United States District Court, W.D. Virginia, Roanoke Division
ROGER E. HICKS, Plaintiff,
CARILION MEDICAL CENTER, Defendant.
Michael F. Urbanski Chief United States District Judge.
case comes before the court on Defendant Carilion Medical
Center's ("Carilion") motion for summary
judgment, filed on October 29, 2018. ECF No. 57. Plaintiff
Roger E. Hicks ("Hicks") responded on November 19,
2018, ECF No. 61, and Carilion responded on December 3, 2018,
ECF No. 62. Judge Dillon heard argument on December 12, 2018.
ECF No. 66. For the reasons stated below, Carilion's
motion is GRANTED, all claims are
DISMISSED, and this case is
STRICKEN from the active docket.
began working for Carilion in Guest Services in 2013, but
shortly thereafter was moved to the Main Operating Room
("OR") as a perioperative technician
("POT").ECF No. 61-1, at 39. Carilion is an Equal
Employment Employer and prohibits any type of workplace
violence. ECF No. 57-11, at 28. Hicks was aware of this and
was provided with. some training concerning Carilion's
policies prohibiting harassment and workplace violence,
though the extent and efficacy of that training is
disputed. ECF No. 61-1, at 63-68.
Kurtz was unit director in the main operating room and
Hicks's immediate supervisor. ECF No. 57-4, at 3.
Kurtz's evaluation of Hicks's job performance during
2013 and 2014 was positive; Kurtz wrote in his 2014 review
that Hicks "conduct[ed] himself professionally,
provide[d] excellent patient care and [was] pleasurable to
work with." ECF No. 61-13, at 3. In January 2015, after
a split in management structure that put POTs and
perianesthesia technicians ("PATs") in different
billing and management departments, Kurtz asked that Hicks
coordinate the POT schedule. ECF No. 1.
claims that the complained-of harassment and discrimination
began with the change in his position responsibilities. ECF
No. 1. Hicks believes the problems to be race-based and
claims that Tommy Yerkey, a Carilion PAT who had previously
coordinated the schedule before the split in departments, was
"offended by Hicks, a black man, taking his job
duties." ECF No. 61, at 2. Hicks testified during his
deposition that at this time, no other African-American had
been given extra responsibilities and his coworkers had never
had a problem with white coworkers receiving these sorts of
responsibilities. ECF No. 61-1, at 38. Hicks testified that,
once he began coordinating the schedule, "all hell broke
loose, and I really feel that it was because I was
black," Id. at 38, but also testified that no
one ever directly told him that race was the reason for any
claims that his coworkers began "tearing down" and
"ripping up" the paper copies of the schedules he
made. ECF No. 61-1, at 32. He testified mat there were
many-times when his white coworkers "went to Chris Kurtz
and fabricated a lie, just for no reason at all.. .There were
those type of incidents that ensued." ECF No. 61-1, at
46. Hicks recounts one incident which involved coworker Becky
Russell, a PAT who, after an incident in which Hicks correcdy
identified a thoracotomy, complained to Yerkey that
"they think they know everything," and then filed a
complaint against Hicks with Kurtz. Id. at 49. Hicks
assumed mat "mey" referred to African-Americans
because he was the only African-American POT and "the
only black person of these crews mat was in school."
Id. at 52. Hicks admitted that Russell never said
anything that explicitly indicated her resentment was
race-based but testified that she never made such remarks
about a white POT. Id.
distinct incidents, however, are alleged in the complaint and
documented by Carilion employment records. See ECF No. 1. The
first of these occurred in December 2014 when Hicks was
pushed by a Caucasian coworker, Paul "Alex" Perdue,
just after Hicks had returned to work after taking leave for
back surgery. Id. at 3; ECF No. 61-1, at 58. Hicks
and corroborating witness Yussef Musa claim that the
discussion leading to the incident focused on football but
devolved into Perdue calling Hicks "Roger Dicks"
and Hicks showing his identification badge to Perdue to
convince Perdue to use the correct name. ECF No. 61-1, at 58;
ECF No. 57-7, at 2. Perdue was terminated following an
investigation into the event. ECF No. 57-4, at 6-7.
early August of 2015, Hicks had another altercation, this
time with Darryl Perry, a PAT. ECF No. 61-1, at 98. John
Johnson, an African-American Clinical Team Leader, and Bryan
Hodges, another PAT, both witnessed the event. Id.
Hicks was walking down the hallway and had forgotten to wear
his OR hat. Id. When Johnson pointed this out to him
and reminded him to put his hat on, Hicks claims Perry called
him "an idiot" and a "fucking faggot."
Id. Hodges and Perry, on the other hand, claimed in
emails sent to manager Billy Belcher that Hicks had called
Perry an idiot, and that Hicks had a history of aggressive,
unprofessional behavior. ECF No. 57-11, at 33-35. Hicks
reported the incident to Belcher and left a message on
"7-Safe," an anonymous hotline used at
Carilion. ECF No. 61-1, at 76. He claimed he
received no response. Id. In his deposition, Hicks
admitted that the terms "idiot" and
"faggot," while of course offensive, are
race-neutral. Id. at 71.
August 24, 2015, Hicks sent an email to Carilion CEO Nancy
Agee reporting that he was experiencing harassment; the email
mentioned the incident with Darryl Perry directly. ECF No.
61-22. See also ECF No. 61-9, at 7. Agee forwarded
this letter to Heather Shepardson, the Vice President of
Human Resources, who sent it to HR Consultant Naomi Powers.
ECF No. 61-22. On February 10, 2016, Hicks sent another email
to Agee, again asking for assistance. ECF No. 61-9, at 8. The
end result of these complaints was that Hicks was transferred
from weekday shifts to weekend shifts to avoid future
problems with coworkers. ECF No. 61-1, at 189. This was a
largely positive change-the transfer was accompanied by a pay
increase and seemed to resolve Hicks's workplace
complaints for several months. ECF No. 61-1, at 187.
22, 2016, Hicks had a final altercation with Philip Muse, an
African-American POT. ECF No. 61-1, at 145-46. Hicks alleges
that he was speaking with Johnson about a case when Muse
heard his name mentioned in the course of the conversation.
Id. At this point, Hicks claims that Muse said,
"Don't let me hear you speak my name out of your
mouth, bitch ass n****r." Id. Muse denies
having made this comment, and Johnson denies having heard it.
ECF No. 57-2, at 8; ECF No. 57-10, at 2. Another alleged
confrontation occurred later that day; Muse reported to Kurtz
that Hicks threatened to "knock [him] out in the parking
lot at 7 pm." ECF No. 57-11, at 10. Four individuals
sent email statements regarding either one or both of these
confrontations stating that Hicks was the aggressor. ECF No.
57-11, at 10-16.
was suspended and escorted off the property following this
incident on Carilion's belief that there was a "very
good chance" that Hicks's threats against Muse were
serious. ECF No. 57-11, at 2. Powers conducted an
investigation, for which she interviewed Hicks and six other
employees. See Id. at 73-78. Powers concluded that
Hicks was the instigator of both confrontations. Id.
at 78. No one interviewed during this investigation other
than Hicks claimed to have heard Muse use a racial slur. See
Id. at 73-78. Stephen Lovern, Senior Director of
Operating Room Services; Gary Schott, his superior; and
Shepardson all made the decision to terminate Hicks. ECF No.
57-5, at 8.
to Federal Rule of Civil Procedure 56(a), the court must
"grant summary judgment if the movant 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); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Glynn v. EDO Corp.. 710 F.3d
209, 213 (4th Cir. 2013). When making this determination, the
court should consider "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with... [any] affidavits" filed by the parties.
Celotex, 477 U.S. at 322. Whether a fact is material
depends on the relevant substantive law. Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
"Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted."
Id. (citation omitted). The moving party bears the
initial burden of demonstrating the absence of a genuine
issue of material fact and may prevail by showing "an
absence of evidence to support" an essential element of
the nonmoving party's case. Celotex, 477 U.S. at
323. If that burden has been met, the nonmoving party must
then come forward with specific material facts that prove
there is a genuine dispute for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
determining whether a genuine issue of material fact exists,
the court views the facts and draws all reasonable inferences
in the light most favorable to the nonmoving party.
Glynn. 710 F.3d at 213 (citing Bonds v.
Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Although
"the evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor,
'" McAirlaids, Inc. v. Kimberly-Clark
Corp., No. 13-2044, 2014 WL 2871492, at *1 (4th Cir.
2014) (internal alteration omitted) (citing Tolan v.
Cotton. 134 S.Ct. 1861, 1863 (2014) (per curiam)),
"[t]he mere existence of a scintilla of evidence in
support of the [nonmovant's] position will be
insufficient" to overcome summary judgment.
Anderson, 477 U.S. at 252. Rather, a genuine issue
of material fact exists only "if there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party." Res. Bankshares Corp. v.
St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir.
2005) (quoting Anderson, 477 U.S. at 249). "In
other words, to grant summary judgment the [c]ourt must
determine that no reasonable jury could find for the
nonmoving party on the evidence before it." Moss v.
Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing
Perini Corp. v. Perini Const. Inc., 915 F.2d 121,
124 (4th Cir. 1990)).
brings two counts in his Complaint pursuant to 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e. ECF No. 1. Count I is a Claim for Race
Discrimination, alleging that Carilion "discriminated