Opinion
Civil Action 2:19-02713-RMG-MGB
10-25-2021
Donta Alston, Plaintiff, v. The Boeing Company, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER 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 Motion for Summary Judgment. (Dkt. No. 83.) 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 Motion for Summary Judgment (Dkt. No. 83) be granted.
BACKGROUND
Plaintiff is a black male. (Dkt. No. 87 at 1.) He began working for Defendant as a Level A Aircraft Painter in October of 2016. (Dkt. No. 83 at 2; Dkt. No. 87 at 1.) In this role, Plaintiff performed various duties, including sanding aircraft surfaces, prepping aircraft barrels, and painting base coats. (Dkt. No. 83 at 2; Dkt. No. 87 at 1.) Prior to his employment with Defendant, Plaintiff painted military vehicles. (Dkt. No. 83 at 2; Dkt. No. 87 at 1.) He believes that he was entitled to a higher-level position than a Level A Painter, based on this experience. (Dkt. No. 87 at 1.) Plaintiff claims that he applied for higher-level positions (both Level B and Level C) but was told that those positions were 1 unavailable. (Id. at 1-2.) Plaintiff claims that several employees were hired as Level B Aircraft Painters soon after he began working as a Level A Aircraft Painter. (Id. at 2.) Plaintiff alleges that Defendant misled him and intentionally did not hire him for these available higher-level positions. (Id.)
Plaintiff further alleges that he was unfairly required to train newly hired Level B and Level C Aircraft Painters. (Dkt. No. 56 at 2; Dkt. No. 87 at 2.) He claims that these Level B and Level C Aircraft Painters were less qualified than him, and that they were largely Caucasian. (Dkt. No. 56 at 2; Dkt. No. 87 at 2-3.) He further claims that, as a Level A Painter, he made less money than the Level B and Level C Painters he was required to train, even though he had more experience and knowledge than they did. (Dkt. No. 56 at 2; Dkt. No. 87 at 3.) Plaintiff alleges that he complained about this disparity to his supervisor, Mr. Robert Jernigan, on several occasions. (Dkt. No. 56 at 2; Dkt. No. 87 at 2-3.) Plaintiff alleges that Mr. Jernigan “responded by telling [Plaintiff] not to worry about the money, and threatened to write him up for insubordination if he did not continue training painters.” (Dkt. No. 56 at 2; Dkt. No. 87 at 3.)
In October of 2017, Plaintiff was promoted to a Level B Aircraft Painter. (Dkt. No. 83 at 8; Dkt. No. 87 at 3.) Plaintiff claims that he was “paid as a low, Level B Painter, although he was performing the work of [a] Level C Painter.” (Dkt. No. 87 at 3.) Plaintiff alleges that he complained about being underpaid several times throughout his employment as a Level B Painter. (Dkt. No. 56 at 2; Dkt. No. 87 at 3.) Specifically, Plaintiff claims that he complained to: Mr. Jernigan; other managers, including Charles Little and Randy Wilson; and an employee in Human Resources, Lisa Sprinkle. (Dkt. No. 2 87 at 3.) Plaintiff claims that his complaints were “rebuffed” and that his concerns “fell on deaf ears.” (Dkt. No. 56 at 2.)
In January of 2020, Plaintiff “finally received a Level C promotion.” (Dkt. No. 87 at 3.) However, Plaintiff claims that around the same time, “Defendant filled the Manager position in [the] Paint Department, without posting the job vacancy, or otherwise notifying Plaintiff of the position.” (Dkt. No. 56 at 2.) According to Plaintiff, “a lesser qualified, Caucasian employee, who Plaintiff trained, was hired for the Manager position” and “Defendant's purposeful denial of this promotional opportunity was in direct retaliation of Plaintiff's prior complaints.” (Id.) Plaintiff claims that, based on Defendant's unfair treatment, he did not “see himself advancing in the Paint Department” and therefore took a job as a Level B Production Acceptance Specialist for the Paint Quality Department in December of 2020, “despite the possible salary cut.” (Dkt. No. 87 at 3-4.)
Plaintiff contends that Defendant's unfair treatment is a result of race-based discrimination. (See generally Dkt. No. 56; Dkt. No. 87.) He claims that Defendant's actions have “caused him and [] still [] caus[e] him to suffer tremendous damages in terms of his physical, mental, and emotional heath, as well as suffering other ongoing actual and compensatory damages.” (Dkt. No. 56 at 2.) Thus, he filed the instant civil action. (See generally Dkt. No. 56.)
PROCEDURAL HISTORY
Plaintiff, along with three co-Plaintiffs (Kevin Austin, Jonathan Bennett, and Joel Washington), filed an initial complaint against Defendant on September 24, 2019. (Dkt. No. 1.) The initial complaint alleged race discrimination, hostile work environment and 3 retaliation in violation of 42 U.S.C. § 1981, breach of contract, breach of contract accompanied by a fraudulent act, and promissory estoppel. (Id.) 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. 24.) Plaintiff filed his Amended Complaint on May 5, 2020. (Dkt. No. 29.) 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. 56.)
The original complaint also included a claim for workers' compensation retaliation on behalf of Plaintiff Austin. (Dkt. No. 1 at 11.)
On September 25, 2020, Defendant filed a Motion to Dismiss Plaintiff's Second Amended Complaint. (Dkt. No. 57.) On January 25, 2021, the Court granted in part and denied in part Defendant's Motion to Dismiss. (Dkt. No. 75.) In doing so, the Court dismissed Plaintiff's claims for breach of contract and breach of contract accompanied by 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 Motion for Summary Judgment, which was filed on April 19, 2021. (Dkt. No. 83.) After requesting and receiving an extension of time, Plaintiff filed his response in opposition to Defendant's motion on June 1, 2021. (Dkt. No. 87.) Defendant replied to Plaintiff's response on June 14, 2021. (Dkt. No. 89.) 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. 4 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 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 5 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.
DISCUSSION
Defendant asserts that it is entitled to summary judgment on each of Plaintiff's remaining claims. (See generally Dkt. No. 83.) More specifically, Defendant contends that: (1) Plaintiff's race discrimination claim fails because he cannot identify an adverse employment action and because he has not provided sufficient comparator evidence; (2) Plaintiff's retaliation claim fails because he did not engage in protected activity; and (3) Plaintiff's hostile work environment claim fails because he cannot show that he experienced sufficiently severe or pervasive harassment. (Dkt. No. 83 at 12-26.) By contrast, Plaintiff contends that genuine issues of material fact exist as to each of his claims and that summary judgment is therefore inappropriate. (Dkt. No. 87 at 5-18.) For the reasons set forth below, the undersigned finds that Plaintiff's claims fail as a matter of law and therefore recommends that Defendant's Motion for Summary Judgment be granted in full. 6
In his Second Amended Complaint, Plaintiff indicates that he was paid less than his Caucasian employees and suggests that his lower pay was the result of racial bias. (See generally Dkt. No. 56.) Though Defendant's Motion for Summary Judgment addresses Plaintiff's complaints regarding disparate pay, Plaintiff's response in opposition to Defendant's motion does not. (See generally Dkt. No. 83; Dkt. No. 87.) Thus, the undersigned must assume that Plaintiff has abandoned any disparate pay claims he intended to bring. 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). Even if the Court were to conclude that Plaintiff has not abandoned such claims, the record reflects that Plaintiff was not actually paid less than his similarly-situated Caucasian co-workers. (See generally Dkt. No. 83-2; Dkt. No. 83-3.)
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 208, 216 (4th Cir. 2016)). It appears undisputed that Plaintiff has not provided direct evidence of discrimination or retaliation. (See generally Dkt. No. 83; Dkt. No. 87; Dkt. No. 89.) Indeed, both parties have analyzed Plaintiff's discrimination and retaliation claims using the McDonnell Douglas framework. (See generally Dkt. No. 83; Dkt. No. 87; Dkt. No. 89.) 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 7 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. 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 8 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 Defendant's failure to hire him as a Level B or Level C Painter, Defendant requiring him to train less experienced employees, and Defendant's failure to timely promote him. (Dkt. No. 56 at 2-4; Dkt. No. 87 at 5-13.) 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. (See generally Dkt. No. 83; Dkt. No. 87; Dkt. No. 89.) As such, the undersigned considers only whether Plaintiff can demonstrate that he suffered an adverse employment action and was treated differently than similarly situated individuals outside of his protected class. Because Plaintiff has failed to demonstrate either element, the undersigned recommends that the Court grant Defendant's Motion for Summary Judgment as to Plaintiff's race discrimination claim. 9
A. Failure to Hire
Plaintiff first claims that Defendant should have hired him for a higher-level position when he initially applied for a job. (Dkt. No. 87 at 7.) To establish a failure to hire race discrimination claim, Plaintiff must show that (1) he is a member of a protected group; (2) there was a specific position for which he applied; (3) he was qualified for that position; and (4) Defendant rejected his application under circumstances that give rise to an inference of discrimination. Williams v. Giant Food Inc., 370 F.3d 423 (4th Cir. 2004) (noting the McDonnell Douglas framework applies to failure-to-hire claims under § 1981). Plaintiff's failure to hire claim fails under the second element of this prima facie framework.
In Plaintiff's response in opposition to Defendant's motion for summary judgment, he concedes that his claim of racial discrimination based on failure to hire is limited to Level B Painter positions. (Dkt. No. 87 at 7.) The undersigned has narrowed this discussion accordingly.
Specifically, Plaintiff has not provided sufficient evidence to allow a reasonable jury to conclude that he applied for a Level B Painter position prior to being hired as a Level A Painter. (See generally Dkt. No. 87.) Indeed, Plaintiff cites only to his personal deposition testimony to support this assertion. (Dkt. No. 87 at 7.) Defendant, on the other hand, has provided a sworn declaration from its Talent Acquisition Advisor confirming that Plaintiff did not apply for any Level B Painter positions until 2017, well after his initial hiring. (Dkt. No. 83-10 at 2-3.) In further support of this sworn declaration, Defendant has attached a spreadsheet outlining all positions Plaintiff applied for from 2016 through 2018. (Id. at 5.) This spreadsheet confirms that Plaintiff applied for two Level B Painter positions in 2017, but none in 2016. (Id.)
Plaintiff contends that his deposition testimony “adamantly assert[ing]” that he applied to higher-level positions creates a genuine issue as to whether he did, in fact, 10 apply for a Level B Painter position. (Dkt. No. 87 at 7-8.) However, Plaintiff cannot overcome summary judgment by presenting only self-serving testimony and conclusory statements to the Court. 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 plaintiff's 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.”). Accordingly, no genuine issue of fact exists as to whether Plaintiff applied for a Level B Painter position prior to Defendant hiring him as a Level A Painter.
Because Plaintiff cannot show that he applied for any position other than a Level A Painter, he cannot make his prima facie case of discrimination based on Defendant's failure to hire him for a higher-level position. Further, even if Plaintiff could demonstrate that he applied for a Level B Painter position before Defendant hired him as a Level A Painter, Plaintiff's claim that Defendant failed to hire him for a higher-level position on account of his race is undermined by the fact that Defendant hired a black male as a Level B Painter on the same day it hired Plaintiff as a Level A Painter. (Dkt. No. 83 at 18-19; Dkt. No. 83-10 at 3.) The undersigned therefore recommends that Defendant is entitled to summary judgment on this claim.
B. Training Duties
Plaintiff next asserts that Defendant's requirement that Plaintiff train higher-level employees as part of its on-the-job training (“OJT”) program was racially discriminatory. 11 (Dkt. No. 87 at 8-11.) Plaintiff contends that he was hired as a Level A Painter but was nonetheless required to train Caucasian Level B and Level C Painters. (Id. at 9.) He contends that this requirement was discriminatory because he was more qualified than the painters he was asked to train. (Id.) Further, Plaintiff asserts that he was not adequately compensated for these trainings (which were outside of a typical Level A Painter's job duties) and that no Caucasian Level A Painters were required to provide such trainings. (Id. at 9-10.) By contrast, Defendant contends that Plaintiff's claim fails because he cannot show that Defendant's requirement that he participate in OJT trainings was an adverse employment action, and because he cannot prove racial animus. (Dkt. No. 89 at 5.)
“[An] adverse employment action is ‘an absolute precondition' to an employment discrimination suit.” Batten v. Grand Strand Dermatology, LLC, C/A 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)). Not every personnel decision constitutes an adverse employment action for purposes of a disparate treatment 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 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, 12 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 he was discriminatorily asked to conduct OJT trainings for newly hired employees in higher-level positions. (Dkt. No. 87 at 8-11.) However, he provides no details as to how these trainings had a “significant detrimental effect” on his employment. Holland, 487 F.3d at 219. Plaintiff states that the trainings were “additional duties, ” “humiliating, ” and “burdensome.” (Dkt. No. 87 at 9-10.) However, he has not provided evidence that this requirement impacted his pay, potential for continued employment, or likelihood of promotion. (Id. at 8-11.) Though he contends that “training other new hires, including Level B and Level C, is not part of a Level A's normal duties” and that he was not compensated for these “additional duties, ” he points 13 the Court to no evidence in support of his assertions. (Id. at 10.) By contrast, Defendant explains that several Caucasian Level A painters were required to conduct OJT trainings as part of their job duties, and that no employee-regardless of race or job level-was provided additional compensation for these trainings. (Dkt. No. 89 at 5.) As support, Defendant cites to a sworn declaration provided by Robert Jernigan, which states:
To the extent Plaintiff argues that Defendant's requirement that he conduct OJT trainings negatively impacted his employment because it was “a constant reminder to Plaintiff that he had been discriminated against by being denied a Level B position, ” the undersigned finds this argument unpersuasive for the reasons set forth in Section I.A.
As part of the typical onboarding process, during the first weeks of his employment, Plaintiff, along with other new hires in paint, participated in on-the-job training (“OJT”). OJT is an informal training program that affords new employees an opportunity to learn the logistical aspects of their jobs to include: operating the lifts used to paint the planes, learning how to mask and prepare certain areas of the place before painting, learning the correct sanding techniques, and understanding the specifications required for each particular paint job. OJT is not intended to provide comprehensive instruction regarding the specific paint skills needed to perform a certain job; rather, it is an overview of other Boeing-specific paint processes. Boeing relies upon its subject matter experts to train painters and teach the techniques involved in the proper application of paint to the aircraft. . . .
OJT functions are performed by other painters in the Paint Organization. A painter is asked to assist in OJT activities for new hires based on that painter's knowledge of the job and his/her ability to teach others. . . .
Boeing does not have any requirements that a painter [] be at, or attain a certain level, in order to assist with OJT. The goal of OJT is to show new hires how to navigate within Boeing's paint process. As an example, a seasoned Level A painter may be paired with a newly hired Level B or C painter to help that employee acclimate to Boeing's paint department, despite the new hire occupying a more senior position based on his/her relevant painting experience outside of Boeing. . . .
After being trained and once settled into his Level A position, Plaintiff was sometimes asked to assist in OJT activities, where he was paired with newly hired painters. In addition to Plaintiff, other Level A painters were also asked to perform OJT activities. This included other Level A Caucasian painters, such as Mandy Barron, Chris Bowers, and Chris Lambert, among others. All employees who assist in OJT activities,14
regardless of their level, are not provided additional pay to help train newly hired painters.(Dkt. No. 83-4 at 2-3.)
As noted, Plaintiff has provided only conclusory assertions, speculation, and self-serving testimony to contradict Mr. Jernigan's statements, and he has failed to provide the Court with an alternative explanation of how his OJT duties significantly and detrimentally impacted his employment. (Dkt. No. 87 at 8-11.) Without more, Plaintiff cannot raise a genuine issue of fact as to whether Defendant's requirement that he perform OJT trainings was an adverse employment action. See Wilson, 2016 WL 3086929, at *3 (“Uncorroborated and self-serving testimony cannot give rise to a genuine factual dispute.”).
Further, Mr. Jernigan's sworn declaration identifies several Caucasian Level A Painters who were also required to conduct OJT trainings, negating Plaintiff's claim that “Defendant is unable [to] name any Level A Caucasian painters, who like the Plaintiff, were required to train Level A, Level B, and Level C painters.” (Dkt. No. 83-4 at 2-3; Dkt. No. 87 at 9.) Thus, the record does not reflect that Plaintiff was treated differently than similarly situated individuals outside of his protected class.
Again, Plaintiff does not direct the Court to any evidence in support of this contention. (Dkt. No. 87 at 9.)
Even considering the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, Plaintiff cannot establish a prima facie case of race discrimination based on Defendant's requirement that he conduct OJT trainings. The undersigned therefore recommends that Defendant is entitled to summary judgment on this claim. 15
Plaintiff's Second Amended Complaint alleges that Defendant failed to promote him to a Manager position in the Paint Department. (See supra at 3.) However, Plaintiff makes no mention of these allegations anywhere in his response in opposition to Defendant's Motion for Summary Judgment. (See generally Dkt. No. 87.) Accordingly, the undersigned must assume that Plaintiff has abandoned this claim. 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 notes that this claim would fail regardless, as the record demonstrates that Plaintiff was not selected for the Manager position because he “voluntarily neglected to apply for submission to the very pool that would have enabled him to obtain the desired . . . position.” (Dkt. No. 83 at 20; Dkt. No. 83-8 at 3-19.)
Plaintiff also contends that Defendant delayed his promotion from Level A Painter to Level B Painter on account of his race. (Dkt. No. 87 at 11.) Defendant asserts that Plaintiff's claims of race discrimination based on Defendant's delay in promoting him are undercut by Defendant's impartial promotion criteria, which requires employees to obtain one year of experience before becoming eligible for promotion to Level B Painter. (Dkt. No. 83 at 15.) In response, Plaintiff argues that he should have been promoted before Defendant's promotion criteria was put in place. (Dkt. No. 87 at 12.) Plaintiff explains that “the interviewer during [Plaintiff's] interview informed him that he was qualified for higher positions” and that he began assisting with OJT trainings only a few weeks after he was hired. (Id.) Plaintiff contends that these circumstances suggest he should have been promoted before Defendant's promotion criteria was implemented in January of 2017. (Id. at 3, 12.) However, as described above, Plaintiff has failed to raise a reasonable inference of discrimination with respect to Defendant hiring him as a Level A Painter and Defendant's requirement that he participate in OJT trainings. (See supra at 9- 15.) Thus, Plaintiff cannot rely on these actions to raise a reasonable inference of discrimination with respect to Defendant's purported delay in promoting him. Regardless, the record reflects that Plaintiff did not actually apply for any Level B Painter positions 16 until after Defendant implemented its promotion criteria in January 2017. (Dkt. No. 83-10 at 2-3.)
Plaintiff also argues that the “one-year minimum experience requirement” was not applied to every painter after Defendant implemented its promotion criteria. (Dkt. No. 87 at 12.) In support of this contention, Plaintiff points to his personal testimony that another painter employed by Defendant, Jason Fugle, was hired a few months after him and was promoted to Level B Painter before he achieved one year of experience. (Id. at 12, citing to Dkt. No. 87-2 at 35.) Plaintiff also cites to deposition testimony from another of Defendant's employees, Kevin Austin, who stated that Defendant does not follow its posted promotion criteria when promoting Caucasian painters. (Id. at 12-13, citing to Dkt. No. 87-3 at 3-5.) In reply, Defendant points to evidence showing that Jason Fugle was actually hired in 2013 and was promoted to a Level B Painter in January of 2017. (Dkt. No. 89 at 8, citing to Dkt. No. 83-20.) Defendant contends that “[f]or this reason, Plaintiff has failed to come forward with any proper comparators, and he cannot avert summary judgment.” (Id.) The undersigned agrees.
Although Plaintiff is not required as a matter of law to identify a similarly situated comparator to satisfy the fourth prong of his prima facie case, Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003), Plaintiff bases his allegations of discrimination relating to Defendant's delay in promoting him largely on the contention that Defendant failed to use its promotion criteria when promoting similarly situated Caucasian employees, like Jason Fugle. (Dkt. No. 87 at 12-13.) “When a plaintiff bases [his] discrimination claim on a similarly situated comparator, it is the plaintiff's ‘task to demonstrate that the comparator is indeed similarly situated.'” Davis v. Centex Homes, 17 No. 4:09-cv-830-RBH-SVH, 2011 WL 1525764, at *3 (D.S.C. Apr. 1, 2011), adopted sub nom. Davis v. Centex Int'l II LLC, 2011 WL 1526928 (D.S.C. Apr. 20, 2011) (internal citations omitted). In doing so, Plaintiff must demonstrate that he is similar in all relevant respects to his alleged comparators. Hurst v. D.C., 681 Fed.Appx. 186, 191 (4th Cir. 2017).
Plaintiff has provided no such evidence here. Indeed, the record makes clear that Jason Fugle worked for Defendant for several years before being promoted to Level B Painter. (See generally Dkt. No. 83-20.) By contrast, Plaintiff contends that he should have been promoted after working for Defendant for several months. (Dkt. No. 87 at 12.) Additionally, Kevin Austin's deposition testimony does not set forth any comparators or examples of how Defendant has discriminatorily implemented its promotion policies. (Dkt. No. 87-3 at 3-5.) Rather, Mr. Austin's testimony is based on his own conjecture, which is insufficient to create a genuine issue of fact. See Dash, 731 F.3d at 311 (noting that “conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence” cannot create genuine issues of material fact).
Further, the record reflects that Jason Fugle is not a proper comparator because he worked as an assembler before he was promoted to Level B Painter through a job reclassification process. (Dkt. No. 83 at 15, citing to Dkt. No. 83-20; Dkt. No. 89 at 8.)
Plaintiff's claim is further undermined by the fact that Defendant created a promotion exception for him and promoted him as soon as he hit his one-year experience mark. (Dkt. No. 83 at 15; Dkt. No. 83-1 at 25-26; Dkt. No. 83-2 at 4.) Indeed, the record reflects that Defendant promoted Plaintiff to Level B Painter in October 2017-as soon as he completed one year working as a Level A Painter. (Dkt. No. 83 at 15; Dkt. No. 83-2 at 4.) Further, the record reflects that Defendant promoted Plaintiff even though he had 18 not completed all of the certifications required by its promotion criteria. (Dkt. No. 83 at 15; Dkt. No. 83-1 at 25-26.) Plaintiff himself testified to this, and he confirmed that he was not aware of any other employees who were promoted without having completed the required certifications. (Dkt. No. 83-1 at 23-29.)
Thus, even considering Plaintiff's proffered evidence in the light most favorable to him, such evidence is insufficient to raise a reasonable inference of unlawful discrimination under the fourth prong of his prima facie case. Accordingly, Plaintiff cannot make a prima facie case of race discrimination based on Defendant's purported delay in promoting him, and the undersigned therefore recommends that Defendant is entitled to summary judgment on this claim.
II. Retaliation
Plaintiff also brings a retaliation claim under § 1981. (Dkt. No. 56 at 6.) 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 19 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 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. 20
Here, Plaintiff alleges that he was “repeatedly subjected to and protested violations of his federally protected rights” and that those protests “subjected Plaintiff to being mistreated in a retaliatory manner and to a continuance of unlawful racial harassment and retaliation.” (Dkt. No. 56 at 6.) Plaintiff also states that he “informed Defendant of the racial harassment and mistreatment that Plaintiff daily was exposed to (protected complaints), ” and that Defendant engaged in “a continuing pattern of animus, harassment, and denial of opportunities and relocations.” (Id.) More specifically, Plaintiff contends that he complained about his pay on several occasions to his supervisor, to managers, and to Human Resources, but his complaints were ignored. (Dkt. No. 87 at 2-3.) Defendant argues that Plaintiff never engaged in protected activity because none of his complaints alleged racial animus. (Dkt. No. 83 at 23-26.) Defendant argues that Plaintiff therefore cannot establish a prima facie claim of retaliation. (Id.) For the reasons set forth below, the undersigned agrees.
Protected activity is conduct by an employee which resists or confronts “an employment practice made unlawful” by a federal discrimination statute. See, e.g., Sutton v. Vilsack, No. 2:12-cv-01386-DCN, 2014 WL 4199163, at *8, n.10 (D.S.C. Aug. 20, 2014). While the Fourth Circuit has “articulated an expansive view of what constitutes oppositional conduct” for purposes of retaliation, federal employment laws do not prohibit private employers from retaliating against an employee based on opposition to discriminatory practices that are outside the scope of 42 U.S.C. § 1981 or Title VII of the Civil Rights Act of 1964. Stennis v. Bowie State Univ., 716 Fed.Appx. 164, 167 (4th Cir. 2017). In other words, Plaintiff must allege that he opposed discrimination based on a 21 protected characteristic in order to show actionable protected activity. Hemphill, 975 F.Supp.2d at 561.
As noted, Plaintiff contends that he engaged in protected activity when he complained about his pay on various occasions. (Dkt. No. 87 at 3.) However, the record does not reflect that Plaintiff opposed discrimination based on a protected characteristic when making these complaints. Hemphill, 975 F.Supp.2d at 561. Rather, Plaintiff testified that he did not mention race when making any of his complaints. (Dkt. No. 83-1 at 34-36.) Plaintiff confirmed that he never told his supervisor, the other managers to which he complained, nor Defendant's Human Resources department that he felt he was being paid less on account of his race. (Id., stating “I never told them that. Face to face, no, I never told them that, ” when asked if he mentioned race when reporting his complaints.) Plaintiff stated only that he was underpaid and being treated “unfairly.” (Id.) Plaintiff points to no circumstances (other than his race) indicating that Defendant could or should have known that his complaints about pay were related to race. (Dkt. No. 87 at 13-16.) Thus, Plaintiff has failed to demonstrate that his complaints about his pay constitute protected activity for purposes of his retaliation claim. The undersigned therefore recommends that the Court grant Defendant's Motion for Summary Judgment as to Plaintiff's retaliation claim. Burgess v. Bowen, 466 F. App'x. 272, 282 (4th Cir. 2012) (explaining that employment discrimination statutes “do[] not protect general complaints of unfair treatment”). 22
Even if Plaintiff's complaints were construed as protected activity, his retaliation claim would still fail because he cannot show pretext. (See Dkt. No. 89 at 12, citing to Dkt. No. 83-1 at 50.)
III. Hostile Work Environment
“A hostile environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Boyer-Liberto, 786 F.3d at 277 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Thus, to prevail on his racially hostile work environment claim, Plaintiff must show that there is (1) unwelcome conduct; (2) based on his race; (3) which is sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) which is imputable to Defendant. See Id. (citing Okoli v. Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)).
The degree of hostility or abuse to which Plaintiff was exposed must be determined by “examining the totality of the circumstances.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (referencing Harris, 510 U.S. at 23). Relevant considerations “include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. Further, the “severe or pervasive” element of a hostile work environment claim includes both subjective and objective components; thus, Plaintiff must show that he subjectively perceived the environment to be abusive, and that the conduct was such that “a reasonable person in [Plaintiff's] position” would have found the environment objectively hostile or abusive. E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
Plaintiff's Second Amended Complaint states that Plaintiff was subjected to “disparate treatment and a hostile working environment due to his race, ” “on the job 23 racially hostile treatment, ” “discriminatory and hostile practices, ” and “racially hostile mistreatment and racial animus and daily hostility and harassment.” (Dkt. No. 56 at 2-3.) Plaintiff further alleges that Defendant “began a pattern and practice of targeting the Plaintiff through systemic race-based harassment” and “[k]nowingly allow[ed] a workplace full of racial hostility to exist which injured [Plaintiff] and created a racially hostile work environment.” (Id.) In his response in opposition to Defendant's Motion for Summary Judgment, Plaintiff clarifies that his hostile work environment claim is premised on the acts underlying his claims of race discrimination. (Dkt. No. 87 at 16-19.)
Specifically, Plaintiff explains that he was subjected to a hostile work environment when he was required to train higher-level painters and denied promotions.(Id.) However, Plaintiff has failed to show that such conduct was racially discriminatory, as is more fully described above. (See supra at 7-19.) Accordingly, Plaintiff cannot show that his “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.” Boyer-Liberto, 786 F.3d at 277 (citing Harris, 510 U.S. at 21) (emphasis added); see Spriggs, 242 F.3d at 184 (referencing Harris, 510 U.S. at 23) (noting that the court should consider the frequency of discriminatory conduct when evaluating a hostile work environment claim). The undersigned therefore 24 recommends that Defendant is entitled to summary judgment on Plaintiffs hostile work claim.
During his deposition, Plaintiff stated that a Caucasian co-worker made a racially derogatory comment to him. (Dkt. No. 83-1 at 45.) However, Plaintiff neglects to address Defendant's arguments on this point in his response brief. (See generally Dkt. No. 87.) As such, the undersigned declines to address them here. 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). Regardless, “a single, isolated incident is generally not sufficient to establish severe and pervasive conduct, particularly where, as here, the conduct was by a coworker as opposed to a supervisor or manager.” Chris E. Franks v. Triple Canopy, Inc., No. 1:18-cv-436, 2019 WL 4279025, at *5 (E.D. Va. Sept. 9, 2019); see also Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264 (4th Cir. 2015) (noting that “viable hostile work environment claims often involve repeated conduct”).
CONCLUSION
Based on the foregoing, the undersigned recommends that the Court grant Defendant's Motion for Summary Judgment. (Dkt. No. 83.)
IT IS SO RECOMMENDED. 25
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). 26