Opinion
C. A. 1:21-3039-DCC-KDW
06-16-2023
JESSE REED, Plaintiff, v. COLD CREEK NURSERIES, LLC, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
This matter is before the court for consideration of the Motion for Summary Judgment filed by Cold Creek Nurseries, LLC. (“Defendant” or “Cold Creek”), in which it seeks judgment as a matter of law as to all claims remaining in the Complaint filed by its former employee, Jesse Reed (“Plaintiff” or “Reed”). ECF No. 47. Also pending is Defendant's Motion to Strike Two Declarations submitted by Plaintiff in opposing summary judgment (ECF Nos. 44-3 and 44-4), Mot. Strike, ECF No. 46, to which Plaintiff has objected, ECF No. 47, and Defendant has replied, ECF No. 49. Previously, the court dismissed claims of negligence, negligent hiring, supervision, and retention without prejudice (Third and Fourth Causes of Action). See ECF No. 23. Discovery has now been completed, and Defendant seeks summary judgment as to the claims remaining in Plaintiff's Complaint, ECF No. 1: 1) Title VII claim for Race Discrimination and Hostile Work Environment on the Basis of Race (First Cause of Action); and 2) 42 U.S.C. § 1983 claim for Race Discrimination and Hostile Work Environment on the Basis of Race (Second Cause of Action). Mot. Summ. J., ECF No. 39. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (“R&R”). Having reviewed the Motion to Strike, and the undersigned is of the opinion it is more properly considered as an evidentiary objection within the parameters of the pending Motion for Summary Judgment. See Mot. Strike 2 (arguing the declarations of Charles Graham and Ramone Wesley do not meet the requirements of Federal Rule of Civil Procedure 56). Although the Motion to Strike also purports to have been brought pursuant to Rule 12(f), that Rule applies only to pleadings. See Agbara v. Prince George's Cnty. Pub. Schs., No. TJS-20-0306, 2020 WL 7425298, at *11 (D. Md. Dec. 18, 2020) (“By its plain language, Rule 12(f) only applies to pleadings ....”). The Motion to Strike, ECF No. 46, is moot; and issues raised therein are considered in the context of Defendant's Motion for Summary Judgment. Having considered Defendant's Motion for Summary Judgment, including supporting memorandum and exhibits, ECF No. 39; Plaintiff's opposition and exhibits, ECF No. 44; Defendant's Reply and exhibits, ECF No. 45; and the applicable law, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 39, be granted and this matter be ended.
I. Standard of review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either 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;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[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. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). Further, “[i]t is well recognized that a plaintiff may not avoid summary judgment by submitting an affidavit that conflicts with earlier deposition testimony.” Alba v. Merrill Lynch & Co., 198 Fed.Appx. 288, 300 (4th Cir. 2006) (citation omitted).
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
II. What may be considered
In opposing summary judgment, Plaintiff submitted portions of the transcript of his deposition taken in this matter, ECF No. 44-1; his own Affidavit signed the day before the opposition was docketed, ECF No. 44-2; the Declaration of former Cold Creek maintenance employee Ramone Wesley, ECF No. 44-3; the Declaration of former Cold Creek maintenance employee Charles Graham, ECF No. 44-4; and several documentary exhibits, ECF Nos. 44-5 through 44-8. Defendant has raised evidentiary and foundational challenges to the two declarations and to portions of Plaintiff's Affidavit.
A. Defendant's challenge to Declarations of Charles Graham and Ramone Wesley (found at ECF Nos. 44-3 and 44-4)
On the same day it submitted its Reply in support of its summary judgment motion Defendant filed a “Motion to Strike” the Declarations of Wesley and Graham for several reasons, including their unsworn nature, their failure to conform with requirements of Federal Rule of Civil Procedure 56(e) or 28 U.S.C. § 1746, and their lack of anything more than an “s/” signature. ECF No. 46. As noted above, the undersigned does not consider this as a separate Rule 12(f) Motion to Strike; rather, the challenges to the declarations are considered in the context of the summary judgment motion itself.
Wesley's “Declaration” begins, “RAMONE WESLEY, being [sic] declares and says:” ECF No. 44-3 at 2. Wesley indicates he is over 18 years old and is “competent to provide the sworn testimony herein.” Wesley Decl. ¶ 1. He includes some detail about his prior work history with Cold Creek, noting he became a supervisor at one point and that he had been supervised by Reed and others. Id. ¶¶ 3-4. Wesley makes several statements about racist things he heard Rick Quarles say, indicates he “witnessed” Plaintiff being “assigned more and harder jobs than everyone else[,]” and says he knows unnamed white employees were paid more than he was paid. Id. ¶¶ 5-9. Wesley concludes, “I provide this statement f[r]eely and voluntarily and not under any duress.” Id. ¶ 9. The signature page is dated October 18, 2022, and includes the typewritten signature “s/Ramone Wesley.” ECF No. 44-3 at 3. His signature is not notarized, nor does he state he makes his declaration under penalty of perjury.
Graham's “Declaration” begins, “CHARLES GRAHAM, being [sic] declares and says:” ECF No. 44-3 at 4. Graham indicates he is over 18 years old and is “competent to provide the sworn testimony herein.” Graham Decl. ¶ 1. He includes some detail about his prior work history with Cold Creek, noting his supervisor was Jonathan Hearse and he “also worked with [Plaintiff] who was [his] supervisor at one point as well.” Id. ¶¶ 4-5. Graham indicates he “witnessed constant racist commentary and actions” at Cold Creek, and that the environment was one of the reasons he quit working there. Id. ¶¶ 6-7. Graham included an example of the racist comments, indicating he heard Debbie Waters “refer to black people as hooligans and she would make statements about not parking our trucks in ‘the hood.'” Id. ¶ 8. Graham also indicated he witnessed Plaintiff being “overworked,” particularly noting Plaintiff and his team had to dig a French drain by hand rather than using available equipment. Id. ¶ 10. Graham indicated he was aware Howard Barton was paid more than Plaintiff because he had seen the pay stubs; Graham also states he “was told Howard used to be a supervisor, but he was demoted, but kept his same pay rate.” Id. ¶ 11. The signature page is dated October 18, 2022, and includes the typewritten signature “s/Charles Graham.” ECF No. 44-4 at 3. His signature is not notarized, nor does he state he makes his declaration under penalty of perjury.
Federal Rule of Civil Procedure 56(c)(4) requires that “[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “Generally, an affidavit filed in opposition to a motion for summary judgment must present evidence in substantially the same form as if the affiant were testifying in court.” Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). “Thus summary judgment affidavits cannot be conclusory . . . or based upon hearsay.” Id. (internal citations omitted).
Here, the Declarations of Wesley and Graham were “neither sworn under oath nor made under the penalty of perjury. As a result, the statement fails to meet the most basic requirement of form required by Rule 56 ....” Mercantile Peninsula Bank v. French (In re French), 499 F.3d 345, 358 (4th Cir. 2007) (Whitney, D.J. concurring in part) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1970) (noting that unsworn statement in support of motion for summary judgment did not meet the requirements of Rule 56); 28 U.S.C. § 1746 (concerning unsworn declarations made under penalty of perjury). Accordingly, it “is improper to consider [this statement] as evidence” in opposition to the motion for summary judgment. Geter v. Powers, C. A. No. 8:07-3849, 2008 WL 5245321, at *1 (D.S.C. Dec. 16, 2008) (citations omitted).
In response to Defendant's challenges to the declarations, Plaintiff submits that the language indicating the declarants are “competent to provide the sworn testimony here” amounts to the declarants' “acknowledging that the testimony given is sworn.” ECF No. 47 at 2-3. Plaintiff also submits that Rule 56 contemplates unsworn declarations are appropriate. Id. at 1 (citing Fed.R.Civ.P. 56(c)(1)(A)). Plaintiff in no manner addresses Defendant's point that the Declarations do not include language that satisfies the “under penalty of perjury” requirement set out by Section 1746 of Title 28 of the United States Code. That section provides that an “unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated,” may be considered in the same manner as an affidavit so long as the declaration includes language declaring “under penalty of perjury that the foregoing is true and correct.” 28 U.S.C. § 1746(2).
Because the Wesley and Graham Declarations were not actually sworn before a notary public and do not include the language required by 28 U.S.C. § 1746(2) when unsworn declarations are being utilized, the undersigned agrees with Defendant that the Declarations found at ECF Nos. 44-3 and 44-4 are not competent and are not appropriately considered in ruling on the pending Motion for Summary Judgment. In so finding, the court notes that facts may be considered so long as they “can[] be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”). Here, though, Plaintiff has had since October 26, 2022 to submit the Wesley and Graham Declarations in a form that satisfies the requirements of Rule 56 and 28 U.S.C. § 1746 and has chosen not to do so. The Declarations of Wesley and Graham are not appropriately considered in ruling on the pending Motion for Summary Judgment. See Campbell v. Fluor Fed. Glob. Projects, Inc., No. 6:17-CV-1226-BHH-KFM, 2019 WL 2125236, at *5-6 (D.S.C. Jan. 4, 2019) (finding it inappropriate to consider statement that was neither sworn nor satisfied the requirements of 28 U.S.C. § 1746), report and recommendation adopted, No. 6:17-CV-1226-BHH, 2019 WL 1306080 (D.S.C. Mar. 22, 2019). Furthermore, even if the court were to consider the substance of the declarations of Wesley and Graham summary judgment would still be appropriate.
Because the declarations at issue are neither sworn nor made under penalty of perjury, the court does not focus on Defendant's argument that an “s/” signature is inappropriate for nonparties and non-officers of the court.
B. Defendant's challenge to portions of Plaintiff's Affidavit
Defendant does not seek to “strike” Plaintiff's affidavit in total; rather, Defendant objects to portions of Plaintiff's post-deposition affidavit to the extent the affidavit contradicts his previously provided deposition testimony. Reply 2. The court agrees with Defendant that Plaintiff cannot use assertions in his October 2022 affidavit that contradict testimony from his earlier deposition to create issues of fact. “A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984). As the Fourth Circuit noted, “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. (quoting Perma Research and Development Co. v. The Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). The court bears this in mind in setting out the undisputed material facts for purposes of this motion.
To the extent supported by the record the court considers the facts in the light most favorable to Plaintiff, the nonmoving party. As noted above, to survive a motion for summary judgment, the non-moving party must demonstrate that specific material facts exist that give rise to a genuine issue. Celotex Corp., 477 U.S. at 324. Indeed, “[w]hen a memorandum opposes a motion for summary judgment, a concise statement of the material facts in dispute shall be set forth with reference to the location in the record.” Local Civ. Rule 7.05(A)(5) (D.S.C.). To the extent appropriate, additional facts are set out in relevant portions of this R&R.
Cold Creek, an Aiken County garden center offering design and landscape services, hired Plaintiff as a maintenance worker in 2014. Compl. ¶ 4; See Pl. Employee Pay Adjustments History Printout 2, ECF No. 44-6 (listing Plaintiff's first pay period as July 31, 2014 to August 6, 2014; at that time, his hourly rate was $7.00 and overtime rate was $10.50/hour). Plaintiff's pay rate was increased to $8.00/hour as of August 28, 2014. Id. Plaintiff was promoted from crew member (laborer) to crew leader, effective October 2, 2014; his pay was increased to $9.00/hour. The “Reason for Change” in the Payroll Status Change Form indicated, “promotion,” and “merit increase,” and indicated Plaintiff was “doing very well.” Oct. 2, 2104 Payroll Status Change, ECF No. 44-5 at 1. He was promoted to supervisor, a position he held for much of his employment with Cold Creek. See Payroll Status Changes, ECF No. 44-5 at 4 (Feb. 18, 2016, increase from $11 to $12, “ Jesse doing very well as supervisor of crew #4); at 5 (July 28, 2016 merit increase from $12 to $13/hour, “2 year review-one of our top three supervisors”); at 6 (March 9, 2017, increase from $13 to $13.50/hour, “One of our best supervisors”); at 7 (March 16, 2017, increase from $13.50 to $14.00/hour, “Upset he didn't get more on his raise from $13.00-move to $14.00. Too valuable supervisor to have upset or quit”); at 8 (Aug. 2, 2018, increase from $14 to $14.50, “will reevaluate in September with potential for another $0.50”); at 9 (Aug. 30, 2018, increase from $14.50 to $15.00); August 6, 2019 (merit increase from $15 to $16, notation to “see evaluation,” but none provided in record).
In his deposition, Plaintiff acknowledged having received several merit-based pay increases. He submits he was “getting overlooked so many times” he had to go “talk to them about [his] pay increase[.]” Pl. Dep. 70, ECF No. 44-1. Plaintiff did not recall details of when those discussions took place. Id. at 70-71. When asked about details of his being overlooked to become a supervisor, Plaintiff recalled that, at some unspecified time a white female named “Teresa” was promoted over him. Id. at 127-30; see also Pl. Aff. ¶ 6, ECF No. 44-2. Plaintiff also indicates that at a later, unspecified time, he was again overlooked for a supervisory position that was awarded to a white male named “Terry.” Pl. Aff. ¶ 6. Plaintiff also indicates he was overlooked for an account rep position that was awarded to a white male named “Curtis.” Pl. Dep. 123-24.
The record also indicates that Plaintiff received some warnings beginning in 2019. Plaintiff was written up for “carelessness” and “conduct” on June 19, 2019. June 19, 2019 Employee Warning Report, ECF No. 39-2 at 1 (indicating Plaintiff sent his crew home early after a “short period of rain” without notifying his manager or the affected customer). In early September 2019, Plaintiff approached Cold Creek and requested permission to work an extra job on a temporary basis. Management agreed, “with the understanding that Cold Creek was [his] main job and he would retain the role and responsibilities of supervisor” with some help from an employee named Robby, who was promoted to co-supervisor. Sept. 27, 2018 Employee Warning Report, ECF No. 39-3 at 1. Plaintiff had an unexcused absence on September 2, 2019, when he was absent to attend a training day for his second job. Absence Report, ECF No. 39-4 at 1. In a September 27, 2018 Warning Report, Plaintiff's manager indicated Plaintiff had been advised when he accepted the second job that communication would be key. Sept. 27, 2018 Report. Plaintiff's manager indicated, however, that, since Plaintiff had begun the second job, he had “continually decreased his level of communicating with [his manager and] has basically given all responsibility to Robby, and has not been in Cold Creek uniform.” Id. On December 10, 2019, Plaintiff was involved in verbal altercation with a crew member. See Dec. 11, 2019, Employee Warning Report, ECF No. 39-5 at 1. During the altercation, Plaintiff told his crew member that if they ever fought the crew member “might end up in the hospital.” Id. The Manager noted that this behavior was unacceptable. Id. Plaintiff averred that “[d]ue to the unreasonable demands of the supervisor position that was exclusively placed on Plaintiff, Plaintiff eventually stepped down as a supervisor to alleviate stress.” Compl. ¶ 11; see also “Particulars” of EEOC Charge, ECF No. 45-8 (“Due to the demands of the supervisor position, I eventually stepped down as a supervisor to alleviate some of the stress associated with the position.”). Plaintiff indicates that, at that time, “his pay was reduced by $2.00 per hour without any reason.” Compl. ¶ 12. Payroll records indicate his pay rate was reduced from $16.00/hour to $14.00/hour as of January 14, 2020. Payroll Records, ECF No. 44-6 at 1.A Payroll Status Change record indicates that, effective January 14, 2020, Plaintiff's job title was changed from supervisor to crew leader and his pay went from $16.00 to $14.00/hour. In the “Reason for Change” management indicated, “Jesse no longer wants to be a supervisor.” Jan. 14, 2020 Payroll Status Change, ECF No. 39-6 at 1.
In his memorandum, Plaintiff attributes the appointment of a co-supervisor to Plaintiff's complaining to management that Plaintiff was being worked harder than others. Pl. Mem. 3 (generally citing “Ex. 2”). The court notes that nothing in Plaintiff's exhibit 2, his affidavit, references any such complaint. Nor does Plaintiff's affidavit support Plaintiff's claim in his memorandum that his manager began communicating only with the co-supervisor to the exclusion of Plaintiff. Id.
Plaintiff refused to sign the September 27, 2018 Warning Report. In his deposition Plaintiff indicated he had not seen the September 27, 2018 Report prior to his deposition. Plaintiff further indicated portions of the statement were untrue: he said it was his manager, Jonathan Hesse, who stopped communicating with Plaintiff. Plaintiff acknowledged the portion of the Report that indicated he had accepted a second job and had been given a co-supervisor. Pl. Dep. 88-89.
In opposing summary judgment Plaintiff states he was “still a supervisor” at the time his pay was reduced in January 2020. Pl. Mem. 3 (citing generally to Ex. 2 (Pl. Aff.) and Ex. 6 (Payroll Records)). In his Affidavit, Plaintiff stated his pay had been reduced when he had been given a cosupervisor. Pl. Aff. ¶ 14. As noted above, Payroll records indicate his payrate was reduced by $2/hour in January 2020. These records do not include his job titles for the various pay periods.
Plaintiff's arguments that his payrate was handled differently from the payrate of purported comparator Howard Barton are discussed within.
On January 21, 2020, Plaintiff called his manager, Rick Quarles, and indicated he wanted to discuss the reduction in pay. Advised it was because Plaintiff had a co-supervisor, Plaintiff responded that he “was not notified or anything about this” and said “well, I'll put my two-week notice in if that's the case, you know.” Pl. Dep. 104. As discussed below, accounts differ as to whether Plaintiff tendered his resignation or was terminated on January 21, 2020. It is not disputed that Plaintiff did not work for the two weeks following January 21, 2020, but he was paid for those two weeks. Quarles Decl. ¶ 7.
Plaintiff filed a charge with the Equal Employment Opportunity Commission, received a Right to Sue Letter, and filed the instant action in September 2021.
IV. Analysis
Defendant seeks summary judgment as to Plaintiff's remaining claims of “unlawful racial discrimination and hostile work environment on the basis of race” in violation of Title VII and Section 1981. The parties also briefly discuss a retaliation claim.
A. Burden of proof in Title VII and Section 1981 claims
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). The statute broadly defines the term “make and enforce contracts” as “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Thus, a cause of action under Section 1981 “must be founded on purposeful, racially discriminatory actions that affect at least one of the contractual aspects listed in § 1981(b).” Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999) (explaining that an employment relationship is contractual and thus protected by Section 1981). A plaintiff may demonstrate a violation of either statute through direct or circumstantial evidence or by using the burden-shifting method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216 (4th Cir. 2016) (explaining that the McDonnell Douglas framework applies in employment discrimination and retaliation cases arising under Title VII or Section 1981).
A plaintiff offers direct or indirect evidence of discrimination using “ordinary principles of proof.” Burns v. AA F-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (in ADEA context) (internal quotations omitted). Under this method, a plaintiff will only survive summary judgment if he or she “produce[s] direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (ADA retaliation claim) (citation and quotation omitted) (alteration in original).
When, as here,direct evidence is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII or Section 1981, the burden of production shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Additionally, for Section 1981 claims Plaintiff is required to establish that his race was a “but-for” cause of the adverse action. Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009 (2020).
Plaintiff begins the argument section of his memorandum by indicating he “presents sufficient direct and circumstantial evidence . . . that Plaintiff's race was a motivating factor in his lesser pay, termination, and lack of promotion.” Pl. Mem. 7. However, Plaintiff does not explain what direct and circumstantial evidence supports any of his claims. Rather, he analyzes his claim using the McDonnell Douglas burden-shifting framework. The court will do the same.
While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burdenshifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous, 828 F.3d at 220 (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-retaliatory justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220.
B. Claims of race-based discrimination
Construed liberally, and as described by Plaintiff in opposing summary judgment, his discrimination claims “are based on failure to promote, lesser and unequal pay, reduction in pay, hostile work environment and retaliation.” Pl. Mem. 1. The court first considers the disparatetreatment-related claims-including those concerning a failure to promote and those related to pay-before addressing Plaintiff's claims of a hostile work environment and retaliation.
1. Title VII and Section 1981 disparate-treatment discrimination claims
To establish a prima facie case of disparate treatment on the basis of his race, Plaintiff must show: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action . . .; and (4) that similarly-situated employees outside the protected class [comparators] received more favorable treatment.” White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004). Defendant concedes Plaintiff's membership in a protected class but argues he cannot establish the remainder of the prima facie case.
The undersigned notes that a plaintiff “[is] not required as a matter of law to point to a similarly situated comparator in order to prevail on a discrimination claim.” Hurst v. D.C., 681 Fed.Appx. 186, 191 n.5 (4th Cir. 2017) (citing Bryant v. Aiken Reg'lMed. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003)). Nonetheless, when, as here, Plaintiff has based his discrimination claims on his contentions that he was treated differently from similarly situated white co-workers, “whether the proffered comparators are similarly situated goes to the core of his prima facie case.” Id.
a. Pay-related claims
1) General claims of unequal pay
Plaintiff alleges he was treated differently because he was paid less than less than experienced white employees generally and because his pay was reduced when he was no longer the sole supervisor. Pl. Mem. 7-8 (citing generally to Pl. Aff and his Pay Adjustment History). However, the undersigned agrees with Defendant that Plaintiff has provided no competent evidence to support these allegations.
In his Complaint, Plaintiff alleges he was “paid less than his non-African American colleagues[.]” Compl. ¶¶ 27, 37. However, Plaintiff has proffered no pay-related documentation to support this allegation. When asked what documentation he had to support that claim, Plaintiff responded, “Documents I've seen of me training people that was making more money than I was making.” Pl. Dep. 121. However, he admitted he did not have those documents “in hand.” Id. Further, when asked to identify any non-African-American employees who had been paid more than he, Plaintiff indicated it was “several employees,” but he could not recall their names “off of his head.” Id.; see also id. at 122 (Plaintiff's acknowledging he did not know “offhand” the names of those he alleged were paid more than he).
As argued by Defendant, this inability to name a single comparator or provide evidence of any actual pay discrepancy is fatal to Plaintiff's prima facie case. In addition to failing to provide evidence of an adverse action as to general pay inequity, Plaintiff has not provided comparator information sufficient to satisfy the fourth element of his case. Heffernan v. Mayorkas, No. CV SAG-21-3228, 2023 WL 1415994, at *6 (D. Md. Jan. 31, 2023) (granting summary judgment noting, inter alia, plaintiff's generalized assertions were insufficient evidence of a “valid comparator who was treated differently”) (citing Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir. 2010)); see id. at 191 (granting motion to dismiss, noting plaintiffs failure to provide allegations of comparators' purported substantial similarity).
In opposing summary judgment Plaintiff does not focus at length on this aspect of his disparate-treatment claim, focusing instead on his claim that he was treated differently when his pay was reduced in January 2020. That portion of the pay-inequality claim is discussed below. As to the more general claim that Plaintiff was paid less than non-African-American employees, Plaintiff generally asserts summary judgment is inappropriate based on his testimony that he was paid less than employees he was training and that, “unlike other supervisors, he was not paid for training new employees.” Pl. Mem. 9 (citing Pl. Dep. 121, 133-34). Again, Plaintiff has proffered no evidence to support his testimony. As noted above, Plaintiff was unable to provide names or other detailed information as to what employees whom he trained were paid more than he. His testimony regarding his not being paid for training new employees is similarly lacking. Plaintiff testified Quarles advised him and two other employees-one he is “pretty sure [was] Robin Brown” and the other whose name he could not recall-that they would receive $100 for each employee they “completely trained.” Plaintiff acknowledged he had no documents to support that Robin or the other individual were paid the training compensation other than to generally indicate he had “seen both of their checks when they got them,” although he could not recall when that took place. Pl. Dep. 133-34. Plaintiff's generally testifying that he had seen the paychecks of others without details of when or other details regarding the other alleged comparators is insufficient to establish a prima facie case. Plaintiffs argument and evidence are based on his own conjecture and speculation, which are insufficient to create a genuine issue of fact. See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (noting that “conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence” cannot create genuine issues of material fact); Nat'l Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) (finding “self-serving affidavit” insufficient to defeat motion for summary judgment); Mackey v. Shalala, 360 F.3d 463, 469-70 (4th Cir. 2004) (“A plaintiff's own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination.”); Wilson v. Wal-Mart, Inc., No. 3:15-cv-1157-JFA, 2016 WL 3086929, at *3 (D.S.C. June 2, 2016) (“Uncorroborated and self-serving testimony cannot give rise to a genuine factual dispute.”). Summary judgment is appropriate.
2. Claims related to Howard Barton
Plaintiff's main focus as to his pay-related claims concerns White coworker Howard Barton. Plaintiff intimates Barton generally was paid more than Plaintiff. His focus is on his argument that Barton stepped down as supervisor and did not receive a reduction in his hourly wage. Plaintiff testified that Barton told him his pay was not decreased when he stepped down from supervisor. Pl. Dep. 103-08, 139-40. Plaintiff also seeks to use Graham's unsworn affidavit in which Graham says he saw both Plaintiff's and Barton's paychecks and knew Barton's pay-rate did not change. Pl. Mem. 3, 8. As noted above, Graham's unsworn statement is not competent evidence. Even if considered, it lacks specificity.
Plaintiff further argues that Defendant has not produced records demonstrating Barton did not step down as supervisor or was not paid more than Plaintiff. Pl. Mem. 8 & n.1. As noted by Defendant on Reply, this argument misconstrues the burden of proof. It is Plaintiff, not Defendant, who must present competent evidence to support his argument. Defendant noted Plaintiff's discovery requests did not specifically request records from Barton. Nonetheless, the evidence Defendant provided included information as to would-be comparators, including Barton, who is identified in discovery as “Caucasian male Maintenance Supervisor, Still employed by Defendant, CCN000163-164.” Def. Resps. Pl. First Set Interrog. No. 17, ECF No. 45-3 at 9; Reply 4; Barton Pay Adjustments History, unredacted version of CCN000163-164 provided at ECF No. 45-5 at 23. Comparison of Barton's and Plaintiff's pay rates indicate that, before Plaintiff stepped down as supervisor he was making $16.00 an hour while Barton was earning $14.50. See Pl. Pay Adjustment History, CNN 000167-168, ECF No. 45-6 at 2.
Regarding whether Barton stepped down as a supervisor, Maintenance Director Quarles affirmed Barton never stepped down from his supervisor role. Quarles Decl. ¶ 2. Plaintiff counters this only with his own self-serving testimony that “he kn[e]w” and “saw [him]self' Barton was no longer performing as a supervisor. Pl. Aff ¶¶ 14-15. In his inadmissible declaration Graham offers hearsay evidence that he “was told Howard [Barton] used to be a supervisor, but he was demoted, but kept his same pay rate.” Graham Decl. ¶ 11. As noted above, Plaintiff's self-serving testimony is insufficient to defeat summary judgment. Nat'l Enterprises, Inc. v. Barnes, 201 F.3d at 335; Mackey v. Shalala, 360 F.3d 463, 469-70 (4th Cir. 2004) (“A plaintiff's own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination.”); Wilson v. Wal-Mart, Inc., No. 3:15-cv-1157-JFA, 2016 WL 3086929, at *3 (D.S.C. June 2, 2016) (“Uncorroborated and self-serving testimony cannot give rise to a genuine factual dispute.”). See also Maryland Highways Contractors Assn v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991) (“Thus, summary judgment affidavits . . . cannot based upon hearsay.”). Further, Defendant has indicated Plaintiff opted not to depose Barton himself and, accordingly, did not obtain potentially attainable sworn testimony as to whether Barton did or did not ever step down as supervisor. Plaintiff bears the burden of proving up his prima facie case. He has not done so as to claims that he was treated differently from Barton. In addition, as pointed out by Defendant, Plaintiff admitted in his deposition that Defendant's pay system is merit-based. Pl. Dep. 172. Summary judgment is appropriate.
b. Plaintiff's claims related to his separation from Defendant
While undisputed that Plaintiff did not perform work for Defendant subsequent to January 21, 2020, whether his leaving was a resignation (whether voluntary or a constructive termination) or an actual termination is the subject of some factual dispute. Defendant considered Plaintiff to have voluntarily resigned when he gave his “two weeks' notice” and paid him for the two weeks without requiring him to work before removing him from the payroll after January 27, 2020. Plaintiff submits his “two weeks' notice” was not intended as a resignation; rather, he meant it as a vehicle to discuss pay-related issues. Incongruously, Plaintiff argues he was forced to resign (constructively discharged) and was terminated by Defendant. These factual issues notwithstanding, summary judgment should be denied only if, considering Plaintiff's version of the facts, Plaintiff has set out a legal claim from which a reasonable jury could determine he was discriminated against. The undersigned sets out the relevant facts and considers whether Defendant is entitled to summary judgment.
On January 21, 2020, Plaintiff called his manager, Rick Quarles, and indicated he wanted to discuss the reduction in pay. Plaintiff testified that he was calling to discuss the change in his pay, and Quarles advised Plaintiff the pay-reduction was effected “because I guess we got a cosupervisor now[.]” Pl. Dep. 104. Plaintiff responded that he “was not notified or anything about this” and said “well, I'll put my two-week notice in if that's the case, you know.” Pl. Dep. 104. The record includes Quarles' handwritten note that Plaintiff called him “on Tuesday at 3:17 pm and 3:18 pm and gave us his two (2) week notice. Accepted by Rick Quarles.” Jan. 21, 2020 Handwritten note, ECF No. 39-7 at 1. That note also includes a separate paragraph: “Jesse comes into our office this afternoon and states a verbal hostile confrontation with me about his decision to step down as a supervisor with less pay. We cannot pay Jesse supervisor pay if he won't be a supervisor.” Id. In his Declaration, Quarles notes Plaintiff's January 21, 2020 phone call, indicates Plaintiff's “two weeks notice of resignation” was “accepted, he was paid through the two weeks and was allowed to be absent from work during those two weeks.” Quarles Aff. ¶¶ 6-7, ECF No. 39-8.
The record also contains a copy of the top portion of Quarles' January 21, 2020 handwritten note that includes an attached handwritten “stickie” note asking, “Doug-would you just pay him his next two weeks or can we accept his resignation and ask him to not come back? RQ.” ECF No. 44-7.
Plaintiff characterizes Quarles' handwritten note about the two-weeks'-notice conversation as Quarles' having “[written] up a two-weeks notice for Plaintiff on his own accord and told him his services were no longer needed.” Pl. Mem. 5 (generally citing to ECF No. 44-7). In his memorandum, Plaintiff stated Quarles advised him his services were no longer needed, attempted to have Plaintiff sign the handwritten note, and “snatched it” when Plaintiff tried to take a picture of it. Pl. Mem. 5 (citing Pl. Dep. 104-05 and ECF No. 44-7). In those pages of his deposition Plaintiff noted Quarles had written up the notice, “snatched it” when Plaintiff tried to take a picture of it, and “told [him] it's because of work ethic[.]” Pl. Dep. 105.
In deposition, Plaintiff stated that, in indicating he was giving his two-weeks' notice, Plaintiff's “intention was never to leave Cold Creek.” Pl. Dep. 114. Plaintiff says that, instead, he was told his services were no longer needed. Id. Plaintiff testified that in referencing his “two week notice” he had wanted to submit a written notice to Cold Creek to “[a]sk for two weeks of clarity, let's try to find out what's the issue or what happened within this-within this taking $2 off of my paycheck that I had nothing to do with or know about at all.” Pl. Dep. 120; see id. at 143 (indicating the “two weeks' notice” referred to Plaintiff's “intent to resolve the pay issue”). In the “Particulars” portion of Plaintiff's EEOC Charge he states, “Due to the overwhelming and racially hostile and oppressive work environment, I constructively terminated in January 2020. When I tried to put in an official notice, Rick Quarles snatched the paper out of my hand and stated I was fired.” Particulars, ECF No. 45-8.
Plaintiff did not report to work for the two weeks following January 21, 2020, but he was paid for those two weeks. Quarles Decl. ¶ 7.
As an initial, practical matter, the court questions how any employee who has given his “two weeks' notice” would not be considered to be handing in their voluntary resignation and providing a “courtesy warning” to his employee that he was quitting his job. See https://www.businessnewsdaily.com/15915-two-week-notice.html (last viewed April 26, 2023); cf. Green v. Brennan, 578 U.S. 547, 564 (2016) (characterizing an employee's “‘two weeks' notice' as his “telling his employer he intends to leave after two more weeks of employment”). Considering this common parlance, Defendant could appropriately be considered to have accepted Plaintiff's resignation, in which case there would be no adverse employment action unless Plaintiff can demonstrate he was constructively discharged.
Here, the court considers Plaintiff's somewhat incongruous legal theories: that if he resigned it was a constructive discharge based on the way he was treated; and that he was actually terminated when he attempted to discuss his pay reduction.
In his Complaint, Plaintiff averred he was “constructively terminated in January 2020.” Compl. ¶ 20. To state a claim under Title VII based on constructive discharge, a plaintiff must allege the defendant employer “discriminate[d] against [him] to the point such that his working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign.” Green, 578 U.S. at 555. “When the employee resigns in the face of such circumstances, Title VII treats that resignation as tantamount to an actual discharge.” Id. “[Constructive discharge requires a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment,” Perkins v. Int'lPaper Co., 936 F.3d 196, 212 (4th Cir. 2019), under which “the offending behavior must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Pennsylvania State Police v. Suders, 542 U.S. 129, 146-47 (2004). “Unless conditions are beyond ‘ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress.” Id. at 147.
Defendant seeks summary judgment as to any claim that Plaintiff was constructively discharged. Def. Mem. 14-16. In opposing summary judgment Plaintiff does not pursue this theory of recovery. Further, the court notes Plaintiff has not set out evidence of “difficult or unpleasant working conditions and denial of management positions,” that would, “without more, [be] so intolerable as to compel a reasonable person to resign.” Perkins, 936 F.3d at 212. To the extent Plaintiff purports to claim he was constructively terminated in January 2020, such a claim fails. Therefore, to the extent Plaintiff resigned, there was no adverse employment action.
As noted above, it is clear that any employee who advises his employer that he is providing his “two weeks' notice” would be considered to have resigned. Nonetheless, to the extent Plaintiff has presented evidence that he did not resign but was terminated (Pl. Dep. 156 (“I was terminated.”), id. at 23 (“Cold Creek said that I quit when I was fired.”), he has not established he was terminated in violation of Title VII or Section 1981. While Plaintiff's theory as to why his termination was racially motivated is not exactly clear, he seems to argue he “was terminated by Rick Quarles when he tried to put in his two (2) weeks' notice,” Compl. ¶ 37; and he was terminated when he asked for clarity as to why his pay had been reduced, Pl. Mem. 4-5. As discussed more fully above, Plaintiff has presented no competent evidence that his pay was reduced on account of his race. Rather, Quarles's notations and testimony indicate Plaintiff was being removed from the payroll after the two weeks based on Quarles's understanding that Plaintiff was resigning. Although Quarles noted Plaintiff's “hostile” questions about the pay reduction and Plaintiff testified Quarles complained about Plaintiff's work ethic at that time, neither of those comments create any sort of inference of discrimination. Plaintiff has not set out a prima facie case of discriminatory termination. Summary judgment is appropriate.
c. Failure to promote
Plaintiff also alleges he was discriminated against when he was “overlooked for promotions (e.g. account representative) while white employees were not[.]” Compl. ¶ 27.
Defendant submits Plaintiff has not set out a prima facie case of race discrimination in violation of Title VII or Section 1981. Def. Mem. 9-10. To establish such a prima facie case, a plaintiff typically must show that (1) he is a member of a protected class; (2) his employer had an open position for which he applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Williams v. Giant Food, Inc., 370 F.3d 423, 430 (4th Cir. 2004); Bryant, 333 F.3d at 545 n.3 (“[i]n failure-to promote cases such as this, ‘the framework of proof for disparate treatment claims . . . is the same for actions brought under Title VII, or § 1981, or both statutes.'”).
Plaintiff satisfies the first prong. Defendant submits he cannot establish the second or forth prongs because he has not provided evidence of any open positions for which he applied or sought to apply, nor has he shown he was rejected for promotions based on race. Defendant looks to Plaintiff's deposition testimony in which he admits Defendant promotes employees based on merit and work ethic, See Pl. Dep. 125-26, and argues Plaintiff simply cannot establish he was rejected from any potential position under circumstances giving rise to an inference of unlawful discrimination, Def. Mem. 10-11.
In response, Plaintiff accurately indicates that, in certain situations, an employee need not show he actually applied for a particular job if there is evidence that certain positions were not posted. The Fourth Circuit noted in Williams that “the application requirement may be relaxed and the employee treated as if []he had actually applied for a specific position” if an employer “fails to make its employees aware of vacancies[.]” Id. at 431. Plaintiff cites an excerpt of Defendant's Employee Handbook indicating openings generally were awarded to “the person who has the best all-around record[,]” and indicates nothing about posting openings for positions such as the Account Representative position Plaintiff indicates he sought. Pl. Mem. 12 (citing Employee Handbook 8, ECF No. 44-8). Plaintiff indicates he was unaware of an opening for “Phil Davis's Account Manager position” until he learned at a Monday morning meeting that the position had been given to a “white employee named Curtis.” Pl. Dep. 124. He indicated he had also been overlooked when a position was given to a “white employee named Teresa.” Id. at 126-30. Plaintiff noted that he later received a supervisor position. Id. at 126-27.
Plaintiff provides scant detail as to these other positions and no details as to these would-be comparators. He does not provide evidence he was even considered for those positions. Generally, to raise an inference of discrimination in the failure-to-promote context, a plaintiff must establish that he was not only qualified, but he must “make a strong showing that h[is] qualifications [we]re superior to those who actually received the promotion.” McLaughlin v. CSX Transportation, Inc., 211 F.Supp.3d 770, 782-83 (D.S.C. 2016) (citation omitted). More generally, when a plaintiff uses comparators to demonstrate discrimination, he must “include evidence that the employees ‘dealt with the same supervisor, [were] subject to the same standards and . . . [in the context of disparate discipline or treatment] engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'” Haywoodv. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Further, Plaintiff has admitted promotions were merit-based. He cannot satisfy a prima facie case.
In any event, even if Plaintiff were found to have established a prima facie case as to some generalized failure-to-promote claim, he has provided no evidence that Defendant's hiring or promotion decisions were in any manner based on anything other than the relative merit of the various potential candidates. Summary judgment is appropriate.
d. Hostile work environment
Both Title VII and Section 1981 prohibit discrimination in the form of a hostile work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 73 (1986) (hostile work environment discrimination actionable under Title VII); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (2015) (noting same test under Title VII and Section 1981). A hostile work 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 the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted). “[T]o prevail on a Title VII [or Section 1981] claim that a workplace is racially hostile, 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 citation, alteration, and quotation marks omitted).
Defendant seeks summary judgment, arguing Plaintiff has not set out unwelcome conduct that was based on his race that was “severe or pervasive.” Def. Mem. 19-20. To establish an environment of race-based unwelcome conduct, Plaintiff must “‘show that ‘but for' [her] race . . ., [she] would not have been the victim of the alleged discrimination.'” Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007) (quoting Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998)). See Hawkins v. PepsiCo, Inc., 203 F.3d at 281 (finding that personal disputes with supervisor, without evidence that harassment was racial in nature, were not enough to survive summary judgment on hostile work environment claim).
In opposing summary judgment, Plaintiff references the following:
• Debbie Waters, a white supervisor, made a comment to Plaintiff's cousin in which she referred to blacks as “hooligans,” Pl. Dep. 160 (asking whether the cousin “live[d] out with them hooligans” when indicating he was taking the company truck to his home);
• Waters telling Plaintiff “not [to] park [work] trucks in ‘the hood,'” Pl. Aff. ¶ 4;
• Waters attempting to make a joke about how to get rid of fire ants, “the way you get rid of ant beds is by spraying black paint on it and the queen ant will say we need to move out because the blacks are taking over the neighborhood,” Pl. Dep. 160-61 (made at an unknown time);
• White Account Representative, Curtis, repeatedly telling black employees they were dumb and uneducated without reason, which Plaintiff indicated caused him to switch the trucks on which he worked, Pl. Dep. 161-63;
• White manager, Rick Quarles, telling an unnamed black employee that he “would kill him” if the black employee had looked at his wife, Pl. Dep. 174.
Plaintiff submits some of these incidents were reported to management but nothing was done. Pl. Dep. 163, 174-75. Plaintiff submits that these various statements, combined with other already discussed allegations concerning Plaintiff's alleged unequal pay, lack of promotion, and his termination all combined to create a racially hostile work environment. Pl. Mem. 14-15.
As an initial matter, the undersigned notes that only one of the comments purports to have been made to Plaintiff himself. Further, as discussed above, Plaintiff has not linked his allegations concerning unequal pay, lack of promotions, and his termination to his race. Even considering all evidence in the light most favorable to Plaintiff, he has not established an environment that was both objectively and subjectively hostile. “To be actionable, the conduct must create an objectively hostile or abusive work environment, and the victim must also perceive the environment to be abusive.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2007). A hostile work 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 the victim's employment and create an abusive working environment.” Harris, 510 U.S. at 21 (internal quotation marks and citations omitted). When considering a plaintiff's claim that he was subjected to a hostile work environment, the court considers the totality of the circumstances. Relevant factors “may include the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris, 510 U.S. at 23.
Plaintiff proffers little-to-no argument that he can satisfy the “objectively hostile or abusive work environment” prong of his hostile-work-environment claim. Without further legal analysis, Plaintiff submits that “[a] reasonable jury can also find that all of the occurrences listed herein a[re] severe and pervasive enough for anyone to withstand in a workplace.” Pl. Mem. 15.
Here, the undersigned accepts that Plaintiff may have subjectively felt the environment to have been abusive. Nonetheless, the undersigned finds nothing in Plaintiff's argument or proffered evidence that indicates an environment that could satisfy the objective prong of the test-one “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.” Sunbelt, 521 F.3d at 516. In the first instance the court must examine the totality of the circumstances, including “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 Plaintiff's work performance. See Harris, 510 U.S. at 23. Here, the undersigned finds no objectively hostile environment based on race. A reasonable jury would not find the situations Plaintiff describes to be “so out of the ordinary as to meet the severe or pervasive criterion.” Sunbelt, 521 F.3d at 516. Because Plaintiff cannot show a severe and pervasive hostile environment based on race, summary judgment is appropriate on his hostile-work-environment claim.
2. Retaliation claim
In his Complaint, Plaintiff generally complains he experienced retaliation when he “complained or asked about why he was being overlooked for promotion,” and when his pay was reduced when he stepped down as supervisor. Compl. ¶¶ 14-15. Plaintiff also avers his termination was a “form of racial discrimination and retaliation.” Compl. ¶ 30. Plaintiff's Complaint does not include a clearly delineated cause of action for retaliation. Nonetheless, because Plaintiff discusses such a claim in opposing summary judgment, and Defendant addresses it on reply, the court considers it herein.
An employee can set out a prima facie claim of Title VII retaliation by establishing the following: “(1) that he engaged in protected activity; (2) that his employer took an adverse action against him; and (3) that a causal connection existed between the adverse activity and the protected action.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th Cir. 2015) (cleaned up). The elements under Section 1981 are the same. Boyer-Liberto, 786 F.3d at 281. If an employee establishes a prima facie case of retaliation, the burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse action. Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006). A plaintiff must thereafter demonstrate that the employer's reason was a mere pretext for retaliation by showing “both that the reason was false and that discrimination was the real reason for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (internal quotation marks omitted). Significantly, the Supreme Court has held that the protected activity by the employee must be the but-for, direct cause of the adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (“Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”). That but-for standard also applies to Section 1981 claims. See Ali v. BC Architects Eng'rs, PLC, 832 Fed.Appx. 172-73 (4th Cir. 2020) (“[T]o state a § 1981 retaliation claim, a plaintiff must allege facts rendering it plausible that, but for her participation in protected activity, she would not have suffered a materially adverse action.”).
Plaintiff briefly argues that his retaliation claims should not be dismissed. Pl. Mem. 15-16. He submits he “engaged in protected activity when he reported various issues of discrimination, including when he reported the issue with his pay reduction.” Id. at 16. Citing to no record evidence or details of actual reports of race-related issues, Plaintiff indicates he was “looked over for promotions, paid less than senior white employees and terminated” because he complained of “not receiving pay raises, promotions,” and “of the racial statements made by Cold Creek supervisors.” Id.
Importantly, however, Plaintiff makes no effort to pinpoint any actual protected activity or explain how it was causally related to a materially adverse action. He does not explain to whom he reported what or when. While it is apparent he complained about his pay reduction in January 2020 when giving his “two weeks' notice,” there is no evidence that his complaint to Quarles was tied to alleged race discrimination. Therefore, there is no evidence Quarles was aware that those complaints would be considered protected activity. See Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005) (“In order to establish this causal connection, a plaintiff in a retaliation case must show, at the very least, that the defendant was aware of her engaging in protected activity.”) (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)); Robinson v. Greenwood Cnty., No. CIV.A. 8:10-02192, 2011 WL 6257125, at *7 (D.S.C. Nov. 22, 2011), report and recommendation adopted, No. CIV.A. 8:10-02192-TM, 2011 WL 6217601 (D.S.C. Dec. 14, 2011) (noting plaintiff's expression of “dissatisfaction and a feeling of unfairness” as to an adverse action, without referencing alleged protected status discrimination, is insufficient to satisfy the “protected activity” requirement); see also Miles v. Dell, Inc., 429 F.3d 480, 492 (4th Cir. 2005) (holding that, to constitute protected activity, complaint must be about Title VII discrimination).
Plaintiff has not set out a prima facie case because he has no evidence of any protected activity that is causally tied to a materially adverse event. Even if he did, his evidence does not suffice to demonstrate that his pay, promotions, or separation/termination would have been handled differently “but for” unlawful conduct on the part of Defendant. Nassar, 570 U.S. at 351.
Plaintiff has not set out evidence of race-based retaliation sufficient to survive summary judgment.
V. Conclusion and Recommendation
For the reasons set forth above, the undersigned recommends Defendant's Motion to Strike, ECF No. 46, be found moot; and Defendant's Motion for Summary Judgment, ECF No. 39, be granted and this matter be ended.
IT IS SO RECOMMENDED.