Opinion
Civil Action 2:20-01144-RMG-MGB
10-25-2021
Joel Washington, Plaintiff, v. The Boeing Company, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action alleging race discrimination, hostile work environment, and retaliation in violation of 42 U.S.C. § 1981. This matter is now before the Court upon Defendant's Partial Motion for Summary Judgment. (Dkt. No. 65.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that Defendant's Partial Motion for Summary Judgment (Dkt. No. 65) be granted.
BACKGROUND
Plaintiff is a black male. (Dkt. No. 69 at 3.) He began working for Defendant as an aircraft painter in January of 2017. (Dkt. No. 65 at 2; Dkt. No. 69 at 3.) Defendant has two paint departments: the Component Paint Department and the Decorative Paint Department. (Dkt. No. 65 at 2-3; Dkt. No. 69 at 3.) Plaintiff began his career in the Component Paint Department but later moved into the Decorative Paint Department. (Dkt. No. 65 at 2-3; Dkt. No. 69 at 3.) According to Defendant, the Component Paint Department sometimes experienced increased production demands and backlogs of work. 1 (Dkt. No. 65 at 3-4.) During those times, workers from the Decorative Paint Department were sent to the Component Paint Department to help that department meet its goals. (Id.)
Plaintiff claims that he began experiencing harassment and discrimination when Eric Infinger became his manager in the Decorative Paint Department. (Dkt. No. 69 at 3-4.) Specifically, Plaintiff claims that Mr. Infinger subjected him to derogatory language and closely monitored Plaintiff's work. (Dkt. No. 36 at 3-4; Dkt. No. 69 at 3-4.) Plaintiff claims that this harassment and discrimination was “perpetuated by” Joseph Windham, another one of Plaintiff's managers. (Dkt. No. 69 at 4.) Plaintiff claims that he was passed over for a promotion due to Mr. Windham's “discriminatory action” in “delay[ing] approving Plaintiff's promotion although he was eligible.” (Dkt. No. 36 at 2; Dkt. No. 69 at 4.) Plaintiff also alleges that Mr. Windham issued unfair Corrective Action Memos to him. (Dkt. No. 36 at 2-3; Dkt. No. 69 at 4-5.)
In addition, Plaintiff alleges that he was sent to the Component Paint Department on various occasions. (Dkt. No. 36 at 3; Dkt. No. 69 at 5.) He claims that this was “a punishment given to himself and his African American coworkers” because the conditions in the Component Paint Department were hot and dirty. (Dkt. No. 69 at 5.) He further claims that he “would have to work full shifts sanding, while Caucasian workers did not.” (Id.) Plaintiff asserts that he reported these actions several times, including to Defendant's Human Resources Department, but nothing was done. (Id. at 5-6.) Plaintiff contends that Defendant did not adequately address his complaints and that they were not thoroughly investigated. (Id.) He further contends that “Defendant retaliated against [him] by practicing a continuing pattern of animus, harassment, and denial of 2 opportunities and relocations” after he “informed Defendant of the racial harassment and mistreatment that [he] [] was exposed to.” (Dkt. No. 36 at 7.)
Plaintiff alleges that Defendant's unfair treatment is motivated by race-based discrimination. (See generally Dkt. No. 36; Dkt. No. 69.) He claims that Defendant's actions have caused him to “suffer[] tremendously in terms of his mental, physical, and emotional heath, as well as suffering other ongoing actual and compensatory damages.” (Dkt. No. 36 at 3.) Thus, he filed the instant civil action. (See generally Dkt. No. 36.)
PROCEDURAL HISTORY
Plaintiff, along with three co-Plaintiffs (Donta Alston, Kevin Austin, and Jonathan Bennett), filed an initial complaint against Defendant on September 24, 2019. (Dkt. No. 1.) The initial complaint alleged race discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981, breach of contract, breach of contract accompanied by a fraudulent act, and promissory estoppel. (Dkt. No. 2.) On March 24, 2020, this Court ordered that the claims be severed into four separate actions, noting that each Plaintiff should file an amended complaint. (Dkt. No. 1.) Plaintiff filed his Amended Complaint on May 5, 2020. (Dkt. No. 6.) After requesting and receiving leave from the Court, Plaintiff filed a Second Amended Complaint on September 11, 2020, eliminating his promissory estoppel claim. (Dkt. No. 36.)
The original complaint also included a claim for workers' compensation retaliation on behalf of Plaintiff Austin. (Dkt. No. 2 at 11.)
On September 25, 2020, Defendant filed a Motion to Dismiss Plaintiff's Second Amended Complaint. (Dkt. No. 37.) On January 14, 2021, the Court granted in part and denied in part Defendant's Motion to Dismiss. (Dkt. No. 56.) In doing so, the Court dismissed Plaintiff's claims for breach of contract and breach of contract accompanied by 3 a fraudulent act. (Id.) Accordingly, only Plaintiff's claims for race discrimination, hostile work environment, and retaliation in violation of 42 U.S.C. § 1981 remain.
Now before the Court is Defendant's Partial Motion for Summary Judgment, which was filed on April 19, 2021. (Dkt. No. 65.) After requesting and receiving an extension of time, Plaintiff filed his response in opposition to Defendant's motion on June 1, 2021. (Dkt. No. 69.) Defendant replied to Plaintiff's response on June 14, 2021. (Dkt. No. 72.) As such, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“As the moving party, Defendant[] [is] required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts 4 showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiff[] may not rest on mere allegations or denials; [she] must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cty. of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “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.” Anderson, 477 U.S. at 248. 5
DISCUSSION
Defendant asserts that it is entitled to summary judgment on Plaintiff's discrimination and retaliation claims. (Dkt. No. 65 at 12-28; Dkt. No. 72 at 5-15.) By contrast, Plaintiff contends that genuine issues of material fact exist as to each of these claims and that summary judgment is therefore inappropriate. (Dkt. No. 69 at 7-18.) For the reasons set forth below, the undersigned finds that Plaintiff's discrimination and retaliation claims fail as a matter of law and recommends that the Court grant Defendant's Partial Motion for Summary Judgment.
As Defendant correctly notes, Plaintiff's Second Amended Complaint seems to make claims of race discrimination “premised on his promotion from Level A to Level B Aircraft Painter and the Corrective Action Memo (“CAM”) he received for violating Boeing's high hazard safety protocols” and claims of retaliation “related to two CAMs he received in 2020 and special paint assignments in Texas.” (Dkt. No. 72 at 6.) He also seems to contend that his promotion was discriminatorily delayed. (Dkt. No. 36 at 2.) However, Plaintiff does not address these claims in his response brief. (See generally Dkt. No. 69.) Because Plaintiff provides no opposition to Defendant's arguments relating to such claims, the undersigned must assume that Plaintiff has abandoned them. See Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in opposition memorandum had been abandoned). The undersigned limits the discussion of Plaintiff's claims accordingly.
Section 1981 states that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. Plaintiff brings a race discrimination claim against Defendant under this statute. A plaintiff may prove a § 1981 race discrimination claim through “direct or circumstantial evidence showing that an adverse employment action was [caused] by intentional discrimination aimed at the plaintiff's [race], ” or through the “burden-shifting framework” of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 171 (4th Cir. 2020), as amended (Oct. 16, 2020) (referencing Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 6 208, 216 (4th Cir. 2016)). It appears undisputed that Plaintiff has not provided direct evidence of discrimination or retaliation. (See generally Dkt. No. 65; Dkt. No. 69; Dkt. No. 72.) Indeed, both parties have analyzed Plaintiff's discrimination and retaliation claims using the McDonnell Douglas framework. (See generally Dkt. No. 65; Dkt. No. 69; Dkt. No. 72.) The undersigned has therefore evaluated Plaintiff's claims under the same. See Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019) (referencing Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005)) (Title VII context); Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (extending Title VII requirements to § 1981 discrimination claim).
Under the McDonnell Douglas paradigm, the plaintiff must first establish the elements of a prima facie discrimination claim. Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719 (D.S.C. 2014). A prima facie case for race discrimination under § 1981 requires that: (1) the plaintiff is a member of a protected class; (2) the plaintiff performed his job in a satisfactory manner; (3) the plaintiff was subjected to an adverse employment action; and (4) the plaintiff was treated differently than similarly situated individuals outside of his protected class. See Flowers v. International Longshoreman's Ass'n Local 1422, No. 2:19-cv-00254-DCN-MGB, 2019 WL 6093255, at *9 (D.S.C. June 4, 2019), adopted sub nom. Flowers v. International Longshoremen's Ass'n Local 1422, No. 2:19-cv-00254-DCN, 2019 WL 3927444 (D.S.C. Aug. 20, 2019) (citing Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012)); see also Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998) (citing Gairola v. Virginia Dep't of Gen. 7 Servs., 753 F.2d 1281, 1285 (4th Cir. 1985)) (noting that the elements required to establish a prima facie case are the same under Title VII and § 1981).
If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant “to show a legitimate, nondiscriminatory reason” for the adverse employment action. Ferguson, 18 F.Supp.3d at 719. If the defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the burden is then on the plaintiff to demonstrate that the defendant's asserted reasons “are a mere pretext for its true discriminatory motives.” See Id. (referencing McDonnell Douglas Corp., 411 U.S. at 802-05). In order to do that, the plaintiff must come forward with evidence showing that the employer's reason for the adverse employment action was false, and that discrimination was the real reason. See Collins v. Charleston Place, LLC, No. 2:15-cv-4465-PMD-BM, 2017 WL 3167330, at *2 (D.S.C. July 26, 2017), aff'd, 720 Fed.Appx. 701 (4th Cir. 2018). “[The plaintiff] must prove both because ‘[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'” See Id. (referencing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993)) (emphasis in original).
Here, Plaintiff's discrimination claim is based on his assignment to the Component Paint Department and the duties he performed while working there. (Dkt. No. 69 at 7-17.) Plaintiff contends that working in the Component Paint Department constitutes adverse action because he performed less-desirable tasks while there. (Id. at 9-10.) Specifically, Plaintiff argues that he was “made to perform some of the harshest work in Component, including janitorial duties” and sanding. (Id. at 11.) He argues that his work assignments in the Component Paint Department were a significant decrease in 8 responsibility from his duties in the Decorative Paint Department. (Id. at 9-11.) He further contends that he was treated differently than his similarly situated Caucasian employees because “the groups sent to [the] Component Paint Shop would consist[] of either entirely African American painters, or majority African American painters.” (Id. at 11-13.) Defendant, on the other hand, contends that Plaintiff's assignments in the Component Paint Department were not sufficiently adverse. (Dkt. No. 65 at 12-20; Dkt. No. 72 at 6-14.)
Because it is undisputed that Plaintiff is a member of a protected class and that he performed his job in a satisfactory manner at all times relevant to this case, the undersigned need not address those elements of Plaintiff's prima facie case of discrimination. For the reasons set forth below, the undersigned finds that Plaintiff cannot demonstrate that he experienced an adverse employment action. The undersigned therefore recommends that the Court grant Defendant's Partial Motion for Summary Judgment as to his discrimination claim.
“[An] adverse employment action is ‘an absolute precondition' to an employment discrimination suit.” Batten v. Grand Strand Dermatology, LLC, No. 4:18-cv-0616-MGL-TER, 2019 WL 9667692, at *6 (D.S.C. Dec. 20, 2019) (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). However, not every personnel decision constitutes an adverse employment action for purposes of a discrimination claim. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 570 (D.S.C. 2013); see also Thorn v. Sebelius, 766 F.Supp.2d 585, 599 (D. Md. 2011), aff'd, 465 Fed.Appx. 274 (4th Cir. 2012) (“[N]ot everything that makes an employee unhappy is actionable adverse action.”). Rather, an adverse employment action is explicitly limited to those actions that 9 affect employment or alter the conditions of the workplace. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006).
In other words, an alleged discriminatory act must “adversely affect[] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation omitted). “Typical examples of adverse employment actions include ‘discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, [and] reduced opportunities for promotion.'” Cole v. Wake Cty. Bd. of Educ., 494 F.Supp.3d 338, 345 (E.D. N.C. 2020), aff'd, 834 Fed.Appx. 820 (4th Cir. 2021), cert. denied sub nom. Cole v. Wake Cty. BD. of ED., No. 20-1373, 2021 WL 2302100 (U.S. June 7, 2021) (quoting Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999)). Less severe employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization” in order to survive summary judgment. Blakney v. N. Carolina A&T State Univ., No. 1:17-cv-874, 2019 WL 1284006, at *15 (M.D. N.C. Mar. 20, 2019) (referencing Boone, 178 F.3d at 256-57). Ultimately, an adverse employment action must have a “significant detrimental effect” on the employee in order to be cognizable. Laird v. Fairfax Cty., Va., 978 F.3d 887, 893 (4th Cir. 2020) (quoting Holland, 487 F.3d at 219).
As noted, Plaintiff contends that African American employees were disproportionately assigned to work in the Component Paint Department and made to perform less-desirable duties while there. (Dkt. No. 69 at 9-13.) Plaintiff asserts that he was required to sand and do janitorial work for other employees when assigned to the Component Paint Department. (Id. at 10-11.) He claims that his Caucasian counterparts 10 did not do any work on the days he was assigned to assist in the Component Paint Department. (Id. at 10, citing to Dkt. No. 65-2 at 30.) Plaintiff contends that a reasonable juror could therefore find that Plaintiff was assigned “significantly different job duties, with reduced responsibilities and opportunities.” (Id. at 10.) Plaintiff further contends that his assignment to the Component Paint Department was discriminatory because the Component Paint Department was “the building no one really want[ed] to work in” because it was hot and dirty. (Dkt. No. 65-2 at 58.)
Plaintiff cites to his own deposition testimony, deposition testimony from Kevin Austin, and sworn affidavits from Ivory Jackson, Anthony Leonard, and Ira Hughes to support his contentions. (Dkt. No. 69 at 10.) The evidence to which Plaintiff cites reiterates that certain employees did not enjoy working in the Component Paint Department, and that African American employees were required to clean up and to sand while working there. (Dkt. No. 69-5 at 3; Dkt. No. 69-8 at 3, 6; Dkt. No. 69-9 at 3; Dkt. No. 69-10 at 2.)
The affidavits from Ivory Jackson, Anthony Leonard, and Ira Hughes state that African American employees were asked to clean up after Caucasian employees specifically. (Dkt. No. 69-5 at 3; Dkt. No. 69-9 at 3; Dkt. No. 69-10 at 2.)
However, even considering the evidence in the light most favorable to Plaintiff, he cannot show that his assignments to the Component Paint Department had a significant detrimental effect on his employment. At the outset, the undersigned notes that Plaintiff's assignments to the Component Paint Department were temporary. (Dkt. No. 69-2 at 30, 59; Dkt. No. 65-4 at 6, 9-10.) Indeed, the record reflects that Plaintiff worked in the Component Paint Department only sporadically throughout the relevant 11 period. (See generally Dkt. No. 65-4.) For example, Plaintiff's work records show that he was assigned to the Component Paint Department for 11.7% of his total hours worked while supervised by Mr. Windham in 2017, and 6.7% of his total hours worked while supervised by Mr. Infinger in 2018. (Dkt. No. 65 at 14-15; Dkt. No. 65-4 at 2-3, 6, 9.) In all of 2019 (while Plaintiff was again supervised by Mr. Windham), Plaintiff worked in the Component Paint Department for a total of 8.3 hours. (Dkt. No. 65 at 15; Dkt. No. 65-4 at 37.)
As noted, Plaintiff alleges that he was discriminated against by Mr. Infinger and Mr. Windham. (See generally Dkt. No. 36; Dkt. No. 69.) He does not allege that he was discriminated against by any of Defendant's other employees. (See generally Dkt. No. 36; Dkt. No. 69.) Thus, only the periods of time during which Plaintiff reported to Mr. Infinger and/or Mr. Windham are relevant for purposes of Plaintiff's discrimination claim because those are the only periods of time during which Mr. Infinger and Mr. Windham could have discriminated against him by assigning him to the Component Paint Department. The undersigned has limited the discussion of the record evidence relating to Plaintiff's discrimination claims accordingly.
Further, Plaintiff testified that he was assigned to the Component Paint Department “six or seven times a month” beginning in 2017 and lasting through 2019. (Dkt. No. 65-2 at 30.) He later testified that he was sent to work in the Component Paint Department “almost a dozen times per month” throughout this same period. (Id. at 59.) He does not, however, contend that he was permanently reassigned or transferred to the Component Paint Department. (See generally Dkt. No. 65-1; Dkt. No. 69; Dkt. No. 69-2.) Thus, even considering the record evidence in the light most favorable to Plaintiff and assuming that he was assigned to the Component Paint Department twelve times each month for several years, he cannot establish the third prong of his prima facie discrimination claim due to the temporary nature of those assignments. See, e.g., Haggins v. Sam's E., Inc., No. 3:13-cv-1596-MBS, 2015 WL 5781390, at *8 (D.S.C. Sept. 30, 2015) (“Temporary changes to assigned tasks or workload are not adverse employment actions.”); Taylor v. Burwell, No. PWG-13-1998, 2014 WL 3547337, at *6 (D. Md. July 12 16, 2014) (“Courts regularly have found that temporary changes to an employee's workload or to the tasks he is assigned do not constitute an adverse employment action”); Balinao v. Gonzales, No. 9:06-cv-0254-PMD-GCK, 2007 WL 5307975, at *8 (D.S.C. Aug. 16, 2007), aff'd sub nom. Balinao v. Mukasey, 270 Fed.Appx. 260 (4th Cir. 2008) (stating that “[a] temporary assignment of undesirable duties does not constitute an adverse employment action” (internal quotation marks and citation omitted)).
Moreover, the record does not reflect that Plaintiff's assignments to the Component Paint Department involved a significant change in his job responsibilities. Though Plaintiff testified that his job duties in the Component Paint Department required “more sanding, ” (Dkt. No. 65-2 at 27), he does not contest that sanding was already a required part of his job in the Decorative Paint Department. (See generally Dkt. No. 65-2; Dkt. No. 69; Dkt. No. 69-2.) In fact, Robert Jernigan stated in a sworn declaration that employees in the Decorative Paint Department performed many of the same functions as those in the Component Paint Department-including “sanding, masking, [and] demasking.” (Dkt. No. 65-3 at 2.) Mr. Jernigan also explained that:
All painters are required to participate in clean-as-you-go activities while they perform their work and at the end of each shift. The clean-as-you-go principles are outlined in Boeing's Foreign Object Debris/Damage (“FOD”) Prevention Policy, which sets standards for cleanliness of specific work areas to ensure that debris, and other trash does not become entrapped in the airplane, causing catastrophic damage and/or contamination of certain areas of the airplane. This policy requires painters to clean their immediate work areas and specifically instructs employees to use brooms and other tools to clean their immediate work spaces. Painters are also required to pick up their trash as part of this work process.13 (Id. at 5.) Thus, “janitorial duties” and sanding both fall within the scope of Plaintiff's normal job duties in the Decorative Paint Department. (Dkt. No. 72 at 10.)
For this reason, the undersigned finds Plaintiff's argument that his work in the Component Paint Department was “especially onerous or humiliating” unpersuasive. (Dkt. No. 69 at 10.) Indeed, the “onerous and humiliating” tasks about which he complains were part of his job in the Decorative Paint Department, as well. (See generally Dkt. No. 65-3.)
Based on the above, Plaintiff would have been required to perform duties similar to those he performed in the Decorative Paint Department when he was assigned to the Component Paint Department. (See generally id.) Even assuming that Plaintiff was required to do more of the less-desirable tasks like cleaning and sanding while working in the Component Paint Department, his assignments to that department would not entail a significant change in his job responsibilities. See Vedula v. Azar, No. 8:18-cv-0386-TDC, 2020 WL 5500279, at *9 (D. Md. Sept. 11, 2020) (finding no adverse employment action where “additional” work assignments were “largely memorialized duties and responsibilities that were already required of employees in [plaintiff's] position”).
Most pertinently, Plaintiff has provided no evidence that his assignments to the Component Paint Department had a negative impact on his pay, his potential for continued employment, or his ability to be promoted. Blakney, 2019 WL 1284006, at *15 (referencing Boone, 178 F.3d at 256-57) (noting that adverse employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization”). By contrast, Defendant has provided evidence that Plaintiff received four pay increases (totaling approximately $15,000) and a promotion during the relevant period, negating any contention that Plaintiff's temporary assignments to the Component Paint Department stripped him of responsibility or limited his opportunity to advance. (See generally Dkt. No. 65-1.) 14
Ultimately, Plaintiff has failed to show that working in the Component Paint Department had any “significant detrimental effect” on his employment. Laird, 978 F.3d at 893 (quoting Holland, 487 F.3d at 219); see Wandji v. Wilkie, No. 2:18-cv-03036-RMG-MGB, 2020 WL 7647552, at *16 (D.S.C. Nov. 9, 2020), adopted, 2020 WL 7237922 (D.S.C. Dec. 9, 2020), aff'd sub nom. Wandji v. McDonough, 850 Fed.Appx. 851 (4th Cir. 2021) (noting that plaintiff's “temporary re-orientation” did not constitute a material job change because plaintiff continued to perform many of his previous duties, returned to those duties following his re-orientation, and the re-orientation did not result in a change to his job title or overall level of responsibility); see also Cole, 494 F.Supp.3d at 345 (“When analyzing a transfer or reassignment, the mere fact that a new job assignment is less appealing to the employee . . . does not constitute adverse employment action.” (internal quotation marks and citation omitted)); White v. City of Annapolis (MD), No. CIV. JFM-13-1330, 2015 WL 5009853, at *16 (D. Md. Aug. 21, 2015), aff'd sub nom. White v. City of Annapolis, Md., 639 Fed.Appx. 209 (4th Cir. 2016) (determining that plaintiff could not prove that his “degrading assignments” were adverse employment actions because he failed to show that they had a tangible effect on the terms and conditions of employment or that he suffered humiliation as a result); Grimsley v. Marshalls of MA, Inc., 284 Fed.Appx. 604, 2008 WL 2435582, at *4 (11th Cir. 2008) (“Although Grimsley's workload sometimes increased and he was occasionally assigned additional tasks, these kinds of temporary assignments, without a change in compensation or position, do not amount to a serious and material change in the terms, conditions, or privileges of employment.” (internal quotation marks and citation omitted)). Accordingly, Plaintiff cannot establish the third prong of his prima facie case of race discrimination 15 under § 1981, and the undersigned therefore recommends that Defendant's Partial Motion for Summary Judgment be granted as to this claim.
II. Retaliation
Plaintiff also brings a retaliation claim under § 1981. (Dkt. No. 36 at 7.) As noted, it is undisputed that Plaintiff has not presented direct evidence of retaliation in this case. Thus, the undersigned again analyzes Plaintiff's claims pursuant to the familiar McDonnell Douglas framework. See Perkins, 936 F.3d at 206 n.4 (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015)); Parks v. Louisiana-Pac. Corp., 400 F.Supp.3d 393, 412 (W.D. N.C. 2019), appeal dismissed, No. 19-2015, 2020 WL 1283635 (4th Cir. Feb. 20, 2020) (“Courts analyze race discrimination and retaliation claims filed under 42 U.S.C. § 1981 using the [McDonnell Douglas] burden-shifting framework.”)
Under this framework, the plaintiff must first make a prima facie showing of retaliation by proving that: (1) he engaged in a protected activity; (2) his employer took a materially adverse action against him; and (3) there was a causal link between the two events. Perkins, 936 F.3d at 213; Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (“A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements [as a Title VII retaliation claim].”). Under § 1981, “an employee opposes race discrimination when she ‘communicates to her employer a belief that the employer has engaged in' such discrimination.” Ali, 832 Fed.Appx. at 172 (quoting Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009)). An employee is protected from retaliation for reporting both “employment actions actually unlawful under [§ 1981]” and “employment actions she reasonably believes to be 16 unlawful.” Id. (quoting Boyer-Liberto, 786 F.3d at 282). “In line with other § 1981 claims, to state a § 1981 retaliation claim, a plaintiff must allege facts rendering it plausible that, but for her participation in protected activity, she would not have suffered a materially adverse action.” Id. at 172-73 (citing Guessous, 828 F.3d at 217- 18; Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020)).
If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Marzett v. Charleston Cty. Sch. Dist., No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *10 (D.S.C. Jan. 27, 2017), adopted, 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd, 697 Fed.Appx. 186 (4th Cir. 2017) (referencing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998)). The plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id.
Here, Plaintiff alleges that “Defendant retaliated against [him] by practicing a continuing pattern of animus, harassment, and denial of opportunities and relocations” after he “informed Defendant of the racial harassment and mistreatment that [he] [] was exposed to.” (Dkt. No. 36 at 7.) Plaintiff contends that he complained about race-based discrimination and harassment, but his complaints were not properly addressed. (Dkt. No. 36 at 2; Dkt. No. 69 at 17.) Plaintiff further contends that he specifically complained about Mr. Windham and Mr. Infinger to Defendant's Human Resources Department. (Dkt. No. 69 at 17.) Plaintiff argues that Defendant retaliated against him for making these complaints by assigning him to work in the Component Paint Department where he 17 performed less-desirable tasks than he would have in the Decorative Paint Department. (Id. at 17-18.) In response, Defendant argues that Plaintiff lacks any cognizable timeline that would establish a causal connection between his protected activity and any alleged adverse action.” (Dkt. No. 72 at 14.) Defendant further contends that “the same defects that plague [Plaintiff's] discrimination claim also prove fatal to his claim of retaliation.” (Id. at 15.) Defendant asserts that Plaintiff therefore “lacks the requisite evidence needed to prove his claim.” (Id.)
It appears undisputed that Plaintiff engaged in protected activity when he complained to Defendant's Human Resources Department about racially discriminatory and harassing behavior. (See generally Dkt. No. 65; Dkt. No. 69; Dkt. No. 72.) Thus, the undersigned need not address the first element of Plaintiff's retaliation claim and limits the remaining discussion accordingly.
With respect to the second element of Plaintiff's retaliation claim, the undersigned notes that the “materially adverse action” standard differs from the “adverse employment action” standard required for discrimination claims. See Perkins, 936 F.3d at 213 (referencing Burlington, 548 U.S. at 61-68 for redefining the second prima facie element of Title VII retaliation); Boyer-Liberto, 786 F.3d at 281 (noting that the elements of a prima facie retaliation claim are the same under § 1981 as under Title VII). Indeed, the anti-retaliation provision extends beyond retaliatory acts in the workplace, such that the plaintiff need only show “that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'” See Id. (referencing Burlington, 548 U.S. at 68). Viewing Plaintiff's allegations under this 18 broader standard, the undersigned finds that Plaintiff's assignments to the Component Paint Department cannot be considered materially adverse for many of the same reasons that such assignments cannot be considered adverse employment actions. (See supra at 11-15.) Most pertinently, Plaintiff's less-desirable assignments to the Component Paint Department were temporary and had no impact on his pay or promotion opportunities. McLaughlin v. Barr, No. 1:19-cv-318, 2020 WL 869914, at *11 (M.D. N.C. Feb. 21, 2020) (finding that a temporary change in the plaintiff's job duties did not constitute a materially adverse action where plaintiff failed to allege any detrimental effect on her employment, other than the reassignment itself). Nonetheless-even assuming that Plaintiff's assignments to the Component Paint Department could be considered materially adverse-Plaintiff cannot demonstrate a causal connection between those assignments and his protected complaints.
As noted, Plaintiff must show that the decisionmaker responsible for an alleged retaliatory act had knowledge that he engaged in protected activity and retaliated against him because of that protected activity in order to establish a causal connection. See Ali, 832 Fed.Appx. at 172-73 (citing Guessous, 828 F.3d at 217-18; Comcast Corp., 140 S.Ct. at 1019); see also Holland, 487 F.3d at 218. In an attempt to make this showing, Plaintiff points to personal deposition testimony stating that he was assigned to the Component Paint Department more often following his protected complaints. (Dkt. No. 69 at 18.) However, he provides no citation to this testimony and the undersigned cannot locate the referenced testimony in the record. (Id.) Regardless, Plaintiff directs the Court to no evidence indicating that he actually made his protected complaints prior to any of his 19 assignments to the Component Paint Department, or that he was assigned to the Component Paint Department because of those complaints. (Id. at 5-6, 17-18.) Without more, the undersigned simply cannot draw a reasonable inference that Defendant retaliated against Plaintiff by sending him to work in the Component Paint Department. See Nat'l Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) (finding “self-serving affidavit” insufficient to defeat motion for summary judgment); Mackey v. Shalala, 360 F.3d 463, 469-70 (4th Cir. 2004) (“A plaintiffs own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination.”); Wilson v. Wal-Mart, Inc., No. 3:15-cv-1157-JFA, 2016 WL 3086929, at *3 (D.S.C. June 2, 2016) (“Uncorroborated and self-serving testimony cannot give rise to a genuine factual dispute.”).
Plaintiff provides no evidence of his protected complaints, as the record does not seem to contain any of the testimony to which Plaintiff cites regarding such complaints. (Dkt. No. 69 at 5-6, 17-18.)
Based on the above, Plaintiff cannot set forth a prima facie case of retaliation. The undersigned therefore recommends that Defendant's Partial Motion for Summary Judgement be granted as to Plaintiffs retaliation claim.
Accordingly, Plaintiff has one remaining cause of action against Defendant: hostile work environment in violation of 42 U.S.C. § 1981. (See generally Dkt. No. 36.)
CONCLUSION
Based on the foregoing, the undersigned recommends that the Court grant Defendant's Partial Motion for Summary Judgment. (Dkt. No. 65.)
IT IS SO RECOMMENDED. 20