Parker v. Golden Peanut, LLC

Filing 72

MEMORANDUM OPINION AND ORDER. Defendant's 47 Motion for Summary Judgment is DENIED. The Clerk is DIRECTED to send a copy of this Memorandum Opinion and Order to Plaintiff and to counsel for Defendants, and to set a date for the Final Pretrial Conference and the trial of the case. Signed by Chief District Judge Rebecca Beach Smith on 7/15/2015. Copies mailed 7/15/2015.(jmey, )

FILED
UNITED

STATES

EASTERN

DISTRICT

DISTRICT

OF

COURT

JUL 1 5 2C15

VIRGINIA

Norfolk Division

CLERK, US DISTRICT COURT
NORFOLK. VA
STEVEN VERNARD

PARKER,

Plaintiff,
v.
GOLDEN

ACTION NO.
PEANUT,

2:13cv617

LLC,
Defendant.

MEMORANDUM

OPINION

AND

ORDER

This matter comes before the court on the Motion for Summary
Judgment and accompanying Memorandum in Support filed by Defendant
Golden Peanut,

LLC ("Defendant").

Plaintiff Steven Vernard Parker

("Plaintiff") filed an Opposition to Defendant's Motion for Summary
Judgment and Defendant filed a Reply.

The matter is ripe for review.

For the foregoing reasons, Defendant's Motion for Summary Judgment
is

DENIED.

I.

In

August

of

Reliance Staffing.

Factual and Procedural History

2009,
Decl.

Plaintiff
of

applied

Stephanie Lamb

for

employment

with

("Lamb Decl.")

f 5,

attached as Ex. D to Def.'s Mem. of Law in Supp. of Summ. J; Parker
Dep. at 14, excerpts attached as Ex. A. to Def's Mem. of Law in Supp.

of

Summ.

J.

Reliance

Staffing provides

companies in the Hampton Roads area.

temporary employees

Lamb Decl.

^ 3.

to

Defendant is a sheller and processor of peanuts and peanut

products.

Decl. of Mark David Baker ("Baker Decl.") 1 3, attached

as Ex. J to Def.'s Mem. of Law in Supp. of Summ. J.

Plaintiff was

assigned to work as a temporary equipment operator at Defendant's

facility on or about September 25, 2009.
U 1; Parker Dep. at 25.

Lamb Decl. 1 8; Am. Compl.

Mr. Mark David Baker was Plaintiff's direct

supervisor while Plaintiff was assigned to Defendant's facility.

Am. Compl. H 4; Parker Dep. at 26.

Plaintiff claims that from January

25, 2010 through January 7, 2011, he suffered racial harassment at

work.

Am. Compl. 1M 2, 4.

In his deposition, Plaintiff testified:

A:
Well, Mr. Baker referred to myself, as well
as other employees and regular citizens, in my
presence, by different terminology as far as the one that I witnessed and they were used on
me were "black ass."
"Nigger."
Appeared to
use the terminology "black bitches" referring
to African-American women.
"Black monkeys" as
far as myself and other employees, and "sand
niggers"
in
reference
to
store
owners,
convenience store owners.

Parker Dep. at 27, excerpts attached as Ex. 2 to PL's Mem. of Law

in Opp. to Summ. J.

times

Mr.

depended.

Plaintiff could not recall the exact number of

Baker used

the

term

"black ass,"

but

testified,

"It

If Mr. Baker had been drinking that day, it was more so

than when he wasn't drinking."

Id. at 29.

Plaintiff claims that he confronted Mr. Baker about his use of

discriminatory racial terms on three occasions.

Id. at 34.

The

first

complaint

occurred

in

2010

after

Mr.

Baker

told

a

few

African-American employees, who were sitting down on the job, to "get
their

black

asses

up

and

get

back

to

work."

Id.

Plaintiff

testified:

A:
... So I asked Mr. Baker - I actually went
up to him and talked to him and informed him this
is a workplace and he should be - he should
always carry himself in a professional manner.
Q:
What did he say?
A:
He said, if you don't like what I say,
there's the fucking door.
Id.

at

35.

Plaintiff claims that he complained a second time in 2010 after

Mr. Baker referred to an African-American employee, Darren, as a "big
black gorilla."
A:

Id.

...

Plaintiff testified:

And I

informed Mr.

Baker of Darren's

concerns about what he said to him.
Mr. Baker,
again, stated that if the black ass doesn't like

the way I talk, there is the freaking door.
always refer to that in that manner.
Id.

at

He

35-36.

Plaintiff claims that he complained to Mr. Baker a third time

in 2011.

Id. at 36-38.

Mr. Baker was upset that Plaintiff and

another employee, Derrick,

did not unload the contents of a truck

in a particular location.

Id. at 36. Plaintiff testified:

A: . . . [Mr. Baker] turned, in the presence of
- I think there were three truck drivers there

and myself and the gentleman Derrick,

and he

said, see, you can't get these black monkeys to
do shit right.

Id. at 36-37.
A:

Following the incident,

Plaintiff testified:

... Once the truck drivers left,

I went

to Mr. Baker and I explained to him not only did
he
owe us some apologies,
but we would
appreciate if he didn' t use those types of words
around

us

or

in

reference

to

me.

I

was

basically speaking for myself . Mr. Baker said,
look - it got to the point where I was coming
to him all of the time and asking him to stop
using - he said if I didn't like the fucking way
he was talking, there's the door.
All right.
I said to Mr. Baker, I said, you cannot fire me
for
asking
you
to
stop
using
those
terminologies.
He said, I'm not firing you; if
you walk out that door, you quit.
Id.

at

37-38.

Plaintiff claims that he was terminated by Mr. Baker on January
12, 2011, just days after his third complaint.
Mem.

of Law in Opp.

Plaintiff

to Summ.

J. at

1-2;

Am. Compl. %3; PL's
Parker Dep.

at

55-56.

testified:

A:

... Mr. Baker went in the office, came out,

came directly to me and asked me for the keys,
told me I no longer work there, I no longer work
for him at Golden Peanut.
I asked him again
why.
He said because I don't like - you don't
like the way I talk, you don't like the words
I use, you're telling me how to talk.
And I,

again, told him, you can't fire me for asking
you not to use those terminologies.
He told me
to get my black ass off the property before he
call [sic] the police.
That was it.
Parker Dep.

at 56.

Plaintiff filed a charge with the Equal Employment Opportunity
Commission ("EEOC") on January 24, 2011, alleging racial harassment,
discrimination and retaliation.

EEOC Charge, attached within Ex.
4

2 to PL's Mem.

in Opp.

to Summ. J.

Plaintiff received his Right

to Sue Letter from the EEOC on or about July 31, 2013.

Right to Sue, attached to Am. Compl.

Notice of

Plaintiff filed a pro se

Complaint against Defendant on October 9, 2013 and, after this court
granted leave,
2014.

Plaintiff filed an Amended Complaint on January 3,

In his Amended Complaint,

Plaintiff claims that Defendant

violated Title VII of the Civil Rights Act of 1964

("Title VII").

Specifically, Plaintiff claims that he was harassed and terminated
due to his race and that his termination was in retaliation for his

complaints about discrimination.

Am. Compl. H 5.

Defendant claims that it was not Plaintiff's "employer" and,
therefore, cannot be held liable for any alleged violations of Title
VII.

Defendant

asserts

that

"[d]uring

the

entire

time

that

[Plaintiff] was assigned to [Defendant], he remained an employee of
Reliance Staffing."
Plaintiff,
employer.

Def.'s Mem. of Law in Supp. of Summ. J. at 4.

on the other hand,

argues that Defendant was his

Plaintiff testified:
A:

. . .Ms. Lamb and Mr. Baker both told me that

I was considered full-time employment at Golden
Peanut.
Everything I did went through Mr.
Baker.
Mr. Baker turned in my timecards.
Every time I wanted a day off, I called Mr.
Baker.
Mr. Baker gave me the keys to the
facilities.

I

had

alarm

codes.

I

was

considered a trusted employee amongst Golden
Peanut.

Parker Dep. at 54.

Plaintiff claims that Defendant's "employer"

status is further supported by the fact that Mr. Baker and another

employee of Defendant,

Mr.

Bill Barrow,

approved two raises for

Plaintiff during his time spent working at Defendant's facility.
PL 's Mem. of Law in Opp. to Summ. J. at 1; Employee Assignment Report,
attached within Ex.

Regardless of

Plaintiff

was

2 to PL's Mem.

of Law in Opp.

its "employer" status,

never

racially

harassed

to Summ. J.

Defendant asserts that

during

his

tenure

with

Defendant and that "Mr. Baker never made racial slurs to [Plaintiff]

and he never made racial slurs in [Plaintiff's] presence."

Decl.

HH 8-9.

Baker

Defendant further claims that during Plaintiff's

placement with Defendant,

Plaintiff "never stated that he was the

victim of racial harassment or discrimination."

Id.

Defendant asserts that it was Plaintiff's performance problems
- not unlawful discrimination -

that served as the basis for its

decision to terminate Plaintiff's assignment with Defendant.

U 7.

Id.

Defendant claims that Plaintiff began to exhibit "serious

behavioral problems" in late December 2010.

Id. t5.

Specifically,

Defendant claims that Plaintiff operated a forklift in a reckless

manner and caused damage to Defendant's product and property.

id.

Defendant also claims that, on January 11, 2011, Plaintiff called

off from work, but left his work area with "a large broken sack of
peanuts with approximately 2200 pounds of peanuts littering the area,

broken pallets and generally an area that was left in disarray."
Lamb Decl. H 15.

The next day, Defendant asserts that "Mr. Baker

advised Plaintiff that his placement with Golden Peanut was being
terminated because of his failure to correct his severe performance

problems."

Baker Decl. H 7.

Plaintiff, however, disputes the existence of any performance
issues.

Plaintiff claims that he was a "trusted employee" and that

there were "[n]ever any complaints.

Dep. at 54.

Never any incidents."

Parker

With respect to the January 11, 2011, incident regarding

Plaintiff's work area,

Q:

Plaintiff testified:

On the day that you - your placement at

Golden Peanut
A:

was

terminated

-

Yes.

Q:
- did Mr. Baker confront you about the
condition of the facilities that you had been
working at A:

No.

Q:
- the day before?
A:
No.
There was never any mention of any
condition of any facilities to me.
Really?
Q:
A:

Id.

at

No.

55.

II.

A.

Standard of

Review

Summary Judgment Standard

Summary judgment is appropriate only when a court, viewing the
record as a whole and in the light most favorable to the nonmoving

party, determines that there exists "no genuine issue as to any

material fact and that the moving party is entitled to a judgment
as a matter of law."

Celotex Corp. v.

Catrett,

477 U.S.

317,

322

(1986); Fed. R. Civ. P. 56(a); see Seabulk Offshore, Ltd. v. Am. Home

Assur. Co. , 377 F.3d 408, 418 (4th Cir. 2004) .

The moving party has

the initial burden to show the absence of an essential element of

the nonmoving party's case and to demonstrate that the moving party
is entitled to judgment as a matter of law.

Honor v. Booz-Allen &

Hamilton, Inc., 383 F.3d 180, 185 (4th Cir. 2004); McLean v. Patten

Cmtys.,

Inc.,

U.S.

322-25.

at

332 F.3d 714,

718

(4th Cir.

When the moving party has met

2003); see Celotex,

477

its burden to show that

the

evidence is insufficient to support the nonmoving party's case, the
burden then shifts to the nonmoving party to present specific facts
demonstrating that there is a genuine issue for trial.

Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Honor, 383 F.3d at 185; McLean, 332 F.3d at 718-19.

Such facts must

be presented in the form of exhibits and sworn affidavits.

Celotex,

477 U.S. at 324; see also M&M Med. Supplies & Serv., Inc. v. Pleasant

Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993).

Failure by

a plaintiff to rebut a defendant's motion with such evidence on his

behalf will result in summary judgment when appropriate.

"[T]he

plain language of Rule 56(c) mandates the entry of summary judgment
. . . against a party who fails to make a showing sufficient to

8

establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial."

Celotex, 477 U.S. at 322.1
Although a court must draw all justifiable inferences in favor
of the nonmoving party, in order to successfully defeat a motion for
summary

judgment,

the

nonmoving

conclusory allegations,

party

must

"mere speculation,"

inference upon another,"

the

rely

on

more

than

the "building of one

"mere existence of

a scintilla of

evidence," or the appearance of "some metaphysical doubt" concerning
a material fact.

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252

(1986); Thompson v. Potomac Elec. Power Co., 312 F.3d 645,
Cir.

2002);

Tao of Sys.

Integration,

Inc.

v.

649 (4th

Analytical Servs.

Materials, Inc., 330 F. Supp. 2d 668, 671 (E.D. Va. 2004) .

&

Rather,

the evidence must be such that the fact-finder reasonably could find
for the nonmoving party.
B.

See Anderson, 477 U.S. at 252.

Statutory Basis and Burden of Proof

Title VII makes it unlawful for an "employer" to "discharge any
individual, or otherwise to discriminate against any individual with

respect

to

compensation,

terms,

conditions,

or

privileges

of

Amendments to the Federal Rules of Civil Procedure, which became
effective on December 1, 2010, moved the relevant language from
section (c)(2) of Rule 56 to its present location in section (a).

However, the advisory committee's note indicates that, despite these
amendments, " [t]he standard for granting summary judgment remains
unchanged." Fed. R. Civ. P. 56 advisory committee's note.

employment, because of such individual's race, color, religion, sex,
or

national

origin."

42

U.S.C.

§

2000e-2(a).

Title

VII

also

prohibits retaliation against an employee, making it unlawful for

"an employer to discriminate against any of his employees

because

[the employee]

has opposed any practice made an unlawful

employment practice by this subchapter,
charge,

testified,

. . .

assisted,

or because he has made a

or participated in any manner in an

investigation, proceeding, or hearing under this subchapter." Id.
§ 2000e-3(a).

To avert summary judgment, a plaintiff alleging discrimination

and retaliation pursuant to Title VII may proceed through two avenues

of proof. Diamond v. Colonial Life & Accident Ins. Co. , 416 F.3d 310,
318 (4th Cir. 2005)

(citing Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 284 (4th Cir. 2004)) . The plaintiff may present
"direct or circumstantial evidence that raises a genuine issue of

material fact as to whether an impermissible factor such as race
motivated

the

employer's

adverse

employment

decision."

Id.

Alternatively, the plaintiff may proceed under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
792

411 U.S.

(1973).

Under the

McDonnell Douglas burden-shifting framework,

the

court must first consider whether the plaintiff has established a

prima facie case of race-based discrimination.

10

McDonnell, 411 U.S.

at 802.

If the plaintiff fails to establish any of the essential

elements of a prima facie case of discrimination, the court must grant
summary judgment in favor of the defendant. Bryant v. Bell Atl. Md. ,
Inc., 288 F.3d 124,

133-35 (4th Cir. 2002). If, on the other hand,

the plaintiff establishes a prima facie case,
the defendant

to

the burden shifts to

articulate a non-discriminatory reason for the

difference in treatment. Bryant, 288 F.3d at 133.
articulates one or more such reasons,

If the defendant

the burden shifts back to the

plaintiff to demonstrate that the defendant's reasons were merely
a pretext for discrimination.
III.
A.

Id.
Analysis

"Employer" Status

Title VII prohibits unlawful discrimination by an "employer."

42 U.S.C. § 2000e-2(a) .

Courts have determined that, "to be subject

to liability under Title VII, a defendant must (1) fall within Title

VII's statutory definition of

Employer,'

and (2)

have exercised

substantial control over significant aspects of the compensation,
terms,

conditions,

or

privileges

of

plaintiff's

employment."

Magnuson v. Peak Tech. Servs., Inc., 808 F. Supp. 500, 507-08 (E.D.
Va.

1992)

In

(citations omitted).

determining

whether

an

employer-employee

relationship

exists for purposes of Title VII liability,

"courts draw from the

common law of agency definition of employee."

West v. MCI Worldcom,

11

Inc.,

205 F. Supp. 2d 531,

54 0 (E.D. Va. 2 002) .

The "key factor"

in the court's analysis is "the hiring party's right to control the

manner and means by which the product is accomplished."

Id. at 540

(citing Farlow v. Wachovia Bank of N.C., N.A., 259 F.3d 309, 213 (4th
Cir. 2001)).

In addition to this "key factor," the Fourth Circuit

also considers:

. . . the skill required;

the source of the

instrumentalities and tools;

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.
No one of these
factors

Farlow,

is determinative.

259 F.3d at 313.

Under Title VII, the term "employer" is defined as "a person
engaged in an industry affecting commerce who has fifteen or more

employees for each working day in each of twenty or more calendar

weeks in the current or preceding calendar year, and any agent of

such a person."

42 U.S.C.

§ 2000e(b).

Plaintiff's EEOC Charge

alleges that Defendant has "500 or More" employees and Defendant has
not challenged this assertion.

EEOC Charge, attached within Ex. 2

to PL's Mem. in Opp. of Summ. J.

Accordingly, Defendant' s liability

12

under

Title

control

VII

over

will

turn

significant

on

whether

aspects

it

of

"exercised

the

substantial

compensation,

conditions,

or privileges" of Plaintiff's employment.

808 F.Supp.

terms,

at 507-08.

Although most

Title

VII

cases

involve

Magnuson,

traditional,

single

employer situations, where the element of control is obvious, that
is not always the case.
"the

term

functional

*employer'

sense

to

Id. at 508.

This court has explained that

under Title VII

should be

'construed in a

encompass persons who are not

employers

in

conventional terms, but who nevertheless control some aspect of the

individual's
employment.'"

compensation,
Id.

terms,

conditions,

or

privileges

of

Such an approach "finds support in the broad

remedial purpose of Title VII which militates against the adoption
of a rigid rule strictly limiting 'employer' status under Title VII

to an individual's direct or single employer."

Id.

In Magnuson, the plaintiff filed a Title VII complaint against
her employer,

Peak Technical Services,

Inc.

("Peak").

Peak is a

staffing company "that provides employees to client corporations
pursuant to service contracts."

the plaintiff

also

filed

Id. at 504.

suit against

In addition to Peak,

the client

corporation,

Volkswagen of America ("Volkswagen"), with whom the plaintiff was
placed by Peak to work as a field marketing specialist.
the plaintiff received paychecks from Peak,

13

Id.

While

evidence existed to

support the plaintiff's claim that Volkswagen controlled her actual
work performance.

Id. at 508-09.

For example, Volkswagen defined

many of the plaintiff's job duties and responsibilities, provided
training,

received reports on the

plaintiff's work performance,

provided a supervisor for the plaintiff, and set the plaintiff's work
schedule.

Id.

Relying on Amarnare v. Merrill Lynch, Pierce, Fenner & Smith,

Inc. , 611

F.

Supp.

344

(S.D.N.Y.

1984),

a case holding that a

temporary services agency and a company that contracted with the
temporary services agency were both "employers" for purposes of Title

VII, the court in Magnuson denied Volkswagen's motion for summary
judgment.

The court determined that genuine issues of material fact

existed concerning Volkswagen's status as an "employer."

808 F.

Supp. at 509-11.

In West, 205 F. Supp. 2d 531, decided ten years after Magnuson,

this court again analyzed, for purposes of Title VII liability, the
"employer"

status

of

an entity that

utilized

staffing company to obtain temporary workers.

the

services of

a

The plaintiff was

hired by a staffing agency to work as a temporary contractor for MCI

Worldcom, Inc. ("MCI") .

West, 205 F. Supp. 2d at 532.

specialized in mainframe computer programming.
MCI

"did not provide

[plaintiff]

The plaintiff

Her supervisor at

with any directions as to how

[plaintiff] should complete the tasks assigned to her concerning her
14

COBOL work."

Id.

at 534.

Further,

the evidence established that

the plaintiff "largely relied on her own expertise to independently

perform and complete her assignments from [her other supervisor]."
Id.

Additionally,

evaluations,

the

counseling,

plaintiff

did

not

receive

coaching or training.

performance

The plaintiff was

paid by the staffing agency, not MCI, and MCI did not provide any
employee-related

benefits.

Id.

at

534,

540-41.

Further,

employment documents stated that the plaintiff was an employee of
the staffing agency,

not MCI.

Nevertheless,

MCI did require the

plaintiff to work during certain core hours and required all leave
to be approved by MCI.

Id. at 534, 542.

While the court found some

"indicia of control" on the part of MCI, it ultimately held that they
were insufficient to rise to the level of control necessary to be
considered an "employer" for Title VII purposes.

Id. at 542.

In the case at hand, several factors suggest that Defendant
should be deemed to be an "employer"

liability.

for purposes of Title VII

Plaintiff's job duties involved operating a forklift,

dump trucks, back hoes, Bobcats, riding lawnmowers, torches, welding
machines, and front-end loaders for Defendant.

Parker Dep. at 25.

Although Plaintiff may have previously developed an expertise in

operating the various pieces of equipment, and thus did not require
additional training from Defendant,

the coordination and movement

of Defendant's materials into the proper warehouses necessarily
15

would

require

Parker Dep.

significant

at 25,

Additionally,

direction

control

of

Defendant.

50.

Defendant's motion claims

"serious behavioral problems"

warnings."

and

Baker Decl. H 5.

that Plaintiff

had

that continued "[d]espite repeated

Defendant states that Mr. Baker "had

conversations with [Plaintiff] about not following instructions and

[Plaintiff's]

sloppiness

on

several

[Plaintiff] was being lazy in his work."
further stated that

sloppiness,

H 17.

occasions

Lamb Decl. H 16.

"he was not going to tolerate

and

that

Mr. Baker

[Plaintiff's]

insubordination, and laziness in doing his job."

Id.

Notably, the Employee Assignment Report states that Mr. Baker

"asks [Plaintiff]

his way."

Mem.

other

of

to follow direction and he is determined to do it

Employee Assignment Report, attached within Ex. 2 to Pi. 's

Law in Opp.

to

Summ.

J.

Defendant's

frustration with

Plaintiff's "failure to correct his severe job performance problems"
allegedly

served

as

the

basis

for

Plaintiff's placement with Defendant.

Defendant's

termination

Baker Decl.

H 7.

of

Each of

these facts suggests that Defendant sought to maintain a significant
level of control over the manner and means of Plaintiff's work.

Further, Plaintiff testified that he was told by Mr. Baker and

Ms.

Lamb that

Defendant.

he was

considered to be a full-time employee of

Parker Dep.

at

54.

Plaintiff

16

also

testified that,

" [e]verything I did went through Mr. Baker.
timecards.

Mr. Baker turned in my

Every time I wanted a day off, I called Mr. Baker."

Id.

Defendant points to several other factors that suggest that

"employer" liability should not exist.

For example, Plaintiff only

applied for employment with Reliance Staffing,

employee

policies

and

guidelines

from

Plaintiff received

Reliance

Plaintiff's wages were paid by Reliance Staffing,

Staffing,

and

not Defendant.

Parker Dep. at 14, 19-20; Lamb Decl. H 9.
Based on the facts detailed above, there exists a genuine issue

of material fact as to Defendant's status as Plaintiff's "employer"
for purposes of Title VII liability, thus precluding summary judgment
on this ground.
B.

Racial

Harassment

Claim

Plaintiff claims that he was harassed by Defendant because of

his race.

To establish a prima facie case of a racially hostile work

environment, Plaintiff must demonstrate that there was (i) unwelcome

conduct; (ii) based on his race; (iii) which was sufficiently severe
or pervasive to alter his conditions of employment and to create an

abusive working environment;
employer.

Harris

v.

and (iv) which is imputable to the

Forklift

Sys.,

510

U.S.

17,

21

(1993);

Boyer-Liberto v. Fontainebleau Corp. , No. 13-1473, 786 F. 3d 264, 2015
U.S. App. LEXIS 7557,

at *25-26 (4th Cir. May 7, 2015).

17

Notably,

in discussing the

Fourth Circuit recently stated:

"severe or pervasive"

test,

the

"As we and several of our sister

courts of appeal have recognized, '[p]erhaps no single act can more
quickly alter the conditions of employment and create an abusive
working environment than the use of an unambiguously racial epithet
such as 'nigger' by a supervisor in the presence of subordinates.'"
Boyer-Liberto,

2015 U.S.

App.

LEXIS 7557,

at

*34-35.

The Fourth

Circuit further recognized that "describing an African-American as

a 'monkey,' and thereby 'suggest[ing] that a human being's physical
appearance is essentially a caricature of a jungle beast[,] goes far
beyond the merely unflattering; it is degrading and humiliating in
the extreme.'"

Id.

at *34

(alterations in original)

(citations

omitted).

Plaintiff claims that he was racially harassed by Defendant from

January 25,

2010 through January 7,

2011.

Am.

Compl. UU 2,

4.

Plaintiff testified that his supervisor, Mr. Baker, called Plaintiff
and other employees derogatory names including "nigger" and "black
monkeys."

Parker Dep. at 27.

Defendant denies that Plaintiff was

racially harassed and denies that Mr. Baker ever made racial slurs

to Plaintiff; however, Defendant's summary judgment motion does not
otherwise

address

the

legal

elements

claim.

18

of

Plaintiff's

harassment

Through the pleadings and his deposition, Plaintiff has raised

genuine

issues

of

harassment claim.

material

facts

with

respect

to

his

racial

Although Defendant denies Plaintiff's factual

assertions, this court cannot make determinations of credibility at
the summary judgment stage.

Ferrell v. Harris Ventures, Inc., 812

F. Supp. 2d 741, 746 (E.D. Va. 2011) .

Accordingly, summary judgment

is inappropriate for Plaintiff's racial harassment claim.
C.

Discriminatory Termination Claim

Plaintiff claims that he was terminated by Defendant because

of his race.

Am. Compl 11 5.

To establish a prima facie case of

discrimination based on disparate treatment,

Plaintiff must show

that (i) he is a member of a protected class,- (ii) he had satisfactory
job performance; (iii) he suffered an adverse employment action; and

(iv) he was treated differently than similarly situated employees
outside of his protected class.
626 F.3d 187,

190

(4th Cir.

Coleman v. Md. Court of Appeals,

2010).

It is uncontested that Plaintiff is a member of a protected
class.

employee"

Further,

Plaintiff

testified

that

he

was

who never experienced any "complaints"

while working at Defendant's
Additionally,

Plaintiff

facility.

testified

that

"trusted

or "incidents"

Parker Dep.
Mr.

a

Baker

at

54-55.

terminated

Plaintiff from his assignment with Defendant and, in doing so, told
Plaintiff to get his "black ass off the property."

19

Id. at 55-56.

Defendant

claims

that

summary

judgment

is

warranted

on

Plaintiff's discriminatory termination claim because (i) Plaintiff
was

not

performing

expectations,
action,

at

a

level

that

met

Defendant's

legitimate

(ii) Plaintiff did not suffer an adverse employment

as he remained employed by Reliance Staffing,

and

(iii)

Plaintiff cannot rebut Defendant's nondiscriminatory reason for the

assignment termination (i.e., the performance issues).
Plaintiff's job performance is clearly disputed by the parties.
Defendant claims that Plaintiff's poor job performance necessitated
his termination, while Plaintiff asserts that his job performance
was

never

questioned.

credibility
Ferrell,

are

As

noted

inappropriate

above,

such

the

summary

at

determinations

judgment

of

stage.

812 F. Supp. 2d at 746.

Further, a plaintiff may suffer an adverse employment action
"without showing that he was subjected to an 'ultimate employment
decision,'
v.

Goss,

i.e., a firing,
365

F.

Supp.

layoff, or failure to promote."

2d 713,

722

(E.D.

Va.

2005) .

As

Peary
such,

Defendant's argument regarding the lack of an adverse employment
action is unavailing.

For

these

reasons,

summary

judgment

Plaintiff's discriminatory termination claim.

20

is

inappropriate

on

D.

Retaliation Claim

To establish a claim of retaliation under Title VII, Plaintiff

must show that (i) he engaged in protected activity; (ii) his employer

acted adversely against him; and (iii) there was a causal connection
between the protected activity and the adverse action.
Fed.

Credit Union,

Defendant

424 F.3d 397,

argues

that

406

(4th Cir.

Plaintiff's

EEOC v. Navy

2005).

retaliation

claim

fails

because Plaintiff "concedes that he did not tell anyone at Reliance

Staffing

about

the

alleged

temporary assignment at

racial

harassment

until

after

his

[Defendant] had already been terminated."

Def. 's Mem. in Supp. of Mot. for Summ. J. at 17.

Defendant's argument

misperceives the basis of Plaintiff's retaliation claim.

Plaintiff

testified

that,

on

three

separate

occasions,

Plaintiff complained to his supervisor, Mr. Baker, regarding his use

of racially discriminatory language in the workplace.
at 34-38,

55-56.

Parker Dep.

Complaints to a supervisor regarding the use of

racial slurs and discriminatory language can constitute "protected
activity" under Title VII.
Plaintiff

further

claims

that

he

was

terminated

from

his

placement at Defendant's facility by Mr. Baker days after his third

complaint.
at

1-2;

Am. Compl. H 3; PL's Mem. of Law in Opp. to Summ. J.

Parker Dep.

at

55-56.

Such assignment

termination can

constitute an adverse action for purposes of a retaliation claim.

21

See Shetty v. Hampton Univ.,

No.

4:12cvl58,

2014 U.S. Dist. LEXIS

9880, at *40 (E.D. Va. Jan. 3, 2014)(noting that the adverse action
required for a retaliation claim "need not be an ultimate employment
decision, but must be 'materially adverse,' meaning 'it might well
have dissuaded a reasonable worker from making or supporting a charge
of discrimination'")

(citations omitted).

Finally, Plaintiff testified that, upon inquiry as to the reason

for his termination, Mr. Baker stated: "because I don't like - you
don't like the way I talk, you don't like the words I use, you're
telling me how to talk."

Parker Dep. at 56.

Plaintiff's testimony,

if believed, provides support for a causal link between Plaintiff's

complaints and his termination.
Defendant also argues that Plaintiff s retaliation claim cannot

survive

summary

[Defendant's]
placement."
Defendant

judgment

because

non-retaliatory
Def. 's

claims

performance issues,

and unsafe manner

Mem.

that

Plaintiff

reason

in Supp.

of

Plaintiff

for
Mot.

was

ending

"cannot

his

for Summ.

terminated

rebut

temporary
J.

at

18.

because

of

including operating a forklift "in a reckless

causing damage

to

property despite repeated warnings."

the

Company's

product

and

Id.

As noted above, Plaintiff denies the existence of performance
problems and testified that he was never the subject of complaints
or incidents while working at Defendant's facility.

22

Parker Dep. at

54.

Plaintiff further denied that there were any problems with his

work area on the day before his assignment was terminated.

Id. at

55.

Accordingly, the court finds that genuine disputes of material
facts

exist

that

preclude

summary

judgment

on

Plaintiff's

retaliation claim.
IV.

Conclusion

For the foregoing reasons,

Defendant's Motion for Summary

Judgment is DENIED.

The Clerk is DIRECTED to send a copy of this Memorandum Opinion
and Order to Plaintiff and to counsel for Defendant, and to set a

date for the Final Pretrial Conference and the trial of the case.
IT IS

SO ORDERED.

/S/

m-

Rebecca Beach Smith

July |$ , 2015

Chief Judge

23