Henry v. Vaughn Industries, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:18-CV-498-D

SEAN HENRY, )

Plaintiff,

V. ORDER

VAUGHN INDUSTRIES, LLC,

Defendant.

On October 22, 2018, Sean Henry (“Henry” or “plaintiff”), an African-American, filed a

complaint against Vaughn Industries, LLC (“Vaughn” or “defendant”) under Title VI of the Civil

Rights Act, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981 [D.E. 1]. Henry alleges that he began

working at Vaughn as a safety employee through a temporary staffing firm and that Vaughn racially

discriminated against him when Vaughn did not hire him as a full-time Vaughn employee and later

terminated his employment as a temporary employee. See id. Henry also alleges that Vaughn

retaliated against him for participating in an internal investigation of another employee’s misconduct

in November 2016. See id. On July 26, 2019, Vaughn moved for summary judgment [D.E. 18] and

a memorandum and statement of material facts in support [D.E. 19, 20, 21]. On August 16,

2019, Henry responded in opposition [D.E. 24] and filed a statement of material facts [D.E. 22, 23].

On August 30, 2019, Vaughn replied [D.E. 25] and responded to Henry’s statement of material facts

[D.E. 26]. As explained below, the court grants Vaughn’s motion for summary judgment.

I.

Vaughn is an electrical construction contractor based in Carey, Ohio. See Blair Aff. [D.E.

21-1] 41. Vaughn specializes in “electrical, mechanical (HVAC and Pipefitting), plumbing, high

voltage substation, high voltage transmission and distribution, and renewable energy construction.”

Blair. Aff., Exs. [D.E. 21-1] 7-8. In 2016, Vaughn began a project in Wilson, North Carolina to

build eight solar fields (the “Wilson Project”). See Blair Aff. § 2. In the same year, Vaughn

contracted with Aerotek, a staffing firm for temporary workers, to help Vaughn locate temporary

“Safety Specialists” to work on the Wilson Project. See id. at 3. A “Safety Specialist” is

“responsible for monitoring compliance with Vaughn’s safety policy and ensuring compliance with

safety regulations issued by the state and federal enforcement agencies.” Id. at J 4; see Livingston

Aff. [D.E. 21-2] 4. Vaughn Safety Specialists must have a valid driver’s license to drive to □□□

from job sites. See Livingston Aff. J 6, 10.

On September 26, 2016, Henry began working through Aerotek as a temporary Safety

Specialist on the Wilson Project. See Livingston Aff. § 5. On the same date, Vaughn assigned

Brenda Upchurch (“Upchurch”) as a human resources coordinator for the Wilson Project. See Blair

Aff. 10. Upchurch assisted Vaughn with human resources related to Vaughn’s temporary workers

including to recruit and train temporary employees, to coordinate with temporary-employee agencies,

and to act as the temporary employees’ “HR point of contact” for the Wilson Project. See id. at □

11. .

Before working at Vaughn, Henry worked in a supervisory capacity at another electrical

safety job. See Henry Dep. [D.E. 21-3] 6-7. At several points during his employment, Vaughn

employees asked Henry to get a valid driver’s license so that his employment could continue. See

Livingston Aff. J 7; Blair Aff., Exs. at 12-15. Henry, however, did not have a valid driver’s license

throughout his employment as a temporary employee with Vaughn and repeatedly stated that he was

working through a legal process to get his driver’s license reinstated. See Blair Aff. J 8; Livingston

Aff. JJ 6-8; Henry Dep. at 10. Vaughn’s Safety Director, Robert Livingston (“Livingston”),

believed that Henry’s driver’s license would soon be reinstated. See Livingston Aff. J 9. In the

interim, Livingston instructed Henry to get rides to the Wilson Project jobsites in Vaughn-provided

transportation. See id. This option was available on the Wilson Project “because, as part of the

facilitation of the work, and size of the workforce, Vaughn hired buses and vans to transport

employees and temporary workers from Vaughn’s offices or warehouses to the jobsites and, when

necessary, between jobsites” in Wilson. Id.

On November 15, 2016, Vaughn hired Tim Rice (“Rice”) as a Quality Control Supervisor

for the Wilson Project. See Blair Aff. § 13. On November 16, 2016, a Wilson Project foreman,

Scott Dawson, was notified that Rice made homophobic and racist statements when giving

instructions to employees. See id. Upchurch gathered statements from ten employees who heard

Rice’s statements. See id. at § 14. Of the ten employees that provided statements, all were

temporary workers, eight were African-American, one was white, and one was an “unknown” race.

See id. On November 18, 2019, Vaughn fired Rice for violating Vaughn’s equal employment and

anti-harassment policies. See id. at { 15. After Rice’s firing, Henry alleges that Brian Tschanen

(“Tschanen”), Vaughn’s Division Manager for solar construction, did not allow Henry to park “up

front,” “impeded” Henry’s work by sometimes not following Henry’ s advice, and did not give Henry

a key to the building in which Henry sometimes worked when Henry’s supervisor was on medical

leave. Henry Dep. at 24.!

In early 2017, Vaughn sought to hire a Safety Coordinator to oversee Vaughn’s safety

operations throughout the southeastern United States. See Livingston Aff. J 10. The Vaughn Safety

Coordinator also would oversee the Wilson Project jobsite, and the position required a valid driver’s

1 Tschanen’s name is spelled incorrectly as “Shannon” in Henry’s deposition transcript. See

[D.E. 19] 171.5.

license. See id. The Vaughn Safety Coordinator would manage the overall safety operation for the

remainder of the Wilson Project and also would be responsible for managing the safety projects at

other jobsites throughout the southeast after Vaughn completed the Wilson Project. See id.

On February 7, 2017, Henry asked JoAnn Blair (“Blair”), Vaughn’s Human Resources □

Manager, about whether he could join Vaughn as a full-time employee. See Blair Aff. 17. Blair

responded that, in order to be a full-time employee, Henry “needed to get the driver’s license issue

resolved.” Id. Henry also spoke with Livingston. See Livingston Aff. | 12. Livingston told Henry

that he was happy with his work, but that he needed to get the driver’s license issue resolved due to

the Vaughn Safety Coordinator’s extensive travel. See id. Livingston also told Henry that Vaughn

would prefer someone with an OSHA 500/510 certification. See id.

Vaughn hired Sandy Singles (“Singles”), who is white, as Vaughn Safety Coordinator. See

id. Singles possessed a valid driver’s license. See Blair Aff. | 16. Henry never reviewed Singles’s

resume. See Henry Dep. at 18. Upchurch did not make the decision to hire Singles. See Blair Aff.

Tschanen did not make the decision to hire Singles, and did not establish the requirements for

the Vaughn Safety Coordinator position. See Livingston Aff. { 17.

In March 2017, Vaughn’s work on the Wilson Project was nearing completion. See

Livingston Aff. J 13. As a result, Vaughn’s president, Matt Plotts, told Livingston that Vaughn

needed to reduce the number of safety personnel on site. See id. Henry was the last remaining safety

employee assigned through a temporary staffing firm working on the Wilson Project. See id. Thus,

on March 17, 2017, Vaughn terminated Henry’s temporary employment. See id.; Blair Aff. □ 14.

Tschanen had no role in the decision to terminate Henry’s employment. See Livingston Aff. □ 17.

_ Upchurch did not make the decision to terminate Henry’s employment. See Blair Aff. { 12.

In his complaint, Henry alleges: (1) failure to hire for the Safety Coordinator position in

violation of 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981; (2) termination based on race in

violation of 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981; and (3) retaliation in violation 42

U.S.C. § 20006, et seq., and 42 U.S.C. § 1981. See [D.E. 1] ff] 40-69.

Il.

Summary judgment is appropriate when, after reviewing the record as a whole, the court

determines that no genuine issue of material fact exists and the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a); Scott v. Harris, 550 U.S. 372, 378 (2007); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary judgment must

initially demonstrate the absence of a genuine issue of material fact or the absence of evidence to

support the nonmoving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once

the moving party has met its burden, the nonmoving party may not rest on the allegations or denials

in its pleading, see Anderson, 477 U.S. at 248-49, but “must come forward with specific facts

showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for

summary judgment should determine whether a genuine issue of material fact exists for trial. See

Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the

inferences drawn therefrom in the light most favorable to the nonmoving party. See Harris, 550 U.S.

at 378.

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 249. “The mere

existence of a scintilla of evidence in support of plaintiff’s position [is] insufficient ....” Id. at 252;

see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The nonmoving party, however, cannot

create a genuine issue of material fact through mere speculation or the building of one inference

.

upon another.”). Only factual disputes that affect the outcome under substantive law properly

preclude summary judgment. See Anderson, 477 U.S. at 248.

Il.

Title VI prohibits an employer from taking adverse employment action against an employee

“because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1)._ A plaintiff may establish a Title

VII violation in two ways. First, a plaintiff can show through direct evidence that racial

discrimination motivated an employer’s adverse employment action. See, e.g., Diamond v. Colonial

Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Ifa plaintiff lacks direct evidence (as

in this case),? a plaintiff can alternatively proceed under the burden-shifting framework in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Hill v. Lockheed Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en banc), abrogated in part on other

grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013).

2 Henry alleges three claims under both Title VII and 42 U.S.C. § 1981 in six numbered

claims. See Compl. J] 40-69. Because the analysis under both statutes is the same, the court

analyzes the respective Title VII and section 1981 claims together. See, e.g., Love-Lane v. Martin,

355 F.3d 766, 786 (4th Cir. 2004); Bryant v. Aiken Reg’! Med. Ctrs. Inc., 333 F.3d 536, 545 n.3 (4th

Cir. 2003).

3 Henry asserts that he has direct evidence of race discrimination. See [D.E. 24] 4. In

support, he cites a recording that he secretly made between him and Upchurch. See id.; Henry Dep.,

Exs. [D.E. 22-1] 69-77. The recording, however, is inadmissable hearsay under Federal Rule of

Evidence 801(d)(2)(D) because the record reveals no “independent evidence establishing the

existence of the agency” or Upchurch’s personal knowledge concerning Vaughn’s decision not to

hire Henry as Vaughn Safety Coordinator or to terminate Henry’s employment. United States v.

Portsmouth Paving Corp., 694 F.2d 312, 321 (4th Cir. 1982); see Precision Piping & Instruments,

Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d 613, 619-20 (4th Cir. 1991) (“Here, we are in

agreement with the district court that the relevant question is whether [the hearsay declarants] had

authority to hire and fire PPI. If not, statements concerning PPI’s contracts with Borg-Warner were

made outside the scope of [the declarant’s] employment” and are not admissible.); see also E.E.O.C.

v. Watergate at Landmark Condo., 24 F.3d 635, 640.(4th Cir. 1994). In fact, the record shows that

Upchurch had no authority to hire or fire anyone for Vaughn, including Henry. See Blair Aff. □□

9-12. Thus, Henry does not have direct evidence of race discrimination.

“The McDonnell Douglas framework is comprised of three steps: (1) the plaintiff must first

establish a prima facie case of employment discrimination or retaliation; (2) the burden of production

then shifts to the employer to articulate a non-discriminatory or non-retaliatory reason for the adverse

action; (3) 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.” Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216

(4th Cir. 2016). The McDonnell Douglas framework applies to failure to hire, termination, and

retaliation claims under Title VII and section 1981. See, e.g., Williams v. Giant Food Inc., 370 F.3d

423, 430 (4th Cir. 2004); Beall v. Abbott Labs, 130 F.3d 614, 619 (4th Cir. 1997), abrogated in part

on other grounds by Gilliam v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134 (4th Cir. 2007).

If the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce

evidence that the adverse employment action was “for a legitimate, nondiscriminatory reason.” Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). This burden is one of production, not

persuasion. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509-11 (1993). If the defendant

offers admissible evidence sufficient to meet its burden of production, “the burden shifts back to the

plaintiff to prove by a preponderance of the evidence that the employer’s stated reasons were not its

true reasons, but were a pretext for discrimination.” Hill, 354 F.3d at 285 (quotation omitted); see,

e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); King v. Rumsfeld, 328

F.3d 145, 150-54 (4th Cir. 2003). A plaintiffcan do so by showing that the employer’s “explanation

is unworthy of credence or by offering other forms of circumstantial evidence sufficiently probative

of [illegal] discrimination.” Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004) (quotation

omitted); see Reeves, 530 U.S. at 147.

In analyzing the record concerning pretext, the court does not sit to decide whether the

employer in fact discriminated against the plaintiff on an illegal basis. See, e.g., Holland v.

Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007); Hawkins v. PepsiCo, Inc., 203 F.3d

274, 279-80 (4th Cir. 2000). Rather, the court focuses on whether the plaintiff has raised a genuine

issue of material fact as to pretext under Reeves and its Fourth Circuit progeny. Under Reeves and

its Fourth Circuit progeny, a plaintiff may not “simply show the articulated reason is false; he must

also show that the employer discriminated against him on the basis of [race].” Laber v. Harvey, 438

F.3d 404, 430-31 (4th Cir. 2006) (en banc). In certain cases, however, the factfinder may infer

illegal discrimination from the articulated reason’s falsity. See id. at 431; Rowe v. Marley Co., 233

F.3d 825, 830 (4th Cir. 2000).

A.

To establish a prima facie case of race discrimination for failure to promote or to hire, Henry

must show that: ‘“(1) [he] is a member of a protected group, (2) there was a specific position for

which [he] applied, (3) [he] was qualified for that position, and (4) [the defendant] rejected [his]

application under circumstances that give rise to an inference of discrimination.” Williams, 370 F.3d

at 430; see McDonnell, 411 U.S. at 802; Anderson v. Westinghouse Savannah River Co., 406 F.3d

248, 268 (4th Cir. 2005).

Vaughn concedes that Henry is a member of a protected class and that Henry expressed

interest in the available Vaughn Safety Coordinator position. See [D.E. 19] 9; Blair Aff.

17; Livingston Aff. JJ 10, 12. In seeking summary judgment, Vaughn argues that Henry was not

qualified for the Vaughn Safety Coordinator position because he did not have a valid driver’s license,

and Henry cannot establish an inference of race discrimination based on the requirement of a valid

driver’s license because Singles had a valid driver’s license when Vaughn hired Singles. See [D.E. □

19] 9-10; Livingston Aff. ff 5-12; Blair Aff. J] 6-8, 16.

An “employer is free to set its own performance standards, provided such standards are not

a mask for discrimination.” Abbott Labs, 130 F.3d at 619 (quotation omitted); McDougal-Wilson

v. Goodyear Tire & Rubber Co., 427 F. Supp. 2d 595, 607 (E.D.N.C. 2006). Moreover, when

analyzing an employee’s qualifications for a particular job, “[i]t is the perception of the decision

maker which is relevant, not the self-assessment of the plaintiff.” Evans v. Tech. Applications &

Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996) (quotation omitted); see King, 328 F.3d at 149; Smith

v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980).

-‘Tfan employee demonstrates a prima facie case of race discrimination concerning the failure

to hire or promote, the employer may rebut that case “by demonstrating that the person [hired or]

promoted was better qualified for the position.” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d

180, 189 (4th Cir. 2004); see Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129-30 (4th

Cir. 1995). The employee may then “attempt to prove that the employer’s articulated reason for

[hiring or] promoting the successful applicant was pretextual.” Honor, 383 F.3d at 189; see

Amirmokri, 60 F.3d at 1129-30. In analyzing pretext, the “crucial issue” is whether “an unlawfully

discriminatory motive for a defendant’s conduct [exists], not the wisdom or folly of its business

judgment.” Jiminez v. Mary Washingto n Coll., 57 F.3d 369, 383 (4th Cir. 1995).

As for Henry’s failure to hire claim, Henry argues that he was more qualified for the Vaughn

Safety Coordinator position than Singles because he had more general experience than Singles, he

had more experience working on the Wilson Project than Singles, and Singles and Upchurch opined

to Henry that Henry was more qualified than Singles for the Vaughn Safety Coordinator position.

See [D.E. 24] 7-8. Henry’s own opinions of his qualifications, and how those qualifications stand

_ comparison to Singles, are not relevant. See, e.g., Evans, 80 F.3d at 960; Smith, 618 F.3d at 1067;

also Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988). Assuming without deciding

that Singles’s and Upchurch’s opinions are admissible, Henry has not produced any evidence to

show that Singles’s and Upchurch’s opinions reflect the “perception of the decisionmaker,”

particularly as it relates to the requirement of a valid driver’s license. Evans, 80 F.3d at 960; see

Cherry v. Elizabeth State Univ., 147 F. Supp. 3d 414, 421-22 (E.D.N.C. 2015). The “subjective

beliefs” of Singles and Upchurch as to Henry’s qualifications, “without more, [are] insufficient to

create a genuine issue of material fact as to any discriminatory conduct.” Bryant v. Bell Atlantic

Inc., 288 F.3d 124, 135 (4th Cir. 2002); see Hawkins, 203 F.3d at 280; Ennis v. Nat’] Ass’n of

- Bus, & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

Even viewing the record in a light most favorable to Henry, no rational jury could find that

Vaughn believed that Henry was qualified for the Vaughn Safety Coordinator position given that

Henry did not have a valid driver’s license. As Livingston explained, the Vaughn Safety Coordinator

position required the individual to have a valid driver’s license. See Livingston Aff. { 10; Blair Aff.

416. The Vaughn Safety Coordinator would work out of Vaughn’s Wilson, North Carolina office

and would have to travel throughout the southeastern United States to various Vaughn jobsites. See

Livingston Aff. § 10. Unlike Henry’s temporary work on the Wilson Project where he could get

rides in Vaughn’s buses or vans to Wilson Project jobsites, Henry could not get rides in Vaughn’s

buses or vans throughout the southeastern United States ifhe were the Vaughn Safety Coordinator.

Seeid. Moreover, the record shows that Singles had a valid driver’s license and relevant experience.

See Livingston Aff. ff 10, 12; Blair Aff. 16. The record also shows that Henry mistakenly

believed that he would have performed the Vaughn Safety Coordinator position in Wilson. See

Henry Dep. at 17. After the Wilson Project ended, however, the Vaughn Safety Coordinator would

have had to travel extensively. See Livingston Aff. 1 10. Accordingly, Henry fails to demonstrate

10

a prima facie case of race discrimination concerning Vaughn’s failure to hire him as Vaughn Safety

Coordinator.

Alternatively, assuming Henry did prove a prima facie showing of race discrimination, Henry

fails to demonstrate that Vaughn’s reason for hiring Singles instead of Henry as Vaughn Safety

Coordinator (i.e., Singles had a valid driver’s license, and Henry did not) was pretextual. In

opposition, Henry argues that Vaughn does not have “contemporaneous evidence” ofa valid driver’s

license requirement, that Livingston told Henry that he was not hired as Vaughn Safety Coordinator

because Henry lacked an OSHA certification, and that Blair’s and Livingston’s affidavits are

designed “to cover for [Vaughn’s] discriminatory hiring policies.” [D.E. 24] 8.

The court rejects Henry’s argument. First, Vaughn need not present “contemporaneous

evidence” that the Vaughn Safety Coordinator position required a valid driver’s license. See, e.g.,

Hawkins, 203 F.3d at 279-81; DeJarnette v. Corning, Inc., 133 F.3d 293, 298-99 (4th Cir. 1998).

Blair and Livingston attest that Vaughn required a valid driver’s license for the Vaughn Safety

Coordinator position. See Blair Aff. | 16; Livingston Aff. JJ] 6-12. Second, Vaughn (through Blair

and Livingston) continually expressed to Henry that Henry’s lack of a valid driver’s license was a

problem for hiring Henry as Vaughn Safety Coordinator, and Henry admits this fact. See, e.g., Blair

Aff. J 17; Livingston Aff. [ff 6-12; Blair Aff., Exs. at 11-15; Henry Dep., Exs. [D.E. 22-1] 64-68.

In fact, Livingston explained that he told Henry that Henry needed to get his driver’s license issue

resolved in order to be eligible for the Vaughn Safety Coordinator position and that Livingston also

preferred that the Safety Coordinator have OSHA 500/510 certification. See Livingston Aff. { 12.

Next, Henry argues that Vaughn’s valid driver’s license requirement was not listed in

Vaughn’s job description for a Safety Coordinator, and that travel was not required. See [D.E. 24]

8-9. Henry also argues that even if travel were required as Vaughn Safety Coordinator, Henry did

11

not have a problem traveling to and from the Wilson Project without a valid driver’s license. See

id. at 9.

The court rejects Henry’s argument. First, the Vaughn Safety Coordinator job description

includes a requirement to travel to construction projects in Ohio, North Carolina, Florida, West

Virginia, Kentucky, and Indiana. See Livingston Aff., Exs. at 6-7. Livingston testified that Vaughn

required that the Vaughn Safety Coordinator have a valid driver’s license. See Blair Aff. { 16;

Livingston Aff. J] 6-12. No evidence refutes this requirement. Moreover, unlike the Wilson

Project, where Henry could get rides in Vaughn buses or vans, Henry could not get rides in Vaughn

buses or vans to job sites throughout the southeast as Vaughn Safety Coordinator. See Livingston

- Aff. 4 10. Vaughn, not this court, gets to decide whether the Vaughn Safety Coordinator position

required a valid driver’s license. See, e.g., Hawkins, 203 F.3d at 279-81; DeJarnette, 133 F.3d at

298-99. Henry does not dispute that he did not have a valid driver’s license. See Henry Dep. at 10.

Henry “may disagree with [Vaughn’s] conclusion” concerning the requirement of a valid

driver’s license, “but the ultimate responsibility for that judgment lies with [Vaughn].” Mereish, 359

F.3d at 339. “Our focus is solely on whether this decision was the result of [illegal] bias.” Id.

“Duty-bound though we are to examine employment decisions for unlawful discrimination, we are

not cloaked with authority to strip employers of their basic business responsibilities.” Hux v. City

of Newport News, 451 F.3d 311, 315 (4th Cir. 2006).

Even viewing the record in a light most favorable to Henry, Henry has failed to create a

genuine issue of material fact that Vaughn’s reason for not hiring him as Vaughn Safety Coordinator

was pretextual. See Holland, 487 F.3d at 217-18; Hux, 451 F.3d at 317-19; Diamond, 416 F.3d at

319; Anderson, 406 F.3d at 270-73; Honor, 383 F.3d at 189-90; Mereish, 359 F.3d at 336-39;

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649-50 (4th Cir. 2002); Dugan v. Albermarle

12

Cty. Sch. Bd., 293 F.3d 716, 722-23 (4th Cir. 2002); Rowe, 233 F.3d at 830; Hawkins, 203 F.3d at

279-80; Causey v. Balog, 162 F.3d 795, 802-03 (4th Cir. 1998); DeJarnette, 133 F.3d at 298-300;

Evans, 80 F.3d at 960-61; Amirmokri, 60 F.3d at 1129-30; Jiminez, 57 F.3d at 383-84; Felty v.

Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); McDougal-Wilson, 427 F. Supp. 3d

at 607-08. Thus, the court grants summary judgment to Vaughn concerning Henry’s failure to hire

claims under Title VII and section 1981.

B.

To establish a prima facie case concerning his termination claims, Henry must show that (1)

he is a member of a protected class, (2) he was discharged, (3) he was fulfilling his employer’s

legitimate expectations at the time of his discharge, and (4) he was treated differently than a similarly

situated employee outside the protected class. See, e.g., Goode v. Cent. Va. Legal Aid Soc’y, Inc.,

807 F.3d 619, 626 (4th Cir. 2015); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.

2010), aff'd, 566 U.S. 30 (2012); White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir.

2004); Tahir v. Sessions, No. 5:16-CV-781-D, 2017 WL 1735158, at *4 (E.D.N.C. May 2, 2017)

(unpublished), aff'd, 703 F. App’x 211 (4th Cir. 2017) (per curiam) (unpublished).

In seeking summary judgment, Vaughn argues that Henry cannot show that he was treated

differently than a similarly situated employee outside the protected class. See [D.E. 19] 14-15. In □

support, Vaughn notes that Henry was the last temporary safety worker fired from the Wilson

Project. See Livingston Aff. { 13. Thus, no similarly situated person outside Henry’s protected class

was treated more favorably. See [D.E. 19] 14-15.

Henry does not directly address his prima facie case. Instead, Henry contends that the Wilson

Project was “a racially charged work environment where people of color were regularly passed over

for positions,” that Vaughn had a “race discrimination problem” and “general disregard for the well-

13

being of their minority workers,” and that Tschanen used derisive and racist language. [D.E. 24] 11.

Even viewing the record in a light most favorable to Henry, the allegedly racially hostile

atmosphere does not “bear directly on the contested employment decision” (i.e. Vaughn’s decision

to terminate Henry’s employment). Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995), abrogated

on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003); see Rayyan v. Va.

Dep’t of Transp., 719 F. App’x 198, 202 (4th Cir. 2018) (per curiam) (unpublished); Brinkley v.

Harbour Recreation Club, 180 F.3d 598, 608-09 (4th Cir. 1999), abrogated on other grounds by

Desert Palace, 539 U.S. at 101-02; see also Dockins v. Benchmark Commce’ns, 176 F.3d 745, 749

(4th Cir. 1999); Birbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994); E.E.0.C.

v. Clay Printing Co., 955 F.2d 936, 942 (4th Cir. 1992). As discussed, in mid-March 2017, the

Wilson Project was winding down. See Livingston Aff. ¢ 13. Matt Plotts, Vaughn’s president, told

Livingston that Vaughn needed to reduce the number of safety personnel on site. See id. Henry was

the only remaining temporary safety employee assigned through a staffing firm. See id. Thus,

Vaughn terminated Henry’s employment. See id. Tschanen did not make the decision to terminate

Henry’s employment. See Livingston Aff. { 17; Blair Aff. { 12. Moreover, Henry does not attribute

the comments described in his deposition testimony to Matt Plotts or Robert Livingston, the

employees responsible for ending Henry’s employment. See Livingston Aff. 13; cf. Henry Dep.

at 23, 25-26, 29. Accordingly, Henry fails to demonstrate a prima facie case that Vaughn terminated

his employment because of his race. See, e.g., Rayyan, 719 F. App’x at 202-03; Brinkley, 180 F.3d

at 608-09; see also King, 328 F.3d at 149-50.‘

4 The court does not condone the language that Henry attributes to some Vaughn employees.

Henry, however, did not bring a racially hostile work environment claim, and Henry attributes none

of the offensive comments to either Plotts or Livingston.

14

Alternatively, even if Henry established a prima facie case, Henry has not created a genuine

issue of material fact whether Vaughn’s stated reason for terminating his employment (i.e., that

Henry was the last safety employee assigned through a temporary staffing firm on the Wilson Project

and that the Wilson Project was winding down) was pretext for race discrimination. See Livingston

Aff. { 13. In opposition, Henry asserts that Vaughn’s stated reason for firing him is pretextual for

two reasons. First, Henry argues that but for Vaughn’s discriminatory decision not to hire Henry as

Vaughn Safety Coordinator, Henry would not have been a temporary employee on March 17, 2017.

See [D.E. 24] 15-16. Second, Henry argues that this court should impute the evidence concerning

the allegedly racially hostile work environment to Matt Plotts and Robert Livingston. See id.

As for Henry’s first argument, it is true that if Vaughn had hired Henry as Vaughn Safety

Coordinator, Henry would not have been a temporary employee on March 17, 2017. But the

argument ignores Vaughn’s reason for terminating Henry’s employment. See Livingston Aff. { 13.

Moreover, Henry’s argument ignores his lack of a valid driver’s license and invites the court to

speculate on a counterfactual universe without identifying any facts in the record to create that

universe. The court declines the invitation. See Matsushita, 475 U.S. at 586 (“When the moving

party has carried its burden under Rule 56(c), its opponent must do more than simply show that there

is some metaphysical doubt as to the material facts.” (footnote omitted)); James v. Booz-Allen

Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004). A plaintiff cannot seek to expose a rationale as

_ pretextual “by raising points that are wholly irrelevant to it.” Hux, 451 F.3d at315. Such points are

not “material.” Id. (quoting Anderson, 477 U.S. at 248).

As for Henry’s second argument, it similarly fails to address how Vaughn’s stated reason for

terminating Henry’s employment was pretextual. See Livingston Aff. { 13. Even viewing the

evidence in the light most favorable to Henry, Henry has failed to create a genuine issue of material

15

fact concerning whether Vaughn’s reason for terminating Henry’s employment “is not worthy of

belief or that discriminatory reasons more likely motivated the defendant.” Warren v. Halstead

Indus. Inc., 802 F.2d 746, 752-53 (4th Cir. 1986); see Holland, 487 F.3d at 217-18; Hux, 451 F.3d

at 317-19; Diamond, 416 F.3d at 319; Anderson, 406 F.3d at 270—73; Honor, 383 F.3d at 189-90;

Mereish, 359 F.3d at 336-39; Thompson, 312 F.3d at 649-50; Rowe, 233 F.3d at 830; Hawkins, 203

F.3d at 279-80; Causey, 162 F.3d at 803-04; DeJarnette, 133 F.3d at 298-300; Evans, 80 F.3d at

960-61; Amirmokri, 60 F.3d at 1129-30; Jiminez, 57 F.3d at 383-84; Felty, 818 F.2d at 1128;

McDougal-Wilson, 427 F. Supp. 3d at 607-08. Accordingly, Henry’s termination claims fail, and

the court grants summary judgment to Vaughn concerning Henry’s termination claims under Title

VII and section 1981.

C.

To establish a prima facie case of retaliation, Henry must prove that (1) he engaged in

protected activity under Title VII, (2) his employer took some action against him that a reasonable

employee would find materially adverse, and (3) his employer took the adverse action because of the

protected activity. See DeMasters v. Carilion Clinic, 796 F.3d 409, 416 (4th Cir. 2015); Boyer-

Liberto v. Fontainbleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc); Balas v. Huntington

Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir. 2013); see also Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 67-70 (2006). “Retaliation claims . . . require the employee to show that

retaliation was a but-for cause of a challenged adverse employment action.” Guessous, 828 F.3d at

217 (quotation and citation omitted); see Huckelba v. Deering, No. 5:16-CV-247-D, 2016 WL

6082032, at *3 (E.D.N.C. Oct. 17, 2016) (unpublished). “Naked allegations of a causal connection

between plaintiff's protected activity and the alleged retaliation do not state a plausible Title VI .

claim.” Huckelba, 2016 WL 6082032 at *3. Furthermore, the employee must demonstrate temporal

16

proximity between the alleged retaliation and the protected activity. See Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273-74 (2001) (per curiam); Hooven-Lewis v. Caldera, 249 F.3d 259, 278

(4th Cir. 2001); Brown v. Wake Cty. Gov., No. 5:16-CV-806, 2017 WL 2982971, at *4 (E.D.N.C.

July 12, 2017) (unpublished); Huckelba, 2016 WL 6082032, at *4.

Vaughn concedes that Henry engaged in protected activity under Title VII and section 1981

when he participated in Vaughn’ s internal investigation concerning Rice in November 2016, and that

terminating Henry’s employment on March 17, 2017, was a materially adverse action. See [D.E. 19]

16-19. In seeking summary judgment, Vaughn argues that Henry cannot show a causal link between

his November 2016 participation in the investigation and his March 17, 2017 employment

termination because Henry did not produce evidence demonstrating that Tschanen had a role in

Henry’s employment termination, that the four-month gap between the two events is insufficient to

show causation, and that Vaughn regularly terminated temporary employees, and Henry was the last

to go. See id.

As for Henry’s retaliation claim, Henry argues that Tschanen’s actions directed at him after

Vaughn fired Rice were “materially adverse.” See [D.E. 24] 14; Henry Dep. at 24. Specifically,

Henry contends that Tschanen did not allow Henry to park “up front,” “impeded” Henry’s work by

sometimes not following his advice, and did not give Henry a key to the building in which Henry

worked when Henry’s supervisor was on medical leave. Henry Dep. at 24.

Under Title VII and section 1981, material adversity “means [that an employer’ sactions] well

_ might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

White, 548 U.S. at 68. As for materiality, Title VII does not redress “trivial harms” or provide a

“general civility code for the American workplace.” Id. (quotation omitted); see Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). Rather, Title VII’s anti-retaliation

. 17

provision prohibits an employer’s actions that “are likely to deter victims of discrimination from

complaining to the EEOC, the courts, and their employers.” White, 548 U.S. at 68 (quotation

omitted); see Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). The court analyzes material

adversity from the perspective of an objective, reasonable employee, and ignores “a plaintiff's

unusual subjective feelings.” White, 548 U.S. at 68-69; see Bryant, 288 F.3d at 134-35.

Additionally, the court must account for the “particular circumstances” surrounding the alleged

retaliation. White, 548 U.S. at 69.

_ Even assuming that Henry’s allegations concerning Tschanen are true, Tschanen’s alleged

trivial actions would not dissuade a reasonable worker from complaining about discrimination. See

White, 548 U.S. at 68; Holland, 487 F.3d at 219; James, 368 F.3d at 376-77; Boone v. Goldin, 178

F.3d 253, 256 (4th Cir. 1999), abrogated on other grounds by White, 548 U.S. at 59-67; Holley v.

N.C. Dep’t of Admin., 846 F. Supp. 2d 416, 442-44 (E.D.N.C. 2012). Accordingly, to the extent

Henry’s retaliation claims rely on Tschanen’s trivial actions, they fail.

Alternatively, Henry argues that Vaughn decided to fire him on March 17, 2017, inretaliation

for Henry’s participation in the November 2016 Rice investigation because “the intervening actions

Tschanen took against Henry show retaliatory intent during the longer intervening period.” [D.E.

24] 14. In support, Henry cites Lettieri v. Equant Inc., 478 F.3d 640, 650-51 (4th Cir. 2007). See

[D.E. 24] 13-14.° In Lettieri, the Fourth Circuit held that “where temporal proximity between

protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening

5 To the extent Henry argues that temporal proximity between the Rice investigation in

November 2017 and Henry’s firing on March 17, 2017, permits this court to infer that the former

caused the later, the court rejects the argument. See Breeden, 532 U.S. at 273-74; King, 328 F.3d

at 151 n.5; Winston v. Maryland, No. PWG-17-2477, 2018 WL 5786130, at *10 (D. Md. Nov. 5,

2018) (unpublished).

18

period for other evidence of retaliatory animus,” and that evidence “can be sufficient to satisfy the

element of causation.” Lettieri, 478 F.3d at 650 (quotations omitted).

Lettieri offers Henry no comfort. In Lettieri, plaintiff lodged a complaint with human

resources alleging that her direct supervisor engaged in sex discrimination. See id. During the next

seven months, the plaintiffs direct supervisor systematically reduced plaintiff's job responsibilities

by removing plaintiff's responsibility over a sales team, her authority to set prices, and her ability

to directly meet with clients. See id. at 650-51. The supervisor’s reduction of plaintiff's “significant

job responsibilities” led that same supervisor to assert that the plaintiff and her position within the

company were “not needed and should be terminated,” only to shortly thereafter hire a male

candidate as a replacement in an identical job position to plaintiff's former role. Id. □

Even assuming that Henry’s allegations concerning Tschanen’s conduct are true, and even

viewing the record in the light most favorable to Henry, no rational jury could find that Tschanen

caused Henry’s termination on March 17, 2017. Cf. id.; see Johnson v. Whelling-Pittsburgh Steel

Corp., 279 F. App’x 200, 204-05 (4th Cir. 2008) (per curiam) (unpublished); Allen v. Fed. Exp.

Corp., No. 1:09CV17, 2011 WL 1260225, at *11 (M.D.N.C. Mar. 31, 2011) (unpublished). As

discussed, Tschanen did not ee Henry’s employment. See Livingston Aff. | 17. Plotts and

Livingston did. See id. at ¢ 13. Moreover, Henry does not provide any other evidence linking

Tschanen’s actions and Vaughn’s decision to terminate Henry’s employment. Cf. Lettieri, 478 F.3d

at 650-51. Accordingly, Henry fails to demonstrate a prima facie case of retaliation.

§ In Henry’s deposition, Henry speculated that he had heard that Tschanen and Rice were

friends. See Henry Dep. at 20. However, even if true, a personal friendship between a person who

is not the decisionmaker and a person who got fired “is insufficient to establish unlawful

discrimination.” Dugan, 293 F.3d at 723.

19

Alternatively, even viewing the record in the light most favorable to Henry, Henry fails to

create a genuine issue of material fact concerning whether Vaughn’s reason for firing Henry was

pretext for retaliation for his participation in the Rice investigation. See Livingston Aff. J 13;

Holland, 487 F.3d at 217-18; Hux, 451 F.3d at 317-19; Anderson, 406 F.3d at 270—73; Honor, 383

F.3d at 189-90; Price, 380 F.3d at 215-17; Mereish, 359 F.3d at 336-39; Love-Lane, 355 F.3d at

788-89; Hill, 354 F.3d at 298-99; King, 328 F.3d at 151-54; Thompson, 312 F.3d at 649-50; Rowe,

233 F.3d at 830; Hawkins, 203 F.3d at 279-80; Causey, 162 F.3d at 803-04; Tinsley v. First Union

Nat’] Bank, 155 F.3d 435, 444-45 (4th Cir. 1998), overruled on other grounds by Nat’! R.R.

Passenger Corp. v. Morgan, 536 U.S. 101 (2002); DeJarnette, 133 F.3d at 298-300; Beall, 130 F.3d

at 619-20; Evans, 80 F.3d at 960-61; Amirmokri, 60 F.3d at 1129-30; Jiminez, 57 F.3d at 383-84;

Felty, 818 F.2d at 1128. Thus, the court grants Vaughn’s motion for summary judgment on Henry’s

retaliation claims under Title VII and section 1981.

IV.

Insum, the court GRANTS defendant’s motion for summary judgment [D.E. 18]. Defendant

may file a motion for costs in accordance with the Federal Rules of Civil Procedure and this court’s

local rules. The clerk shall close the case.

SO ORDERED. This 3 | day of March 2020.

av

ts C. DEVER I

United States District Judge

20