Opinion
Civil Action 7:22-cv-173-MGL-KFM
12-11-2023
Roman Clement, Plaintiff, v. Spartanburg Steel Products, Inc., Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendant's motion for summary judgment (doc. 150) and motion to strike (doc. 167). The plaintiff, proceeding pro se and in forma pauperis, brings this employment action under 42 U.S.C. § 1981. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
I. PROCEDURAL BACKGROUND
As an initial matter, the undersigned takes judicial notice of the plaintiff's prior action in this court seeking damages for employment discrimination against his employer, the same defendant named in this action. See Clement v. Spartanburg Steel Prods., C/A No. 7:19-cv-00666-MGL (D.S.C.) ("Clement I"). The undersigned issued a report and recommendation recommending that the defendant's motion to dismiss be granted (Clement I, doc. 67). The district court issued an order adopting the report and recommendation (Clement I, doc. 79), which was affirmed by the Court of Appeals for the Fourth Circuit. Clement v. Spartanburg Steel Prods., Inc., C/A No. 21-1344, 2021 WL 5563964 (4th Cir. Nov. 29, 2021).
See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
In the present action (“Clement II”), the plaintiff filed an amended complaint on February 25, 2022, alleging hostile work environment, pay discrimination, and failure to promote because of his race in violation of Section 1981 (doc. 15). On March 4, 2022, the undersigned filed a report and recommendation recommending that the district court summarily dismiss all of the plaintiff's claims with the exception of his Section 1981 hostile work environment claim for the time period of February 27, 2020, through February 25, 2022 (doc. 18). The district court adopted this recommendation on September 2, 2022 (doc. 65). The plaintiff filed an appeal of the district court's order, which the Fourth Circuit dismissed on March 23, 2023. Clement v. Spartanburg Steel Prods., Inc., C/A No. 22-2060, 2023 WL 2610257 (4th Cir. Mar. 23, 2023).
Specifically regarding the plaintiff's employment discrimination claims occurring prior to February 26, 2020, the undersigned recommended that such claims were barred by res judicata because the claims were already adjudicated and decided adversely to the plaintiff in Clement I.
On August 16, 2023, the defendant filed a motion for summary judgment (doc. 150). On the following day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 151). The plaintiff filed a response on September 21, 2023 (doc. 160), and a supplement to his response on October 26, 2023 (doc. 177). The defendant filed a reply on October 12, 2023 (doc. 165), and the plaintiff filed a sur reply on November 15, 2023 (doc. 185). Accordingly, this matter is now ripe for review.
The defendant filed a motion to strike portions of the plaintiff's response to its motion for summary judgment on October 12, 2023 (doc. 167). The plaintiff's response to the defendant's motion for summary judgment is 87 pages long, and the defendant requests that the court strike all of the pages exceeding the 35-page limit under the Local Civil Rules for the United States District Court for the District of South Carolina (id. at 2). Local Civ. Rule 7.05(B) (D.S.C.). Additionally, the defendant requests that the court strike the portions of the plaintiff's response that are unrelated to his claim at issue or attempt to state new claims (doc. 167 at 3). In light of the plaintiff's pro se status and out of an abundance of caution, the undersigned has considered all of the pages in the plaintiff's response. However, the plaintiff's arguments that are not relevant to the sole claim have no bearing on the analysis herein.
II. FACTUAL ALLEGATIONS
The defendant is a metal stampings and welded assemblies manufacturer mainly serving the automotive, trucking, agricultural, and lawn and garden industries (doc. 150-3, Meredith decl. ¶ 3).Starting in or about 2015, the plaintiff was assigned to work for the defendant as a temporary contractor employee of Resource Manufacturing (id. ¶ 4). The plaintiff, who is black, became one of the defendant's employees in February 2017, and worked as a machine operator (id.). In August 2017, the plaintiff applied for and was accepted as a tool and die trainee (id.). According to Shannon Barnwell (“Mr. Barnwell”), the tool and die manager, tool and die making involves the industrial art of manufacturing stamping dies, plastics molds, and jigs and fixtures to be used in the mass production of solid objects (doc. 150-4, Barnwell decl. ¶ 1). The plaintiff is currently an A-level tool and die maker for the defendant (doc. 150-3, Meredith decl. ¶ 4).
The plaintiff argues that the undersigned should not consider this declaration from Maleah Meredith (“Ms. Meredith”), a human resources representative, because some of her assertions are “erroneous” (doc. 185 at 3-4). However, the undersigned declines to exclude Ms. Meredith's declaration simply because the plaintiff disputes some of her assertions. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.
The defendant has three shifts for the tool and die department (doc. 150-3, Meredith decl. ¶ 5). Each shift has a “shift lead,” who is responsible for assigning tasks and ensuring the smooth operation of each shift (id.). During the relevant period, the shift leads were Heath Stewart (“Mr. Stewart”) for first shift, Rick Wilson (“Mr. Wilson”) for second shift, and Dominique Johnson (“Mr. Johnson”) for third shift (id.). The plaintiff was on second shift during the relevant period (id. ¶ 7). The defendant utilizes an employee assignment board to inform employees whom they will be taking over for from the previous shift (doc. 150-3, Meredith decl. ¶ 9; docs. 150-4, Barnwell decl. ¶ 6; 150-6, Hang decl. ¶ 5; 150-7, Dominique Johnson decl. ¶ 6; 150-150-10, Kerr decl. ¶ 5; 150-12, Donnie Johnson decl. ¶ 5; 150-13, Bensema decl. ¶ 5; 150-14, Shields decl. ¶ 5). Before their shifts, a tool and die employee is expected to check the employee assignment board (id.). All of the tool and die employees have nameplates that are used on the employee assignment board, and most employees' names appear as their first initial and last name (doc. 150-3, Meredith decl. ¶ 10). For example, employee Samuel Shields has a nameplate that states, “S. Shields” (id.).
The plaintiff alleges in his amended complaint that there is a nameplate on the employee assignment board that says “N. Hang,” which stands for “nigger hang" (doc. 15 at 2). The plaintiff further alleges that, during the relevant period, Mr. Barnwell asked him to stand in front of the sign "each and every day" and that “N. Hang” was not an employee's name (id.). However, the defendant has employed a Laos/Hmong individual named Jueneng “Neng” Hang (“Mr. Hang”) for over 25 years (doc. 150-3, Meredith decl. ¶ 7; 150-6, Hang decl. ¶¶ 1-2). At the commencement of his employment with the defendant, Mr. Hang filled out an I-9 form and signed and printed his name as “Neng Hang,” which was his legal name at that time (doc. 150-3, Meredith decl. ¶ 8; 150-150-6, Hang decl. ¶ 3). Mr. Hang legally changed his name in 2008 to Jueneng Hang because, in his culture, individuals often change their first names to reflect that they are married with children (docs. 150-3, Meredith decl. ¶ 8; 150-6, Hang decl. ¶ 3). Mr. Hang told his coworkers at the time about his name change but stated that they could call him either Neng or Jueneng (doc. 150-6, Hang decl. ¶ 3). Many employees continued to call him Neng because they had been working with him for a long period of time and already knew him as Neng (id.; docs. 150-4, Barnwell decl. ¶ 10; 150-7, Dominique Johnson decl. ¶ 5; 150-10, Kerr decl. ¶ 6; 150-12, Donnie Johnson decl. ¶ 6; 150-13, Bensema decl. ¶¶ 4-7; 150-14; Shields decl. ¶¶ 4, 9). Mr. Hang's name appears on the employee assignment board as “N. Hang,” and it was listed in this fashion before Mr. Hang changed his name and for years before the plaintiff became employed by the defendant (docs. 150-3, Meredith decl. ¶ 10; 150-4, Barnwell decl. ¶ 10; 150-6, Hang decl. ¶ 6; 150-7, Dominque Johnson decl. ¶¶ 6-7; 150-10, Kerr decl. ¶ 6; 150-11, Harrison decl. ¶ 6150-12, Donnie Johnson ¶ 6150-13, Bensema decl. ¶ 6; 150-14, Shields decl. ¶ 6). Ms. Meredith testified in her declaration that the plaintiff never complained to human resources that the “N. Hang” nameplate was based on race discrimination (doc. 150-3, Meredith decl. ¶ 12). Moreover, other employees in the defendant's tool and die department testified in their declarations that they never witnessed or heard any discrimination arising out of the employee assignment board (doc. 150-4, Barnwell decl. ¶ 10; 150-5, Wilson decl. ¶ 8; 150-6, Hang decl. ¶ 6; 150-7, Dominique Johnson decl. ¶ 9; 150-8, Stewart decl. ¶ 8; 150-9, Stewart decl. ¶ 9; 150-10, Kerr decl. ¶ 9; 150-11, Harrison decl. ¶ 8; 150-12, Donnie Johnson decl. ¶ 9; 150-13, Bensema decl. ¶ 7; 150-14, Shields decl. ¶ 6).
Mr. Barnwell and Mr. Wilson testified in their declarations that the plaintiff often would not go to the employee assignment board at the start of his shift and would go straight to his toolbox (docs. 150-4, Barnwell decl. ¶ 12; 150-5, Wilson decl. ¶ 9). On those occasions, either Mr. Barnwell or Mr. Wilson would advise the plaintiff to go to the employee assignment board to see which employee he would be taking over for (docs. 150-4, Barnwell decl. ¶ 12; 150-5, Wilson decl. ¶ 9). Mr. Barnwell and Mr. Wilson testified that this request was unrelated to the plaintiff's race or any type of discrimination (docs. 150-4, Barnwell decl. ¶ 12; 150-5, Wilson decl. ¶ 9). Mr. Hang worked on first shift, and the plaintiff often took over for Mr. Hang on second shift (doc. 150-3, Meredith decl. ¶ 9).
The plaintiff also alleges that on February 22, 2021, Mr. Wilson granted the plaintiff's “pay review” from a C-level tool and die maker to a B-level tool and die maker and told the plaintiff that a pay increase would be reflected in his next paycheck (doc. 160 at 5, 8). However, the plaintiff contends that he did not receive the increase in his next paycheck (id. at 6). The plaintiff submits that he inquired about not receiving the pay increase, and Mr. Wilson told him that the pay review was lost (id.). The plaintiff alleges that this error was corrected in May 2021 (id. at 7).
The plaintiff also submits that he spoke with individuals in human resources and Mr. Barnwell multiples times in October and November 2021 regarding another error in his pay (doc. 160 at 10-11). Additionally, the plaintiff emailed Kelly Stepp (“Ms. Stepp”), the payroll coordinator, Magdalena Domzalska-Pol (“Ms. Domzalska-Pol”), the director of human resources, and Ms. Meredith on November 19, 2021, stating as follows:
From pay period ending on 10/21/21 for some reason my pay is $23.54 however on 06/10/21 I received my raise to $24.81 and on 7/15/21 I received a 2% annual increase instead of on
07/01/21 it's impossible for my pay to be correct therefore I'm not sure how my pay rate got messed up however attaches are the screensho[]ts of the pay stubs and I am formally requesting my back pay I'm not lying look(Doc. 150-2 at 79; see also doc. 160 at 12). On November 23, 2021, Ms. Meredith responded to the plaintiff's email, stating “Please stop by to see me when you come in to work today. I have the answer ready for you” (doc. 150-2 at 80). The plaintiff alleges that he was then informed that the error in his hourly pay would be corrected but that he would not be receiving the annual 2.25% increase that was due under a collective bargaining agreement (doc. 160 at 12). The plaintiff submits that he was the only employee who did not receive the annual increase (id. at 15).
Thereafter, on December 9, 2021, the plaintiff sent another email, stating as follows:
Is it possible to schedule a meeting between hr and the union rep whom told me just yesterday that she spoke to hr and I would be receiving my 2.5% back to my pay as every other employee got I also spoke with a few other ppl whom told me before a company can take money they should have asked for and evaluation according to their new pay scale(Doc. 150-2 at 81-82). Ms. Domzalska-Pol sent the plaintiff an email in response on the next business day that she was in the office (id. at 81). Ms. Domzalska-Pol advised the plaintiff to go to Ms. Meredith's office and said that they had good news for him (id.). Three days later, the plaintiff received a check, which fixed the pay issues and resulted in the plaintiff receiving the money owed to him (docs. 150-2, plaintiff dep. 52-53, 60; 150-3, Meredith decl. ¶ 19; 160 at 16). Ms. Meredith testified in her declaration that this issue was simply an internal administrative error and had nothing to do with the plaintiff's race (doc. 150-3, Meredith decl. ¶¶ 16, 21). Ms. Meredith explained that she is responsible for changing the title and pay rate of an employee in the defendant's system, and Mr. Barnwell does not have the ability or authority to make these changes (id. ¶ 16; see also doc. 150-4, Barnwell decl. ¶ 8). Ms. Meredith testified that the plaintiff never mentioned race when complaining about the errors in his pay (doc. 150-3, Meredith decl. ¶ 20).
The plaintiff further alleges that Mr. Barnwell used racially derogatory terms on three occasions between October and December 2021 (doc. 150-2, plaintiff dep. 26, 3637, 67-68, 70-75). Specifically, the plaintiff testified in his deposition that Mr. Barnwell stated, “[W]atch the nigger struggle to get presents” to an individual after the plaintiff inquired about the status of the error in his hourly pay (id. at 26, 36-37). The plaintiff contends that this comment was not said directly to him but to another individual as the plaintiff's back was turned and he was walking away (id.). The plaintiff could not identify the individual to whom Mr. Barnwell made this statement (id.). The plaintiff further testified that Mr. Barnwell made a statement containing the phrase “nigger swang” to another individual when the plaintiff was approximately ten feet away (id. at 67-68, 70-74). The plaintiff also could not identify this individual (id.). When asked about the context of this comment, the plaintiff could not provide any other details and recognized that he could not “remember every last specific word that the man said” (id.). Additionally, the plaintiff alleged that although he could not remember the exact wording, Mr. Barnwell made a comment along the lines of “they cut the nigger down” (id. at 72-73, 75; doc. 160 at 31). The plaintiff explained that Mr. Barnwell was referring to “cutting the check” (doc. 150-2, plaintiff dep. 72-73). Mr. Barnwell testified in his declaration as follows:
The plaintiff also alleged a fourth racially derogatory statement in his amended complaint. Specifically, the plaintiff stated, “I find as a pro se litigant taking an individuals pay at any time yet alone at Christmas then . . . standing back making jokes about how he's not gone be able to get Christmas this laughing like it's a financial hanging instead of it being a rope round your neck and him swanging from a tree constitutes Hostile work environment” (doc. 15-1 at 5-6). However, when questioned about this allegation in his deposition, the plaintiff clarified that this was how he felt, not what anyone working for the defendant actually said (doc. 150-2, plaintiff dep. 74). The plaintiff explained that it was the “Watch the nigger get Christmas presents” comment that made him feel this way (id.).
I did not make any comments such as “watch that ni**** get Christmas presents”, “ni**** swanging”, “financial hanging”, “cut the ni**** down” or anything similar. I have never used racially derogatory terms to include the “n word” while at Spartanburg Steel. I have not witnessed anyone make these comments, or comments containing racially derogatory terms to Roman Clement (or anyone else at Spartanburg Steel).(Doc. 150-4, Barnwell decl. ¶ 9). Moreover, other employees in the defendant's tool and die department testified in their declarations that they never heard Mr. Barnwell, or anyone else working for the defendant, make these comments or any other racially derogatory comments (docs. 150-5, Wilson decl. ¶ 10; 150-6, Hang decl. ¶ 9; 150-7, Dominique Johnson decl. ¶ 8; 150-8, Stewart decl. ¶ 7; 150-9, Emory decl. ¶ 8; 150-10, Kerr decl. ¶ 8; 150-11, Harrison decl. ¶ 7; 150-12, Donnie Johnson decl. ¶ 8; 150-13, Bensema decl. ¶¶ 8-9; 150-14, Shields decl. ¶¶ 7-8).
In March 2022, the plaintiff was offered a job in the tool and die department of another company (doc. 150-2, plaintiff dep. 12-18). This job offer included a $10 per hour pay raise and a $500 signing bonus (id.). The plaintiff testified that he considered this job offer and that the people at the other company were generally “nice” (id.). The plaintiff submitted a tentative resignation to the defendant but asked human resources and Mr. Barnwell if they would offer him a class A toolmaker position and indicated that he would accept such offer (doc. 150-17 at 2). Nevertheless, the plaintiff ultimately changed his mind and decided to not take the new job because he got “a vibe” from someone who was either the president or CEO for the other company (doc. 150-2, plaintiff dep. 12-18). When asked to provide more specifics about the “vibe,” the plaintiff testified that he could not “put his finger on it” (id.). On April 12, 2022, the plaintiff emailed Mr. Barnwell and Ms. Domzalska-Pol and stated that he was withdrawing his resignation because “something keeps telling me don't quit” (doc. 150-17 at 3).
III. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson, 477 U.S. at 248. An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
B. Hostile Work Environment
Section 1981 provides in part that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Although Section 1981 does not explicitly use the word “race,” the Supreme Court has construed the statute to ban all racial discrimination in the making of public and private contracts. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987) (citation omitted). This includes race-based employment discrimination. See Yashenko v. Harrah's NC Casino Co., 446 F.3d 541, 551-52 (4th Cir. 2006).
A hostile work 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 . . . .” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted). "To demonstrate . . . a racially hostile work environment, a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer." Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011) (citations and internal quotation marks omitted). This test applies to hostile work environment claims asserted under Section 1981 and Title VII. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015).
1. Based on Race
Here, the plaintiff alleges that the N. Hang nameplate on the employee assignment board, the errors in his pay, and Mr. Barnwell's racially derogatory comments were based on his race (docs. 15 at 2, 160 at 5-16, 150-2, plaintiff dep. 26, 36-37, 67-68, 70-75). However, the undersigned finds that the plaintiff has failed to show that a reasonable jury could conclude that the N. Hang nameplate or the errors in his pay were based on his race.
To show that the unwelcome conduct was based on race under Section 1981, the plaintiff must show but-for causation. Comcast Corp. v. Nat'l Assoc. of African Am.-Owned Media, 140 S.Ct. 1009, 1014 (2020) (holding a plaintiff bringing a claim under Section 1981 "bears the burden of showing that race was a but-for cause of its injury"). As set out above, the plaintiff contends that the defendant has a nameplate on the employee assignment board labeled “N. Hang,” which stands for “nigger hang.” Moreover, the plaintiff submits that N. Hang was not an employee's name and that Mr. Barnwell would make him stand under the N. Hang nameplate every day. However, the defendant has produced affidavits from Ms. Meredith and numerous employees in the tool and die department in which these individuals testify that the defendant employs an individual named Jueneng “Neng” Hang. Mr. Hang also provided a declaration confirming his name and employment with the defendant. Although Mr. Hang changed his name in 2008 to Jueneng Hang, his legal name at the beginning of his employment with the defendant was Neng Hang. Moreover, many employees continued to call him Neng after his name change because they had been working with him for a long period of time and knew him as Neng. The nameplate labeled “N. Hang” is consistent with how most employee's names are listed on the employee assignment board, and this nameplate existed for years before the plaintiff began working for the defendant. Some of the other tool and die employees further testified in their declarations that they never witnessed or heard any discrimination arising out of the employee assignment board. Additionally, Mr. Barnwell and Mr. Wilson testified in their declarations that the plaintiff would often not go to the employee assignment board at the start of his shift, as he was required to do. On those occasions, either Mr. Barnwell or Mr. Wilson would advise the plaintiff to go to the employee assignment board to see which employee he would be taking over for. The plaintiff often took over for Mr. Hang, so the plaintiff's nameplate was next to Mr. Hang's nameplate.
The plaintiff recognized in his deposition that Mr. Hang's name was in fact Neng Hang but indicated that he previously believed that Neng Hang was not his name (doc. 150-2, plaintiff dep. 22-23, 59, 62-63). The plaintiff explained that he referred to Mr. Hang as “Hang” on one occasion, and Mr. Wilson told him “that's not that man's name” (id. at 19). Mr. Wilson denies that this conversation occurred and testified in his declaration that he would have never corrected the plaintiff referring to Mr. Hang as “Hang” because everyone knew that was his legal name (doc. 150-5, Wilson decl. ¶ 12). The plaintiff also testified that he once asked Mr. Hang, “Your name is Hang?” (id. at 21). The plaintiff testified that Mr. Hang put his head down, shook his head, and told the plaintiff that his “boss man gave [him] that name” (id.). Mr. Hang also denies that this conversation occurred and testified in his declaration that he would not have told the plaintiff that his name was not Hang and he did not know what the term “bossman” was referring to (doc. 150-6, Hang decl. ¶ 4). The plaintiff further confirmed during his deposition that since the “N. Hang” nameplate existed before he began working for the defendant, that nameplate could not have been put in place to “torture” or “penalize” him (doc. 150-2, plaintiff dep. 7980).
Because the plaintiff has not presented any evidence, other than his bare assertions, that the N. Hang nameplate has anything to do with his race, the undersigned finds that the plaintiff cannot overcome the defendant's well-supported motion for summary judgment. See, e.g., Anderson, 477 U.S. at 252 (“The mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient[.]”); Harris v. Home Sales Co., 499 Fed.Appx. 285, 294 (4th Cir. 2012) (“Although we do not make credibility determinations at the summary judgment phase, we should also not find a genuine dispute of material fact based solely on [a plaintiff's] self-serving testimony.”) (citation omitted); Edmonson v. Potter, 118 Fed.Appx. 726, 729 (4th Cir. 2004) (“Edmonson's self-serving assertions, unsupported by any other evidence, are insufficient to successfully counter summary judgment.”) (citation omitted); Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004) (“[A] self-serving opinion ... cannot, absent objective corroboration, defeat summary judgment.”) (citation omitted); Blythe v. Harris Teeter, LLC, C/A No. 2:17-3012-DCN-BM, 2019 WL 1793322, at *6 (D.S.C. Apr. 3, 2019) (“Although the plaintiff may sincerely believe that he was discharged because of his age, his own conclusory and self serving belief, no matter how heartfelt, is simply not sufficient absent any supporting evidence to defeat the defendant's motion for summary judgment.”) (citations omitted), R&R adopted by 2019 WL 1787537 (D.S.C. Apr. 24, 2019).
Regarding the pay errors, the plaintiff alleges that his hourly pay was reduced by $1.83 per hour in October 2021, his pay review in February 2021 was lost, and he was delayed in receiving the annual 2.25% pay increase in 2021. The plaintiff recognized in his deposition that these pay errors were fixed in May and December 2021 (doc. 150-2, plaintiff dep. 35, 38). Although the plaintiff never complained at the time that these pay errors occurred because of his race, the plaintiff now argues that they were race-based because, after he complained about not being paid correctly, Mr. Barnwell stated to another individual, “Watch the nigger struggle to get presents” (doc. 150-2, plaintiff dep. 58). However, even if Mr. Barnwell made this statement, the evidence in the record reflects that Mr. Barnwell does not have the ability to make changes to an individual's pay. Further, the record is devoid of any evidence that Mr. Barnwell influenced Ms. Meredith, the person who could make changes to pay, to withhold pay from the plaintiff based on his race. Instead, Ms. Meredith testified in her declaration that this mistake was due to an internal human resources error and had nothing to do with the plaintiff's race. Moreover, the plaintiff has not presented any evidence that Ms. Meredith made any racially derogatory comments or changed the plaintiff's pay because of his race. Again, other than his unsupported, selfserving assertions, the plaintiff has failed to present any evidence that any errors in his pay would not have occurred but for his race.
Based upon the foregoing, the undersigned finds that the plaintiff has failed to show that a reasonable jury could conclude that the N. Hang nameplate or the errors in his pay were based on his race, and thus, summary judgment should be granted to the defendant on the plaintiff's hostile work environment claim based on these allegations. However, viewing the evidence in a light most favorable to the plaintiff, the plaintiff's allegations regarding Mr. Barnwell's racially derogatory statements are clearly racially motivated and are sufficient to show a genuine issue of material fact regarding the second element of a hostile work environment claim. Accordingly, the undersigned will consider the third element as to the alleged racially derogatory statements by Mr. Barnwell.
2. Severe or Pervasive
In addressing the third element of a hostile work environment claim, the Supreme Court has provided that a plaintiff must establish that the environment was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. Boca Raton, 524 U.S. 775, 787 (1998). Whether an environment is objectively hostile or abusive is “judged from the perspective of a reasonable person in the plaintiff's position.” Boyer-Liberto, 786 F.3d at 277. Plaintiffs must clear a high bar in order to satisfy the severe or pervasive test. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). “[R]ude treatment by [coworkers], callous behavior by [one's] superiors, or a routine difference of opinion and personality conflict with [one's] supervisor, are not actionable under Title VII.” Id. at 315-16 (alterations in original). Rather, actionable harassment occurs when the workplace is "permeated with discriminatory intimidation, ridicule, and insult." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Courts must consider the totality of the circumstances, and relevant factors "may include the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23.
The undersigned finds that the plaintiff has failed to show that a reasonable jury could conclude that the conduct at issue was objectively severe or pervasive. Regarding frequency, the plaintiff is alleging that Mr. Barnwell's three statements over his approximately four-and-a-half years of working for the defendant constitute a hostile work environment. In evaluating the severity of the conduct at issue, courts look to the language utilized. Brown v. Bratton, C/A No. 21-1998, 2022 WL 17336572, at *10 (4th Cir. Nov. 30, 2022). Additionally, “the status of the harasser may be a significant factor - e.g., a supervisor's use of [a racial epithet] impacts the work environment far more severely than use by co-equals.” Boyer-Liberto, 786 F.3d at 278 (citation and internal quotation marks omitted). The plaintiff alleges that Mr. Barnwell, his manager, used the word “nigger” on three occasions. "Far more than a mere offensive utterance, the word ‘nigger' is pure anathema to African Americans. Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates." White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004) (internal citations and quotation marks omitted). The Fourth Circuit has acknowledged that even “an isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment, if that incident is extremely serious.” Boyer-Liberto, 786 F.3d at 277 (internal quotation marks omitted). However, the Fourth Circuit has also recognized that “a single act of harassment may not be actionable on its own,” and the “mere utterance of an ... epithet which engenders offensive feelings in an employee[ ] does not sufficiently affect the conditions of employment to implicate Title VII.” Id. (quoting Harris, 510 U.S. at 21).
In Boyer-Liberto, the Fourth Circuit held that a reasonable jury could conclude that a supervisor's two uses of racial slurs while yelling, made to the plaintiff's face so closely that the plaintiff could feel the supervisor's “breath on her face” and “sprayed [her] face with saliva,” and accompanied by a threat to fire the plaintiff, were severe enough to engender a hostile work environment. 786 F.3d at 269, 279-81. In contrast, here, the plaintiff was at a distance when the comments were made, and he does not allege that any of the comments were made directly to him. The plaintiff has also not presented evidence that Mr. Barnwell's statements were physically threatening or that they unreasonably interfered with his work performance. In fact, the plaintiff is still employed by the defendant and even declined a job with another company that would have provided him with a $10 per hour pay raise and a $500 signing bonus. As set out above, the plaintiff testified that he turned down this job offer because he got “a vibe” from either the president or CEO that he could not “put his finger on.” Courts within the Fourth Circuit have routinely found these factors distinguishable from Boyer-Liberto when granting summary judgment for employers. See, e.g., Brown, 2022 WL 17336572, at *9-10 (distinguishing Boyer-Liberto and finding that the conduct at issue was not objectively severe or pervasive to survive summary judgment when an employee admitted that he called the plaintiff the “N word” and also stated, “if my daughter ever dated an African American, a n***** ... [I] would kill him” and the plaintiff alleged that his immediate supervisor said he “was having a bad day and didn't want to be around black people” because there were only three racially derogatory statements over the course of the plaintiff's five years of working for that employer, none of the statements were made directly to the plaintiff, the plaintiff was not threatened by the statements, the plaintiff did not report one of the statements or otherwise adduce evidence that this unreported statement interfered with his work performance, and the plaintiff continued working for the company for two more years after the last racially derogatory statement); Irani v. Palmetto Health, 767 Fed. App'x 399, 416-17 (4th Cir. 2009) (finding that a supervisor's use of racial slurs towards the plaintiff, which included calling the plaintiff “Achmed the terrorist,” were not sufficiently severe or pervasive to survive summary judgment because there were only two comments over an eighteen-month period and, unlike in Boyer-Liberto, the comments were not made in connection with an employment decision or during an assertion of authority over the plaintiff); compare Pryor v. United Air Lines, Inc., 791 F.3d 488, 496-97 (4th Cir. 2015) (finding that a reasonable jury could conclude that conduct was severe or pervasive, in part because notes were left in the plaintiff's mailbox in a secure, restricted location; the notes used the word “nigger;” and the notes were physically threatening and included a “clear element of violence” through a “hunting license” and “image of a lynching”).
It is also significant that the plaintiff could not provide specifics about Mr. Barnwell's statements, identify to whom Mr. Barnwell's statements were made, and, in one instance, state anything about the context. See Skipper v. Giant Food Inc., 68 Fed.Appx. 393, 399 (4th Cir. 2003) (“[A] plaintiff pressing a hostile work environment claim must substantiate his claim with reasonable specifics about the alleged incidents that underlie the claim. . . . These defects in plaintiffs' claims are significant: many of them fail to allege with any specificity the content of the graffiti; the frequency with which they saw it; or how it altered the terms and conditions of their employment.”).
Considering the totality of these circumstances, the undersigned finds that the plaintiff has failed to show that a reasonable jury could conclude that the alleged conduct was sufficiently severe or pervasive to create an objective hostile work environment.Accordingly, the undersigned recommends that the district court grant the respondent's motion for summary judgment.
Because the undersigned finds that the plaintiff has failed to show that the unwelcome conduct based on his race was severe or pervasive, the defendant's argument regarding Mr. Barnwell's alleged conduct not being imputable to the defendant has not been addressed.
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the defendant's motion for summary judgment (doc. 150) be granted. Moreover, the defendant's motion to strike (doc. 167) is denied.
IT IS SO RECOMMENDED.