United States District Court, W.D. Virginia, Big Stone Gap Division
Erlich, Davia Craumer, and Katherine L. Herrmann, The Erlich
Law Office, PLLC, Arlington, Virginia, for Plaintiff.
Spreague Hardy, Assistant Attorney General, and Sydney E.
Rab, Senior Assistant Attorney General, Richmond, Virginia,
OPINION AND ORDER
P. Jones United States District Judge.
plaintiff, a former state correctional officer, asserts
claims of race-based employment discrimination, harassment,
and retaliation under Title VII of the Civil Rights Act of
1964. The plaintiff has moved for partial summary judgment on
his hostile environment harassment and race-based
discrimination claims, and the defendant state agency has
moved for summary judgment on all claims. Because the
undisputed facts show that the defendant is entitled to
judgment as a matter of law, I will grant summary judgment in
favor of the defendant and deny the plaintiff's request
for partial summary judgment.
following facts are taken from the summary judgment record
and, except where otherwise noted, are
April 2012 until May 16, 2014, Plaintiff Thomas McCurdy was
employed as a correctional officer at Red Onion State Prison
(“Red Onion”), a maximum-security prison located
in Pound, Virginia, and operated by defendant Virginia
Department of Corrections (“VDOC”). McCurdy is
August 26, 2011, correctional officer Marie Knoskie, who is
African-American, found a swastika scratched into a control
board at Red Onion. She reported what she found to Human
Resources Director Renee Conley. Knoskie was assigned to a
new post until the swastika could be removed. Sergeant Tony
Adams attempted to determine who had carved the swastika, but
because so many officers had been assigned to the control
room, he could not establish a list of suspects. Adams
interviewed correctional officers who had worked the post,
but all of the officers denied etching the swastika.
Then-Warden Tracy Ray informed Knoskie that VDOC had
investigated the incident and could not identify the culprit.
Knoskie mentioned to Conley that similar incidents had
occurred twice before, but she provided no details.
January 9, 2012, Knoskie met with Conley and Major Travis
McCoy to complain of race discrimination after a position in
which she had expressed an interest was assigned to a white
officer. Later that day, Knoskie met with Warden Randall
Mathena, Conley, and Assistant Warden Kiser to voice her
complaint. She stated that she felt she was being denied the
training required to further her career. She claimed that
McCoy had accused her of calling him a bigot after she had
told him she felt she was experiencing discrimination. McCoy
stated that the white officer had already received the
necessary training for the post, and the post needed to be
April 1, 2013, Knoskie found the words “I Hate
Niggers” written in a logbook in the C2 Control Room at
Red Onion. Knoskie showed the logbook to McCurdy, and the two
of them gave the book to counselor Norman Lewis. McCurdy also
told his supervisor, Lieutenant Paul Payne, about the phrase
written in the logbook. McCurdy states that he frequently
asked Payne what steps were being taken to investigate the
incident. Knoskie told McCurdy that she had not heard
anything more about the logbook.
February 2014, Knoskie was assigned to the C2 Control Room
and refused to take the post because it was the location
where she had discovered the racial epithet in the logbook.
Conley did not learn of the logbook incident until Knoskie
refused to take her assigned post, approximately ten months
after Knoskie first discovered and complained about the
message in the logbook.
Warden Mathena learned of the phrase written in the logbook,
he asked Lieutenant John McQueen to investigate the incident.
McQueen did not know when the racial slur was written in the
logbook, and he was unable to identify the author of the slur
based on a layperson's comparison of handwriting samples.
He determined that a forensic examination of handwriting
samples would be prohibitively expensive given the large
number of officers who had access to the C2 Control Room. At
the time of the investigation, VDOC did not undertake a
formal analysis of the cost of a forensic handwriting
did not add surveillance cameras to the C2 Control Room,
institute any policy changes as a result of the logbook
incident, or take any other action in response to the slur
written in the logbook besides removing the book from the C2
Control Room. There was a camera installed in the control
room at the time the racial slur was written, but it was
positioned at an angle that did not capture the person who
wrote the slur. In May 2014, McCurdy asked Major Arvil
Gallihar about the logbook. Gallihar informed him that the
Red Onion administration had investigated the logbook
incident but was not able to determine who had written the
slur, and there was nothing more that could be done.
September 23, 2013, Lieutenant Steven Franklin witnessed
correctional officer Daniel Sexton use the word
“nigger” to describe a football player. Knoskie
was standing nearby, and Sexton immediately apologized to her
and offered to accompany her to Human Resources to file a
complaint. Knoskie accepted Sexton's apology and opted
not to make a complaint about the incident. Franklin verbally
counseled Sexton, and a written notice of counseling was
signed by Sexton and placed in his file. Franklin reported
the incident to Unit Manager Greg Swiney on the day that it
occurred. Swiney did not report the incident to Human
Resources. Knoskie eventually told Conley about the incident
on March 3, 2014. Conley then questioned Swiney, who
indicated that Franklin had correctly handled the matter by
verbally counseling Sexton.
nephew, correctional officer Martinez Miles, also worked at
Red Onion. While Miles was on short term disability leave,
Conley asked McCurdy about Miles. McCurdy told Conley that
Miles did not want to return to work because of racial slurs
and jokes that had been directed at Miles by fellow officers.
Conley told McCurdy that Miles needed to report these
incidents, but McCurdy responded that Miles was hesitant to
file a complaint because he feared retaliation. Conley called
Miles but did not reach him and was unable to leave a
message. Miles never lodged a complaint, although McCurdy
testified in his deposition that he and Miles had previously
spoken to Conley about the jokes before Miles began his
disability leave. Conley did not conduct any further
investigation. McCurdy did not follow up with her or reduce
his concerns to writing.
are numerous disputed allegations regarding McCurdy's
hostile environment harassment claim. McCurdy alleges that
several Red Onion employees made racist jokes and used racial
slurs in McCurdy's presence. He alleges that he received
a written threat from an inmate and that he informed
Lieutenant Joe Fannin about the incident. McCurdy asserts
that Lieutenant James Lambert used a racial slur in front of
Greg Swiney, Lambert's supervisor, and was not
disciplined. McCurdy alleges that Mathena used a racial
epithet to describe an inmate during a prison fight. All of
these allegations are denied by the alleged speakers and
involved parties. McCurdy concedes that he did not inform
anyone about several of the racial slurs and jokes he now
Procedure 145.3: Equal Employment Opportunity (“EEO
Policy”) details VDOC's procedure applicable to
complaints of harassment and discrimination. The EEO Policy
directs employees to report harassment or discrimination
through an established complaint protocol. The EEO policy
states that complaints should be made in writing, though in a
Rule 30(b)(6) deposition, Conley testified that complaints
can be made orally to her. Red Onion provided annual training
to employees regarding the EEO Policy. McCurdy did not submit
any written complaints of harassment or discrimination.
asserts that he verbally complained to counselor Emily
Sowards about racist slurs and jokes, but he admits he did
not identify specific officers or incidents. Sowards does not
recall McCurdy ever making such a complaint.
asserts that he complained to Conley about racist jokes on
three occasions. He alleges that he identified specific
officers in his first conversation with Conley, though Conley
does not recall the conversation. On a second occasion,
McCurdy alleges that he complained to Conley that Lambert had
referred to an inmate using a racial slur, but Conley does
not recall that complaint. McCurdy and Conley both recall the
alleged third conversation, when they spoke about Miles.
McCurdy did not give Conley specific examples of jokes
directed at Miles, nor did he identify the people who
allegedly told the jokes. McCurdy alleges that he also
complained to Major Arvil Gallihar about the prevalence of
racial jokes and slurs at Red Onion, but Gallihar does not
recall this conversation.
asserts that Officer Barry Mullins made a number of
race-based jokes and statements in McCurdy's presence,
some of which were specifically directed at McCurdy. McCurdy
also asserts that Lambert referred to an inmate as a
“nigger.” In addition, McCurdy states that Fannin
asked him about his wife's race. Lambert and Fannin deny
making these statements. McCurdy states that he told Fannin
that an inmate threatened him, and Fannin failed to take any
action in response to the threat. Fannin denies he ever
received notice that an inmate threatened McCurdy.
further asserts that Mathena once referred to an inmate as a
“spear chucker, ” which Mathena denies. McCurdy
also contends that Sergeant Mark Mullins once said
“What's up my niggas?” to McCurdy and Miles.
16, 2014, McCurdy arrived at Red Onion for his work shift and
submitted to a security search, as he was required to do. He
then went to the restroom, which was outside of the search
area. When he exited the restroom, he entered the prison
without being searched again. Correctional officer Reba
Murphy informed McQueen that McCurdy had entered the prison
without going through the security checkpoint. McQueen
reviewed camera footage that confirmed that McCurdy had
exited the restroom and proceeded into the prison without
going through the security checkpoint. McQueen reported this
information to Mathena.
summoned McCurdy to his office. Conley was not present for
this meeting, and there are no contemporaneous notes from the
meeting. McQueen and Gallihar were present. Mathena showed
McCurdy the camera footage and asked whether McCurdy had
anything in his pocket. McCurdy removed a cigarette lighter
from his pocket and placed it on the table. Possession of a
lighter inside the prison violated Operating Procedure 320.6:
Tobacco Products and Smoking (“Tobacco Policy”).
Violations of the Tobacco Policy were to be addressed in
accordance with Operating Procedure 135.1: Standards of
Conduct (“Standards of Conduct Policy”). Mathena
had previously told employees that he would not tolerate them
bringing contraband into Red Onion.
remainder of Mathena's interaction with McCurdy is in
dispute. Mathena asserts that he asked McCurdy whether he had
intended to give the lighter to an inmate and whether other
correctional officers were bringing contraband into the
prison. Instead of answering the questions, McCurdy asked if
he could resign. Mathena declared that he usually gives
officers the option to resign before instituting an
investigation if he believes they are likely to be
on the other hand, asserts that he brought the lighter into
the prison accidentally and that Mathena did not ask him any
questions. According to McCurdy, Mathena told him he could
either resign or be fired, and if he chose not to resign,
Mathena would “drag [McCurdy's] name through the
mud.” Br. in Supp. of Def.'s Mot. for Summ. J. Ex.
29 at 53, ECF No. 30-29. Mathena stated in a declaration that