Alford v. Martin & Gass, Inc. et al

Filing 109

MEMORANDUM OPINION both defendants' summary judgment motions have been granted on all counts, and plaintiff's two summary judgment motions have been denied. The only remaining claims for trial are Alford's FLSA claims against M&G and Gass. Signed by District Judge Leonie M. Brinkema on 2/25/09. (jcor, )

IN THE UNITED

STATES

DISTRICT COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA

CLERK. U.S. DISTRICT COURT
ALEXANDRIA. \,A

Alexandria Division

CHARLES

ALFORD,

III

)

Plaintiff,
v.

l:08cv595
INC., et al.,

(LMB/TRJ)

MARTIN & GASS,

Defendants.
MEMORANDUM OPINION

On January 9,

2009,

the Court held oral

argument

on the

parties'

cross motions for summary judgment.1

At the conclusion
This

of the hearing the defendants'
Memorandum Opinion supplements
I.

motions were granted.
the oral ruling.

BACKGROUND

A.

Alford's Employment with Martin & Gass and Assignment to

Angler's Site.

Plaintiff Charles Alford III

("Alford")

is a 65-year-old He was

African-American resident of the District of Columbia.

first employed by defendant Martin & Gass left M&G in 2003,
less

("M&G")

in 1995.

He

claiming that he heard that white workers with

experience were being paid more per hour than he was.

1 Although the Clerk was directed to enter judgment in
defendant Angler Construction Co.'s favor under Fed. R. Civ. P.

58, a final judgment was not entered as to defendant Martin & Gass, Inc. because some claims under the Fair Labor Standards Act
were not addressed. On February 2, have a Rule 58 judgment entered was
-1-

2009, the parties' granted.

motion to

However,

he returned to M&G in 2004

at a higher pay level.

Although he performed a variety of construction-related tasks,

Alford's typical
M&G leased out to

job was to run and maintain a rock crusher that
contractors.

Beginning in 2006 or 2007,2 Alford periodically operated
M&G's crusher at a "recycling yard" on the site of co-defendant

Angler Construction Company
worked at

("Angler").3

Approximately 20 people
Angler leased the as part of the

the Angler yard at any given

time.

crusher from M&G on a regular basis,

and M&G,

lease agreement,

supplied an operator,

Alford.

Alford was

responsible for operating the crusher and for keeping it in good
condition for M&G's benefit.
for related tasks such as

Angler employees were responsible
although Alford

loading the crusher,

would occasionally do these tasks if an Angler employee was not
present. worker at Alford asserts the site, that he was the only full-time black

and that

the only other black worker

occasionally at the site was M&G's

fuel

truck driver,

Steve

Hoffman,
out

who serviced and fueled the crusher.

M&G also rented
for its own jobs.

the crusher to other clients and used it B.

Alleged Racist Incidents at the Angler Site.

start date,

2Because the parties have used both 2006 and 2007 as the
it is unclear exactly when Alford's work at the

Angler yard started.

3The crusher crushes rocks and concrete into smaller pieces,
and the "recycled" rock and concrete is used by Angler and sold to others for road paving and other projects.
-2-

Alford alleges

that he was

subject

to a series of racist

incidents at the Angler site.4
employees,

According to Alford,

Angler
as his

including two individuals whom he describes

supervisors,5 Kenneth McDonald and Gordon Sutton,
to a number of racist incidents,
as

subjected him

described in Alford's
following:

declaration and depositions

the

1)

Many Angler employees,

including McDonald and Sutton,

"constantly made racial jokes."
2) Once when Alford was drinking a Dr. Pepper, or McDonald "you black

stated that

"black people like Dr. Pepper."

Pepper"

people like Dr.

3)

Sutton asked him on several occasions,
You're not black.

"How do you get
You're white."

into that black skin?

4In his Complaint and declaration

(Pl.'s Opp.

to M&G Mot.

S.J. Ex. 1), Alford also alleged racist incidents during his employment for M&G that did not involve Angler. He alleged that in 2006, at a project in West Ox Road in Fairfax, an M&G employee made several offensive comments, including "The last time I killed a black man it felt so good," and "Blacks don't know anything." Alford alleged that he reported the behavior to M&G's Superintendent, and the employee was terminated. Alford also alleged that in early 2007, two M&G workers made racist remarks about blacks to him on a regular basis, physically assaulted him, and attempted to get him fired, and that after Alford reported the behavior to M&G's superintendent, no disciplinary action was taken. However, none of these incidents were discussed either in Alford's opposition to summary judgment or at oral argument. Therefore, it appears that Alford is not relying on these
incidents for his claims against M&G.

sAs discussed further infra. Angler denies that either of
these men were Alford's
operators" instead.
-3-

supervisors,

calling them "equipment

4)

Sutton once used the

"n"

word in conversation with

Alford;

specifically,

during a conversation about

fireplaces, and stuff

Sutton asked him,

"Do n

s have fireplaces

like that?"

Alford told him he did not want to

hear him use the word again,
that 5) the word was

and there are no allegations

ever repeated. Sutton ran around with a white bandana

In December 2007,

or "doo-rag"

on his head with eyeholes

cut out,

as

if it

were a Ku Klux Klan hood.

6)

In February or March of 2008,6 when Alford tried to
a white Angler employee on the proper use of M&G's the worker "became angry and deliberately swung a

instruct

excavator,

large rock around with the machine in a threatening manner,
nearly hitting Mr. Alford."

7)

In the spring of 2008,7 an Angler worker attached a large
flag to his car and glared at Alford as he

Confederate

slowly drove by.
C. Alford's Response to Alleged Racist Incidents.

It

is uncontested that Alford did not report any of

these

unclear how this

6Although this time frame is alleged in the Complaint,

incident could have occurred any later than

it is

March 3, 2008, the date on which Alford, according to the undisputed evidence, left the Angler site permanently.

7Again, although this time frame is alleged,
how any relevant incidents
March 3, 2008.
-4-

it is unclear

could have happened any later than

activities
Hazel,

to M&G,
them,

nor did he speak to Angler's president,
even although Alford admits he was

Jack

about

comfortable

talking to Hazel,
[Alford]."

whom Alford describes as

"a very nice person to
he indicated to

According to Alford,

in October 2007,

Hazel

that he wanted to talk with him about problems he was

having with an Angler employee.
employee or the nature of

Alford did not identify the
Hazel corroborates this,

the problems.

saying that Alford told him he was
horseplay on the jobsite and ...

"concerned that there was some
if he had an issue, could he

talk to me about it."

Hazel

testified that he asked Alford to be
the problem.

specific but Alford did not specify the nature of
Alford testified that he never spoke

to Hazel beyond this brief

conversation because both were busy,

as Hazel was

"in and out"

of

the site constantly and Alford was
asked for, and received, Hazel's

"running the machine."

Alford

cell phone number, incidents.

but never

followed up to discuss any racist that Alford never stated to Hazel, that any of the alleged racist
occurred.

It is undisputed

either expressly or impliedly, described above had

incidents

Alford asserts

that although he was

offended by the

incidents, because
racial

he

"tolerated the insults and did not report needed the job."

them the
the

[he]

He speculated that many of
Like they think

comments

"could be joking around.

jokes

that they be telling is

funny to

them,

but

it wasn't

for

-5-

me."

He testified that he responded to the Dr.

Pepper comment

with,

"There you go with the racial stuff again," and that when
he "would just walk off."
2008.

he heard other comments,
D.

Noose Incident of February 29,

The incident at the heart of this litigation occurred on

Friday,

February 29,

2008,

when Alford reported to the Angler
Shortly

yard after having been off the project for a few weeks. after he arrived,

he noticed a noose around a black sweatshirt

and pipe hanging from another piece of equipment.
placed at a wood-processing station,
the crusher was positioned, and about

The noose was

about twenty feet from where
five feet from where Alford

usually sat in his pickup truck while the crusher was operating. To Alford,
man.

the figure looked like an effigy of a hanged black
the black fuel truck driver for M&G, allegedly saw

Hoffman,

the effigy as well,

and told Alford,

"I

told you a long time ago,

they don't like you here."8

It is undisputed that the noose was hung by three white Angler employees,
father),

Jeffrey "Craig" Lease,

Earnest Lease

(Jeffrey's

and Gary Wolfe,

none of whom had any supervisory

authority over Alford.

Jeffrey Lease had previously been

involved in an altercation at work in January 2008 with another

previously that Angler workers did not want him on the project, there is no affidavit, deposition testimony, or other direct
statement from Hoffman in the record. -6-

8Although Alford alleges that Hoffman had warned him

white employee and had been suspended. noose one week earlier,

The three had put up the

when Alford was not working at the site,

and it hung there until Alford returned to the site on February
29. Alford photographed the noose and reported it to McDonald,

who took it down within an hour.
told McDonald about the noose,

Alford alleges that when he
"What's

McDonald said to him,

going on?

I guess that you're going to get Al Sharpton and the

NAACP out here."9
president,

Alford attempted to contact Sam Gass, M&G's
Alford worked

that day but was unable to reach him.
shift on February 29.

the rest of his

On the morning of Monday,

March 3,

Alford reported the

incident to Gass and showed him the photographs of the noose.
According to Gass' testimony, Gass asked Alford if there had been and Alford responded
. . . for

any previous racial incidents at Angler,
that

*there'd been a lot of joking around going on According to Gass,

months."

when Gass asked Alford why he had "didn't feel like

not reported anything,

Alford responded that he

October 24, 2008, in which he states that McDonald made the "Sharpton" comment on Friday, February 29, and his declaration of June 2, 2008, which states that McDonald made the comment on Monday, March 3. The Court finds that this discrepancy is not a

'There is a conflict between Alford's deposition, taken on

any of the counts.

dispute of material fact that would preclude summary judgment on
However, for the purposes of this opinion,
the Court finds Alford's deposition testimony more persuasive than the declaration, particularly given that the declaration

includes numerous facts summary judgment brief.

that are not mentioned at all in the The Court will therefore adopt the

February 29 date used by Alford in the deposition.
-7-

there was anything to report,"

that

"[they]

were all

joking

around," Gass

and that he

"didn't feel like he was

threatened." and Alford

immediately called Hazel.

Hazel asserts,

does not dispute,

that this was the first Hazel heard of the
Hazel

noose or any other racial incidents directed at Alford.

immediately went to the yard and spoke to Alford and to the three
employees who had put up the noose. employees, verbally reprimanded them, Hazel questioned the and informed them that

their behavior was inappropriate and that further such behavior
would result in their termination. safety officer, Richard Athey, Hazel also had Angler's

question the three employees.

According to Athey,

the employees told him that there was no

racist intent and that the noose was not directed at Alford or at
blacks. Athey testified that the three employees all gave the

same basic explanation:

Craig

[Jeffrey Lease]

had been watching

[the movie]

Hang xEm High. He had also watched Wild West and it happened to be on hanging. And that during lunchtime or what they call dinner, your noon meal, they were talking about it. Because that's what they'd watched
over . . . the weekend. Talked about tying a hangman's

noose. Craig says I don't know how. Gary says, you know, I think I know how. He says, I think I remember how. And so that's how it was done. Craig put a piece of pipe in there and a piece that was laying on the ground, and put a cover over it and called it his horse or donkey Pedro or something like that. It was an inappropriate joke between the 3 employees.
Athey Dep. 32:10-32:22. Jeffrey Lease corroborated this account

during his deposition.

He also said that it did not occur to him

-8-

that

"colored people"

would be offended by the noose -

indeed,

he

testified that he did not
noose looked like a person

even believe
- but

that

the

figure in the

that after he spoke with a

sheriff investigating the incident,

he understood why African-

Americans might take offense.10
suspended for the incident;
warning letters"

The three employees were not
they were given "employee
their conduct was

however,

notifying them that

inappropriate and that future inappropriate conduct would result
in termination. Athey asserts that he took notes while
but lost the notes within a week.
for discovery.

interviewing the employees,
such, Angler was unable

As

to produce Athey's notes

After speaking to Alford and the employees on March 3,

Hazel

called an employee meeting and told Angler's employees at yard that this conduct was unacceptable.
Alford on behalf of the three employees

the

Earnest Lease went to
and apologized. Hazel

spoke to Alford and told him that

the situation was

addressed and

Alford would not have any more problems. and made the same representations. [him]

Hazel

then called Gass "assured

Gass said that Hazel and that

that the incident was horseplay"

the individuals . . .

involved "had no intention or meant any direct type of harm

the Prince William County Police,
Bureau of Investigation.

l0In the evening of March 3, 2008, Alford filed a report with
who contacted the Federal
Law enforcement authorities

investigated the noose incident as a hate crime; however, there is no evidence in the record as to the results of the investigation, nor is there indication that charges were ever
filed.
-9-

to Mr.

Alford."

Gass asked Alford if

the situation was

addressed

to his satisfaction,
would go to work for

and Alford replied that it was,
the rest of the day. Gass

and that he
inquire

did not

into exactly what Hazel had done to address

the situation,

but
he was

stated that based on Hazel's and Alford's representations,

satisfied that the problem was resolved.
3, Gass also spoke to Hoffman, who was Gass

At some point on March

the only other M&G asserts that Hoffman said

employee at

the Angler facility.

that he "didn't really pay any attention to"

the noose and

"didn't notice"

it.

Gass did not undertake any further

investigation after he spoke to Alford and Alford told him he
felt the issue had been addressed.

Alford alleges,

however,

that on the afternoon of March 3,

when he returned to the Angler yard after his discussions with
Hazel and Gass and after the employee meeting, "walked by and glared angrily" at him, other workers

"looking like I did

something terrible."

Alford also asserts that one of the
"kept

employees who was running a loader - possibly Gary Wolfe -

riding by" on the loader "in a threatening motion
the machine back and forth,

.

.

.

swinging

like it's going to hit my truck."11

noose incident,

"Alford testified during his deposition that before the
crusher. Alford said that he

he had felt that a worker at Angler drove his

vehicle too close to Alford's

believed that these actions may have been intentional and motivated by race. Alford testified that he reported the truck Hazel, however, testified that incidents only to McDonald.
Alford had told him about the truck incidents,
-10-

but did not

Alford did not report any of the March 3
Gass. He did, however, inform Gass

incidents12 to Hazel or

that he felt uncomfortable at At

the Angler yard and did not want this point, Alford, at Gass the parties

to continue working there. reaction. According to

dispute Gass'

told him that if he did not want

to go back to work

the Angler site,

he had no other work for Alford to do.

According to Gass,

he told Alford he would try to reassign him to
but he was not sure what

another job site if that was possible,

type of work that would be.13
Change Notice" in evidence

Gass testified,
S.J. Ex.

and a "Payroll
5) corroborates,

(M&G Mem.

that M&G offered Alford a position operating a rubber tire

loader,

a position whose standard pay would represent a 30
and Alford declined it. Gass testified that

percent pay cut,

although the tire loader position was

less

lucrative,

it was the

best position he could find for Alford,

and that he attempted to

indicate that he thought they were motivated by racial animosity;
rather, he had raised it as a safety concern. Hazel testified that he believed one of the workers was Gary Wolfe, that he spoke to Wolfe at the time, and told him to make sure to give Alford room. Alford does not mention the truck incidents in his summary judgment opposition when describing the history of alleged racist
incidents at Angler.

l2As discussed supra,
them to Hazel or Gass.

in his declaration, Alford also stated

that McDonald's "Sharpton" comments occurred on March 3. Regardless of when those comments occurred, Alford did not report

I3M&G owned only one crusher, which was at the Angler site;
thus, Alford would not be able
to work at Angler.
-11-

to operate

the crusher if he

refused

accommodate Alford even though such accommodation would have

required him to disrupt crews and move other employees to

different locations.
other jobs,

Alford disputes that Gass ever offered him
a choice between

but argues that in any event,

remaining in a racially discriminatory environment at Angler and taking a 30 percent pay cut would have represented a "Hobson's
choice." On March 4, Gass called Alford and asked if he was

coming back to work,

and Alford said he was not.

Alford has not

worked for M&G since.14

E. The Complaint and Summary Judgment Motions.

Alford has sued both M&G and Angler for race-based

discrimination,

harassment/hostile work environment,

and

retaliation under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea. ("Title VII"), which prohibits

employment discrimination on the basis of race,

and Section 1981

of the Civil Rights Act of 1866,
Act of 1991, 42 U.S.C. § 1981

as amended by the Civil Rights
which prohibits racial Alford

(Ǥ 1981"),

discrimination in the making and enforcing of contracts.

has also sued Angler for negligently retaining Jeffrey Lease

after his suspension for fighting.

M&G and Angler have moved for
Alford has filed

summary judgment on all of the above claims.

days of paid vacation to consider whether or not he wanted to return to the Angler site, that Alford did so, but then chose not
to return.

I4M&G asserts that Gass told Alford that he could take four

-12-

cross motions

for summary judgment against both defendants;

his

motion against M&G requests that M&G be barred from asserting certain affirmative defenses, and his motion against Angler asks

for summary judgment or an adverse jury instruction because of Angler's alleged spoliation of evidence. includes two Fair Labor Standards Act
and Samuel Gass

The Complaint also claims against M&G

("FLSA")

for misclassification and collection of wages.

These claims were not at issue in the summary judgment motions.
II. STANDARD OF REVIEW

Summary judgment is appropriate when,
pleadings and attached evidence,

on the basis of the

there is no genuine issue of

material fact and the moving party is entitled to a judgment as a
matter of law. Catrett. See Fed. 317, R. Civ. P. 56(c); Celotex Corp. v.

477 U.S.

322-23

(1986).

Evidence must be viewed in

the light most favorable to the nonmoving party.
Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S.

Matsushita
574, 587 (1986).

The non-movant must set forth specific facts showing that there

is a genuine issue for trial,
Fed. R. Civ. P. 56(e).

and not rest on mere allegations.
"merely colorable" or

Evidence that is

"not significantly probative"
summary judgment motion.
U.S. 242, 249 (1986).
III.

is insufficient to overcome a
Liberty Lobby, Inc.. 477

Anderson v.

DISCUSSION

A.

Claims against Martin & Gass.

-13-

Summary judgment in favor of M&G was

granted because

the

evidence unequivocally establishes that M&G was unaware of any of
the alleged racist conduct occurring at the Angler yard until
In addition, M&G,

after Alford reported the noose incident.
through Gass,

responded quickly and appropriately once Alford

told Gass about

the noose incident,

and there is no evidence

supporting Alford's claim of retaliation. 1. Discrimination and Hostile Work Environment.

The claims

in Count I

(discrimination)

and Count

II

(harassment/hostile work environment)

are essentially the same,
the Angler site.
is the same. To

as both allege racially harassing conduct at
Thus,

the standard for evaluating the two counts

make a prima facie claim for a hostile work environment, plaintiff must show
on race, gender,

a (2) based

(1)

unwelcome conduct or harassment
(3)

or other protected characteristic

sufficiently severe and pervasive so as to alter the conditions
of employment and create a hostile work environment, and (4) some

basis

for imputing liability to the employer. 202 F.3d 234, 241 (4th Cir.

Smith v. 2000).

First

Union Nat'l Bank. As

the evidence clearly establishes,

all of the racist
by Angler

comments and behavior occurred at

the Angler site,

employees.
meets

Assuming,

arquendo.

that

the conduct in question
Alford must still show a

the first

three elements above,

basis

for imputing liability to M&G.

The parties dispute the

-14-

standard for imputing liability.

M&G argues

that

the Court

should hold it liable

"only if it knew or should have known about . .

the harassment and failed to take effective action to stop it . [by] respond[ing]

with remedial action reasonably calculated to
EEQC v. Sunbelt Rentals. 521 F.3d 306, 319

end the harassment."

(4th Cir.

2008)

(internal quotation marks

and citations omitted).

Conversely,

Alford urges

the Court to hold M&G strictly liable

for the harassment unless
that (1)

it can establish an affirmative defense
to prevent and promptly

it exercised reasonable care

correct harassing behavior,

and

(2)

Alford unreasonably failed to or F.3d

take advantage of any preventive or corrective opportunities otherwise to avoid harm. 323,
524 742

See Mikels v.

City of Durham.

183

332
U.S.

(4th Cir.
775

1999),

citing Faraaher v.
v.

City of Boca Raton.
Ellerth. 524 U.S.

(1998),

and Burlington Indus,

(1998).

The appropriate standard to be applied is by M&G. This standard is

the one proposed for

typically applied to employers

harassment committed by the victim's non-supervisory co-workers.
See Howard v. Winter. 446 F.3d 559, to 565 (4th Cir. 2006). It has

also been extended by some courts

the acts

of non-employees

over whom the employer exercises some control.15

Conversely,

the

lsSee Lockard v.

Pizza Hut.

Inc..

162 F.3d 1062,

1074

(10th

Cir. 1998) (holding that a restaurant is liable for harassment by customers if the restaurant "failfs] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have
-15-

standard suggested by Alford,

which contains a presumption of

vicarious

liability

(the

"Faraaher/Ellerth"

standard)

applies

only to discrimination by the victim's

supervisors,

and only when

the discrimination is

"aided by the agency relation" between the Mikels. 183 F.3d at 331. Alford

supervisors and the employer.

has alleged two categories of discrimination, and prior incidents at Angler.

the noose incident

It is undisputed that the noose

incident was perpetrated by non-supervisory co-workers of Alford;
thus, M&G's proposed standard, not Faraaher/Ellerth. clearly

applies to that incident.

Regarding the prior incidents,

there

is a dispute as to whether McDonald and Sutton,
perpetrators, were Alford's "supervisors"

the alleged
The Court

at Angler.

has resolved this question in the negative for reasons that are discussed infra in Part III.B; thus, M&G's proposed standard However, even if

applies to the prior incidents as well.

McDonald and Sutton could be considered Alford's supervisors

because they had authority over Angler's yard,

the which is based

Faraaher/Ellerth vicarious liability presumption,
on agency principles,

would still not apply to M&G because Therefore, their

McDonald and Sutton were not agents of M&G.

harassment of Alford could not have been "aided by

[an]

agency

known");

Crist v.

Focus Homes.

Inc..

122 F.3d 1107,

1108

(8th

Cir. 1997) (holding that a nursing home could be held liable for harassment by a resident when it knew of the conduct and failed
to respond appropriately). -16-

relation"
for

with M&G,

and M&G cannot be held presumptively liable
Faraaher/Ellerth is thus inapplicable to any

their actions.

of Alford's claims against M&G. for harassment by Angler's known of
action.

Instead, if

M&G can only be liable

employees

it knew or should have

the conduct and failed to take appropriate remedial

On this

record,

it

is

clear that M&G is

not

liable

for the

incidents

at Angler before the noose-hanging,

because there is

not a scintilla of evidence that M&G was incidents. Alford admits

on notice about any such those

that he never reported any of

incidents
2008,

to M&G.

The first hint of any problem was on March 3,
while reporting the noose incident to Gass,

when Alford,

alluded to the past lot of

incidents,

stating only that ... for months,"

"there'd been a that he did not

joking around going on

report it because he
report," and that he

"didn't feel like there was anything to
"didn't feel like he was threatened" by

those incidents. of the details of

Nowhere does Alford allege that he reported any the prior incidents to Gass,
Thus,

or that Gass

should have taken action in response.

there is no basis

for imputing liability for the prior incidents Regarding the noose incident,

to M&G.16 this incident,

accepting that

by itself,

could constitute severe and pervasive conduct because

l6Indeed, Alford appears to concedes that M&G is not liable
for the prior incidents, as his opposition to M&G's summary judgment motion focuses almost entirely on the noose incident.
-17-

of

the deeply hurtful meaning of a noose

to African-Americans,

M&G is still not liable because it
action once put on notice. Gass,

took appropriate remedial
M&G's president, immediately

called Hazel,

Angler's president.

Hazel

then investigated the
By this time,

incident personally and spoke the noose

to the employees. Hazel

itself had already been removed.

then promptly

reported back to Gass, incident,
it was

telling him that he had investigated the and believed that
and Alford

determined it was not race-motivated,
Gass

resolved.

then spoke to Alford again,
to work.

said he would go back

Alford argues

that M&G's actions

in response to the noose
"abjectly forsook any
statements at face

incident were insufficient and that Gass
responsibility" value, that did not when he accepted Hazel's conduct his

own investigation,

and did not verify

remedial measures were implemented or However,

that discipline was "not require[] that

meted out.

the Fourth Circuit does responses be the most

particular remedial

certainly effective

that could be devised." does not

Mikels.

183

F.3d at 330. inadequate.

This Gass

Court and Hazel
is no

find that M&G's response was

obviously had a long-standing business

relationship.

There

evidence in the record that would have caused Gass

to believe

that Hazel
employees

- who himself went promptly to the yard,
and Alford, and reprimanded the employees
Alford told Gass he was

spoke to the
- was being
On

disingenuous.

Moreover,

satisfied.

-18-

these facts,
undertake his
remedial

nothing indicated to Gass
own investigation.

that he needed to

Because M&G took prompt
the

action reasonably calculated to end the harassment,

conduct of Angler's

employees

cannot be

imputed to M&G,

and

Alford's discrimination and hostile work environment claims against M&G fail.
2. Retaliation.

Alford also claims
prevail, activity,

that M&G retaliated against him.
that he engaged in a protected

To

Alford must prove and that M&G

took an adverse action against

him because

of

the protected activity. 190 (4th Cir.

Sprioas v.

Diamond Auto Glass,

242

F.3d 179,

2001).

Alford engaged in a protected
to Gass. However, he cannot

activity when he reported the noose

show that M&G retaliated against him in response. Alford first alleges that M&G retaliated against him by

failing to address

the harassment on the Angler worksite.

This

allegation does not state an actionable retaliation claim, because it alleges no adverse action by M&G that was caused by

Alford's complaint. address

Rather,

any failure by M&G to properly is an element of Alford's hostile
length above. Moreover,

the offensive conduct
as

work environment claim,

described at

even if
shows

this were an actionable retaliation claim,

the evidence

that M&G took reasonable action to address

the harassment,

as described supra.

-19-

Alford next argues

that M&G retaliated against him by not than the Angler site. M&G as

finding him work at a location other

has offered an affidavit and deposition testimony by Gass,

well a Payroll Change Notice

(M&G Mem.

S.J.

Ex.

5),

as evidence
tire loader

that M&G offered Alford a chance

to work as

a rubber

operator - an alternative,
contends

albeit lower-paying,

position.

Alford

that Gass never offered him another opportunity. offered another job, there are no facts

Whether or not Alford was

in evidence that support a conclusion that M&G's retaliatory. crusher, Alford was a crusher operator.

actions were

M&G owned only one

which was assigned to Angler.
job

Short of pulling the
to

crusher from the Angler

(and possibly exposing itself

liability for breach of contract),
Alford a job operating the crusher.

M&G could not have found
Furthermore, Gass's

testimony that he did not have any other crusher work for Alford at the time is undisputed. In short, other than pure failure to reassign retaliatory.

speculation,

there is no evidence that M&G's

Alford to another crusher job elsewhere was

Finally,

Alford alleges that by not reassigning him,
This

M&G

retaliated by constructively discharging him.
as well. Constructive discharge requires

claim fails

that an employer

deliberately make an employee's working conditions intolerable in
an effort to induce him to quit.
Inc.. 259 F.3d 261,

Matvia v.
272

Bald Head Island
2001). Even if

Management.

(4th Cir.

-20-

Alford could establish that his working conditions were

intolerable,

there are no

facts

in evidence that

support any-

deliberate efforts by M&G to force him to quit.
For these reasons, summary judgment was granted to M&G on

both the Title VII and § 1981 claims,17 and Alford's cross-motion for summary judgment was denied.18
B. Claims Against Angler. granted to Angler on the Title VII and

Summary judgment was

§

1981 claims of discrimination and retaliation because Angler

was not Alford's employer and did not have a contractual

relationship with him,
once it was notified of

and took appropriate remedial measures
the harassing conduct. Moreover, there

is no evidence in this record that Angler retaliated against
Alford. Summary judgment was also granted to Angler on Alford's

negligent retention claim because Jeffrey Lease's participation

in the noose-hanging was not a foreseeable result of Angler's
retention of him following a fight with another white employee.
1. Title VII and § 1981 Claims.

l7Title VII and § 1981 claims require the same essential
elements, both for hostile work environment claims, see Spriggs, 242 F.3d at 183-84, and for retaliation claims, see Bryant v. Aiken Regional Medical Centers Inc.. 333 F.3d 536, 543 {4th Cir. 2003). Thus, both fail as a matter of law.

18In Alford's motion, he seeks to bar M&G from asserting the
Faragher/Ellerth affirmative defenses. Because, as described above, the Faragher/Ellerth standard is inapplicable to M&G, Alford's motion for summary judgment has been denied.
-21-

i.

Whether Angler was Alford's

Employer.

For Angler to be liable to Alford under Title VII,

Angler

must have been Alford's employer.
North Carolina, N.A., 259 F.3d 309,

See Farlow v.
313 (4th Cir.

Wachovia Bank of
2001). Whether

a relationship is an employer-employee relationship or an
independent contractor relationship depends on whether the

alleged employer has

the

"right

to control

the manner and means

by which the product to this

is accomplished."

Id.

The

factors relevant

inquiry include:

and tools;

the skill required; the source of the instrumentalities the location of the work; the duration of

the relationship between the parties; whether the hiring party has the right to assign additional

projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Id. The parties' beliefs regarding the nature of the employment

relationship are also significant.
VII purposes, have more

Id.

A party may,
a time,

for Title
and two or

than one employer at

more companies can jointly employ an employee.
Peak Tech. Servs.. Inc.. 808 F. Supp. 500, 507

See Magnuson v.
(E.D. Va. 1992) .

Under this standard,19 Angler was not Alford's employer for
Title VII purposes. Alford was paid by M&G, was M&G's employee

non-binding case law from other jurisdictions,
Fourth Circuit standard from Farlow.
-22-

19Tellingly, Alford's opposition to summary judgment cites

rather than the

for tax purposes,

and received no benefits

from Angler.

Alford

also was not located at Angler full-time;
Angler's yards on a regular basis,

although he was at

his work at the Angler site

was not an exclusive relationship and he traveled with the crusher to other sites as well. His only duty at Angler was to

operate M&G's crusher,20 and,

as M&G's employee,

he was

the only

individual authorized to operate the crusher.21

He would

occasionally direct Angler employees loading the crusher to ensure they would load the crusher in a way that would not damage
it. This, however, does not establish any employer-employee

relationship between Angler and Alford;

if anything,

it shows

that Alford had a degree of independence from Angler because of

his responsibility to safeguard M&G's equipment. In addition, Angler had no authority whatsoever to fire,

promote,

demote,

reassign,

or discipline Alford,

or to change his

job duties.

Presumably,

Angler could have reported Alford to M&G

20Although Alford asserts that he would occasionally fill in
for Angler employees doing other jobs, the evidence shows that these other jobs - loading the crusher, and operating a hoe that fed the crusher - directly revolved around the crusher. Furthermore, Alford testified that he did these other jobs because his employer, M&G, did not like down time - not because
of any duty he owed to Angler.

21A1 though Alford points to an excerpt from Sutton's
deposition stating that Alford would sometimes sit in his truck
during lunch while Angler employees worked with the crusher, the deposition shows that the Angler employees loaded the crusher,

using a different tool called an excavator. Alford was the sole individual who operated the crusher, which he did using a computer, sometimes remotely from his truck.
-23-

had his performance been unacceptable,

but

if

this were

sufficient

to create an employer-employee relationship,

then any Angler

worker in a contracting situation would be an employee.

did not consider Alford to be their employee;
crusher from M&G, and Alford came with it. crusher operator if

they rented the

M&G could have to do so.

supplied a different

it chose

Alford also asserts Gass'

that Angler was his expected to

employer because of follow the
and Alford's

testimony that Alford was
supervisors at

instructions of

the Angler yard,

testimony that McDonald,

an Angler employee,

directed him as Alford's

to

what work he would do on any given day.
deposition shows was minimal, that any control

However,

exercised by Angler over him (1)

and that Angler's

instructions were limited to

what stone Angler wanted him to crush, produce, and (3)

(2)

what

size stone to

where on the yard to position the crusher:

Q. And Angler directed you in that work by saying, "Here is the pile we want you to crush," correct?
A. Correct.

Q.
A.

And Angler directed you by rock we want to
Correct.

telling you,

"This

is

the

size of

come out at

the end,"

correct?

Q. All right. And other than that, did Angler direct you in your work in any fashion at all? A. No; only in going to one place to another. Q. Right. Where to be.
A. Yeah, where to be.

Alford Dep.
therefore,

104:16-105:4.
amount to

Angler's

instructions
of work,

to Alford,
which is

the mere

assignment

insufficient to create an employer-employee relationship.

See

-24-

West v.

MCI Worldcom,

Inc.,

205

F.Supp.2d 531,

540

(E.D.

Va.

2002)

("The

fact

that

[supervisors]

assigned

[an employee]

the

work in the first place is more akin to the administrative oversight that courts
Because there was

find does not qualify as control.")
no employer-employee relationship between

Angler and Alford,
fail. For

all

of

the Title VII
Alford's §

claims against Angler
1981 claims against Angler

the same reason,

fail because Alford did not have any contractual

relationship

with Angler,

but only with M&G.22
ii. Other Reasons Alford's Discrimination Claims

Fail.

Even if Angler were considered Alford's

employer,

his Title

VII and §

1981

claims still

fail

for independent reasons

articulated below.
a. Discrimination/Hostile Work Environment:

Noose incident. As articulated supra, an employer is only liable for if it

discriminatory harassment by non-supervisory employees

fails

to

take effective action to stop the harassment once it has
it. See Sunbelt Rentals. 521

actual or constructive knowledge of

F.3d at 319. workers,

The noose incident was perpetrated by Alford's cothus, this standard applies.

not his supervisors;

22An at-will employment relationship constitutes a contract
for § 1981 purposes, see Spriqqs, 165 F.3d at 1018-19; however, this relationship must still be between the plaintiff and the defendant, which it was not in this case.
-25-

The evidence in the record clearly establishes responded reasonably to the noose incident.

that Angler the first and
Hazel on the

This was

incident of racial harassment Alford reported to Angler,
Angler immediately responded by having the noose removed. to the yard and interviewed the employees the noose incident. Athey also

personally went

same day he learned of

interviewed those responsible and each was

reprimanded and given

both oral and written warnings would result in termination. employees

that future inappropriate conduct Hazel also called a meeting of all

in the yard and told them this sort of conduct was Angler took actions similar to those found by

unacceptable. circuit courts
circumstances. F.3d 1021

to be sufficient under similar or worse
See Williams v. 2004) Waste Mat, of 111., Inc.. 361

(7th Cir.

(finding an employer not threatening termination

liable after to employees

it provided verbal warnings who

told a black man he looked like a gorilla,

used the n-word,

and placed an extension cord tied as a noose on his workbench); Hollins v. Delta Airlines, 238 F.3d 1255 (10th Cir. 2001)

(finding an employer not liable for a noose-hanging and a joke

about hanging another employee,

where the employees involved were The reasonableness of

reprimanded and the nooses were removed).
Angler's

response is also enhanced by the absence of any history

of racial animosity between Alford and the three employees

(Alford admitted he did not even know their names)

and the fact

-26-

that the noose was hung during a time period when Alford was not
even at the yard.

Finally,

Alford's motion for summary judgment,

in which he

asks for judgment against Angler,

or alternatively an adverse
is unavailing. that he This

jury instruction for spoliation of evidence, motion is based on Athey's loss of the notes

took during

his investigation,
notes

and is premised on the possibility that
that would be adverse to Angler -

the
for

contained evidence

example,

that

they would have shown that

the noose

incident was

truly race-motivated, not.

although Athey and Hazel

concluded it was the

Alford's motion was

denied because even assuming that Angler's response of a matter of

noose incident was harsh reprimand was

race-motivated,

issuing a law for

an adequate response as

the reasons

described above, evidence was

and therefore,

any possible

spoliation of

immaterial

to the outcome of Angler's

summary judgment motion.
b. Discrimination/Hostile Work Environment:

Prior Incidents.

Angler is also not discriminatory incidents

liable

for any of

the alleged

that occurred before the noose incident.

Under the standard applicable to harassing conduct by co-workers,
see Sunbelt Rentals, 521 F.3d at 319, Angler these of is clearly not Alford, -

liable as Alford never however, alleges that

reported any of the perpetrators

incidents.

the offensive conduct

McDonald and Sutton - were his

supervisors,
-27-

and therefore

that

Angler is

strictly liable

for

their harassment,

subject

to

two

potential affirmative defenses,

under the Faraaher/Ellerth

standard.23

Alford's claim,

however,

fails because McDonald and

Sutton were not his

supervisors. stated that he viewed them as in charge

Although Alford has

of

the yard,

and in particular viewed McDonald as

the foreman,

Sutton's titles as

testimony was foremen;

that neither he nor McDonald had formal the two took it upon themselves In any event, to

rather,

establish an informal hierarchy.

whether or not

they supervised other Angler employees,

McDonald and Sutton

clearly had no supervisory authority over Alford.

Neither one against

had authority to take any tangible employment actions
him. At most, by telling him what stones to crush,

McDonald had

"occasional authority to direct
Mikels, 183 F.3d at 334. This

[Alford's]

operational

conduct."

limited authority is not alleged harassment to make Alford . . conduct in ways
Id. at

sufficient

to make McDonald and Sutton's

"aided by the agency relation" "vulnerable to and defenseless

with Angler or against the .

that comparable conduct by a mere co-worker would not."

23As explained supra in Part III.A,

under the

Faraqher/Ellerth standard, an employer is liable for harassment by a supervisor unless it can establish an affirmative defense that (1) it exercised reasonable care to prevent and promptly
correct harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective

opportunities or otherwise to avoid harm. See Mikels, 183 F.3d at 332, citing Faraaher 524 U.S. at 775, and Ellerth. 524 U.S. at
742. -28-

333.

Rather,

the

"authority possessed Id.

[by McDonald and Sutton at 334. Thus, for Title

over Alford] VII purposes,
As a result,

was at best minimal." they were Alford's

co-workers,

not his

supervisors.
their

because Alford never reported their conduct,

conduct cannot be imputed to Angler,
Finally, Angler even if

and Alford's claims
imputable employer),

fail.24
to most of this "to

the prior incidents were

(and if Angler were considered Alford's

the prior incidents were not standard, Alford must

severe and pervasive. the conduct was

To meet

show that

sufficient

alter the conditions of
working environment."

[his]

employment and create an abusive
Forklift Systems, Inc.,

Harris v.

510 U.S. omitted).
meet this

17,

21

(1993)

(internal

citations and quotation marks while offensive,
"[s]imple

Most of
standard,

the prior incidents,

did not
teasing, at

but were in the nature of

offhand comments,

and isolated incidents,"

Faraqher,

524 U.S.

788,

that do not meet Alford himself

the

"severe and pervasive"

requirement. feel threatened
The

Indeed,

testified that he did not

by the incidents,

although he clearly was

offended by them.

24Even if McDonald and Sutton were Alford's supervisors,
Angler could establish a Faraaher/Ellerth affirmative defense.

Angler had an anti-harassment policy, which strongly militates in favor of concluding that it exercised reasonable care to prevent
and protect harassment. See Brown v. Perry, 184 F.3d, 388, 396 (4th Cir. 1999) . In addition, Alford failed to inform Hazel of any of the alleged conduct prior to the noose incident despite being comfortable Alford's
unreasonable.

talking report

to Hazel.

Under

these

circumstances,

failure to

the offending conduct was

-29-

only possible exception is

the

"Klan hood"

incident,

which on its

own could arguably constitute severe and pervasive conduct.

However,

given the numerous independent reasons articulated above it

for dismissing Alford's discrimination claims against Angler, is unnecessary to resolve this issue.
c. Retaliation.

Angler also did not

retaliate against Alford for his

complaint about

the noose.

To prevail on this claim,

Alford must

prove that he took a protected action,

and that Angler took an

adverse action against him because of the protected action. Spriggs. 242 F.3d at 190. The adverse action taken by Angler
that is, it must be the type from making

must have been "materially adverse;" of action that might "dissuade[]

a reasonable worker

or supporting a charge of discrimination."
Santa Fe Rv. Co. v. White. 548 U.S. 53,

Burlington Northern &
(2006).

67-68

The only incidents Alford alleges

occurred after his

reporting of

the noose incident were

the uncomfortable glaring,

the loader incident,
of

and possibly the "Sharpton"

comments.

None

these de minimis actions by non-supervisory employees "materially adverse" action by Angler as an are far outweighed by

constitutes a employer.
the

In addition,

these minor actions
to address

reasonable steps Angler took

the harassment.

Thus,

summary judgment has been granted to Angler on Alford's
well.

retaliation claim as

-30-

2.

Negligent Retention. granted summary judgment Under Virginia law, on Alford's negligent "is subject in to

Angler was retention claim.

an employer

liability of harm resulting from the employer's negligence retaining a dangerous employee who

the employer knew or should

have known was dangerous
Aots. Mamt., Inc. v.

and likely to harm others."
513 S.E.2d 395, 397 (Va.

Southeast
1999) .

Jackman.

Assuming that a noose-hanging can constitute

the

"harm"

necessary

to trigger a negligent retention claim under Virginia law,25

the

negligent retention claim here fails because the harm caused by
Lease was not a
him.

foreseeable result of Angler's decision to retain

The harm suffered as

a result of a negligent retention of an
the retention. See

employee must be a foreseeable result of

Crump v.
2007).

Morris.
That is,

2007 WL 6002110,

at

*4

(Va.

Cir.

Ct.

Mar.

12,

to hold the employer liable,

there must be some

relationship between the employee's
were known to

dangerous propensities
the employee

that

the employer and the harm that

ultimately caused.

Here,

Angler retained Jeffrey Lease after he

25 Compare Parker v. Geneva Enters.,

Inc.,

997 F.Supp.

706,

714 (E.D. Va. 1997) (holding that negligently hiring or retaining an employee who discriminates based on race or gender, but who
does not cause physical harm,
Ins. Co.. 154 F.

is not actionable)
2d 907, 908

with Sutphin v.
Va. 2001)

United Am.

Supp.

(W.D.

(holding that negligent retention requires only that the retained employee commit a "cognizable wrong" against the plaintiff and suggesting that Title VII discrimination could constitute a
cognizable wrong).
-31-

engaged in an altercation with another white employee.

This

altercation in no way put Angler on notice that Lease might engage in a racially discriminatory act such as a noose-hanging. Even if Angler did not exercise due care in retaining Lease,
harm to Alford as
foreseeable.

any

a result of Lease's

subsequent actions was not

Summary judgment has

therefore been granted to

Angler on this

claim as well.
IV. CONCLUSION

For the above reasons,

both defendants'

summary judgment

motions have been granted on all
summary judgment motions

counts,

and plaintiff's

two

have been denied.

The only remaining

claims

for trial are Alford's FLSA claims

against M&G and Gass.

Entered this

ry°>

day of February,

2009

Alexandria,

Virginia

/s/ Leonie M. Brinketffe

United States District Judge

-32-