United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. Davis United States District Judge.
matter is before the Court on a motion for summary judgment
filed by defendant FQSR, LCC, d/b/a KBP Foods,
("Defendant," or "KBP"). ECF No. 31.
After examining the briefs and record, the Court finds that
oral argument is unnecessary because the facts and legal
contentions are adequately presented, and oral argument would
not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D.
Va. Loc. R. 7(J). For the reasons set forth below,
Defendant's motion is GRANTED in part
and DENIED in part.
Dena Lindsay-Felton ("Plaintiff") is a former KBP
employee/store-manager who resigned from her employment on
September 20, 2016, based on what she characterizes as a
hostile work environment and discrimination based on her race
(African-American) . During the period immediately prior to
her resignation, Plaintiff was a manager of a KBP restaurant,
and her supervisor, Susheel "Shue" Kumar
("Shue"), was a KBP "Area Coach"
responsible for overseeing multiple restaurant locations.
During her deposition, Plaintiff testified that her
relationship with Shue began to break down during the last
several months of her employment, beginning with a
disagreement over inventory numbers because Plaintiff would
not falsify records as Shue purportedly directed. From that
point forward, Shue repeatedly yelled at Plaintiff, demeaned
her in front of her store employees, pointed his finger in
her face on at least one occasion, and engaged in other
harassment that Plaintiff asserts ultimately caused her to
resign. Shue also engaged in behavior that Plaintiff asserts
demonstrates a link between her race and Shue's
harassment. Now at issue on summary judgment are
Plaintiff's race-based hostile work environment claim,
constructive discharge claim, and retaliation claim advanced
under Title VII of the Civil Rights Act of 1964.
Standard of Review
Federal Rules of Civil Procedure provide that a district
court shall grant summary judgment in favor of a movant if
such party "shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). The mere existence
of some alleged factual dispute between the parties
"will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no
genuine issue of material fact."
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48
movant has properly advanced evidence supporting entry of
summary judgment, the non-moving party may not rest upon the
mere allegations of the pleadings, but instead must set forth
specific facts in the form of exhibits and sworn statements
illustrating a genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986). "A genuine
question of material fact exists where, after reviewing the
record as a whole, a court finds that a reasonable jury could
return a verdict for the nonmoving party." Dulaney
v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir.
2012) (citation omitted). "Because 'credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge, '" the Court must only
evaluate the evidence to the extent necessary to determine
whether there is "'sufficient disagreement to
require submission to a jury or whether [the evidence] is so
one-sided that one party must prevail as a matter of
law." McAirlaids, Inc. v. Kimberly-Clark Corp.,
756 F.3d 307, 310 (4th Cir. 2014) (quoting Anderson,
477 U.S. at 255, 251-52). In making such determination,
"the district court must 'view the evidence in the
light most favorable to the' nonmoving party."
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 568 (4th Cir. 2015) (quoting Tolan v. Cotton,
572 U.S. 650, 657 (2014)).
review of Defendant's filings and exhibits, as well as
Plaintiff's opposition brief and exhibits, demonstrates
the validity behind Defendant's assertions that: (1)
Plaintiff does not challenge the vast majority of the facts
contained in Defendant's statement of "Undisputed
Facts"; and (2) Plaintiff's opposition brief relies
on citations to deposition excerpts that were not
provided to the Court, thus requiring the Court to
disregard the bulk of Plaintiff's supplemental factual
allegations because they lack evidentiary support. That said,
the Court disagrees with Defendant's characterization of
affidavits submitted by Plaintiff as being based solely on
inadmissible hearsay rather than on first-hand
knowledge. The Court also notes that, when construed
in Plaintiff's favor, the transcript excerpts from
Plaintiff's own deposition that are before the
Court lend support to Plaintiff's hostile work
Hostile Work Environment
first Plaintiff's hostile work environment claim,
"[o]rdinarily, to prove a hostile work environment claim
under Title VII, a plaintiff must show (1) unwelcome conduct;
(2) that is based on the plaintiff's [protected status];
(3) which is sufficiently severe or pervasive to alter her
conditions of employment and to create an abusive work
environment; and (4) which is imputable to the
employer." Strothers v. City of Laurel,
Maryland, 895 F.3d 317, 328 (4th Cir. 2018)
(internal quotation marks and citations
omitted). Here, the primary issue raised by
Defendant on summary judgment challenges the second element,
although Defendant offers some argument challenging the third
explained by the Fourth Circuit earlier this year:
The second element of a hostile environment claim requires
that the offending conduct be based on the employee's
"race, color, religion, sex, or national origin."
42 U.S.C.A. § 2000e-2; see Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en
banc). In other words, "Title VII does not prohibit all
verbal or physical harassment in the workplace"-it is
directed only at actions that occur "because of"
one of the protected statuses. Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998) . In
determining whether offensive conduct can be attributed to
discrimination against the employee's race or other
protected status, courts must view the behavior in light of
the social context surrounding the actions. See id.
Id. at 329. Here, the following race-based facts
and/or contextual facts are contained in the summary judgment
(1) Sometime near the end of her employment, Plaintiff
overheard her supervisor (Shue) speaking with three potential
new employees, and when Shue discovered that one of the
applicants forgot his ID, Shue "pointed his fingers at
the guys and said, that's why you niggerswill never be
nothing, will never amount to nothing. Who doesn't have -
- who doesn't have ID on them?" Pl. Depo. Tr. 74,
ECF No. 32-1. When Plaintiff recounted this same incident at
a different point in her deposition, she said that Shue's
statement to the applicants was that they were
Id. at 84 (emphasis added).
(2) After Shue began harassing Plaintiff during the last
several months of her employment, it was
"[a]lmost every single day
that [Shue] made his rounds in [Plaintiff's] store"
that he referred to Plaintiff as
"dumb" rather than using her name. Id. at
68 (emphasis added).
(3) Shue never let Plaintiff offer her opinion even though
she was a store manager, and he repeatedly degraded her at
work, with Shue on at least one occasion yelling at her while
pointing his finger in her face in a threatening manner.
Id. at 68, 71, 73, 98, 131, 188.
(4) Although Plaintiff never personally heard Shue use the
n-word other than to the three applicants, she had been told
by other employees that Shue had used such racially offensive
term on other occasions. Id. at 78.
(5) Shue used the term "cockroaches" to refer to
employees at Plaintiff's store, and all of
Plaintiff's employees were African-American except for
one Caucasian. Plaintiff interpreted the word
"cockroach" to be a derogatory racial term, with
Shue at one point telling Plaintiff: "[A]11 you have is
cockroaches in the store. Get rid of some of these
cockroaches." Id. at 71-72, 174.
(6) Plaintiff believed that Shue didn't like her both
because she was black and because she was a woman, and while
Plaintiff does not advance a sex-based discrimination claim,
her sworn testimony establishes (for summary judgment
purposes) that Shue "told [her]
consistently that women of -