FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court on Defendants G4S Secure Solutions (USA) Inc. ("G4S"), Chuck Brock, Donald Zeccardi, Malcolm Burchett, Tifani Grusky, and Michael Nail's Motion for Summary Judgment (Doc. No. 27).
At the hearing on Defendants' Motion for Summary Judgment on December 11, 2017, the Court orally GRANTED Defendants' Motion as to claims one, four, five, six, seven, and nine and DENIED Defendants' Motion as to claims two and three. The Court indicated that it would memorialize its ruling in a detailed order. This order follows.
Plaintiff filed this action on February 21, 2017, in Superior Court in Gaston County, North Carolina. (Doc. No. 1-1). Defendants subsequently removed the action to this Court. (Doc. No. 1). Defendants answered the Complaint on March 31, 2017 and moved for judgment on the pleadings on August 11, 2017. (Doc. Nos. 7, 14, 15). On October 4, 2017, the Court granted in part and denied in part Defendants' motion for judgment on the pleadings. (Doc. No. 23). The Court dismissed Plaintiff's claims against G4S of (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; (3) violation of North Carolina Constitution; (4) conspiracy to violate Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1985; and (5) claims under Title VII and section 1981 to the extent based on discrete discriminatory acts occurring before May 4, 2016. (Doc. No. 23). The Court also dismissed claims against Chuck Brock, Donald S. Zeccardi, Malcolm Burchett, Tifani Grusky, and Michael Nail (the "Individual Defendants") of (1) breach of contract; (2) wrongful discharge; (3) discrimination claims under 42 U.S.C. § 2000e, et seq.; and (4) violation of the North Carolina Constitution. (Doc. Nos. 23, 25).
Defendants moved for summary judgment on November 2, 2017. (Doc. No. 27). In accordance, with a modified briefing schedule to accommodate additional discovery ordered by the Court, Plaintiff filed a response on December 5, 2017, and Defendants replied on December 8, 2017. (Doc. Nos. 40, 41). The Court held a hearing on December 11, 2017. The Court orally ruled on the Motion and indicated that this detailed written order would follow.
G4S secures people, property, and assets. (
G4S employed Plaintiff, an African-American male, from on or about July 16, 2001, until August 26, 2016. Plaintiff worked in the Charlotte and Mid-Atlantic Region, starting as a trainer in G4S's office in Charlotte, North Carolina. (Burchett Dep. 35:6-11; Grusky Aff. ¶ 5; Clark Aff. ¶ 4). In 2002, Plaintiff began work as the Assistant Project Manager of the Bank of America Corporate Center in Charlotte, North Carolina, before becoming Operations Manager of G4S's office in Charlotte, North Carolina, in 2004. (Clark Aff. ¶ 4). In 2008, Plaintiff became the Manager of Field Support for the Mid-Atlantic Region. (Burchett Dep. 35:6-11; Clark Aff. ¶ 5).
While working as the Manager of Field Support, Plaintiff signed the 2014 Bonus Performance Contract given him by G4S. (Burchett Dep., Ex. 2). However, in September of 2014, Plaintiff's position as Manager of Field Support was eliminated, and he was reassigned to a position as Site Manager of the Bank of America Corporate Center in Charlotte, North Carolina. (Raynor Dep. 182:10-184:14; Burchett Dep. 223:20-224:24; Grusky Aff. ¶ 28). Plaintiff was later removed from his position as Site Manager at the Bank of America Corporate Center in 2015 (Burchett Dep. 239:15-20; Nail Dep. 51:18-21) after he (1) posted a list of disciplined employees in the break room (Raynor Dep. 213:7-22, Ex. 20, 21, 22; Burchett Dep. 230:6-231:3, 238:9-239:5) and (2) failed to promptly send updated post orders to a Bank of America Vice President (Raynor Dep. 207:8-209:21, 213:7-22; Ex. 25, 26; Burchett Dep. 233:11-17). Employees submitted complaints about the posting of disciplined employees through the G4S Secure Solutions Ethics and Compliance Hotline. (Raynor Dep., Ex. 20, 22). Plaintiff contends that he did timely send the updated post orders and that Bank of America did not ask for his removal. (Doc. No. 40 at 10-11).
Plaintiff continued to work for G4S but on various other accounts and assignments in the Mid-Atlantic Region. (Burchett Dep. 78:9-16, 112:14-113:1; Raynor Dep. 159:11-25). Around March 2016, the Mid-Atlantic Senior Regional Vice President Malcom Burchett offered Plaintiff two open positions with G4S, Operations Manager of the Cincinnati, Ohio office and Account Manager for Fifth Third Bank. (Burchett Dep. 25:251-3; 77:16-78:4, 83:6-7; Raynor Dep. 223:8-18). Plaintiffs contends these offers were illusory, and Plaintiff had not been informed that his current work for G4S was temporary. (Doc. No. 40 at 12). In response to these offers, Plaintiff gave Burchett a piece of paper with $120,000 written on it and stated words to the effect of "this is what it will take to get me." (Burchett Dep. 79:18-80:4; Raynor Dep. 225:17-226:6, 231:6-232:6). Plaintiff expected Burchett to make a counter offer, but he admits he never followed up with Burchett. (Raynor Dep. 229:10-13, 232:1-11). Burchett believed $120,000 was "inflated beyond a reasonable request." (Burchett Dep. 104:5-8). Plaintiff's assignments concluded May 31, 2016. (Raynor Dep. 237:10-14). Plaintiff did not apply to any positions in G4S, including the positions offered by Burchett. (Raynor Dep. 70:19-23, Ex. 6).
In June, Plaintiff asked Tifani Grusky by email about his vacation time. (Raynor Dep., Ex. 29; Grusky Aff. ¶ 42). Grusky informed Plaintiff that he had no vacation time and had a negative four-hour balance. (Raynor Dep., Ex. 29; Grusky Aff. ¶43).
Plaintiff appeared on the no-earnings report in July of 2016. (Grusky Aff. ¶ 44). The no-earnings report alerts G4S that an employee has no wages in the past month. (Grusky Aff. ¶ 44). Generally, G4S administratively terminates employees listed on the no-earnings report without prejudice to the employee's ability to reapply for employment with G4S. (Grusky Aff. ¶44; Nail Dep. 268:9-20). Lesa Bodine administratively terminated Plaintiff. (Nail Dep., Ex. 31). Then, a severance agreement with four weeks of salary was prepared. (Burchett Dep. 175:14-178:14). Upper-level management employees, such as General Managers, received severance packages of a higher amount. (Burchett Dep. 187:23-204:9).
G4S's General Manager Michael Nail gave Plaintiff the Severance Agreement and General Release on July 20, 2016. (Nail Dep. 180:7-20). Plaintiff had concerns about the terms of the Agreement. (Raynor Dep. 249-50; Burchett Dep. 195-96, 249-50). Nail informed him that he could not answer his question, but he could submit the questions to Burchett in writing. (Raynor Dep. 248:1-250:12; Nail Dep. 184:3-188:22). As a result, on July 21, 2016, Plaintiff sent a written letter to G4S's Chief Human Resources Officer and Burchett. (Raynor Dep., Ex. 35; Dep. Burchett, Ex. 4). The letter outlined Plaintiff's concerns about the Agreement and used the terms "hostile" and "discriminatory." (Raynor Dep., Ex. 35; Burchett Dep., Ex. 4). Plaintiff contends the letter reports hostile and discriminatory treatment (Doc. No. 40 at 15); Defendants contend the letter describes the Agreement as "hostile" and "discriminatory" but failed to explain his reason for these allegations and to identify a protected class (Doc. No. 27-1 at 11). During the summer of 2016, Plaintiff received a letter from G4S's President Drew Levine, thanking him for his fifteen years of service with G4S. (Burchett Dep., Ex. 6).
After Plaintiff refused the terms of the Severance Agreement, Plaintiff was administratively terminated on August 26, 2016. (
Despite knowing of the procedures to submit a complaint and G4S's policy, in his 15 years of employment, Plaintiff never utilized G4S's hotline to make a complaint of race discrimination and never submitted a complaint of race discrimination in accordance with G4S's harassment policy. (Raynor Dep. 117:19-118:20; 121:10-121:20). Plaintiff, however, contends his July 21, 2016 letter complained of discrimination. (Doc. No. 40 at 6). Plaintiff filed a charge of discrimination with the EEOC on January 11, 2017, alleging discrimination from July 8, 2016 to August 26, 2016. (Doc. No. 13-1).
On a motion for summary judgment, the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact."
Fed. R. Civ. P. 56(c). If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact" with admissible evidence or explain how an admissible form of the evidence will be introduced at trial, "the court may: . . . (2) consider the fact undisputed for purposes of the motion; [and] (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it. . . ." Fed. R. Civ. P. 56(e);
"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). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Title VII prohibits an employer from (i) discriminating against an employee on the basis of race, color, religion, sex, or national origin and (ii) discriminating against an employee for opposing an unlawful employment practice under Title VII or for involvement in a Title VII investigation, proceeding, or hearing. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). Violations of Title VII for discrimination or retaliation may be proven by Plaintiff "either through direct and indirect evidence of retaliatory animus, or through the burden-shifting framework of
Under the burden-shifting framework, the plaintiff has the burden of setting forth a prima facie showing for discrimination or retaliation.
After the defendant shows a legitimate non-discriminatory or non-retaliatory reason, "the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse employment action is a pretext and that the true reason is discriminatory or retaliatory."
However, ultimately at trial, a plaintiff must show that the proffered reasons were pretext for unlawful discrimination.
As Plaintiff's section 1981 claims are premised on the same conduct as the claims for disparate treatment and retaliation and are analyzed under the elements under Title VII, the Court considers them together.
Plaintiff fails to make a prima facie showing for his disparate treatment claim. To establish a prima facie case of disparate treatment absent direct evidence, a plaintiff must show: "(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class."
Defendants argue Plaintiff has failed to set forth evidence supporting the second, third, and fourth elements of a prima facie case of disparate treatment. (Doc. No. 27-1 at 21-22). However, regardless of whether Plaintiff has shown satisfactory job performance and an adverse act sufficient for a prima facie case, there is no evidence of a similarly-situated employee outside of Plaintiff's protected class of race. Under the
In response, Plaintiff contends that Grusky was a similarly situated white employee. (Doc. No. 40 at 13, 22 (citing Grusky Dep. 80-91)). Specifically, Plaintiff argues that Grusky "turned down Mr. Burchett's suggested job opportunities and refused to relocate for advance placement with G4S" but "was never deemed to have constructively resigned[.]" (Doc. No. 40 at 20). However, as argued by Defendants, Grusky is incomparable to Plaintiff; she worked in administration (Grusky Aff. ¶ 4), not operations, like Plaintiff. (Doc. No. 41 at 3). Further, Plaintiff has not presented any evidence that Grusky engaged in similar conduct as Plaintiff. (Doc. No. 41 at 3). As evidenced by the deposition testimony, Grusky turned down suggested job opportunities in different circumstances. (Grusky Dep. 80-88). Specifically, when asked to talk about when Burchett had suggested she apply for positions with G4S, she testified:
(Grusky Dep. 80:17-81:2). In contrast, it is undisputed that Plaintiff had been removed from his position as Site Manager at the Bank of America Corporate Center for his conduct and was working on other accounts and assignments at the direction of his superiors. (Raynor Dep. 159:11-25).
Plaintiff also argues, without listing any names or a citation, that "[o]ther positions held by white employees (e.g., general managers) which Burchett claims were Plaintiff's `peers', all received substantial severance packages of a year's salary (or at least a half a year's salary), even when they were actually discharged for misconduct[.]" (Doc. No. 40 at 23). However, as discussed by Defendants in their brief and response, Burchett's testimony is to the contrary. (Doc. No. 27-1 at 17, 21-23; Doc. No. 41 at 5-6). Several general managers received severance payments equal to a one year or half a year's salary (Burchett Dep., 197:23-201:19), but he was not aware of any employee with similar duties, salary, and comparable circumstances as to Plaintiff (Burchett Dep. 202:14-203:12). Plaintiff, in contrast, had been a Site Manager, who reports directly to a General Manager (
To establish a prima facie case of retaliation, Plaintiff must show (1) protected activity; (2) adverse employment action; and (3) a causal connection between the protected activity and the materially adverse employment action.
"To satisfy the third element, the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity."
In this case, Plaintiff sent the July letter after he was first administratively terminated by Bodine and after Defendants had decided to terminate him and had given him the Severance Agreement. The July letter with the subject "Revoke Severance Agreement and General Release July 18, 2016," listed "Questions- from Severance Agreement and General Release," provided a "History of [Plaintiff] bringing in money to the company," and requested "a fair assessment of who I am and the quality of my work and the non-commensurate reward or disparate treatment and absence of recognition from G4S." (Raynor Dep., Ex. 35; Burchett Dep. 35). Although the terms "hostile" and "discriminatory" were used, the July letter did not mentioned any unlawful employment practice on account of any protected class.
Plaintiff does not in his response clearly address Defendants' arguments or dispute the facts as it relates to this claim. (Doc. No. 40 at 24; Doc. No. 41 at 6). At best, Plaintiff argues that because Defendants knew Plaintiff was a member of a protected class, they "knew that [its] disparate treatment and hostile work environment were unlawful," and as a result "when Plaintiff objected [in his letter], they simply terminated his employment for no other legitimate reason." (Doc. No. 40 at 24). However, the protected classes of race, color, religion, sex, or national origin are universal, which would make any complaint a protected act. Such an interpretation would be contrary to Congress's "manifest desire not to tie the hands of employers in the objective selection and control of personnel."
Defendants also contends it had the following legitimate non-discriminatory reasons for its actions including: "(1) budget cuts; (2) Plaintiff's poor performance, (3) Plaintiff's refusal to accept multiple positions generously offered by Mr. Burchett, and (4) Plaintiff's failure to apply for available positions with G4S on his own, which ultimately resulted in Plaintiff remaining on the no-earning list for more than thirty days." (Doc. No. 41 at 7; Doc. No. 27-1 at 25). Particularly relevant to the Court's assessment of claims not barred as untimely are justifications three and four.
"[W]hen an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not our province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination."
Plaintiff characterizes all Defendants' reasons as "pretextual and patently false" but does not offer evidence to create a genuine issue of fact as to Defendants' rationales, especially as to Plaintiff's refusal of position offers and failure to apply to other positions, which resulted in him appearing on the 30 day no-earning list. (Doc. No. 40 at 23). Plaintiff disputes these rationales as pretext by citing Plaintiff's testimony that "Burchett never told Plaintiff his last position was `temporary' and that his failure to apply for any position would be deemed a constructive resignation." (Doc. No. 40 at 12 (citing Raynor Dep. 108, 242:14-244:3, 259:11-261:2)). Similarly, Plaintiff cites to his testimony that the pay was too low for these positions. (Doc. No. 40 at 12 (citing Raynor Dep. 145:23-147:2, 219:7-226:13)). Plaintiff also points to an email stating that Plaintiff was on the 100 day no-earnings report, instead of the 30 day report. (Doc. No. 40 at 13 (citing Bodine Dep., Ex. 2)). However, Plaintiff does not dispute or offer evidence to contradict that (1) he was removed from his position at the Bank of America Corporate Center; (2) Burchett offered him two open positions in March 2016; (3) he told Burchett it would take $120,000 for him to accept one of the positions; (4) Plaintiff's last day worked was May 31, 2016; (5) he showed up on the 30 day no-earnings report in July; and (6) that generally employees listed on the 30-days no-earnings report were terminated. Plaintiff also admits he did not apply to any positions prior to his termination. (Raynor Dep. 56:12-17, 70:19-23, Ex. 6). Plaintiff's testimony may evidence a breakdown in communication between G4S and Plaintiff, but Plaintiff's own assertions of discrimination here are "insufficient to counter substantial evidence of legitimate nondiscriminatory reasons for an adverse employment action."
Plaintiff contends he has been subject to a hostile work environment since — on account of the "cumulative effect of the following individual acts": (1) the elimination of his position as Regional Manager in 2014; (2) the denial of his 2014 bonus in the spring of 2015; (3) his removal from his position as Site Manager for the Bank of America Corporate Center in August 2015; (4) Grusky using the "N" word to inform Plaintiff that a trainer was terminated for using the "N" word in his presentation; (5) the designation of him as a utility player or fixer without an identified job title in August 2015; (6) the denial of his vacation leave and pay in the summer of 2016; (7) the administrative termination of his employment in July 2016; (8) the offering of the Severance Agreement in July 2016; (9) the administrative termination of his employment in August 2016 after receiving his July letter; and (10) the letter from G4S's President congratulating him for his 15 years of service in late 2016. (Doc. No. 40 at 19-21).
Defendants first argue that any complaint of acts prior to May 4, 2016, are barred by the statute of limitations. (Doc. No. 27-1 at 19; Doc. No. 41 at 3). In these circumstances, the Court agrees.
When assessing a hostile environment claim, the court, therefore, must consider "whether the untimely acts [alleged to support the claim] are discrete such that they could, and should, have been previously brought or whether they are part of an ongoing pattern of harassing conduct, which, independently, would have been inactionable."
In contrast, hostile environment claims or harassment involve "repeated conduct"; an unlawful employment practice in this context "cannot be said to occur on any particular day" and "a single act of harassment may not be actionable on its own."
Here, Plaintiff has alleged several acts that occurred prior to May 4, 2016.
Second, Plaintiff alleges the denial of his contractual 2014 bonus in the spring of 2015 support his harassment claim. (Doc. No. 40 at 20). Here, as well, the act occurred when the regional bonuses where distributed in the spring of 2015 to other white regional employees but not to Plaintiff. The denial of contractually owed compensation in the form of wages or a bonus, clearly is detrimental to an employee.
Third, Plaintiff contends his removal from his position as Site Manager for the Bank of America Corporate Center in August 2015 and the designation of him as a utility player or fixer without an identified job title in August 2015 also supports a claim for harassment. (Doc. No. 40 at 20). However, as previously discussed, reassignments that result in detriment to the plaintiff are actionable discrete acts. Here, Plaintiff lost his status as an employee with a position in management, his ability to work for one of G4S's largest clients, and became an untitled employee without any defined responsibilities.
Next, the Court considers whether the remaining acts—four, six, seven, eight, nine, and ten—support a claim for discrimination based on a racially hostile work environment under Title VII.
The Court agrees that Plaintiff has produced no evidence that the acts four, six, seven, eight, nine, and ten where on account of Plaintiff's race and were sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere. Courts consider all the circumstances, which "may 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."
(Doc. No. 40 at 20 (citing Raynor Dep. 169-173)). Although any use of the "N" word is an "unambiguously racial epithet,"
Unlike other cases, Plaintiff has not presented evidence of a history of typical harassing acts like name calling, threats, and slurs that lead to a tangible employment action, like Plaintiff's termination.
Further, the denial of his vacation leave, discontinuance of temporary assignments, termination for no earnings and lack of work for his skill set or experience, offering of the Severance Agreement, the final termination in August of 2016, and the letter recognizing his 15 years of service do not, combined with act four, "clear [the] high bar [necessary] to satisfy the severe or pervasive test."
As raised by the Individual Defendants, the Supreme Court foreclosed section 1985(3) claims based on employment discrimination by private employers in
Plaintiff has not disputed that it voluntarily dismissed its claims of intentional or negligent infliction of emotional distress against the Individual Defendants and has not objected in his response or at the hearing to the entry of summary judgment in the Individual Defendants favor on these claims. Therefore, the Individual Defendants are entitled to judgment as a matter of law in their favor.
G4S contends Plaintiff was not entitled to a bonus under the 2014 Management Annual Bonus Plan because it was not signed, his position was eliminated, and awards are discretionary. (Doc. No. 27-1 at 28). However, as raised by Plaintiff, Burchett in his deposition admits that he has no reason not to believe he signed Plaintiff's Management Annual Bonus Plan for 2014 as he had done for other employees. (Doc. No. 40:9-10; Burchett Dep. 165:6-9). Also, the plain language of the Management Annual Bonus Plan does not support that bonuses were completely discretionary or that Plaintiff's reassignment resulted in his forfeiture of his bonus.
Here, the Management Annual Bonus Plan condition on forfeiture states:
(Burchett Dep., Ex. 2). Defendants have not argued or shown with undisputed evidence that Plaintiff was not employed as of July 1 or that Plaintiff was dismissed in circumstances justifying summary dismissal. Therefore, there are material questions of fact, and summary judgment is not appropriate.
As raised by Plaintiff, there are also material questions of fact as to Plaintiff's entitlement to vacation leave. (Doc. No. 40 at 14-15). An email from G4S's Human Resources Director Kym Cross reflects her determination that Plaintiff was entitled to vacation leave. (Doc. No. 40-12 at 4). Therefore, G4S is not entitled to summary judgment in its favor on Plaintiff's breach of contract claim or Wage and Hour Act claim.
Accordingly, Defendants' Motion for Summary Judgment (Doc. No. 27) is GRANTED on Plaintiff's claims one, four, five,
IT IS SO ORDERED.
(Doc. No. 1-1). Therefore, although any investigation of this charge could include harassment given Plaintiff's indication that this was a continuing action as previously found by the Court (Doc. No. 23 at 6), conduct or acts, especially discrete acts, nearly a year prior to the earliest alleged date of discrimination and unrelated to the Severance Agreement would not fall within the scope of a natural investigation.
