Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Crawford v. Newport News Industrial Corp.

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

June 11, 2018

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

          ORDER

          AGENDA L. WRIGHT ALLEN UNITED STATES DISTRICT JUDGE.

         A Second Amended Complaint was filed in this Court on May 4, 2015, in which a total of thirty-eight Plaintiffs filed suit against Defendant Newport News Industrial Corporation ("NNI"). 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. ECF No. 15.

         On January 5, 2016, the parties stipulated to the dismissal of one Plaintiff. ECF No. 56. Defendant NNI subsequently filed separate Motions for Summary Judgment against the remaining thirty-seven Plaintiffs. This Order addresses NNFs Motions for Summary Judgment against thirty-two plaintiffs: Anthony Alvarez (ECF No. 109); Ian Blow (ECF No. Ill); Ernest Chesson (ECF No. 115); Marchello Fields (ECF No. 117); Willie Kershaw (ECF No. 119); Derek Cross (ECF No. 121); Ronald Valentine (ECF No. 123); Jonathan Dantes (ECF No. 125); Franz Edouard (ECF No. 129); Reggie Holliman (ECF No. 131); Lamar Holloman (ECF No. 133); Alfred Joyner, Jr. (ECF No. 135); Willie Nichols (ECF No. 139); Robert Robinson (ECF No. 141); Roderick Waddell, Sr. (ECF No. 143); Brandon Walker (ECF No. 145); Richard Bostic (ECF No. 147); Herbert Broughton (ECF No. 149); Steven Gordon (ECF No. 151); Chris Payton (ECF No. 153); Dennis Smith (ECF No. 155); David Swain (ECF No. 159); Gilbert Wiltz (ECF No. 161); Mark Barnett (ECF No. 163); Jamesina Crawford (ECF No. 165); John Harris (ECF No. 167); Tourke Hooker (ECF No. 169); Donyelle Pierce (ECF No. 171); Theo Pierce (ECF No. 173); Lamarr Joyner (ECF No. 175); Ronald Stewart (ECF No. 177); and Roderick Waddell, Jr. (ECF No. 181) (collectively for purposes of this Order, referred to as "Plaintiffs").

         These motions were referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation (the "Report"). The Magistrate Judge issued the Report addressing these Plaintiffs on February 26, 2018 and March 2, 2018. ECF Nos. 294, 296. By copy of the Report, each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge. Id. Parties sought and were granted extensions before filing multiple objections to the Report on April 13, 2018. ECF Nos. 317, 318.

         The Court has reviewed the full record and has carefully examined the objections filed. The Court has undertaken specific review of the recommendations, and makes de novo findings with respect to the portions of the recommendations to which these Plaintiffs object. Fed.R.Civ.P. 72(b)(3).

         In performing these responsibilities this Court may "accept, reject or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; see also Prototype Prods, v. Reset, Inc., 844 F.Supp.2d 691, 696 (E.D. Va. 2012) (reviewing courts have "the discretion to consider new evidence").

         The Court proceeds with evaluating the Reports, and considering the parties' objections to the Reports' specific recommendations. The following evaluations and analyses are organized by identifying and examining each kind of claims that has been advanced by Plaintiffs. The analysis begins with hostile work environment claims.[1]

         I. HOSTILE WORK ENVIRONMENT CLAIMS

         1. LEGAL STANDARDS

         A plaintiff claiming discrimination based on a hostile work environment in violation of 42 U.S.C. § 1981 must demonstrate four elements: (1) that the plaintiff was subjected to unwelcome harassment; (2) that the harassment was the result of the plaintiffs race or national origin; (3) that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) that the harassment is imputable to the employer. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 308, 314 (4th Cir. 2006).[2]

         The third element listed above ("sufficiently severe harassment") contains both subjective and objective components. "[T]he plaintiff must show that [he or she] subjectively perceive[d] the environment to be abusive." Id. at 315 (internal quotation marks and citations omitted).

         "Next, the plaintiff must demonstrate that the conduct was such that a reasonable person in the plaintiffs position would have found the environment objectively hostile or abusive." Id. To assist in the inquiry related to the objective component, courts look to the totality of the circumstances, and consider the following factors: the frequency of the allegedly discriminatory conduct; the severity; whether the conduct was physically threatening or humiliating, or merely consisted of offensive utterances; and whether the conduct reasonably interfered with an employee's workplace performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The bar for establishing an objectively hostile work environment is high; to be actionable, "the harassing conduct must be [so] extreme [as] to amount to a change in the terms and conditions of employment." Sunbelt Rentals, 521 F.3d at 315 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

         By contrast, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. at 788.[3] Furthermore, a plaintiff must show that but for the plaintiffs protected characteristic, he or she would have not been a victim of the alleged discrimination. Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).

         The Fourth Circuit has recognized that "frequent and highly repugnant insults" directed specifically towards African Americans far exceed the type of "mere offensive utterances" that might otherwise fail to establish the third element. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001). "Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet... by a supervisor in the presence of his subordinates." Id. (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)).

         The status of the harasser is relevant to an assessment of the fourth element (determining whether "the harassment is imputable to the employer"). "An employer is liable for harassment by the victim's coworkers only 'if it knew or should have known about the harassment and failed to take effective action to stop it.'" Sunbelt Rentals, 521 F.3d at 319 (quoting Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006)). "Knowledge of harassment can be imputed to an employer if a reasonable person, intent on complying with Title VII, would have known about the harassment." Id. (internal citation omitted). "Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment." Id. (internal citation and quotation omitted). The Fourth Circuit has held that verbal and written complaints, coupled with an employer's failures to take reasonable corrective action, are sufficient to establish the fourth element. Ttf. at319-320.[4]

         There must be "some nexus between the harassment and the tangible employment action for the latter to be actionable." Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 328 (4th Cir. 2012). If the harasser was the victim's supervisor, the employer is strictly liable if the harassing behavior culminates in a tangible employment action, such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Burlington Indus, v. Ellerth, 524 U.S. 742, 761 (1998).

         Where a supervisor's harassment does not involve a tangible employment action against the plaintiff, an employer may nevertheless be "subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher, 524 U.S. at 807. In situations where no tangible employment action is taken, "a defending employer may raise an affirmative defense to liability or damages." Id.; see also Ellerth, 524 U.S. at 765.[5]

         This defense encompasses two elements, each of which must be proven by a preponderance of the evidence. First, the employer must demonstrate that it "exercised reasonable care to prevent and correct promptly any . . . harassing behavior." Brown v. Perry, 184 F.3d 388, 390 (4th Cir. 1999) (internal citations omitted). Second, the employer must establish "that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise." Id The Fourth Circuit has held that "dissemination of 'an effective anti-harassment policy provides compelling proof that an employer has exercised reasonable care to prevent and correct . . . harassment." Matvia v. Bald Head Island Management, Inc., 259 F.3d 261, 268 (4th Cir. 2001) (internal citations omitted). "[W]here ... there is no evidence that an employer adopted or administered an anti-harassment policy in bad faith or that the policy was otherwise defective or dysfunctional, the existence of such a policy militates strongly in favor of the conclusion that the employer 'exercised reasonable care to prevent' and promptly correct harassment." Brown, 184 F.3d at 396 (internal citations omitted). However, the mere existence of an anti-harassment policy does not by itself permit an employer to escape liability, because "the policy must be effective in order to have meaningful value." Sunbelt Rentals, 521 F.3d at 320 (internal citations omitted). Where harassment continues "unabated" even after an employer has been made aware of it, "the existence of a policy might still leave a jury unconvinced that [the employer] worked in a serious fashion to combat [] rampant harassment" Id.

         Although a court must focus primarily on a plaintiffs "personal experience, " Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190 (4th Cir. 2004), comments made to others are also "relevant to determining whether [an individual plaintiff] was subjected to" severe or pervasive harassment. Jennings v. Univ. of N.C, 482 F.3d 686, 694 (4th Cir. 2007) (en banc). Courts recognize that when evaluating whether a workplace environment is hostile, "whatever the contours of one's environment, they surely may exceed the individual dynamic between complainant and his [supervisors or co-workers]." Spriggs, 242 F.3d at 184.

         2. ANALYSIS

         A. Parties Have Not Objected to the Report's Findings Regarding Fourteen Plaintiffs

         The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI as to hostile work environment claims from plaintiffs Ian Blow; Ronald Valentine; Frantz Edouard; Reggie Holliman; Lamar Holloman; Alfred Joyner, Jr.; Willie Nichols; Roderick Waddell, Sr.; Brandon Walker; Richard Bostic; Dennis Smith; David Swain; Theo Pierce; and Ronald Stewart. No. objections have been presented regarding these findings and conclusions. See ECF No. 316 at 3, 34-56; ECF No. 317 at 2. Accordingly, the Court reviewed these findings for clear error. Finding none, the Court ADOPTS AND APPROVES the findings contained in the Report, ECF No. 296, 13-14, 16-22, 24, 27-28, 29-42, as to these Plaintiffs, and DENIES NNI's Motions for Summary Judgment as to these Plaintiffs' hostile work environment claims. ECF Nos. 111, 123, 129, 131, 133, 135, 139, 143, 145, 147, 155, 159, 173, 177.

         B. Other Plaintiffs: Anthony Alvarez

         Mr. Alvarez's claims of a hostile work environment arise from allegations about (1) Supervisor Wayne Jackson's differing treatment of white and minority workers; (2) Mr. Alvarez's observation of racist graffiti concerning African Americans and Confederate flags in the work environment; and (3) another employee's report to Mr. Alvarez regarding the observation of a possible noose displayed in the building. ECF No. 110 ¶¶ 12, 28-29. The Report concluded that material facts are in dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Alvarez's claims regarding Supervisor Jackson's allegedly preferential treatment of white workers fail to establish that Supervisor Jackson's actions were tantamount to unwelcome harassment based on Mr. Alvarez's national origin or race, and that they were sufficiently severe to alter the conditions of employment. With respect to Mr. Alvarez's claims concerning supervisor Jackson's assignment of menial tasks, a Caucasian employee testified that he performed the same tasks. ECF No. 110 ¶ 17. With respect to Mr. Alvarez's claims concerning the supervision of employees' breaks, this Court concludes that no reasonable jury could find that such actions were severe or pervasive enough to alter the conditions of employment. See Sunbelt Rentals, 521 F.3d at 316.

         The Court next considers Mr. Alvarez's assertions of racist graffiti directed against African Americans and Confederate flags, and another's employee's observation of a noose. Mr. Alvarez has failed to establish a viable harassment claim because these allegations are unrelated to Mr. Alvarez's race (half Hispanic, half Caucasian). Mr. Alvarez cannot satisfy the second element of a hostile work environment claim. ECF No. 110 ¶ 7; see Childress v. City of Richmond, Va, 134 F.3d 1205, 1207 (4th Cir. 1998). There is no dispute of genuine material fact remaining as to Mr. Alvarez's hostile work environment claim. Accordingly, the Court SUSTAINS NNI's objections as to this claim, and GRANTS summary judgment to NNI. ECF No. 109.

         C. Ernest Chesson

         Mr. Chesson claims that his supervisors subjected him to unwelcome harassment on the basis of his race by speaking down to him and his African American co-workers and ridiculing him. Mr. Chesson was also told he would be put on a list for forklift certification, but no list existed. Two white employees were nevertheless given the opportunity to obtain forklift certification. ECF No. 296 at 14; see also ECF No. 202-1, Ex. 6.

         The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         It is unclear whether denial of an opportunity for forklift certification amounts to a tangible employment action with a nexus to the alleged harassment. See Ellerth, 524 U.S. at 761. In Vance, 570 U.S. at 437 n.9, the Supreme Court noted that a supervisor's ability to assign an employee significantly different work responsibilities "may have constituted a tangible employment action." If the action has "economic consequences, such as foreclosing [an employee's] eligibility for promotion, then it might constitute a tangible employment action." Id. Accordingly, the Court OVERRULES NNI's objections as to this claim, and DENIES summary judgmen tto NNI. ECF No. 115.

         D. Marchello Fields

         Mr. Fields claims race-based harassment by his supervisors. ECF No. 296 at 15; see also ECF No. 202-1, Ex. 12. The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Fields has failed to establish either a tangible employment action against him by his supervisors, or that he ever lodged any sort of complaint regarding such harassment. Accordingly, even if Mr. Fields were to satisfy the first and second elements of a hostile work environment claim, NNI has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Fields possessed NNFs anti-harassment policy, see ECF No. 118 ¶¶ 23-32, and (2) Mr. Fields failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. Accordingly, the Court SUSTAINS NNFs objections as to Mr. Fields' hostile work environment claim, and GRANTS summary judgment to NNI. ECF No. 117.

         E. Willie Kershaw

         Mr. Kershaw claims race-based harassment by his supervisors and co-workers. ECF No. 296 at 15; see also ECF No. 120-3 at 65-70. The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Kershaw has failed to establish a tangible employment action against him by his supervisors, or that he ever lodged any sort of complaint regarding harassment (whether by his supervisors or co-workers). Accordingly, even if Mr. Kershaw were to meet the first and second requirements of a hostile work environment claim, Mr. Kershaw has failed to establish that his co-workers' harassment would be imputable to NNI because of his failure to lodge a complaint about it. See Sunbelt Rentals, 521 F.3d at 319.

         Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Kershaw was in receipt of NNFs anti-harassment policy, see ECF No. 120 ¶¶ 21-29, and (2) Mr. Kershaw failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. Accordingly, the Court SUSTAINS NNI's objections as to Mr. Kershaw's hostile work environment claim, and GRANTS summary judgment to NNI. ECF No. 119.

         F. Derrick Cross

         Mr. Cross claims race-based harassment by his supervisors. ECF No. 296 at 16; see also ECF No. 202-1, Ex. 9. The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Cross has failed to establish either a tangible employment action against him by his supervisors, or that he lodged any sort of complaint regarding such harassment. Accordingly, even if Mr. Cross were to establish the first and second elements of a hostile work environment claim, NNI has demonstrated that the Faragher-Ellerth defense would prevail because it meets the two requirements of the defense. First, Mr. Cross was in receipt of NNI's anti-harassment policy. See ECF No. 122 ¶¶ 22-28. Second, Mr. Cross failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary judgment to NNI. ECF No. 121.

         G. Jonathan Dantes

         Mr. Dantes claims that his supervisor treated his white co-workers preferentially regarding breaks, and that he was terminated for taking a nap break and white employees who took nap breaks were not terminated. ECF No. 296 at 17; see also ECF No. 202-1, Ex. 10. The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Whether the supervisor's tangible employment action against Mr. Dantes has a sufficient nexus to the alleged harassment is unclear. Dulaney, 673 F.3d at 328 (requiring "some nexus between the harassment and the tangible employment action for the latter to be actionable"); see also Causey, 162 F.3d at 801 (requiring that a plaintiff establish that but for the plaintiffs race or national origin, he or she would not have been subject to the harassment). Accordingly, the Court OVERRULES NNI's objections as to this claim, and the Court adopts the Report's recommendation to DENY summary judgment to NNI. ECF No. 125.

         H. Herbert Broughton

         Mr. Broughton claims race-based harassment by his supervisors and co-workers. ECF No. 296 at 22; see also ECF No. 202-1, Ex. 5. The Report concluded that material facts are in dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Broughton has failed to establish either a tangible employment action against him by his supervisors or that he lodged any sort of complaint regarding such harassment, whether by his supervisors or by co-workers. Accordingly, even if Mr. Broughton were to establish the first and second elements of a hostile work environment claim, Mr. Broughton has failed to establish that his co-workers' harassment would be imputable to NNI because of his failure to lodge a complaint about it. See Sunbelt Rentals, 521 F.3d at 319. Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Broughton was in receipt of NNI's anti-harassment policy, see ECF No. 150 ¶¶ 15-19, and (2) Mr. Broughton failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. The Court SUSTAINS NNI's objections as to this claim, and GRANTS summary judgment to NNI. ECF No. 149.

         I. Steven Gordon

         Mr. Gordon alleges harassing behavior by his supervisors, and also with a supervisor and a co-worker. ECF No. 296 at 22-23; see also ECF No. 202-1, Ex. 13. The Report concluded that material facts are in dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         The record regarding the more general allegations of the supervisors' behavior fails to establish conduct sufficiently severe and pervasive enough to alter the conditions of Mr. Gordon's employment. See Sunbelt Rentals, 521 F.3d at 315. However, with respect to his complaint regarding his co-worker-who allegedly shoved Mr. Gordon, and who was also the subject of a separate complaint for racially-motivated harassment-the Court finds that there is a genuine dispute of material fact regarding two issues: whether his co-worker's actions were the result of Mr. Gordon's race, and whether the harassment was imputable to NNI, given that Mr. Gordon reported his co-workers' behavior. If the physical contact arose from his co-worker's animus towards African Americans, and if NNI failed to take any action after Mr. Gordon reported it, a hostile work environment claim here is valid. Id. at 319. Accordingly, the Court GRANTS summary judgment to NNI as to Mr. Gordon's hostile work environment claim with respect to his supervisors, and DENIES summary judgment to NNI as to Mr. Gordon's hostile work environment claim regarding his supervisor and his co-worker. ECF No. 151.

         J. Chris Pavton

         Mr. Payton claims that his supervisors subjected him to unwelcome harassment on the basis of his race by verbally harassing him. ECF No. 296 at 23-24; see also ECF No. 202-1, Ex. 23. Mr. Payton also claims his supervisor promised him an opportunity to obtain welding training, but never provided this opportunity and instead assisted a white co-worker, who was less experienced, in obtaining welding training. The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         It is unclear whether the denial of an opportunity for welding training amounts to a tangible employment action against Mr. Payton by his supervisors, with a nexus to the alleged harassment. Vance, 570 U.S. at 437 n.9 (noting that if the action has "economic consequences, such as foreclosing [an employee's] eligibility for promotion, then it might constitute a tangible employment action"); see also Ellerth, 524 U.S. at 761. Accordingly, the Court OVERRULES NNI's objections as to this claim, and adopts the Report's recommendation to DENY summary judgment to NNI. ECF No. 153.

         K. Gilbert Wiltz

         Mr. Wiltz claims race-based harassment by his supervisors. ECF No. 296 at 24-25; see also ECF No. 202-1, Ex. 37. The Report recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Wiltz has failed to establish either a tangible employment action against him by his supervisors, or that he lodged a complaint regarding such harassment. Accordingly, even if Mr. Wiltz were to meet the first and second requirements of a hostile work environment claim, NNI has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Wiltz possessed NNI's anti-harassment policy, see ECF No. 162 ¶¶ 9-11, and (2) Mr. Wiltz failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary judgment to NNI. ECF No. 161.

         L. Mark Barnett

         Mr. Barnett claims race-based harassment by his supervisors. ECF No. 296 at 25; see also ECF No. 202-1, Ex. 2. The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Although no tangible employment action occurred, Mr. Barnett appears to have objected to at least one of his supervisor's comments that derogatorily stereotyped African Americans. At this stage, the Court finds that a genuine dispute of material fact exists as to whether Mr. Barnett's objection to his supervisor's comment amounts to a complaint to a supervisor sufficient to render the alleged harassment imputable to NNI. See Sunbelt Rentals, 521 F.3d at 319 ("A reasonable jury could determine that [the employer] had notice of the . . . harassment" because the plaintiff "verbally complained" to his supervisor "after most of the harassing incidents."). Accordingly, the Court OVERRULES NNI's objections to the Report's recommendation about this claim, and DENIES summary judgment to NNI. ECF No. 163.

         M. Jamesina Crawford

         Ms. Crawford claims harassing behavior by her supervisors. ECF No. 296 at 26; see also ECF No. 202-1, Ex. 8; ECF No. 202-2, Ex. 40. The Report concluded that material facts are in dispute and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Although no tangible employment action occurred, Ms. Crawford appears to have objected to at least one of her supervisor's comments that mocked African American workers by mimicking racial stereotypes. The Court finds that a genuine dispute of material fact exists as to whether Ms. Crawford's objection to her supervisor's comment amounted to a complaint to a supervisor sufficient to render the alleged harassment imputable to NNI. See Sunbelt Rentals, 521 F.3d at 319 ("A reasonable jury could determine that [the employer] had notice of the . . . harassment" because the plaintiff "verbally complained" to his supervisor "after most of the harassing incidents."). Accordingly, the Court OVERRULES NNI's objections to the Report's recommendation about this claim, and DENIES summary judgment to NNI. ECF No. 165.

         N. John Harris

         Mr. Harris claims race-based harassment by his supervisors and co-workers. ECF No. 296 at 26-27; see also ECF No. 202-1, Ex. 14. The Report concluded that material facts are in dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Harris has failed to establish either a tangible employment action against him by his supervisors, or that he ever lodged any sort of complaint regarding such harassment. Accordingly, even if Mr. Harris were to meet the first and second requirements of a hostile work environment claim, Mr. Harris has failed to establish that his co-workers' harassment would be imputable to NNI. See Sunbelt Rentals, 521 F.3d at 319.

         Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Harris was in receipt of NNI's anti-harassment policy, see ECF No. 168 ¶¶ 17-19, and (2) Mr. Harris failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary judgment to NNI. ECF No. 167.

         O. Tourke Hooker

         Mr. Hooker claims race-based harassment by his supervisors and co-workers. ECF No. 296 at 26; see also ECF No. 202-1, Ex. 38. The Report concluded that material facts are in dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Hooker has failed to establish either a tangible employment action against him by his supervisors, or that he ever lodged any sort of complaint regarding such harassment (whether by his supervisors or co-workers). Accordingly, even if Mr. Hooker were to establish the first and second elements of a hostile work environment claim, Mr. Hooker has failed to demonstrate that his co-workers' harassment would be imputable to NNI. See Sunbelt Rentals, 521 F.3d at 319.

         Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Hooker was in receipt of NNI's anti-harassment policy, see ECF No. 170 ¶¶ 12-15, and (2) Mr. Hooker failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary judgment to NNI. ECF No. 169.

         P. Lamarr Jovner

         Mr. Joyner claims race-based harassment by his supervisors and co-workers. ECF No. 296 at 28; see also ECF No. 202-1, Ex. 19. The Report concluded that material facts are in dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objected to the Report's recommendations, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34. Mr. Joyner has failed to establish either a tangible employment action against him by his supervisors, or that he ever lodged any sort of complaint regarding such harassment (whether by his supervisors or co-workers). Accordingly, even if Mr. Joyner were to establish the first and second elements of a hostile work environment claim, Mr. Joyner has failed to establish that his co-workers' harassment would be imputable to NNI. See Sunbelt Rentals, 521 F.3d at 319.

         Similarly, with respect to his supervisors' allegedly discriminatory activity, NNI has established that the Faragher-Ellerth defense would prevail because: (1) Mr. Joyner was in receipt of NNI's anti-harassment policy, see ECF No. 176 ¶¶ 10-16, and (2) Mr. Joyner failed to take advantage of an opportunity to notify NNI of the allegedly harassing behavior. Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary judgment to NNI. ECF No. 175.

         Q. Roderick Waddell. Jr.

         Mr. Waddell claims race-based harassment by his supervisors. ECF No. 296 at 28-29; see also ECF No. 202-2, Ex. 34; ECF No. 182-11 at 11-12. Mr. Waddell alleges that his supervisors (1) monitored him while refraining from monitoring his white co-workers and (2) complained about the music that he listened to, but did not complain about his white co-workers' music. The Report concluded that material facts are in dispute, and recommended denying summary judgment to NNI. ECF No. 296 at 39. NNI objects, arguing that the Report erroneously relied on "me too" evidence. ECF No. 316 at 34.

         Mr. Waddell has failed to meet the third requirement of a hostile work environment claim because he has failed to demonstrate that this conduct was so severe or pervasive so as to amount to a change in the conditions of employment. See Sunbelt, 521 F.3d at 315-16 (noting that a summary judgment motion requires a court "to identify situations that a reasonable jury might find to be so out of the ordinary"). Accordingly, the Court SUSTAINS NNI's objections as to this claim and GRANTS summary judgment to NNI. ECF No. 181.

         R. Robert Robinson

         The Report recommended dismissing Mr. Robinson's hostile work environment claim because he did not subjectively perceive his environment to be hostile. ECF No. 296-2 at 143- 44, 150-53. As the Report acknowledges, Mr. Robinson submitted emails throughout his employment explaining that he felt positively about his job and the work environment. In his resignation letter, he also expressed satisfaction with his job and noted that he would return to NNI if his pay were to improve.

         However, at his deposition, Mr. Robinson claimed that his attitude towards his job changed over the course of his employment as he experienced more forms of race-based discrimination, and that his resignation email was "sarcastic" because his supervisors knew of his feelings regarding the work environment and the perceived racial harassment. ECF No. 202-2 at 142) ("the recipients of the email [were] already aware of my dissatisfactions within the company [with respect to racial discrimination]), " see also ECF No. 202-2 at 131-46 ("Once I really started to really understand and notice and see a lot of things going on and I brought it to [my supervisors'] attention, I guess you could say [this email] . . . was telling them [that something needed to change]."

         Mr. Robinson's emails weigh against a finding that he subjectively perceived his environment to be hostile. However, where an employee alleges that he made underlying complaints about the harassment at issue (as here), the issue regarding conflicting evidence becomes one of credibility. The Court is not permitted to engage in credibility determinations at summary judgment; this is the province of the jury. Harris v. Mayor and City Council of Baltimore, 429 Fed.Appx. 195, 202 (4th Cir. 2011). Accordingly, there is a factual dispute to Mr. Robinson's perception of his working environment, and NNI's Motion for Summary Judgment as to Mr. Robinson's hostile work environment claim is DENIED. ECF No. 141.

         S. Donvelle Pierce

         Mr. Pierce asserted a claim for hostile work environment in the Second Amended Complaint. ECF No. 15. The Report concluded that Mr. Pierce could not establish a claim for hostile work environment that was not time barred. ECF No. 294 at 11. Mr. Pierce objected to the Report's conclusion, arguing that there were constituent acts that were part of a continuing violation such that his claim is not time barred. ECF No. 317 at 21-22.

         Having reviewed Mr. Pierce's objections, the Court finds that Mr. Pierce did not identify any specific racially hostile act which occurred during the limitations period. Accordingly, this Court OVERRULES Mr. Pierce's objection regarding this claim and adopts the Report's recommendation to GRANT summary judgment to NNI. ECF No. 171.

         II. DISPARATE TREATMENT CLAIMS

         The plaintiffs below have asserted claims for disparate treatment. This section addresses these claims, and their related objections.

         1. LEGAL STANDARDS

         To establish a prima facie case of discrimination for a pay disparity claim, a plaintiff must show that (i) the plaintiff is a member of a protected class; (ii) had satisfactory job performance; (iii) suffered an adverse employment action; and (iv) was treated differently than similarly situated employees outside of his or her protected class. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010).

         To establish a prima facie case of discrimination for a promotion disparity claim, a plaintiff must show that (1) the plaintiff is a member of a protected class; (2) applied or sought to apply to an open position; (3) was qualified for the position; and (4) was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959-60 (4th Cir. 1996). To establish aprima facie case of discrimination for an overtime disparity claim, a plaintiff must demonstrate that he or she (1) is a member of a protected class; (2) is performing his or her job satisfactorily; (3) was "not offered the opportunity to work overtime"; and (4) "similarly-situated individuals outside of [their] protected class received more favorable treatment." Guion v. Mabus, No. 4:11cv159, 2012 WL 1340117, at *4 (E.D. N.C. Apr. 17, 2012).

         To establish a prima facie case of discrimination for a training disparity claim, a plaintiff must show that (1) he or she is a member of a protected class; (2) the defendant provided training to its employees; (3) the plaintiff was eligible for the training; and (4) the plaintiff was not provided training under circumstances that give rise to an inference of discrimination. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649-50 (4th Cir. 2002).

         The United States Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) "established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). This framework, the application of which is challenged in many objections advanced to the Reports at issue here, has been reviewed and recognized in myriad decisions.

         As the Supreme Court summarized in a subsequent ruling, the McDonnell Douglas framework involves the shifting of proof burdens:

if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).

         2. ANALYSIS

         A. Anthony Alvarez

         Mr. Alvarez asserted a claim for disparate treatment regarding pay in the Second Amended Complaint. ECF No. 15 at 111. Mr. Alvarez asserts he was paid $17.50 per hour when he started as a fitter and that he had four years of previous fitter experience. ECF No. 15 at 111. He claims that Mr. Burton, a white employee with no prior experience in the same job, was promoted over him and was given a raise to $ 18 per hour. ECF No. 15 at 111.

         The Report concluded that NNI failed to move for summary judgment specifically on Mr. Alvarez's pay disparity claim, and that counsel failed to address any facts regarding this issue. ECF No. 296 at 47. NNI objects to the Report's conclusion, arguing that the evidence Mr. Alvarez advanced is insufficient as a matter of law, and that summary judgment should be granted in NNI's favor. ECF No. 316 at 2-3.

         To establish a prima facie case of discrimination for a pay disparity claim, a plaintiff must show that the plaintiff had satisfactory job performance. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). NNI produced evidence to show that Mr. Alvarez could not meet this element of his disparate treatment claim. NNI specifically addressed Mr. Alvarez's claims of race discrimination and established that Mr. Alvarez was frequently disciplined regarding attendance. ECF No. 110 at 5. Accordingly, this Court SUSTAINS NNI's objection and GRANTS summary judgment to NNI as to this claim. ECF No. 109.

         B. Ian Blow

         Mr. Blow asserted a claim for disparate pay treatment in the Second Amended Complaint. ECF No. 15 at 230. The Report concluded that Mr. Blow cannot show that his raises were an adverse employment action, and recommended granting NNI's motion for summary judgment. ECF No. 296 at 56. Mr. Blow objects to the Report's conclusion, arguing that he established adequately that there were differences in his starting pay. ECF No. 317 at 28-31.

         Having reviewed Mr. Blow's objections, the Court finds that Mr. Blow's raises were not an adverse action, and that the evidence proffered is insufficient to raise a genuine issue of material fact in dispute. Accordingly, the Court OVERRULES Mr. Blow's objection and GRANTS summary judgment to NNI as to this claim. ECF No. 111.

         C. Er ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.