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McCurdy v. Virginia Department of Corrections

United States District Court, W.D. Virginia, Big Stone Gap Division

September 5, 2017

THOMAS McCURDY, Plaintiff,

          Joshua Erlich, Davia Craumer, and Katherine L. Herrmann, The Erlich Law Office, PLLC, Arlington, Virginia, for Plaintiff.

          Ryan Spreague Hardy, Assistant Attorney General, and Sydney E. Rab, Senior Assistant Attorney General, Richmond, Virginia, for Defendant.


          James P. Jones United States District Judge.

         The 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.


         The following facts are taken from the summary judgment record and, except where otherwise noted, are undisputed.[1]

         From 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 African-American.

         On August 26, 2011, correctional officer Marie Knoskie, who is African-American, found a swastika scratched into a control board at Red Onion.[2] 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.

         On 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 filled quickly.

         On 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.

         In 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.

         After 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 examination.

         VDOC 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.

         On 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.

         McCurdy's 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.

         There 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 alleges.

         Operating 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.

         McCurdy 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.

         McCurdy 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.

         McCurdy 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.

         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.

         On May 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.

         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.

         The 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 terminated.

         McCurdy, 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 if ...

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