HARGRAVE v. DAIMLER TRUCKS NORTH AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRIAN HARGRAVE, )

)

Plaintiff, )

)

v. ) 1:19CV838

)

DAIMLER TRUCKS NORTH AMERICA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before the court is Defendant Daimler Trucks

North America’s (“Defendant” or “DTNA”) Motion for Summary

Judgment. (Doc. 19.) DTNA filed a brief in support of its

Motion, (Doc. 20); pro se Plaintiff Brian Hargrave (“Plaintiff”)

filed a response, (Doc. 31), and DTNA filed a reply, (Doc. 32).

For the reasons stated herein, this court will grant Defendant’s

Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Plaintiff Brian Hargrave, proceeding pro se, worked for

DTNA from December 3, 2018 through April 24, 2019. (Def.’s Mem.

of Law in Supp. of Mot. for Summ. J. (“Def.’s Br.”) (Doc. 20) at

2.) Plaintiff started off his employment with DTNA in the

welding department. (Id. at 3.) As of February 2019, Plaintiff’s

performance was considered “on target” in the welding

department. (Doc. 31-1 at 2.)1 However, by the following month,

Plaintiff’s job performance was called into question. On

March 15, 2019, the supervisor of the welding department, Rick

Land, wrote that Plaintiff “still has a long way to go” and he

“really needs to show more improvement” in his job performance.

(Def.’s Br, Ex. 1, Declaration of Desiree Mudd (“Mudd Decl.”)

(Doc. 20-1) at 9.) As of March 28, 2019, the welding management

team determined Plaintiff “wasn’t successful.” (Id. at 7.) This

led to Plaintiff’s transfer to the assembly department. (Id.)

Shortly after Plaintiff’s transfer to assembly, issues with

co-workers were called to the attention of DTNA. On April 12,

2019, Plaintiff’s co-worker Crystal Brown (“Brown”) reported to

Human Resources (“HR”) that Plaintiff told her she had “it made

. . . because she is a white woman.” (Id. at 11.) Investigations

of HR complaints are performed by Ms. Desiree Mudd, (“Mudd”),

DTNA’s Labor Relations Specialist. (Id. ¶ 1.) Mudd herself is

African American. (Id. ¶ 4.) On April 12, in response to Brown’s

complaint, Mudd instructed Plaintiff that his comment was “not

an acceptable way to speak to his co-workers” and “a violation

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

of the company’s Anti-Harassment policy.” (Id. at 11.) DTNA’s

anti-harassment policy is listed among its “Core Human Resources

Policies.” (Id. at 5.) It states that “[a]ny harassment . . . is

strictly prohibited,” and “[e]mployees who engage in harassment

will be disciplined, up to and including discharge[.]” (Id.)

Six days after Brown’s complaint, on April 18, 2019,

another one of Plaintiff’s co-workers – Gary Allison (“Allison”)

– submitted a new HR complaint about Plaintiff “for being

aggressive and threatening, harassing him and using foul

language” during Plaintiff’s training. (Id. at 11.) According to

Allison, Plaintiff cursed at Allison and another co-worker, Tray

Gillespie. (Id. at 21.) Allison said that when he offered to

show Plaintiff how to finish an assembly task, Plaintiff

threatened to “beat [his] ass” and, with “a wrench in his hand,”

started “moving toward” Allison. (Id.)

Upon receiving Allison’s complaint, Mudd called Plaintiff

in for an interview. Plaintiff then expressed to Mudd that

Allison had previously called him a racial slur, which led to

the altercation. (Id. at 12.) Plaintiff acknowledged that a

dispute had occurred but insisted “he never said” the things

Allison claimed and that Allison “threatened to beat him up.”

(Id. at 11.) Mudd informed Plaintiff that he would be

temporarily suspended from work while she further investigated

the incident. (Id. ¶ 10.)

Mudd then confirmed Allison’s account of the incident with

“several” employees, who “stated [Plaintiff] threatened to beat

[Allison’s] ass.” (Id. at 12.) Mudd also interviewed two other

employees who worked with Plaintiff in the past – these

employees described him as “abusive” and “threatening and

intimidating.” (Id. at 13.) Mudd spoke with one individual who

Plaintiff claimed witnessed Allison’s use of the racial slur –

according to Mudd’s report, this individual “did not witness

[Allison] saying [the slur] to [Plaintiff].” (Id. at 13.)

At the end of her investigation, Mudd ultimately “concluded

Plaintiff had engaged in a violation of DTNA’s anti-harassment

policy and decided to terminate his employment.” (Id. ¶ 11.)

Mudd’s full report on Plaintiff details a variety of concerns

about his demeanor, stating “that if Brian Hargrave’s employment

continued[,] this harassing, threatening and intimidating

behavior. . . would continue” as well. (Id. at 12.) Plaintiff

was subsequently terminated.

In Plaintiff’s complaint, (Compl. (Doc. 2)), he asserts

race discrimination under Title VII of the Civil Rights Act of

1964, as codified, 42 U.S.C. 2000(e). (Id. at 3-4.)

Specifically, Plaintiff alleges he was terminated based on

racial discrimination. In his complaint, he describes the

incident on April 16, 2019, in which “a white employee” –

Allison – called him a racial slur. (Id. at 4.) Plaintiff argues

that he was terminated on the basis of this “verbal altercation”

while no action was taken against Allison, who is white.

B. Procedural Background

Plaintiff submitted a charge of discrimination to the Equal

Employment Opportunity Commission (“EEOC”), (Def.’s Reply in

Supp. of Mot. for Summ. J. (“Def.’s Reply”), Ex. 2, Charge of

Discrimination (“EEOC Charge”) (Doc. 32-2)), on May 22, 2019.

The charge alleged racial discrimination and retaliation:

Plaintiff described “a White coworker” using a racial slur as

the basis of his charge, claiming he was terminated two weeks

later and “was never given a reason as to why.” (Id.)

Plaintiff’s charge alleges the discrimination took place between

April 8, 2019, and April 10, 2019. (Id.)

Plaintiff filed a Complaint, (Doc. 2), with the court on

August 15, 2019. Defendant filed a Motion for Summary Judgment

on May 28, 2020. (Doc. 19.) Plaintiff filed his response on

August 31, 2020. (Doc. 31.) Defendant filed a reply on

September 14, 2020. (Doc. 32). This case is ripe for

adjudication.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “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); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court’s

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving

party bears the initial burden of demonstrating “that there is

an absence of evidence to support the nonmoving party’s case.”

Celotex Corp., 477 U.S. at 325. If the “moving party discharges

its burden . . . , the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial.”

McLean v. Patten Cmtys., Inc., 332 F.3d 714, 719 (4th Cir. 2003)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986)). Summary judgment should be granted

“unless a reasonable jury could return a verdict in favor of the

nonmovant on the evidence presented.” McLean, 332 F.3d at 719

(citing Liberty Lobby, 477 U.S. at 247–48). “Mere allegations”

in support of a party’s pleadings without “any significant

probative evidence” to support those allegations do not provide

sufficient evidence to allow a reasonable jury to resolve a

dispute in favor of that party. Liberty Lobby, 477 U.S. at 249;

see also Brown v. Sears Auto. Ctr., 222 F. Supp. 2d 757, 761

(2002 M.D.N.C.) (“[T]he non-moving party cannot rely solely on

unsupported assertions to demonstrate that a genuine issue of

material fact exists.”).

Put another way, simply showing some “metaphysical doubt as

to the material facts” is not sufficient to establish a genuine

dispute. Matsushita, 475 U.S. at 586–87. In considering whether

a genuine issue of material fact exists, the court must be

careful not to weigh the evidence or make credibility

determinations. Liberty Lobby, 477 U.S. at 250. Instead, the

court must view the facts in the light most favorable to the

non-moving party, drawing all reasonable inferences in favor of

that party. Id. at 255.

Moreover, Plaintiff is proceeding pro se, which rises

additional considerations for the court. When reviewing

a pro se complaint, federal courts should examine carefully

the plaintiff’s factual allegations and not summarily dismiss

the complaint “unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Gordon v. Leeke, 574 F.2d

1147, 1151 (4th Cir. 1978) (internal quotation marks

omitted); see also Boag v. MacDougall, 454 U.S. 364, 365 (1982)

(federal courts should construe a pro se petitioner’s pleading

liberally).

III. ANALYSIS

A. Evidence of Discrimination under Title VII

There are two ways that Plaintiff can defeat a motion for

summary judgment in a Title VII discriminatory termination case.

The first is through direct evidence of discrimination: “[a]

plaintiff can survive a motion for summary judgment by

presenting direct or circumstantial evidence that raises a

genuine issue of material fact as to whether an impermissible

factor such as race motivated the employer’s adverse employment

decision.” Diamond v. Colonial Life & Accident Ins. Co., 416

F.3d 310, 318 (4th Cir. 2005). In the present case, Plaintiff

does not allege any statement by Mudd or other decisionmakers

indicating that Plaintiff’s race played a direct role in his

termination.

Instead, Plaintiff pursues the second path to defeating a

motion for summary judgment: the framework from McDonnell

Douglas v. Green, 411 U.S. 792 (1973). McDonnell Douglas test

requires Plaintiff to demonstrate four elements to prove a prima

facie case of racial discrimination: (1) that he is a member of

a protected class; (2) he suffered an adverse employment action;

(3) that Plaintiff was performing well enough to meet the

legitimate expectations of his employer; and (4) the adverse

employment action gives rise to an inference of unlawful

discrimination. McKiver v. Gen. Elec. Co., 11 F. Supp. 2d 755,

758 (M.D.N.C. 1997). Here, the first element is satisfied: it is

undisputed that Plaintiff is African-American and therefore a

member of a protected class.

As to the second element of the prima facie case, Plaintiff

alleged in his complaint, (Compl. (Doc. 2) at 4), and his EEOC

Charge, (Doc. 32-2), that the relevant adverse employment action

was his termination. This is an adverse action for the purposes

of a prima facie case; see, e.g., Holland v. Washington Homes,

Inc., 487 F.3d 208, 218 (4th Cir. 2007); and DTNA does not

contest that Plaintiff was terminated. (Def.’s Br. (Doc. 20) at

2.)

However, in his response, Plaintiff also raises his

transfer from welding to assembly as another possible adverse

employment action. (Pl.’s Mem. of Law in Opp’n of Mot. for Summ.

J. (“Pl.’s Resp.”) (Doc. 31) at 9.) This was not raised in

Plaintiff’s EEOC Charge; in fact, Plaintiff listed only the

specific dates of the incident with Allison in his EEOC Charge.

(EEOC Charge (Doc. 32-2).) Those April 2019 dates were after

Plaintiff’s transfer, which occurred around March 28, 2019.

(Def.’s Br. (Doc. 20) at 4.) Plaintiff even mentioned his

transfer in the charge without so much as implying it was

racially motivated. (EEOC Charge (Doc. 32-2).) Plaintiff cannot

now raise his transfer, which occurred at an earlier date and

was effectuated by different individuals, as an adverse action

that is “reasonably related” to his EEOC Charge. Chacko v.

Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). Plaintiff’s

EEOC Charge gave no reasonable indication to DTNA that it ought

to investigate the circumstances surrounding Plaintiff’s

transfer. See id. at 512 (“A Title VII plaintiff can of course

exhaust administrative remedies if a reasonable investigation of

his administrative charge would have uncovered the factual

allegations set forth in formal litigation.”).2 Thus, Plaintiff

has not exhausted his administrative remedies with regard to

this aspect of his argument, and this court will consider only

his termination as the relevant adverse action at this time.

Though Plaintiff’s termination fulfills the second element

of a prima facie case, Plaintiff has not alleged facts

demonstrating an issue for trial with regards to the third

2 Plaintiff observes that when he “was moved back to

assembly [the Welding Department] it returned to an all white

department.” (Pl.’s Resp. (Doc. 31) at 3.) However, in spite of

this observation, Plaintiff’s only allegation of racial

discrimination or harassment was the subsequent incident with

Allison. Thus, even setting exhaustion aside, Plaintiff has not

provided any facts to allege that his transfer was the result of

any illegitimate discrimination.

element: adequate job performance. Plaintiff disputes that his

job performance was subpar, citing “progress reviews” during his

time in welding that stated he was “on target.” (Pl.’s Resp.

(Doc. 31) at 2.) However, these progress reviews were in

February of 2019, (Doc. 31-1 at 2), well before the emails

criticizing his later performance, (Mudd Decl. (Doc. 20-1) at

7). Evidence presented by DTNA contradicts Plaintiff’s claim

that he was performing well; Plaintiff was transferred out of

the welding department because he failed to perform adequately,

according to supervisor emails. (Id.)

Nevertheless, Plaintiff was not terminated on the basis of

his job performance – even DTNA’s stated reason for termination

was Plaintiff’s violation of company anti-harassment policies.

In cases where a plaintiff acknowledges he violated company

policy, but bases his claim on the allegation he was disciplined

more harshly than a similar employee outside his protected

class, the “adequate job performance” element of the prima facie

case may give way to a comparison of discipline of those outside

the protected class. See, e.g., Curry v. Menard, Inc., 270 F.3d

473, 478 (7th Cir. 2001); Hazel v. Med. Action Indus., Inc., 216

F. Supp. 2d 541, 546 (W.D.N.C. 2002) (“A disparate-treatment

claim in the context of employee discipline is typically based

upon some aspect of job performance which was less than

satisfactory, but which resulted in less severe treatment for

the non-minority.”). Plaintiff compares himself to Allison and

indicates his claim is based on their disparate discipline

following the wrench incident. (Compl. (Doc. 2) at 3.)

Under this understanding of Plaintiff’s claim, he can meet

the final element of his prima facie case by demonstrating that

“similarly-situated employees outside the protected class

received more favorable treatment.” White v. BFI Waste Servs.,

LLC, 375 F.3d 288, 295 (4th Cir. 2004). Plaintiff has identified

that he was terminated, whereas Allison was not, following the

incident. See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th

Cir. 1993) (when alleging discriminatory discipline, a plaintiff

must show “that the disciplinary measures enforced against him

were more severe than those enforced against those other

employees”). Defendant rightly disputes whether Allison was

similarly situated to Plaintiff, as Mudd determined that

Plaintiff was the aggressor and escalated the encounter to

physical violence. (Mudd Decl. (Doc. 20-1) at 12-13.)

In order to construe pro se Plaintiff’s allegations

liberally, and avoid weighing of credibility and the facts, this

court will continue its analysis under the assumption that

Plaintiff has presented a prima facie case giving rise to an

inference of discrimination. Regardless of this assumption,

however, Defendant has clearly established legitimate reasons

for terminating Plaintiff and prevails under the burden-shifting

framework of McDonnell Douglas.

B. Defendant’s Reason for Termination

Under the McDonnell Douglas framework, once Plaintiff has

established a prima facie case, the burden shifts to Defendant

“to articulate a legitimate, nondiscriminatory reason for the

adverse employment action.” Lettieri v. Equant Inc., 478 F.3d

640, 646 (4th Cir. 2007) (quoting Hill v. Lockheed Martin

Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)). DTNA

has successfully met this burden by providing a legitimate and

nondiscriminatory reason for its termination of Plaintiff.

In fact, DTNA has provided a litany of legitimate reasons

for Plaintiff’s termination that are unrelated to racial

discrimination: Plaintiff was in violation of DTNA’s anti-

harassment policy in multiple ways. Mudd found that Plaintiff

posed a physical threat to Allison by coming after Allison with

a “tool in his hands,” regardless of any earlier verbal

provocation. (Mudd Decl. (Doc. 20-1) at 12.) Mudd heard from

Plaintiff’s other co-workers that he was abusive, intimidating,

and threatening. (Id. at 13.) Plaintiff has not presented any

facts showing there is a genuine issue of fact for trial.

Moreover, Allison is not an appropriate comparator to

Plaintiff: Mudd’s interviews indicated that Plaintiff was the

aggressor and was the only one wielding a wrench. (Id. at 12.)

Though Plaintiff claims that “Allison was the aggressor,” (Pl.’s

Resp. (Doc. 31) at 11), DTNA’s investigator came to a different

conclusion based on the accounts of multiple witnesses. (Mudd

Decl. (Doc. 20-1) at 12.) Regardless of whether Mudd’s

understanding of the incident was correct, this reasoned

conclusion was the basis of Plaintiff’s termination.3

In similar situations, Mudd has terminated employees who

made violent threats or used abusive language: disciplinary

records indicate that employees who have threatened physical

3 Plaintiff argues that the statements received by Mudd

would not be admissible at trial and this court should not

consider them at this stage. (Pl.’s Resp. (Doc. 31) at 5, 15.)

It is true that “hearsay evidence, which is inadmissible at

trial, cannot be considered on a motion for summary judgment.”

Md. Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251

(4th Cir. 1991). However, the relevant statements would be

admissible to demonstrate their effect on Mudd and her

termination decision, rather than for the truth of the matter

asserted. The Fourth Circuit has made clear that “[w]here, as

here, ‘third-party statements . . . are offered not for the

truth of the matters asserted therein, but as an explanation of

why [the employer] believed that terminating the plaintiff’s

employment . . . was necessary and appropriate,’ evidentiary

rules governing the consideration of hearsay are not

implicated.” Arrington v. E.R. Williams, Inc., 490 F. App’x 540,

543 (4th Cir. 2012) (quoting Royall v. Nat’l Ass’n of Letter

Carriers, 507 F. Supp. 2d 93, 98 n.10 (D.D.C. 2007)).

violence, and even some who merely came close to doing so, were

often terminated. (Id. at 32-35.) Plaintiff contests that the

list does not provide the fired employees’ exact names, genders,

or “numbers”; however, Plaintiff provides no reason that these

facts would be necessary or even relevant to determining whether

his own termination was in line with prior practice. (Pl.’s

Resp. (Doc. 31) at 11.) Moreover, Plaintiff was already the

subject of harassment-related discipline only six days prior to

the incident at issue. (Mudd Decl. (Doc. 20-1) at 11.)

Effectuating DTNA’s anti-harassment policy was the claimed

basis of Plaintiff’s termination, and regardless of its wisdom

or accuracy, Mudd’s decision was plainly nondiscriminatory given

her understanding of the incident. Mudd’s decision was an

“honest and reasonable conclusion” that was “supported by the

statements of multiple employees.” (Def.’s Br. (Doc. 20) at 14.)

The legitimacy and nondiscriminatory nature of the termination

decision is only compounded by the fact that Mudd herself is a

member of the same protected class as Plaintiff. See, e.g.,

Demesme v. Montgomery Cnty. Gov’t, 63 F. Supp. 2d 678, 683 (D.

Md. 1999), aff’d, 208 F.3d 208 (4th Cir. 2000) (“The fact that

the decision makers were of the same protected class suggests no

discriminatory motivation.”); Coggins v. Gov’t of D.C., No. 97-

2263, 1999 WL 94655, at *4 (4th Cir. 1999) (“The fact that both

Krull and Gibbons, first and third in Coggins’ chain-of-command,

are both Caucasian makes any anti-Caucasian bias unlikely.”).

C. DTNA’s Stated Reason for Termination is Not Pretextual

Since DTNA has provided a legitimate explanation for

Plaintiff’s termination, the burden shifts back to Plaintiff to

prove by a preponderance of the evidence that Defendant’s

articulated reason is mere pretext. McKiver, 11 F. Supp. 2d at

758. “The final pretext inquiry ‘merges with the ultimate burden

of persuading the court that [the plaintiff] has been the victim

of intentional discrimination,’ which at all times remains with

the plaintiff.” Merritt v. Old Dominion Freight Line, Inc., 601

F.3d 289, 294 (4th Cir. 2010) (quoting Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 256 (1981). Plaintiff provides

no evidence beyond conclusory allegations that Mudd’s reasoning

was pretextual. Plaintiff alleges that Mudd may have “coerced or

simply added” language incriminating him to the statements

supplied by co-workers. (Pl.’s Resp. (Doc. 31) at 5.) However,

Plaintiff provides no evidence to support this claim beyond pure

speculation. Nor does Plaintiff provide any evidence that Mudd

specifically harbored racial animus against him.

Plaintiff also argues that DTNA gave “two different

reasons” for his termination, which he claims demonstrates

Defendant’s reasoning was pretextual. (Id. at 20.) Plaintiff

makes this argument by pointing to DTNA’s position statement to

the EEOC, which cites both DTNA’s anti-discrimination and DTNA’s

anti-harassment policy as reasons for Plaintiff’s termination.

(Doc. 31-1 at 10, 13, 14, 15.) However, DTNA’s statement

maintains throughout that Plaintiff “threatened physical

violence with a wrench in his hand . . . [and] was terminated as

of April 24, 2019, for violation of DTNA’s anti-harassment

policy.” (Id. at 14.) This is consistent with Defendant’s

position before this court and does not indicate DTNA’s

reasoning was pretextual.

DTNA has provided a legitimate reason for Plaintiff’s

termination that Plaintiff cannot dismiss as pretextual. Summary

judgment is appropriate here because “the non-moving party

cannot rely solely on unsupported assertions to demonstrate that

a genuine issue of material fact exists.” Brown, 222 F. Supp. 2d

at 761.

D. Hostile Work Environment Claim

Plaintiff also argues that Allison’s behavior “wasn’t

welcome” and was “offensive [and] hostile,” invoking an

additional hostile work environment claim. (Pl.’s Resp. (Doc.

31) at 17.) To overcome a motion for summary judgment on this

claim, Plaintiff must demonstrate that he was the victim of

unwelcome, race-based harassment that was “sufficiently severe

or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation omitted).

Plaintiff must also show that this harassment can be imputed to

Defendant. Bazemore v. Best Buy, 957 F.3d 195, 200 (4th Cir.

2020). The first two elements are clearly met, as Allison’s

comment was both unwelcome and patently race-based.

Plaintiff only alleges this single instance of racial

harassment. A single instance of harassment can, in extreme

circumstances, be sufficiently severe to establish a hostile

work environment. See Boyer-Liberto v. Fontainebleau Corp., 786

F.3d 264, 281 (4th Cir. 2015). Allison’s use of a racial slur

could be deemed extreme; the Fourth Circuit has held that

Allison’s chosen epithet has the power to “quickly alter the

conditions of employment and create an abusive working

environment.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185

(4th Cir. 2001) (quoting Rodgers v. Western-Southern Life Ins.

Co., 12 F.3d 668, 675 (7th Cir. 1993)). However, the question of

severity is moot, as Plaintiff is not able to satisfy the final

element of imputability on the facts presented. See Bazemore,

957 F.3d at 202–03 (choosing not to address whether severe and

pervasive harassment has been alleged because plaintiff was

unable to demonstrate the conduct was imputable to the

defendant).

In this instance, the slur was used by a co-worker, not a

supervisor. Plaintiff does not allege he perceived Allison to

have any control over his job. The Supreme Court has held that

“[i]f the harassing employee is the victim’s co-worker, the

employer is liable only if it was negligent in controlling

working conditions.” Vance v. Ball State Univ., 570 U.S. 421,

424 (2013). Plaintiff does not allege any negligence on the part

of DTNA in regulating the work environment, nor did he take

advantage of the complaint hierarchy in place. (Mudd Decl. (Doc.

20-1) at 12.) Moreover, any plaintiff who wants to “impute

liability to [his] employer for harassment by a co-worker may

not be able to establish the employer’s negligence if []he did

not report the harassment.” Boyer-Liberto, 786 F.3d at 278.

Plaintiff did not complain to Mudd, (Mudd Decl. (Doc. 20-1) at

12), nor did he complain to his supervisor, (Pl.’s Resp. (Doc.

31) at 18). He asked his “lead man” to inform their supervisor

but does not dispute that DTNA management only received notice

about the comment when Plaintiff was brought in to discuss

Allison’s HR complaint. (Id.) For these reasons, even if the

slur were sufficiently extreme for a jury to find it created a

hostile work environment, no reasonable jury could impute

Allison’s alleged comment to DTNA. Thus, this court will grant

Defendant’s motion with regard to Plaintiff’s hostile work

environment claim as well.

E. Plaintiff’s Union Claim

Finally, Plaintiff also attempts to bring a new claim

against his union in this action. Plaintiff argues in his

response brief that his union “fail[ed] to grieve the

Plaintiff’s suspension or termination without giving a reason

why,” and claims this is “arbitrary and discriminatory.” (Pl.’s

Resp. (Doc. 31) at 10.) As Defendant DTNA has noted, this action

is not the proper avenue for such a claim. If Plaintiff wishes

to bring a claim against his union, he should do so, rather than

raise that argument in this action against his former employer.

IV. CONCLUSION

For the reasons set forth above, this court finds that

Defendant Daimler Trucks North America’s Motion for Summary

Judgment will be granted.

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary

Judgment, (Doc. 19), is GRANTED.

IT IS FURTHER ORDERED that this case is DISMISSED WITH

PREJUDICE.

A judgment reflecting this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 17th day of December, 2020.

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