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Atchariyakornchai v. Frederick County Sanitation Authority

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

August 22, 2019




         Plaintiff Bryan Atchariyakornchai brings this action against his former employer, Frederick County Sanitation Authority (FCSA). He asserts claims of hostile work environment, discrimination, and retaliation based on race and ethnicity in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e (Title VII).[1] (Compl. ¶¶ 79-93, Dkt. No. 1-1.) Pending before the court is FCSA's motion for summary judgment, seeking judgment as a matter of law on all claims. (Dkt. No. 21.) The motion has been fully briefed and argued. For the following reasons, the court will grant FCSA's motion.[2]


         This action arises out of Plaintiff's employment with FCSA, beginning in 2006. FCSA operates two waste water treatment plants: Crooked Run and Parkins Mill. Plaintiff, an Asian male, was hired by Henry Sliwinski, the superintendent of water treatment at FCSA, as the chief operator of the Crooked Run treatment plant. (Sliwinski Dep. 6-8, Dkt. No. 22-20; Pl. Dep. 11, Dkt. No. 22-23.)

         A. Influent and Effluent Testing

         The Virginia Department of Environmental Quality (DEQ) oversees FCSA's plants and issued a permit to FCSA. Va. Code § 62.1-44.2, et. seq. The waste water treatment plants use the process of waste water reclamation to return treated water to local creeks and rivers. This process requires testing of the influent, which is water and solids coming into the plant, and of the effluent, which is water that is returned to creeks and streams after testing and treatment. (Brode Dep. 110, Dkt. No. 22-8; Grim Dep. 49-50, 63-64, Dkt. No. 22-12; Sliwinski Dep. 11, 12-14.) While the DEQ permit contains specific requirements for effluent testing, FCSA is responsible for mandating testing of the influent. (Grim Dep. 87.)

         In accordance with the posted Standard Operating Procedures at Crooked Run, employees are required to take an influent testing sample twice a week. These samples provide information that is relevant to the DEQ permits. (Alger Dep. 115-19, 156-57, Dkt. No. 22-6; Grim Dep. 46; DEQ Permit, Dkt. No, 22-9 at 90.) The data gathered from testing the influent impacts the water treatment process. For example, testing the influent helps to determine how much pollution is in the water. (Sliwinski Dep. 12.) Sampling and testing at FCSA is expected to be accurate and true with regard to the results of the sample, the time taken, and the person who took the sample. (Id. at 13.) The DEQ permit requires that the samples and measurements “shall be taken at the permit designated or approved location and be representative of the monitored activity.” (DEQ Permit, Dkt. No. 22-9 at 111.)

         Plaintiff was trained on how to conduct influent testing in accordance with FCSA policies and DEQ requirements. (Sliwinski Dep. 42-43; Pl. Dep. 44-45, 63.) Although influent testing was not required for the DEQ permit, Plaintiff understood that the testing was to “make the best environment for the microbes so they don't die, ” and to ensure that the effluent testing is accurate and done well. (Pl. Dep. 62-63.) Influent and effluent testing results were recorded on “bench sheets” at both waste water treatment plants. (Sliwinski Dep. 12-14.)

         B. Plaintiff and Alger

         When Plaintiff worked as the chief operator at Crooked Run, he was responsible for evaluating Marcus Alger's job performance. Alger works for FCSA as a wastewater treatment plant operator. (Alger Dep. 9-10.) For about nine years, Alger and Plaintiff worked well together. (Alger Dep. 10, 152-53.) However, in early 2016, Sliwinski began meeting with Plaintiff and Alger to discuss their lack of cooperation. Sliwinski considered both men to be at fault for the issues between them. (Sliwinski Dep. 24.) In March 2016, Sliwinski issued a written warning to both Plaintiff and Alger about their failure to improve their work relations. The letter stated that Plaintiff would have the ability to continue in his job if he could “set aside disagreements and cooperate” with Alger. It also said that if Plaintiff and Alger were unsuccessful, a “managerial intervention” would be considered. (Dkt. No. 22-7 at 12.) Sliwinski tried to remedy the situation by separating Plaintiff and Alger so that they worked together during only one day of the week. (Sliwinski Dep. 32.)

         In May 2016, Sliwinski received a letter from Alger complaining about Plaintiff's “work ethic, judgement, [sic] and leadership.” Sliwinski gave Plaintiff an opportunity to respond to these complaints. (Dkt. No. 22-7 at 25.) In his response, Plaintiff said that it would be difficult to work with Alger going forward and that he would step down and work full time at the Parkins Mill plant while Alger assumed the chief operator position at Crooked Run “if that is what management wants.” (Dkt. No. 22-23 at 258-59.) Sliwinski believed that Plaintiff had agreed to the demotion, (Sliwinski Dep. 41, 51; see also Pl. Dep. 136; Compl. ¶ 44 (“One week after acquiescing in this demotion . . . .”)), and Plaintiff was officially demoted from his position as chief operator in July 2016. (Pl. Dep. 139.) From the perspective of Angela Mason, the human resources manager at FCSA, Plaintiff was demoted because he was not adequately performing his job duties and he agreed to the demotion. (Mason Dep. 5-6, 13.) Daniel Brode[3] took over as chief operator of Crooked Run in July 2016.

         In July 2016, Plaintiff emailed Brode, Sliwinski, Greg Grim, [4] and Alger, stating that he filled out paperwork for Alger because certain data was missing. He also asked, “are we not doing the comp ph and temp any more if not maybe someone can let me know, ” referring to the information that he alleged was missing from Alger's paperwork. Alger responded that he had done the testing and recorded the data but had written the results on a separate sheet of paper that he eventually filled in, and Sliwinski accepted this explanation. (Dkt. No. 22-7 at 38.)

         C. Plaintiff's Post-Dated Bench Sheet and Subsequent Termination

         On October 18, 2016, Plaintiff was working at the Crooked Run plant when he took an influent sample and recorded it on a bench sheet that he dated October 19, 2016. (Pl. Dep. 13- 14; Alger Dep. 88-93, 156-57, Dkt. No. 22-7 at 65-67.) Alger took a photo of this bench sheet and emailed it to Brode, Sliwinski, and Michael Newlin, [5] stating: “I just wanted to share this picture of [Plaintiff] falsifying government documents. This is the third time I've turned him in for this.” (Dkt. No. 22-23 at 212-13.) Alger believed that Plaintiff's method of recording was wrong because he was “taking the sample, doing his test on the sample that day, leaving it out in the sink, and then the next day he would write the next day's date on it and the next day's time that he made up.” (Alger Dep. 12.) Alger told Plaintiff multiple times before the October 2016 email to stop doing this. (Alger Dep. 11-12.) During one of the earlier occasions when Alger told Brode about Plaintiff's practice of recording data, Brode questioned Plaintiff and asked why he did not follow the standard method.[6] (Brode Dep. 18; Alger Dep. 11-12.)

         On October 19, Plaintiff took another influent sample and “it was exactly the same, ” so he did not change the data recorded from the day before. Plaintiff also took an effluent sample and recorded that information on the same bench sheet from the day before that was dated October 19. (Pl. Dep. 56-62, 89.)

         On the morning of October 19, Brode-then Plaintiff's supervisor-went to Crooked Run to investigate what Alger had emailed him. He found Plaintiff's bench sheet at Crooked Run and compared it to the picture of a bench sheet that Alger had emailed him, Sliwinski, and Newlin. The pH and temperature recordings on the bench sheets were the same. (Brode Dep. 19.) When Brode saw Plaintiff, he asked if he had taken the influent sample the day before, like the picture sent by Alger reflected, despite the fact that he had already spoken to him once before about not using this method. (Brode Dep. 21-22.) Plaintiff claims he told Brode that he had taken another influent sample that day (Pl. Decl. ¶ 20); however, Brode remembers Plaintiff acknowledging that he did not take another influent sample on October 19, since he already had one from the day before. Brode reiterated that they were not supposed to take the influent pH samples the day before the date of recording and that the samples needed to be taken and recorded on the same day, according to the standard methods. (Brode Dep. 22-23, 29; Pl. Dep. 49.) Plaintiff understood that he was not supposed to be filling out data a day in advance. (Pl. Dep. 42-44.) Brode and Plaintiff began arguing at which point Plaintiff told Brode that he thought focusing on his mistakes and not others' was “discrimination.” (Pl. Dep. 20-21, 32-36.)

         Sliwinski spoke to Brode on October 19 about Plaintiff's bench sheet. (Sliwinski Dep. 43-44.) He reviewed the bench sheet himself and asked Brode if the picture Alger sent was legitimate. Brode said that it was and suggested that Plaintiff be written up. Sliwinski responded that Plaintiff would be fired, not written up, because of the seriousness of falsifying documents. He then told Brode and Plaintiff they there were to go to Parkins Mill for a meeting later that day. (Brode Dep. 31, 38-41.)

         On October 19, Plaintiff was called into a meeting at the Parkins Mill plant. Sliwinski, Newlin, and Brode were present at that meeting. (Sliwinski Dep. 53; Brode Dep. 41-42.) Brode brought the bench sheet in question. (Brode Dep. 43-44.) At this meeting, Plaintiff did not say that he took another influent sample on October 19. (Sliwinski Dep. 54.) Rather, he “admitted to taking the sample on the 18th and recording it as being done on the 19th.” (Id. at 55, 58.) After Sliwinski questioned Plaintiff about the October 18-19 sample and bench sheet, Plaintiff was terminated on October 19, 2016.[7] (Id.; Pl. Decl. ¶ 2.)


         A. Summary Judgment Standard

         Under Rule 56, summary judgment is proper where “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). A genuine issue of material fact exists only where the record, taken as a whole, could lead a reasonable jury to return a verdict in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). In making that determination, the court must take “the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc) (quoting Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).

         A party opposing summary judgment “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .” Id. at 247-48. Instead, the non-moving party must produce “significantly probative” evidence from which a reasonable jury could return a verdict in his favor. Abcor Corp. v. AM Int'l, Inc., 916 F.2d 924 (4th Cir. 1990) (quoting Anderson, 477 U.S. at 249-50). “While courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue, summary judgment disposition remains appropriate if the plaintiff cannot prevail as a matter of law.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996).

         B. Applicable Law

         Title VII prohibits practices that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). This includes discrimination with respect to employment decisions having a direct economic impact, like terminations or demotions, as well as actions that create or perpetuate a discriminatory or abusive working environment. See Vance v. Ball State Univ., 570 U.S. 421, 426-27 ...

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