Lee v. Computer Sciences Corporation
Filing
50
MEMORANDUM OPINION - For the foregoing reasons, the Court will grant Defendants motion for summary judgment and enter judgment in the Defendants favor. An appropriate Order shall issue. Signed by District Judge James C. Cacheris on 02/24/2015. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
EARL LEE,
Plaintiff,
v.
COMPUTER SCIENCES CORPORATION,
Defendant.
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M E M O R A N D U M
1:14cv581 (JCC/TCB)
O P I N I O N
This matter is before the Court on Defendant Computer
Sciences Corporation’s Motion for Summary Judgment. [Dkt. 35.]
For the following reasons, the Court will grant the motion and
enter judgment in Defendant’s favor.
I. Background
On May 20, 2014, Plaintiff Earl Lee (“Plaintiff”)
filed suit against his former employer, Defendant Computer
Sciences Corporation (“Defendant” or “CSC”), alleging three
causes of action: (1) retaliation for engaging in protected
conduct under the False Claims Act in violation of 31 U.S.C. §
3730(h); (2) wrongful termination on the basis of race, in
violation of Title VII of the Civil Rights Act, 42 U.S.C. §
2000e-2(a); and (3) retaliation for engaging in protected
conduct under Title VII, in violation of 42 U.S.C. § 2000e-3.
(Compl. [Dkt. 1] at 9-13.)
Defendant moves for summary judgment
1
on all three counts.
(Def.’s Mot. for Summ. J. [Dkt. 35];
Def.’s Mem. in Supp. Mot. for Summ. J. [Dkt. 36].)
II. Legal Standard
Summary judgment is appropriate only if the record
shows that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(c); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs.
Applications & Serv., Co., 80 F.3d 954, 958-59 (4th Cir. 1996)
(citations omitted).
In reviewing the record on summary
judgment, “the court must draw any inferences in the light most
favorable to the non-movant [and] determine whether the record
taken as a whole could lead a reasonable trier of fact to find
for the non-movant.”
Brock v. Entre Computer Ctrs., 933 F.2d
1253, 1259 (4th Cir. 1991) (citations omitted).
Once a motion for summary judgment is properly made
and supported, the opposing party has the burden of showing that
a genuine dispute exists.
See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see also Ray
Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294,
299 (4th Cir. 2012) (stating the opposing party must “come
forward with specific facts showing that there is a genuine
issue for trial.”) (citations and internal quotations omitted).
Specifically, in this Court on summary judgment, the parties are
2
required to list the undisputed material facts in their briefs.
E.D. Va. Local Civil Rule 56(B).
“In determining a motion for
summary judgment, the Court may assume that facts identified by
the moving party in its listing of material facts are admitted,
unless such a fact is controverted in the statement of genuine
issues filed in opposition to the motion.”
Id.
Indeed, “[i]f a
party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required
by Rule 56(c), the court may consider the fact undisputed for
purposes of the motion.”
Fed. R. Civ. P. 56(e)(2).
III. Undisputed Material Facts
Even though Plaintiff’s opposition brief was
untimely, the Court will consider the substance of the brief in
opposition to Defendant’s motion for summary judgment.1
1
In
Defendant’s Motion for Summary Judgment was filed on January
23, 2015. [Dkt. 35.] Pursuant to the Local Rules of this Court
and the Federal Rules of Civil Procedure, Plaintiff’s opposition
was due no later than February 6, 2015, fourteen days after the
motion was originally filed. See Fed. R. Civ. P. 6(d); E.D. Va.
Local Civ. R. 7(F)(1). Plaintiff did not file his opposition,
however, until February 11, 2015. He also did not request an
extension of time in which to file, nor did Plaintiff attempt to
justify why he deserved such an extension. During the hearing,
when asked about the untimely filing, Plaintiff’s counsel
referenced the Court’s September 2, 2014 Scheduling Order, which
states, inter alia, “[a]ny party required to file an answer must
do so within twenty (20) days.” [Dkt. 8.]
The Local Rules of this Court and the Federal Rules of
Civil Procedure govern filing deadlines, as discussed earlier.
The Scheduling Order does not. Rather, it sets dates for the
Rule 16(b) pre-trial conference, discovery deadlines, and the
final pre-trial conference. (Id.) The Scheduling Order also
3
consideration of Plaintiff’s opposition, the Court still finds
that Plaintiff has failed to identify a genuine issue of
material fact that must be decided by the jury.
The Court’s
findings of undisputed material facts are summarized as follows:
directs any party who has not yet filed an answer to the
complaint to do so within twenty days. (Id.) Therefore,
Plaintiff’s counsel’s response does not excuse the untimely
filing of the opposition brief. See Key v. Robertson, 626 F.
Supp. 2d 566, 577-78 (E.D. Va. 2009) (“Ignorance of when a time
period expires does not qualify as excusable neglect, nor does a
busy schedule, lack of diligence, inadvertence, or other
manifestations of carelessness and laxity.”) (quoting Eagle
Fire, Inc. v. Eagle Integrated Controls, Inc., No. 3:06cv264,
2006 WL 1720681, at *4 (E.D. Va. June 20, 2006) (quoting Moore’s
Federal Practice ¶ 6.06(3)(c))).
The Local Rules of this Court are not suggestions to
be taken lightly. Admitted practitioners of this Court certify
they have read the Local Rules. E.D. Local Civ. R. 83.1(C).
Moreover, the Rule 16(b) Scheduling Order, entered October 1,
2014, directed the parties to file dispositive motions in
accordance with Local Civil Rule 7(F)(1). (16(b) Order [Dkt.
20] at ¶ 2(c).) And Local Civil Rule 7(I) explicitly addresses
extensions of time. Plaintiff’s opposition is late.
Plaintiff’s counsel did not attempt to show good cause for an
extension of time in advance of filing. Nor did counsel
adequately address the timeliness issue during the hearing. In
such a circumstance, it is well within the province of the Court
to accept as undisputed all facts contained in Defendant’s
statement of undisputed facts when deciding whether Defendant is
entitled to judgment as a matter of law. Lufti v. United
States, No. 1:09-cv-1114 (AJT/IDD), 2011 WL 1226030, at *2 (E.D.
Va. Mar. 28, 2011). In this instance, however, the Court will
not resort to this remedy, because even when considering
Plaintiff’s brief and the evidence attached thereto, the Court
will find, for the reasons stated more fully below, that
Defendant is still entitled to judgment as a matter of law on
all counts. Thus, the Court will consider Plaintiff’s untimely
filing. Plaintiff’s counsel is admonished to become more
familiar with the Local Rules of this Court, as the Court’s
leniency on this occasion is the exception and not the normal
practice of this Court.
4
Defendant contracts with the Department of Defense to
provide “next-generation information technology services” in
Iraq and Afghanistan.
Relevant here, Defendant provided these
services, including the maintenance, repair, and logistical
accountability as the prime contractor for the Gyrocam Vehicle
Optics Sensor System (“VOSS project”) at the Forward Operating
Base (“FOB”) Sharana, in the Paktika Province of Afghanistan.
Lockheed Martin served as the subcontractor on the VOSS project.
After previously serving as a logistician for
Defendant in Iraq, on May 23, 2012, Plaintiff, an AfricanAmerican male, accepted the position of Logistics Senior
Associate with Defendant under the VOSS project at FOB Sharana
in Afghanistan.
Prior to arriving in Afghanistan, Plaintiff
reviewed Defendant’s Employee Handbook and Human Resources
policies online.
As a VOSS logistician, Plaintiff was responsible for
property accountability for the Gyrocams on the vehicles.
Plaintiff reported to Luis Mercado (“Mercado”), the Regional
Support Center Manager.
Neville Reid (“Reid”) was the VOSS
Operations Manager who operated out of Kandahar, Afghanistan.
The VOSS department at Sharana was staffed with logisticians and
forward support representatives (“FSRs”).
Several FSRs worked
for Defendant’s subcontractor, Lockheed Martin, the manufacturer
of the VOSS Gyrocam.
5
Around January 10, 2013, in anticipation of his future
transfer, Mercado appointed new program leaders at FOB Sharana.
Plaintiff was appointed as the lead of the VOSS project shop.
As of this date, four African-American Lockheed Martin
subcontractors -- Daniel Turner, Adam Powell, Sherwin Wade, and
McKenzie St. Lot -- worked in FOB Sharana’s VOSS department
(“the Lockheed Martin employees”).
The Lockheed Martin
employees did not have the power to give assignments,
discipline, or terminate Plaintiff, or otherwise change the
terms and conditions of his employment.
Plaintiff started to experience trouble with the
Lockheed Martin employees.
Specifically, Plaintiff complained
to Mercado and Reid2 that the Lockheed Martin employees (1)
refused to sign property in and out and would not deliver
property as instructed, (2) refused to clean up the work shop,
and (3) “cannibalized” or reused repaired parts from damaged
field cameras.
Reporting these issues were part of Plaintiff’s
2
It is unclear from the record how many times Plaintiff
complained to Mercado and Reid. Plaintiff claims it was
“numerous” times (Pl.’s Opp’n at 3), but there is no support for
that statement at the citation provided by Plaintiff, his
deposition at page 97. Accordingly, the Court finds that
Plaintiff complained to Mercado and/or Reid whenever a problem
arose in the VOSS shop, mainly because that was part of
Plaintiff’s job description. (See, e.g., Pl.’s Dep. [37-2] Ex.
B at 138 (“That was basically what I was put there to do,
because -- I’m a subject matter expert on product
accountability, and Mr. Mercado wanted to know where the
equipment was, how is it going out the door, is it being done
right, and that’s what I was showing him.”).)
6
job, he was not the first person to identify these problems, he
did not report or threaten to report these problems to Army
personnel, and he never filed a qui tam suit on behalf of the
government as to these claims.
Plaintiff also told Mercado that
he overheard the Lockheed Martin employees referring to him as a
“snitch” and other racially derogatory terms.
Mercado called
all of the VOSS shop employees together for a meeting, where
Mercado instructed employees to refrain from such behavior.
Immediately preceding this meeting, derogatory terms were
written on a white board, but it is unclear who wrote the
derogatory terms or at whom the terms were directed.
On February 3, 2013, Lockheed Martin’s senior program
manager, Nate Power, notified Defendant that the Lockheed Martin
employees submitted a formal complaint against Plaintiff.
The
subcontractors made the following formal allegations against
Plaintiff:
(1) he discriminated by race, replacing
white employees and repeatedly telling the
Lockheed Martin employees that his goal was
to make the site an “all black, black ran”
site and “we have to get rid of whitey;”
(2) he manipulated employees against each
other and made false statements about
employees regarding their performance behind
their backs creating a hostile environment;
(3) he used the corporation or his
connection with Mercado as an excuse for his
violations of policy, and often used the
7
phrase “the powers that be” as who allowed
him to take time off for church;
(4) he misused the company vehicles for
personal use and failed to consider the
needs of the other employees for
transportation; and
(5) he failed to hold regular meetings and
refused to communicate with the employees
even extending to locking his door and
sleeping in his office.
(Def.’s Mem. at 5.)
Defendant considered this to be “high
profile” because it was a formal complaint that alleged
Plaintiff was creating a hostile work environment and came from
Lockheed Martin’s program manager.
After receiving the formal complaint, Defendant
suspended Plaintiff and removed him from Afghanistan on February
10, 2013, pending an investigation and ultimate resolution to
avoid further complications.
Naturally, Plaintiff objected to
the allegations that were lodged against him.
Defendant’s Employee Relations Specialist, Juliet
Slonaker (“Slonaker”), investigated the allegations against
Plaintiff.
On February 28, 2013, Slonaker interviewed Turner
under the mistaken belief that he was an employee of the
Defendant and not Lockheed Martin.
Under the contract, Slonaker
was not permitted to contact the Lockheed Martin employees
directly, only CSC employees.
During the interview, however,
Turner agreed with the allegations made in the formal complaint,
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and provided the following examples of Plaintiff’s problematic
behavior:
(1) Plaintiff used the company vehicle as
his own,3 preventing the VOSS workers from
doing their work and at times forcing them
to walk long distances to work;
(2) Plaintiff reported to Reid that the
workers were not completing their work,
which was a lie, and Plaintiff sought to sow
discord among the workers;
(3) Plaintiff would tell the employees that
he wanted the site to be “all black run;”
and
(4) Plaintiff would claim “the powers that
be” allowed him to do things he was not
supposed to do, such as take off work early
because he would arrive early (although
Turner
would
not
see
Plaintiff
arrive
early), record regular work time when he was
sick
or
at
church,
and
stay
in
the
unauthorized “downtown” area when the others
had to move to the compound.
(Def.’s Mem. at 6.)
Plaintiff contested all of these
allegations as unfounded.
Slonaker found Turner to be credible.
Slonaker also interviewed Plaintiff, who denied the
allegations against him.
Plaintiff did not provide a written
statement for the investigation to document his version of the
events.
During the interview, Plaintiff demanded to know where
Slonaker’s office was located so he could meet her “face to
3
Plaintiff maintained the keys to the vehicles assigned to the
VOSS department. Plaintiff regularly used one of these vehicles
to attend church. Plaintiff recorded this time traveling to and
from church as working time.
9
face.”
Slonaker felt threatened by Plaintiff during the
interview.
Slonaker noted that Plaintiff provided inconsistent
responses regarding his time at church and his access to the
vehicles.
Plaintiff never reported to Slonaker that the
Lockheed Martin employees were discriminating against him, nor
did he inform Slonaker that he had reported any improprieties or
discrimination.
Plaintiff’s statements were not corroborated by
any other evidence.4
Ultimately, pursuant to the investigation, Slonaker
concluded that Plaintiff created a hostile work environment for
the Lockheed Martin employees in violation of Defendant’s
policy.
Slonaker recommended Plaintiff’s termination.
Defendant’s Legal Department and Donald Greene, Senior Manager
of Logistics, agreed with Slonaker’s recommendation.
On April
9, 2013, Defendant terminated Plaintiff’s employment.
Based on these undisputed facts, Plaintiff claims that
he was terminated in retaliation for reporting fraudulent acts
4
Plaintiff offers an unauthenticated bullet-point list entitled
“Lee’s notes from phone interview with Slonaker” as proof that
he provided additional names for Slonaker to interview, but this
list contradicts Plaintiff’s own deposition testimony, where he
couldn’t recall if he provided additional witness names, and
Slonaker’s sworn affidavit. (Compare Pl.’s Opp’n Ex. I, with
Pl.’s Dep. at 102; Def.’s Mem. Ex. A [37-1] Slonaker Aff. ¶ 30.)
Plaintiff also attaches character statements to his opposition
brief “to vouch for Lee’s professional and courteous demeanor.”
(Pl.’s Opp’n at 8 (citing Exs. 10-17).) But it is undisputed
that Plaintiff did not provide such evidence to Slonaker during
her investigation.
10
under the False Claims Act and for reporting the racial
harassment he suffered by other employees.
Plaintiff also
claims he was wrongfully terminated because of his race.
IV. Analysis
A. Count One: Retaliation in Violation of the False
Claims Act, 31 U.S.C. § 3730(h)
First, Defendant claims it is entitled to judgment as
a matter of law on Plaintiff’s retaliation claim under the False
Claims Act.
(Def.’s Mem. 9-12, 15-17.)
Defendant argues that
Plaintiff admits he did not pursue a qui tam action or even
report any purportedly false claims for payment.
(Id. at 9-12.)
Defendant also argues that Plaintiff cannot show Defendant knew
of any acts in furtherance of a False Claims Act suit.
(Id. at
15-17.)
Plaintiff’s claims under Count One are predicated on
his alleged complaints to supervisors “about the employees
working at the VOSS site [who] refused to perform work but were
likely billing their work to the government.”
(Compl. ¶ 94.)
The whistleblower provision under the False Claims Act (“FCA”)
“provides a cause of action to any employee who is
‘discriminated against’ by his employer ‘because of lawful acts
. . . in furtherance of’ an FCA suit.”
United States ex rel.
Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d
724, 735 (4th Cir. 2010) (quoting 31 U.S.C. § 3730(h)).
11
To
defeat summary judgment, there must be a genuine issue of fact
showing that (1) Plaintiff took acts in furtherance of an FCA
suit; (2) Defendant knew of those acts; and (3) Defendant
treated Plaintiff adversely because of these acts.
Id. (citing
Zahodnick v. IBM Corp., 135 F.3d 911, 914 (4th Cir. 1997)).
Because there is no genuine issue of material fact as to any
element of this prima facie case, Defendant is entitled to
judgment as a matter of law as to Count One in Plaintiff’s
Complaint.
First, there is no evidence in the record that
Plaintiff took acts in furtherance of an FCA lawsuit.
Plaintiff’s own testimony contradicts the allegations supporting
Count One, which shows there is not a genuine issue of material
fact as to whether Plaintiff took acts in furtherance of an FCA
suit.
It is undisputed he did not, as Plaintiff candidly
admits:
Q. Have you filed any qui tam action?
A [Plaintiff]. No.
Q. Have you filed any action on behalf of
the government?
A. No.
Q. Have you filed
Inspector General?
any
A. No.
12
claim
with
the
Q. Did you ever threaten anybody at CSC that
you would report this or any of these
actions to a federal agency?
A. No.
Q. Are you claiming that CSC committed fraud
on the government?
A. I never said that.
. . .
Q. Are you claiming that CSC presented any
false claim for payment to the government?
A. I never said that.
(Pl.’s Dep. at 145-46 (emphasis added).)
Not only is it
undisputed that Plaintiff did not take steps in furtherance of
an FCA action, but he also disclaims the substance of his
allegation about the alleged fraud committed by other employees
when he states: “I never said that.”
Even though Plaintiff
initially informed his supervisors about the alleged improper
cannibalization of parts and other problems occurring in the
VOSS shop, this is simply not sufficient to establish the first
element of retaliation under the FCA.
Indeed, Plaintiff
admitted this was part of his job description as VOSS shop lead.
(See Pl.’s Dep. at 138 (“That was basically what I was put there
to do, because -- I’m a subject matter expert on product
accountability, and Mr. Mercado wanted to know where the
equipment was, how is it going out the door, is it being done
right, and that’s what I was showing him.”)); see also
13
Zahodnick, 135 F.3d at 914 (“Here, there is no evidence that
[Plaintiff] initiated, testified for, or assisted in the filing
of a qui tam action during his employment with IBM and Lockheed.
In fact, the record discloses that [Plaintiff] merely informed a
supervisor of the problem and sought confirmation that a
correction was made; he never informed anyone that he was
pursuing a qui tam action.”).
Plaintiff cites the legislative history of the 2009
amendments to the False Claims Act for the notion that Congress
intended to broaden the scope of protected activity to include
“internal reporting to a supervisor . . . and refusals to
participate in the misconduct . . . whether or not such steps
are clearly in furtherance of a potential or actual qui tam
action.”
(Pl.’s Opp’n at 13.)
While true, here, Plaintiff was
not reporting fraud to a supervisor in furtherance of an FCA
claim.
In his own words, Plaintiff never said that CSC
committed fraud on the government.
(Pl.’s Dep. at 145-46.)
Instead, Plaintiff “just told who [he] needed to tell” about
improper use of parts, failure to clean the shop, and failure to
properly document attendance or the delivery of parts in
accordance with company policy and procedure.
(Id. at 141-45.)
This, admittedly, was also part of his job description.
138.)
14
(Id. at
There is no genuine dispute that Plaintiff initially
reported problems he observed in the VOSS shop to his
supervisors, but did not pursue his allegations any further.
Cf. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776,
785 (4th Cir. 1999) (“The Supreme Court has cautioned that the
False Claims Act was not designed to punish every type of fraud
committed upon the government.”) (citation omitted).
“Simply
reporting his concern of a mischarging to the government to his
supervisor does not suffice to establish that [Plaintiff] was
acting ‘in furtherance of’ a qui tam action.”
Id. (citing
Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951
(5th Cir. 1994)).
Moreover, unlike Plaintiff suggests, there is
nothing in the record that shows Defendant was “on notice that
litigation [was] a reasonable possibility.”
(Pl.’s Opp’n at 13
(quoting Layman v. MET Labs., Inc., No. RBD-11-03139, 2012 WL
4018033, at *5 (D. Md. Sept. 12, 2012) (additional citation
omitted)).
Accordingly, because there is no genuine issue of
material fact, Plaintiff cannot establish the first element of
the prima facie case of retaliation under the FCA, and Defendant
is entitled to judgment as a matter of law on Count One.5
5
With no genuine issue of material fact as to the first element,
the Court need not consider the remaining two elements of the
prima facie case of retaliation under the FCA. Indeed, how
could Defendant know about Plaintiff’s alleged “protected
15
B. Count Two: Title VII Race Discrimination
Second, Defendant claims it is entitled to judgment as
a matter of law on Plaintiff’s race discrimination claim brought
under Title VII of the Civil Rights Act.
(Def.’s Mem. 18-27.)
Defendant argues that Plaintiff fails to satisfy the prima facie
case of race discrimination.
(Id. at 18-20.)
Alternatively,
assuming Plaintiff could establish a prima facie case, Defendant
also argues that Plaintiff cannot rebut Defendant’s legitimate,
non-discriminatory reason for his termination, or show that it
was merely a pretext for race discrimination.
(Id. at 21-27.)
Plaintiff’s claims under Count Two are based on
allegedly racist comments and slurs made by other employees
against him.
(Compl. ¶ 105.)
Under the well-known McDonnell
Douglas framework, for a claim of racial discrimination in a
disparate treatment case such as this, Plaintiff must show a
connection between race and the adverse employment decision by
first establishing the following elements of a prima facie case
of discrimination:6 (1) Plaintiff belongs to a racial minority or
protected class; (2) Plaintiff was qualified for his job and his
performance was satisfactory; (3) despite his qualifications and
activity” when the Court has already determined there is no
dispute that Plaintiff did not engage in protected activity.
Similarly, there can be no causal connection between Plaintiff’s
unsupported allegation and his subsequent termination.
6
Without any direct or circumstantial evidence of racial
discrimination, the Court proceeds under this framework.
16
performance, Plaintiff suffered an adverse employment decision
or was terminated; and (4) similarly situated employees outside
the protected class were treated more favorably.
Autry v. N.
Carolina Dep’t of Human Res., 820 F.2d 1384, 1385 (4th Cir.
1987) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)); see also Turner v. Danzig, 8 F. App’x 268, 269-270
(4th Cir. 2001).
Once Plaintiff establishes a prima facie case,
the burden shifts to Defendant “to advance a legitimate, nondiscriminatory reason for the discharge.”
Turner, 8 F. App’x at
270 (citing McDonnell Douglas, 411 U.S. at 804; Williams v.
Cerberonics, Inc., 871 F.2d 452, 455-56 (4th Cir. 1989)).
If
Defendant advances a legitimate reason for the Plaintiff’s
termination, the burden shifts back to Plaintiff “to present
evidence that the stated reasons are pretextual.”
Turner, 8 F.
App’x at 270 (citing Williams, 871 F.2d at 455-56).
Because
there is no genuine issue of material fact as to any element of
this prima facie case, Defendant is entitled to judgment as a
matter of law as to Count Two in Plaintiff’s Complaint.
Here, Plaintiff fails to establish a prima facie case
of race discrimination because there is no evidence that
similarly-situated employees outside the protected class, or
non-African Americans, were treated more favorably than
Plaintiff.
Plaintiff bears the burden of showing a genuine
issue of material fact exists as to whether similarly-situated,
17
non-African American employees were treated more favorably than
him.
See Carter v. Ball, 33 F.3d 450, 461 (4th Cir. 1994).
No
genuine issue exists in the record now before the Court.
First, Plaintiff never reported any concerns of race
discrimination to anyone at CSC.7
(Pl.’s Dep. at 146.)
Moreover, Plaintiff “doesn’t know” if was discriminated against
because of his race.
(Id.)
Second, there is no evidence in the
record now before the Court that shows non-African American
employees were treated more favorably.
(Id. at 127 (“Q. Do you
believe you were treated differently for any improper illegal
reason while you were at CSC?
A. I don’t know anyone that has
been treated that way . . . . I was just trying to do the job,
so I don’t know about anyone else other than myself.”).)
Indeed, Defendant employs members of the protected class in
supervisory positions, and had just demoted or separated two
non-protected class employees who held a similar position to
Plaintiff.
(Id. at 22-26, 76-78, 102.)
The four Lockheed
Martin employees who lodged their complaint against Plaintiff
were also African-American.
Accordingly, without contrary
evidence, the Court finds it is undisputed that similarly7
Plaintiff told Mercado about the Lockheed Martin employees’
comments about race, but this confuses Plaintiff’s claim of
racial discrimination. Plaintiff does not claim hostile work
environment. Instead, he claims he was terminated because of
his race. Insensitive or derogatory comments by other employees
do not advance Plaintiff’s claim. Moreover, Mercado immediately
held a team meeting and addressed the issue.
18
situated employees outside Plaintiff’s protected class were not
treated more favorably.
Defendant is therefore entitled to
summary judgment on this basis alone.
Ultimately, the question for the Court to resolve on a
claim of racial discrimination under Title VII is whether there
is any evidence in the record of an intentional discriminatory
motive or animus directed toward Plaintiff by Defendant.
Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286 (4th
Cir. 2004) (“The ultimate question in every employment
discrimination case involving a case of disparate treatment is
whether the plaintiff was the victim of intentional
discrimination.”).
The Court finds no evidence in the record to
support the theory that Plaintiff was the victim of intentional
discrimination.
Plaintiff’s race “must have actually played a
role in the employer’s decision making process and had a
determinative influence on the outcome.”
quotation marks and citations omitted).
Id. (internal
Here, Plaintiff
complains of racially derogatory comments from the Lockheed
Martin employees.
But he cannot point to any evidence in the
record of racial animus on the part of Defendant, or any other
CSC employees.
Instead, the record is undisputed that Defendant had a
legitimate, non-discriminatory reason for terminating Plaintiff:
he created a hostile work environment for other employees, in
19
violation of company policy.
See, e.g., Asuncion v. Southland
Corp., 135 F.3d 769, at *2 (4th Cir. 1998) (per curiam) (holding
an employee’s termination for violating company policy regarding
cash register shortages was a legitimate, non-discriminatory
reason).
Plaintiff was terminated for violating Defendant’s
employee conduct policy, “HRMP 207,” which states that an
inability or unwillingness to work harmoniously with others may
result in disciplinary measures up to and including termination.
(Conduct Policy [Dkt. 37-1] Ex. A at 1.)
Plaintiff agreed to
follow this policy after accepting employment with Defendant.
(Pl.’s Dep. at 35.)
After receiving a formal complaint
regarding Plaintiff’s behavior, Defendant instigated a human
resources investigation, interviewing witnesses, including
Plaintiff.
Ultimately, Defendant concluded that Plaintiff
violated company policy and terminated him on this basis.
(Termination Letter [Dkt. 37-1] at 48.)
There is nothing in the
record now before the Court to create a genuine issue of
material fact in this regard.
Accordingly, Defendant is
entitled judgment as a matter of law on Count Two, because
Plaintiff fails to establish a prima facie case of race
discrimination, and alternatively, Defendant has offered a
legitimate reason for his termination.8
8
Even though there is no argument before the Court on pretext,
the Court alternatively finds that Plaintiff could not establish
20
C. Count Three: Title VII Retaliation
Third, Defendant claims it is entitled to judgment as
a matter of law on Plaintiff’s retaliation claim brought under
Title VII of the Civil Rights Act.
(Def.’s Mem. 12-14, 17-18.)
Defendant argues that Plaintiff did not reasonably believe he
was the subject of discrimination, nor did he report the
employees’ alleged racist comments.
(Id. at 12-14.)
Additionally, Defendant also argues that Plaintiff cannot show
he was terminated because of his alleged complaints of racial
harassment.
(Id. at 17-18.)
Plaintiff’s claims under Count Three stem from his
alleged protected conduct, i.e., his complaints to supervisors
about “problem employees cursing management, including Lee[,]
and using racial insults and slurs.”
(Compl. ¶ 111.)
To
survive summary judgment, Plaintiff must satisfy a prima facie
case of retaliation: (1) Plaintiff engaged in a protected
activity; (2) Defendant acted adversely against him or
terminated his employment; and (3) there was a causal connection
pretext. See, e.g., Goldberg v. B. Green & Co., Inc., 836 F2d
845, 848 (4th Cir. 1988) (holding on summary judgment, the Court
is not required to accept conclusory assertions regarding an
employee’s own state of mind, motivations, or perceptions
regarding the employment actions at issue). It is not for the
Court to determine whether an employer’s decision to terminate
an employee was wise or fair, but only whether it was unlawful,
and that the reason given for the termination was the true
reason. Mercer v. Arc of Prince George’s Cnty., Inc., 532 F.
App’x 392, 399 (4th Cir. July 11, 2013) (quoting Laing v. Fed.
Exp. Corp., 703 F.3d 713, 722 (4th Cir. 2013)).
21
between the protected activity and the asserted adverse
employment action.
Hoyle v. Freightliner, LLC, 650 F.3d 321,
337 (4th Cir. 2011) (citing Holland v. Washington Homes, Inc.,
487 F.3d 208, 218 (4th Cir. 2007)).
Again,9 just like for Count
Two, if a prima facie case is established, the burden shifts to
Defendant to offer a legitimate reason for the termination, and
if satisfied, the burden ultimately shifts back to Plaintiff to
demonstrate pretext.
Id.
Because there is no genuine issue of
material fact as to any element of this prima facie case,
Defendant is also entitled to judgment as a matter of law as to
Count Three in Plaintiff’s Complaint.
Alternatively, for the
reasons discussed above, Defendant advances a legitimate reason
for Plaintiff’s termination.
In short, judgment as a matter of law on Count Three
in Defendant’s favor is appropriate because Plaintiff did not
engage in protected conduct.
Stated differently, he did not
report any concerns of race discrimination to his supervisors
but instead reported racist remarks that he overheard from the
Lockheed Martin employees.
Specifically:
Q. Did you ever report any concerns of race
discrimination?
A. To?
Q. To anyone at CSC?
9
Just as for Count Two, without any direct or circumstantial
evidence in the record, the Court proceeds under this framework.
22
A. No.
(Pl.’s Dep. at 146.)
This admission is fatal to Plaintiff’s
retaliation claim under Title VII.
See, e.g., Jordan v. Alt.
Res. Corp., 458 F.3d 332, 341-42 (4th Cir. 2006) (“[E]mployers
are not liable . . . if the harassed employee has unreasonably
refused to report or has unreasonably waited many months before
reporting a case of actual discrimination.”) (citing Barrett v.
Applied Radiant Energy Corp., 240 F.3d 262, 267-68 (4th Cir.
2001); Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261,
269-70 (4th Cir. 2001)).
Even when Plaintiff told Mercado about
the racist comments, Mercado immediately called a team meeting
and addressed the issue.
Nothing further was done, and
Plaintiff “wasn’t going to worry about it.”
151.)
(Pl.’s Dep. at
There is no evidence in the record that establishes an
objectively reasonable conclusion that such remarks altered the
conditions of Plaintiff’s employment.
341).
See Jordan, 458 F.3d at
Accordingly, on this basis alone, there is no genuine
issue of material fact and Defendant is entitled to judgment as
a matter of law on Count Three.
Furthermore, similar to Count One, the Court need not
address the additional elements of the prima facie case of
retaliation under Title VII.
But there is no evidence in the
record to support or show the requisite causal connection
23
between Plaintiff’s alleged complaints and his ultimate
termination.
See, e.g., Holland v. Washington Homes, Inc., 487
F.3d 208, 218 (4th Cir. 2007) (holding Plaintiff “must be able
to show that [Defendant] fired him because the plaintiff engaged
in a protected activity,” i.e., he complained about disparate
treatment or racial discrimination).
V. Conclusion
For the foregoing reasons, the Court will grant
Defendant’s motion for summary judgment and enter judgment in
the Defendant’s favor.
An appropriate Order shall issue.
February 24, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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