Herbert v. Dale Ludwig Morris Creek Yacht Club

Filing 46

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 2/4/2013. (mab) (Main Document 46 replaced on 2/4/2014) (hnw).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
DEMETRIUS HERBERT.
Plaintiff,
v.
OLYMPIA HOTEL MANAGEMENT LLC,1
Defendant.

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CASE NO. 3:13-CV-00015
MEMORANDUM OPINION

Plaintiff Demetrius Herbert (“Plaintiff”) alleges sexual harassment and race
discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), in his
suit against Defendant Olympia Hotel Management, LLC (“Defendant”). This matter is before
the Court upon the Motion for Summary Judgment filed by Defendant on December 20, 2013
and argued before the Court on February 3, 2014. For the following reasons, I will grant
Defendant’s motion.
I. BACKGROUND
Plaintiff Demetrius Herbert worked as a cook in the restaurant at the Holiday Inn
Charlottesville-Monticello, which sits on land owned by Morris Creek Yacht Club. His
employment began in December 2010 and was uneventful until November 2011. In November
2011, Herbert was washing his hands when Luke Divine, a server, walked behind him. Divine
made contact with Herbert as he walked by; it is unclear whether Divine grinded on Herbert, as
Plaintiff suggests, or merely bumped past him, as Defendant claims. It is undisputed that Divine
made the comment “woo hoo” as he made contact with Herbert. Herbert then reported the
incident to management. Both Restaurant Manager Bonnie Porcaro and General Manager Dale

1

During the February 3, 2014 hearing on Defendant’s Motion for Summary Judgment, Defendant informed the
court that Olympia Hotel Management LLC, rather than Dale Ludwig Morris Creek Yacht Club, is the properly
named defendant in this action.
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Ludwig investigated the incident, and both concluded that any contact was inadvertent and
minimal, and that Divine had been making light of an awkward situation when he said “woo
hoo” rather than expressing sexual gratification. Herbert reported no further incidents of
harassment to the managers. Herbert does allege that he overheard Divine and his supervisor
laughing together on March 31, 2012 about playing an April Fool’s Day prank on him. He
complained again about the “woo hoo” incident, with Divine telling him “you need to get over
it” and Ludwig noting the incident had occurred months ago and saying that Herbert needed to
“let shit go.”
In mid April of 2012, Herbert gave his two weeks notice that he would be resigning due
to the fact that he was moving to North Carolina. On April 29, 2012, Herbert made it known that
he would not cook orders submitted by Divine because he no longer wished to help Divine make
money. Eventually, when Divine’s customers were not getting their food, Porcaro suggested that
Divine submit orders under a different name so that Herbert would cook the meals. Herbert
began to cook, but threw the food away when he realized they were for Divine’s customers.
Herbert was then told that he had at most a few days left on his schedule before his replacement
arrived, and that Ludwig preferred Herbert not to come in to work those final shifts due to his
behavior.
On May 18, 2012, Herbert filed a Charge of Discrimination with the U.S. Equal
Employment Opportunities Commission (“EEOC”). Herbert alleged sexual harassment by
Divine, citing the November 2011 “woo hoo” incident and the March 31, 2012 conversation
between Divine and Porcaro. Herbert also wrote down that was “discharged because of [his]
race, Black,” although he did not give any details about why he believed that to be the case, and
he also did not formally allege unlawful termination.

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On January 3, 2013, the EEOC determined not to pursue Herbert’s sexual harassment
claim. Herbert then filed the instant suit on April 3, 2013, alleging sexual harassment and racial
discrimination. Defendant moved for summary judgment on December 20, 2013. Plaintiff
responded on January 10, 2014, and Defendant replied on January 17, 2014. The motion was
heard before the Court on February 3, 2014, although Plaintiff did not appear at the hearing. 2
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment (or partial summary judgment) “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.” “As to
materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute
about a material fact must be “ ‘genuine,’ that is, if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. See also JKC Holding Co. v. Washington
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine
issue of material fact “is merely colorable or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary judgment
under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the
light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,

2

Plaintiff is pro se, but has previously been responsive to filings and attended hearings before United States
Magistrate Judge Robert S. Ballou, indicating that there is no problem with his receipt of CM/ECF notifications. The
docket in this case reflects that the clerk dutifully mailed Plaintiff a copy of the ECF notice and the current docket
sheet on December 20, 2013, the same day the motion for summary judgment was filed. Although it is true that “a
pro se complaint must be liberally construed and ‘held to less stringent standards than formal pleadings drafted by
lawyers,’” there is no liberal construction of a failure to attend a hearing. Middleton v. United States, 2012 U.S. Dist.
LEXIS 159347, at *6 (W.D. Va. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)) (emphasis added). It is
Plaintiff’s duty to diligently pursue his case and a failure to show up to argue at a summary judgment hearing does
not entitle Plaintiff to a delay or a second hearing simply because he is pro se.
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322–24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
A court must grant a motion for summary judgment if, after adequate time for discovery,
the nonmoving party 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, 477 U.S. at 322. The nonmoving party cannot defeat a properly supported motion for
summary judgment with mere conjecture and speculation. Glover v. Oppleman, 178 F. Supp. 2d
622, 631 (W.D. Va. 2001) (“Mere speculation by the non-movant cannot create a genuine issue
of material fact.”). If the proffered evidence “is merely colorable, or is not significantly
probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818 F.2d 1126,
1128 (4th Cir. 1987) (citing Anderson, 477 U.S. at 242). The trial judge has an “affirmative
obligation” to “prevent ‘factually unsupported claims and defenses’ from proceeding to trial.” Id.
(quoting Celotex, 477 U.S. at 317).
III. DISCUSSION
Plaintiff has alleged two discrete violations of Title VII. The first is a hostile work
environment sexual harassment claim, and the second is a race discrimination claim.
Accordingly, I will address each alleged violation in turn.
1. Sexual Harassment
To support a claim based on hostile work environment sexual harassment, a Plaintiff
must show four things: (1) that the Plaintiff was subject to unwelcome conduct; (2) that the
unwelcome conduct was based on the Plaintiff’s sex; (3) that the unwelcome conduct was
sufficiently severe or pervasive to alter the Plaintiff’s conditions of employment; (4) that the
unwelcome conduct was imputable on some factual basis to the employer. See Crockett v.
Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013); see also Ocheltree v. Scollon Prods.,

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Inc., 335 F.3d 325, 331 (4th Cir. 2003). Notably, “legally sufficient evidence is required to
transform an ordinary conflict [between employees] into an actionable claim” under Title VII.
Hawkins v. Pepsico, Inc., 203 F.3d 274, 282 (4th Cir. 2000).
Plaintiff has alleged that Divine “walked behind [him] and rubbed his private parts
against [him] and exclaimed “woo hoo”, as if he was being sexually aroused. Def.’s Mem. in
Supp. of Def.’s Mot. for Summ. J. Ex. 9 1. There is no dispute that this conduct suggests that
Plaintiff satisfies the first prong of the test, that he was subject to “unwelcome conduct.”
Crockett, 717 F.3d at 354. Defendant notes its position that it is “[a]ssuming for purposes of this
Motion . . . that Herbert can established that the alleged conduct was ‘unwelcome.’” Def.’s Mem.
in Supp. of Def.’s Mot. for Summ. J. 12.
However, Defendant does assert that Plaintiff cannot prove the second prong of the test,
arguing that Plaintiff cannot prove that “but for” his gender, he would not have been a victim of
harassment. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997). Defendant argues
that “the incident occurred in a relatively confined spot in the kitchen where employees routinely
pass each other,” and that “inadvertent contact by a co-worker does not constitute conduct
‘because of’ sex.” Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J. 12-13. However, Defendant
does also state that it “is strongly denied” that “Divine rubbed his genitals against [Plaintiff] as
he passed,” arguing that Plaintiff “has not and cannot produce any evidence (documents or
witnesses) to support this allegation.” Id. at 13. The declaration of Bonnie Porcaro states that
Herbert “never made this claim to me. He said only that Divine brushed up against him as he
passed.” Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J. Ex. 8 1. The strong implication from
what Defendant argues, of course, is that if Plaintiff’s version of the story is true, then the
conduct would have been because of sex.

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Defendant has asserted that Porcaro and Ludwig both investigated the incident and
concluded that “no unlawful conduct occurred,” with Porcaro concluding that “any contact was
inadvertent and minimal, that Divine had made the comment, ‘woo hoo,’ in a attempt to make
light of an awkward situation.” Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J. at 5. But
Plaintiff has asserted that Divine did rub his genitals against him in a sexual manner, and
Defendant is incorrect that “Herbert has not and cannot produce any evidence” in support of that
claim. Id. at 13.. In considering a motion for summary judgment under Rule 56, a court must
view the record as a whole and draw all reasonable inferences in the light most favorable to the
nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Shaw v.
Stroud, 13 F.3d 791, 798 (4th Cir. 1994). In a case of sexual harassment, the victim’s testimony
is often a crucial piece of evidence which the jury examines and considers in determining
whether the victim or the response from the alleged aggressor and/or employer is more credible.
Summary judgment for either party on this point would therefore be inappropriate, as a
reasonable jury could find either Plaintiff or Defendant more credible on their testimony as to
what really happened in November 2011 between Plaintiff and Divine. I therefore find that for
purposes of this summary judgment motion, Plaintiff has satisfied that the unwelcome conduct
was based on the Plaintiff’s sex. Crockett, 717 F.3d at 354.
However, Defendant is correct that Plaintiff fails to demonstrate that the unwelcome
conduct was sufficiently severe or pervasive to alter the Plaintiff’s conditions of employment.
Crockett, 717 F.3d at 354. Plaintiff must demonstrate both that “he subjectively perceived the
environment to be abusive” and “demonstrate that the conduct was such that a reasonable person
in the plaintiff’s position would have found the environment objectively hostile or abusive.”
E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (citations and internal

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quotation marks omitted). Plaintiff has obviously suggested that “he subjectively perceived the
environment to be abusive.” Id. Thus, the inquiry turns to how the law in this Circuit defines the
objective portion of the test. Generally, there must be a showing that “the environment was
pervaded with discriminatory conduct ‘aimed to humiliate, ridicule, or intimidate,’ thereby
creating an abusive atmosphere.” E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 176 (4th
Cir. 2009) (quoting Jennings v. Univ. of N. Carolina, 482 F.3d 686, 695 (4th Cir .2007) (en
banc)). Generally, “incidents must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive.” Shields v. Fed. Express Corp., 120 Fed. Appx.
956, 961 (4th Cir. 2005) (internal quotation marks omitted). The workplace must be “permeated
with discriminatory intimidation, ridicule and insult.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993). Thus, “plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.”
Sunbelt, 521 F.3d at 315; see also Lorenz v. Fed. Express Corp., 2012 U.S. dist. LEXIS 116464,
*24 (W.D. Va. 2012) (describing Title VII’s standard for a hostile work environment claim as
“demanding”).
The Supreme Court has also indicated that “[c]ommon sense, and an appropriate
sensitivity to social context, will enable courts and juries to distinguish between simple teasing
or roughhousing among members of the same sex, and conduct which a reasonable person in the
plaintiff’s position would find severely hostile or abusive.” Oncale v. Sundowner Offshore Servs.
Inc., 523 U.S. 75, 82 (1998). I decline to determine that Plaintiff being subject to unwanted
grinding is “simple teasing or roughhousing.” Oncale, 523 U.S. at 82. I also decline to analogize
the current case to others where other courts have determined that particular behaviors were not
severe enough to make out a claim. Instead, I simply note that the precedent is very clear that
incidents must be numerous and continuous in order to be deemed severe and pervasive. See,

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e.g., Shields, 120 Fed. Appx. at 961; Sunbelt, 521 F.3d at 315.
Here, as Defendant notes, the November 2011 incident is a “singled, isolated incident of
alleged conduct . . . insufficient to support a claim for hostile work environment.” Def.’s Mem.
in Supp. of Def.’s Mot. for Summ. J. 14. Plaintiff acknowledged in his deposition that the other
incident cited in his EEOC complaint, a conversation between Divine and Porcaro, had to do
with an April Fool’s Day joke rather than anything demeaning. Def.’s Mem. in Supp. of Def.’s
Mot. for Summ. J. Ex. 6, 25. Plaintiff suggests in his response that “[a] hostile work environment
was created due to them keeping [him and Divine] working together.” Pl.’s Resp. Br. 2. But even
if it was insensitive to require Plaintiff to continue working with Divine, it can hardly be said that
the decision to require them to continue working together after a determination that the incident
was inadvertent was secretly “aimed to humiliate, ridicule, or intimidate” Plaintiff. Jennings, 482
F.3d at 695. Plaintiff also asserts that he “was teased repeatedly on the jobs by employees for
something that happened” to him. Pl.’s Resp. Br. 3. But as Defendant notes, Plaintiff may not
assert new claims of hostile work environment by raising them in his Response. See, e.g.,
Lassiter v. Huntington Ingalls Indus., Inc., 2012 U.S. Dist. LEXIS 187671, *9 (E.D. Va. 2012)
(holding that a pro se plaintiff could not assert new claims by raising them for the first time in
her opposition to a motion for summary judgment), aff’d, 474 Fed. Appx. 234 (4th Cir. 2012).
Thus, Plaintiff has presented one isolated incident of harassment, one conversation that is
unrelated to sexual harassment, and a vague claim of repeated teasing that this Court is barred
from considering because it is raised so late in the litigation. In essence, Plaintiff presents one
incident which, if taken as true, constitutes harassing behavior. This Circuit has explicitly made
clear that “incidents must be more than episodic; they must be sufficiently concerted in order to
be deemed pervasive.” Shields, 120 Fed. Appx. at 961. Because Plaintiff presents one episodic

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event rather than a concerted pattern of harassing behavior, Defendant is correct that Plaintiff is
incapable of showing that the unwelcome conduct was sufficiently severe or pervasive to alter
the Plaintiff’s conditions of employment. Crockett, 717 F.3d at 354. Thus, Plaintiff’s claim based
on hostile work environment sexual harassment fails as a matter of law.
I note that Plaintiff’s claim would also fail because Plaintiff is incapable of showing that
the unwelcome conduct is imputable on some factual basis to his employer. Crockett, 717 F.3d at
354. When a claim is based on conduct by a co-worker, the employer may only be held liable “if
it knew or should have known about the harassment and failed to take effective action to stop it.”
Sunbelt, 521 F.3d at 319 (internal quotation marks omitted). It is undisputed that “Herbert made
no further complaints of alleged sexual harassment or report to the Company that its efforts had
not resolved the issue,” and “Herbert concedes that there were no subsequent instances of
conduct that he perceived to be sexual in nature.” Def.’s Mem. in Supp. of Def.’s Mot. for
Summ. J. 15. Plaintiff argues that “[H]oliday Inn did nothing in response to my accusation of
sexual harassment,” but has also conceded that Defendant did investigate the incident, and he did
not raise another instance of harassment to his supervisors. Pl.’s Resp. Br. 3. It is thus evident
that Divine’s behavior from November 2011 cannot be imputed to his and Plaintiff’s employer,
and Plaintiff’s hostile work environment sexual harassment claim fails for that reason as well.
2. Race Discrimination
Plaintiff’s EEOC charge of discrimination focused primarily on his sexual harassment
claim, with the only mention of race discrimination being an assertion that stated “I believed I
was . . . discharged because of my race, Black.” Def.’s Mem. in Supp. of Def.’s Mot. for Summ.
J. Ex. 9, 1. In Plaintiff’s complaint, he stated, “I feel like afro Americans are treated differently
on the job there have been several instances where blacks were fired and told they were not

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allowed on the property while several white employees were fired and rehired after committing
more serious violations.” Pl.’s Compl. 7. Plaintiff repeats this last allegation in his Response
brief. See Pl.’s Resp. Br. 3. Defendant notes that Plaintiff is not alleging unlawful termination,
with Plaintiff claiming in his deposition that “I wasn’t terminated [because of race] . . . but I feel
like there was race discrimination taking place on the job.” Def.’s Mem. in Supp. of Def.’s Mot.
for Summ J. Ex. 6, 17. Plaintiff stated in his deposition that other instances of treating African
Americans differently on the job included requiring him to clean the wall outside the smoking
area, the fact that Mr. Ludwig only turned the radio down when an urban station was playing,
something he did not do for other genres like country or top 40 music, and the fact that several
African Americans were told not to return to the premises after being terminated. Id. at 17-21.
Defendant first argues that Plaintiff was required to exhaust his administrative remedies
by filing a charge of discrimination with the EEOC prior to filing suit under Title VII. Bryant v.
Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). Defendant further notes that the scope of a
right to sue is determined by the contents of the EEOC charge. Bryant, 288 F.3d at 132; see also
Jones v. Calvert Grp. Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Notably, this Circuit strictly
enforces that narrow scope of a plaintiff’s right to sue. See Balas v. Huntington Ingalls Indus.,
Inc., 711 F.3d 401, 407 (4th Cir. 2013) (internal quotation marks omitted) (stating that “[i]f the
plaintiff’s Title VII claims exceed the scope of the EEOC charges and any charges that would
naturally have arisen from an investigation thereof, they are procedurally barred.”). On the one
hand, Plaintiff did mention a form of race discrimination in his EEOC charge, so this is not a
scenario where Plaintiff is raising a brand new claim in his suit. Cf. Bryant, 288 F.3d at 132
(stating that “a plaintiff’s claim is generally barred if his charge alleges discrimination on one
basis – such as race – and he introduces another basis in formal litigation – such as sex”); see

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also Sloop v. Mem’l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999) (Title VII retaliation
claim barred when administrative charges alleged only age discrimination); Lawson v.
Burlington Indus., Inc., 683 F.2d 862, 863-64 (4th Cir. 1982). However, this is a case where the
Plaintiff’s EEOC allegations are too vague to support the more thoroughly fleshed out claims
presented in the present complaint and in Plaintiff’s deposition; this is likely because the race
discrimination claim appears to be tacked on to Plaintiff’s main concern, which is the November
2011 incident between him and Divine. Cf. Taylor v. Va. Union Univ., 193 F.3d 219, 239 (4th
Cir. 1999) (en banc) (finding no exhaustion of administrative remedies where facts incorporated
into the charge were too inconclusive). I therefore agree with Defendant that Plaintiff’s single
allegation in his EEOC charge is too vague and inconclusive to have exhausted his
administrative remedies for the more in depth allegations of racial discrimination he now wishes
to assert in court, and so his claims are barred.
I do note, however, that “a pro se complaint must be liberally construed and ‘held to less
stringent standards than formal pleadings drafted by lawyers.’” Middleton v. United States, 2012
U.S. Dist. LEXIS 159347, at *6 (W.D. Va. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). Accordingly, out of an abundance of caution, I will also address Plaintiff’s race
discrimination claims on their merits to insure that this Court is affording proper consideration of
claims presented by a pro se litigant.
A plaintiff can prove discrimination through either direct evidence or through the burdenshifting scheme of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and its
progeny. See Clement v. Satterfield, 927 F. Supp. 2d 297, 305 (W.D. Va. 2013); see also
Lightner v. City of Wilmington, N.C., 545 F.3d 260, 263 (4th Cir. 2008) (citing Love-Lane v.
Martin, 355 F.3d 766, 786 (4th Cir. 2004)) (McDonnell Douglas burden-shifting applies to

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claims under Title VII and § 1981).
Direct evidence of discrimination is “evidence of conduct or statements that both reflect
directly the alleged discriminatory attitude and that bear directly on the contested employment
decision.” Washington v. Kroger Ltd. Partnership I, 2012 U.S. Dist. LEXIS 171993, at *3 (W.
D. Va. 2012) (citing Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)). Plaintiff
seems to present the claims of having to clean the wall outside the smoking area, Ludwig turning
down the radio only when it was playing urban music, and African Americans being fired and
being told not to return to the premises as direct or circumstantial evidence of a discriminatory
attitude. But in his deposition, Plaintiff admitted that he was asked to clean the wall immediately
after smoking and dumping the trash outside, and stated that he was “not going to say it is
because of [his race]” that he was asked to perform that action. Def.’s Mem. in Supp. of Def.’s
Mot. for Summ. J. Ex. 6, 19-20. With regards to the music, Plaintiff stated that “maybe [Ludwig]
just didn’t like that particular genre of music” and admitted that he had no specific basis to
attribute that action to any form of racial animus. Id. at 21-22. Finally, all of Plaintiff’s claims
relating to certain African American employees being treated badly and certain white employees
being treated favorably are wholly unsupported by any evidence. For example, Plaintiff alleges
that one white employee named “Debbie las [sic] name unknown she walked off the job” and yet
was allegedly promoted. Pl.’s Resp. Br. 3. Without more concrete proof for his allegations, there
can be no finding of direct or circumstantial evidence of racial discrimination. Thus, Plaintiff
must rely on McDonnell Douglas instead.
Under McDonnell Douglas, Plaintiff must first establish a prima facie case of
discrimination. See Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981);
McDonnell Douglas, 411 U.S. at 807. To demonstrate a prima facie case of discrimination,

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Plaintiff must show that:
(1) [he] is a member of a protected class; (2) [he] suffered adverse employment
action; (3) [he] was performing [his] job duties at a level that met [his] employer’s
legitimate expectations at the time of the adverse employment action; and (4) the
position remained open or was filled by similarly qualified applicants outside the
protected class.
Hill v. Lockheed Martin Logistics Mgmt, 354 F.3d 277, 285 (4th Cir. 2004) (citation omitted). If
Plaintiff makes this showing, “the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.” Id. If the employer can do so, the
burden shifts back to the plaintiff to show by a preponderance of the evidence that the employer's
stated reasons are a pretext for unlawful discrimination. Id.
Here, however, Plaintiff cannot show that he suffered adverse employment action as a
result of any discrimination. First, Plaintiff has explicitly stated that despite what he said in his
EEOC charge, he is not in fact bringing a case of unlawful termination. Def.’s Mem. in Supp. of
Def.’s Mot. for Summ J. Ex. 6, 17. Secondly, the actions Plaintiff complains of–being asked to
clean the walls, turning down radio music, and being asked not to return to the premises for his
last few shifts–cannot possibly be considered the kind of “discriminatory act which adversely
affects the terms, conditions, or benefits of the plaintiff’s employment” that constitutes an
adverse employment action. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.
2004). It is well settled that unlawfully motivated decisions such as “hiring, granting leave,
discharging, promoting, and compensating” constitute adverse employment actions. Page v.
Bolger, 645 F.2d 227, 233 (4th Cir. 1981). It is simply not credible to suggest that any of the
complaints Plaintiff makes are remotely comparable.
Plaintiff also cannot credibly claim that “[he] was performing [his] job duties at a level
that met [his] employer’s legitimate expectations.” Hill, 354 F.3d at 285. Plaintiff admits that on

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his last day at work, he refused to cook meals for customers on whom Divine was waiting and
threw the food intended for those customers in the trash. Def.’s Mem. in Supp. of Def.’s Mot. for
Summ. J. Ex. 6, 31-32. Defendant clearly had good cause to request that Plaintiff not work his
last few shifts when he had engaged in such disruptive behavior. Lastly, I note that Plaintiff
makes no effort whatsoever to present any evidence that “the position remained open or was
filled by similarly qualified applicants outside the protected class,” as Plaintiff is required to do
in making out a prima facie case under McDonnell Douglas. Hill, 354 F.3d at 285.
In short, even if Plaintiff had exhausted his administrative remedies and was properly
filing his race discrimination claim before this Court, he is unable to present any credible direct
or circumstantial evidence of race discrimination, and equally unable to make out a prima facie
case of discrimination under McDonnell Douglas. Accordingly, even if his claim was properly
before this Court, it would properly be dismissed.
IV. CONCLUSION
Plaintiff’s hostile work environment sexual harassment claim must be dismissed because
the unwelcome conduct was not sufficiently severe or pervasive, nor is it imputable on some
factual basis to the employer. Plaintiff’s race discrimination claim must be dismissed because
Plaintiff failed to exhaust his administrative remedies, and even if he had, he cannot make out a
prima facie case. Thus, Defendant’s Motion for Summary Judgment will be granted. An
appropriate order follows.
4th
Entered this ______ day of February, 2014.

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