Hairston v. Westlake Chemical Corporation et al

Filing 143

OPINION and ORDER denying 95 Motion for Summary Judgment. Signed by Judge James P. Jones on 4/12/19. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
MARK ANTHONY HAIRSTON,
Plaintiff,
v.
ROYAL BUILDING PRODUCTS, INC.,
Defendant.

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Case No. 1:18CV00003
OPINION AND ORDER
By: James P. Jones
United States District Judge

Thomas E. Strelka, Strelka Law Office, PC, Roanoke, Virginia, for Plaintiff;
Yvette V. Gatling, Littler Mendelson, P.C., McLean, Virginia, for Defendant.
In this employment discrimination case, the plaintiff asserts claims of racebased discrimination, retaliation, and hostile environment harassment under Title
VII of the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981. The
defendant has moved for summary judgment on all of the claims. I conclude that
genuine issues of material fact preclude the entry of summary judgment, and I will
therefore deny the defendant’s motion.
I.
Summary judgment is warranted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is material if its existence or nonexistence could result in a different jury verdict. JKC Holding Co. v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). When ruling on a summary
judgment motion, the court should consider the parties’ pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
“[C]ourts may not resolve genuine disputes of fact in favor of the party
seeking summary judgment.”

Tolan v. Cotton, 572 U.S. 650, 656 (2014).

“Summary judgment cannot be granted merely because the court believes that the
movant will prevail if the action is tried on the merits.” Jacobs v. N.C. Admin.
Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (quoting 10A Charles Alan
Wright et al., Federal Practice & Procedure § 2728 (3d ed. 1998)). The court may
not assess credibility on a motion for summary judgment. Id. at 569.
“Only evidence that would be admissible at trial may be considered for
summary judgment purposes.” Hunter v. Prince George’s Cty., 36 F. App’x 103,
106 (4th Cir. 2002) (unpublished). 1 “[H]earsay evidence, which is inadmissible at
trial, cannot be considered on a motion for summary judgment.” Md. Highways
Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991). The burden
is on the proponent of summary judgment material to show its admissibility. Fed.
R. Civ. P. 56(c)(1)(B) advisory committee’s note to 2010 amendment.

1

RBP has not objected to my consideration of any of the plaintiff’s evidence on
the ground that it would not be admissible at trial.
-2-

Rule 56 requires a party to support its assertion of facts by “citing to
particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.” Fed. R. Civ. P. 56(c)(1)(A). To the extent that the plaintiff’s
brief contains unsupported assertions, I will not consider them in deciding the
Motion for Summary Judgment.

The recitation of the facts set forth below

includes only those facts found in the record in evidence that would likely be
admissible at trial.
II.
The following facts taken from the summary judgment record are either
undisputed or, where disputed, are stated in the light most favorable to the plaintiff.
The plaintiff, Mr. Hairston, is black.

Beginning in February 2015, he

worked for defendant Royal Building Products (RBP) as a Senior Human
Resources Business Partner (Senior HRBP) at its Marion, Virginia, and Bristol,
Tennessee, manufacturing facilities. At the time Hairston was hired, John Gargaro
and Larry Peterson, both white, were Plant Managers. Although the decision to
hire Hairston was ultimately made by RBP’s corporate office, Gargaro advocated
against hiring Hairston and Peterson lobbied in favor of hiring Hairston.
Hairston’s offer letter stated that he would be reporting to the Director of Human
-3-

Resources “with a dotted line relationship to plant management of our plants in
Marion, Virginia and Bristol, Tennessee.” Def.’s Mem. Supp. Ex. 1 at 1, ECF No.
95-2.
Shortly after beginning his new role as Senior HRBP, Hairston met with
black employees who worked in manufacturing roles at the Marion plant. These
employees expressed to Hairston that they had experienced or witnessed racism at
the plant. The employees specifically indicated that Gargaro and Plant Engineer
Greg Brown, who was white, held racist views. Not long after Hairston began his
employment with RBP, he received harassing phone calls at the plant in which an
unidentified individual stated, “Nigger, you need to leave here.” Pl.’s Br. Opp’n
Ex. 1, Hairston Dep. 187-88, ECF No. 113-1. Hairston reported the calls to his
supervisor.
Hairston’s initial supervisor was Director of Human Resources Stephen
Ryan, who was based in Canada. For his new position, Hairston had to relocate
from Martinsville, Virginia, to Abingdon, Virginia, which is situated between
Bristol and Marion.

Hairston’s family remained several hours away in

Martinsville. Hairston was initially allowed to use a company vehicle to travel
from Abingdon to Martinsville during the relocation process, in accordance with
company policy. Hairston became aware that Gargaro did not approve of Hairston
using the company car to travel home to Martinsville, so Hairston only used the
-4-

company car for that purpose a handful of times. Caucasian employees were
permitted to use the company car for relocation purposes for a much longer period
of time than Hairston.
Gargaro prevented Hairston from using a company vehicle to travel between
the Marion and Bristol plants. Gargaro allowed white employees to freely use
company vehicles for that purpose. Hairston sought from Ryan permission to hire
a subordinate employee. Ryan granted him permission to do so, and Hairston hired
someone.

This angered Gargaro, who then insisted that Hairston report his

activities to Gargaro, despite the fact that Gargaro was not Hairston’s direct
supervisor. At some point, Gargaro told Hairston that he was causing problems.
Hairston was the only black management-level employee at the Marion and
Bristol plants. At some point, Brown became the plant manager of the Bristol
facility. Brown and Gargaro held weekly managers meetings to which they did not
invite Hairston. When Hairston eventually learned of the meetings, he insisted that
he be included in them, and he ultimately was. During a training event at RBP’s
Columbus, Ohio, plant, Hairston was excluded from social activities by his white
peers. John McKinnon, Gargaro’s supervisor, invited Gargaro and Brown to have
dinner with him but did not invite Hairston, who was standing near them at the
time McKinnon extended the invitation. The Senior HRBP position description
stated that Hairston was supposed to spend “30% of the time operating as a
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strategic partner to leaders, 40% of the time operating as an engagement partner,
and the remaining 30% of the time handling employee relations.” Def.’s Mem.
Supp. Ex. 3, ECF No. 95-4. Hairston felt that by excluding him, Gargaro, Brown,
and McKinnon were refusing to partner with him and effectively preventing him
from doing his job.
Ryan gave Hairston permission to leave work in the early afternoon on
Fridays so that he could travel back to Martinsville to spend the weekend with his
family. Hairston would return to Abingdon on Sunday evenings and report to
work promptly on Monday mornings.

Hairston’s white peers frequently

complained to Ryan and his successor, Ted Marsh, that Hairston was absent. They
falsely accused him of not being at work on Mondays and Fridays and complained
that he was unavailable when he was in fact on site at the other plant. Ryan
investigated these complaints and determined that they were unfounded. Gargaro,
however, urged Ryan to terminate Hairston’s employment. On several occasions
in 2016, Brown told Hairston that Gargaro did not like black people and was trying
to get Hairston terminated because he was black.
While Ryan was investigating complaints regarding Hairston’s attendance
and availability, Ryan and Hairston went out to dinner together. Hairston related
to Ryan that he felt he was being subjected to a hostile work environment by
Gargaro and Brown.

Company policy provided that an employee’s direct
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supervisor was an appropriate person to whom to report racial discrimination,
retaliation, and harassment.

Hairston told Ryan that Gargaro had purposely

excluded him from meetings and that he had heard from others that Gargaro had
called him a “nigger” and did not like black people. Hairston Dep. 121, ECF No.
113-1. Ryan expressed sympathy and said that he would protect Hairston.
In December 2016 at a company awards dinner, Brown and Maintenance
Manager Randall Jacobson approached Hairston and commented about police
lights outside the venue. Brown remarked that Hairston “better go move [his] car,
. . . because the police don’t like blacks,” and Brown added, “you know the police
beat blacks.” Id. at 139.
In December 2016, Hairston complained to Ryan and then Marsh that he felt
he was being subjected to a racially hostile working environment. Ben Adams, a
white managerial employee, had told Hairston that Brown had referred to Hairston
as a “nigger” in a text message and had otherwise disparaged Hairston on account
of his race. Id. 133-34. Hairston relayed this information to Ryan and Marsh. In
January 2017, shortly after Marsh became Hairston’s supervisor, Marsh responded
to Hairston’s complaints by suggesting that he “just leave and quit and move back
home.” Id. 146. The record contains no evidence that Ryan or Marsh investigated
Hairston’s complaints of harassment or Brown’s alleged use of a racial slur prior to
Hairston’s termination.
-7-

RBP asserts that Hairston was terminated as part of a reduction in force
because the human resources department was overstaffed due to the acquisition of
RBP’s parent corporation by Westlake Chemical Corporation (Westlake). It has
conceded, however, that Hairston was the only person whose position was
eliminated as part of that particular restructuring.2

Hairston, whose job

responsibilities as Senior HRBP had included participating in terminations,
testified in his deposition that reductions in force were essentially pretexts used to
terminate undesired employees or to shift employees to preferred roles.
On February 21, 2017, Marsh, an employee of Westlake, told Hairston that
Hairston’s employment was being terminated due to a reduction in force. Marsh
testified that Hairston was chosen as the HRBP to be terminated through the use of
a slating process, but the metrics used in the slating process were subjective and
substantially relied on input from Gargaro and Brown. Marsh testified, “What I
did was ask them just in general questions: How does Mr. Hairston do, you know,
2

Counsel for RBP made this concession in a hearing before Magistrate Judge
Sargent. In support of its Motion for Summary Judgment, however, RBP has submitted
an affidavit of Marsh stating that another employee named Maggie Webb, a white
female, was also terminated as part of the same restructuring of the human resources
department. RBP’s counsel has represented to the court that she did not actually intend to
concede that the plaintiff was the only person terminated in the restructuring. For the
purpose of deciding the Motion for Summary Judgment, I must view the evidence in the
light most favorable to the plaintiff. At a minimum, counsel’s apparent concession
before Judge Sargent creates a dispute of fact as to whether the plaintiff was the only
person terminated in the purported reduction in force. Drawing all inferences in the
plaintiff’s favor, as I must at this procedural juncture, I will consider the plaintiff to have
been the only member of the human resources department terminated in the restructuring.
-8-

what does he do, how does he do it, those type of questions, what’s been your
experience that he’s supporting both of you as plant managers, et cetera.” Def.’s
Mem. Supp. Ex. 10, Marsh Dep. 37, ECF No. 95-11.
Marsh testified that Hairston had scored lower than the other employees on
the managerial metric. At the time Marsh sought feedback regarding Hairston’s
performance, he was aware of Hairston’s complaints that Brown and Gargaro had
been subjecting him to a racially hostile work environment. Not long before
Marsh conducted the slating process, Ryan had told Marsh that Hairston was “a
good HR business partner, that he had a good relationship with a lot of people in
the plant, especially frontline supervisors and employees on the shop floor.” Pl.’s
Br. Opp’n Ex. 2, Ryan Dep. 15, ECF No. 113-2. Ryan had also told Marsh that
there was tension between Hairston and Brown and that other supervisors also
experienced tension with Brown.
The individuals involved in the slating process included the plant managers
for the Bristol and Marion plants, the director of manufacturing, the group vice
president, Marsh, the talent management director, internal counsel, and the vice
president of human resources. According to Marsh, no one individual had sole
authority for terminating Hairston. Rather, pursuant to a delegation of authority
document, Marsh solicited input and made a recommendation which was then

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approved by both the director of talent management and internal legal counsel Joel
Gray.
Four people were assessed through the slating process, and Hairston
received the lowest score. The other three people were white. The highest scoring
person, Kim Agner, was selected to fill the newly created role of Manager —
Human Resources. There is some dispute about whether this new role was a
promotion or lateral move for Agner.
Adams testified that shortly after Hairston was terminated, Brown made a
statement to the effect of “‘we’re finally rid of the [nigger],’ or ‘they finally got rid
of the [nigger],’ or ‘we’re finally done with the [nigger].’” Pl.’s Br. Opp’n Ex. 4a,
Adams Dep. 12, ECF No. 113-7.

Adams reported the comment to human

resources, and Brown was ultimately terminated approximately two months after
Hairston’s termination. Brown’s use of the racial slur was one reason for his
termination.
RBP had an Equal Employment Opportunity and Harassment Policy, which
Hairston acknowledged receiving at the beginning of his employment.

After

Westlake acquired RBP, Hairston received a copy of Westlake’s Code of Conduct,
which contained several provisions related to employment discrimination and
harassment. The Code of Conduct states that “[a]ny form of harassment including
unlawful harassment based on race” is “unacceptable.” Def.’s Mem. Supp. Ex. 5
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at 3, ECF No. 95-6. The Code encourages employees to “report your concerns to
your immediate supervisor, manager, any Human Resources Representative or the
Office of the General Counsel.” Id. at 5. The Code prohibits managers from
taking retaliatory action against anyone who reports a concern about unethical or
illegal conduct. In a section entitled Equal Employment Opportunity, the Code
states, “It is Westlake’s policy to ensure equal employment and advancement
opportunity for all qualified individuals without distinction or discrimination
because of race . . . .” Id. at 15. The next section, entitled Harassment, states that
“Westlake will not tolerate any harassment of any kind.” Id. at 16. It further
reads,
Complaints about harassment by a Westlake employee or any other
person with whom Westlake does business can be made to My Safe
Workplace, your supervisor, the Human Resources department and/or
the Office of the General Counsel of Westlake. You may choose any
of these alternatives to make a complaint and you do not need to
complaint to the person who you feel is harassing you.
Any complaints will be promptly, fairly and thoroughly
investigated consistent with the law, including following any
requirements under collective agreement or regulation. There will be
no retaliation for truthfully reporting harassment or participating in
Westlake’s investigation of a complaint.
Id.

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III.
A. Discriminatory Discharge.
Title VII prohibits an employer from discriminating against an employee
based on the employee’s race. See 42 U.S.C. § 2000e–2(a)(1). 3 There are two
alternative methods of stating a Title VII claim for discrimination: the mixedmotive framework, in which “it is sufficient for the individual to demonstrate that
the employer was motivated to take the adverse employment action by both
permissible and forbidden reasons”; or the pretext framework, “under which the
employee, after establishing a prima facie case of discrimination, demonstrates that
the employer’s proffered permissible reason for taking an adverse employment
action is actually a pretext for discrimination.” Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 284, 285 (4th Cir. 2004) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 807 (1973)). Under either theory, “[t]he ultimate
question in every employment discrimination case involving a claim of disparate
treatment is whether the plaintiff was the victim of intentional discrimination.”
Hill, 354 F.3d at 286 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 153 (2000)).
3

Section 1981 “affords no greater substantive protection than Title VII.” Netter
v. Barnes, 908 F.3d 932, 937 n.1 (4th Cir. 2018) (citation omitted); see also Guessous v.
Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (explaining that standards
developed for Title VII are regularly applied to § 1981 discrimination and retaliation
claims). Therefore, the court’s analysis of Hairston’s Title VII claims will also apply to
his corresponding § 1981 claims.
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“Direct evidence must be evidence of conduct or statements that both reflect
directly the alleged discriminatory attitude and that bear directly on the contested
employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir.
2006) (internal quotation marks and citation omitted). “Even if there is a statement
that reflects a discriminatory attitude, it must have a nexus with the adverse
employment action.”

Id.

“Isolated remarks unrelated to the challenged

employment decision are insufficient to provide direct evidence of discrimination.”
Finkle v. Howard Cty., 640 F. App’x 245, 248 (4th Cir. 2016) (unpublished).
A plaintiff who has no direct evidence of discrimination can proceed under
the McDonnell Douglas burden-shifting framework. Under McDonnell Douglas,
the plaintiff has the initial burden of establishing a prima facie case of employment
discrimination. In most cases, a prima facie case consists of proof that: (1) he is a
member of a protected class; (2) he was qualified for his position and his
performance was satisfactory; (3) he suffered an adverse employment action; and
(4) he was replaced by an individual outside of the protected class. McDonnell
Douglas, 411 U.S. at 802. In reduction-in-force cases, however, the prima facie
case differs somewhat, particularly as to the final element. Because RBP contends
that Hairston was terminated in a reduction in force, Hairston is “required to show
that [his] job duties were absorbed by employees not in the protected class or

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otherwise show that [RBP] did not treat [Hairston’s] protected characteristics
neutrally when deciding to terminate [him].” Guessous, 828 F.3d at 219.
Once the plaintiff establishes a prima facie case, the burden shifts to the
defendant to respond with evidence that it had a legitimate, non-discriminatory
reason for its action. Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004). If
the defendant is able to make this showing, the burden shifts back to the plaintiff to
present evidence that the defendant’s articulated reason was pretext for unlawful
discrimination. Id. “Although the evidentiary burdens shift back and forth under
the McDonnell Douglas framework, ‘[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plaintiff remains at
all times with the plaintiff.’” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)).
Here, Brown’s statement to Adams immediately after Hairston’s termination
qualifies as direct evidence that racial discrimination played a role in the
termination. RBP contends that Brown’s use of a racial slur to refer to Hairston is
merely an isolated comment by a nondecisionmaker, but that is not an entirely
accurate reading of the record.

Marsh testified that there was no sole

decisionmaker with respect to Hairston’s termination. Brown was one of a handful
of people who provided input to Marsh that resulted in Marsh giving Brown a low
score on the slating document, which led to his termination. Hairston had a
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“dotted-line relationship” to Brown, the plant manager of one of the two plants for
which Hairston was responsible, suggesting that Brown had at least some
supervisory authority over Hairston. Marsh, who collected the information for the
slating process, had only known Hairston for a short time and was an employee of
Westlake, not RBP. Brown and Gargaro were the managerial representatives of
RBP who gave feedback that led to Hairston being given a low score on the slating
document. And while Marsh may not have expressly told Brown why he was
asking about Hairston, a jury could infer that Brown understood that Marsh, a
senior human resources executive from the parent company that recently acquired
RBP, was asking questions about Hairston’s performance in order to evaluate him
for termination.

Moreover, Brown’s comment expressly referred not just to

Hairston, but to his termination. I conclude that Brown’s statement is sufficient
direct evidence of discrimination for Hairston to meet his burden of production and
survive summary judgment as to Count I.
Even if the comment were not direct evidence of discrimination, I conclude
that Hairston has satisfied his initial and ultimate burden of production under the
McDonnell-Douglas burden shifting test. As to the prima facie case, there is no
dispute that Hairston is a member of a protected class and suffered an adverse
employment action when he was terminated. Ryan’s testimony satisfies Hairston’s
burden of establishing that he was performing satisfactorily. And of the four
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employees who were considered in the slating process, the two who were allowed
to keep their jobs and who absorbed Hairston’s duties were both outside of the
protected class.
RBP has offered a legitimate, nondiscriminatory reason for terminating
Hairston: his position was eliminated in a reduction in force following RBP’s
acquisition by Westlake. The burden therefore shifts back to Hairston to offer
evidence from which a jury could conclude that RBP’s proffered reason was untrue
and a pretext for race-based discrimination. He has met this burden. Based on
Brown’s statement following Hairston’s termination, Ryan’s testimony that Brown
and Hairston had a tense and unfriendly relationship, and Hairston’s own
testimony about what Brown and others said to him, 4 reasonable jurors could find

4

RBP disregards most of Hairston’s testimony and argues that the court cannot
consider the plaintiff’s self-serving statements when deciding a motion for summary
judgment. But counsel for RBP misconstrues the law on this point. The Fourth Circuit
has said that “a self-serving opinion . . . cannot, absent objective corroboration, defeat
summary judgment.” Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004)
(emphasis added). Here, Hairston is not offering his own opinions regarding his job
performance or the reason for his termination. He can competently testify about events
he witnessed and statements that company representatives made to him. Those are facts,
not opinions. That other witnesses contradict aspects of his testimony simply creates
factual disputes that must be resolved by a jury, which will have to assess the credibility
of Hairston and of other witnesses. See Lee-Thomas v. Prince George’s Cty. Pub. Sch.,
Civil Action No. DKC 15-2010, 2017 WL 2733802, at *6 (D. Md. June 26, 2017)
(summarizing Fourth Circuit cases regarding plaintiffs’ self-serving affidavits and
explaining that the general rule is “that a court should not weigh the credibility of
testimony of one party against the testimony of another at the summary judgment stage,
even if it is self-serving”). Additionally, Hairston’s testimony is corroborated at least in
part by the testimony of Ryan and Adams, who confirm that Hairston was good at his job,
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that the slating process was pretextual and that race-based discrimination was the
real reason Hairston was terminated.
B. Retaliatory Discharge.
To succeed on a claim of retaliation under Title VII, a plaintiff must prove
three elements: “1) the employee engaged in protected activity; 2) the employer
took adverse employment action against the employee; and 3) a causal connection
existed between the protected activity and the adverse action.” Munday v. Waste
Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997) (citation omitted).
Protected activity includes complaints about race-based harassment that the
employee reasonably believes is creating a hostile work environment. See BoyerLiberto v. Fontainebleau Corp., 786 F.3d 264, 284 (4th Cir. 2015). Regarding the
third element, “[a] plaintiff’s own self-serving opinions, absent anything more, are
insufficient” to prove that an adverse employment action was linked to protected
activity. Mackey v. Shalala, 360 F.3d 463, 469–70 (4th Cir. 2004). To establish
causality, the protected activity “must have actually played a role in the employer’s
decisionmaking process and had a determinative influence on the outcome.”
Reeves, 530 U.S. at 141 (internal quotation marks, citation and alterations omitted).
“It is the perception of the decision maker which is relevant to the question of
retaliation . . . .” Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 444 (4th Cir.
that he had a strained relationship with Brown, and that Brown did in fact hold racist
views and was happy when Hairston was terminated.
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1998), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002).
Here, the record evidence, viewed in the light most favorable to Hairston,
establishes that Hairston engaged in the protected activity of reporting racial
harassment to his direct supervisors. It is undisputed that his termination was an
adverse employment action.

As to causation, there is evidence that Marsh

recommended Hairston’s termination within two months of when Hairston
complained to Marsh about what he perceived to be a racially hostile environment.
Marsh had also allegedly responded to Hairston’s complaints by suggesting that
Hairston resign.

While temporal proximity is not always sufficient to infer

causation, in this case, I find that when coupled with Marsh’s alleged advice, the
short length of time between Hairston’s complaints and his termination are enough
to overcome RBP’s summary judgment motion on the retaliation claims.
C. Hostile Environment Harassment.
The language of Title VII “is not limited to economic or tangible
discrimination,” but also includes “requiring people to work in a discriminatorily
hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (internal quotation marks and citations omitted). A hostile environment
exists “[w]hen the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
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the victim’s employment and create an abusive working environment.”

Id.

(internal quotation marks and citations omitted). To prevail on a Title VII claim of
a hostile work environment, “a plaintiff must show that there is (1) unwelcome
conduct; (2) that is based on the plaintiff’s . . . race; (3) which is sufficiently severe
or pervasive to alter the plaintiff’s conditions of employment and to create an
abusive work environment; and (4) which is imputable to the employer.” Boyer–
Liberto, 786 F.3d at 277 (internal quotation marks and citations omitted).
“Whether the environment is objectively hostile or abusive is judged from the
perspective of a reasonable person in the plaintiffs position,” and may be
determined based on “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.” Id.
(internal quotation marks and citations omitted).
I “must look at all the circumstances to determine whether a work
environment is hostile or abusive.” Conner v. Schrader-Bridgeport Int’l, Inc., 227
F.3d 179, 193 (4th Cir. 2000). Conduct directed to people other than the plaintiff
can properly be considered in assessing as hostile environment claim, as the
environment of workplace hostility “may exceed the individual dynamic between

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the complainant and his supervisor.” 5 Spriggs v. Diamond Auto Glass, 242 F.3d
179, 184 (4th Cir. 2001).

The Fourth Circuit has stated that “whether the

harassment was sufficiently severe or pervasive to create a hostile work
environment is quintessentially a question of fact for the jury, as is the issue of the
plaintiff’s credibility.” Conner, 227 F.3d at 199–200 (internal quotation marks and
citations omitted).
Fourth Circuit precedent clearly establishes that the use of the word “nigger”
in the workplace is severe. “Far more than a ‘mere offensive utterance,’ the word
‘nigger’ is pure anathema to African–Americans. ‘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 epithet such as ‘nigger’ by a
supervisor in the presence of his subordinates.’” Spriggs, 242 F.3d at 185 (and
citation omitted).
I conclude that Hairston has offered sufficient evidence of a racially hostile
work environment to allow a jury to decide whether any such environment was
severe or pervasive or imputable to RBP. Hairston was employed by RBP for only
two years, and he has testified that in that relatively brief period of time, he was

5

RBP has not objected to my consideration of any of Hairston’s testimony on
hearsay grounds. Nevertheless, it appears that most of the statements Hairston relayed in
his deposition testimony may be admissible either as statements by a party-opponent or
for a purpose other than the truth of the matter (namely, to show the effect they had on
Hairston).
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repeatedly told about race-based animus and the use of racial epithets by
supervisors; received an anonymous racially antagonistic and potentially
threatening phone call; was subjected to race-based jokes; was excluded from
meetings; and was otherwise treated less favorably than white employees with
respect to privileges such as use of company cars. If a jury credits this testimony,
it could reasonably find that all of these events and circumstances combined to
create a hostile work environment in violation of Title VII and § 1981.
RBP asserts a so-called Faragher-Ellerth defense, arguing that it is entitled
to summary judgment because it had policies in place that directed employees to
report harassment through specific channels and, in its view, Hairston failed to do
so. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Under the Faragher-Ellerth
doctrine,
[t]he employer may escape liability if it can demonstrate, by a
preponderance of the evidence, that (1) it exercised reasonable care to
prevent and correct promptly any harassing behavior; and (2) the
plaintiff unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm
otherwise.
Spriggs, 242 F.3d at 186 (internal quotation marks and citations omitted).
In invoking this defense in support of its summary judgment motion, RBP
entirely overlooks Hairston’s own unwavering testimony that he did report his
concerns to his supervisors on several occasions, in accord with the relevant
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policies. RBP cannot eliminate genuine issues of material fact by simply ignoring
the plaintiff’s testimony where it contradicts the testimony of RBP’s witnesses.
Moreover, the record does not contain any evidence that RBP investigated
allegations of racial animus or harassment during Hairston’s employment. RBP
points to the fact that it terminated Brown in part because of his use of the word
“nigger,” but it fails to provide any explanation for why approximately two months
elapsed between Brown’s comment and his termination.
Again, I may not weigh evidence or assess credibility at the summary
judgment stage; that is the province of the jury. On the record before me, I cannot
conclude that RBP has met its burden of proving its affirmative defense as a matter
of law. I find that genuine issues of material fact preclude the entry of summary
judgment on Hairston’s harassment claims, and I will therefore deny the
defendant’s Motion as to those claims.
IV.
For the foregoing reasons, it is ORDERED that the Motion for Summary
Judgment, ECF No. 95, is DENIED.

ENTER: April 12, 2019
/s/ James P. Jones
United States District Judge

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