Alford v. Martin & Gass, Inc. et al, No. 1:2008cv00595 - Document 109 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION both defendants' summary judgment motions have been granted on all counts, and plaintiff's two summary judgment motions have been denied. The only remaining claims for trial are Alford's FLSA claims against M&G and Gass. Signed by District Judge Leonie M. Brinkema on 2/25/09. (jcor, )
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA CLERK. U.S. DISTRICT COURT ALEXANDRIA. \,A Alexandria Division CHARLES ALFORD, III ) Plaintiff, l:08cv595 v. MARTIN & GASS, INC., et (LMB/TRJ) al., Defendants. MEMORANDUM OPINION On January 9, parties' 2009, the Court held oral argument cross motions for summary judgment.1 At the conclusion of the hearing the defendants' motions were granted. Memorandum Opinion supplements the oral I. A. on the This ruling. BACKGROUND Alford's Employment with Martin & Gass and Assignment to Angler's Site. Plaintiff Charles Alford III ("Alford") is a 65-year-old African-American resident of the District of Columbia. first employed by defendant Martin & Gass left M&G in 2003, less ("M&G") He was in 1995. He claiming that he heard that white workers with experience were being paid more per hour than he was. 1 Although the Clerk was directed to enter judgment in defendant Angler Construction Co.'s favor under Fed. R. Civ. P. 58, a final judgment was not entered as to defendant Martin & Gass, Inc. because some claims under the Fair Labor Standards Act were not addressed. On February 2, have a Rule 58 judgment entered was -1- 2009, the parties' granted. motion to However, he returned to M&G in 2004 at a higher pay level. Although he performed a variety of construction-related tasks, Alford's typical M&G leased out job was to run and maintain a rock crusher that to contractors. Beginning in 2006 or 2007,2 Alford periodically operated M&G's crusher at a "recycling yard" Angler Construction Company worked at on the site of co-defendant ("Angler").3 the Angler yard at any given crusher from M&G on a regular basis, lease agreement, Approximately 20 people time. Angler leased the and M&G, supplied an operator, as part of Alford. the Alford was responsible for operating the crusher and for keeping it in good condition for M&G's benefit. for related tasks such as Angler employees were responsible loading the crusher, although Alford would occasionally do these tasks if an Angler employee was not present. Alford asserts worker at the site, occasionally at Hoffman, out that he was and that the only full-time black the only other black worker the site was M&G's fuel truck driver, who serviced and fueled the crusher. the crusher to other clients and used it B. Steve M&G also rented for its own jobs. Alleged Racist Incidents at the Angler Site. 2Because the parties have used both 2006 and 2007 as the start date, it is unclear exactly when Alford's work at the Angler yard started. 3The crusher crushes rocks and concrete into smaller pieces, and the "recycled" rock and concrete is used by Angler and sold to others for road paving and other projects. -2- Alford alleges that he was subject incidents at the Angler site.4 employees, to a series of racist According to Alford, including two individuals whom he describes supervisors,5 Kenneth McDonald and Gordon Sutton, to a number of racist incidents, declaration and depositions 1) Angler as Many Angler employees, as his subjected him described in Alford's the following: including McDonald and Sutton, "constantly made racial jokes." 2) Once when Alford was stated that "black people like Dr. people like Dr. 3) drinking a Dr. Pepper, Pepper" or McDonald "you black Pepper." Sutton asked him on several occasions, into that black skin? You're not black. 4In his Complaint and declaration "How do you get You're white." (Pl.'s Opp. to M&G Mot. S.J. Ex. 1), Alford also alleged racist incidents during his employment for M&G that did not involve Angler. He alleged that in 2006, at a project in West Ox Road in Fairfax, an M&G employee made several offensive comments, including "The last time I killed a black man it felt so good," and "Blacks don't know anything." Alford alleged that he reported the behavior to M&G's Superintendent, and the employee was terminated. Alford also alleged that in early 2007, two M&G workers made racist remarks about blacks to him on a regular basis, physically assaulted him, and attempted to get him fired, and that after Alford reported the behavior to M&G's superintendent, no disciplinary action was taken. However, none of these incidents were discussed either in Alford's opposition to summary judgment or at oral argument. Therefore, it appears that Alford is not relying on these incidents for his claims against M&G. sAs discussed further infra. Angler denies that either of these men were Alford's operators" supervisors, instead. -3- calling them "equipment 4) Sutton once used the Alford; specifically, fireplaces, and stuff "n" word in conversation with during a conversation about Sutton asked him, like that?" 5) the word was and there are no allegations ever repeated. In December 2007, or "doo-rag" s have fireplaces Alford told him he did not want to hear him use the word again, that "Do n Sutton ran around with a white bandana on his head with eyeholes cut out, as if it were a Ku Klux Klan hood. 6) In February or March of 2008,6 when Alford tried to instruct a white Angler employee on the proper use of M&G's excavator, the worker "became angry and deliberately swung a large rock around with the machine in a threatening manner, nearly hitting Mr. 7) Alford." In the spring of 2008,7 an Angler worker attached a large Confederate flag to his car and glared at Alford as he slowly drove by. C. Alford's Response to Alleged Racist Incidents. It is uncontested that Alford did not report any of these 6Although this time frame is alleged in the Complaint, unclear how this it is incident could have occurred any later than March 3, 2008, the date on which Alford, according to the undisputed evidence, left the Angler site permanently. 7Again, although this time frame is alleged, how any relevant incidents March 3, it is unclear could have happened any later than 2008. -4- activities Hazel, to M&G, about them, talking to Hazel, [Alford]." Hazel nor did he speak to Angler's president, even although Alford admits he was whom Alford describes as According to Alford, that he wanted to Jack comfortable "a very nice person to in October 2007, he indicated to talk with him about problems he was having with an Angler employee. employee or the nature of Alford did not identify the the problems. Hazel corroborates this, saying that Alford told him he was "concerned that there was some horseplay on the jobsite and ... if he had an issue, talk to me about it." testified that he asked Alford to be Hazel specific but Alford did not specify the nature of could he the problem. Alford testified that he never spoke to Hazel beyond this brief conversation because both were busy, as Hazel was the site constantly and Alford was asked for, and received, Hazel's that Alford never stated to Hazel, the alleged racist "running the machine." cell phone number, followed up to discuss any racist that any of "in and out" incidents. It Alford but never is undisputed either expressly or impliedly, incidents described above had occurred. Alford asserts incidents, because racial jokes he [he] that although he was offended by the "tolerated the insults and did not report needed the job." comments "could be them He speculated that many of joking around. that they be telling is funny to -5- of Like them, they think but it wasn't the the for me." He testified that he responded to the Dr. with, "There you go with the racial stuff again," and that when he heard other comments, D. he Pepper comment "would just walk off." Noose Incident of February 29, 2008. The incident at the heart of this litigation occurred on Friday, February 29, 2008, when Alford reported to the Angler yard after having been off the project for a few weeks. after he arrived, Shortly he noticed a noose around a black sweatshirt and pipe hanging from another piece of equipment. placed at a wood-processing station, the crusher was positioned, and about The noose was about twenty feet from where five feet from where Alford usually sat in his pickup truck while the crusher was operating. To Alford, man. the figure looked like an effigy of a hanged black Hoffman, the black fuel the effigy as well, truck driver for M&G, and told Alford, "I allegedly saw told you a long time ago, they don't like you here."8 It is undisputed that the noose was hung by three white Angler employees, father), Jeffrey "Craig" Lease, and Gary Wolfe, authority over Alford. Earnest Lease (Jeffrey's none of whom had any supervisory Jeffrey Lease had previously been involved in an altercation at work in January 2008 with another 8Although Alford alleges that Hoffman had warned him previously that Angler workers did not want him on the project, there is no affidavit, deposition testimony, or other direct statement from Hoffman in the record. -6- white employee and had been suspended. noose one week earlier, The three had put up the when Alford was not working at the site, and it hung there until Alford returned to the site on February 29. Alford photographed the noose and reported it to McDonald, who took it down within an hour. told McDonald about the noose, going on? McDonald said to him, "What's I guess that you're going to get Al Sharpton and the NAACP out here."9 president, the rest Alford alleges that when he Alford attempted to contact Sam Gass, M&G's that day but was unable to reach him. of his Alford worked shift on February 29. On the morning of Monday, March 3, Alford reported the incident to Gass and showed him the photographs of the noose. According to Gass' testimony, Gass asked Alford if there had been any previous racial incidents at Angler, that and Alford responded *there'd been a lot of joking around going on months." According to Gass, not reported anything, . . . for when Gass asked Alford why he had Alford responded that he "didn't feel like 'There is a conflict between Alford's deposition, taken on October 24, 2008, in which he states that McDonald made the "Sharpton" comment on Friday, February 29, and his declaration of June 2, 2008, which states that McDonald made the comment on Monday, March 3. The Court finds that this discrepancy is not a dispute of material fact that would preclude summary judgment on any of the counts. However, for the purposes of this opinion, the Court finds Alford's deposition testimony more persuasive than the declaration, particularly given that the declaration includes numerous facts summary judgment brief. that are not mentioned at all in the The Court will therefore adopt the February 29 date used by Alford in the deposition. -7- there was anything to report," around," and that he Gass that "[they] "didn't feel like he was immediately called Hazel. does not dispute, were all joking threatened." Hazel asserts, and Alford that this was the first Hazel heard of the noose or any other racial incidents directed at Alford. Hazel immediately went to the yard and spoke to Alford and to the three employees who had put up the noose. employees, Hazel questioned the verbally reprimanded them, and informed them that their behavior was inappropriate and that further such behavior would result in their termination. safety officer, Richard Athey, According to Athey, Hazel also had Angler's question the three employees. the employees told him that there was no racist intent and that the noose was not directed at Alford or at blacks. Athey testified that the three employees all gave the same basic explanation: Craig [Jeffrey Lease] had been watching [the movie] Hang xEm High. He had also watched Wild West and it happened to be on hanging. And that during lunchtime or what they call dinner, your noon meal, they were talking about it. Because that's what they'd watched over . . . the weekend. Talked about tying a hangman's noose. Craig says I don't know how. Gary says, you know, I think I know how. He says, I think I remember how. And so that's how it was done. Craig put a piece of pipe in there and a piece that was laying on the ground, and put a cover over it and called it his horse or donkey Pedro or something like that. It was an inappropriate joke between the 3 employees. Athey Dep. 32:10-32:22. during his deposition. Jeffrey Lease corroborated this account He also said that it did not occur to him -8- that "colored people" would be offended by testified that he did not even believe noose looked like a person - but suspended for the incident; warning letters" the indeed, he figure in the that after he spoke with a sheriff investigating the incident, Americans might take offense.10 that the noose - he understood why African- The three employees were not however, they were given "employee notifying them that their conduct was inappropriate and that future inappropriate conduct would result in termination. Athey asserts that he took notes while interviewing the employees, such, Angler was unable but lost the notes within a week. to produce Athey's notes for discovery. After speaking to Alford and the employees on March 3, called an employee meeting and told Angler's employees at yard that this conduct was unacceptable. Alford on behalf of the three employees spoke to Alford and told him that and made the same representations. [him] the situation was the Hazel and that Hazel addressed and then called Gass Gass said that Hazel that the incident was horseplay" Hazel Earnest Lease went to and apologized. Alford would not have any more problems. As "assured the individuals involved "had no intention or meant any direct type of harm . . . l0In the evening of March 3, 2008, Alford filed a report with the Prince William County Police, Bureau of Investigation. who contacted the Federal Law enforcement authorities investigated the noose incident as a hate crime; however, there is no evidence in the record as to the results of the investigation, nor is there indication that charges were ever filed. -9- to Mr. Alford." Gass asked Alford if the situation was to his satisfaction, and Alford replied that it was, would go to work for the rest of the day. Gass into exactly what Hazel had done to address addressed and that he did not inquire the situation, stated that based on Hazel's and Alford's representations, satisfied that the problem was resolved. 3, Gass also spoke to Hoffman, employee at who was the Angler facility. Gass it. he was At some point on March the only other M&G asserts that he "didn't really pay any attention to" "didn't notice" but that Hoffman said the noose and Gass did not undertake any further investigation after he spoke to Alford and Alford told him he felt the issue had been addressed. Alford alleges, however, that on the afternoon of March 3, when he returned to the Angler yard after his discussions with Hazel and Gass and after the employee meeting, "walked by and glared angrily" something terrible." at him, other workers "looking like I did Alford also asserts that one of the employees who was running a loader - possibly Gary Wolfe - riding by" on the loader "in a threatening motion the machine back and forth, . . . "kept swinging like it's going to hit my truck."11 "Alford testified during his deposition that before the noose incident, he had felt that a worker at Angler drove his vehicle too close to Alford's crusher. Alford said that he believed that these actions may have been intentional and motivated by race. Alford testified that he reported the truck Hazel, however, testified that incidents only to McDonald. Alford had told him about the truck incidents, -10- but did not Alford did not report any of the March 3 Gass. He did, however, inform Gass the Angler yard and did not want this point, Alford, at the parties Gass incidents12 to Hazel or that he felt uncomfortable at to continue working there. dispute Gass' reaction. told him that if he did not want the Angler site, According to Gass, According to to go back to work he had no other work for Alford to do. he told Alford he would try to reassign him to another job site if that was possible, type of work that would be.13 Change Notice" At in evidence but he was not sure what Gass testified, (M&G Mem. S.J. Ex. and a "Payroll 5) corroborates, that M&G offered Alford a position operating a rubber tire loader, a position whose standard pay would represent a 30 percent pay cut, and Alford declined it. although the tire loader position was Gass less best position he could find for Alford, testified that lucrative, it was the and that he attempted to indicate that he thought they were motivated by racial animosity; rather, he had raised it as a safety concern. Hazel testified that he believed one of the workers was Gary Wolfe, that he spoke to Wolfe at the time, and told him to make sure to give Alford room. Alford does not mention the truck incidents in his summary judgment opposition when describing the history of alleged racist incidents at Angler. l2As discussed supra, in his declaration, Alford also stated that McDonald's "Sharpton" comments occurred on March 3. Regardless of when those comments occurred, Alford did not report them to Hazel or Gass. I3M&G owned only one crusher, which was at the Angler site; thus, Alford would not be able refused to operate to work at Angler. -11- the crusher if he accommodate Alford even though such accommodation would have required him to disrupt crews and move other employees to different locations. other jobs, Alford disputes that Gass ever offered him but argues that in any event, a choice between remaining in a racially discriminatory environment at Angler and taking a 30 percent pay cut would have represented a "Hobson's choice." On March 4, coming back to work, Gass called Alford and asked if he was and Alford said he was not. Alford has not worked for M&G since.14 E. The Complaint and Summary Judgment Motions. Alford has sued both M&G and Angler for race-based discrimination, harassment/hostile work environment, and retaliation under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea. ("Title VII"), which prohibits employment discrimination on the basis of race, of the Civil Rights Act of 1866, Act of 1991, 42 U.S.C. § 1981 and Section 1981 as amended by the Civil Rights («§ 1981"), which prohibits racial discrimination in the making and enforcing of contracts. Alford has also sued Angler for negligently retaining Jeffrey Lease after his suspension for fighting. M&G and Angler have moved for summary judgment on all of the above claims. Alford has filed I4M&G asserts that Gass told Alford that he could take four days of paid vacation to consider whether or not he wanted to return to the Angler site, that Alford did so, but then chose not to return. -12- cross motions for summary judgment against both defendants; his motion against M&G requests that M&G be barred from asserting certain affirmative defenses, and his motion against Angler asks for summary judgment or an adverse jury instruction because of Angler's alleged spoliation of evidence. includes two Fair Labor Standards Act and Samuel Gass The Complaint also ("FLSA") claims against M&G for misclassification and collection of wages. These claims were not at issue in the summary judgment motions. II. STANDARD OF REVIEW Summary judgment is appropriate when, pleadings and attached evidence, on the basis of the there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Catrett. See Fed. 477 U.S. 317, R. Civ. 322-23 P. 56(c); (1986). Celotex Corp. Evidence must be viewed in the light most favorable to the nonmoving party. Elec. Indus. Co. v. v. Zenith Radio Corp.. 475 U.S. Matsushita 574, 587 (1986). The non-movant must set forth specific facts showing that there is a genuine issue for trial, Fed. R. Civ. P. 56(e). Evidence that is "not significantly probative" summary judgment motion. U.S. 242, 249 "merely colorable" or is insufficient to overcome a Anderson v. Liberty Lobby, (1986). III. A. and not rest on mere allegations. DISCUSSION Claims against Martin & Gass. -13- Inc.. 477 Summary judgment in favor of M&G was granted because the evidence unequivocally establishes that M&G was unaware of any of the alleged racist conduct occurring at the Angler yard until after Alford reported the noose incident. through Gass, In addition, M&G, responded quickly and appropriately once Alford told Gass about the noose incident, and there is no evidence supporting Alford's claim of retaliation. 1. Discrimination and Hostile Work Environment. The claims in Count I (discrimination) (harassment/hostile work environment) and Count are essentially the same, as both allege racially harassing conduct at Thus, II the Angler site. the standard for evaluating the two counts is the same. make a prima facie claim for a hostile work environment, plaintiff must show on race, gender, (1) a unwelcome conduct or harassment or other protected characteristic To (2) based (3) sufficiently severe and pervasive so as to alter the conditions of employment and create a hostile work environment, basis for imputing liability to the employer. Union Nat'l Bank. As 202 F.3d 234, 241 (4th Cir. the evidence clearly establishes, comments and behavior occurred at employees. Assuming, arquendo. Smith v. meets the first three elements above, basis for imputing liability to M&G. -14- (4) some First 2000). all of the racist the Angler site, that and by Angler the conduct in question Alford must still show a The parties dispute the standard for imputing liability. should hold it liable M&G argues that the Court "only if it knew or should have known about the harassment and failed to take effective action to stop it . [by] respond[ing] 2008) Conversely, EEQC v. (1) Sunbelt Rentals. (internal quotation marks Alford urges for the harassment unless that 521 F.3d 306, and citations omitted). it can establish an affirmative defense it exercised reasonable care and (2) to prevent and promptly Alford unreasonably failed to take advantage of any preventive or corrective opportunities otherwise to avoid harm. See Mikels v. 323, citing Faraaher v. (4th Cir. 524 U.S. 775 742 1999), (1998), 319 the Court to hold M&G strictly liable correct harassing behavior, 332 . with remedial action reasonably calculated to end the harassment." (4th Cir. . City of Durham. and Burlington Indus, 183 or F.3d City of Boca Raton. v. Ellerth. (1998). The appropriate standard to be applied is by M&G. This standard is 524 U.S. the one proposed typically applied to employers for harassment committed by the victim's non-supervisory co-workers. See Howard v. Winter. 446 F.3d 559, also been extended by some courts 565 to (4th Cir. the acts Pizza Hut. Inc.. It has of non-employees over whom the employer exercises some control.15 lsSee Lockard v. 2006). Conversely, 162 F.3d 1062, 1074 the (10th Cir. 1998) (holding that a restaurant is liable for harassment by customers if the restaurant "failfs] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have -15- standard suggested by Alford, vicarious liability (the which contains a presumption of "Faraaher/Ellerth" only to discrimination by the victim's the discrimination is standard) supervisors, applies and only when "aided by the agency relation" between the supervisors and the employer. Mikels. 183 F.3d at 331. has alleged two categories of discrimination, and prior incidents at Angler. Alford the noose incident It is undisputed that the noose incident was perpetrated by non-supervisory co-workers of Alford; thus, M&G's proposed standard, applies to that incident. not Faraaher/Ellerth. Regarding the prior incidents, is a dispute as to whether McDonald and Sutton, perpetrators, were Alford's clearly "supervisors" there the alleged at Angler. The Court has resolved this question in the negative for reasons that are discussed infra in Part III.B; thus, M&G's proposed standard applies to the prior incidents as well. However, even if McDonald and Sutton could be considered Alford's supervisors because they had authority over Angler's yard, the Faraaher/Ellerth vicarious liability presumption, on agency principles, which is based would still not apply to M&G because McDonald and Sutton were not agents of M&G. Therefore, harassment of Alford could not have been "aided by known"); Crist v. Focus Homes. Inc.. 122 F.3d 1107, [an] 1108 their agency (8th Cir. 1997) (holding that a nursing home could be held liable for harassment by a resident when it knew of the conduct and failed to respond appropriately). -16- relation" for with M&G, and M&G cannot be held presumptively liable their actions. of Alford's Faraaher/Ellerth is claims against M&G. for harassment by Angler's known of thus Instead, employees if inapplicable to any M&G can only be liable it knew or should have the conduct and failed to take appropriate remedial action. On this incidents record, it is clear that M&G is at Angler before the noose-hanging, not a scintilla of evidence that M&G was incidents. incidents 2008, Alford admits to M&G. liable for the because there is on notice about any such that he never reported any of those The first hint of any problem was on March 3, when Alford, while reporting the noose alluded to the past lot of not incidents, joking around going on incident stating only that ... for months," to Gass, "there'd been a that he did not report it because he "didn't feel like there was anything to report," "didn't feel like he was and that he threatened" by those incidents. Nowhere does Alford allege that he reported any of the details of the prior incidents should have taken action in response. to Gass, Thus, there is no basis for imputing liability for the prior incidents Regarding the noose incident, by itself, or that Gass to M&G.16 accepting that this incident, could constitute severe and pervasive conduct because l6Indeed, Alford appears to concedes that M&G is not liable for the prior incidents, as his opposition to M&G's summary judgment motion focuses almost entirely on the noose incident. -17- of the deeply hurtful meaning of a noose M&G is still not liable because it action once put on notice. called Hazel, Gass, the noose Hazel incident, to the employees. Alford argues time, then promptly telling him that he had investigated the Gass said he would go back By this Hazel determined it was not race-motivated, resolved. immediately then investigated the itself had already been removed. reported back to Gass, it was took appropriate remedial M&G's president, Angler's president. incident personally and spoke to African-Americans, and believed that then spoke to Alford again, and Alford to work. that M&G's actions in response to the noose incident were insufficient and that Gass "abjectly forsook any responsibility" statements at value, that did not when he accepted Hazel's conduct his own investigation, remedial measures were implemented or meted out. However, particular remedial that could be devised." does not Mikels. the most 183 and did not verify that discipline was the Fourth Circuit does responses be "not require[] certainly effective This Court inadequate. Gass and Hazel obviously had a long-standing business relationship. evidence in the record that would have caused Gass employees - who himself went promptly to the yard, and Alford, disingenuous. and reprimanded the employees Moreover, Alford told Gass -18- that F.3d at 330. find that M&G's response was that Hazel face he was There is no to believe spoke to the - was being satisfied. On these facts, undertake his remedial nothing indicated to Gass own investigation. that he needed to Because M&G took prompt action reasonably calculated to conduct of Angler's employees cannot be end the harassment, imputed to M&G, the and Alford's discrimination and hostile work environment claims against M&G fail. 2. Retaliation. Alford also claims prevail, Alford must prove activity, of that M&G retaliated against him. and that M&G that he engaged in a protected took an adverse action against the protected activity. F.3d 179, 190 (4th Cir. To Sprioas v. 2001). him because Diamond Auto Glass, 242 Alford engaged in a protected activity when he reported the noose to Gass. However, he cannot show that M&G retaliated against him in response. Alford first alleges failing to address that M&G retaliated against him by the harassment on the Angler worksite. This allegation does not state an actionable retaliation claim, because it alleges no adverse action by M&G that was Alford's complaint. address Rather, the offensive conduct work environment claim, even if shows as as caused by any failure by M&G to properly is an element of Alford's hostile described at length above. this were an actionable retaliation claim, that M&G took reasonable action to address described supra. -19- Moreover, the evidence the harassment, Alford next argues finding him work at a that M&G retaliated against him by not location other than the Angler site. M&G has offered an affidavit and deposition testimony by Gass, well a Payroll Change Notice (M&G Mem. that M&G offered Alford a chance operator - an alternative, contends S.J. to work as Ex. 5), tire loader position. Alford that Gass never offered him another opportunity. Whether or not Alford was offered another job, there are no in evidence that support a conclusion that M&G's retaliatory. crusher, as evidence a rubber albeit lower-paying, as Alford was a crusher operator. which was assigned to Angler. crusher from the Angler job actions were M&G owned only one Short of pulling the (and possibly exposing itself liability for breach of contract), facts to M&G could not have found Alford a job operating the crusher. Furthermore, Gass's testimony that he did not have any other crusher work for Alford at the time is undisputed. speculation, In short, other than pure there is no evidence that M&G's Alford to another crusher job elsewhere was Finally, failure to reassign retaliatory. Alford alleges that by not reassigning him, retaliated by constructively discharging him. as well. Constructive discharge requires This M&G claim fails that an employer deliberately make an employee's working conditions intolerable in an effort to induce him to quit. Management. Inc.. 259 F.3d 261, Matvia v. 272 -20- Bald Head Island (4th Cir. 2001). Even if Alford could establish that his working conditions were intolerable, there are no facts deliberate efforts by M&G to For these reasons, in evidence that support any- force him to quit. summary judgment was granted to M&G on both the Title VII and § 1981 claims,17 and Alford's cross-motion for summary judgment was denied.18 B. Claims Against Angler. Summary judgment was § 1981 granted to Angler on the Title VII and claims of discrimination and retaliation because Angler was not Alford's employer and did not have a contractual relationship with him, once it was notified of and took appropriate remedial measures the harassing conduct. Moreover, there is no evidence in this record that Angler retaliated against Alford. Summary judgment was also granted to Angler on Alford's negligent retention claim because Jeffrey Lease's participation in the noose-hanging was not a foreseeable result of Angler's retention of him following a fight with another white employee. 1. Title VII and § 1981 Claims. l7Title VII and § 1981 claims require the same essential elements, both for hostile work environment claims, see Spriggs, 242 F.3d at 183-84, and for retaliation claims, see Bryant v. Aiken Regional Medical Centers Inc.. 333 F.3d 536, 543 {4th Cir. 2003). Thus, both fail as a matter of law. 18In Alford's motion, he seeks to bar M&G from asserting the Faragher/Ellerth affirmative defenses. Because, as described above, the Faragher/Ellerth standard is inapplicable to M&G, Alford's motion for summary judgment has been denied. -21- i. Whether Angler was Alford's Employer. For Angler to be liable to Alford under Title VII, must have been Alford's employer. North Carolina, N.A., 259 See Farlow v. F.3d 309, 313 Angler Wachovia Bank of (4th Cir. 2001). Whether a relationship is an employer-employee relationship or an independent contractor relationship depends alleged employer has the by which the product is to this "right to control accomplished." on whether the the manner and means Id. The factors relevant inquiry include: the skill required; the source of the instrumentalities the location of the work; the duration of and tools; the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Id. The parties' beliefs regarding the nature of relationship are also significant. VII purposes, have more Id. A party may, than one employer at a more companies can jointly employ an employee. Peak Tech. Servs.. Inc.. 808 F. Supp. the employment 500, 507 time, for Title and two or See Magnuson v. (E.D. Va. 1992) . Under this standard,19 Angler was not Alford's employer for Title VII purposes. Alford was paid by M&G, was M&G's employee 19Tellingly, Alford's opposition to summary judgment cites non-binding case law from other jurisdictions, Fourth Circuit standard from Farlow. -22- rather than the for tax purposes, and received no benefits also was not located at Angler full-time; Angler's yards on a regular basis, as well. operate M&G's crusher,20 and, Alford although he was at his work at the Angler site was not an exclusive relationship and he crusher to other sites from Angler. His traveled with the only duty at Angler was as M&G's employee, individual authorized to operate the crusher.21 he was to the only He would occasionally direct Angler employees loading the crusher to ensure they would load the crusher in a way that would not damage it. This, however, does not establish any employer-employee relationship between Angler and Alford; that Alford had a degree of if anything, it shows independence from Angler because of his responsibility to safeguard M&G's equipment. In addition, promote, demote, job duties. Angler had no authority whatsoever to fire, reassign, Presumably, or discipline Alford, or to change his Angler could have reported Alford to M&G 20Although Alford asserts that he would occasionally fill in for Angler employees doing other jobs, the evidence shows that these other jobs - loading the crusher, and operating a hoe that fed the crusher - directly revolved around the crusher. Furthermore, Alford testified that he did these other jobs because his employer, M&G, did not like down time - not because of any duty he owed to Angler. 21A1 though Alford points to an excerpt from Sutton's deposition stating that Alford would sometimes sit in his truck during lunch while Angler employees worked with the crusher, the deposition shows that the Angler employees loaded the crusher, using a different tool called an excavator. Alford was the sole individual who operated the crusher, which he did using a computer, sometimes remotely from his truck. -23- had his performance been unacceptable, sufficient but if this were to create an employer-employee relationship, then any worker in a contracting situation would be an employee. did not consider Alford to be their employee; crusher from M&G, and Alford came with it. supplied a different crusher operator if Alford also asserts Gass' instructions of supervisors testimony that McDonald, at was minimal, that and that Angler's and (3) follow the an Angler employee, any control to do so. employer because of the Angler yard, and Alford's directed him as However, to Alford's exercised by Angler over him instructions were limited to what stone Angler wanted him to crush, produce, it chose expected to what work he would do on any given day. deposition shows they rented the M&G could have that Angler was his testimony that Alford was Angler (2) what (1) size stone to where on the yard to position the crusher: Q. And Angler directed you in that work by saying, "Here is the pile we want you to crush," correct? A. Correct. Q. And Angler directed you by size of A. rock we want to telling you, come out at "This the end," is the correct? Correct. Q. All right. And other than that, did Angler direct you in your work in any fashion at all? A. No; only in going to one place to another. Q. Right. Where to be. A. Yeah, Alford Dep. therefore, where to be. 104:16-105:4. amount insufficient to Angler's the mere instructions assignment of work, to Alford, which is to create an employer-employee relationship. -24- See West v. 2002) MCI Worldcom, ("The fact that Inc., 205 F.Supp.2d 531, [supervisors] assigned work in the first place is more akin to oversight that courts Because there was Angler and Alford, fail. For all 540 Va. [an employee] the the administrative find does not qualify as control.") no employer-employee relationship between of the Title VII the same reason, Alford's § claims against Angler 1981 claims fail because Alford did not have any contractual with Angler, (E.D. against Angler relationship but only with M&G.22 ii. Other Reasons Alford's Discrimination Claims Fail. Even if Angler were considered Alford's VII and § 1981 claims still fail employer, his Title for independent reasons articulated below. a. Discrimination/Hostile Work Environment: Noose incident. As articulated supra, an employer is only liable for discriminatory harassment by non-supervisory employees fails to it take effective action to stop the harassment once it has actual or constructive knowledge of F.3d at 319. workers, if it. See Sunbelt Rentals. 521 The noose incident was perpetrated by Alford's co- not his supervisors; thus, this standard applies. 22An at-will employment relationship constitutes a contract for § 1981 purposes, see Spriqqs, 165 F.3d at 1018-19; however, this relationship must still be between the plaintiff and the defendant, which it was not in this case. -25- The evidence in the record clearly establishes responded reasonably to the noose incident. that Angler This was the first incident of racial harassment Alford reported to Angler, Angler and immediately responded by having the noose removed. personally went to the yard and interviewed the employees same day he learned of the noose incident. interviewed those responsible and each was both oral and written warnings would result in termination. employees Hazel on the Athey also reprimanded and given that future inappropriate conduct Hazel also called a meeting of all in the yard and told them this sort of conduct was unacceptable. Angler took actions similar to circuit courts to be sufficient under similar or worse circumstances. F.3d 1021 See Williams v. (7th Cir. 2004) of 111., 361 liable after threatening termination told a black man he looked like a gorilla, found by Inc.. (finding an employer not it provided verbal warnings who Waste Mat, those to employees used the n-word, and placed an extension cord tied as a noose on his workbench); Hollins v. Delta Airlines, 238 F.3d 1255 (10th Cir. 2001) (finding an employer not liable for a noose-hanging and a joke about hanging another employee, where the employees involved were reprimanded and the nooses were removed). Angler's The reasonableness of response is also enhanced by the absence of any history of racial animosity between Alford and the three employees (Alford admitted he did not even know their names) -26- and the fact that the noose was hung during a time period when Alford was not even at the yard. Finally, Alford's motion for summary judgment, asks for judgment against Angler, in which he or alternatively an adverse jury instruction for spoliation of evidence, is unavailing. motion is based on Athey's the notes that he his investigation, notes that that would be adverse they would have shown that truly race-motivated, not. noose incident was - the for incident was concluded it was denied because even assuming that race-motivated, harsh reprimand was the Angler's response of issuing a an adequate response as a matter of law for described above, spoliation of took during to Angler the noose although Athey and Hazel Alford's motion was the reasons of and is premised on the possibility that contained evidence example, loss This evidence was and therefore, immaterial any possible to the outcome of Angler's summary judgment motion. b. Discrimination/Hostile Work Environment: Prior Incidents. Angler is also not liable discriminatory incidents for any of the alleged that occurred before the noose incident. Under the standard applicable to harassing conduct by co-workers, see Sunbelt Rentals, 521 liable as Alford never however, alleges that F.3d at 319, reported any of the perpetrators McDonald and Sutton - were his Angler these of clearly not incidents. Alford, the offensive conduct supervisors, -27- is and therefore that - Angler is strictly liable for their harassment, potential affirmative defenses, standard.23 Alford's claim, Sutton were not his the yard, Sutton's foremen; however, fails because McDonald and stated that he viewed them as rather, the foreman, the two took it upon themselves In any event, they supervised other Angler employees, McDonald and Sutton Neither one had authority to take any tangible employment actions by telling him what "occasional authority to direct Mikels, 183 sufficient F.3d at 334. This stones to crush, [Alford's] against McDonald had operational conduct." limited authority is not to make McDonald and Sutton's alleged harassment "aided by the agency relation" with Angler or "vulnerable against to and defenseless to whether or not clearly had no supervisory authority over Alford. At most, in charge that neither he nor McDonald had formal establish an informal hierarchy. him. two under the Faraaher/Ellerth and in particular viewed McDonald as testimony was titles as to supervisors. Although Alford has of subject the . to make Alford . . conduct that comparable conduct by a mere co-worker would not." 23As explained supra in Part III.A, in ways Id. at under the Faraqher/Ellerth standard, an employer is liable for harassment by a supervisor unless it can establish an affirmative defense that (1) it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities or otherwise to avoid harm. See Mikels, 183 F.3d at 332, citing Faraaher 524 U.S. at 775, and Ellerth. 524 U.S. at 742. -28- 333. Rather, over Alford] VII purposes, As a result, the "authority possessed was at best minimal." they were Alford's Angler at 334. co-workers, not his for Title supervisors. even if and Alford's claims the prior incidents were the prior incidents were not Alford must alter the conditions of [his] to employer), severe and pervasive. show that their fail.24 imputable (and if Angler were considered Alford's standard, Thus, because Alford never reported their conduct, conduct cannot be imputed to Angler, Finally, Id. [by McDonald and Sutton the conduct was most of To meet sufficient this "to employment and create an abusive working environment." Harris v. Forklift Systems, 510 U.S. (internal citations and quotation marks 17, omitted). meet this 21 (1993) Most of standard, offhand comments, 788, the prior incidents, Indeed, and isolated incidents," Alford himself by the incidents, while offensive, but were in the nature of that do not meet the Inc., "[s]imple Faraqher, "severe and pervasive" testified that he did not although he clearly was did not teasing, 524 U.S. at requirement. feel threatened offended by them. The 24Even if McDonald and Sutton were Alford's supervisors, Angler could establish a Faraaher/Ellerth affirmative defense. Angler had an anti-harassment policy, which strongly militates in favor of concluding that it exercised reasonable care to prevent and protect harassment. See Brown v. Perry, 184 F.3d, 388, 396 (4th Cir. 1999) . In addition, Alford failed to inform Hazel of any of the alleged conduct prior to the noose incident despite being comfortable Alford's talking failure to report to Hazel. Under these circumstances, the offending conduct was unreasonable. -29- only possible exception is the "Klan hood" incident, which on its own could arguably constitute severe and pervasive conduct. However, given the numerous independent reasons articulated above for dismissing Alford's discrimination claims against Angler, it is unnecessary to resolve this issue. c. Retaliation. Angler also did not complaint about retaliate against Alford for his the noose. To prevail on this claim, prove that he took a protected action, Alford must and that Angler took an adverse action against him because of the protected action. Spriggs. 242 F.3d at 190. The adverse action taken by Angler must have been "materially adverse;" of action that might "dissuade[] that is, a reasonable worker or supporting a charge of discrimination." Santa Fe Rv. Co. v. White. 548 U.S. 53, The only incidents Alford alleges reporting of the noose incident were the loader incident, of from making Burlington Northern & 67-68 (2006). occurred after his the uncomfortable glaring, and possibly the "Sharpton" comments. None these de minimis actions by non-supervisory employees constitutes a employer. the it must be the type "materially adverse" In addition, these minor actions reasonable steps Angler took Thus, action by Angler as an to address are far outweighed by the harassment. summary judgment has been granted to Angler on Alford's retaliation claim as well. -30- 2. Negligent Retention. Angler was granted summary judgment retention claim. Under Virginia law, on Alford's negligent an employer "is subject liability of harm resulting from the employer's negligence retaining a dangerous employee who have known was dangerous Aots. Mamt., Inc. v. in the employer knew or should and likely to harm others." Jackman. to 513 S.E.2d 395, Assuming that a noose-hanging can constitute 397 the Southeast (Va. 1999) . "harm" necessary to trigger a negligent retention claim under Virginia law,25 the negligent retention claim here fails because the harm caused by Lease was not a foreseeable result of Angler's decision to retain him. The harm suffered as a result of a negligent retention of an employee must be a foreseeable result of Crump v. 2007). Morris. That is, 2007 WL 6002110, at (Va. Cir. to hold the employer liable, relationship between the employee's were known to *4 the retention. Here, Mar. 12, there must be some dangerous propensities the employer and the harm that ultimately caused. Ct. See that the employee Angler retained Jeffrey Lease after he 25 Compare Parker v. Geneva Enters., Inc., 997 F.Supp. 706, 714 (E.D. Va. 1997) (holding that negligently hiring or retaining an employee who discriminates based on race or gender, but who does not cause physical harm, United Am. Ins. Co.. 154 F. is not actionable) Supp. 2d 907, 908 with Sutphin v. (W.D. Va. 2001) (holding that negligent retention requires only that the retained employee commit a "cognizable wrong" against the plaintiff and suggesting that Title VII discrimination could constitute a cognizable wrong). -31- engaged in an altercation with another white employee. This altercation in no way put Angler on notice that Lease might engage in a racially discriminatory act such as a noose-hanging. Even if Angler did not exercise due care in retaining Lease, harm to Alford as foreseeable. a result of Lease's Summary judgment has Angler on this For the above reasons, therefore been granted to CONCLUSION both defendants' motions have been granted on all claims subsequent actions was not claim as well. IV. summary judgment motions counts, Entered this ry°> have been denied. day of February, summary judgment and plaintiff's for trial are Alford's FLSA claims Alexandria, any The only remaining against M&G and Gass. 2009 Virginia /s/ Leonie M. Brinketffe United States District Judge -32- two
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
