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Herbert v. Olympia Hotel Management LLC

United States District Court, W.D. Virginia, Charlottesville Division

February 4, 2014



NORMAN K. MOON, District Judge.

Plaintiff Demetrius Herbert ("Plaintiff") alleges sexual harassment and race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 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.


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 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.

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]


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, 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).


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., Inc., 335 F.3d 325, 331 (4th Cir. 2003). Notably, "legally sufficient evidence is required ...

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