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Lindsay-Felton v. FQSR, LLC

United States District Court, E.D. Virginia, Norfolk Division

November 7, 2018

FQSR, LLC, d/b/a KBP FOODS, Defendant.


          Mark S. Davis United States District Judge.

         This 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.

         I. Background

         Plaintiff, 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.

         II. Standard of Review

         The 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 (1986).

         If a 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)).

         III. Discussion

         A 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.[1] 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 environment claim.

         A. Hostile Work Environment

         Considering 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).[2] Here, the primary issue raised by Defendant on summary judgment challenges the second element, although Defendant offers some argument challenging the third element.

         As 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 record:

(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 niggers[3]will 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 "stupid n****rs." 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 "stupid" or "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.[4] 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 - of ...

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