United States District Court, E.D. Virginia, Newport News Division
REPORT AND RECOMMENDATION
LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE
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. 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,
Pierce asserted claims under 42 U.S.C. § 1981 for
disparate treatment based on race, constructive discharge
based on race,  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." 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).
STANDARD OF REVIEW
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
Count I: § 1981 Hostile Work Environment
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).
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).
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).
Count II: § 1981 Disparate Treatment
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)).
here, Pierce alleges disparate treatment in
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).
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)).
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).
§ 1981 Statute of Limitations
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.
Undisputed Material Facts 
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.
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.
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.
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 ...