Crawford et al v. Newport News Industrial Corporation

Filing 322

ORDER adopting and approving 294 Magistrate Judge's Report and Recommendations; adopting and approving 296 Magistrate Judge's Report and Recommendations; granting 109 Motion for Summary Judgment on Plaintiff Anthony Alvarez; grantin g in part and denying in part 111 Motion for Summary Judgment on Plaintiff Ian Blow; granting in part and denying in part 115 Motion for Summary Judgment on Plaintiff Ernest Chesson; granting in part and denying in part 117 Motion for Summ ary Judgment on Plaintiff Marchello Fields; granting 119 Motion for Summary Judgment on Plaintiff Willie Kershaw; granting 121 Motion for Summary Judgment on Plaintiff Derek Cross; granting in part and denying in part 123 Motion for Summary Judgment on Plaintiff Ronald Valentine; granting in part and denying in part 125 Motion for Summary Judgment on Plaintiff Jonathan Dantes; granting in part and denying in part 129 Motion for Summary Judgment on Plaintiff Franz Edouard; granting in part and denying in part 131 Motion for Summary Judgment on Plaintiff Reggie Holliman; granting in part and denying in part 133 Motion for Summary Judgment on Plaintiff Lamar Holloman; granting in part and denying in part 135 Motion for Summary Judgment on Plaintiff Alfred Joyner, Jr.; granting in part and denying in part 139 Motion for Summary Judgment on Plaintiff Willie Nichols; granting in part and denying in part 141 Motion for Summary Judgment on Plaintiff Robert Robinso n; granting in part and denying in part 143 Motion for Summary Judgment on Plaintiff Roderick Waddell, Sr.; granting in part and denying in part 145 Motion for Summary Judgment on Plaintiff Brandon Walker; granting in part and denying in part [ 147] Motion for Summary Judgment on Plaintiff Richard Bostic; granting 149 Motion for Summary Judgment on Plaintiff Herbert Broughton; granting in part and denying in part 151 Motion for Summary Judgment on Plaintiff Steven Gordon; granting in part and denying in part 153 Motion for Summary Judgment on Plaintiff Chris Payton; granting in part and denying in part 155 Motion for Summary Judgment on Plaintiff Dennis Smith; granting in part and denying in part 159 Motion for Summary Judgment on Plaintiff David Swain; granting 161 Motion for Summary Judgment on Plaintiff Gilbert Wiltz; granting in part and denying in part 163 Motion for Summary Judgment on Plaintiff Mark Barnett; granting in part and denying in part 165 Motion for Summary Judgment on Plaintiff Jamesina Crawford; granting 167 Motion for Summary Judgment on Plaintiff John Harris; granting 169 Motion for Summary Judgment on Plaintiff Tourke Hooker; granting 171 Motion for Summary Judgment on P laintiff Donyelle Pierce; granting in part and denying in part 173 Motion for Summary Judgment on Plaintiff Theo Pierce; granting 175 Motion for Summary Judgment on Plaintiff Lamarr Joyner; granting in part and denying in part 177 Motion for Summary Judgment on Plaintiff Ronald Stewart; granting 181 Motion for Summary Judgment on Plaintiff Roderick Waddell, Jr. NNI's Motions for Summary Judgment regarding Anthony Alvarez (ECF No. 109), Willie Kershaw (ECF No. 119), Derek Cros s (ECF No. 121), Herbert Broughton (ECF No. 149), Gilbert Wiltz (ECF No. 161), John Harris (ECF No. 167), Tourke Hooker (ECF No. 169), Lamarr Joyner (ECF No. 175), Roderick Waddell, Jr. (ECF No. 181) and Donyelle Pierce (ECF No. 171) are GRANTED. By this Final Order as to these Plaintiffs, their actions are DISMISSED WITH PREJUDICE. Signed by District Judge Arenda L. Wright Allen and filed on 6/11/18. (tbro)

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

JAMESINA CRAWFORD,et al.
Plaintiffs,
Civil No. 4:14cvl30
NEWPORT NEWS INDUSTRIAL

CORPORATION,
Defendant.

ORDER

A Second Amended Complaint was filed in this Court on May 4, 2015, in which a total
of thirty-eight Plaintiffs filed suit against Defendant Newport News Industrial Corporation
("NNI").

The Second Amended Complaint asserts various claims of employment

discrimination, retaliation, and hostile work environment by welders, fitters, and laborers
employed at or by NNI. ECF No. 15.

On January 5, 2016, the parties stipulated to the dismissal of one Plaintiff. ECF No. 56.

Defendant NNI subsequently filed separate Motions for Summary Judgment against the
remaining thirty-seven Plaintiffs. This Order addresses NNI's Motions for Summary Judgment
against thirty-two plaintiffs: Anthony Alvarez(ECF No. 109); Ian Blow (ECF No. Ill); Ernest
Chesson (ECF No. 115); Marchello Fields (ECF No. 117); Willie Kershaw (ECF No. 119);
Derek Cross(ECF No. 121); Ronald Valentine(ECF No. 123); Jonathan Dantes(ECF No. 125);
Franz Edouard (ECF No. 129); Reggie Holliman (ECF No. 131); Lamar Holloman (ECF No.

133); Alfred Joyner, Jr.(ECF No. 135); Willie Nichols(ECF No. 139); Robert Robinson (ECF

No. 141); Roderick Waddell, Sr. (ECF No. 143); Brandon Walker (ECF No. 145); Richard
Bostic(ECF No. 147); Herbert Broughton(ECF No. 149); Steven Gordon(ECF No. 151); Chris

Payton(ECF No. 153); Dennis Smith(ECF No. 155); David Swain(ECF No. 159); Gilbert Wiltz
(ECF No. 161); Mark Bamett(ECF No. 163); Jamesina Crawford (ECF No. 165); John Harris
(ECF No. 167); Tourke Hooker (ECF No. 169); Donyelle Pierce (ECF No. 171); Theo Pierce

(ECF No. 173); Lamarr Joyner (ECF No. 175); Ronald Stewart (ECF No. 177); and Roderick
Waddell, Jr.(ECF No. 181)(collectively for purposes ofthis Order, referred to as "Plaintiffs").
These motions were referred to a United States Magistrate Judge pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States
District Court for the Eastern District of Virginia for report and recommendation (the "Report").

The Magistrate Judge issued the Report addressing these Plaintiffs on February 26, 2018 and
March 2,2018. ECF Nos. 294, 296. By copy ofthe Report, each party was advised of the right
to file written objections to the findings and recommendations made by the Magistrate Judge. Id,
Parties sought and were granted extensions before filing multiple objections to the Report on
April 13,2018. ECF Nos. 317, 318.
The Court has reviewed the full record and has carefully examined the objections filed.

The Court has undertaken specific review of the recommendations, and makes de novo findings
with respect to the portions of the recommendations to which these Plaintiffs object. Fed. R.
Civ. P. 72(b)(3).

In performing these responsibilities this Court may "accept, reject or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions." Id.\ see also Prototype Prods, v. Reset, Inc.., 844 F. Supp. 2d 691,696(E.D.
Va. 2012)(reviewing courts have "the discretion to consider new evidence").

The Court proceeds with evaluating the Reports, and considering the parties' objections
to the Reports' specific recommendations. The following evaluations and analyses are organized
by identifying and examining each kind of claims that has been advanced by Plaintiffs. The

analysis begins with hostile work environment claims.'
I.

HOSTILE WORK ENVIRONMENT CLAIMS
1.

LEGAL STANDARDS

A plaintiff claiming discrimination based on a hostile work environment in violation of
42 U.S.C. § 1981 must demonstrate four elements: (1) that the plaintiff was subjected to
unwelcome harassment;(2)that the harassment was the result of the plaintiffs race or national

origin; (3) that the harassment was sufficiently severe or pervasive to alter the conditions of

employment and create an abusive atmosphere; and (4) that the harassment is imputable to the

employer. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 308,314(4th Cir. 2006).^
The third element listed above ("sufficiently severe harassment") contains both subjective

and objective components. "[T]he plaintiff must show that [he or she] subjectively perceive[d]
the environment to be abusive." Id. at 315 (internal quotation marks and citations omitted).

"Next, the plaintiff must demonstrate that the conduct was such that a reasonable person
in the plaintiffs position would have found the environment objectively hostile or abusive." Id.
To assist in the inquiry related to the objective component, courts look to the totality of the
circumstances, and consider the following factors: the frequency of the allegedly discriminatory

conduct; the severity; whether the conduct was physically threatening or humiliating, or merely

'This analysis addresses the claims in the foilowing order: hostile work environment claims;
disparate treatment claims, termination and constructive discharge claims, retaliation claims, medical
leave claims and gender discrimination claims.

^ The elements of a hostile work environment claim under § 1981 or Title VII are the same, and
courts look to Title VII cases when considering a hostile work environment claim under § 1981. Gairola
V. Va. Dep't ofGen. Servs., 753 F.2d 1281, 1285(4th Cir. 1985).

consisted of offensive utterances; and whether the conduct reasonably interfered with an

employee's workplace performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The
bar for establishing an objectively hostile work environment is high; to be actionable, "the
harassing conduct must be [so] extreme [as] to amount to a change in the terms and conditions of
employment." Sunbelt Rentals, 521 F.3d at 315 (quoting Faragher v. City ofBoca Raton, 524
U.S. 775,788(1998)).

By contrast,"simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of employment."

Faragher, 524 U.S. at 788.^ Furthermore, a plaintiff must show that but for the plaintiffs
protected characteristic, he or she would have not been a victim of the alleged discrimination.

Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).
The Fourth Circuit has recognized that "frequent and highly repugnant insults" directed
specifically towards African Americans far exceed the type of"mere offensive utterances" that
might otherwise fail to establish the third element. Spriggs v. Diamond Auto Glass, 242 F.3d

179, 185 (4th Cir. 2001). "Perhaps no single act can more quickly alter the conditions of
employment and create an abusive working environment than the use of an unambiguously racial

^ In Sunbelt Rentals, the United States Court of Appeals for the Fourth Circuit reversed the
district court's decision to grant summary judgment to an employer where a Muslim plaintiff had
demonstrated that he had suffered religious harassment that was "persistent, demeaning, unrelenting, and
widespread," all of which was heightened by the political climate directly following the terrorist attacks
that occurred on September 11, 2001. 521 F.3d at 316 (internal citations and quotations omitted). Such
harassment included daily comments by co-workers referring to the plaintiff in "harshly derogatory
terms," such as "Taliban" and "towel head;" a co-worker informing the plaintiff that he objected to the
plaintiff leaving his desk to pray; threats with respect to the plaintiffs prayers; his co-workers hiding his
timecard on the days he went to congregational prayer; and disparaging religious comments in general,
/i/. at 316-18.

The plaintiff also presented evidence suggesting that he was the subject of workplace pranks—
including unplugging his computer equipment and defacing his business card—^that, while not bearing a
direct religious nexus, occurred more frequently to him because of his religion. Id. at 318. The Fourth
Circuit recognized that although such incidents in isolation would have been insufficient to transform the
workplace into a hostile and abusive one, the habitual nature of such abuse was enough to create a triable
issue. Id.

epithet... by a supervisor in the presence of his subordinates." Id. (quoting Rodgers v. Western-

Southern Life Ins. Co.., 12 F.3d 668,675 (7th Cir. 1993)).
The status of the harasser is relevant to an assessment of the fourth element(determining
whether "the harassment is imputable to the employer"). "An employer is liable for harassment
by the victim's coworkers only 'if it knew or should have known about the harassment and failed

to take effective action to stop it.'" Sunbelt Rentals, 521 F.3d at 319 (quoting Howard v. Winter,
446 F.3d 559,565 (4th Cir. 2006)). "Knowledge of harassment can be imputed to an employer if
a reasonable person, intent on complying vdth Title VII, would have known about the
harassment." Id. (internal citation omitted). "Once the employer has notice, then it must
respond with remedial action reasonably calculated to end the harassment." Id. (internal citation

and quotation omitted). The Fourth Circuit has held that verbal and written complaints, coupled
with an employer's failures to take reasonable corrective action, are sufficient to establish the
fourth element. M at 319-320."^
There must be "some nexus between the harassment and the tangible employment action

for the latter to be actionable." Dulaney v. Packaging Corp. ofAm.,673 F.3d 323, 328 (4th Cir.
2012). If the harasser was the victim's supervisor, the employer is strictly liable if the harassing
behavior culminates in a tangible employment action, such as "hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant
change in benefits." Burlington Indus, v. Ellerth, 524 U.S. 742, 761 (1998).

Where a supervisor's harassment does not involve a tangible employment action against
the plaintiff, an employer may nevertheless be "subject to vicarious liability to a victimized

^ "If the harassing employee is the victim's co-worker, the employer is liable only if it was
negligent in controlling working conditions." Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).
"Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to
provide a system for registering complaints, or effectively discouraged complaints from being filed would
be relevant." Id. at 2454.

employee for an actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee." Faragher, 524 U.S. at 807. In situations

where no tangible employment action is taken,"a defending employer may raise an affirmative

defense to liability or damages." Id;see also Ellerth, 524 U.S. at 765.^
This defense encompasses two elements, each of which must be proven by a
preponderance of the evidence.

First, the employer must demonstrate that it "exercised

reasonable care to prevent and correct promptly any . . . harassing behavior." Brown v. Perry,
184 F.3d 388, 390 (4th Cir. 1999) (internal citations omitted). Second, the employer must
establish "that the plaintiff employee unreasonably failed to take advantage of any preventative
or corrective opportimities provided by the employer to avoid harm otherwise." Id.

The Fourth Circuit has held that "dissemination of 'an effective anti-harassment policy
provides compelling proof that an employer has exercised reasonable care to prevent and correct
. . . harassment." Matvia v. Bald Head Island Management, Inc., 259 F.3d 261, 268 (4th Cir.
2001)(internal citations omitted). "[WJhere ... there is no evidence that an employer adopted or

administered an anti-harassment policy in bad faith or that the policy was otherwise defective or
dysfunctional, the existence of such a policy militates strongly in favor of the conclusion that the
employer 'exercised reasonable care to prevent' and promptly correct harassment." Brown, 184
F.3d at 396 (internal citations omitted). However, the mere existence of an anti-harassment

policy does not by itself permit an employer to escape liability, because "the policy must be
effective in order to have meaningful value." Sunbelt Rentals, 521 F.3d at 320(intemal citations

omitted). Where harassment continues "unabated" even after an employer has been made aware
of it, "the existence of a policy might still leave a jury unconvinced that [the employer] worked
in a serious fashion to combat[] rampant harassment...." Id.

^ This defense is known as the Faragher-Ellerth defense. See Dulaney,673 F.3d at 328.

Although a court must focus primarily on a plaintiffs "personal experience," Honor v.
Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190 (4th Cir. 2004), comments made to others are

also "relevant to determining whether [an individual plaintiff] was subjected to" severe or

pervasive harassment. Jennings v. Univ. ofN.C., 482 F.3d 686, 694 (4th Cir. 2007)(en banc).
Courts recognize that when evaluating whether a workplace environment is hostile, "whatever
the contours of one's environment, they surely may exceed the individual dynamic between
complainant and his [supervisors or co-workers]." Spriggs, 242 F.3d at 184.
2.

ANALYSIS

A.

Parties Have Not Objected to the Report's Findings Regarding Fourteen PlaintifFs

The Report concluded that material facts are in dispute and recommended denying

summary judgment to NNI as to hostile work environment claims from plaintiffs Ian Blow;
Ronald Valentine; Frantz Edouard; Reggie Holliman; Lamar Holloman; Alfred Joyner, Jr.;
Willie Nichols; Roderick Waddell, Sr.; Brandon Walker; Richard Bostic; Dennis Smith; David

Swain; Theo Pierce; and Ronald Stewart. No objections have been presented regarding these

findings and conclusions. See ECF No. 316 at 3, 34-56; ECF No. 317 at 2. Accordingly, the
Court reviewed these findings for clear error.

Finding none, the Court ADOPTS AND

APPROVES the findings contained in the Report, ECF No. 296, 13-14, 16-22, 24, 27-28, 2942, as to these Plaintiffs, and DENIES NNI's Motions for Summary Judgment as to these
Plaintiffs' hostile work environment claims. ECF Nos. Ill, 123, 129, 131, 133, 135, 139, 143,
145,147,155,159, 173,177.
B.

Other Plaintiffs: Anthonv Alvarez

Mr. Alvarez's claims of a hostile work environment arise from allegations about (1)
Supervisor Wayne Jackson's differing treatment of white and minority workers; (2) Mr.
Alvarez's observation of racist graffiti concerning Afncan Americans and Confederate flags in
7

the work environment; and (3) another employee's report to Mr. Alvarez regarding the

observation of a possible noose displayed in the building. ECF No. 110

12, 28-29. The

Report concluded that material facts are in dispute, and recommended denying summary
judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing
that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.
Mr. Alvarez's claims regarding Supervisor Jackson's allegedly preferential treatment of

white workers fail to establish that Supervisor Jackson's actions were tantamount to unwelcome
harassment based on Mr. Alvarez's national origin or race, and that they were sufficiently severe

to alter the conditions of employment. With respect to Mr. Alvarez's claims concerning
supervisor Jackson's assignment of menial tasks, a Caucasian employee testified that he

performed the same tasks. ECF No. 110 ^ 17. With respect to Mr. Alvarez's claims concerning
the supervision of employees' breaks, this Court concludes that no reasonable jury could find
that such actions were severe or pervasive enough to alter the conditions of employment. See
Sunbelt Rentals, 521 F.3d at 316.

The Court next considers Mr. Alvarez's assertions of racist graffiti directed against

Afncan Americans and Confederate flags, and another's employee's observation of a noose. Mr.
Alvarez has failed to establish a viable harassment claim because these allegations are unrelated

to Mr. Alvarez's race (half Hispanic, half Caucasian). Mr. Alvarez cannot satisfy the second
element of a hostile work environment claim. ECF No. 110 T| 7; see Childress v. City of
Richmond, Va., 134 F.3d 1205, 1207 (4th Cir. 1998). There is no dispute of genuine material
fact remaining as to Mr. Alvarez's hostile work environment claim.

Accordingly, the Court

SUSTAINS NNI's objections as to this claim, and GRANTS summary judgment to NNI. ECF
No. 109.

C.

Ernest Chesson

Mr. Chesson claims that his supervisors subjected him to unwelcome harassment on the

basis of his race by speaking down to him and his African American co-workers and ridiculing
him. Mr. Chesson was also told he would be put on a list for forklift certification, but no list

existed. Two white employees were nevertheless given the opportunity to obtain forklift
certification. ECF No. 296 at 14; see also ECF No. 202-1, Ex. 6.

The Report concluded that material facts are in dispute and recommended denying

summary judgment to NNI.

ECF No. 296 at 39.

NNI objected to the Report's

recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No.
316 at 34.

It is unclear whether denial of an opportunity for forklift certification amounts to a

tangible employment action with a nexus to the alleged harassment. See Ellerth, 524 U.S. at
761. In Vance, 570 U.S. at 437 n.9, the Supreme Court noted that a supervisor's ability to assign
an employee significantly different work responsibilities "may have constituted a tangible

employment action." If the action has "economic consequences, such as foreclosing [an
employee's] eligibility for promotion, then it might constitute a tangible employment action."
Id. Accordingly, the Court OVERRULES NNI's objections as to this claim, and DENIES
summaryjudgmenttoNNI. ECF No. 115.
D.

Marchello Fields

Mr. Fields claims race-based harassment by his supervisors. ECF No. 296 at 15; see also

ECF No. 202-1, Ex. 12.

The Report concluded that material facts are in dispute and

recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the
Report's recommendations, arguing that the Report erroneously relied on "me too" evidence.
ECF No. 316 at 34.
9

Mr. Fields has failed to establish either a tangible employment action against him by his
supervisors, or that he ever lodged any sort of complaint regarding such harassment.

Accordingly, even if Mr. Fields were to satisfy the first and second elements of a hostile work
environment claim, NNI has established that the Faragher-Ellerth defense would prevail
because:(1) Mr. Fields possessed NNFs anti-harassment policy, see ECF No. 118

23-32, and

(2) Mr. Fields failed to take advantage of an opportunity to notify NNI of the allegedly harassing
behavior. Accordingly, the Court SUSTAINS NNFs objections as to Mr. Fields' hostile work
environment claim, and GRANTS summary judgment to NNI. ECF No. 117.
E.

Willie Kershaw

Mr. Kershaw claims race-based harassment by his supervisors and co-workers. ECF No.

296 at 15; see also ECF No. 120-3 at 65-70. The Report concluded that material facts are in
dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI
objected to the Report's recommendations, arguing that the Report erroneously relied on "me
too" evidence. ECF No. 316 at 34.

Mr. Kershaw has failed to establish a tangible employment action against him by his
supervisors, or that he ever lodged any sort of complaint regarding harassment (whether by his
supervisors or co-workers). Accordingly, even if Mr. Kershaw were to meet the first and second
requirements of a hostile work environment claim, Mr. Kershaw has failed to establish that his

co-workers' harassment would be imputable to NNI because of his failure to lodge a complaint
about it. See Sunbelt Rentals, 521 F.3d at 319.

Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has
established that the Faragher-Ellerth defense would prevail because: (1) Mr. Kershaw was in
receipt of NNFs anti-harassment policy, see ECF No. 120

21-29, and (2) Mr. Kershaw failed

to take advantage of an opportunity to notify NNI of the allegedly harassing behavior.
10

Accordingly, the Court SUSTAINS NNFs objections as to Mr. Kershaw's hostile work
environment claim, and GRANTS summary judgment to NNI. ECF No. 119.
F.

Derrick Cross

Mr. Cross claims race-based harassment by his supervisors. ECF No. 296 at 16; see also
ECF No. 202-1, Ex. 9.

The Report concluded that material facts are in dispute and

recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the
Report's recommendations, arguing that the Report erroneously relied on "me too" evidence.
ECF No. 316 at 34.

Mr. Cross has failed to establish either a tangible employment action against him by his
supervisors, or that he lodged any sort of complaint regarding such harassment. Accordingly,
even if Mr. Cross were to establish the first and second elements of a hostile work environment

claim, NNI has demonstrated that the Faragher-Ellerth defense would prevail because it meets
the two requirements of the defense. First, Mr. Cross was in receipt of NNI's anti-harassment
policy. See ECF No. 122

22-28. Second, Mr. Cross failed to take advantage of an

opportunity to notify NNI of the allegedly harassing behavior.

Accordingly, the Court

SUSTAINS NNI's objections as to this claim and GRANTS summary judgment to NNI. ECF
No. 121.

G.

Jonathan Dantes

Mr. Dantes claims that his supervisor treated his white co-workers preferentially
regarding breaks, and that he was terminated for taking a nap break and white employees who
took nap breaks were not terminated. ECF No. 296 at 17; see also ECF No. 202-1, Ex. 10. The
Report concluded that material facts are in dispute and recommended denying summary

judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing
that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.
11

Whether the supervisor's tangible employment action against Mr. Dantes has a sufficient
nexus to the alleged harassment is unclear. Dulaney, 673 F.Sd at 328 (requiring "some nexus
between the harassment and the tangible employment action for the latter to be actionable"); see
also Causey, 162 F.3d at 801 (requiring that a plaintiff establish that but for the plaintiffs race or
national origin, he or she would not have been subject to the harassment). Accordingly, the
Court OVERRULES NNI's objections as to this claim, and the Court adopts the Report's
recommendation to DENY summary judgment to NNI. ECF No. 125.
H.

Herbert Broughton

Mr. Broughton claims race-based harassment by his supervisors and co-workers. ECF
No. 296 at 22; see also ECF No. 202-1, Ex. 5. The Report concluded that material facts are in

dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI

objected to the Report's recommendations, arguing that the Report erroneously relied on "me
too" evidence. ECF No. 316 at 34.

Mr. Broughton has failed to establish either a tangible employment action against him by
his supervisors or that he lodged any sort of complaint regarding such harassment, whether by
his supervisors or by co-workers. Accordingly, even if Mr. Broughton were to establish the first
and second elements of a hostile work environment claim, Mr. Broughton has failed to establish
that his co-workers' harassment would be imputable to NNI because of his failure to lodge a
complaint about it. See Sunbelt Rentals, 521 F.3d at 319. Similarly, with respect to his
supervisors' allegedly discriminatory activity, NNI has established that the Faragher-Ellerth
defense would prevail because: (1) Mr. Broughton was in receipt of NNI's anti-harassment
policy, see ECF No. 150 %% 15-19, and (2) Mr. Broughton failed to take advantage of an
opportunity to notify NNI of the allegedly harassing behavior. The Court SUSTAINS NNI's
objections as to this claim, and GRANTS summary judgment to NNI. ECF No. 149.
12

I.

Steven Gordon

Mr. Gordon alleges harassing behavior by his supervisors, and also with a supervisor and
a co-worker. ECF No. 296 at 22-23; see also ECF No. 202-1, Ex. 13. The Report concluded

that material facts are in dispute, and recommended denying summary judgment to NNI. ECF
No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report
erroneously relied on"me too" evidence. ECF No. 316 at 34.

The record regarding the more general allegations of the supervisors' behavior fails to

establish conduct sufficiently severe and pervasive enough to alter the conditions of Mr.
Gordon's employment. See Sunbelt Rentals, 521 F.3d at 315. However, with respect to his
complaint regarding his co-worker—^who allegedly shoved Mr. Gordon, and who was also the

subject of a separate complaint for racially-motivated harassment—^the Court finds that there is a

genuine dispute of material fact regarding two issues: whether his co-worker's actions were the
result of Mr. Gordon's race, and whether the harassment was imputable to NNI, given that Mr.

Gordon reported his co-workers' behavior. If the physical contact arose from his co-worker's
animus towards Afncan Americans, and if NNI failed to take any action after Mr. Gordon

reported it, a hostile work environment claim here is valid. Id. at 319. Accordingly, the Court
GRANTS summary judgment to NNI as to Mr. Gordon's hostile work environment claim with
respect to his supervisors, and DENIES summary judgment to NNI as to Mr. Gordon's hostile
work environment claim regarding his supervisor and his co-worker. ECF No. 151.
J.

Chris Pavton

Mr. Payton claims that his supervisors subjected him to unwelcome harassment on the
basis of his race by verbally harassing him. ECF No. 296 at 23-24; see also ECF No. 202-1, Ex.

23. Mr. Payton also claims his supervisor promised him an opportunity to obtain welding
treiining, but never provided this opportunity and instead assisted a white co-worker, who was
13

less experienced, in obtaining welding training. The Report concluded that material facts are in
dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI

objected to the Report's recommendations, arguing that the Report erroneously relied on "me
too" evidence. ECF No. 316 at 34.

It is unclear whether the denial of an opportunity for welding training amounts to a

tangible employment action against Mr. Payton by his supervisors, with a nexus to the alleged
harassment. Vance, 570 U.S. at 437 n.9 (noting that if the action has "economic consequences,

such as foreclosing [an employee's] eligibility for promotion, then it might constitute a tangible
employment action"); see also Ellerth, 524 U.S. at 761. Accordingly, the Court OVERRULES
NNI's objections as to this claim, and adopts the Report's recommendation to DENY summary
judgment to NNI. ECF No. 153.
K.

Gilbert Wiltz

Mr. Wiltz claims race-based harassment by his supervisors. ECF No. 296 at 24—25; see
also ECF No. 202-1, Ex. 37. The Report recommended denying summary judgment to NNI.
ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report
erroneously relied on "me too" evidence. ECF No.316 at 34.

Mr. Wiltz has failed to establish either a tangible employment action against him by his
supervisors, or that he lodged a complaint regarding such harassment. Accordingly, even if Mr.
Wiltz were to meet the first and second requirements of a hostile work environment claim, NNI

has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Wiltz
possessed NNI's anti-harassment policy, see ECF No. 162

9-11, and (2) Mr. Wiltz failed to

take advantage of an opportunity to notify NNI of the allegedly harassing behavior.
Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary
judgment to NNI. ECF No. 161.
14

L.

Mark Bamett

Mr. Bamett claims race-based harassment by his supervisors. ECF No. 296 at 25; see

also ECF No. 202-1, Ex. 2. The Report concluded that material facts are in dispute and

recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the
Report's recommendations, arguing that the Report erroneously relied on "me too" evidence.
ECF No. 316 at 34.

Although no tangible employment action occurred, Mr. Bamett appears to have objected

to at least one of his supervisor's comments that derogatorily stereotyped African Americans. At
this stage, the Court finds that a genuine dispute of material fact exists as to whether Mr.
Bamett's objection to his supervisor's comment amounts to a complaint to a supervisor sufficient
to render the alleged harassment imputable to NNI. See Sunbelt Rentals, 521 F.3d at 319 ("A

reasonable jury could determine that [the employer] had notice of the ... harassment" because
the plaintiff "verbally complained" to his supervisor "after most of the harassing incidents.").

Accordingly, the Court OVERRULES NNI's objections to the Report's recommendation about
this claim, and DENIES summary judgment to NNI. ECF No. 163.
M.

Jamesina Crawford

Ms. Crawford claims harassing behavior by her supervisors. ECF No. 296 at 26; see also
ECF No. 202-1, Ex. 8; ECF No. 202-2, Ex. 40. The Report concluded that material facts are in
dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI

objected to the Report's recommendations, arguing that the Report erroneously relied on "me
too" evidence. ECF No. 316 at 34.

Although no tangible employment action occurred, Ms. Crawford appears to have

objected to at least one of her supervisor's comments that mocked African American workers by
mimicking racial stereotypes. The Court finds that a genuine dispute of material fact exists as to
15

whether Ms. Crawford's objection to her supervisor's comment amounted to a complaint to a
supervisor sufficient to render the alleged harassment imputable to NNI. See Sunbelt Rentals^
521 F.3d at 319("A reasonable jury could determine that [the employer] had notice of the . ..

harassment" because the plaintiff "verbally complained" to his supervisor "after most of the
harassing incidents."). Accordingly, the Court OVERRULES NNI's objections to the Report's
recommendation about this claim, and DENIES summary judgment to NNI. ECF No. 165.
N.

John Harris

Mr. Harris claims race-based harassment by his supervisors and co-workers. ECF No.

296 at 26-27; see also ECF No. 202-1, Ex. 14. The Report concluded that material facts are in
dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI
objected to the Report's recommendations, arguing that the Report erroneously relied on "me
too" evidence. ECF No. 316 at 34.

Mr. Harris has failed to establish either a tangible employment action against him by his
supervisors, or that he ever lodged any sort of complaint regarding such harassment.

Accordingly, even if Mr. Harris were to meet the first and second requirements of a hostile work
environment claim, Mr. Harris has failed to establish that his co-workers' harassment would be

imputable to NNI. See Sunbelt Rentals, 521 F.3d at 319.

Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has
established that the Faragher-Ellerth defense would prevail because: (1) Mr. Harris was in
receipt of NNI's anti-harassment policy, see ECF No. 168

17-19, and(2) Mr. Harris failed to

take advantage of an opportunity to notify NNI of the allegedly harassing behavior.
Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary
judgment to NNI. ECF No. 167.

16

O.

Tourke Hooker

Mr. Hooker claims race-based harassment by his supervisors and co-workers. ECF No.
296 at 26; see also ECF No. 202-1, Ex. 38. The Report concluded that material facts are in

dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI
objected to the Report's recommendations, arguing that the Report erroneously relied on "me
too" evidence. ECF No. 316 at 34.

Mr. Hooker has failed to establish either a tangible employment action against him by his

supervisors, or that he ever lodged any sort of complaint regarding such harassment(whether by
his supervisors or co-workers). Accordingly, even if Mr. Hooker were to establish the first and
second elements of a hostile work environment claim, Mr. Hooker has failed to demonstrate that

his co-workers' harassment would be imputable to NNI. See Sunbelt Rentals^ 521 F.3d at 319.

Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has
established that the Faragher-Ellerth defense would prevail because: (1) Mr. Hooker was in
receipt of NNI's anti-harassment policy, see ECF No. 170

12-15, and (2) Mr. Hooker failed

to take advantage of an opportunity to notify NNI of the allegedly harassing behavior.
Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary
judgment to NNI. ECF No. 169.
P.

Lamarr Jovner

Mr. Joyner claims race-based harassment by his supervisors and co-workers. ECF No.

296 at 28; see also ECF No. 202-1, Ex. 19. The Report concluded that material facts are in
dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI

objected to the Report's recommendations, arguing that the Report erroneously relied on "me
too" evidence. ECF No. 316 at 34. Mr. Joyner has failed to establish either a tangible
employment action against him by his supervisors, or that he ever lodged any sort of complaint
17

regarding such harassment(whether by his supervisors or co-workers). Accordingly, even if Mr.
Joyner were to establish the first and second elements of a hostile work environment claim, Mr.
Joyner has failed to establish that his co-workers' harassment would be imputable to NNI. See
Sunbelt Rentals^ 521 F.3d at 319.

Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has
established that the Faragher-Ellerth defense would prevail because: (1) Mr. Joyner was in
receipt of NNI's anti-harassment policy, see ECF No. 176

10-16, and (2) Mr. Joyner failed to

take advantage of an opportunity to notify NNI of the allegedly harassing behavior.
Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary
judgment to NNI. ECF No. 175.
Q.

Roderick Waddell. Jr.

Mr. Waddell claims race-based harassment by his supervisors. ECF No. 296 at 28-29;

see also ECF No. 202-2, Ex. 34; ECF No. 182-11 at 11-12. Mr. Waddell alleges that his
supervisors (1) monitored him while refraining from monitoring his white co-workers and (2)
complained about the music that he listened to, but did not complain about his white co-workers'
music. The Report concluded that material facts are in dispute, and recommended denying

summary judgment to NNI. ECF No. 296 at 39. NNI objects, arguing that the Report
erroneously relied on "me too" evidence. ECF No. 316 at 34.
Mr. Waddell has failed to meet the third requirement of a hostile work environment claim

because he has failed to demonstrate that this conduct was so severe or pervasive so as to amount
to a change in the conditions of employment. See Sunbelt, 521 F.3d at 315-16 (noting that a

summary judgment motion requires a court "to identify situations that a reasonable jury might
find to be so out of the ordinary"). Accordingly, the Court SUSTAINS NNI's objections as to
this claim and GRANTS summary judgment to NNI. ECF No. 181.
18

R.

Robert Robinson

The Report recommended dismissing Mr. Robinson's hostile work environment claim
because he did not subjectively perceive his environment to be hostile. ECF No. 296-2 at 14344, 150-53. As the Report acknowledges, Mr. Robinson submitted emails throughout his

employment explaining that he felt positively about his job and the work environment. In his
resignation letter, he also expressed satisfaction with his job and noted that he would return to
NNI if his pay were to improve.

However, at his deposition, Mr. Robinson claimed that his attitude towards his job
changed over the course of his employment as he experienced more forms of race-based
discrimination, and that his resignation email was "sarcastic" because his supervisors knew of his
feelings regarding the work environment and the perceived racial harassment. ECF No. 202-2 at

142) ("the recipients of the email [were] already aware of my dissatisfactions within the
company [with respect to racial discrimination])," see also ECF No. 202-2 at 131-46 ("Once I

really started to really understand and notice and see a lot of things going on and I brought it to
[my supervisors'] attention, 1 guess you could say [this email] . . . was telling them [that
something needed to change]."

Mr. Robinson's emails weigh against a finding that he subjectively perceived his

environment to be hostile. However, where an employee alleges that he made underlying
complaints about the harassment at issue (as here), the issue regarding conflicting evidence
becomes one of credibility. The Court is not permitted to engage in credibility determinations at

summary judgment; this is the province of the jury. Harris v. Mayor and City Council of
Baltimore, 429 Fed. App'x 195, 202 (4th Cir. 2011). Accordingly, there is a factual dispute to
Mr. Robinson's perception of his working environment, and NNI's Motion for Summary
Judgment as to Mr. Robinson's hostile work environment claim is DENIED. ECF No. 141.
19

S.

Donvelle Pierce

Mr. Pierce asserted a claim for hostile work environment in the Second Amended

Complaint. ECF No. 15. The Report concluded that Mr. Pierce could not establish a claim for
hostile work environment that was not time barred. ECF No. 294 at 11. Mr. Pierce objected to

the Report's conclusion, arguing that there were constituent acts that were part of a continuing
violation such that his claim is not time barred. ECF No. 317 at 21-22.

Having reviewed Mr. Pierce's objections, the Court finds that Mr. Pierce did not identify
any specific racially hostile act which occurred during the limitations period. Accordingly, this
Court OVERRULES Mr. Pierce's objection regarding this claim and adopts the Report's
recommendation to GRANT summary judgment to NNI. ECF No. 171.
II.

DISPARATE TREATMENT CLAIMS

The plaintiffs below have asserted claims for disparate treatment. This section addresses
these claims, and their related objections.
I.

LEGAL STANDARDS

To establish a prima facie case of discrimination for a pay disparity claim, a plaintiff
must show that (i) the plaintiff is a member of a protected class; (ii) had satisfactory job
performance; (iii) suffered an adverse employment action; and (iv) was treated differently than
similarly situated employees outside of his or her protected class. Coleman v. Md. Court of
Appeals^ 626 F.3d 187,190(4th Cir. 2010).

To establish a prima facie case of discrimination for a promotion disparity claim, a
plaintiff must show that(I)the plaintiff is a member of a protected class;(2)applied or sought to

apply to an open position;(3) was qualified for the position; and (4) was rejected for the position
under circumstances giving rise to an inference of unlawful discrimination. Evans v. Techs.

20

Applications tSc Serv. Co., 80 F.3d 954, 959-60 (4th Cir. 1996). To establish aprimafacie case
of discrimination for an overtime disparity claim, a plaintiff must demonstrate that he or she (1)
is a member of a protected class; (2) is performing his or her job satisfactorily; (3) was "not

offered the opportunity to work overtime"; and (4) "similarly-situated individuals outside of
[their] protected class received more favorable treatment." Guion v. Mabus, No. 4:llcvl59,
2012 WL 1340117, at *4(E.D.N.C. Apr. 17, 2012).

To establish a primafacie case of discrimination for a training disparity claim, a plaintiff
must show that(1) he or she is a member of a protected class;(2)the defendant provided training
to its employees; (3) the plaintiff was eligible for the training; and (4) the plaintiff was not

provided training under circumstances that give rise to an inference of discrimination. Thompson
V. Potomac Elec. Power Co., 312 F.3d 645,649-50(4th Cir. 2002).

The United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) "established an allocation of the burden of production and an order for the

presentation of proof in ... discriminatory-treatment cases." St. Mary's Honor Center v. Hicks,
509 U.S. 502, 506 (1993). This framework, the application of which is challenged in many

objections advanced to the Reports at issue here, has been reviewed and recognized in myriad
decisions.

As the Supreme Court summarized in a subsequent ruling, the McDonnell Douglas
framework involves the shifting of proof burdens:

if the plaintiff succeeds in proving the prima facie case, the burden shifts to the
defendant to articulate some legitimate, nondiscriminatory reason for the
employee's rejection. Third, should the defendant carry this burden, the plaintiff
must then have an opportunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its true reasons, but were
a pretext for discrimination.
Texas Dept. ofCommunity Affairs v. Burdine, 450 U.S. 248,252-253(1981).

21

2.

ANALYSIS

A.

Anthony Alvarez

Mr. Alvarez asserted a claim for disparate treatment regarding pay in the Second

Amended Complaint. ECF No. 15 at 111. Mr. Alvarez asserts he was paid $17.50 per hour
when he started as a fitter and that he had four years of previous fitter experience. ECF No. 15 at

111. He claims that Mr. Burton, a white employee with no prior experience in the same job, was

promoted over him and was given a raise to $18 per hour. ECF No. 15 at 111.
The Report concluded that NNl failed to move for summary judgment specifically on Mr.
Alvarez's pay disparity claim, and that counsel failed to address any facts regarding this issue.
ECF No. 296 at 47. NNl objects to the Report's conclusion, arguing that the evidence Mr.
Alvarez advanced is insufficient as a matter of law, and that summary judgment should be
granted in NNl's favor. ECF No. 316 at 2-3.
To establish a prima facie case of discrimination for a pay disparity claim, a plaintiff

must show that the plaintiff had satisfactory job performance. Coleman v. Md Court ofAppeals^
626 F.3d 187,190 (4th Cir. 2010). NNl produced evidence to show that Mr. Alvarez could not
meet this element of his disparate treatment cleum. NNl specifically addressed Mr. Alvarez's
claims of race discrimination and established that Mr. Alvarez was frequently disciplined
regarding attendance. ECF No. 110 at 5. Accordingly, this Court SUSTAINS NNl's objection
and GRANTS summary judgment to NNl as to this claim. ECF No. 109.
B.

Ian Blow

Mr. Blow asserted a claim for disparate pay treatment in the Second Amended
Complaint. ECF No. 15 at 230. The Report concluded that Mr. Blow cannot show that his raises

were an adverse employment action, and recommended granting NNl's motion for summary

22

judgment. ECF No. 296 at 56. Mr. Blow objects to the Report's conclusion, arguing that he
established adequately that there were differences in his starting pay. ECF No.317 at 28-31.

Having reviewed Mr. Blow's objections, the Court finds that Mr. Blow's raises were not
an adverse action, and that the evidence proffered is insufficient to raise a genuine issue of
material fact in dispute. Accordingly, the Court OVERRULES Mr. Blow's objection and
GRANTS summary judgment to NNI as to this claim. ECF No. 111.
C.

Ernest Chesson

Mr. Chesson asserted a claim for disparate treatment in pay and overtime. ECF No. 15 at
230-33. The Report concluded that Mr. Chesson failed to establish the denial of his overtime
claim, and recommended granting summary judgment to NNI. ECF No. 296-1 at 2. Mr.

Chesson objects to the Report's conclusion that he did presented insufficient evidence of
discrimination in pay. ECF No. 317 at 31.
Having reviewed the record, the Court concludes that Mr. Chesson failed to proffer

evidence of discriminatory animus related to pay, and cannot establish prima facie claims.
Accordingly, the Court OVERRULES Mr. Chesson's objection in regards to his disparate

treatment allegations, and adopts the Report's recommendation to GRANT summary judgment
to NNI as to this claim. ECF No. 115.
D.

Marchello Fields

Mr. Fields asserted a claim for disparate pay treatment in the Second Amended

Complaint. ECF No. 15 at 230-32. The Report found that Mr. Fields did not proffer evidence of

discrimination regarding his pay, and the Report applied the McDonnell Douglas framework in
recommending granting summary judgment on this claim to NNI. ECF No. 296-1 at 4. The

Report concluded that Mr. Fields failed to proffer evidence of a substantially similar comparator.

23

ECF No. 296-1 at 7. Mr. Fields objects, arguing that the Report incorrectly applied the

McDonnell Douglas framework and that he has proffered sufficient evidence to raise a question
of material fact. ECF No. 317 at 33-34.

Having reviewed the record, the Court finds that the Report correctly applied the
McDonnell Douglas framework and that Mr. Fields failed to proffer evidence of a substantially
similar comparator. Accordingly, the Court OVERRULES Mr. Fields' objections and adopts the
Report's recommendation to GRANT summary judgment to NNI as to this claim. ECF No. 117.
E.

Willie Kershaw

Mr. Kershaw asserted a claim for disparate treatment in pay and training in the Second

Amended Complaint. The Report found that Mr. Kershaw failed to demonstrate that there were
material facts in dispute with respect to his claims, and recommended granting summary

judgment to NNI. ECF No. 296-1 at 12. Mr. Kershaw objects to the Report's conclusion,
arguing that he presented evidence of racist language that creates an issue of fact as to the
disparate treatment in pay claim. ECF No. 317 at 34-35. Mr. Kershaw further objects to the

Report's conclusion, arguing that there is a jury question as to whether Mr. Kershaw was paid
less because of his race. ECF No. 317 at 35.

Having reviewed the record, the Court finds that Mr. Kershaw has failed to demonstrate

that there were material facts in dispute sufficient to defeat summary judgment. Mr. Kershaw
has not shown that the two alleged statements made to him "bear directly on the contested

employment decision," or that there was any nexus between the alleged statements and any pay
decisions. See Rayyan v. Virginia Dept. of Transportation, No. 17-1132, 2018 WL 834709, at

*3-4(4th Cir. Feb. 13, 2018). Accordingly, the Court OVERRULES Mr. Kershaw's objections
and GRANTS summary judgment to NNI as to the disparate treatment claim. ECF No. 119.

24

F.

Derrick Cross

Mr. Cross asserted a claim for disparate treatment in pay, training, and promotion in the

Second Amended Complaint. ECF No. 15 at 230-31. The Report recommended granting
summary judgment as to these disparate treatment claims. ECF No. 296-1 at 17-24. Mr. Cross

does not object to the Report's recommendation. Finding no clear error, the Court adopts the
Report and GRANTS summary judgment to NNI as to the disparate treatment claim. ECF No.
121.
0.

Ronald Valentine

Mr. Valentine asserted a claim for disparate treatment in overtime pay in the Second

Amended Complaint. ECF No. 15 at 230-31. The Report concluded that Mr. Valentine failed to
establish a claim for racially disparate pay based on a single comparator, and recommended
granting summary judgment to NNI. as to this claim. ECF No. 296-1 at 27. Mr. Valentine

objects to the Report's conclusion, arguing that the Report incorrectly applied the McDonnell
Douglas framework and that Mr. Valentine proffered comparators sufficient to survive summary
judgment. ECF No. 317 at 35-37.

Having reviewed the record, the Court finds that the Report correctly applied the
McDonnell Douglas framework and that Mr. Valentine failed to establish a primafacie case of
racial discrimination. See Rayyan, No. 17-1132, 2018 WL 834709, at *3^. Accordingly, this
Court OVERRULES Mr. Valentine's objections and GRANTS summary judgment to NNI as to
the disparate treatment claim. ECF No. 123.
H.

Jonathan Dantes

Mr. Dantes asserted a claim for disparate treatment in pay in the Second Amended
Complaint. ECF No. 15 at 201-02. The Report concluded that Mr. Dantes had failed to provide

25

proof as to any adverse action, and also failed to provide sufficient evidence regarding an alleged

comparator, and recommended granting NNI's motion for summary judgment as to this claim.
ECF No.296-1 at 38.

Having reviewed the record, this Court finds that Mr. Dantes has not met his burden
regarding his disparate pay claim. Mr. Dantes was found sleeping during working hours on
several occasions. ECF No. 264, attach. 3 at 2. Mr. Dantes cannot show that he had satisfactory

job performance, and he failed to make a prima facie case for disparate treatment in pay. See

Coleman, 626 F.3d at 190. Accordingly, this Court OVERRULES Mr. Dantes' objections and
adopts the Report's recommendation to GRANT summary judgment to NNI as to the disparate
treatment claim. ECF No. 125.
I.

Franz Edouard

Mr. Edouard asserted a claim for disparate treatment in pay, promotion, and training in
the Second Amended Complaint. ECF No. 15 at 231-33. As to Mr. Edouard's disparate
treatment in pay claim, the Report applied the McDonnell Douglas framework and found that

Mr. Edouard failed to demonstrate that there were material facts in dispute with respect to his
claim, and recommended granting summary judgment to NNI. ECF No. 296-1 at 48. As to Mr.

Edouard's disparate treatment in training claim, the Report concluded that Mr. Edouard set forth

vague, conclusory allegations in support of this claim, and recommended granting summary
judgment to NNI. ECF No. 296-1 at 49. As to Mr. Edouard's failure to promote claim, the
Report concluded that this claim failed for the same reason as his disparate treatment in training
claim failed. ECF No. 296-1 at 50-51.

Mr. Edouard does not object to the Report's recommendations regarding his disparate
treatment claims. See ECF No. 317 at 20-21. Finding no clear error, this Court ADOPTS the

26

Report's findings and the Report's recommendation to GRANT summary judgment to NNI as to
the disparate treatment claims. ECF No. 129.
J.

Reggie Holliman

Mr. Holliman asserted claims for disparate treatment in pay and overtime in the Second

Amended Complaint. ECF No. 15 at 230-33. As to Mr. Holliman's pay disparity claim, the
Report applied the McDonnell Douglas framework and concluded that Mr. Holliman failed to
demonstrate material facts in dispute, and recommended granting summary judgment to NNI.
ECF No. 296-1 at 55-56. As to Mr. Holliman's denial of overtime claim, the Report concluded

that Mr. Holliman proffered no evidence regarding how much overtime was available (among
other relevant considerations), and recommended granting summary judgment to NNI. ECF No.
296-2 at 1. Mr. Holliman objects to the Report's recommendations, arguing that he put forth
sufficient evidence of racial discrimination to defeat summary judgment. ECF No. 317 at 39.

Having reviewed the record, this Court finds that Mr. Holliman presented insufficient
evidence to support his claims. Mr. Holliman proffered no evidence about alleged derogatory
comments regarding Mr. Holliman's pay or raises. Furthermore, Mr. Holliman failed to
establish that James Adam and Ricky Penrod were similarly situated comparators. Accordingly,
this Court OVERRULES Mr. Holliman's objections and adopts the Report's recommendation to
GRANT summary judgment to NNI as to the disparate treatment claims. ECF No. 131.
K.

Lamar Holloman

Mr. Holloman asserted a claim for disparate treatment in pay, promotion/transfer and

training in the Second Amended Complaint. ECF No. 15 at 230-33. As to the pay disparity
claim, the Report applied the McDonnell Douglas framework and found that Mr. Holloman
failed to establish that he was paid less than an employee outside the protected class and that the

27

higher paid employee was performing a substantially similar job, and recommended granting
summary judgment to NNI.

ECF No. 296-2 at 7.

As to Mr. Holloman's denial of

promotion/transfer claim, the Report concluded that Mr. Holloman is unable to make out a prima
facie claim, and recommended granting summary judgment to NNI. ECF No. 296-2 at 8-9. As
to Mr. Holloman's denial of training claim, the Report concluded that insufficient evidence was
presented, and recommended granting summary judgment to NNI. ECF No. 296-2 at 11. Mr.

Holloman objects to the Report's recommendations, arguing that Mr. Holloman put forth
sufficient evidence of comparators.

Having reviewed the record, this Court finds that Mr. Holloman failed to present
evidence of a similarly situated comparator.

Accordingly, this Court OVERRULES Mr.

Holloman's objections and adopts the Report's recommendation to GRANT summary judgment
to NNI as to Mr. Holloman's disparate treatment claims. ECF No. 133.
L.

Alfred Jovner. Jr.

Mr. Joyner asserted a claim for disparate treatment in pay and promotion in the Second

Amended Complaint. ECF No. 15 at 230-31. The Report concluded that Mr. Joyner offered no
direct evidence of discrimination in pay or promotion. The Report also applied the McDonnell
Douglas framework and recommended granting summary judgment to NNI. ECF No. 296-2 at

16-17. Mr. Joyner did not object to the Report's recommendations. Finding no clear error, this
Court ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF No. 135.
M.

Willie Nichols

Mr. Nichols asserted a claim for disparate treatment in pay, promotion and overtime
based on race. ECF No. 15 at 230-31. As to Mr. Nichols' disparate treatment in pay claim, the

Report concluded that Mr. Nichols failed to establish adverse action against him and failed to

28

establish that a similarly situated employee outside his protected class was paid more than him.
ECF No. 296-2 at 22-23. Mr. Nichols did not object to the Report's recommendations. Finding
no clear error, this Court ADOPTS the Report's findings and GRANTS summary judgment to
NNL ECF No. 139.

N.

Robert Robinson

Mr. Robinson asserted a claim for disparate treatment in pay, training and overtime based
on race in the Second Amended Complaint. ECF No. 15 at 230-32. As to pay disparity, the

Report applied the McDonnell Douglas framework, found that Mr. Robinson failed to
demonstrate material facts in dispute, and recommended granting summary judgment to NNL
ECF No. 296-2 at 34. As to the claim regarding denial oftraining, the Report concluded that Mr.
Robinson failed to establish that he was denied training, and recommended granting summary
judgment to NNI. ECF No. 296-2 at 36.

Mr. Robinson filed no objections to the Report's recommendations regarding his
disparate treatment claims. See ECF No. 317 at 7-10. Finding no clear error, this Court
ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF No. 141.
O.

Roderick WaddelL Sr.

Mr. Waddell asserted a claim for disparate treatment in pay and training based on race in

the Second Amended Complaint. ECF No. 15 at 230-31. The Report concluded that Mr.
Waddell failed to establish that he suffered any adverse employment action, and further failed to
identify comparators outside the protected class that were treated more favorably than he
regarding any delay or pay increases, and recommended granting summary judgment to NNI.
ECF No. 296-2 at 43. Mr. Waddell objected to the Report's conclusion regarding his pay claim.
ECF No. 317 at 43.

29

Having reviewed the record, the Court finds that Mr. Waddeli's alleged delays in
evaluations did not constitute adverse action. Further, Mr. Waddell failed to identify proper

comparators, as those he proffered also experienced delays in their evaluations. Accordingly,
this Court OVERRULES Mr. Waddeli's objections and adopts the Report's recommendation to
GRANT summary judgment to NNI as to this claim. ECF No. 143.
P.

Brandon Walker

Mr. Walker asserted a claim for disparate treatment in pay and training based on race in
the Second Amended Complaint. ECF No. 15 at 230-31. The Report concluded that Mr.
Walker cannot establish an adverse employment action, and recommended granting summary

judgment to NNI as to Mr. Walker's pay disparity claim. ECF No. 296-2 at 48.
As to Mr. Walker's denial of training claim, the Report concluded that Mr. Walker did

not produce admissible evidence to make a prima facie claim, and recommended granting
summary judgment to NNI. ECF No. 296-2 at 49.

Mr. Walker objects only to the Report's recommendation regarding his disparate pay
claim. ECF No. 317 at 44-45.

Mr. Walker argues he produced sufficient evidence of

discrimination because his supervisor, Mr. Jackson, was responsible for setting Mr. Walker's pay
initially and provided his probationary raises that were smaller than Levi Cluts, a similarly
situated white employee. ECF No. 317 at 44.

Having reviewed the record, the Court finds that Mr. Walker failed to put forth evidence
that he suffered an adverse employment action. Mr. Walker's alleged raise discrepancies are

insufficient to establish an adverse action. Accordingly, this Court OVERRULES Mr. Walker's
objections and adopts the Report's recommendation to GRANT summary judgment to NNI as to
this claim. ECF No. 145.

30

Q.

Richard Bostic

Mr. Bostic asserted a claim for disparate treatment in failing to accommodate based on
race in the Second Amended Complaint. ECF No. 15 at 230-33. The Report concluded that
there were no material facts in dispute that would permit a reasonable jury to conclude that Mr.
Bostic was subject to disparate treatment based on a failure to accommodate, and the Report

recommended granting summary judgment to NNI. ECF No. 296-3 at 2. Mr. Bostic does not
object to the Report's recommendation. Finding no clear error, this Court ADOPTS the Report's
findings and GRANTS summary judgment to NNI. ECF No. 147.
R.

Herbert Brouehton

Mr. Broughton asserted a claim for disparate treatment in pay and training based on race

in the Second Amended Complaint. ECF No. 15 at 230-31. As to Mr. Broughton's disparate
pay claim, the Report concluded that Mr. Broughton failed to show he was treated less favorably
regarding his benefits than comparators, and recommended granting summary judgment to NNI.

ECF No. 296-3 at 10-11. As to Mr. Broughton's denial of training claim, the Report concluded
that Mr. Broughton failed to establish a primafacie claim, and recommended granting summary
judgment to NNI. ECF No. 296-3 at 11.

Mr. Broughton does not object to the Report's recommendations. Finding no clear error,
this Court ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF No.
149.
S.

Steven Gordon

Mr. Gordon asserted claims for disparate treatment in pay, overtime and promotions
based on race in the Second Amended Complaint. ECF No. 15 at 230-31. As to Mr. Gordon's
disparate pay claim, the Report concluded that NNI failed to meet its burden of demonstrating

31

the absence of a factual dispute, and recommended denying summary judgment to NNI. ECF
No. 296-3 at 15. As to Mr. Gordon's denial of overtime claim, the Report concluded that Mr.

Gordon did not produce direct evidence of discrimination with respect to his overtime claim, and
recommended granting summary judgment to NNI. ECF No. 296-3 at 16-17.

NNI objects to the denial ofsummary judgment as to the pay disparity claim, arguing that
Mr. Gordon cannot sustain this claim because deposition testimony establishes that he does not

believe others were paid at higher rates, and that he admitted he received the same benefits
package as others when he was hired. ECF No.316 at 22-23.

Having reviewed the record, the Court agrees that NNI failed to address these claims
sufficiently in its summary judgment memorandum. The party seeking summary judgment must
inform the Court of the basis for its motion. NNI failed to do so here. Accordingly, the Court

OVERRULES NNI's objections and adopts the Report's recommendation to DENY summary
judgment to NNI as to Mr, Gordon's disparate treatment in pay claim.
Mr. Gordon does not object to the Report's conclusions as to his denial of overtime

claim. Finding no clear error, this Court ADOPTS the Report's conclusions as to this claim and
GRANTS summary judgment to NNI. ECF No. 151.
T.

Chris Pavton

Mr. Payton asserted claims for disparate treatment in pay, promotion, and training based
on race. ECF No. 15 at 230-33. As to the disparate pay claim, the Report concluded that Mr.

Payton failed to show that he suffered an adverse employment action or that comparators were
treated more favorably than he, and recommended granting summary judgment to NNI. ECF

No. 296-3 at 24. As to Mr. Payton's denial of promotion claim, the Report concluded that Mr.
Payton could not establish that there were welding positions available, and recommended

32

granting summary judgment to NNI. ECF No. 296-3 at 26. As to Mr. Payton's training claim,
the Report concluded that he abandoned this claim. ECF No. 296-3 at 21.
Mr. Payton does not object to the Report's conclusions. Finding no clear error, this Court
ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF No. 153.
U.

Dennis Smith

Mr. Smith asserted a claim for disparate treatment in pay based on race in the Second
Amended Complaint. ECF No. 15 at 230-33. The Report concluded that Mr. Smith failed to

show evidence of adverse employment actions, and recommended granting summary judgment

to NNI. ECF No. 296-3 at 35. Mr. Smith does not object to the Report's conclusion. Finding no
clear error, this Court ADOPTS the Report's findings and GRANTS summary judgment to NNI.
ECF No. 155.

V.

David Swain

Mr. Swain asserted claims for disparate treatment in pay, overtime, job assignment,
training and promotion based on race. ECF No. 15 at 230-33. As to Mr. Swain's disparate pay
claim, the Report concluded that Mr. Swain failed to identify comparators and failed to put forth
evidence of an adverse employment action, and recommended granting summary judgment to
NNI. ECF No. 296-3 at 45. Mr. Swain objects to the Report's conclusion, arguing that he

suffered adverse employment action and that he correctly identified comparators sufficient to
defeat summary judgment. ECF No. 317 at 45-47. Having reviewed the Record,the Court finds

that Mr. Swain's alleged comparators were not similarly situated, because their pay was much
less than Mr. Swain's.

As to Mr. Swain's denial of promotion claim, the Report concluded that Mr. Swain did

not produce admissible evidence of discrimination to support this claim and recommended

33

granting summary judgment to NNI. ECF No. 296-3 at 47-49. Mr. Swain objects to the
Report's conclusion here, arguing that he established pretext by submitting evidence of NNI's
false and shifting explanations as to why he was not hired into the make-up supervisor position.

ECF No. 317 at 47. Having reviewed the Record, the Court finds that NNI offered a legitimate,
nondiscriminatory reason for deciding to not appoint Mr. Swain as a make-up supervisor.
Accordingly, this Court OVERRULES Mr. Swain's objections and adopts the Report's
recommendation to GRANT summary judgment to NNI. ECF No. 159.
W.

Gilbert Wiltz

Mr. Wiltz asserted a claim for disparate pay treatment in the Second Amended
Complaint. ECF No. 15 at 230-31. The Report concluded that Mr. Wiltz cannot show that he
suffered an adverse employment action and failed to identify similarly situated comparators, and
recommended granting summary judgment to NNI. ECF No. 296-3 at 51-55; ECF No. 296-4 at

1-5. Mr. Wiltz objects to the Report's conclusions, arguing that he presented evidence of an
adverse action and that he sufficiently identified comparators. ECF No. 317 at 48. Having
reviewed the Record, the Court finds that Mr. Wiltz did not suffer an adverse employment
action. See Lovell v. BBNT Solutions, LLCy 295 F. Supp. 2d 611, 626 (E.D. Va. 2003). The
Court further adopts the Report's findings that Mr. Wiltz failed to establish a proper comparator.

See Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010). Accordingly, this Court
OVERRULES Mr. Wiltz's objections and adopts the Report's recommendation to GRANT
summary judgment to NNI. ECF No. 161.
X.

Mark Bamett

Mr. Bamett asserted a claim for disparate treatment in pay and promotion in the Second
Amended Complaint. ECF No. 15 at 230-32. As to the disparate pay claim, the Report

34

concluded that Mr. Bamett produced insufficient evidence to make a prima facie case and
recommended granting summary judgment to NNI. ECF No. 296-4 at 6-10. Mr. Bamett objects
to the Report's conclusion, arguing that he presented sufficient evidence of discrimination, and
that various supervisors imposed obvious double standards, which creates a jury question as to
the motive for the challenged treatment. ECF No. 317 at 49.

Having reviewed the Record, the Court finds that Mr. Bamett failed to establish that he is

similarly situated to any of the purported comparators. Accordingly, the Court OVERRULES
Mr. Bamett's objections as to the disparate pay claim, and adopts the Report's recommendation
to GRANT summary judgment to NNI.

As to the promotion claim, the Report concluded that Mr. Bamett failed to plead a prima
facie claim because he never applied for a permanent position. ECF No. 296-4 at 11. Mr.
Bamett does not object to the Report's conclusion in regards to his promotion claim. Finding no
clear error, the Court ADOPTS the Report's findings as to the promotion claim and GRANTS
summaryjudgmenttoNNI. ECF No. 163.
Y.

Jamesina Crawford

Ms. Crawford asserted claims for disparate treatment in pay and overtime based on race

in the Second Amended Complaint. ECF No. 15 at 230-34. As to the disparate treatment in pay
claim, the Report applied the McDonnell Douglas framework, concluded that Ms. Crawford

failed to identify similarly situated comparators, and recommended granting summary judgment
to NNI. ECF No. 296-4 at 21-24. Ms. Crawford objects to the Report's conclusions, arguing
that she presented sufficient evidence to raise a reasonable inference of discrimination, and that

the Report erred in finding that Ms. Crawford's comparators were not similarly situated. ECF
No. 317 at 50. Having reviewed the record, the Court finds that Ms. Crawford failed to identify

35

similarly situated comparators. See Smith v. U.S. Cong., No. 312cv45, 2015 WL 1011545, at *3
(E.D. Va. Mar. 6, 2015) (the court is not required to sift through the record searching for
evidence to support opposition to summary judgment). Accordingly, as to the disparate pay
claim, the Court OVERRULES Ms. Crawford's objections and adopts the Report's
recommendation to GRANT summary judgment to NNI.

As to the disparate treatment in overtime claim, the Report recommended granting
summary judgment to NNI. ECF No. 296-4 at 24-25. Ms. Crawford did not object to the

Report's conclusions regarding this claim. Finding no clear error, the Court ADOPTS the
Report's findings and GRANTS summary judgment to NNI. ECF No. 165.
Z.

John Harris

Mr. Harris asserted claims for disparate pay, training and training. ECF No. 15. The
Report recommended granting summary judgment to NNI as to these claims. ECF No. 296-4 at
32-35. Mr. Harris does not object to the Report's conclusions regarding his disparate treatment
claims. Finding no clear error, the Court ADOPTS the Report's findings and GRANTS
summaryjudgmenttoNNI. ECF No. 167.
AA.

Tourke Hooker

Mr. Hooker asserted claims for disparate treatment in pay and training in the Second
Amended Complaint. ECF No. 15. As to the disparate treatment in pay claim, the Report
concluded that Mr. Hooker failed to identify similarly situated comparators, and recommended
granting summary judgment to NNI. ECF No. 296-4 at 40. Mr. Hooker objects to the Report's

findings, arguing that there is substantial evidence of racial animus and that he identified
similarly situated comparators. ECF No. 317 at 52-54. Having reviewed the record, this Court
finds that Mr. Hooker failed to show that comparably-qualified employees outside of Mr.

36

Hooker's protected class were treated more favorably. See Haywood, 387 F. App'x at 359

(holding that an actual comparator means an individual in the same position with the same
supervisor and alike with respect to performance, experience, and qualifications in all material
respects). Accordingly, as to the disparate treatment in pay claim, this Court OVERRULES Mr.

Hooker's objections and adopts the Report's recommendation to GRANT summary judgment to
NNI.

As to the disparate treatment in training and assignments claims, the Report

recommended granting summary judgment to NNI. Mr. Hooker does not object to the Report's
findings. Finding no clear error as to these claims, this Court ADOPTS the Report's findings
and GRANTS summary judgment to NNI. ECF No. 169.
BB.

Theo Pierce

Mr. Pierce asserted claims for disparate treatment in pay, benefits and training in the
Second Amended Complaint. ECF No. 15 at 230-31.

As to the disparate treatment in pay claim, the Report concluded that Mr. Pierce failed to
identify similarly situated comparators and recommended granting summary judgment to NNI.
ECF No. 296-4 at 52-55.

Mr. Pierce objects to the Report's findings, arguing that he raised a reasonable inference
that his supervisors discriminated against him with respect to his pay, and that he identified
comparators. ECF No. 317 at 59-60.

Having reviewed the record, the Court finds that Mr. Pierce failed to demonstrate that
identified comparators were similarly situated. Accordingly, as to the disparate treatment in pay
claim, the Court OVERRULES Mr. Pierce's objections and adopts the Report's recommendation
to GRANT summary judgment to NNI.

37

As to Mr. Pierce's disparate treatment in benefits and training claims, the Report
concluded that Mr. Pierce abandoned these claims. ECF No. 296-4 at 49. Mr. Pierce does not

object to the Report's findings as to these claims. Finding no clear error, this Court ADOPTS
the Report's findings and GRANTS summary judgment to NNI. ECF No. 173.
CC.

Lamar Jovner

Mr. Joyner asserted claims for disparate treatment in pay and discipline in the Second
Amended Complaint. ECF No. 15 at 203-06. The Report recommended granting summary
judgment as to the disparate treatment claims to NNI. ECF No. 296-5 at 22. Mr. Joyner did not
object to the Report. Finding no clear error, this Court ADOPTS the Report's findings and
GRANTS summary judgment to NNI. ECF No. 175.
DD.

Ronald Stewart

Mr. Stewart asserted claims for disparate treatment in pay, promotion and overtime in the
Second Amended Complaint. ECF No. 15 at 188-93.

As to the disparate treatment in pay and promotion claims, the Report concluded that Mr.
Stewart failed to identify comparators, and failed to proffer evidence that he applied to a make

up supervisor position, and recommended granting summary judgment to NNI. ECF No. 296-5
at 29-34.

Mr. Stewart objects to the Report's findings, arguing that there was sufficient evidence of
racial animus and that he identified comparators. ECF No. 317 at 54-57.

Having reviewed the record, the Court finds that Mr. Stewart's alleged comparators are

not similarly situated.

Accordingly, as to the disparate treatment claims, this Court

OVERRULES Mr. Stewart's objections and adopts the Report's recommendation to GRANT
summary judgment to NNI.

38

As to Mr. Stewart's disparate treatment in overtime claim, the Report recommended

granting summary judgment to NNI. ECF No. 296-5 at 34—36. Mr. Stewart does not object to

this recommendation. Finding no clear error, this Court ADOPTS the Report's findings as to the
overtime claim and GRANTS summary judgment to NNI. ECF No. 177.
EE.

Roderick Waddell. Jr.

Mr. Waddell asserted claims for disparate treatment in pay, overtime, failure to give light
duty, assignment and training in the Second Amended Complaint. ECF No. 15 at 197-99. As to

the disparate pay claim, the Report concluded that Mr. Waddell failed to identify similarly
situated comparators, and recommended granting summary judgment to NNI. ECF No. 296-5 at
38-41.

Mr. Waddell objects to the Report's conclusions, arguing that he presented evidence of

racial animus, and that the Report erred in applying the McDonnell Douglas framework, and that
he sufficiently identified similarly situated comparators. ECF No. 317 at 57-58.
Having reviewed the record, this Court finds that Mr. Waddell has failed to demonstrate
any nexus between supervisor actions and his pay discrimination claim. Furthermore, Mr.

Waddell failed to identify a similarly situated comparator. Accordingly, as to the disparate pay
claim, this Court OVERRULES Mr. Waddell's objections and adopts the Report's
recommendation to GRANT summary judgment to NNI.
As to Mr. Waddell's remaining claims (disparate treatment in overtime, failure to give

light duty, assignments and training), the Report concluded that Mr. Waddell abandoned these

claims. ECF No. 296-5 at 36-37. Mr. Waddell does not object to this recommendation. Finding
no clear error, this Court ADOPTS the Report's findings and finds that these remaining claims
were abandoned. ECF No. 181.

39

FF.

Donvelle Pierce

Mr. Pierce asserted a claim for disparate treatment based on race with respect to pay in
the Second Amended Complaint. EOF No. 15. The Report concluded that Mr. Pierce failed to
produce direct evidence of discrimination, and recommended granting summary judgment to
NNI. ECFNo.294atl4.

Mr. Pierce objects to the Report's conclusions, arguing that he sufficiently identified
comparators. EOF No. 317 at 59.

Having reviewed the Record, the Court finds that Mr. Pierce failed to demonstrate that

his identified comparators were similarly situated. Mr. Pierce's only evidence was presenting
the pay rates of his alleged comparators, which is insufficient to defeat summary judgment.

Accordingly, Mr. Pierce's objections as to this claim are OVERRULED and the Report's
recommendation to GRANT summary judgment to NNI is ADOPTED. ECF No. 171.
Mr. Pierce also asserted a claim for disparate treatment based on race with respect to
assignments. ECF No. 15. The Report concluded that Mr. Pierce abandoned this claim and
recommended granting summary judgment to NNI. ECF No. 294 at 9-10. Mr. Pierce did not

object to the Report's findings as to this claim. Finding no clear error, this Court ADOPTS the
Report's findings as to this claim and GRANTS summary judgment to NNI. ECF No. 171.
III.

TERMINATION AND CONSTRUCTIVE DISCHARGE CLAIMS

The plaintiffs below have asserted claims for termination and constructive discharge.

This section addresses these claims, the Reports' recommendations, and the related objections.
1.

LEGAL STANDARDS

A plaintiff may establish a claim for race discrimination by demonstrating through direct

or circumstantial evidence that the plaintiffs race was a motivating factor in an employer's

40

adverse employment action. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,
284(4th Cir. 2004).

Alternatively, as reviewed above, under the McDonnell Douglas framework a plaintiff
may establish a prima facie case of disparate treatment based upon an alleged discriminatory
discharge. To do so, a plaintiff must show that(1) he or she was a member of a protected class;
(2) his or her employment was terminated;(3)at the time of the plaintiffs termination, he or she
was performing at a level that met the employer's legitimate expectations; and (4)the plaintiffs
position remained open or was filled by a similarly qualified individual outside the protected
class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Miles v. Dell,

Inc., 429 F.3d 480, 485 (4th Cir. 2005)(quoting Hill v. Lockheed Martin Logistics Mgmt., 354
F.3d 277,285(4th Cir. 2004)).

After a plaintiff meets this burden, the burden shifts to the defendant to proffer a
legitimate, nondiscriminatory reason for the termination. Derrickson, 84 F. Supp. 2d at 693. If
the defendant can make this showing, the burden shifts back to the plaintiff to show that this
reason is pretextual. Id.

Plaintiffs not terminated can make out a prima facie case of constructive discharge by
showing that the employer deliberately made working conditions so difficult that a reasonable
person in the employee's position would be compelled to resign. See Green v. Brennan, 136 S.
Ct. 1769, Mil(2017).
2.

ANALYSIS

A.

Ernest Chesson

Mr. Chesson asserted a claim for termination based on constructive discharge in the

Second Amended Complaint. ECF No. 15 at 230-33. The Report concluded that material facts

41

are disputed regarding whether Mr. Chesson's working conditions were intolerable, and the
Report recommended denying summary judgment to NNI. ECF No. 296-1 at 2-3.

NNI objects to the Report's conclusion, arguing that no reasonable jury could find that
Mr. Chesson found the conditions so intolerable that he had to resign. ECF No. 316 at 10. NNI

argues that Mr. Chesson worked at NNI for three years, applied to become a permanent
employee, and testified that he chose to quit because of scheduling issues. ECF No. 3016 at 1011.

NNI's first objection fails. Whether Mr. Chesson chose to apply to become a permanent

employee during his tenure does not preclude the possibility that working conditions later
become intolerable. Furthermore, whether Mr. Chesson was also motivated to quit because of a
schedule change does not preclude a viable claim that the working conditions became so

intolerable that a reasonable person in the position would not have felt compelled to resign. See

Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). Accordingly, NNI's objections
are OVERRULED and the Court adopts the Report's recommendation to DENY summary
judgment to NNI. ECF No. 115.
B.

Marchello Fields

Mr. Fields asserted a claim for termination based on constructive discharge in the Second

Amended Complaint. ECF No. 15 at 230-32. The Report concluded that material facts are in
dispute about whether Mr. Fields' working conditions were intolerable, and recommended
denying summary judgment to NNI. ECF No. 296-1 at 7-8.

NNI objects to this conclusion, arguing that Mr. Fields testified to engaging in a lengthy
job search before quitting for a higher paying job. ECF No. 316 at 9. Having reviewed the
record, the Court finds that Mr. Fields' job search before leaving for another job does not

42

preclude a claim that he suffered objectively intolerable working conditions. See Honor, 383
F.3datl86,

Accordingly, NNI's objections are OVERRULED, and this Court adopts the Report's
recommendation to DENY summary judgment to NNI. ECF No. 117.
C.

Jonathan Dantes

Mr. Dantes is construed as having pled a claim for discriminatory termination in the
Second Amended Complaint. ECF No. 296-1 at 35. The Report concluded that Mr. Dantes

failed to identify a suitable comparator outside his protected class who was treated differently

regarding the failure to turn in safety check cards and sleeping during lunch or working hours,
and recommended granting summary judgment to NNI. ECF No. 296-1 at 40. Mr. Dantes
objects to the Report's conclusions, arguing that the Report overlooked direct evidence of NNI's
discriminatory motive. ECF No. 317 at 17.

Having reviewed the record, this Court finds that insufficient evidence was presented that
race was a motivating factor in Mr. Dantes' termination. As such, under the McDonnell Douglas
framework, Mr. Dantes is unable to make a primafacie claim, because he cannot show that at the

time of his termination he was performing at a level that met the employer's expectations. Mr.
Dantes was found sleeping on the job repeatedly, and he failed to turn in his safety check cards
as required. See ECF No. 296 at 94, 96-98.

Accordingly, this Court OVERRULES Mr. Dantes' objections and adopts the Report's
recommendation to GRANT summary judgment to NNI. ECF No. 125.
D.

Franz Edouard

Mr. Edouard asserted a claim for termination based on race in the Second Amended

Complaint. ECF No. 15 at 231-33. The Report concluded that Mr. Edouard asked to be laid off

43

at the completion of the "Pin Jig project" because he was offered better employment elsewhere,
and the Report recommended granting summary judgment to NNI. ECF No. 296-1 at 51-52.
Mr. Edouard objects to the Report's conclusions, arguing that the Report adopted NNI's
version of events erroneously and that he presented evidence of unlawful discrimination. ECF
No. 317 at 20-21.

Having reviewed the record, this Court finds that there is undisputed evidence that Mr.
Edouard was hired to work on the Pin Jig project, and that when that project ended, he was
offered work. See ECF No. 130-2 at 29-33. Mr. Edouard cannot make out aprimafacie case,

because he was not terminated.

Accordingly, this Court OVERRULES Mr. Edouard's

objections and adopts the Report's recommendation to GRANT summary judgment to NNI.
ECF No. 129.

E.

Reggie Holliman

Mr. Holliman asserted a claim for termination based on race in the Second Amended

Complaint. ECF No. 15 at 230-33. The Report concluded that the undisputed material facts
established that Mr. Holliman was terminated for using drugs, and recommended granting
summary judgment to NNI. ECF No. 296-2 at 4. Mr. Holliman does not object to the Report's

conclusions regarding this claim. Finding no clear error, this Court ADOPTS the Report's
findings and GRANTS summary judgment to NNI. ECF No. 131.
F.

Lamar Holloman

Mr. Holloman asserted a claim for termination by constructive discharge based on race in
the Second Amended Complaint. ECF No. 15 at 230-33. The Report concluded that material
facts are in dispute about whether Mr. Holloman's working conditions were intolerable, and
recommended denying summary judgment to NNI. ECF No. 296-2 at 11-12.

44

Having reviewed the record, the Court finds that although Mr. Holloman took another

job, this fact does not preclude allegations that he suffered objectively intolerable working
conditions at NNI. See Honor, 383 F.3d at 186.

Accordingly, NNFs objections as to

constructive discharge are OVERRULED,and this Court adopts the Report's recommendation to
DENY summaryjudgmenttoNNI. ECFNo. 133.
G.

Robert Robinson

Mr. Robinson asserted a claim for constructive discharge based on race in the Second

Amended Complaint. ECF No. 15 at 230-32. The Report concluded that Mr. Robinson did not
perceive his working conditions to be infused with severe and pervasive harassment such that no

reasonable jury could find Mr. Robinson was constructively discharged, and recommended
granting summary judgment to NNI. ECF No. 296-2 at 39.

Mr. Robinson objects to the Report's conclusions, arguing that the Report impermissibly
resolves factual questions and makes improper credibility determinations. ECF No. 317 at 7.
Having reviewed the record, the Court concludes that this claim raises factual issues. See

Honor, 383 F.3d at 186. Accordingly, this Court SUSTAINS Mr. Robinson's objections and
DENIES summary judgment to NNI. ECF No. 141.
H.

Richard Bostic

Mr. Bostic asserted a claim for termination resulting from constructive discharge based

on race in the Second Amended Complaint. ECF No. 15 at 230-33. The Report concluded that
material facts are in dispute regarding whether Mr. Rustic's working conditions were intolerable,
and recommended denying summary judgment to NNI. ECF No. 296-3 at 2.

NNI objects to this conclusion, arguing that Mr. Bostic testified that he resigned because
of his commute and because of a supervisor's alleged denial and monitoring of breaks. ECF No.

45

316 at 11. Having reviewed the record, the Court finds that the determination about whether Mr.
Bostic suffered objectively intolerable working conditions remains unresolved. See Honor, 383
F.3d at 186. Accordingly, NNI's objections as to termination are OVERRULED and this Court
adopts the Report's recommendation to DENY summary judgment to NNI. ECF No. 147.
I.

Chris Pavton

Mr. Payton asserted a claim for termination based on race in the Second Amended
Complaint. ECF No. 15 at 230-33. The Report concluded that material issues of fact existed as
to whether Mr. Payton was terminated due to his race, and the Report recommended denying
summary judgment to NNI. ECF No. 296-3 at 30.

NNI objects to the Report's conclusions, arguing that Mr. Payton was terminated for
cause and that Mr. Payton did not put forth evidence to dispute this. ECF No. 316 at 12-13.

In order to establish a primafacie case for termination based on race, Mr. Payton needed
to show that he was performing at a level that met NNI's legitimate expectations, and that his
position remained open or was filled by a similarly qualified individual outside his protected
class. See McDonnell Douglas Corp., 411 U.S. at 792. A review of the record establishes that
Mr. Payton was terminated for photographing inside NNI against policy and posting photographs
on social media. See ECF No. 176. Mr. Payton did not present evidence that this proffered
nondiscriminatory reason was pretextual. See DeJarnette v. Corning Inc., 133 F.3d 293, 298
(4th Cir. 1998) (holding that plaintiffs must prove that the employer's legitimate, nondiscriminatory reason was false and that the real reason they were fired was discriminatory or
retaliatory animus to state a triable issue of fact). Accordingly, as to the alleged termination
based on race, this Court SUSTAIN'S NNI's objections and GRANTS summary judgment. ECF
No. 153.

46

J.

Dennis Smith

Mr. Smith asserted a claim for termination based on race in the Second Amended

Complaint. EOF No. 15 at 230-33. The Report recommended granting summary judgment to
NNI as to this claim. EOF No. 296-3 at 38. Mr. Smith does not object to the Report. Finding no

clear error, this Court ADOPTS the Report's findings and GRANTS summary judgment to NNI.
ECFNo. 155.

K.

David Swain

Mr. Swain asserted a claim for termination based on race in the Second Amended

Complaint. ECF No. 15 at 230-33. The Report concluded that material facts are in dispute
regarding whether Mr. Swain's working conditions were intolerable, and the Report
recommended denying summary judgment to NNI. ECF No. 296-3 at 49.

NNI objects to the Report's conclusions, arguing that Mr. Swain did not present evidence
that the conditions were so intolerable that a reasonable person would be forced to resign. ECF
No. 316 at 10.

Having reviewed the record, this Court finds that whether objectively intolerable working
conditions existed is an issue of material fact. See Honor^ 383 F.3d at 186. Accordingly, NNI's

objections as to termination are OVERRULED, and this Court adopts the Report's
recommendation to DENY summary judgment to NNI. ECF No. 159.
L.

Mark Bamett

Mr. Bamett asserted a claim for termination based on race in the Second Amended

Complaint. ECF No. 15 at 230-32. The Report concluded that Mr. Bamett failed to demonstrate
that he was terminated because of his race, and recommended granting summary judgment to

NNI. ECF No. 296-4 at 14. Mr. Bamett does not object to the Report's conclusions. Finding no

47

clear error, this Court ADOPTS the Report's findings and GRANTS summary judgment to NNI.
ECFNo. 163.
M.

John Harris

Mr. Harris asserted a claim for termination based on race in the Second Amended

Complaint. ECF No. 15 at 111-15. The Report recommended granting summary judgment to
NNI. ECF No. 296-4 at 34. Mr. Harris does not object to the Report's conclusions regarding

this claim. Finding no clear error, this Court ADOPTS the Report's findings and GRANTS
summary judgment to NNI. ECFNo. 167.
N.

Theo Pierce

Mr. Pierce asserted a claim for termination based on race in the Second Amended

Complaint. ECF No. 15 at 137-42. The Report recommended granting summary judgment to
NNI. ECF No. 296-5 at 9. Mr. Pierce does not object to the Report's conclusions regarding this
claim. Finding no clear error, this Court ADOPTS the Report's findings and GRANTS summary
judgment to NNI. ECF No. 173.
O.

Lamarr Jovner

Mr. Joyner asserted a claim for termination based on race in the Second Amended

Complaint. ECF No. 15 at 203-06. The Report concluded that material issues of fact existed as
to whether Mr. Joyner was terminated due to his race, and recommended denying summary
judgment to NNI. ECF No. 296-5 at 28.

NNI objects to the Report's conclusions, arguing that Mr. Joyner was terminated for

cause and that Mr. Joyner did not put forth any evidence to dispute this. ECF No. 316 at 12-13.
To establish a primafacie case for termination based on race, Mr. Joyner needed to show
that he was performing at a level that met NNl's legitimate expectations, and that his position

48

remained open or was filled by a similarly qualified individual outside his protected class. See

McDonnell Douglas Corp., 411 U.S. at 792. A review of the record establishes that Mr. Joyner
was terminated for photographing inside NNI against policy and posting photographs on social

media.

See ECF No. 176.

Mr. Joyner did not present evidence that this proffered

nondiscriminatory reason was pretextual. See DeJarnette v. Corning Inc., 133 F.3d 293, 298
(4th Cir. 1998) (holding that plaintiffs must prove that the employer's legitimate, non-

discriminatory reason was false and that the real reason they were fired was discriminatory or
retaliatory animus in order to state a triable issue of fact). Accordingly, as to termination based

on race, this Court SUSTAIN'S NNI's objections and GRANTS summary judgment. ECF No.
175.

P.

Donvelle Pierce

Mr. Pierce asserted a claim for constructive discharge in the Second Amended

Complaint. ECF No. 15. The Report found that Mr. Pierce abandoned this claim. ECF No. 294
at 9-10. Mr. Pierce did not object to this finding. Finding no clear error as to this claim, this
Court ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF No. 171.
IV.

RETALIATION CLAIMS

The plaintiffs below have asserted claims for retaliation. This section addresses the

Reports' recommendations regarding these claims and their related objections.
1.

LEGAL STANDARDS

Section 1981 provides a remedy for a plaintiff claiming retaliation in response to

complaining about a Section 1981 violation. See e.g. Humphries, 553 U.S. at 451. A plaintiff
may prove a claim of retaliation "either through direct or indirect evidence of retaliatory animus,
or through the burden-shifting framework" set forth in McDonell Douglas. Foster v. Univ of

49

Maryland-Eastern Shore, 787 F.3d 243, 249(4th Cir. 2015)(citing McDonnell Douglas Corp. v.
Green,411 U.S. 792(1973)).

As reviewed above, the McDonnell Douglas framework requires a plaintiff to establish a

primafacie case ofretaliation by showing that(i)the plaintiff engaged in a protected activity;(ii)
the employer took an adverse employment action against the plaintiff; and (iii) there was a causal
link between the protected activity and the adverse employment action. Guessons v. Fairview

Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016); Foster, 787 F.3d at 250; EEOC v. Navy
Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005). If the plaintiff establishes a prima

facie case of retaliation, the burden shifts to the employer to "show that its purported retaliatory

action was in fact the result oflegitimate non-retaliatory reason." Foster, 787 F.3d at 250. Ifthe

employer does so, the burden shifts back to the plaintiff to rebut the employer's evidence by
demonstrating that the employer's "purported nonretaliatory reasons 'were not [their] true
reasons, but were a pretext'" for retaliation. Id.
2.

ANALYSIS

A.

Ernest Chesson

Mr. Chesson asserted a claim for retaliation based on race in the Second Amended

Complaint. ECF No. 15. The Report concluded that NNI's counsel failed to address Mr.
Chesson's retaliation claim in its memorandum, and recommended denying summary judgment
toNNI. ECF No. 296-1 at 3.

NNI objects to the Report's conclusions, arguing that Mr. Chesson did not plead a
retaliation claim and that even if he did, no actionable claim exists. ECF No. 316 at 23-24.

Having reviewed the record, this Court finds that NNI failed to address Mr. Chesson's retaliation
claim in its memorandum in support of summary judgment. Accordingly, as to Mr. Chesson's

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relation claim, this Court OVERRULES NNFs objections and adopts the Report's
recommendation to DENY summary judgment to NNI. ECF No. 115.
B.

Willie Kershaw

Mr. Kershaw asserted a claim for retaliation based on termination in the Second

Amended Complaint. ECF No. 15 at 230-32. The Report concluded that Mr. Kershaw failed to
establish a prima facie claim of retaliation, and recommended granting summary judgment to
NNI. ECF No. 296-1 at 15. Mr. Kershaw does not object to the Report's conclusions as to his

retaliation claim. Finding no clear error, this Court ADOPTS the Report's findings and
GRANTS summary judgment to NNI. ECF No. 119.
C.

Ronald Valentine

Mr. Valentine asserted a claim for retaliation in the Second Amended Complaint. ECF

No. 15. The Report concluded that Mr. Valentine failed to establish a primafacie case because

his employer was unaware of the protected activity, and recommended granting summary
judgment to NNI. ECF No. 296-1 at 28-31. Mr. Valentine does not object to the Report's
conclusions as to his retaliation claim. Finding no clear error, this Court ADOPTS the Report's
findings and GRANTS summary judgment to NNI. ECF No. 123.
D.

Jonathan Dantes

The Report concluded that Mr. Dantes did not assert a claim for retaliation. ECF No.
266-1 at 33. Mr. Dantes does not object to this conclusion. Finding no clear error, this Court
ADOPTS the Report's finding that Mr. Dantes never raised a retaliation claim. ECF No. 125.
E.

Lamar Holloman

Mr. Holloman asserted a claim for retaliation based on race in the Second Amended

Complaint. ECF No. 15 at 230-33. The Report concluded that Mr. Holloman failed to make a

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primafacie case of retaliation, and recommended granting summary judgment to NNI. ECF No.
296-2 at 14. Mr. Holloman does not object to the Report's conclusions regarding his retaliation
claim. Finding no clear error, this Court ADOPTS the Report's findings and GRANTS summary
judgment to NNI. ECF No. 133.
F.

Willie Nichols

Mr. Nichols asserted a claim for retaliation based on race in the Second Amended

Complaint. ECF No. 15 at 230-33. The Report concluded that Mr. Nichols failed to make a
primafacie case of retaliation and recommended granting summary judgment to NNI. ECF No.
296-2 at 28. Mr. Nichols does not object to the Report's conclusions regarding his retaliation
claim. Finding no clear error, this Court ADOPTS the Report's findings and GRANTS summary
judgment to NNI. ECF No. 139.
G.

Richard Bostic

Mr. Bostic asserted a claim for retaliation based on race in the Second Amended

Complaint. ECF No. 15 at 230-33. The Report concluded that Mr. Bostic failed to make a
prima facie case of retaliation, and that even if he had, NNI had produced a legitimate,
nonretaliatory explanation, and the Report recommended granting summary judgment to NNI.
ECF No. 296-3 at 2-7. Mr. Bostic does not object to the Report's conclusions. Finding no clear

error, this Court ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF
No. 147.

H.

Chris Pavton

Mr. Payton sisserted a claim for retaliation based on race in the Second Amended

Complaint. ECF No. 15 at 230-33. The Report concluded that Mr. Payton demonstrated a
genuine dispute of material fact as to his retaliation claim, and recommended denying summary

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judgment to NNI. ECF No. 296-3 at 30. NNI objects to the Report's conclusions, arguing that

Mr. Payton failed to put forth evidence of facts that specifically refute NNI's reason for
terminating Mr. Payton's employment (taking photographs inside the facility and posting them
on social media, against company policy). ECF No. 316 at 13.
Having reviewed the record, the Court finds that Mr. Payton failed to put forth sufficient
evidence that refutes NNI's proffered reason for terminating Mr. Payton. See Bryan v. Prince
George's Cty. Md, No. DKC 10-2452, 2011 WL 2650759, at *6 (D. Md. July 5, 2011), affd,
484 F. App'x 775 (4th Cir. 2012)("A litigant carmot simply dub an employer's explanation false
without supporting evidence. Instead,[the litigant] must point to facts that render the employer's

reason so questionable as to raise an inference of deceit."). Accordingly, this Court SUSTAINS
NNI's objection, and GRANTS summary judgment to NNI. ECF No. 153.
I.

Dennis Smith

Mr. Smith asserted a claim for retaliation in the Second Amended Complaint. ECF No.

15 at 230-33. The Report concluded that NNI proffered a legitimate, nonretaliatory reason for
terminating Mr. Smith, and recommended granting summary judgment to NNI. ECF No. 296-3
at 39. Mr. Smith does not object to the Report's conclusions. Finding no clear error, this Court
ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF No. 155.
J.

David Swain

Mr. Swain asserted a claim for retaliation in the Second Amended Complaint. ECF No.

15. The Report concluded that Mr. Swain failed to make a prima facie case of retaliation and
recommended granting summary judgment to NNI. ECF No. 296-3 at 51. Mr. Swain does not
object to the Report's conclusions regarding his retaliation claim. Finding no clear error, this
Court ADOPTS the Report's findings and GRANTS summary judgment to NNI. ECF No. 159.

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K.

Jamesina Crawford

Ms, Crawford asserted claims for race and gender retaliation in the Second Amended

Complaint. ECF No. 15. As to race retaliation, the Report applied the McDonnell Douglas
framework and concluded that NNI proffered a legitimate and nonretaliatory reason for Ms.
Crawford's termination, and recommended granting summary judgment to NNI. ECF No. 296-4

at 26-27. As to gender retaliation, the Report recommended that this claim should fail for the
same reason, and recommended granting summary judgment to NNI. ECF No. 296-4 at 27.
Ms. Crawford objects to the Report's conclusions, arguing that she put forth sufficient
evidence that NNI's proffered reasons were pretextual. ECF No. 317 at 10-12. Having
reviewed the record, the Court finds that Ms. Crawford was terminated for persistent absences

and refusing to return to work despite being cleared by a medical provider to do so.
Accordingly, this Court OVERRULES Ms. Crawford's objections and adopts the Report's
recommendation to GRANT summary judgment to NNI. ECF No. 165.
L.

John Harris

Mr. Harris asserted a claim for retaliation based on race in the Second Amended

Complaint. ECF No. 15. The Report concluded that because NNI's decision to terminate Mr.
Harris was decided before Mr. Harris complained about racial discrimination, he has failed to
make a prima facie showing of retaliation, and the Report recommended granting summary
judgment to NNI. ECF No. 296-4 at 34-35.

Having reviewed the record, the Court finds that Mr. Harris did not make out a case of
retaliation based on race. Furthermore, Mr. Harris was never an employee of NNI and cannot be

held liable for retaliation. Accordingly, this Court OVERRULES Mr. Harris' objections and
adopts the Report's recommendation to GRANT summary judgment to NNI. ECF No. 167.

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M.

Tourke Hooker

Mr. Hooker asserted a claim for retaliation based on race in the Second Amended

Complaint. EOF No. 15. The Report concluded that Mr. Hooker failed to proffer evidence of an
adverse employment action, and recommended granting summary judgment to NNI. ECF No.
296-4 at 48-49. Mr. Hooker does not object to the Report's conclusions regarding retaliation.
Finding no clear error, this Court ADOPTS the Report's findings and GRANTS summary
judgment to NNI. ECF No. 169.
N.

Lamarr Jovner

Mr. Joyner asserted a claim for retaliation in the Second Amended Complaint. ECF No.
15. The Report concluded that Mr. Joyner demonstrated a genuine dispute of material fact
regarding his retaliation claim, and recommended denying summary judgment to NNI. ECF No.
296-5 at 22-28.

NNI objects to the Report's conclusions, arguing that Mr. Joyner failed to put forth
evidence that specifically refutes NNI's reason for terminating Mr. Joyner's employment(taking
photographs inside the facility and posting them on social media, against company policy). ECF
No. 316 at 14.

Having reviewed the record, the Court finds that Mr. Joyner failed to put forth evidence
that refuted NNI's proffered reason for terminating Mr. Joyner. See Bryan v. Prince George's

Cty. Md, 2011 WL 2650759, at *6 (D. Md. July 5, 2011), aff'd, 484 F. App'x 775 (4th Cir.
2012) ("A litigant cannot simply dub an employer's explanation false without supporting

evidence. Instead, [the litigant] must point to facts that render the employer's reason so
questionable as to raise an inference of deceit."). Accordingly, this Court SUSTAINS NNI's
objection and GRANTS surmnary judgment to NNI. ECF No. 175.

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0.

Donvelle Pierce

Mr. Pierce asserted a claim for retaliation in the Second Amended Complaint. EOF No.

15. The Report found that Mr. Pierce abandoned this claim. EOF No. 294 at 9-10. Mr. Pierce
did not object to this finding. Finding no clear error as to this claim, this Court ADOPTS the
Report's findings and GRANTS summary judgment to NNI. ECF No. 171.
V.

FAMILY MEDICAL LEAVE ACT CLAIMS

Dennis Smith is the only plaintiff to bring a claim under the Family Medical Leave Act

("FMLA"). This section addresses the applicable standards regarding his claim, the Report's
recommendation, and this Court's adoption ofthis recommendation.
1.

LEGAL STANDARDS

The FMLA provides covered employees with two kinds of rights and protections. First,
covered employees who take a leave of absence for family or medical reasons qualify for
numerous substantive entitlements. These employees are "entitled to a total of 12 workweeks of

leave during any 12-month period" for matters related to the employees' family and health, 29
U.S.C. § 2612(a)(1), and each of these employees has a right "to be restored by the employer to
the position of employment held by the employee when the leave commenced," or to "an

equivalent position with equivalent employment benefits, pay, and other terms and conditions of
employment." Id. § 2614(a)(l)(A)-(B). Leave taken under the FMLA "shall not result in the
loss of any employment benefit accrued prior to the date on which the leave commenced." Id. §
2614(a)(2).

However, a restored employee is not entitled to "any right, benefit, or position of
employment other than any right, benefit, or position to which the employee would have been
entitled had the employee not taken the leave." Id. § 2614(a)(3)(B).

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These substantive rights, and their accompanying protections, see id. § 2615(a)(1), are

prescriptive, "set[ting] substantive floors for conduct by employers, and creating entitlements for
employees." Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159(1st Cir. 1998)(quoting Diaz
V. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir. 1997))(internal quotation marks
omitted)(amendment in original); see also Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016
(7th Cir. 2000)(explaining that "in §§ 2612-2615, the Act contains prescriptive protections for
employees that are expressed as substantive statutory rights"). Claims of alleged violations of
these prescriptive rights—^known as "interference" or "entitlement" claims—^arise under 29
U.S.C.A. § 2615(a)(1), which states that "[i]t shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this
subchapter."

To state a claim of interference with FMLA rights, a plaintiff must establish that(1) the

employee was an eligible employee,(2) the defendant was an employer as defined under the
FMLA,(3) the plaintiff was entitled to leave under the FMLA,(4) the employee gave the
employer notice of the intention to take leave, and (5)the employer denied the employee FMLA
benefits to which the employee was entitled. Ainsworth v. Loudon Cnty. Sch. Bd,851 F. Supp.

2d 963, 975 (E.D. Va. 2012) {quoting Bullock v. Kraft Foods, Inc., No. 3:llcv36, 2011 WL
5872898, at *4 (E.D. Va. Nov. 22, 2011)(unpublished)) (internal quotation marks omitted);
accord Edgar v. JAC Prods., Inc., 443 F.3d 501,507(6th Cir. 2006).
2.

ANALYSIS

Dennis Smith is the only plaintiff to bring a claim under the FMLA. See ECF No. 15 at

235. The Report concluded that Mr. Smith failed to state a claim upon which relief can be

granted and also failed to refute NNI's claim for summary judgment, thus constituting waiver of

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this claim. ECF No. 296-3 at 40. The Report recommended granting summary judgment to
NNI. ECF No. 296-3 at 40. Mr. Smith did not object to the Report's conclusions. Finding no
clear error, this Court ADOPTS the Report's findings and GRANTS summary judgment to NNI.
ECF No. 155.

VI.

GENDER DISCRIMINATION CLAIMS

Ms. Crawford is the only plaintiff to bring a gender discrimination claim. This section

addresses the applicable standards regarding her claim, the Report's recommendation, and this
Court's adoption ofthis recommendation.
1.

LEGAL STANDARDS

A plaintiff may establish a case of gender discrimination through direct evidence of
discrimination. See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 240 (4th Cir. 1982).

Alternatively, a plaintiff may attempt to establish a prima facie case of gender discrimination
through use ofthe McDonnell Douglas burden shifting framework. Id.
Absent direct evidence of discrimination, a plaintiff must demonstrate (1) membership in

a protected class; (2) satisfactory job performance; (3) infliction of an adverse employment
action; and (4) that similarly situated employees outside the plaintiff's protected class were
treated differently. Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619,626(4th Cir. 2015).
If a plaintiff can establish such a primafacie case, the burden shifts to the employer to

show some legitimate, nondiscriminatory reason for the employment action. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Upon such a showing, the burden
shifts back, and the employee has the burden of proof to show by a preponderance of the
evidence that the legitimate reasons offered by the employer were not true reasons, but were
pretext. Id.

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2.

ANALYSIS

Ms. Crawford is the only plaintiff to bring a gender discrimination claim. ECF No. 15 at

234. The Report concluded that Ms. Crawford failed to address the gender discrimination claim
and therefore waived her claim. ECF No. 296-4 at 29. The Report recommended granting

summary judgment to NNl. ECF No. 296-4 at 29. Ms. Crawford does not object to the Report's
conclusions regarding her gender discrimination claim. Finding no clear error, this Court
ADOPTS the Report's findings and GRANTS summary judgment to NNl. ECF No. 165.
Vll.

CONCLUSION

The Court has conducted a de novo review of the record and has carefully examined

recommendations of the Reports and the objections filed to those recommendations. Objections

filed by NNl regarding the recommendations on hostile work environment claims raised by the
following Plaintiffs are SUSTAINED: Anthony Alvarez, Marchello Fields, Willie Kershaw,
Derek Cross, Herbert Broughton, Gilbert Wiltz, John Harris, Tourke Hooker, Lamarr Joyner, and
Roderick Waddell, Jr.

The Objections filed by Donyelle Pierce as to hostile work environment are
OVERRULED.

The Objections filed by NNl regarding Anthony Alvarez's disparate treatment claim are
SUSTAINED.

The Objections filed by NNl regarding Chris Payton and Lamarr Joyner's termination
and retaliation claims are SUSTAINED.

The following Plaintiffs filed Objections regarding recommendations on disparate
treatment claims that are OVERRULED: Ian Blow, Emest Chesson, Marchello Fields, Willie

Kershaw, Ronald Valentine, Jonathan Dantes, Reggie Holliman, Lamar Holloman, Roderick

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Waddell, Sr., Brandon Walker, David Swain, Gilbert Wiltz, Jamesina Crawford, Tourke Hooker,
Theo Pierce, Roderick Waddell, Jr., and Donyelle Pierce.

NNI's Objections regarding Steven Gordon's disparate treatment claim are
OVERRULED.

Objections filed by NNI regarding recommendations on termination claims brought by
the following plaintiffs are OVERRULED: Ernest Chesson, Marchello Fields, Lamar Holloman,
Richard Bostic, David Swain.

The following Plaintiffs' objections regarding recommendations concerning termination
claims are OVERRULED: Jonathan Dantes, Frantz Edouard.

NNI's Objections regarding Ernest Chesson's retaliation claim is OVERRULED.
Plaintiffs Jamesina Crawford and Tourke Hooker's objections regarding retaliation are
OVERRULED.

All other findings and recommendations of the Reports are ADOPTED AND
APPROVED.

Accordingly, NNI's Motions for Summary Judgment regarding Anthony Alvarez (ECF
No. 109), Willie Kershaw(ECF No. 119), Derek Cross(ECF No. 121), Herbert Broughton(ECF
No. 149), Gilbert Wiltz(ECF No. 161), John Harris (ECF No. 167), Tourke Hooker(ECF No.

169), Lamarr Joyner(ECF No. 175), Roderick Waddell, Jr.(ECF No. 181) and Donyelle Pierce
(ECF No. 171) are GRANTED. By this Final Order as to these Plaintiffs, their actions are
DISMISSED WITH PREJUDICE.

NNI's Motions for Summary Judgment regarding Ian Blow (ECF No. Ill), Ernest
Chesson (115), Marchello Fields (ECF No. 117), Ronald Valentine (ECF No. 123), Jonathan
Dantes(ECF No. 125), Franz Edouard (ECF No. 129), Reggie Holliman(ECF No. 131), Lamar

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Holloman (ECF No. 133), Alfred Joyner, Jr. (ECF No. 135), Willie Nichols (ECF No. 139),
Robert Robinson (ECF No. 141), Roderick Waddell, Sr.(ECF No. 143), Brandon Walker(ECF
No. 145), Richard Bostic(ECF No. 147), Steven Gordon(ECF No. 151), Chris Payton(ECF No.

1553), Dennis Smith(ECF No. 155), David Swain(ECF No. 159), Mark Bamett(ECF No. 163),
Jamesina Crawford (ECF No. 165), Theo Pierce (ECF No. 173), and Ronald Stewart(ECF No.
177) are GRANTED IN PART DENIED IN PART.

The Clerk of the Court is REQUESTED to please forward a copy of this Order to counsel
of record for these Plaintiffs and for Defendant NNI.
IT IS SO ORDERED.

QjLcL^
renda L. Wright Allen

Unit^ States District Judge

)rfolk, Virginia

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