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Crawford v. Newport News Industrial Corp.

United States District Court, E.D. Virginia, Newport News Division

February 26, 2018

JAMESINA CRAWFORD, et al, Plaintiffs,
v.
NEWPORT NEWS INDUSTRIAL CORPORATION, Defendant.

          REPORT AND RECOMMENDATION

          LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE

         A Second Amended Complaint was filed in this Court on May 4, 2015 by thirty-eight Plaintiffs against Defendant Newport News Industrial Corporation ("NNI"). ECF No. 15. The Second Amended Complaint asserts various claims of employment discrimination, retaliation, and hostile work environment by welders, fitters, and laborers employed at or by NNI. NNI filed separate Motions for Summary Judgment against thirty-seven Plaintiffs.[1] Before the Court in this Report and Recommendation is NNI's Motion for Summary Judgment and accompanying memorandum against Plaintiff Donyelle Pierce ("Pierce"), ECF Nos. 171, 172.[2] Pierce asserted claims under 42 U.S.C. § 1981 for disparate treatment based on race, constructive discharge based on race, [3] and retaliation. ECF No. 15. NNI's Motion was based on several grounds, including that Pierce's claims are not timely, and thus are barred by the statute of limitations, and that the undisputed material facts do not provide support for any of Pierce's claims. In response, Pierce submitted a "Response to Defendant's Rule 56(B) Statement."[4] ECF No. 199, attach. 15. In addition, pertinent to Pierce's claims, all Plaintiffs submitted joint global memoranda in opposition on the subjects of disparate treatment, ECF No. 200, attach. 1, retaliation and termination, id, attach. 2, and hostile work environment, ECF No. 201. NNI submitted a reply memorandum. ECF No. 263. This matter was then referred to the undersigned United States Magistrate Judge ("the undersigned") from the United States District Judge. 28 U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); E.D. Va. Local Civ. R. 72. The matter is now ripe for recommended disposition and the undersigned disposes of the Motion on the papers without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J).

         I. STANDARD OF REVIEW

         Summary judgment under Federal Rule of Civil Procedure 56 is appropriate when the Court, viewing the record as a whole and drawing reasonable inferences in the light most favorable to the nonmoving party, finds there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Scott v. Harris, 550 U.S. 372, 378 (2007). A court should grant summary judgment if the nonmoving party, after adequate time for discovery, has failed to establish the existence of an essential element of that party's case, on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat a motion for summary judgment, the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial. See Id. at 324. Conclusory statements, without specific evidentiary support, are insufficient. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998). Rather, "there must be evidence on which the jury could reasonably find for the [party]." Anderson, 477 U.S. at 252. Ultimately, cases are not to be resolved on summary judgment where "the depositions [and affidavits] of principal witnesses present conflicting versions of the facts which require credibility determinations." Nilson v. Historic Inns Group, Ltd., 903 F.Supp. 905, 909 (D. Md. 1995) (citing Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979); Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986)).

         II. LEGAL STANDARD

         A. Count I: § 1981 Hostile Work Environment

         Title VII prohibits employers from discriminating "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). "Because an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action." Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (internal quotation marks and citation omitted). Plaintiffs in this case have brought suit for a hostile work environment based upon their race under 42 U.S.C. § 1981, which provides that "[a]ll persons within the jurisdiction of the United States shall have the same right...to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981(a).

         The Fourth Circuit has recognized that employees can bring suit against their employers for a racially hostile work environment under § 1981 and that the same test used for Title VII cases also applies. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001). A "discriminatorily hostile or abusive work environment" occurs "[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. Forklifi Sys., Inc., 510 U.S. 17, 21 (1993). For Plaintiffs to survive NNFs Motion for Summary Judgment, they must set forth evidence upon which a reasonable jury could rely to find NNI created a hostile work environment, through its agents, by showing the following elements: "(1) unwelcome conduct; (2) that is based on the plaintiffs . .. race; (3) which is sufficiently severe or pervasive to alter the plaintiffs conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer." Okoli v. City of Bait., 648 F.3d 216, 220 (4th Cir. 2011); see also, Boyer-Liberlo v. Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015).

         Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment. See Faragher v. Boca Raton, 524 U.S. 775, 786-87, and n.l (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986).

         B. Count II: § 1981 Disparate Treatment

         "The framework of proof for disparate treatment claims-that is, whether the employer intentionally discriminated against the employee-is the same for actions brought under Title VII, or § 1981, or both statutes." Mallory v. Booth Refrigeration Supply Co., Inc., 882 F.2d 908, 910 (4th Cir. 1989); see also, Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004). Plaintiffs must either demonstrate direct evidence of race discrimination or follow the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Derrickson v. Circuit City Stores, Inc., 84 F.Supp.2d 679, 693 (D. Md. 2000). Generally, absent direct evidence of discrimination, to establish a claim for disparate treatment, a plaintiff must show (1) he is a member of a protected class; (2) who suffered an adverse employment action; (3) while he performed his job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action; and (4) similarly situated employees outside of the protected class received more favorable treatment. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (citing Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 252 (1981); McDonnell Douglas, 411 U.S. at 807)).

         Specifically, here, Pierce alleges disparate treatment in pay.[5] To establish a prima facie case for a pay disparity claim, Pierce must show the following: (1) that he is a member of a protected class; (2) he was paid less than an employee outside the class; and (3) the higher paid employee was performing a substantially similar job. Davis v. S.C. Dep't of Health & Envtl. Control, No. 3:13-CV-02612-JMC, 2015 WL 5616237, at * 3 (D.S.C. Sept. 24, 2015); see also, Brinkley-Obu v. Hughes Training. Inc., 36 F.3d 336, 343 (4th Cir. 1994).

         C. Retaliation

         To prevail on a claim of retaliation under § 1981, Pierce must prove a three-part prima facie case: "(1) the plaintiff 'engaged in a protected activity'; (2) 'the employer took a materially adverse action against' the plaintiff; and (3) a causal link 'between the protected activity and the adverse action."' Emami v. Bolden, 241 F.Supp.3d 673, 680-81 (E.D. Va. 2017) (quoting Mascone v. Am. Physical Soc'y, Inc., 404 Fed.Appx. 762, 765 (4th Cir. 2010)). See also Hinton v. Virginia Union Univ., 185 F.Supp.3d 807, 824 (E.D. Va. 2016), motion to certify appeal denied, No. 3:15CV569, 2016 WL 3922053 (E.D. Va. July 20, 2016) (observing that "[a]s with discrimination claims, retaliation claims may proceed under the direct method or under the prima facie method") (citing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015); Lee v. Wade, No. 3:15CV37, 2015 WL 5147067, at *4 (E.D. Va. Aug. 31, 2015)).

         Importantly, unlike an "adverse employment action" in the discrimination context, which requires an ultimate employment action affecting the terms and conditions of employment, a "materially adverse action" such as required for a retaliation claim requires only such action as might deter a reasonable employee from making or supporting a charge of discrimination. See, e.g., Mascone, 404 Fed.Appx. at 765 (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)). In addition, since the McDonnell Douglas burden shifting scheme applies to retaliation claims as well, "[o]nce Plaintiffs establish this prima facie case, the Defendant may rebut by offering a legitimate nonretaliatory reason for the adverse action." Derrickson, 84 F.Supp.2d at 694 (citing Williams v. Cerebonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)). "[A]fter Defendant offers a nonretaliatory reason, the burden of proof rests with Plaintiff[] to establish by a preponderance of the evidence that the proffered reason is pretextual and the real reason for the action was retaliatory." Id. (citing Williams, 871 F.2d at 457).

         D. § 1981 Statute of Limitations

         Claims arising under § 1981 are governed by the four year federal statute of limitations. Jones v. R.R. Donnelly & Sons, Co., 541 U.S. 369, 382 (2004). Claims for hostile work environment, disparate treatment and retaliation brought under § 1981 are all subject to this limitations period. Id; White v. BFI Waste Servs., LLC, 375 F.3d 288 (4th Cir. 2009). Claims of disparate treatment and retaliation, because they consist of discrete acts of discrimination or retaliation, must have occurred within four years of the date of suit or they are untimely. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). A hostile work environment claim, on the other hand, "will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." In other words, a plaintiff may rely on and recover for "acts occurring beyond [the four year statute of limitations] period, as long as at least a portion of the hostile work environment occurred within the relevant limitations period." While, 375 F.3d at 293. Those acts outside the relevant limitations are considered part of a "continuing violation" and thus may be considered. Morgan, 536 U.S. at 122.

         III. DISCUSSION

         A. Undisputed Material Facts [6]

         NNI provides fabrication, construction, equipment repair, and technical services to energy and petrochemical companies, and engages in commercial nuclear work. ECF No. 172, SOF No. 1. NNI employs hourly workers such as welders, fitters, and laborers. Id. SOF No. 2. They report to a foreman, who, in turn, reports to a superintendent. Id. Superintendents report to the Operations Manager, who has overall responsibility for operations at NNI. Id. NNI hired Pierce on April 13, 2010 as a temporary, hourly fitter, earning $18 per hour, and he was satisfied with that pay rate. Id. SOF No. 3. Pierce understood that one of NNI's policies provided that temporary employees would be hired for eleven months before being laid off for a period of time, and then could be rehired back. Id., attach. 3 at 5.

         During the time he was employed at NNI, Pierce was supervised by Wayne Jackson (Caucasian), Doug McKercher (Caucasian), Keven Angle (Caucasian), and Calvin (last name unknown) (African American). Id. SOF No. 4. Between June 7, 2010 and November 29, 2010 Pierce's supervisors gave him four very favorable reviews, and four pay increases following his 30-60-90-110 day reviews. Id., SOF No. 5 and attach. 5. Pierce's pay rate was increased by $.50 per hour in June 2010 raising his pay rate to $18.50 per hour. Id. SOF No. 5. His pay rate was increased by $1 per hour in July 2010 raising his pay rate to $19.50 per hour. Id. His pay rate was increased by $.50 per hour in September 2010 raising his pay rate to $20 per hour. Id. His pay rate was increased by $1.25 per hour in November 2010 raising his pay rate to $21.25 per hour. Id.

         Pierce was assigned to the "Pin Jig" project in the Fall of 2010 for one to two months. Id., SOF 61 and attach. 3 at 52. Daniel Cummings was hired into a permanent fitter position in 2010. Id., SOF No. 68; ECF No. 199, attach. 15, SOF No. 68. Jackson and Jaffeux provided training for Cummings in welding, which Pierce did not need. ECF No. 172, SOF Nos. 64, 66.

         Pierce testified in his deposition as to the events which occurred during his tenure at NNI that he considered unwelcome conduct based on his race and which, he contends, were sufficiently severe or pervasive to alter his conditions of employment and to create an abusive work environment. Apart from his pay claim, these incidents included the following: Jackson permitted Confederate flags to be displayed inside the shop; a white employee-Daniel Cummings-was treated more favorably by Jackson vis-a-vis pay and placement in a permanent position; Jackson too closely monitored his work; Jackson said once that he was not a racist because someone in his family is married to a black person; a white employee addressed him in the parking lot as "50 Cent"; he saw the confederate flag displayed on tee shirts and on a bandana of a white worker; a white worker-Tom Castle-told racist jokes in Pierce's presence; when he complained about Castle to Jaffeux, Jaffeux told him to "stop crying like a little bitch"; Jaffeux called him "a crybaby"; Pierce was assigned to work the "Pin Jig" project for about two months in the Fall of 2010, and felt this was ...


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