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Hicks v. Carilion Medical Center

United States District Court, W.D. Virginia, Roanoke Division

March 27, 2019

ROGER E. HICKS, Plaintiff,


          Michael F. Urbanski Chief United States District Judge.

         This 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.


         Hicks 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").[1]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.[2] ECF No. 61-1, at 63-68.

         Christopher 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.

         Hicks 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 dislike, id.

         Hicks 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.

         Several 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.

         In 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.[3] 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.

         On 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.

         On July 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.

         Hicks 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.


         Pursuant 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 (1986).

         In 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)).


         Hicks 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 ...

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