, alleging violations of Title VII and
Section 1981. Defendant has moved for summary judgment on every claim asserted by
Plaintiff.
III.
DISCUSSION
Under Title VII of the Civil Rights Act of 1964, it is unlawful 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, color, religion, sex, or national
origin.” 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).
In addition to Title VII, Section 1981 also provides “a federal remedy against
discrimination in private employment on the basis of race.” Johnson v. Ry. Express Agency, Inc.,
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421 U.S. 454, 459–60 (1975). Under Section 1981, an individual is entitled to both equitable
and legal recovery. Johnson, 421 U.S. at 460. “Congress [has] noted ‘that the remedies available
. . . under Title VII are co-extensive with the individual’s right to sue under [Section 1981],
and that the two procedures augment each other and are not mutually exclusive.’” Johnson,
421 U.S. at 459 (quoting H.R. Rep. No. 92–238, 19 (1971), U.S .Code Cong. & Admin. News,
1972, 2137, 2154).
A. Racial Discrimination
i.
Hostile Work Environment Claim
Plaintiff has asserted a hostile work environment claim under Title VII and Section
1981. To survive summary judgment on a race-based hostile work environment claim,
Plaintiff must show that a reasonable jury could find that the alleged conduct was “(1)
unwelcome; (2) based on race; (3) sufficiently severe or pervasive to alter the conditions of
[Plaintiff’s] employment and to create an abusive work environment; and (4) imputable to
[Plaintiff’s] employer.” Pryor v. United Air Lines, Inc., 791 F.3d 488, 495–96 (4th Cir. 2015); see
Freeman v. Dal-Tile Corp., 750 F.3d 413, 424 n.7 (4th Cir. 2014) (explaining that “[t]he standard
used to evaluate a racial hostile work environment claim under § 1981 is the same as the
standard under Title VII”).
Plaintiff argues that while at Salem Electric, he was subjected to “various unwelcome
remarks and treatment . . . based on his race.” (ECF No. 19 at 6.) Specifically, Plaintiff cites
the following: (i) Thomas’ reference to “tying a noose if [Plaintiff] asked too many questions”;
(ii) Thomas speaking to Plaintiff loudly in response to questions in order to embarrass Plaintiff;
and (iii) Thomas having called Plaintiff “boy”. (Id.) There appears to be no dispute between
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the parties that, viewed in the light most favorable to Plaintiff, this alleged conduct was
unwelcome and based on race. Rather, the parties’ arguments focus on whether the conduct
at issue was sufficiently severe or pervasive, and whether there is a basis for imputing liability
to Salem Electric.
a. Severe and pervasive conduct
Title VII and Section 1981 prohibit conduct that permeates the workplace “with
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create[s] an abusive working environment.’”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65, 67 (1986)); see Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 226 (4th Cir.
2016) (stating that “[t]he ‘severe or pervasive’ question is subject to the same standard under
§ 1981 that applies to Title VII”). The determination of whether conduct is “severe and
pervasive” is both subjective and objective. EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175
(4th Cir. 2009). As such, a plaintiff “must show that [he] did perceive, and a reasonable person
would perceive, the environment to be abusive or hostile.” Id. Yet, although a plaintiff may
subjectively believe that the offending conduct created a hostile work environment, “[c]onduct
that is not severe or pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find hostile or abusive—is
beyond Title VII’s purview.” Harris, 510 U.S. at 21 (emphasis added). To determine whether
harassment is sufficiently pervasive to create an objectively hostile and abusive work
environment, courts must consider the totality of circumstances including: “(1) the frequency
of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or
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humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with [the]
employee’s work performance.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir.
2000).
While offensive utterances, without more, generally do not rise to the level of an
actionable claim, courts have upheld claims of hostile work environment based on the use of
“racially abusive language” that was “repeated”, “continuous”, and “prolonged”. Walker v.
Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982). For example, in White v. BFI Waste
Services, the Fourth Circuit reversed the lower court’s grant of summary judgment for the
defendant employer as to plaintiffs’ hostile work environment claims based on plaintiffs’
evidence that supervisors in workplace “repeatedly” used the “N” word, as well as other
insulting terms such as “boy”, “porch monkey”, “jigaboo”, “Mighty Joe Young”, and “Zulu
warrior”, to refer to black employees. 375 F.3d 288, 297–98 (4th Cir. 2004). Faced with such
evidence, the Fourth Circuit held that “a reasonable jury could find both [Plaintiffs] suffered
harassment that was ‘sufficiently severe or pervasive to alter the conditions of employment
and create an abusive atmosphere.’” Id. at 297 (quoting Spriggs v. Diamond Auto Glass, 242 F.3d
179, 183 (4th Cir. 2001)). Similarly, in Freeman, the Fourth Circuit concluded that, “viewing
the circumstances as a whole . . . the use of the [“N” word], coupled with the on-going
offensive racial talk, use of the term ‘black b****’ on more than one occasion (once directed
at a black employee), and sexual talk regarding black women, is sufficient evidence for a
reasonable jury to find the race-based harassment was objectively severe or pervasive.” 750
F.3d at 422.
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Here, Plaintiff argues that Thomas used a racial epithet when he called him “boy”, a
term which “is offensive and demeaning to [Plaintiff] because it is one of the terms used by
slave masters to get the attention of and dehumanize salves [sic] who were primarily AfricanAmericans.” (ECF No. 19 at 1.) Plaintiff testified that on or around September 2013 he
engaged in a work slow-down, precipitated by his frustration over the fact that he did not have
a helper assigned to assist him on his job site. (ECF No. 29 at 39:15–40:5.) Plaintiff was also
frustrated that he was “not getting the pay that everybody else [was] getting.” (Id. at 39:24–
25.) Thomas approached Plaintiff about the work slow-down. (Id. at 40:6.) According to
Plaintiff,
[Thomas] comes up [to Plaintiff] and like what’s
the problem. I said nothing. He’s like, well, I don’t
know what your problem is, boy, but you messing
with the wrong one, boy, I’m going to tell you, boy.
And I was like look, I’m working. Boy, you better
– you got to act like you got some sense.
(Id. at 40:6–11.) Plaintiff also testified that, several years prior to this incident, in 2010, Thomas
also used the word “noose” toward him. According to Plaintiff, “[a]fter I asked [Thomas] a
question, he said he was going to get a noose and tighten it every time I asked him a question.” 2
(Id. at 46:4–9.)
Although Plaintiff contends he was offended by Thomas’ comments which “hurt [his]
feelings . . . [his] self-esteem, everything,” (ECF No. 29 at 42:3–8), unlike the plaintiff in
Freeman, 750 F.3d at 421, he neither complained directly to Thomas about the offensive
Thomas denies having used the word “noose,” (ECF No. 30 at 27:8–12), however, for the purposes
of considering Salem Electric’s Motion for Summary Judgment, the Court must “resolve all factual
disputes and any competing rational inferences in the light most favorable” to the nonmoving party.
See Rossignol, 316 F.3d at 523 (quoting Wightman, 100 F.3d at 230).
2
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comments, nor did he report the comments to anyone at Salem Electric. (ECF No. 29 at
42:19–43:4, see 46:4–15.) See Cent. Wholesalers, 573 F.3d at 170–71 (ruling that because the
employee complained directly to her offending co-workers as well as to management about
the alleged harassment, a reasonable jury could find that the employee subjectively perceived
the gender- and race-based harassment to be severe and pervasive).
Moreover, as explained by the Fourth Circuit, “repeated conduct” is a hallmark of
“viable hostile work environment claims.” Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264,
277 (4th Cir. 2015). The record in this case, however, is devoid of evidence showing that
Plaintiff was subjected to the kind of repeated, on-going harassment to support a finding that
the discriminatory conduct was severe and pervasive.
See, e.g., White, 375 F.3d at 298
(concluding that plaintiff’s evidence of repeated use of racially offensive terms was sufficient
for a jury to find severe or pervasive harassment giving rise to a hostile work environment);
Spriggs, 242 F.3d at 184 (finding plaintiff had shown that harassment was severe and pervasive
where plaintiff was “exposed on a ‘continuous daily’ basis to . . . racist comments concerning
African Americans”). Rather, the record shows that the two (2) incidents where allegedly
harassing comments were made occurred approximately three (3) years apart. According to
Plaintiff, the “noose” comment was made sometime in 2010, and the “boy” comments were
made in September 2013. (ECF No. 29 at 41:20–22, 46:4–9.) Plaintiff testified that prior to
his exchange with Thomas in September 2013, he had never heard Thomas use the word
“boy” to address him or anyone else. (See id. at 42:9–18.)
While this Court does not discount Plaintiff’s contention that he found Thomas’ use
of the words “boy” and “noose” offensive, as stated by the Fourth Circuit, “even incidents
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that would objectively give rise to bruised or wounded feelings will not on that account satisfy
the severe or pervasive standard.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir.
2008). For, “in order to be actionable, the harassing ‘conduct must be [so] extreme [as] to
amount to a change in the terms and conditions of employment.’” Id. (alterations in original)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Additionally, “‘mere utterance
of an . . . epithet which engenders offensive feelings in an employee’ does not sufficiently
affect the conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21 (quoting
Meritor Sav. Bank, 477 U.S. at 67). The Court therefore concludes that, considering the totality
of circumstances, a reasonable jury could not find the alleged incidents of harassment
sufficiently severe or pervasive to alter the terms of Plaintiff’s employment and create an
abusive work atmosphere.
b. Imposition of liability on Salem Electric
Under Title VII, “even if the record supports the conclusion that a triable issue exists
with regard to” each of the other elements necessary for a race-based hostile work
environment claim, Plaintiff “may not prevail absent sufficient evidence” that there is a basis
for imposing liability on Salem Electric. Spriggs, 242 F.3d at 184. “Employers are generally
presumed to be liable for hostile work environment harassment committed by supervisory
employees.” White, 375 F.3d at 299; see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)
(explaining that “[a]n employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor”). The Supreme Court has held that
“a ‘supervisor’ for purposes of vicarious liability under Title VII [is one who is] empowered
by the employer to take tangible employment actions against the victim.” Vance v. Ball State
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Univ., 133 S. Ct. 2434, 2439 (2013). An employer will not be held liable, however, when the
employer can show, by a preponderance of evidence, that it: (1) ‘“exercised reasonable care to
prevent and correct promptly any harassing behavior;’ and (2) the plaintiff ‘unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the employer to
avoid harm otherwise.’” Spriggs, 242 F.3d at 186 (quoting Ellerth, 524 U.S. at 765); see Faragher,
524 U.S. at 807. There is, therefore, “a duty on the victim to report [his] supervisor’s harassing
behavior to the employer.” Boyer-Liberto, 786 F.3d at 278.
The record before the Court shows that Salem Electric: (i) distributed copies of its
EEO Policy to its employees (see ECF No. 28 at 49:9–50:9; March 6, 2014 EEO Policy
acknowledgement form signed by Plaintiff, ECF No. 20 at 12); (ii) held mandatory EEOC
Training sessions for its employees (see EEOC Training employee sign-in sheets, ECF No. 22
at 2–10; see also ECF No. 28 at 13:3–16, 19:10–17); and (iii) posted the company’s EEO policy
on the bulletin board in the main office (ECF No. 26 at 2–3; ECF No. 28 at 44:21–45:9).
“[D]istribution by an employer of an anti-harassment policy provides ‘compelling proof that
the [employer] exercised reasonable care in preventing and promptly correcting’ harassment.”
White, 375 F.3d at 299 (second alteration in original) (quoting Barrett v. Applied Radiant Energy
Corp., 240 F.3d 262, 266 (4th Cir. 2001)). The record also reflects that, upon receipt of
Plaintiff’s First EEOC Charge alleging that offensive comments were made to Plaintiff by
Thomas, Salem Electric conducted an investigation and issued a verbal warning to Thomas.
(ECF No. 30 at 35:10–19; see id. at 11:16–12:7; ECF No. 28 at 91:1–2, 93:12–13, 94:1–5.)
According to Sink, “I made it very clear [to Thomas] that we were not to use the word noose
or to use the word boy.” (ECF No. 28 at 91:1–2; see ECF No. 30 at 13:3–6, 35:9–19.)
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In addition, Plaintiff admitted that he did not report his supervisor’s harassing behavior
to Salem Electric. See Boyer-Liberto, 786 F.3d at 278. Plaintiff testified he did not report
Thomas’ use of the term “boy” to anyone at Salem Electric because “the HR department is
predominantly white . . . everybody in house at the office is white. I have no way of going in
there, me being the only minority, to talk to anyone or feel comfortable. So, no, I did not. I
was afraid for my job.” (ECF No. 29 at 42:22–43:4.) Further, regarding the “noose”
comment, Plaintiff testified that he “did not want to go to HR”; he “was scared for [his] job”;
and he did not tell any of his co-workers3 about Thomas having made that comment to him.
(ECF No. 29 at 46:10–25.) As argued by Salem Electric, Plaintiff also “admitted that he had
no basis for his fear” of losing his job. (ECF No. 14 at 11.) During Plaintiff’s deposition,
when asked whether there was a basis for his belief that he would lose his job if he reported
Thomas’ conduct, Plaintiff responded, “[n]o, I’ve heard about people losing their job. . . . Just
several employees. I don’t know their names. But they’re also minorities.” (ECF No. 29 at
36:2–9.) Title VII is “specifically designed to encourage harassed employees to turn in their
harasser because doing so inures to everyone’s benefit.” Barrett, 240 F.3d at 267. As such,
“[c]ourts have refused to recognize a nebulous fear of retaliation as a basis for remaining
silent.” Id. (quotation omitted). Accordingly, the Court concludes that, based on the record,
3
Despite Plaintiff’s admission that he did not tell any of his co-workers about Thomas’ “noose”
comment, Omar Blair (“Blair”), an African-American former employee (who worked for Salem
Electric from 2005-2012), stated during an EEOC interview that he “witnessed Thomas tell [Plaintiff]
that he was going to put a noose around his neck [and] he heard Thomas call [Plaintiff] ‘boy’ several
times.” (ECF No. 27 at 2.) Blair also stated during the EEOC interview that Thomas never referred
to him (Blair) as “boy”, nor did he ever witness Thomas use the “N” word or refer to other employees
as “boy.” (Id.)
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no reasonable jury could find that there is a sufficient basis to impose liability on Plaintiff’s
employer.
As a result of the above findings, Salem Electric is entitled to judgment as a matter of
law on Plaintiff’s hostile work environment claim.
ii.
Failure to Promote Claim
In addition to his hostile work environment claim, Plaintiff has also alleged that Salem
Electric “discriminated against him in failing to promote him.” (ECF No. 1 at 2.) Defendant
argues that this claim fails as a matter of law because Plaintiff “has produced no evidence of
circumstances that give rise to an inference of unlawful discrimination in connection with
[this] claim.” (ECF No. 14 at 12, 13.)
Under Section 1981 or Title VII, in order to establish a prima facie case of failure to
promote based on race, Plaintiff must establish the following: (1) that he is a member of a
protected group; (2) that he applied for the position in question; (3) that he was qualified for
the position; and (4) that Salem Electric rejected him for the position under circumstances
giving rise to an inference of unlawful discrimination. Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333
F.3d 536, 544–45 (4th Cir. 2003); see also Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994).
Following the McDonnell-Douglas 4 burden-shifting model, once Plaintiff has established a prima
facie case, the employer may rebut that case by “demonstrating that the person promoted was
better qualified for the position.” Amirmokri v. Baltimore Gas and Elec. Co., 60 F.3d 1126, 1129
(4th Cir. 1995). The burden then shifts back to Plaintiff to show that the reason provided by
the employer for promoting the selected application was pretextual. Id. at 1129–30.
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
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At Salem Electric, an employee can receive a promotion and raise either: (i) by
informally making a request to his direct supervisor (who would then decide whether to
recommend to Sink, the company’s Vice President, that the requesting employee receive a
promotion and raise); or (ii) more formally, by participating in the company’s state-sponsored
Apprenticeship Program. (ECF No. 28 at 10:5–16, 60:21–61:21; ECF No. 30 at 17:4–9; ECF
No. 31 at 29:16–30:14.) Salem Electric’s Apprenticeship Program offers its employees the
opportunity to attend a four-year program at Forsyth Technical College. (ECF No. 28 at
60:21–61:7.) This program is subsidized by Salem Electric and “[a]nd as long as you stay in
that school, every six months you get a 5 percent raise.” (ECF No. 31 at 21:23–25; see ECF
No. 28 at 60:25–61:2.) Upon an employee’s successful completion of the Apprenticeship
Program, he is guaranteed to receive a promotion at Salem Electric. (ECF No. 14 at 5; ECF
No. 31 at 21:25–22:2.) If an employee has prior education, the Program coordinators at
Forsyth Technical College will determine whether that employee will get credit for their prior
education and begin in the second year class instead of the first year class. (ECF No. 28 at
81:13–82:1.) Employees are informed about the Apprenticeship Program upon hiring, and
Sink sends notices to all Apprentices in July or August of each year, informing them of the
upcoming registration dates for the apprenticeship class at Forsyth Technical College. (ECF
No. 28 at 81:8–13; ECF No. 25 at 2–7.)
Plaintiff argues that despite his qualifications, he was not promoted to the position of
Mechanic “while [Ben Hinson (“Hinson”), a White employee], who was similarly situated, got
promoted.” (ECF No. 19 at 16.) Yet, as pointed out by Salem Electric, there is no evidence
before the Court that Plaintiff actually applied for, or otherwise sought, the Mechanic position
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or that, despite his qualifications, he was rejected based on his race. (ECF No. 33 at 6.) Nor
does the record reflect that Plaintiff participated in the Apprenticeship Program, which
guarantees employees a promotion and pay raise at a faster rate, (ECF No. 29 at 56:1–3; see id.
at 74:11-17), while Hinson (whom Plaintiff alleges was “less qualified”), successfully
completed the Program leading to his promotion, (ECF No. 28 at 96:3–5, 19–21). Rather, as
Plaintiff admits and the evidence reflects, Plaintiff actually received a promotion to the
position of Mechanic, as well as a pay increase, in September 2013. (ECF No. 29 at 73:14–22;
ECF No. 20 at 7, 11.) Thus, Plaintiff’s sole contention is that Ben Hinson “was promoted to
mechanic before him.” (ECF No. 19 at 16; ECF No. 14-1.)
Consequently, the Court concludes that no reasonable jury could find that Plaintiff has
established a prima facie case of failure to promote based on race. Salem Electric is therefore
entitled to summary judgment on this claim.
B. Retaliation5
To establish a prima facie case of retaliation under Title VII and Section 1981, a plaintiff
must show: “(i) that [he] engaged in protected activity, (ii) that [his employer] took adverse
action against [him], and (iii) that a causal relationship existed between the protected activity
and the adverse employment activity.” Guessous, 828 F.3d at 217 (quoting Foster v. Univ. of
Maryland-Eastern Shore, 787 F.3d 243, 250 (4th Cir. 2015)). Here again, courts employ the
5
Defendant, in a footnote, argues that because Plaintiff has failed to exhaust his administrative
remedies under Title VII, “he can only proceed under Section 1981 as it relates to his termination.”
(ECF No. 14 at 13 n.2.) However, the Fourth Circuit has specifically considered whether a plaintiff,
who has previously filed an EEOC Charge, must first exhaust administrative remedies before suing
based on a Title VII claim of retaliation. The Fourth Circuit held that “a plaintiff may raise the
retaliation claim for the first time in federal court.” Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992).
The Court will therefore evaluate Plaintiff’s retaliation claim under both Title VII and Section 1981.
Bryant, 333 F.3d at 543.
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McDonnell Douglas burden-shifting framework, and upon establishing a prima facie case, the
burden shifts to the defendant “to articulate a . . . non-retaliatory reason for the adverse
action.” Id. at 216. The burden then shifts back to the plaintiff to show that the employer’s
proffered reason “is a pretext and that the true reason is . . . retaliatory.” Id.
Plaintiff contends that he “suffered adverse employment actions as a direct result of
his E.E.O.C. complaints in the form of termination.” (ECF No. 1 ¶¶ 25, 35.) Defendant
argues, on the other hand, that they are entitled to summary judgment as to this claim because
there is no competent evidence connecting Plaintiff’s termination to his filing of EEOC
Charges. (ECF No. 14 at 13–15.) The Court agrees with Defendant.
It is undisputed that filing an EEOC Charge of Discrimination is a protected activity,
and termination constitutes an adverse employment action. See Carter, 33 F.3d at 460 (stating
that filing an EEOC complaint is a protected activity); Hoyle v. Freightliner, LLC, 650 F.3d 321,
337 (4th Cir. 2011) (recognizing that termination is an adverse employment action). As to a
causal link, the Fourth Circuit has recognized that temporal proximity alone may be sufficient
to satisfy this element. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). However,
the “cases that accept mere temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action as sufficient evidence of causality . . .
uniformly hold that the temporal proximity must be very close.” Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001) (per curiam) (internal quotations omitted); see, e.g., Cerberonics, 871
F.2d at 454, 457 (finding approximately three (3) months sufficient to establish a causal link);
but see, e.g., Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998) (concluding that thirteen months
is not sufficient to establish a causal link). Here, Plaintiff filed his Second EEOC Charge on
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August 4, 2014 (ECF No. 14-2) and he was terminated by Salem Electric approximately one
(1) month later on September 8, 2014 (ECF No. 20 at 13.) Therefore, the Court finds that
Plaintiff has established a prima facie case of retaliation under Section 1981.
The Court must now examine whether Salem Electric has met its burden of articulating
a “non-retaliatory reason for the adverse action,” Guessous, 828 F.3d at 216, such that a
reasonably jury could not find in Plaintiff’s favor. The record reflects that, on August 29,
2014, one of Salem Electric’s female employees, Kathy Hayes (“Hayes”), complained to Salem
Electric that Plaintiff “had repeatedly made sexual noises in her presence and would laugh
after making the noise. In addition, Ms. Hayes complained that [Plaintiff] often cursed and
used offensive and inappropriate language at the worksite.” (ECF No. 15 ¶ 6.) Having
received this complaint against Plaintiff, Salem Electric suspended Plaintiff with pay (from
August 30, 2014 through September 5, 2014) and conducted an investigation into the
allegations regarding Plaintiff’s conduct. (ECF No. 20 at 13; ECF No. 15 ¶ 7; ECF No. 28 at
116:1–5.) The investigation was conducted by the company’s Vice Presidents, Elizabeth
Myers (“Myers”) and Stephen Sink (“Sink”), as well as its General Superintendent, Jeff Heath
(“Heath”), and Ladd Whicker (“Whicker”), the former Safety Director and current Director
of Operations. (ECF No. 15 ¶ 7.) Salem Electric interviewed a number of its employees,
including Plaintiff, his co-workers and his direct supervisor at the time, Jason Cockerham
(“Cockerham”). (ECF No. 15 ¶¶ 7, 9; ECF No. 28 at 116:1–20.)
Ultimately, Salem Electric’s investigation “confirmed that Ms. Hayes’ allegations were
valid” (ECF No. 15 ¶10), with Plaintiff having admitted to making sexual noises, described
as a “queefing” sound, at the worksite, though he denied doing so in Hayes’ presence, (ECF
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No. 29 at 141:5–14). The investigation also revealed that Plaintiff “would regularly use
derogatory slurs such as ‘hey gay boy,’ ‘queer’ and ‘faggot’” at Salem Electric’s work site. (ECF
No. 15 ¶ 10; ECF No. 28 at 118:15–19.) At the conclusion of the investigation, Myers, Sink
and Whicker “collectively determined” to terminate Plaintiff “for repeatedly making the
‘queefing’ noise at the jobsite and in Ms. Hayes [sic] presence and for using derogatory slurs .
. . at work.” (ECF No. 15 ¶¶ 13–14.) Plaintiff’s “Employee Termination Notice” reflects that
Plaintiff was terminated on September 8, 2014 for “Gross misconduct, sexual harassment.”
(ECF No. 20 at 13.) The record also reflects that, in addition to its termination of Plaintiff,
Salem Electric also terminated Plaintiff’s direct supervisor at the time, Cockerham, “for failing
to report or reprimand [Plaintiff] for the inappropriate noise or use of derogatory slurs.” (ECF
No. 15 ¶ 14; ECF No. 28 at 119:4–8.) Additionally, Salem Electric suspended both Gordon
and Thomas for two (2) weeks because they “allow[ed] the use of inappropriate language by
[Plaintiff] and other employees at work.” (ECF No. 15 ¶ 14.) Although Plaintiff argues in his
response that he “was not terminated because of a noise that everyone around him was
making,” (ECF No. 19 at 18), the record before the Court does not support this contention.
The Court therefore concludes that Salem Electric has met its burden of showing a nonretaliatory reason for Plaintiff’s termination and that a reasonable jury could not find in
Plaintiff’s favor. Accordingly, Salem Electric is entitled to summary judgment on Plaintiff’s
retaliation claim.
In light of the Court’s ruling on Defendant’s Motion for Summary Judgment, the Court
will deny as moot Defendant Salem Electric Company’s Motion to Dismiss Based on
Plaintiff’s Failure to Comply with Court Orders and Failure to Prosecute (ECF No. 43).
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For the reasons outlined herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment
(ECF No. 13) on all claims is GRANTED and that Defendant Salem Electric Company’s
Motion to Dismiss Based on Plaintiff’s Failure to Comply with Court Orders and Failure to
Prosecute (ECF No. 43) is DENIED AS MOOT.
IT IS FURTHER ORDERED that this matter is hereby DISMISSED WITH
PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with
this Order.
This, the 6th day of January, 2017.
/s/ Loretta C. Biggs
United States District Judge
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