United States District Court, W.D. Virginia, Roanoke Division
JOHN L. McKINNEY, JR., Plaintiff,
G4S GOVERNMENT SOLUTIONS, INC., Defendant.
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
Plaintiff John L. McKinney, Jr. filed this action against his employer, G4S Government Solutions, Inc. (G4S), asserting the following claims: (1) a hostile work environment claim under both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, based on his race (African-American); (2) a retaliation claim under the same two statutes; and (3) a claim for intentional infliction of emotional distress under Virginia law.
Pending before the court is G4S’s motion for summary judgment. (Dkt. No. 43.) G4S contends that it is entitled to summary judgment in its favor as to all of McKinney’s claims. First, it argues that the undisputed evidence establishes that it has satisfied each of the requirements of the Faragher/Ellerth affirmative defense,  entitling it to judgment in its favor on the hostile work environment claim. Second, it posits that McKinney’s retaliation claim fails both because he did not engage in protected activity before receiving the May 24, 2013 write-ups, and because no legally sufficient retaliatory action was taken against him at any time. Third and finally, it argues that McKinney has failed to establish at least two of the four elements of his emotional distress claim.
The motion has been fully briefed, the court heard argument on the motion on September 14, 2015, and the court has considered all written submissions, including the supplemental briefs filed after the hearing. For the reasons set forth below, the court will grant G4S’s motion for summary judgment.
The court construes the evidence, and reasonable inferences therefrom, in the light most favorable to McKinney, the non-moving party. Laing v. Fed. Express Corp., 703 F.3d 713, 714 (4th Cir. 2013).
A. McKinney’s Employment With G4S
McKinney, who is African-American, was hired by G4S in September 2005 to work as a Security Officer at the Radford Army Ammunition Plant (RFAAP). (Allen Decl. ¶ 8, Dkt. No. 44-1, at 3-19.) RFAAP is operated by BAE Systems, Inc. (BAE), pursuant to a contract with the Department of Defense. (Allen Decl. ¶ 4.) At all relevant times, BAE subcontracted with G4S to provide certain on-site services at RFAAP. These included security services, fire protection services/EMT, janitorial services, and copying and mail services. (Id.)
G4S is a Florida corporation with both domestic and international operations, and the primary individuals involved in investigating and remedying the alleged harassment are not based at RFAAP. These include Senior Vice-President Rich Allen-who is also African-American and is directly responsible for oversight of G4S’s operations at RFAAP-and Rob Handel, the human resources employee who was tasked with investigating McKinney’s complaint. (Id. ¶¶ 1, 4–5, 14; Handel Decl. ¶¶ 2–3, 8–10, Dkt. No. 44-1, at 26–55.) G4S’s highest-ranking supervisor located at RFAAP during most of the pertinent time was Project Manager Shawn Lewis, who McKinney alleges was his primary harasser. Lewis reported directly to Allen, who reported to G4S’s President. (Allen Decl. ¶¶ 5–6.)
On February 20, 2012, McKinney was promoted to corporal (now called relief captain) and received a 16% raise. (Id. ¶ 8; McKinney Dep. 31–32, Dkt. Nos. 44-3 and 50-2; McKinney Dep. Ex. 3, Dkt. No. 44-3, at 95.) Approximately six months later, on September 6, 2012, he was promoted to the position of shift captain (on the second shift) and received an additional 3.8% raise. (McKinney Dep. 33 & Ex. 4, Dkt. No. 44-3, at 96.) In late May 2013-mere weeks after the most serious incidents of harassment alleged by McKinney-he was transferred to the position of first shift captain. Notably, the first shift is McKinney’s preferred shift, and he testified that it is a more prestigious position than second shift, because it involves both more responsibilities and more personnel to supervise. (McKinney Dep. 37–39; see also Anderson Decl. ¶ 6, Dkt. No. 44-1, at 20–25.) McKinney remains employed in that position today. At no point during his employment was McKinney demoted, and, as noted, his salary increased twice in 2012, and it has not been reduced since.
B. Alleged Incidents of Harassment
The most severe incidents of harassment-which the court refers to as the “noose incident” and the “sheet incident”-occurred on May 23, 2013. McKinney also testified about two prior incidents when he heard offensive comments, neither of which McKinney reported to anyone prior to May 2013. (McKinney Dep. 52–55, 57.) The noose incident occurred when McKinney first arrived at work on May 23. As he walked into the common area near his office, he saw Shawn Lewis and three other white employees standing in a group and laughing. The others were J.C. Allison, Greg Gravley, and Ryan Gellner. (Id. at 60–62.) Lewis said, “I am going to ask, I am going to ask [McKinney], ” and, as Lewis said that, the three others walked away into their respective offices, with at least two of them laughing. (Id. at 81.)
When McKinney asked what was going on, Lewis asked him if he knew there was a noose hanging on a nail inside a small closed cabinet outside the security captain’s office.Lewis then had McKinney follow him to show him the noose, and directed McKinney to get rid of it, despite McKinney’s protests. (Id. at 82–84.) McKinney, who retained the noose rather than throwing it out, has since described that the noose and rope together are longer than 16 feet, and about one and one-half inches to two inches in diameter. (Id. at 86; Pl.’s Opp. to Mot. for Summ. J. 4 n. 4, Dkt. No. 50 (Pl.’s Opp.).)
As McKinney was walking away with the noose, a non-supervisory employee, Joe Roth, walked by and said, “I know what to do with that. I can use that around my house.” (McKinney Dep. 92–94.) McKinney explained that Roth lives in a neighborhood with African-American neighbors and that he interpreted Roth’s comment as referring to using the noose on his African-American neighbors. (Id. at 93–94.) McKinney also testified that Roth had used the N-word once before in McKinney’s presence, although it was not directed toward McKinney. (Id. at 94.)
As noted, Roth was not a supervisor. Gellner was a shift captain like McKinney, although on a different shift. Lewis, Allison, and Gravley were all supervisors and Lewis and Allison were in McKinney’s direct chain of command. As already noted, Lewis was the G4S Project Manager and the highest-ranking on-site supervisor for G4S. He had been the project manager since April 1, 2013, and was hired by-and reported to-Rich Allen. Allison, the security chief, reported to Lewis, and McKinney reported to Allison. Gravley was the head of the janitorial and fleet services. (Allen Decl. ¶ 6.)
As he left with the noose, McKinney went to Gravley’s office and conveyed to Gravley that he couldn’t understand why Gravley would participate or laugh about the noose, because McKinney believed they were friends. Gravley laughed and said he had nothing to do with the noose. (McKinney Dep. 96–97.)
The sheet incident occurred shortly thereafter, on the same day. Lewis was in the supply room as McKinney walked by. Lewis was on a ladder in the room, and asked McKinney to come in and hold a box. Gellner was walking toward the room at the same time and McKinney asked Gellner to go hold the box instead, so that McKinney could get ready to start his shift. Gellner did so, and McKinney walked away. But McKinney heard the two men laughing and went back to see what they were doing. When McKinney looked in the supply room, he saw Lewis standing on a ladder and holding a white sheet above Gellner’s head, so that it “form[ed] a triangle-shaped cylinder . . . like a KKK hood.” (Id. at 126–29, 365.)
McKinney said to them, “Really? You all don’t have to do that to get me gone. The only thing you have to do is tell me.” (Id. at 129.) Neither of them said anything, according to McKinney. (Id. at 131–32.) Gellner subsequently apologized to McKinney and told him he had nothing to do with the incidents, saying “You know that’s not me. I have got a [biracial] kid. You know me better than that.” In response, McKinney said, “Are we cool?, ” to which Gellner responded, “Yeah.” (Id. at 135–37.)
C. The “Bogus” Write-ups
McKinney also alleges that the day after the noose and sheet incidents, on May 24, he received from Allison what he calls “two bogus write-ups, ” which were on forms titled “Employee Counseling.” (McKinney Dep. 166 & Exs. 19–20, Dkt. No. 44-4, at 12–15 (forms).) Although both are dated May 23, and he signed and dated both of them May 23, McKinney testified that they were given to him on May 24, and that he was told to backdate them. (McKinney Dep. 194–97.) The reports counseled him for failing to complete certain paperwork, and he disputes that at least some of that paperwork was his responsibility. Instead, he says that others had agreed to prepare and file those reports for him. (Id. at 197–201.) In his deposition, McKinney claimed that he received the write-ups because Lewis was upset that he (Lewis) had been chastised by his superiors for working McKinney and others long hours. (Id. at 180–81, 184–86, 188.) McKinney never testified that he believed he received those forms as retaliation for his complaint, despite his counsel’s arguments to that effect. In any event, it is undisputed that those counseling forms did not result in any demotion or reduction in his pay.
D. McKinney Complains to Non-G4S Supervisors; G4S Management Learns of His Complaints and Investigates
Significantly, G4S had a policy that prohibited racial discrimination and harassment, and directed an employee to “immediately” report any such harassment to his “supervisor, a manager, or to the Corporate Human Resources Department.” (McKinney Dep. Ex. 16, Dkt. No. 44-4, at 9–10.) McKinney did not report the harassment to any of the persons listed in the policy. Instead, after receiving the two counseling forms on May 24, McKinney complained to Lieutenant Colonel Penland, the highest-ranking Army officer at RFAAP, about racial harassment. (McKinney Dep. 165–66.) McKinney specifically complained about both of the May 23 incidents, about the two “bogus” write-ups by Allison, and about the existence of a dope pipe with a Confederate flag sticker that was displayed in a case at RFAAP. (Id. 24–25, 165– 67.) McKinney also testified that he complained to Margie Akers in “late May or the beginning of June” 2013, about both Altizer’s slur and the noose and sheet incidents (id. at 54), but she serves in a non-supervisory role. (Anderson Decl. ¶ 13 & Ex. 1.) Further, the record reflects that the conversation with Akers took place on June 19, 2013, and was tape-recorded by McKinney. There is no mention of the racial slur in the transcript of that recording. (McKinney Dep. 323–25.) There is also evidence that McKinney complained to Walter Suthers, who worked for BAE, (Suthers Dep. 16–17), although the timing of that complaint is less clear, and it may have been after McKinney spoke with Allen, as discussed next.
The first time, then, that McKinney complained to any member of G4S management was when SVP Allen came to him and asked to meet with him on Friday, May 31. On that date, Allen was at RFAAP and learned from the receptionist, Shirley Turner, that McKinney was upset about an incident involving a noose and a “KKK sheet, ” and that Lewis was involved in the incident. (Allen Decl. ¶ 11.) Allen avers that he was “surprised and appalled” to learn about the allegation, and he requested a meeting with McKinney that afternoon. (Id.)
During the meeting, McKinney recounted both the noose and sheet incidents to Allen. Allen told McKinney that neither he nor the company tolerated that kind of conduct, he apologized to McKinney, and advised him that there would be an investigation and that those responsible would be held accountable. He instructed McKinney to contact him personally if he had any concerns, and gave him a business card with his personal cell phone number. (McKinney Dep. 221–22; Allen Decl. ¶ 13.)
After the meeting, Allen telephoned Rob Handel, G4S’s Manager of Employee Relations (who was based in Florida), and said he was going to recommend that Handel come immediately to RFAAP and look into various employee concerns. Specifically, Allen asked Handel to investigate morale problems that G4S was experiencing at RFAAP, and also wanted him to look into McKinney’s complaint of racial harassment. (Allen Decl. ¶ 14.) Two business days later, on Tuesday, June 4, Handel arrived in Radford and stayed through June 6. During that time, he met with McKinney at a Burger King, received McKinney’s complaint, and began an investigation into McKinney’s harassment allegations. He also met with over thirty people to discuss the morale issues. That investigation revealed that many employees, particularly in the security division, were not happy with Lewis. Handel requested, and received, approval to return to RFAAP to investigate McKinney’s claim more fully, and scheduled his return visit for the week of June 18. (Allen Decl. ¶ 16.)
Allen returned to RFAAP on June 11 and 12 and followed up with McKinney then. (Id. at ¶¶ 16–17.) As part of that follow-up, Allen assured McKinney that there would be no retaliation for his report of harassment, nor for McKinney’s having contacted an attorney. Allen told McKinney that he was free to contact him at any time on his cell phone if he had problems or concerns. He also advised McKinney that Handel would be returning the following week to complete the investigation. Additionally, before leaving RFAAP, Allen spoke with those involved in the harassment (Lewis, Allison, Gravley, and Gellner), told them that Handel would be investigating, and reminded them that they “were to treat McKinney, and everyone for that matter, with dignity and respect.” (Id. at ¶ 18.)
Handel returned to Radford on June 18 for his more in-depth investigation into McKinney’s allegations. He met with and interviewed the people McKinney identified as being involved in or witnessing either the noose or the sheet incident. Handel took extensive notes of his interviews during both of his sessions at RFAAP. His typed report and summary of his investigation from the second visit is three pages long and contains a summary of each interview. (Handel Dep. Ex. 36, Dkt. No. 44-3, at 4–6.) Pertinent here, the persons involved in the noose and sheet incident, including Lewis, told different versions of those events than McKinney had related, and flatly denied some of his allegations.
For example, as to the sheet incident, both Gellner and Lewis said there was a folded canvas that was found in the course of cleaning out a closet, but Gellner denied that anything inappropriate was done or said about it, and Lewis said Gellner made a comment, but regretted saying it and did not mean any offense. As to the noose incident, several of those interviewed-including Lewis-admitted that a noose had been found and that Lewis had asked McKinney to get rid of it. But the remainder of McKinney’s allegations, including that the others were laughing about the noose, were denied. Allison also told Handel that he knew Lewis had found the rope, but that Allison did not see the rope because he was on the phone. All four of those present also denied that anything racial was said. As summarized by Handel, “it goes to the word of one employee against the word of four other employees.” (Id., Dkt. No. 44-3, at 5.)
Based on the information available to him, Handel reported back to Allen that McKinney’s versions of the noose and sheet incidents were disputed by the other employees present in significant respects. He also relayed that several of the employees, including Allison, had reported to him that perhaps McKinney’s complaints were intended to cover up his own performance issues. (Id., Dkt. No. 44-3, at 6 (“From all that I have observed and what has been reported, I believe Mr. McKinney has some performance challenges in his position and he is reacting to his being held accountable.”).) In particular, Handel’s report seemed to give considerable weight to Allison’s comments and views. Handel explained that “Allison is known to take his job very seriously and I trust his credibility, ” both because Allison’s observations on the morale issues had been corroborated, and also because other employees consistently reported that Allison was “strict, not afraid to tell it like it is, ” that he went “by the book, ” and that he was “fair with everyone.” (Id.) Allison also had recommended McKinney for a promotion to shift captain in September 2012, which lent credibility to his current concerns over McKinney’s performance.
Nonetheless, Handel was concerned enough about the incidents (and the noose, in particular) to recommend that all security supervisors be required to undergo diversity training. By the time Handel’s report was completed, moreover, Lewis had already ...