Lyon v. Bell Atlantic Corporation

Full title: Cedric L. Lyon, Plaintiff, v. Bell Atlantic Corporation, Et Al., Defendants

Court: United States District Court, D. Maryland

Date published: Jul 19, 2001

Civil No. JFM-99-3631 (D. Md. Jul. 19, 2001)

Opinion

Civil No. JFM-99-3631

July 19, 2001

OPINION

J. FREDERICK MOTZ, United States District Judge

Now pending before this Court are Defendants' Motion for Summary Judgment and Plaintiff's Motion in Limine.¹

1 I will grant Plaintiff's Request for Leave to File Surreply to Defendants' Motion for Summary Judgment. Defendants submitted considerable evidence in their reply, much of which could have been submitted in their original motion. Plaintiff should have the opportunity to respond.

Cedric Lyon ("Lyon"), an African-American male, began working for Bell Atlantic Corporation ("BAC") in 1994 as a services technician; he was terminated on November 7, 1997. He claims that he was subjected to racial discrimination and retaliation in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq. ("Title VII"). BAC has moved for summary judgment.

Broadly construing Lyon's complaint and arguments, I understand Lyon to be asserting the following claims: retaliation in violation of Title VII and § 1981, a racially hostile work environment in violation of § 1981 and Title VII, and disparate treatment based on race in violation of Title VII and § 1981. (Pl.'s Mem. Opp'n Defs.' Mot. Summ. J. at 21.) I address these in turn.

I.

The heart of Lyon's case concerns the allegedly retaliatory conduct that BAC engaged in during Lyon's tenure.

Retaliation claims under Title VII and § 1981 utilize methods of proof common to racial discrimination claims. Dowe v. Total Action Against Poverty, 145 F.3d 653, 656 (4th Cir. 1998) (Title VII retaliation analysis); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 190 (4th Cir. 2001) (applying Title VII analysis to § 1981 retaliation claims). A plaintiff can prove retaliation using either direct evidence or the flexible burden-shifting scheme established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If a plaintiff presents direct evidence that retaliation was a factor in an employment decision, then an employer can avoid liability under Title VII only by showing that it would have reached the same decision absent the retaliatory animus.² Kubicko v. Ogden Logistics Services, 181 F.3d 544, 552 n. 7 (4th Cir. 1999); Fuller v. Phipps, 67 F.3d 1137, 1141-42 (4th Cir. 1995).

2 This is the pre-1991 understanding of the mixed-motive inquiry in the Title VII context. Under the Civil Rights Act of 1991, if a plaintiff produces direct evidence that an illegitimate consideration motivated an employment decision, the employer is liable, although the plaintiff's recovery is limited if the employer can show that it would have reached the same decision absent the illegitimate motive. 42 U.S.C. § 2000e-2(m), -5(g)(2)(B); Kubicko, 181 F.3d at 552 n. 7; Fuller, 67 F.3d at 1142. In this circuit, the pre-1991 understanding of the mixed-motive inquiry governs Title VII retaliation claims. Kubicko, 181 F.3d at 552 n. 7 (noting that amendments to mixed-motive analysis in Civil Rights Act of 1991 do not apply to retaliation claims). It appears to be an open question whether this understanding also governs in the § 1981 context. Compare Mabra v. United Food Commercial Workers Local Union No. 1996, 176 F.3d 1357, 1357 (11th Cir. 1999) (holding that amendments to mixed-motive analysis in Civil Rights Act of 1991 do not apply to § 1981 claims) with Lewis v. Am. Foreign Serv. Ass'n, 846 F. Supp. 77, 82 (D.D.C. 1993) (holding that amendments to mixed-motive analysis in Civil Rights Act of 1991 do apply to § 1981 retaliation claims).

If the plaintiff has not produced direct evidence of retaliation, he must rely on the familiar McDonnell Douglas framework. A plaintiff must first prove a prima facie case of retaliation, giving rise to an inference of retaliation. McDonnell Douglas, 411 U.S. at 802; Dowe, at 145 F.3d at 656. The defendant then must produce a legitimate, nonretaliatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802-03; Dowe, 145 F.3d at 656. If the defendant discharges this burden of production, the plaintiff must show that the defendant's proffered reason is a pretext for retaliation. McDonnell Douglas, 411 U.S. at 804; Dowe, 145 F.3d at 656. The ultimate burden of proof remains with the plaintiff, who must show that the employer intentionally retaliated against the plaintiff. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000); Dowe, 145 F.3d at 656.

To prove a prima facie case of retaliation under either Title VII or § 1981, a plaintiff must show that (1) he engaged in a protected activity; (2) an adverse employment action was taken against him; and (3) there was a causal connection between the first two elements. Dowe, 145 F.3d at 656; Spriggs, 242 F.3d at 190 (applying Title VII retaliation analysis to § 1981 retaliation claims). Lyon has adduced evidence that he engaged in two instances of protected conduct.³ On February 17, 1997, Lyon wrote a letter to Ray Smith, the CEO of BAC, complaining about racial discrimination at BAC. (Letter from Lyon to Smith of 2/17/97.) Lyon also alleges that he joined a class action discrimination lawsuit against BAC during February or March 1997.⁴ (Lyon Dep. at 275.) BAC does not argue that either of these actions are not protected conduct for purposes of a retaliation claim.

3 The record reveals that Lyon might also claim retaliation for an incident in June of 1996, when Lyon overheard Harry Carver, his then supervisor, remark that he was going to "burn" another African-American employee. (Lyon Dep. at 309, 311, 580, 591.) Lyon confronted Carver, noting that he was "still up to [his] old tricks when it comes to blacks, huh?" (Lyon Dep. at 309, 606.) On June 10 and 11, 1996, Carver subjected Lyon to rigorous inspections leading to negative performance evaluations. (Lyon Dep. at 591.) Also, on August 2, 1996, Carver unexpectedly appeared at a customer's home and allegedly stole Lyon's safety glasses from his truck. (Lyon Dep. at 606; Daniel Aff.; Brown Aff.)
Neither of these incidents can be the basis for a retaliation claim. The statute of limitations for filing a § 1981 claim based on events occurring in Maryland is three years. See Grattan v. Burnett, 710 F.2d 160, 162 (4th Cir. 1983); cf. McNutt v. Duke Precision Dental Orthodontic Labs., Inc., 698 F.2d 676 (4th Cir. 1983). Both of these events occurred three years before Lyon filed his complaint on December 2, 1999. Under Title VII, a plaintiff must file a charge within 180 days of the alleged discrimination, although in a "deferral" state a plaintiff has 300 days to file with the EEOC. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439 (4th Cir. 1998). Lyon claims that he filed a minimally sufficient charge with the EEOC on November 10, 1997, (Pl.'s Mem. Opp'n Defs.' Mot. Summ. J. at 32; EEOC Notice of Charge of Discrimination of 5/13/98), although the completed charge is dated May 13, 1998. (EEOC Charge of 5/13/98.) Either date is more than 300 days from the events of early June or August 2, 1996. Accordingly, these events may not form the predicate for a retaliation claim. See Crosten v. Kamauf, 932 F. Supp. 676, 683-84 (D.Md. 1996) (holding that when a plaintiff files an administrative charge after the conduct giving rise to the retaliation claim occurs, the plaintiff must include the retaliation claim in the administrative charge); Riley v. Technical Mgmt. Servs. Corp., 872 F. Supp. 1454, 1460 (D.Md. 1995) (same).

4 Whether Lyon actually joined the lawsuit is subject to dispute. (Lyon Dep. at 275) (noting that Lyon joined the amended complaint in February or March 1997). A lawyer in that lawsuit has submitted an affidavit indicating that Lyon was not a party to that suit before his termination. (Harry T. Jones, Jr. Aff. ¶ 2.)

The next issue is whether Lyon suffered adverse employment actions as a result of his complaints.⁵ Lyon has presented admissible evidence concerning a number of alleged retaliatory actions. First, he claims that he was suspended in early May 1997 for failing to report for administrative duty after he returned from an injury. (Lyon Dep. at 355-56, 378-79, 382, 601-02.) Second, he claims that BAC applied its lunch policy unfairly to him in early May 1997. (Lyon Dep. at 293-98, 330.) He was singled out at a crew meeting on May 7, 1997 for failing to abide the policy and also for storing towels in his locker. (Lyon Dep. at 297, 327, 330, 372, 374-75.) Third, in mid-May 1997, Lyon was asked to take a proficiency test for which he had not been scheduled. (Lyon Dep. at 414-15.) Fourth, on July 10, 1997, Lyon was orally warned for his failure to work a "Red Letter," or forced overtime, day. (Lyon Dep. at 422, 610-11.) Fifth, on August 14, 1997, two of Lyon's supervisors, Wilson Taylor and Andre Robinson, allegedly drove to Lyon's home to conduct surveillance when Lyon took a sick day. (Lyon Dep. at 424-27, 433-34, 614-17.) Sixth, on September 24, 1997, Taylor visited Lyon at a job site involving a trailer and failed to correct his deficient work on the spot. (Lyon Dep. at 445-47, 611.) Instead, Taylor returned to the job site without Lyon and gave him a bad evaluation, later asking Lyon to return to the job site to correct his work. (Lyon Dep. at 447-48.) Seventh, on November 7, 1997, BAC terminated Lyon.

5 Although Lyon's two actions could provide distinct bases for retaliation claims, Lyon does not analyze them separately. (Lyon Dep. at 114-15; EEOC Charge of 5/13/98.) Given their temporal proximity and the asserted knowledge of the same parties, (Lyon Dep. at 111, 113-16, 482-83) (lawsuit); (Lyon Dep. at 279-81, 283) (Smith letter), I see no reason to do so either.

An employer's act must alter the terms, conditions or benefits of employment to qualify as an adverse employment action. Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001). A series of retaliatory actions, which individually fail to reach this level, may qualify as an adverse employment action if the conduct, when taken as a whole, is sufficiently severe or pervasive to alter the terms, conditions or benefits of employment. Id. at 869-70. Thus two issues are presented: first, whether any of the alleged actions, standing alone, constitute adverse employment actions, and second, whether Lyon suffered retaliatory harassment, taking BAC's other actions as a whole.

A.

Only two of the above instances, the May 1997 suspension and the November 1997 termination, arguably constitute adverse employment actions. Although a suspension can constitute an adverse employment action, see Spriggs, 242 F.3d at 190 (noting that a suspension can be an adverse employment action), there is no evidence in this case that Lyon's suspension affected the terms, conditions or benefits of his employment. The evidence concerning Lyon's suspension is sketchy at best. He has presented no admissible evidence that BAC withheld his pay or meted out any other form of tangible punishment, or that the suspension had any consequential negative effects on his employment with BAC or another prospective employer.⁶ Whatever the severity of the discipline, it was later rescinded. (Lyon Dep. at 386-87.). Accordingly, Lyon has not met his burden of showing that the May 1997 suspension constituted an adverse employment action.

6 Lyon asserts that the suspension lasted five hours. (Pl.'s Surreply Def.'s Mot. Summ. J. at 4.) Although Lyon presents no evidentiary support for this assertion, Benjamin Landrum, BAC's Director of Services Technicians for Baltimore, appears to confirm it, alluding to a five-hour suspension in his affidavit. (Landrum Aff. ¶ 9.)

The November 1997 termination does, of course, in and of itself constitute an adverse employment action. Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998) (holding that termination is an adverse employment action). Therefore, the question becomes whether Lyon has presented sufficient evidence to meet the third prong of his prima facie case: showing that there was a causal connection between Lyon's complaints about racial discrimination and his termination.

Lyon wrote the Smith letter on February 17, 1997 and (allegedly) joined the discrimination lawsuit in February or March 1997. (Letter from Lyon to Smith of 2/17/97; Lyon Dep. at 275.) BAC terminated him on November 7, 1997, approximately 9 months after his complaints. Lyon was absent from work until early or mid-April, however, because of an automobile accident on February 18, 1997. (Lyon Dep. at 256.). Moreover, BAC began its investigation of Lyon in late August 1997, (Bonhoff Aff. ¶ 3; Taylor Aff. ¶ 2), reducing the relevant time span to approximately four months. This time span is not enough to raise an inference of causation, see, e.g., Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (noting that a four-month lag is not enough to justify an inference of causation).

Lyon argues that other evidence substantiates causation. At a hearing held on February 17, 1998 to determine Lyon's right to receive state unemployment benefits, Andre Robinson, a BAC supervisor and friend of Lyon's, testified that BAC initiated the Lyon investigation because "he had been a previous police officer and . . . he had made some allegations that he was going to sue Bell Atlantic."⁷ (Administrative Hearing Transcript of 2/17/98 at 58.) At another, unspecified time, Robinson apparently told Lyon that "they don't like you making waves around here" and that the "letter that you wrote ruffled a lot of feathers." (Lyon Dep. at 283.)

7 It is unclear what Robinson meant by his reference to Lyon having been a police officer. Potentially Lyon could argue that BAC initiated the investigation when it learned that Lyon had previously sued his former employer, the Baltimore City Police Department. Although retaliating against an employee because of a previous discrimination lawsuit can give rise to a retaliation claim, 42 U.S.C. § 2000e-3(a); Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 879 (6th Cir. 1991) (upholding trial court's finding that an employer had retaliated based on a sexual discrimination suit against a prior employer), Lyon has presented no evidence that his previous lawsuit alleged unlawful discrimination. Accordingly, it provides no basis for a retaliation claim.

Robinson's statements are insufficient to support Lyon's retaliation claim.⁸ Lyon provides no evidence establishing Robinson's personal knowledge of the motives of BAC's decision makers. Indeed, Robinson has submitted an affidavit indicating that he had none. Robinson Aff. ¶¶ 3-4. Without such a foundation, his statements are conclusory and shed little light on the motivations of those people who started the chain of events leading to Lyon's termination.⁹

8 Lyon claims that Robinson's statements are direct evidence of retaliation and therefore trigger the mixed-motive analysis. To meet this evidentiary threshold, a plaintiff must present "evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision." Fuller, 67 F.3d at 1142. Robinson's statement do not meet this standard. Robinson never specified that he or any particular decision maker was moved to act by a retaliatory motive nor did he state the basis for his conclusion. Compare Kubicko, 181 F.3d at 553

9 In an unsworn memorandum in the record, Lyon offers evidence that is potentially damaging to BAC. In May of 1997, after getting into a dispute with Lyon concerning whether Lyon should take a proficiency test, Lyon overheard Taylor say, "I'm getting tired of his black ass. . . . He's not going to be around here long anyway if I can help it, so he's probably not going to take [the test] anyway." (4/30/98 Mem. at 9.) Although this statement would be good evidence of causation, it has not been presented in admissible form and, therefore, I cannot rely upon it in resolving this summary judgment motion. Fed.R.Civ.P. 56(e). Lyon also alludes to a statement by David Seal, who allegedly confirmed Robinson's interpretation of events at the hearing. (Pl.'s Surreply Def.'s Mot. Summ. J. at 3-4.) After Robinson's statement, Seal responded, "That is the gist of it right there. That started the investigation." (Administrative Hearing Transcript of 2/17/1998 at 58.) Seal was a lawyer for BAC and was apparently summarizing either Robinson's or Lyon's earlier statements. Moreover, even if Seal had been testifying as a witness, there is no evidence that Seal had any personal knowledge to substantiate his conclusion. Lyon also points to another statement by Robinson. Robinson informed Lyon that "they" had told him to inform Greg Miles, BAC's EEO advisor, anytime Lyon's name came up because "they" were "being careful" with Lyon because of the discrimination lawsuit he had filed. (Lyon Dep. at 274-75.) It is unclear who told Robinson to report to Miles. Moreover, Miles was the person investigating Lyon's earlier complaints of harassment and there is no evidence that he played a role in terminating Lyon.

Even assuming that Lyon could meet his burden of establishing a prima facie case of causation, he has not presented evidence showing that BAC's reasons for terminating him were pretextual. BAC provides four reasons for having discharged Lyon. First, it claims that Lyon had submitted a false commendation letter from a customer, Veronica Walker. (Bonhoff Aff. ¶ 17.) Second, it claims that he harassed another customer, Nancy Friedman, by attempting to obtain her signature on an affidavit that contained false statements. Id. Third, it claims that he obtained "excused" absences by using the false pretense of a subpoena purportedly requiring him to attend court proceedings. Id. Fourth, it claims that he had falsified his job application by omitting the fact that he had been employed (and later discharged) by the Baltimore City Police Department. Id.

Lyon has not presented evidence undermining BAC's version of how it launched its investigation. During an August 29, 1997 mid-year performance evaluation, first-line supervisors, including Wilson Taylor, noticed a commendation letter praising Lyon for work completed on May 5, 1997. (Taylor Aff. ¶¶ 2-3.) Taylor found this odd because the supervisors had evaluated Lyon's work on that date and concluded that the work done for that customer was deficient.¹⁰ (Taylor Aff. ¶ 3.) On May 5, 1997, Lyon had serviced another customer, Advanced Information Research ("Advanced"). In mid-May 1997, Nancy Friedman, a manager at Advanced, left a voice-mail message for Taylor, stating that Lyon had attempted to get her to retract statements that she had made to Lyon's supervisors when they inspected his work. (Taylor Aff. ¶ 6.) When Taylor and another supervisor followed up in mid-May, she refused to become further involved in the situation. (Taylor Aff. ¶ 7.) After reading the commendation letter from another customer for work done on that same date, however, Taylor became concerned that Lyon may have obtained a false commendation letter from that customer. (Taylor Aff. ¶ 8.) Taylor and another supervisor visited Friedman, who informed them that Lyon had visited her multiple times in May to get her to sign an affidavit retracting her statements to Lyon's supervisors. (Taylor Aff. ¶ 9.) Friedman stated that she had refused to sign the affidavit because it contained false statements. Id. Taylor informed Robert Bonhoff, his superior at BAC, who called Friedman. (Taylor Aff. ¶ 10; Bonhoff Aff. ¶ 3.) Bonhoff arranged for the supervisors again to visit Friedman, who showed them the affidavit, although she refused to give them a copy. (Taylor Aff. ¶ 11; Bonhoff Aff. ¶ 4-5.) Bonhoff informed his superior, Benjamin Landrum, about these events; Bonhoff and Landrum initiated an investigation by BAC's security office. (Bonhoff Aff. ¶ 6.)

10 The supervisors had discussed the deficiencies with Lyon during a May 8, 1997 meeting. He denied responsibility for them. (Taylor Aff. ¶¶ 4-5.)

The security office then discovered two commendation letters in Lyon's file from Veronica Walker. (Bonhoff Aff. ¶ 7.) The letters, dated October 11 and November 6, 1996, respectively, praised Lyon for his help after an automobile accident. (Letter from Walker to Corum of 10/11/96; Letter from Walker to Landrum of 11/6/96.) The October letter listed Walker's middle initial as D; the November letter listed it as P. Id. The November letter also referred to company specific service awards. Id. Walker informed security investigators that she had not signed nor was familiar with the second letter's contents. (Bonhoff Aff. ¶ 9; Pabst Aff. ¶ 3; Walker Aff. ¶ 4). Security also learned, upon reviewing Lyon's employment application on orders from Bonhoff, that he had omitted from his job application the fact that he was a police officer. (Pabst Aff. ¶ 5; Bonhoff Aff. ¶ 12-13.) Moreover, in early September, Bonnie Key informed Bonhoff that she suspected Lyon had used a subpoena from his attorney to be excused from work. (Key Aff. ¶ 4.) Security learned that Lyon had not been in attendance at court proceedings on the relevant days for which had been excused. (Bonhoff Aff. ¶ 11; Pabst Aff. ¶ 4.) Lyon has submitted no evidence challenging the sequence of these events.¹¹

11 BAC's showing has likewise been less than stellar. Although Taylor states that a commendation letter from a customer for work done on May 5, 1997 sparked his suspicion, that letter does not appear in the record. Nor does he state that that customer letter turned out to be false. Likewise, records of the inspections that revealed the May 5, 1997 deficiencies do not appear in the record. Nor does Nancy Friedman state in her affidavit that she contacted BAC in mid-May 1997. The burden to prove pretext, however, rests with Lyon, who has provided no evidence developing these omissions and showing that the investigation was a pretextual hunt to find a reason to discharge him.

Lyon has argued instead that none of his alleged misconduct was actually true. What matters, however, is not whether the allegations were true but whether BAC believed, in good faith, that they were true, thus rebutting the claim that it discharged Lyon for illegitimate motives. Hawkins v. Pepsico, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (the court should not evaluate whether the reason proffered was "wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination" (internal quotations and citation omitted)). Lyon has not produced evidence indicating that Friedman or Walker informed BAC of information that reasonably should have undermined their interpretation of events.¹² Nor has Lyon provided evidence showing that the investigation was substandard. BAC personnel appear to have followed up their suspicions by interviewing the relevant parties. Last, Lyon has offered no evidence that BAC did not terminate employees outside the protected class who had engaged in the same behavior as Lyon. In sum, even if Lyon could establish a prima facie connection between his complaints in the late winter of 1997 and his termination, he has failed to show that his termination was motivated by retaliatory animus.

12 Lyon himself states that when he visited Walker after his termination, she told him that she had told BAC that she could not remember if she signed the November letter but that she did not write it. (Lyon Dep. at 630.)

B.

The next issue is whether Lyon suffered retaliatory harassment prior to his termination because of his complaints about racial discrimination. Retaliatory harassment can qualify as an adverse employment action if the harassing incidents, taken as a whole, are sufficiently severe or pervasive to alter the terms, conditions or benefits of employment. Von Gunten, 243 F.3d at 869-70. Lyon offers admissible evidence substantiating six instances of alleged retaliation over the course of five months. The events range from the annoying and embarrassing (being scheduled to take a test at the wrong time and being singled out in front of colleagues at a crew meeting) to the more threatening (being disciplined for failing to report for administrative duty and being verbally reprimanded for not working forced overtime). But aside from three of the events, the alleged suspension in early May 1997, the crew meeting incident on May 7, 1997, and the proficiency test scheduling in mid-May 1997, which occurred on the heels of one another, the other three incidents individually are separated by at least a month and, therefore, were not pervasive. Given this time frame, and the nature of the individual events, a reasonable jury could not find that, assuming that the actions taken against him were animated by a retaliatory motive, Lyon was harassed to such an extent that it altered the terms, conditions or benefits of his employment. Accordingly, I grant summary judgment to BAC on Lyon's claim for retaliatory harassment.

II.

Lyon also claims disparate treatment and harassment because of race. Lyon may not pursue racial discrimination claims under Title VII because he failed to exhaust administrative remedies. Before filing a civil suit, a party must file an administrative charge with the relevant federal, state or local agency. Taylor v. Va. Union Univ., 193 F.3d 219, 239 (4th Cir. 1999). The scope of a civil action is limited to those claims that are "reasonably related" to the EEOC charge and that could be expected to follow from a "reasonable administrative investigation." Smith v. First Union Nat'l Bank, 202 F.3d 234, 247-48 (4th Cir. 2000). Lyon filed a completed charge with the EEOC on May 13, 1998. (EEOC Charge of 5/13/98.) He checked only the box for retaliation; he did not check the box for racial discrimination, nor did the narrative of his complaint describe racial discrimination. See Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222-23 (8th Cir. 1994) (holding that racial discrimination claims were not related to retaliation claim where plaintiff marked only the retaliation box and narrative section did not list facts raising issue of discrimination); cf. Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir. 1998) (holding that sexual harassment claim was not related to retaliation claim where plaintiff checked only the retaliation box and narrative section contained no references to sexual harassment). Lyon even cited the specific statutory section prohibiting retaliation. Accordingly, Lyon may not pursue racial discrimination claims under Title VII.

III.

I next consider Lyon's claims for racial discrimination under § 1981. Lyon alludes to a claim of harassment in violation of § 1981. I will recognize this as a claim for being subjected to a racially hostile work environment, which is cognizable under § 1981. Spriggs, 242 F.3d at 183-84. In order to state a claim for a hostile work environment, Lyon must show that a reasonable jury could find the employer's conduct unwelcome, based on race, and sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere. Id. at 183. Lyon presents evidence of a number of incidents of alleged racial harassment. First, in early June of 1996, Lyon overheard Harry Carver, Lyon's then supervisor, comment that he was going to "burn" an African-American coworker. (Lyon Dep. at 309, 311, 580, 591.) Second, on an unspecified date, Lyon overheard Carver say of another African-American coworker that the "nigger is getting on my nerves." (Lyon Dep. at 250, 579.). Third, on August 2, 1996, Lyon was at a customer's home doing repairs when Carver showed up, allegedly took Lyon's safety goggles and forced him to work without them. (Lyon Dep. at 606; Daniel Aff.; Brown Aff.) Fourth, Lyon claimed that Carver used to throw documents at him for Lyon to sign. (Lyon Dep. at 607.) Fifth, in mid-May 1997, Wilson Taylor, referring to Lyon, said "I'm getting tired of his black ass." (Lyon Dep. at 417.) The statute of limitations for filing a § 1981 claim based on events occurring in Maryland is three years. Grattan, 710 F.2d at 162; McNutt, 698 F.2d at 676. Accordingly, any events occurring three years prior to the filing of Lyon's complaint on December 2, 1999 may not be considered in evaluating a hostile work environment claim.¹³ This removes the June 1996 comment and August 1996 incident from consideration. Moreover, Lyon has offered no proof that Carver's epithet or his penchant for throwing papers at Lyon occurred within the relevant time frame. Evidence shows that Carver ceased to be Lyon's supervisor in November 1996. (Landrum Aff. ¶ 6.) This leaves only Taylor's May 1997 "black ass" comment, which, standing alone, is not enough to substantiate a claim for hostile work environment. See McPhaul v. Board of Comm'rs, 226 F.3d 558, 567 (7th Cir. 2000) (noting that isolated racial epithets are not enough to state a claim for hostile work environment). Accordingly, I grant summary judgment to BAC on this claim.

13 Lyon cannot show a continuing violation. The pre-December 1996 conduct and comments involved Carver; the May 1997 incident involved Taylor.

Lyon also alludes to a disparate treatment claim, presumably discriminatory termination. He has adduced no direct evidence that he was fired because of his race. Although Taylor's comment that he was "getting tired of [Lyon's] black ass" is certainly probative of racial animus, (Lyon Dep. at 417), Taylor played no role in the decision to terminate Lyon. (Landrum Aff. ¶ 2; Bonhoff Aff. ¶ 18.) Accordingly, the McDonnell-Douglas proof scheme applies. To establish a prima face case of discriminatory termination, a plaintiff must demonstrate that: (1) he is a member of a protected class; (2) he suffered an adverse employment decision; (3) he was performing his job at a level that met his employer's reasonable expectations; and (4) the position remained open to or was filled by similarly qualified applicants outside the protected class. See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 609 (4th Cir. 1999). Lyon has not presented evidence that his position remained open to or was filled by similarly qualified white applicants, nor has he adduced evidence showing that BAC's reasons for firing him were a pretext for racial discrimination. Accordingly, BAC is entitled to summary judgment on Lyon's claim for discriminatory termination under § 1981.

IV.

In ruling on BAC's summary judgment motion, I have not considered the evidence Lyon seeks to exclude by his motion in limine. Since none of Lyon's claims have survived my summary judgment rulings, Lyon's motion in limine will be denied as moot.

An order effectuating the rulings made in this Memorandum is being entered herewith.

ORDER

For the reasons stated in the accompanying Opinion, it is, this 19th day of July, 2001, hereby ORDERED that:

1. Plaintiff's Request for Leave to File Surreply to Defendants' Motion for Summary Judgment is GRANTED;

2. Plaintiff's Motion in Limine is DENIED as moot;

3. Defendants' Motion for Summary Judgment is GRANTED; and

4. Judgment is entered in favor of Defendants.

(finding direct evidence of retaliation where, inter alia, plaintiff presented evidence that a manager told employee that he was fired because he initiated a sexual harassment complaint on behalf of another employee and that manager previously had stated that he thought the complaint was fabricated).