McCurdy v. Red Onion State Prison

Filing 55

OPINION AND ORDER denying 48 Motion for Partial Summary Judgment; granting 27 Motion for Summary Judgment ; denying 28 Motion for Partial Summary Judgment. Signed by Judge James P. Jones on 9/5/17. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
THOMAS McCURDY,
Plaintiff,
v.
VIRGINIA DEPARTMENT OF
CORRECTIONS,
Defendant.

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Case No. 2:16CV00017
OPINION AND ORDER
By: James P. Jones
United States District Judge

Joshua Erlich, Davia Craumer, and Katherine L. Herrmann, The Erlich Law
Office, PLLC, Arlington, Virginia, for Plaintiff; Ryan Spreague Hardy, Assistant
Attorney General, and Sydney E. Rab, Senior Assistant Attorney General,
Richmond, Virginia, for Defendant.
The plaintiff, a former state correctional officer, asserts claims of race-based
employment discrimination, harassment, and retaliation under Title VII of the Civil
Rights Act of 1964. The plaintiff has moved for partial summary judgment on his
hostile environment harassment and race-based discrimination claims, and the
defendant state agency has moved for summary judgment on all claims. Because
the undisputed facts show that the defendant is entitled to judgment as a matter of
law, I will grant summary judgment in favor of the defendant and deny the
plaintiff’s request for partial summary judgment.

I.
The following facts are taken from the summary judgment record and,
except where otherwise noted, are undisputed. 1
From April 2012 until May 16, 2014, Plaintiff Thomas McCurdy was
employed as a correctional officer at Red Onion State Prison (“Red Onion”), a
maximum-security prison located in Pound, Virginia, and operated by defendant
Virginia Department of Corrections (“VDOC”). McCurdy is African-American.
On August 26, 2011, correctional officer Marie Knoskie, who is AfricanAmerican, found a swastika scratched into a control board at Red Onion. 2 She
reported what she found to Human Resources Director Renee Conley. Knoskie
was assigned to a new post until the swastika could be removed. Sergeant Tony
Adams attempted to determine who had carved the swastika, but because so many
officers had been assigned to the control room, he could not establish a list of
suspects. Adams interviewed correctional officers who had worked the post, but
all of the officers denied etching the swastika. Then-Warden Tracy Ray informed
Knoskie that VDOC had investigated the incident and could not identify the
1

The plaintiff has lodged numerous objections to various items of evidence filed
in support of the defendant’s Motion for Summary Judgment. I have considered all of the
plaintiff’s objections, and in deciding the present motions, I rely only upon evidence that
I find would be admissible in a trial of this case.
2

Although it was initially identified as a swastika, there is some suggestion in the
evidence that the symbol may have been flaming wings, a symbol used by the Ku Klux
Klan.
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culprit. Knoskie mentioned to Conley that similar incidents had occurred twice
before, but she provided no details.
On January 9, 2012, Knoskie met with Conley and Major Travis McCoy to
complain of race discrimination after a position in which she had expressed an
interest was assigned to a white officer. Later that day, Knoskie met with Warden
Randall Mathena, Conley, and Assistant Warden Kiser to voice her complaint. She
stated that she felt she was being denied the training required to further her career.
She claimed that McCoy had accused her of calling him a bigot after she had told
him she felt she was experiencing discrimination. McCoy stated that the white
officer had already received the necessary training for the post, and the post needed
to be filled quickly.
On April 1, 2013, Knoskie found the words “I Hate Niggers” written in a
logbook in the C2 Control Room at Red Onion. Knoskie showed the logbook to
McCurdy, and the two of them gave the book to counselor Norman Lewis.
McCurdy also told his supervisor, Lieutenant Paul Payne, about the phrase written
in the logbook. McCurdy states that he frequently asked Payne what steps were
being taken to investigate the incident. Knoskie told McCurdy that she had not
heard anything more about the logbook.
In February 2014, Knoskie was assigned to the C2 Control Room and
refused to take the post because it was the location where she had discovered the
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racial epithet in the logbook. Conley did not learn of the logbook incident until
Knoskie refused to take her assigned post, approximately ten months after Knoskie
first discovered and complained about the message in the logbook.
After Warden Mathena learned of the phrase written in the logbook, he
asked Lieutenant John McQueen to investigate the incident. McQueen did not
know when the racial slur was written in the logbook, and he was unable to
identify the author of the slur based on a layperson’s comparison of handwriting
samples. He determined that a forensic examination of handwriting samples would
be prohibitively expensive given the large number of officers who had access to
the C2 Control Room. At the time of the investigation, VDOC did not undertake a
formal analysis of the cost of a forensic handwriting examination.
VDOC did not add surveillance cameras to the C2 Control Room, institute
any policy changes as a result of the logbook incident, or take any other action in
response to the slur written in the logbook besides removing the book from the C2
Control Room. There was a camera installed in the control room at the time the
racial slur was written, but it was positioned at an angle that did not capture the
person who wrote the slur. In May 2014, McCurdy asked Major Arvil Gallihar
about the logbook. Gallihar informed him that the Red Onion administration had
investigated the logbook incident but was not able to determine who had written
the slur, and there was nothing more that could be done.
-4-

On September 23, 2013, Lieutenant Steven Franklin witnessed correctional
officer Daniel Sexton use the word “nigger” to describe a football player. Knoskie
was standing nearby, and Sexton immediately apologized to her and offered to
accompany her to Human Resources to file a complaint.

Knoskie accepted

Sexton’s apology and opted not to make a complaint about the incident. Franklin
verbally counseled Sexton, and a written notice of counseling was signed by
Sexton and placed in his file. Franklin reported the incident to Unit Manager Greg
Swiney on the day that it occurred. Swiney did not report the incident to Human
Resources. Knoskie eventually told Conley about the incident on March 3, 2014.
Conley then questioned Swiney, who indicated that Franklin had correctly handled
the matter by verbally counseling Sexton.
McCurdy’s nephew, correctional officer Martinez Miles, also worked at Red
Onion. While Miles was on short term disability leave, Conley asked McCurdy
about Miles. McCurdy told Conley that Miles did not want to return to work
because of racial slurs and jokes that had been directed at Miles by fellow officers.
Conley told McCurdy that Miles needed to report these incidents, but McCurdy
responded that Miles was hesitant to file a complaint because he feared retaliation.
Conley called Miles but did not reach him and was unable to leave a message.
Miles never lodged a complaint, although McCurdy testified in his deposition that
he and Miles had previously spoken to Conley about the jokes before Miles began
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his disability leave. Conley did not conduct any further investigation. McCurdy
did not follow up with her or reduce his concerns to writing.
There are numerous disputed allegations regarding McCurdy’s hostile
environment harassment claim.

McCurdy alleges that several Red Onion

employees made racist jokes and used racial slurs in McCurdy’s presence. He
alleges that he received a written threat from an inmate and that he informed
Lieutenant Joe Fannin about the incident. McCurdy asserts that Lieutenant James
Lambert used a racial slur in front of Greg Swiney, Lambert’s supervisor, and was
not disciplined. McCurdy alleges that Mathena used a racial epithet to describe an
inmate during a prison fight. All of these allegations are denied by the alleged
speakers and involved parties. McCurdy concedes that he did not inform anyone
about several of the racial slurs and jokes he now alleges.
Operating Procedure 145.3: Equal Employment Opportunity (“EEO Policy”)
details VDOC’s procedure applicable to complaints of harassment and
discrimination.

The EEO Policy directs employees to report harassment or

discrimination through an established complaint protocol. The EEO policy states
that complaints should be made in writing, though in a Rule 30(b)(6) deposition,
Conley testified that complaints can be made orally to her. Red Onion provided
annual training to employees regarding the EEO Policy. McCurdy did not submit
any written complaints of harassment or discrimination.
-6-

McCurdy asserts that he verbally complained to counselor Emily Sowards
about racist slurs and jokes, but he admits he did not identify specific officers or
incidents. Sowards does not recall McCurdy ever making such a complaint.
McCurdy asserts that he complained to Conley about racist jokes on three
occasions. He alleges that he identified specific officers in his first conversation
with Conley, though Conley does not recall the conversation.

On a second

occasion, McCurdy alleges that he complained to Conley that Lambert had referred
to an inmate using a racial slur, but Conley does not recall that complaint.
McCurdy and Conley both recall the alleged third conversation, when they spoke
about Miles. McCurdy did not give Conley specific examples of jokes directed at
Miles, nor did he identify the people who allegedly told the jokes.

McCurdy

alleges that he also complained to Major Arvil Gallihar about the prevalence of
racial jokes and slurs at Red Onion, but Gallihar does not recall this conversation.
McCurdy asserts that Officer Barry Mullins made a number of race-based
jokes and statements in McCurdy’s presence, some of which were specifically
directed at McCurdy. McCurdy also asserts that Lambert referred to an inmate as a
“nigger.” In addition, McCurdy states that Fannin asked him about his wife’s race.
Lambert and Fannin deny making these statements. McCurdy states that he told
Fannin that an inmate threatened him, and Fannin failed to take any action in

-7-

response to the threat. Fannin denies he ever received notice that an inmate
threatened McCurdy.
McCurdy further asserts that Mathena once referred to an inmate as a “spear
chucker,” which Mathena denies. McCurdy also contends that Sergeant Mark
Mullins once said “What’s up my niggas?” to McCurdy and Miles.
On May 16, 2014, McCurdy arrived at Red Onion for his work shift and
submitted to a security search, as he was required to do. He then went to the
restroom, which was outside of the search area. When he exited the restroom, he
entered the prison without being searched again.

Correctional officer Reba

Murphy informed McQueen that McCurdy had entered the prison without going
through the security checkpoint.

McQueen reviewed camera footage that

confirmed that McCurdy had exited the restroom and proceeded into the prison
without going through the security checkpoint. McQueen reported this information
to Mathena.
Mathena summoned McCurdy to his office. Conley was not present for this
meeting, and there are no contemporaneous notes from the meeting. McQueen and
Gallihar were present. Mathena showed McCurdy the camera footage and asked
whether McCurdy had anything in his pocket. McCurdy removed a cigarette
lighter from his pocket and placed it on the table. Possession of a lighter inside the
prison violated Operating Procedure 320.6: Tobacco Products and Smoking
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(“Tobacco Policy”). Violations of the Tobacco Policy were to be addressed in
accordance with Operating Procedure 135.1: Standards of Conduct (“Standards of
Conduct Policy”). Mathena had previously told employees that he would not
tolerate them bringing contraband into Red Onion.
The remainder of Mathena’s interaction with McCurdy is in dispute.
Mathena asserts that he asked McCurdy whether he had intended to give the lighter
to an inmate and whether other correctional officers were bringing contraband into
the prison. Instead of answering the questions, McCurdy asked if he could resign.
Mathena declared that he usually gives officers the option to resign before
instituting an investigation if he believes they are likely to be terminated.
McCurdy, on the other hand, asserts that he brought the lighter into the
prison accidentally and that Mathena did not ask him any questions. According to
McCurdy, Mathena told him he could either resign or be fired, and if he chose not
to resign, Mathena would “drag [McCurdy’s] name through the mud.” Br. in
Supp. of Def.’s Mot. for Summ. J. Ex. 29 at 53, ECF No. 30-29. Mathena stated in
a declaration that if McCurdy had brought the lighter into Red Onion accidentally,
his conduct would have warranted discipline, but not termination.
Gallihar escorted McCurdy to the Human Resources office, where he
tendered his resignation to Conley. On the way to the Human Resources office,
McCurdy asked Gallihar what he was going to do about the slur in the logbook and
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stated that he was only being flagged for bypassing security because he was black.
Gallihar responded that the logbook was unrelated to his misconduct. Conley was
surprised when McCurdy resigned because he had been a good employee with no
disciplinary history. McCurdy told Conley he had resigned in lieu of termination.
McQueen later told Conley that McCurdy had voluntarily resigned and was not
facing termination. A document in McCurdy’s personnel file dated May 30, 2014,
states that McCurdy is ineligible for rehire.
The day before McCurdy resigned, another correctional officer, Christopher
Rose, had resigned. McQueen had been investigating Rose, who was suspected of
bringing tobacco into the prison to give to inmates. Rose was suspected of having
an accomplice who had assisted in bringing tobacco-related contraband into Red
Onion.

Rose and McCurdy worked in the same building.

Rose is white.

McQueen was never able to identify Rose’s alleged accomplice. It is unclear
whether Mathena suspected that Rose had a “running mate” at the time of his
meeting with McCurdy.
Following his termination, McCurdy filed a Charge of Discrimination with
the Virginia Division of Human Rights, contending that he had been the victim of
discrimination based on race and retaliation. In the charge, he stated, “I believe I
was retaliated against for a request I made two months prior for racial slurs and
jokes to stop.” Br. in Supp. of Def.’s Mot. for Summ. J. Ex. 20, ECF No. 30-20.
- 10 -

The charge does not expressly allege hostile environment harassment, and
McCurdy did not check the box on the form to indicate a continuing violation.
Rather, he listed May 16, 2014, as both the earliest and the latest date on which
discrimination took place.
VDOC submitted evidence of a number of non-black former employees
who, in its view, were similarly situated to McCurdy and received equal
discipline.3 On March 16, 2013, a white correctional officer named Joshua Jessee
admitted that he had given tobacco and other items to inmates and that he had
brought tobacco into Red Onion for personal use. Conley was present during a
pre-disciplinary meeting between Jessee and Mathena. Mathena told Jessee that he
could resign rather than be disciplined. Alternatively, if an investigation resulted
in discipline, he could use the state grievance procedure to contest any disciplinary
decision. Mathena told Jessee that if he chose to resign, Mathena would hold his
resignation for twenty-four hours to allow time for Jessee to change his mind.
Mathena gave Jessee three days to make a decision. Jessee was suspended and
placed on pre-disciplinary leave pending completion of an investigation. He opted
to resign on March 20, 2013.
On March 8, 2013, and again on March 13, 2013, white officer Timothy
Pleasant met with Mathena and Conley to discuss whether he had passed items
3

I discuss the most relevant comparators here. I have omitted discussion of some
proposed comparators whose circumstances were markedly different from the plaintiff’s.
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between inmates and brought contraband into Red Onion.

Mathena did not

indicate that T. Pleasant could be terminated or offer him the option of resigning in
lieu of termination.

T. Pleasant admitted that he had passed items between

inmates, but denied bringing contraband into the facility to give to inmates or for
his own use. T. Pleasant was disciplined with a three-day suspension for passing
items between inmates. Mathena did not terminate him because he had stopped
committing the misconduct, was truthful, and turned over notes he had obtained
from inmates.
On March 20, 2013, Jonathan Thompson, a white officer, resigned after
admitting to bringing tobacco into Red Onion for personal use and passing items
between inmates.

Conley was present at a meeting between Thompson and

Mathena at which Mathena told Thompson that he would most likely be terminated
but could resign in lieu of disciplinary action. Mathena allowed Thompson three
days to decide whether to resign. Before he resigned, Thompson was suspended
and given pre-disciplinary leave with pay.
On March 22, 2013, white officer Joshua Meade was issued a written notice
and terminated for passing items between inmates and bringing tobacco into Red
Onion for his own use. On Meade’s written notice, Mathena wrote:
Your tenure, good attendance and truth-telling were considered;
however, compromising the security of yourself as well as other staff
members by passing is too serious an offense to warrant keeping your
position as a corrections officer. Also, you created a credibility issue
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between yourself and Management a[t] Red Onion when you
“purposefully hid” items on your person when coming through front
search.
Suppl. Br. Supp. Def.’s Mot. Summ. J. Ex. 53 at 1, ECF No. 47-4. The notice
informed Meade that he could pursue a grievance regarding his termination.
Before the investigation into Meade’s conduct, Conley had been present at a predisciplinary meeting. Meade had been suspended on March 14, 2013, and was
placed on pre-disciplinary leave with pay until he was terminated eight days later.
Also on March 22, 2013, correctional officer Jonathan Pleasant, who was
white, was issued a written notice and terminated for passing items between
inmates and bringing tobacco into Red Onion for his own use. J. Pleasant was
found to have purposely hid the items on his person to avoid detection when
passing through security. At a pre-disciplinary meeting at which Conley was
present, Mathena told J. Pleasant that he might be facing termination, but that he
had the option to resign. Mathena gave J. Pleasant three days to decide, and he
chose not to resign. J. Pleasant’s written notice contained a paragraph identical to
the one included in Meade’s written notice and informed him of his right to grieve
his termination.
On September 26, 2014, Mathena issued a disciplinary notice to Lincoln
Bentley, a white officer, for possessing tobacco inside Red Onion. He was then
terminated. Bentley had been suspended on August 12, 2014, a month and a half
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earlier, and had been placed on paid pre-disciplinary leave, based on allegations
that he had brought heroin into Red Onion.

Conley was present at a pre-

disciplinary meeting on August 28, 2014, as well as two additional meetings
between Mathena and Bentley on September 19, 2014, and September 26, 2014.
In the last meeting, Bentley admitted to bringing tobacco into Red Onion for
personal use. Bentley had previously been issued a written notice for unrelated
conduct. Bentley filed a grievance regarding his termination for bringing tobacco
into the facility, and the hearing officer upheld the termination, though he noted
that Mathena had discretion to issue less harsh disciplinary measures for the
offense.
The plaintiff argues that non-black employees were treated more favorably
than him because they were given a pre-investigation meeting at which Conley was
present, and they were not forced to choose immediately between termination and
resignation. Some also received paid leave pending resolution of an investigation.
The Standards of Conduct Policy states,
Prior to any pre-disciplinary or disciplinary actions, employees
must be given oral or written notification of an offense, an explanation
of the agency’s evidence in support of the charge, and a reasonable
opportunity to respond. DOC must provide a clear and descriptive
explanation of the offense in a manner that ensures that the employee
understands the facts presented and will be able to present mitigating
factors or denial of the charge.

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Pl.’s Am. Mem. in Supp. of Mot. for Partial Summ. J. Ex. AC at 2, ECF No. 49-29.
A “Reasonable Opportunity to Respond” is defined as “[a] time period allowed for
an employee to respond after receiving notification of pre-disciplinary or
disciplinary action,” and “normally, for discipline which may involve suspension
or termination, a twenty-four hour period is sufficient.”

Id.

However, “a

reasonable opportunity to respond should not be based solely on the quantity of
time provided but also on the nature of the offense, which may or may not require
time to refute or mitigate the charge.” Id. Mathena did not tell McCurdy that he
would be given time to reconsider his decision to resign.
The Standards of Conduct Policy also provides,
5. Employees who resign while disciplinary action is pending
or while an investigation is being conducted should be notified in
writing at the point of separation that they will be ineligible for rehire.
a. This notification would normally be done in the letter
accepting resignation.
b. The personnel record (both the folder and the Personnel
Management Information System), will reflect that the
employee resigned while disciplinary action was pending. . . .
Id. at 6. McCurdy did not receive a written notice that he was ineligible for rehire.
Employees who resign voluntarily are normally given an exit interview, but
McCurdy did not receive such an interview.
Conley testified in a Rule 30(b)(6) deposition that VDOC did not have the
opportunity to consider McCurdy’s employment history and other mitigating
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factors because he resigned before the investigative or disciplinary process began.
She testified that Mathena almost always offered employees the opportunity to
resign immediately, before an investigation or any disciplinary proceeding
commenced. In McCurdy’s case, had he not resigned, VDOC would have begun
the disciplinary process described in the Standards of Conduct Policy.
Following discovery, both parties moved for summary judgment.

The

motions have been fully briefed and are ripe for decision.4
II.
Summary judgment is appropriate when “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). To raise a genuine issue of material fact
sufficient to avoid summary judgment, the evidence must be “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, “the
court is required to view the facts and draw reasonable inferences in a light most
favorable to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994).

4

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
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Rule 56 mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Summary judgment is not a disfavored procedural shortcut, but
an important mechanism for weeding out claims and defenses that have no factual
basis. Id. at 327. It is the affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to trial. Drewitt v.
Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993).
A. Defendant’s Motion for Summary Judgment.
1. Hostile Environment Harassment Claim.
The defendant argues that McCurdy’s hostile environment harassment claim
is barred because he failed to exhaust his administrative remedies as to this claim.
I agree and will grant the defendant’s motion as to the hostile environment claim.
As a prerequisite to a lawsuit, Title VII requires the filing of a timely
administrative charge with the Equal Employment Opportunity Commission
(“EEOC”). 42 U.S.C. § 2000e-5. “In any subsequent lawsuit alleging unlawful
employment practices under Title VII, a federal court may only consider those
allegations included in the EEOC charge.” Balas v. Huntington Ingalls Indus.,
Inc., 711 F.3d 401, 407 (4th Cir. 2013). “If a plaintiff’s claims in [his] judicial
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complaint are reasonably related to [his] EEOC charge and can be expected to
follow from a reasonable administrative investigation, the plaintiff may advance
such claims in [his] subsequent civil suit.” Smith v. First Union Nat’l Bank, 202
F.3d 234, 247 (4th Cir. 2000). But a federal court may not consider bases of
discrimination that the plaintiff has not asserted in his EEOC charge. Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009); see also Dennis v. Cty. of
Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (holding that where “the claims raised
under Title VII exceed the scope of the EEOC charge and any charges that would
naturally have arisen from an investigation thereof, they are procedurally barred”).
Importantly, the Fourth Circuit has stated that when determining whether a
particular claim was encompassed by the plaintiff’s EEOC charge, the court should
look only to the charge itself and may not consider allegations contained in the
EEOC intake questionnaire or other documents the plaintiff filed with the EEOC.
Balas, 711 F.3d at 408.

A plaintiff has failed to exhaust his administrative

remedies where “his administrative charges reference different time frames, actors,
and discriminatory conduct than the central factual allegations in his formal suit.”
Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005). “A claim will . . .
typically be barred if the administrative charge alleges one type of discrimination
— such as discriminatory failure to promote — and the claim encompasses another
type — such as discrimination in pay and benefits.” Id. at 509.
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In addition, “the

allegation of a discrete act or acts in an administrative charge is insufficient when
the plaintiff subsequently alleges a broader pattern of misconduct.” Id. In Chacko,
the Fourth Circuit held that the plaintiff had failed to exhaust his claim of national
origin harassment by coworkers over a span of two decades where his EEOC
charges referenced only specific episodes of alleged harassment by supervisors that
did not involve national origin epithets. Id. at 511-12.
In this case, when McCurdy completed his charge form, he listed the earliest
date of discrimination as May 16, 2014, the date on which he resigned. The form
contained a box for “continuing action,” but he did not check that box. Though he
referenced racist slurs and jokes in the narrative portion of the form, he did so in
the context of claiming that he had been the victim of retaliation for complaining
about the jokes.
I conclude that McCurdy’s EEOC charge only asserted claims based on his
termination and did not express any claim regarding the hostile environment that
he alleges existed throughout his employment at Red Onion. McCurdy’s hostile
environment claim would not have been expected to follow from a reasonable
administrative investigation of the circumstances surrounding his resignation. The
key actor in McCurdy’s discharge-related claims is Warden Mathena, the only
person who had the authority to terminate McCurdy, whereas the evidence relating
to the hostile environment claim consists almost entirely of alleged statements
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made by McCurdy’s coworkers and lower level supervisors.

The hostile

environment claim involves different actors, a different kind of discrimination, and
a different time period than the claims asserted in the EEOC charge. Because
McCurdy failed to exhaust his administrative remedies as to his hostile
environment claim, I will enter summary judgment in favor of the defendant on
that claim.
2. Race-Based Discriminatory Treatment Claim.
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).

Because the

plaintiff here does not claim to have direct evidence of discriminatory intent, his
claims under Title VII are subject to the McDonnell Douglas burdenshifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under McDonnell Douglas, the plaintiff has the initial burden of establishing a
prima facie case of employment discrimination, including 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. Id. at 802. 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
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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, ‘the 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)).
It is undisputed that McCurdy was a member of a protected class, that he
was qualified for his position, and that, at least until the date of his termination, his
performance was satisfactory. The parties dispute whether he suffered an adverse
employment action. VDOC contends that McCurdy resigned voluntarily, while
McCurdy asserts that he resigned only because Mathena told him he would be
terminated. I find that McCurdy has put forth sufficient evidence to create a
genuine dispute as to whether he suffered an adverse employment action.5
The fourth element of the prima facie case is more problematic for
McCurdy. Neither party has offered any evidence regarding the individual who
5

McCurdy advances a theory that he was constructively discharged. He appears
to contend that he resigned because his work environment was objectively intolerable,
presumably based on the evidence offered in support of his hostile environment claim.
However, this new theory directly contradicts McCurdy’s own statements in the EEOC
charge and in his deposition, where he clearly stated that he resigned in lieu of
termination. I find that there is no evidence in the record to support the plaintiff’s
constructive discharge theory.
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replaced McCurdy. Instead, both parties have addressed the alternative standard
adopted by the Fourth Circuit that a plaintiff in a discriminatory termination case
only needs to show that similarly situated employees outside the protected class
were treated more favorably. See Coleman v. Md. Ct. of Appeals, 626 F.3d 187,
190 (4th Cir. 2010).
With the exception of one person, the white correctional officers identified
as comparators all lost their jobs, just like McCurdy. Every identified individual
who violated the Tobacco Policy was either terminated or resigned in lieu of
termination. The plaintiff argues that he was treated less favorably than similarlysituated white officers because he
was not provided the due process provided to white comparator
officers while disciplinary action was pending, including the presence
of a Human Resources Officer at pre-disciplinary meetings, predisciplinary suspension with pay to allow for disciplinary review, and
a reasonable opportunity to respond to the allegations against him and
to describe the mitigating circumstances applicable to his situation.
Pl.’s Am. Mem. in Supp. of Mot. for Partial Summ. J. 31, ECF No. 49. This
argument is meritless.

First, the plaintiff has asserted a claim that he was

terminated because of his race; he has not asserted a claim that his due process
rights were violated.

Second, the evidence clearly establishes that McCurdy

resigned before he could be afforded the due process protections of which he
complains. Regardless of what Mathena may have said to him, McCurdy had an
unequivocal right under both VDOC policy and state law to proceed through the
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disciplinary process and to grieve any termination. See Va. Code Ann. §§ 2.23000 – 3001; 2.2-3003 – 3004. It is undisputed that McCurdy was aware of the
applicable due process, disciplinary, and grievance policies, but he opted not to
pursue them. He cannot now complain that he was afforded less due process than
other employees. Viewing the evidence in the light most favorable to the plaintiff,
McCurdy cannot establish that similarly situated employees outside his protected
class were treated more favorably than him.
Even if he could establish a prima facie case of discriminatory discharge,
McCurdy has failed to rebut the defendant’s legitimate, nondiscriminatory reason
for his alleged termination. An employer is entitled to summary judgment on a
Title VII claim “if the record conclusively reveal[s] some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff [has] created only a weak
issue of fact as to whether the employer’s reason was untrue and there was
abundant and uncontroverted independent evidence that no discrimination had
occurred.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
As the Supreme Court has counseled, “[w]hether judgment as a matter of law is
appropriate in any particular case will depend on a number of factors,” including
“the strength of the plaintiff’s prima facie case, the probative value of the proof
that the employer’s explanation is false, and any other evidence that supports the

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employer’s case and that properly may be considered on a motion for judgment as
a matter of law.” Id. at 148-49.
VDOC disputes that McCurdy was terminated, but it argues that even if
Mathena had decided to terminate McCurdy, he had a valid reason for doing so. It
is undisputed that McCurdy violated VDOC policy when he left the restroom and
entered Red Onion without being searched. It is further undisputed that McCurdy
violated the Tobacco Policy when he brought a lighter into Red Onion, regardless
of whether he did so intentionally or accidentally. Mathena certainly had reason to
suspect that McCurdy had intentionally brought the lighter into the prison, as no
lighter was found in his pocket when he was searched prior to entering the
restroom. This fact implies that McCurdy retrieved the lighter from the restroom
and then bypassed security to avoid detection of the lighter. Like McCurdy, other
non-black correctional officers who violated the Tobacco Policy were given the
option to resign in lieu of termination, and many did. Those who did not were
ultimately terminated.
The only evidence McCurdy offers to show that racial animus was the real
reason for his alleged termination is his own testimony that he once heard Mathena
use a racial slur when referring to an inmate. The alleged slur was not directed at
McCurdy, was not uttered around the time of his termination, and bears no
relationship to the May 16, 2014, meeting between McCurdy and Mathena. As of
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the date he resigned, McCurdy had worked at Red Onion for more than two years
and had received positive evaluations. Viewed in the light most favorable to
McCurdy, the record evidence simply does not give rise to an inference that
VDOC’s stated reasons for his termination were pretext and that the real reason for
his termination was racial animus. Because McCurdy cannot meet his ultimate
burden of persuasion, I will grant the defendant’s Motion for Summary Judgment
as to McCurdy’s race discrimination claim.
3. Retaliation Claim.
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
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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.
1998), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002).
VDOC argues that McCurdy has not presented evidence sufficient to
demonstrate a causal connection between his purported protected activity and
Mathena’s decision to terminate him. I agree.

McCurdy’s sole evidence of

causation is that he was threatened with termination approximately two months
after he complained about the logbook. This temporal proximity is insufficient, on
its own, to show a causal connection between his protected activity and his alleged
termination. Importantly, there is no record evidence that Mathena knew about
McCurdy’s complaint regarding the logbook or any of the other complaints he
alleges he made to Conley and others. McCurdy’s complaints were not to Mathena
but to other individuals, and Mathena has stated that he was unaware of
McCurdy’s complaints.

McCurdy simply has not created a genuine issue of

material fact as to whether he was forced to resign because of his protected
activity. Therefore, I will enter summary judgment in favor of the defendants on
his retaliation claim.
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B. Plaintiff’s Motions for Partial Summary Judgment.
Given my disposition of the defendant’s motion, for the reasons stated
above, I will deny the plaintiff’s Motion for Partial Summary Judgment and
Amended Motion for Partial Summary Judgment. I find that the undisputed facts
do not warrant judgment as a matter of law in favor of the plaintiff.
IV.
For the foregoing reasons, it is ORDERED as follows:
1.

The defendant’s Motion for Summary Judgment, ECF No. 27, is

GRANTED; and
2.

The plaintiff’s Motion for Partial Summary Judgment, ECF No. 28,

and Amended Motion for Partial Summary Judgment, ECF No. 48, are DENIED.
A separate final judgment will be entered herewith.
ENTER: September 5, 2017
/s/ James P. Jones
United States District Judge

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