NEAL v. GREENFORD, LLC
Filing
34
MEMORANDUM OPINION AND ORDER, signed by CHIEF JUDGE THOMAS D. SCHROEDER on 11/15/2018, that for the reasons stated, that Green Ford's Motion for Summary Judgment (Doc. 27 ) is GRANTED and this action is DISMISSED. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THOMAS JEROME NEAL,
Plaintiff,
v.
GREEN FORD, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
1:17-cv-569
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
Plaintiff Thomas Jerome Neal, proceeding pro se, alleges that
his former employer, Defendant Green Ford, LLC, discriminated
against him in violation of Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. (“Title VII”) and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”).
the court is Green Ford’s motion for summary judgment.
Before
(Doc. 27.)
Neal has filed a response (Doc. 30), and the motion is ready for
decision.
For the reasons set forth below, the motion will be
granted, and the action will be dismissed.
I.
BACKGROUND
The facts, viewed in the light most favorable to Neal as the
non-moving party, are as follows:
Neal is a 45-year-old African American male hired by Green
Ford in August 2014 to work in its auto detailing department.
(Doc. 2 at 4, 7; Doc. 28-1 at 25.)
He worked on commission, but
the company always ensured that he made at least minimum wage.
(Doc 28-1 at 25–26.)
About one year later, Neal moved to the company’s janitorial
department, after a successful interview with the company’s then
general manager, Tony Blackmon, an African American.
7; Doc. 28-1 at 27-29; Doc. 30 at 2.) 1
(Doc. 2 at
Neal’s starting pay was $9
an hour, and he received two $1 raises, one from Blackmon, and one
from the current general manager, Jeremy Collins, who took over in
May 2016 and is apparently Caucasian.
at 29–30.)
(Doc. 2 at 7–8; Doc. 28-1
Neal was supervised by Curtis Smith, who is also
African American and the only other employee in the janitorial
department.
(Doc. 28-1 at 30, 42.)
Before Collins started as general manager, Neal and other
employees looked up Collins’s Facebook page, which contained posts
that Neal considered racist and derogatory. 2
(Doc. 2 at 7, 10–
1
Though the verified complaint alleges that Neal was hired as a janitor
on January 15, 2015 (Doc. 2 at 7), he testified in his deposition that
he moved to the janitorial department roughly a year after he started
work in the detailing department. (Doc. 28-1 at 27–29.)
2
Attached to Neal’s verified complaint are copies of posts he says are
from Collins’s Facebook page. They include a quote from comedian Jay
Leno that “Over a million people in California lost their health
coverage.
Some are so angry . . .they’re going back to Mexico”;
statements critical of former President Obama; a picture of the band
Village People; a tombstone engraved with “AMERICA 1776-2013 Cause of
death: Barack H. Obama”; a picture of a flag with the statement: “In
every country where Muslims are in the minority, they are obsessed with
minority rights. In every country with a Muslim majority, there are NO
minority rights”; a quote attributed to Vladimir Putin stating that
Russia does not need minorities; a quote attributed to George Washington
stating “The time is now near at hand, which must probably determine
2
18.)
Once Collins started, he soon restructured the janitorial
department hours and work schedule.
(Id. at 7.)
He demoted Smith
from supervisor to janitor and assigned Alex Wagoner, a Caucasian
male, to check to ensure the janitorial work was completed.
Doc. 28 at 3.) 3
(Id.;
Neal believed that Smith was not doing his work
and that Wagoner was not checking the work on days that Smith was
working,
so
Neal
took
pictures
of
the
uncleaned
areas
and
complained about Smith up his “chain of command” from Wagoner, to
Human Resources Director Lisa Myers, and then to Collins, showing
them the photos he had taken.
(Doc. 2 at 7; Doc. 28-1 at 35, 90.)
Shortly after becoming general manager, Collins decided to
eliminate the janitorial department and outsource the work.
30 at 3; Doc. 28-1 at 61; Doc. 28 at 3; Doc. 2 at 8.) 4
(Doc.
He stated
whether Americans are to be freemen or slaves”; a post shared from an
account titled “Obama is Officially The Worst President in American
History!” with images stating “If you have an iPhone 5 and receive food
stamps . . . You Probably Vote Democrat!”; and “I don’t always talk to
Obama voters. But when I do, I ask for large fries.” (Doc. 2 at 10–
18.)
3
In his verified complaint, Neal alleges that Collins assigned Wagoner
to the supervisor position where he “was assigned to manage the
Department, and at the end of each work day, check all the areas to make
sure they are cleaned.” (Doc. 2 at 7.) Green Ford maintains, however,
that Collins did not appoint a supervisor to replace Smith but instead
assigned Wagoner to “make check off lists where the janitorial staff was
supposed to sign off that it had done work,” and to go “behind the staff
to see that it was done.” (Doc. 28 at 3.) In his deposition, Collins
testified that he did not make Wagoner manager of the janitorial
department but told him “to make sure the work was being done and check
the checklist.” (Doc. 28-2 at 34.)
4
In his verified complaint, Neal alleges that the janitorial department
was eliminated on or about October 2016 (Doc. 2 at 8), while in his
3
he did so because of complaints regarding the quality of the work
and as a cost saving measure.
(Doc. 2 at 7; Doc. 28-2 at 32–33.)
Collins hired Jani-King, an independent agency, to perform the
janitorial work. 5
(Doc. 2 at 8; Doc. 28 at 9.)
As a result,
Neal’s janitorial position was terminated, and he was offered, and
accepted, a position in Green Ford’s detailing department, where
he was paid less.
(Doc. 2 at 8.)
Smith took a position moving
cars around Green Ford’s lot. (Id; Doc. 28-1 at 67.)
Neal told Myers he intended to file a complaint with the Equal
Employment Opportunity Commission (“EEOC”). 6
(Doc. 2 at 8.)
He
response brief, he states that the outsourcing occurred shortly after
Wagoner was moved to the janitorial department. (Doc. 30 at 3.) But
in his deposition, Neal testified that he could not recall exactly when
the outsourcing occurred, describing it as occurring “shortly after” his
conversation with Collins about his raise, stating that it might have
been a couple weeks or a month thereafter. (Doc. 28-1 at 61.) As there
is no indication when Neal talked to Collins about his raise, it is
unclear from Neal’s deposition when the outsourcing occurred.
Green
Ford’s brief in support of its motion for summary judgment states that
the outsourcing occurred shortly after Neal’s complaints regarding the
cleanliness of the facility. (Doc. 28 at 3.)
5
While the verified complaint states that Wagoner “was put in charge of
hiring an outside group to take over the Janitorial duties,” it also
states that Collins outsourced the janitorial position. (Doc. 2 at 8.)
Throughout his deposition, Neal states that Collins made the decision
to outsource the janitorial department. (Doc. 28-1 at 33, 58.) In its
response, Green Ford states that Collins elected to outsource the
janitorial department, and in his deposition, Collins explains the
reasons he considered for doing so. (Doc. 28-2 at 32–36.)
6
In his verified complaint, Neal alleges that he made this statement
after the janitorial department was terminated and he was transferred
to the detail department (Doc. 2 at 8), while in his response to Green
Ford’s motion for summary judgment he states both that Green Ford
“retaliated against him for complaining to the Human Resources Director
that the work environment was unsafe” (Doc. 30 at 3), and that after he
threatened to go to the EEOC, Green Ford retaliated against him by
4
asked Myers why he could not be considered for “other predominantly
Caucasian departments,” which he contends includes the company’s
parts and service departments.
(Id.)
Neal testified at his
deposition that Myers responded by telling him that he did not
have any experience in the other department areas.
(Doc. 28-1 at
64–65.)
Neal voluntarily resigned three weeks after transferring to
the detail department.
(Id.; Doc. 28-1 at 73.)
On October 3,
2016, he filed a charge with the EEOC, alleging race and age
discrimination, and the EEOC issued a right to sue letter.
2
at
5,
9.)
In
the
present
lawsuit,
Neal
claims
(Doc.
he
was
discriminated against based on race and age on three grounds: (1)
the outsourcing of his job; (2) his placement back to the detailing
department; and (3) retaliation.
and emotional distress. 7
II.
He seeks $75,000 for lost wages
(Id. at 5.)
ANALYSIS
A.
Legal Standard
Summary judgment is appropriate “if the movant shows that
transferring him to the detail department (Doc. 30 at 6.)
In his
deposition, Neal explained that he told Myers he was going to file a
complaint with the EEOC in response to Myers informing him that the
janitorial department was outsourced and he was transferred to the detail
department.
(Doc. 28-1 at 62.)
The verified complaint and sworn
deposition testimony have evidentiary value; Neal’s response brief does
not.
7
Neal claims 8 months of lost wages, which he says amounts to over
$14,400 in damages, as well as $45,000 for pain and suffering. (Doc.
28-1 at 208.)
5
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
56(a).
Fed. R. Civ. P.
“A genuine issue of material fact exists ‘if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.’”
Basnight v. Diamond Developers, Inc., 146 F.
Supp. 2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
In determining a motion
for summary judgment, the court views the “evidence in the light
most favorable to the non-moving party, according that party the
benefit of all reasonable inferences.”
Id.
Summary judgment
should be denied “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and
establishes affirmatively that the adverse party cannot prevail
under any circumstances.”
Guessford v. Pa. Nat. Mut. Cas. Ins.
Co., 983 F. Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting Campbell v.
Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)).
Neal proceeds pro se.
“When reviewing a pro se complaint,
federal courts should examine carefully the plaintiff's factual
allegations,
no
matter
how
inartfully
pleaded,
whether they could provide a basis for relief.”
to
determine
Armstrong v. Rolm
A. Siemans Co., 129 F.3d 1258, *1 (4th Cir. 1997) (citations
omitted)
(unpublished
table
opinion).
However,
the
liberal
construction of a pro se plaintiff's pleading does not require the
court to ignore clear defects in pleading, Bustos v. Chamberlain,
6
No. 3:09-1760-HMH-JRM, 2009 WL 2782238, at *2 (D.S.C. Aug. 27,
2009), or to “conjure up questions never squarely presented in the
complaint,” Brice v. Jenkins, 489 F.Supp.2d 538, 541 (E.D. Va.
2007) (internal quotation marks and citation omitted).
Nor does
it require that the court become an advocate for the unrepresented
party.
Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th
Cir. 1990).
A plaintiff may prove discrimination under Title VII or the
ADEA
“either
through
direct
and
indirect
evidence
of
[discriminatory] animus, or through the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”
Foster
v. Univ. of Md. - E. Shore, 787 F.3d 243, 249 (4th Cir. 2015),
abrogated on other grounds by Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338 (2013)).
Each basis for relief will be
addressed in turn.
B.
Race Discrimination
A plaintiff may survive a motion for summary judgment by
producing “evidence of a stated purpose to discriminate and/or
indirect evidence of sufficient probative force to reflect a
genuine issue of material fact,” and this evidence must be “of
conduct or statements that both reflect directly the alleged
discriminatory attitude and that bear directly on the contested
employment decision.”
Candillo v. N.C. Dept. of Corr., 199 F.
Supp. 2d 342, 349–50 (M.D.N.C. 2002) (first quoting Brinkley v.
7
Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999), then
quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)).
Neal cites Collins’ posts on his personal Facebook page as
evidence of racial discrimination.
(Doc. 2 at 10–18.)
However,
regardless of any racial animus that may be reflected by them,
there is no showing that the posts had any bearing on any decision
affecting Neal’s employment.
The posts are dated 2013, predating
the decision to outsource the janitorial work and reassign Neal to
the detail department by two or more years, and there is no showing
of any link between the posts and Collins’ decisions in this
regard.
There is also no evidence that Collins ever talked about
the posts or had similar posts at Green Ford.
Rather, Neal
discovered them independently when he looked up Collins’ personal
Facebook page before Collins started working at Green Ford “just
to get a sense about who he is.”
(Doc. 28-1 at 85.)
done so, he would never have known about them.
Had Neal not
Neal further
acknowledged that Collins never sent any post to him or asked him
to look at them.
(Id.)
Neal also never observed Collins make any
racially inappropriate comment at work at Green Ford.
87.)
(Id. at
Therefore, the Facebook posts are insufficient direct or
indirect evidence of racial discrimination sufficient to create a
genuine issue of material fact.
See Almoghrabi v. Gojet Airlines,
LLC, No. 4:14-CV-00507, 2016 WL 393580, *7 (E.D. Mo. Feb. 2, 2018)
(finding that social media comments were stray political remarks
8
that did not constitute direct evidence of discrimination because
there was no link shown between the comments and the decision to
terminate the plaintiff).
In his verified complaint, Neal alleges that when Collins
gave him a raise, Collins stated that “he has had contacts with
individuals
of
the
Hispanic
race
whom
[sic]
would
do
the
[janitorial] job at a cheaper rate, just as if [sic] Greenford has
working at their Auction.”
(Doc. 2 at 8.)
Neal alleges that
Collins “reassured me that I would not have anything to worry about
because my job was secure.”
(Id.)
Nothing further is offered in
the verified complaint or in either of the depositions filed in
the record, and the comment is not mentioned in either of the
parties’
briefs.
While
insensitive,
these
comments
do
not
constitute direct or indirect evidence of racial animus, but rather
reflect concern about cost. 8
8
A Progressive Discipline Form issued to Neal on November 18, 2015,
introduced by Green Ford during Neal’s deposition as evidence that Neal
was not performing satisfactorily, has a section entitled “expected
change in behavior,” which contains written comments from Blackmon’s
conversation with Neal. (Doc. 28-1 at 167.) It states: “Per Tony, Not
to play the race card and do not speak to a manager like that in the
future.” (Id.) Neither Neal nor Green Ford references this “race card”
statement anywhere in the record.
While this statement does mention
race, it is attributed to Blackmon, who no longer worked at Green Ford
at the time the janitorial department was eliminated and Neal was
transferred to the detail department. To impose liability on an employer
for an adverse employment action, the person allegedly acting pursuant
to a discriminatory animus must be the one “‘principally responsible’
for, or the ‘actual decisionmaker’ behind, the action.” Hill v. Lockheed
Martin Logistics Mgmt., 354 F.3d 277, 288–89 (4th Cir. 2004) (citing
Reeves, 530 U.S. at 151–52).
Therefore, even if this comment was
evidence of racial animus, which is questionable, it was not made by the
9
A plaintiff may also seek to use the burden shifting framework
of McDonnel Douglas.
To establish a prima facie claim of race
discrimination
under
establish:
he
satisfactory
(1)
job
is
McDonnell
a
Douglas,
member
performance;
of
(3)
a
plaintiff
a
protected
class;
he
suffered
an
must
(2)
adverse
employment action; and (4) different treatment from similarly
situated employees outside the protected class.
Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010).
Neal clearly satisfies the first and third elements of the
McDonnell Douglas test.
a protected class.
As an African American, he is a member of
He has also suffered an adverse employment
action because he has had “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with
significantly
different
responsibilities,
or
a
decision
causing a significant change in benefits,” Hoyle v. Freightliner,
LLC, 650 F.3d 321, 337 (4th Cir. 2011), when his janitorial
position was terminated and he was moved to the detail department,
which paid less than the janitorial department.
(Doc. 30 at 5–6
(noting that Neal’s transfer to the detail department constitutes
a reassignment with significantly different responsibilities and
“a forty percent cut in pay”).)
decisionmaker responsible for the alleged adverse employment action
taken against Neal, general manager Collins, and there is no evidence
that any potential racial animus Blackmon (who was African American)
could have held would have had any bearing on Collins.
10
Green Ford contends that Neal fails to meet the second element
-- that Neal was performing his job at a level that met his
employer’s legitimate expectations at the time of termination.
At
this stage the question depends on the “perception of the decision
maker . . . , not the self-assessment of the plaintiff.”
Hawkins
v. PepsiCo., Inc., 203 F.3d 274, 280 (4th Cir. 2000); see also
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515–16 (4th Cir. 2006)
(“[B]ecause
a
plaintiff
must
show
by
a
preponderance
of
the
evidence that he met the employer’s legitimate job expectations to
prove his prima facie case,” at the prima facie stage the court
must consider the employer’s “evidence that the employee was not
meeting
those
expectations.”).
Collins
testified
in
his
deposition that one of the reasons the janitorial department was
terminated
was
satisfaction
received
of
because
some
“repeated
“the
was
not
being
done
to
the
and
he
had
performance
of
the
[his]
other
departments”
complaints”
about
the
janitorial department.
of
job
(Doc. 28-2 at 32.)
Green Ford also relies
on a Progressive Discipline Form issued to Neal while he was
working as a janitor for arguing with Marvin, the body shop
manager, about parking at work.
(Doc. 28-1 at 55–56, 167.)
On
the other hand, Neal had just received the second of two raises a
few weeks before the outsourcing and testified that Collins told
him
he
gave
him
the
second
raise
11
because
he
was
doing
an
“exceptional job” and encouraged him to “keep doing the good job
that you’ve been doing.”
(Id. at 33, 56–58.)
Even assuming Neal was performing satisfactorily when he was
transferred, however, he fails to provide evidence that the adverse
employment action occurred under circumstances giving rise to an
inference of discrimination.
He argues that terminating the
janitorial department, which was staffed by two African American
employees, while keeping Wagoner, a Caucasian employee, in a
supervisory role is evidence of racial discrimination.
at 6–7.)
(Doc. 30
But Wagoner was not doing any of the janitorial work; he
was simply checking to see that it got done.
given Neal a raise a few weeks earlier.
And Collins had just
(Doc. 28-1 at 37.)
Green Ford also argues, correctly, that there is no inference
of discrimination because Neal cannot show that his position was
filled by someone not in the protected class.
(Doc. 28 at 8–9.)
The evidence is that Neal’s position was terminated and outsourced
to an independent agency, Jani-King, which is composed of multiple
individuals, and there is no evidence Green Ford knew, or has any
control over, the race of Jani-King’s employees.
(Doc. 28-1 at
68-69; Doc. 28-2 at 32–36); see Atkinson v. Food Lion, LLC, 433 F.
Supp. 2d 628, 634 (M.D.N.C. 2005) (finding that where an entire
department
was
eliminated
to
reduce
costs,
the
plaintiff’s
position was not filled by a person outside of her protected
class).
12
Moreover, there is no evidence tending to show that Green
Ford failed to treat race neutrally when deciding to eliminate
Neal’s position.
other
ways
Collins testified that Green Ford cut costs in
besides
eliminating
the
janitorial
department,
including cutting advertising expenses and reducing office staff.
(Doc. 28-2 at 31.)
Furthermore, the only other African American
employee in the janitorial department, Smith, was moved to another
department where his pay stayed the same.
(Doc. 28-1 at 67.)
Therefore, Neal fails to establish a prima facie case of race
discrimination.
Even if Neal could overcome those hurdles, he cannot overcome
the remainder of the burden-shifting approach.
Assuming he could
establish a prima facie case, “the burden shifts to the employer
to
articulate
a
legitimate,
nondiscriminatory
reason
for
the
adverse employment action,” and this burden on the employer is one
of production, not persuasion.
Holland v. Wash. Homes, Inc., 487
F.3d 208, 214 (4th Cir. 2007).
Green Ford has produced evidence
that the janitorial department was eliminated and outsourced as a
cost-cutting measure.
(Doc. 28-2 at 32, 35–36.)
Thus, it has
articulated a legitimate, nondiscriminatory reason for eliminating
Neal’s janitorial position.
35
(finding
plaintiff’s
that
the
termination,
See Atkinson, 433 F. Supp. 2d at 634–
employer’s
that
the
proffered
plaintiff’s
reason
for
the
department
was
eliminated as part of cost-cutting efforts, was a legitimate
13
business reason); Bennett v. Charles Cty. Pub. Sch., No. AW-041501, 2006 WL 4738662, at *3 (“By averring that its wastewater
plants were reaching the end of their useful life expectancies,
and that it made business sense to eliminate some plants, place
others
with
modern
facilities,
and
retain
an
independent
contractor to oversee the plants that remained, Defendant has met
its burden of stating a legitimate, nondiscriminatory reason for
its employment decision.”)
Where an employer meets its burden, the plaintiff must “prove
by a preponderance of the evidence that the employer’s stated
reasons
were
not
discrimination.”
marks omitted).
its
true
reasons,
but
were
a
pretext
for
Holland, 487 F.3d at 214 (internal quotation
A plaintiff can prove pretext by showing that the
employer’s explanation is “unworthy of credence” or by offering
other forms of circumstantial evidence sufficiently probative of
discrimination.
McDonnell Douglas, 411 U.S. at 804; Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir. 2005)
(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147 (2000)).
Neal argues that Green Ford’s “reasoning is just a pretext
for discrimination and retaliation” because if the company were
interested in cutting expenses, it should have cut costs in other
departments where salaries are higher.
(Doc. 28-1 at 69-70.)
But
Neal offers no evidence to support his contention other than to
14
point
to
reduced.
higher
salaries
in
other
departments
(Doc. 30 at 6; Doc. 28-1 at 69–72.)
that
were
not
His conclusory
contention fails to create a genuine dispute of material fact.
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)
(“Unsupported speculation is not sufficient to defeat a summary
judgment motion.”).
Green Ford, in contrast, has provided sworn
testimony from its general manager, Collins, that the elimination
of the janitorial department was part of a cost-cutting measure.
(Doc. 28-2 at 32.)
Green Ford need not demonstrate that its
reasons for eliminating the janitorial department were "wise,
fair, or even correct,” but simply that its reasons for taking the
action were truly the reason for the plaintiff’s termination.
DeJarnette v. Corning, Inc., 133 F.3d 293, 298–99 (4th Cir. 1998)
(stating that courts do “not sit as a kind of super-personnel
department
weighing
the
prudence
of
employment
decisions”
(quotation marks omitted)); see also Hawkins, 203 F.3d at 279.
Therefore, even if Neal could establish a prima facie case,
he cannot demonstrate that Green Ford’s cost-cutting measures were
pretextual, and has failed to meet his burden under McDonnell
Douglas.
C.
Age Discrimination
Neal alleges that Green Ford engaged in age discrimination by
employing Jani-King, which employs workers younger than him. (Doc.
28-1 at 69.)
But Jani-King is an independent agency, and the fact
15
that its employees are younger than Neal is not, without more,
evidence of age discrimination.
Neal offers no evidence of any
statement about his age or any other fact related to it from which
an inference of age discrimination could reasonably be drawn.
As with his race discrimination claim, Neal can also proceed
under the burden-shifting framework.
To establish a prima facie
case of age discrimination under the ADEA, a plaintiff must show:
(1) he was a member of the protected age group (i.e., over the age
of forty); (2) he was discharged or demoted; (3) at the time of
discharge or demotion he was performing his job at a level that
met his employer’s legitimate expectations; and (4) following his
discharge or demotion, he was replaced by someone of comparable
qualifications
younger. 9
outside
the
protected
class
or
substantially
Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir.
1996) (citing O’Connor v. Consol. Coin Caterers Corp., 517 U.S.
308 (1996)).
Here, too, Neal has established the first two elements of a
prima facie case: he is 45 years old and thus falls within the
ADEA’s protection for “individuals who are at least 40 years of
age,” 29 U.S.C. § 631, and he was discharged or demoted when his
janitorial position was terminated and was moved to the lower-
9
In an ADEA case, the plaintiff need not be replaced by someone outside
the protected class (i.e., someone under 40), provided that the
replacement is younger than the plaintiff. Burns, 96 F.3d at 731 n.1
(citing O’Connor, 517 U.S. at 312); see also Laprise v. Arrow Intern.,
178 F. Supp. 2d 597, 605 n.8 (M.D.N.C. 2001).
16
paying detail department.
For the reasons noted earlier, whether
Neal was performing his job duties at a satisfactory level at the
time his position was terminated may be subject to dispute.
But
even assuming he meets this prong, Neal has failed to establish
that he was replaced by a substantially younger individual.
He
claims that Jani-King employed workers who were younger than him,
but he is unfamiliar with the arrangements between Green Ford and
Jani-King and offers no evidence of their age.
(Doc. 28-1 at 69.)
Moreover, as Green Ford argues, Neal’s prima facie case fails
because
his
position
was
eliminated
and
outsourced
to
an
independent agency rather than being filled by someone outside the
protected class or substantially younger.
(Doc. 28 at 9.)
See
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir. 1994)
(finding no evidence of age discrimination where the plaintiff was
terminated because his entire department was eliminated and there
was no evidence indicating that workers holding similar jobs to
the plaintiff were retained while he was not); Atkinson, 433 F.
Supp. 2d at 633–34 (holding that because the entire team for which
the plaintiff worked was eliminated as part of a cost reduction,
plaintiff’s position was not filled by a person outside of her
protected
class);
Kinser
v.
United
Methodist
Agency
for
the
Retarded – W. N.C., Inc. No. 3:13-CV-175, 2014 WL 4053566, at *4
(finding there was no evidence that the plaintiff was replaced by
a
substantially
younger
person
17
where
the
employer
submitted
evidence that the plaintiff’s position was eliminated after his
termination and his duties were merely absorbed by the employer).
Therefore, Plaintiff has failed to establish a prima facie case of
age discrimination.
As with the race discrimination claim, even if Neal could
successfully establish a prima facie case of age discrimination,
Green Ford has provided a legitimate, nondiscriminatory reason for
elimination of the janitorial department: a cost-cutting measure
after
numerous
department.
complaints
were
received
about
(Doc. 28 at 10; Doc. 28-2 at 32.)
the
janitorial
Neal has produced
no evidence that the cost-cutting reason for cutting the janitorial
department was pretextual, and he thus fails to meet his burden
under the McDonnell Douglas test.
dispute
claim,
of
and
material
Green
fact
Ford’s
Therefore, there is no genuine
regarding
motion
Neal’s
for
age
summary
discrimination
judgment
will
be
against
an
granted.
D.
Retaliation
Employers
employee
for
are
prohibited
complaining
from
about
“retaliating
prior
participating in a protected activity.
discrimination”
or
Foster, 787 F.3d at 249;
Baqir v. Principi, 434 F.3d 733, 748 & 748 n.16 (4th Cir. 2006)
(citing 29 C.F.R. § 1614.101(b)).
Title VII retaliation claims
require a showing that the action would not have happened but for
the plaintiff’s protected activity.
18
Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 570 U.S. 338 (2013).
“either
through
direct
and
A plaintiff may prove retaliation
indirect
evidence
of
retaliatory
animus, or through the burden–shifting framework of McDonnell
Douglas.”
Id.
To establish a retaliation claim using direct and
indirect evidence, a plaintiff must present “evidence of conduct
or
statements
that
both
reflect
directly
the
alleged
discriminatory attitude and that bear directly on the contested
employment decision.”
Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 577–78 (4th Cir. 2015)).
Here, Neal has failed to
present any direct or indirect evidence of conduct reflecting a
discriminatory attitude that would bear directly on his transfer
to the detail department.
To state a prima facie claim of retaliation under Title VII
and the ADEA, a plaintiff must establish that (1) he engaged in a
protected activity; (2) his employer took a materially adverse
action against him; and (3) a causal relationship exists between
the protected activity and the adverse action.
Coleman, 626 F.3d
at 190; Baqir, 434 F.3d at 747; Hinton v. Va. Union Univ., 185 F.
Supp. 3d 807, 825–30 (E.D. Va. 2016) (citing Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006)). 10
10
In the context of a
Though some cases in the Fourth Circuit state the second element of a
retaliation claim as an “adverse employment action,” in “the overwhelming
majority of cases[,] the distinction between ‘adverse employment action’
and ‘materially adverse action’ is unlikely to change the outcome of a
case.” Hinton, 185 F. Supp. 3d at 830. Here, the distinction between
the two formulations of the second element does not change the outcome
19
retaliation
claim,
a
“protected
activity”
is
an
employee’s
participation in an ongoing investigation or proceeding under
Title VII, or an employee’s opposition to discriminatory practices
in the workplace.
Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253, 259 (4th Cir. 1998); 42 U.S.C.A. § 2000e-3(a).
second
factor,
the
“‘materially
adverse
action’
For the
standard
is
explicitly less restrictive than the ‘adverse employment action’
standard
for
discrimination
claims”
because
while
“‘adverse
employment actions’ in the discrimination context must ‘affect
employment or alter the conditions of the workplace,’ a ‘materially
adverse
action’
in
the
retaliation
context
conditions in the workplace to be actionable.”
need
not
impact
Hinton, 185 F.
Supp. 3d at 826; Cravey v. Hill, No. 1:17-CV-1014, 2018 WL 4471732,
*5 (M.D.N.C. Sept. 18, 2018). Upon this showing, the burden shifts
to the defendant to produce evidence that its actions were not
retaliatory.
Foster, 787 F.3d at 250 (4th Cir. 2015).
If the
defendant does so, then the plaintiff must show by a preponderance
of the evidence that the defendant’s asserted grounds for taking
its action were a pretext for retaliation.
Id.
When proceeding
under the burden shifting framework, therefore, the “but-for”
standard is met by showing pretext and that discrimination was the
of the case because the termination of Neal’s position in the janitorial
department and Neal’s transfer to the lower-paying detail department
constitute an adverse employment action that was material.
20
“real reason for the challenged conduct.”
Foster, 787 F.3d at 252
(noting “the McDonnell Douglas framework has long demanded proof
at the pretext stage that retaliation was a but-for cause of a
challenged
adverse
employment
action”);
accord
Guessous
v.
Fairview Prop. Invs., LLC, 828 F.3d 208, 216–17 (4th Cir. 2016)
(noting that the burden to show pretext merges with plaintiff’s
burden of persuading the court that plaintiff was a victim of
intentional discrimination).
For the reasons discussed previously, the termination of
Neal’s position in the janitorial department and Neal’s transfer
to
the
lower-paying
employment action.
detail
department
constitute
an
adverse
Thus, Neal has established that he suffered a
materially adverse action.
Green Ford argues that there is no evidence that Neal engaged
in a protected activity, because his complaints to human resources
had nothing to do with race or age.
(Doc. 28 at 12.)
Green Ford
also contends there is no causal connection between any protected
activity and the elimination of the janitorial department and
Neal’s transfer to the detailing department because there is no
evidence that Collins was aware of Neal’s complaints to human
resources.
(Id.)
Even if Neal were able to demonstrate a prima
facie case of retaliation, Green Ford argues, it has provided a
nonretaliatory reason for its conduct, which Neal cannot rebut.
(Id. at 12–13.)
21
Neal argues in his brief that Green Ford “retaliated against
him for complaining to the Human Resources Director that the work
environment was unsafe” (Doc. 30 at 3 (citing Doc. 28-1 at 34)),
and that after he threatened to go to the EEOC, Green Ford
retaliated against him by transferring him to the detail department
(Doc. 30 at 6.)
However, when asked to explain his claim in his
deposition, Neal testified that the retaliation was the fact that
Myers told Wagoner about his (Neal’s) complaints that Wagoner was
not properly checking the poor quality of Smith’s work (Doc. 28-1
at 65–67), as well as Neal’s placement in the detail department
after making these complaints.
he
was
retaliated
against
(Id. at 63-67.)
when
Myers
had
Neal also claims
Wagoner
ask
other
employees what Neal discussed with them, and when Myers watched
him work in the detail department.
(Id. at 74–75.)
To prove a causal relationship, a plaintiff must show that he
suffered
a
materially
adverse
action
engaged in a protected activity.”
“because
the
plaintiff
Holland, 487 F.3d at 218
(quoting Dowe v. Total Action Against Poverty in Roanoke Valley,
145 F.3d 653, 657 (4th Cir. 1998)).
The difficulty with Neal’s
claim is that his verified complaint alleges that he told Myers
that he intended to file a complaint with the EEOC after the
janitorial department was terminated and he was transferred to the
detail department.
(Doc. 2 at 8.)
testimony is to the same effect.
22
Neal’s sworn deposition
(Doc. 28-1 at 62.)
Thus, even
if
any
of
Neal’s
comments
could
be
construed
as
invoking
a
protected activity, which is doubtful, there can be no causal
relationship because the alleged threat came after the adverse
employment actions. 11
Collins,
the
Moreover, Neal has offered no evidence that
general
manager
who
terminated
the
janitorial
department as a cost-cutting measure, was aware that Neal had
threatened to go to the EEOC.
Plaintiff’s contentions that he was
fired because of his complaints are wholly conclusory, and the
only evidence that he proffers to support his claim that his
transfer was causally related to his complaints is his own opinion.
For establishing the required causal connection in a retaliation
claim, “[a] plaintiff’s own self-serving opinions, absent anything
more, are insufficient.”
Mackey v. Shalala, 360 F.3d 463, 469–70
(4th Cir. 2004).
Therefore, Neal is unable to satisfy the third element of a
prima facie case of retaliation, and Green Ford’s motion for
summary judgment will be granted.
E.
Hostile Work Environment
In his verified complaint, Neal alleges that working at Green
Ford “was a bad environment, which led [him] to resign [his]
position as detailer.”
(Doc. 2 at 8.)
11
Liberally construing this
Neal also vaguely stated that at some unstated time he complained
about going to the EEOC about overtime pay. (Doc. 28-1 at 58.) Even
assuming this statement was made at a time it could be causal, there is
no evidence any decisionmaker learned of it.
23
claim due to Neal’s pro se status, this appears to be a claim for
a hostile work environment.
Green Ford moves for summary judgment
on Neal’s hostile work environment claim on the grounds that Neal
failed to demonstrate that he experienced any harassment related
to race or age, and that there is no basis for imposing liability
on the employer because there is no evidence that Green Ford acted
improperly.
(Doc. 28 at 13.)
To establish a hostile work environment claim for age or racebased harassment, an employee must show that (1) he experienced
unwelcome harassment; (2) the harassment was based on his race or
age; (3) the harassment was sufficiently severe or pervasive to
alter the conditions of his employment and to create an abusive
atmosphere; and (4) there is some basis for imposing liability on
the employer.
Baqir 434 F.3d at 745–46, 746 n.14 (applying this
test to both race and age claims, but noting that the Fourth
Circuit has previously assumed, without deciding, that a hostile
work environment claim is generally cognizable under the ADEA for
plaintiffs age forty or older); Causey, 162 F.3d at 801 n.2 (noting
that the Fourth Circuit has not formally recognized a cause of
action for hostile work environment under the ADEA but, because
the parties did not dispute that such a cause of action exists,
assuming, without deciding, that the cause of action exists for
24
purposes of the claim). 12 A hostile work environment claim requires
both an objective and subjective showing; the plaintiff must plead
that the environment was one that “a reasonable person would find
hostile or abusive, and one that the victim did in fact perceive
to be so.”
Id. (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 787 (1998)).
Neal
offers
no
evidence
that
he
experienced
unwelcome
harassment based on a protected status at Green Ford, much less
that any alleged harassment was severe or pervasive.
Accordingly,
Neal fails to establish a prima facie case for a hostile work
environment, and Green Ford’s motion for summary judgment will be
granted on that basis.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Green Ford’s Motion for Summary
Judgment (Doc. 27) is GRANTED and this action is DISMISSED.
/s/
Thomas D. Schroeder
United States District Judge
November 15, 2018
12
Green Ford does not contend that a cause of action for hostile work
environment does not exist under the ADEA.
25
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