Petition for Writ of Certiorari — Christopher Swindell, Petitioner v. CACI NSS, Inc., fka L-3 National Security Solutions, Inc., et al.

APPENDIX

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2179

CHRISTOPHER SWINDELL,

Plaintiff - Appellant,

v.

CACINSS, INC., f/k/a L-3 National Security Solutions, Inc.; QUICK SERVICES,

LLC,

Defendants - Appellees.

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,

Amicus Supporting Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. James C. Dever III, District Judge. (5:17-cv-00617-D)

Decided: August 30,2022

Submitted: August 4,2022

Before MOTZ, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Robert M. Elliot, Benjamin P. Winikoff, Alice Chen Anderson, Suzanne

Reynolds, ELLIOT MORGAN PARSONAGE, PLLC, Winston-Salem, North Carolina,

APPENDIX A

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for Appellant. Patricia T. Bartis, Jonathan E. Hall, Raleigh, North Carolina, Tory Ian

Summey, PARKER POE ADAMS & BERNSTEIN LLP, Charlotte, North Carolina, for

Appellee CACI NSS, Inc. Everett L. Dougherty, IV, Lee Dougherty, EFFECTUS PLLC,

Washington, D.C., for Appellee Quick Services, LLC. Sherrilyn A. Ifill, President and

Director-Counsel, Janai S. Nelson, Samuel Spital, New York, New York, Daniel S.

Harawa, Mahogane D. Reed, NAACP LEGAL DEFENSE & EDUCATIONAL FUND,

INC., Washington, D.C., for Amicus Supporting Appellant.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:

Christopher Swindell appeals from the district court’s order granting summary

judgment to Defendants in his civil action for a hostile work environment based on race

and retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended,

42U.S.C. §§ 2000e to 2000e-17, retaliation, in violation of42 U.S.C. § 1981, and wrongful

discharge, in violation of North Carolina state law. Having reviewed the record and the

parties’ briefs, we conclude that Swindell fails to establish reversible error by the district

court. We therefore affirm its judgment. Swindell v. CACINSS, 7«c.,No. 5:17-cv-00617-D

(E.D.N.C. Sept. 30, 2020). We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

AFFIRMED

3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DMSION

No. S:1 7-CV-617-D

CHRISTOPHER SWINDELL,

Plaintiff,

v.

CACINSS, INC, and

QUICK SERVICES, LLC,

Defendants.

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ORDER

On January 29,2018, Christopher Swindell ("Swindell") filed an amended complaint against

CACINSS, Inc. ("CACP') and Quick Services, LLC ("QSL"; collectively, with CACI, "defendants")

[D.E. 13]. Swindell alleges four causes of action: (1) racially hostile work environment under Title

VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.; (2) retaliation under Title VII; (3) race

discrimination under 42 U.S.C. § 1981; and (4) wrongful discharge in violation of North Carolina

public policy. See id. On October 18,2019, CACI moved for summary judgment (D.E. 61] and

filed a memorandum and statement of material facts in support [D.E. 62, 63]. On October 21,2019,

QSL moved for summary judgment [D.E. 68] and filed a memorandum and statement of material

facts in support [D.E. 69, 70]. On December 4,2019, Swindell responded in opposition [D.E. 74,

75, 76, 77, 81]. On December 16, 2019, Swindell moved to amend his memorandum in opposition

[D.E. 86]. On January 8,2020, CACI replied [D.E. 87] and QSL replied [D.E. 90]. As explained

below, the court grants Swindell's motion to amend his memorandum in opposition, and grants

defendants' motions for summary judgment.

I.

In November 2009, the United States Department of-Defense selected L-3 National Security

APPENDIX B

Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 4 of 39

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Solutions ("L-3")1 as the prime contractor on a contract, "Dagger II," to provide "Imagery Analysis

Services." [D.E. 76] ,i-,r 1-2. QSL was one ofmultiple subcontractors on the Dagger II contract.

Under the contract, L-3 provided 24-hour imagery intelligence to the United States Special

Operations Command ("SOCOM"). Id. at ,i-,r 5-6. SOCOM oversees the special operations

commands of the United States military's individual branches, and is part of the United States

Department of Defense. SOCOM conducts "covert and clandestine missions, such as direct action,

special reconnaissance, counter-terrorism, foreign internal defense, unconventional warfare, and

i counter-narcotics operations." ]d. atl 7. All services associated with Dagger II were performed at

Fort Bragg, a US Army installation. The United States government controlled access to the JSOC

compound on Fort Bragg. See id. at 18.

Individuals working on Dagger II were assigned to the Geospatial Intelligence Exploitation

Troop ("GET'). Id. atl 11. Geospatial intelligence involves gathering information concerning the

activities of target individuals that is "derived from the exploitation and analysis of imagery and

geospatial information that describes, assesses, and visually depicts physical features and

geographically referenced activities on the Earth." Id. Three individuals lead the GET: a military

commander, a senior civilian deputy, and a senior enlisted advisor. See id. atl 12.

Individuals working on Dagger II had to have a Top Secret with Sensitive Compartmented

Information security clearance. Id. at 114. Additionally, the United States established training

standards that applicants were required to meet to work on Dagger II, and L-3 and QSL conducted

a "skill verification" process to ensure the applicants met those standards. See id. atl 13; Moore

1 In 2016, after all events relevant to this action. CACI's parent company purchased L-3's

stock. See [D.E. 76] 13. Because both parties refer to L-3 and not CACI in the motions, the court

uses L-3.

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Dep. [D.E. 80-21] 5;2 Swindell Deel. [D.E. 80-1],T 12.

Full motion video analysts ("FMVs") are referred to as geospatial intelligence analysts inthe

Dagger II contract. [D.E. 76], Y 19. AB part of Dagger II, government civilians, military personnel,

and contact personnel work on various teams. See id. ,Y 34.

When working missions, personnel work inteams oftwo-a screener and an imagery analyst

("IA"). The screener watches the live video feed, makes calls as specified by the government, and

touch types the information into a database. ]d. ,T 40. The information recorded by the screener

appears in a chat room. Id. The video feed and the chat room can be viewed live at JSOC or

remotely, by military members and government personnel with requisite clearances, including the

President of the United States, id.

The IA uses the information entered by the screeners to create PowerPoint products that

document the mission. The government also uses the information for future missions. See id. at ,F

41. For example, the product may be used to identify a target for a military strike. Id. Military and

other personnel also often rely onthe IA'sand FMV's work during live missions. Failure toperform

the job competently can jeopardize special operations missions and potentially cause injuries or

deaths to civilians and military personnel. See Swindell Dep. [D.E. 63-2] 113; Ulloa Dep. [D.E. 632] 172-77.

Before releasing work product tothegovemment, a senior analyst performs a quality control

("QC") review of it. [D.E. 76] ,T 43. The QC person can review the recorded video feed and

compare it to the information typed into a secret database by the screener to ensure accuracy. See

id. Every entry in the database can be traced to the person who made it. Id. at ,T 44. Each entry

reflects a user identification and an associated date time stamp. ]d. The original date and any

changes made to it are preserved-each reflecting a unique user identification and date time stamp.

2 Record citations are to the CM-ECF page and not to the deposition transcript page.

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See id. Personnel are prohibited from using another individual's user identification. ]d. atl45.

FMVson theDagger Ilcontract worked twelve hour shifts, onaverage-altematingfour day

and three day workweeks. Id. at 14 7. Shifts which began in the evening would span two calendar

days (e.g., 6:00 p.m. to 6:00 a.m.). See id.

Given the mission-critical nature of the Dagger II contract, if the government lost faith in a

team or team member, the government hadthe authority toremove contractors, civilians, or military

personnel from themission floor. See Byers Dep. [D.E. 63-2] 13-14; Joel HarrisonDep. [D.E. 63-2]

24-29. On the other hand, removing team members results in significant costs; therefore, the

government does not remove personnel "willy-nilly." Sargent Dep. [D.E. 63-2] 70.

On March 3,2015, Swindell was hired as an FMV on Dagger II. See Swindell Dep. [D.E.

63-2] 108-09. QSL paid Swindell and provided Swindell's employment benefits. See [D.E. 76] 1

22; Swindell Dep; [D.E. 63-2] 109,154. L-3 was responsible for supervising Swindell (and all other

QSL analysts). See [D.E. 77] ft 12-13; Sawyer Dep. [D.E. 80-19] 8-9.

Before being hired as an FMV on Dagger II, Swindell served in the United States Air Force

from 2009 until February 25,2015. See [D.E. 76] 117. While in the Air Force, Swindell gained

some experience as a geospatial analyst. See id. atl 18. FMV analysts are considered geospatial

analysts under Dagger II, and the pool of applicants qualified for this work is limited. See id. at ft

19-20.

On March 9,2015, Swindell began a two-week FMV analyst training course for Dagger II.

At the end of training, the evaluators provided a detailed critique of Swindell's performance and

recommended that Swindell repeat thetraining session, and stated that he"[w]ould not make a good

addition to the GET at this time." [D.E. 63-2] 5. Swindell states that he was recycled because he

missed class with pink eye and that two of the three other individuals in Swindell's training were

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recycled. See Swindell Dep. [D.E. 80-26] 18; Swindell Deel. [D.E. 80-1] ,T 12.3

It is uncommon for individuals to go through FMV analyst training more than once. See

Sargent Dep. [D.E. 63-2] 71; IBloa Dep. [D.E. 80-23] 5-6. After recycling through FMV analyst

training, the evaluators again provided a detailed critique of Swindell's performance, but

"recommended with reservations" that Swindell work on the GET. See [D.E. 63-2] 7. The

evaluators noted that Swindell "will need to be monitored closely on his processes and production."

On April 9, 2015, Swindell was assigned to the "Red Team" on Dagger II. Sge Swindell

Dep. [D.E. 63-2] 114—15. There were five teams working on Dagger II to provide imagery analysis

services. The teams rotated to provide these services 24 hours per day, 7 days per week. Seg Byers

Deel. [D.E. 70-1] 3. FMVs generally worked twelve-hour shifts for three or four days per week, gee

id. Every team had a Government Team Chief who was a government civilian, a NonCommissioned Officer in Charge who was a military member, and a Team Lead from L-3. See id.

Additionally, other government civilians, military members, and contract personnel were assigned

to each team. See id. The Government Teaip. Chief had responsibility for government civilians and

military members, and neither L-3 nor QSL had authority over either. See id. Matt Craig ("Craig")

was the Government Team Chief for Red Team. See Malave Dep. [D.E. 70-1] 48. Craig reported

to Joel Harrison, who was the senior civilian government employee for Dagger II. ]d.

When Swindell started with the Red Team, William Malave ("Malave") was the L-3 Team

Lead. See Malave Dep. [D.E. 63-2] 47, 55-56. The Red Team had approximately 35 people. See

Swindell Dep. [D.E. 80-26] 13-16. Those people included, inter alia. Marion Spencer ("Spencer")

3 Each party submitted declarations of witnesses who were deposed. The court disregards

any portion of a declaration that contradicts the witness's deposition testimony. See Cleveland v.

Policy Mgmt Svs. Com.. 526 U.S. 795,806 (1999); In re Family Dollar FLSA Litig,. 637 F.3d 508,

512 (4th Cir. 2011); Rohrbough v. Wveth Labs.. Inc.. 916 F.2d 970, 975 (4th Cir. 1990); Barwick

v. Celotex Coro.. 736 F.2d 946,960 (4th Cir. 1984).

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from QSL, Rob Harrison from QSL, Kevin Brower ("Brower") from subcontractor GeoOwl, Justin

Shaw ("Shaw") from subcontractor Xcellent Technologies, Inc., Felix Ulloa ("Ulloa") from L-3, and

Megan Welch ("Welch") from subcontractor Riverside Research. See Byers Deel. [D.E. 70-1] ,T

29. Throughout Swindell's time working on Dagger II, Swindell was assigned a team trainer.

See Ulloa Dep. [D.E. 63-2] 170. Additionally, Ulloa reviewed Swindell's work product as part of

his responsibilitiesasan L-3 senior analyst. Seeid. at 164,170-71. Ulloa's general responsibilities

included ensuring that every work product was accurate and timely. See id. at 160-61. Ulloa

testified that "[i]fyou have a team trainer assigned toyou, you're not meeting the standard." Seeid.

at 190.

OnMay 20,2015, Swindell reported ona government Command Climate Survey that hehad

heard inappropriate comments at work. See Swindell Dep. [D.E. 63-2] at 125-28. Swindell

received no response from the government Id; Malave Dep. [D.E. 63-2] 49.

On May 30,2015, for the 6:00 p.m. to 6:00 am. shift, Swindell was assigned to work with

Spencer for training to improve Swindell's processes. See Swindell Dep. [D.E. 63-2] 142-43.

Swindell received verbal counseling concerning his performance. See [D.E. 63-2] 8; Malave Dep.

[D.E. 63-2] 55; Swindell Dep. [D.E. 63-2] 116; Ulloa Dep. [D.E. 80-23] 11-12.

On May 30,2015, during the evening portion of his 6:00 p.m. to 6:00 am. shift, Swindell

told Malave (the L-3 Team Lead) about racial comments that Swindell overheard or that were

directed to him while working on Dagger II and his anonymous report to the Command Climate

Survey.

Malave Dep. [D.E. 63-2] 49,51-52; [D.E. 76] ff 57-58. Specifically, Swindell told

Malave that QSL employee Rob Harrison said that Swindell made him "think ofEBT," an acronym

that Swindell believed stood for Electronic Benefits Transfer. See Malave Dep. [D.E. 63-2] 51.

Swindell also described a conversation with a military member wherein the military member and

Swindell were discussing crime. The military member asked Swindell whether he would "feel safer

inSoutheast D.C. or Yemen." Swindell Dep. [D.E. 63-2] 147. Swindell responded Southeast D.C.

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even though the crime was terrible in both D.C. and Yemen, id. The government employee then

said that Swindell would not "fit in Yem.en" because he was "a bigger black guy and Africans are

skinny." ]d.

On May 31, 2015, Malave notified Government Team Chief Matt Craig about Swindell's

concerns, butdid notinitially reveal Swindell's name because Swindell asked to remain anonymous.

Malave Dep. [D.E. 63-2] 53. Craig told Malave that he wanted to speak with the person who had

the concerns. Id. After Malave confirmed with Swindell that Malave could reveal Swindell's

identity to Craig, Craig and Malave spoke with Swindell about Swindell's concerns. Id.

At 5:15 a.m. on May 31, 2015, Matt Craig emailed Joel Harrison, Jim Moore, Kendall

Smalls, and other government and military personnel to report Swindell's perception of racism in

the workplace, gee [D.E. 77],Y 52. Malave notified L-3 Program Manager Jim Moore, gee Moore

Dep. [D.E. 80-21] 15. Malave thenverbally counseled Rob Harrison about inappropriate workplace

conversations. See Malave Dep. [D.E. 80-17] 15-16; [D.E. 78-1] 4-5.

At the end of the 6:00 a.m. morning shift on May 31,2015, Craig and Malave held a team

meeting with the Red Team. Craig told the entire team that making racial comments or creating a

hostile work environment was against policy and would not be tolerated. See Malave Dep. [D.E.

63-2] 53-54. After the government personnel left the meeting, Malave spoke with the contractor

personnel and reiterated that racial comments or creating a hostile work environment were not

acceptable. See id.

After the meeting on May 31, 2015, Rob Harrison and Hovland spoke with Swindell

individually. See Swindell Dep. [D.E. 80'-26] 22-24. According to Swindell, Rob Harrison and

Hovland asked how Swindell was doing, and told him that ifhe had any issues with racial comments

in the future, he should report them to them. See id. at 23. Swindell perceived this conversation as

a threat. See id.

On June 5, 2015, Malave sent an email to Red Team members emphasizing the need for

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sensitivity to racial issues. See [D.E. 76]

61. On July 10,2015, Steve Loori ("Loori") replaced

Malave as the L-3 Red Team Lead, and Malave transferred to L-3 Green Team as a senior analyst.

See Malave Dep. [D.E. 70-1] 57-58; Loori Dep. [D.E. 63-2] 32-33. Loori had recently returned

from afour-month deployment to Afghanistan, and L-3 Program Manager Jim Moore hadtold Loori

in approximately late April or early May 2015 that he would be the Red Team Lead upon his return

from deployment. See Loori Dep. [D.E. 80-18] 5.

On July 12,2015, Swindell was removed from a "high visibility" live mission "d[ue] to

missed callouts on a high priority target." Loori Dep. Ex. 28 [D.E. 63-2] 205-06; Ulloa Dep. [D.E.

80-23] 17-20; Swindell Dep. [D.E. 63-2] 149. Government Team Chief Matt Craig directed that

Swindell needed to beremoved from the mission, and Ulloa (a senior analyst with L-3) approached

Swindell and told him to step away from his station. See Loori Dep. [D.E. 63-2] 36-38; Ulloa Dep.

[D.E. 80-23] 17-20. After Swindell was removed, Loori and Ulloa prepared an "Employee

Counseling Report/Performance Improvement Plan" ("PIP"). £££ Loori Dep. [D.E. 63-2] 36; Ulloa

Dep. [D.E. 80-23] 17-20. On the same date, Loori and Ulloa discussed the PIP with Swindell. .See

Ulloa Dep. [D.E. 80-23] 20-22. The PIP noted that the "first course of action" was "remedial

training" for Swindell, followed by re-evaluation and "an updated counseling noting [Swindell's]

progressonoraboutAugustl0[,2015]." LooriDep. Ex. [D.E. 63-2] 205—06; seePl.'sEx.lO [D.E.

80-10] 2. Loori and Ulloa then assigned another trainer to Swindell to get "another perspective of

what he's doing wrong" in order to "help him." Ulloa Dep. [D.E. 80-23] 20.

At the PIP meeting on July 12,2015, Swindell was upset and told Loori and Ulloa that he

thought he was being "targeted because of Ms race." Loori Dep. [D.E. 63-2] 41; UlloaDep. [D.E.

63-2] 184-87. After the PIP meeting, Loori reported Swindell's statements concerning being

targeted because of his race to L-3's Deputy Program Manager, Scott Byers ("Byers"). See Loori

Dep. [D.E. 63-2] 42; Byers Dep. [D.E. 80-20] 12,14.

After being removed from the line and counseled at the PIP meeting on July 12,2015,

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. Swindell called QSL Director of Operations Jason Sawyer ("Sawyer") on July 12, 2015. See

Swindell Dep. [D.B. 63-2] 150. Swindell told Sawyer his belief that his complaints about racial

comments led to retaliation. See Sawyer Dep. [D.B. 80-19] 9; Swin,dell Dep. [D.B. 63-2] 150-51.

During his conversation with Swindell on July 12,2015, Sawyer told Swindell that he would look

into the complaints and granted Swindell's request for two days of paid time off. See Sawyer Dep.

[D.B. 80-19] 9; Swindell Dep. [D.B. 63-2] 155.

On July 12 or 13,2015, after Sawyer spoke with Swindell, Sawyer contacted the QSL CEO,

the QSL Human Resources Director, and QSL Human Resources Representative Pixley about

Swindell's complaints. See Sawyer Dep. [D.B. 80-19] 9-11. Sawyer also counseled Rob Harrison

aboutinappropriatecomments. SeeSawverDen. [D.B. 80-19] 11-13, 15; [D.B. 80-16]4-5;Moore

Dep. [D.B. 80-21 ] 40. Sawyer also spoke with L-3 Program Manager Jim Moore on the same date

about Swindell's complaints. See Moore Dep. [D.B. 80-21] 42. Moore also promptly counseled

Rob Harrison about his "unprofessional conduct" in the workplace. See id. at 43. QSL also issued

a directive for all QSL employees to take follow-up BO training onthe QSL anti-harassment policy

and to immediately report BO issues. See Sawyer Pen. [D.B. 80-19] 12. After the July 12,2015 call

with Jason Sawyer, Swindell experienced no :further discriminatory racial comments or harassment.

See Swindell Dep. [D.B. 70-1] 153,165—66.

On July 21,2015, Swindell returned to work. On July 22,.2015, Sawyer and a QSL Human

Resources Representative Pixley invited Swindell to a meeting to discuss Swindell's complaints

about the work environment. See SwindellDep. [D.B. 63-2] 154-57; SawyerDep. [D.B. 80-19] 14.

The meeting was scheduled for July 23, 2015. Swindell Dep. [D.B. 63-2] 154-57. Initially,

Swindell accepted the meeting, but Swindell canceled the meeting on July 22,2015. Swindell Dep.

[D.B. 80-26] 66-67.

After Swindell returned to work on July 21,2015, Shaw ofXcellent Technologies observed

Swindell, kept a ninning log of Swindell's performance that appeared on screens on the mission

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floor, and logged observations ofSwindell's performance on three days: July 21,27, and 28,2015.

See Schagane Dep. [D.E. 63-2] 84-86, 90-92, 96-98; Schagane Dep. Ex. [D.E. 64] 2-3. On July

21,2015, Shaw noted that Swindell made off-target calls, lacked attention to detail, and submitted

an "overview" report with several issues. See Schagane Dep. Ex. [D.E. 64] 2.

On July 28, 2015, at 12:54 P.M., Joel Harrison, the senior civilian deputy commander,

emailed Walter Sargent, the Contracting Officer Representative, to recommend terminating

Swindell's employment on Dagger II. See Harrison Dep. [D.E. 63-2] 28-29; Byers Dep. [D.E. 8020] 23-25; Sargent Dep. [D.E. 63-2] 74. Joel Harrison's email stated:

I recommend that Chris Swindell be removed from the DAGGER II task

immediately. Chris is coming up on his fifth month on task however has not

progressed from the basic issues observed during his initial training. Chris was put

through initial training twice and continues to require daily hands-on

oversight/guidance. He has not progressed with his peers and has become both a

detriment and risk to our operations.

[D.E. 63-2] 9; [D.E. 64] 6-10; see Harrison Dep. [D.E. 80-22] 8-12, 19--22. Joel Harrison based

his recommendation.on discussions with government personnel (including Team Chief Matt Craig

who hadobserved Swindell's deficient performance on July 12,2015) and contractor personnel (who

also hadobserved Swindell's deficient performance) anddocuments that L-3 provided. See Harrison

Dep. [D.E. 80-22] 8-12, 19-22; see Loori Dep. [D.E. 70-1] 37-39. The fact the L-3's PIP for

Swindell stated that Swindell would have until August 10, 2015, to improve his performance was

"not relevant" to Harrison's recommendation. Harrison Dep. [D.E. 80-22] 8-12, 19—21. Joel

Harrison "could not afford the risk to my mission to keep somebody that can't do the job." ]d.

When Joel Harrison wrote his email, he expected Swindell to be removed from Dagger II

immediately. See id. at 22.

On July 28,2015, at 2:05 P.M., Contracting Officer Representative Sargent emailed Scott

Byers, L-3's D eputy Program Manager, copying Joel Harrison and others on the email. The email

stated: "Please remove Chris Swindell from the Dagger II contract. He is not performing to the

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required quality. Remove him at the next natural transition point." Swindell Dep. [D.E. 63-2] 9.

Based on the information Sargent had, Sargent believed Swindell was "not doing the job," and the

United States was "paying, for something that [it was] not getting." Sargent Dep. [D.E. 63-2] 72.

In Sargent's opinion, Swindell was not at a level of performance to sit on the mission floor. See

SargentDep. [D.E. 70-1] 75.

After receiving Sargent's email, Byers ofL-3 talked to Sawyer of QSL about meeting with

Swindell to remove him from Dagger II. See Byers Dep. [D.E. 80-20] 25-26; Moore Dep. [D.E.

80-21] 35. L-3 released Swindell back to QSL. See Byers Dep. [D.E. 80-20] 25, 30. QSL did not

have another position within QSL to place Swindell and could not defy the government's directive

to remove Swindell from Dagger II. See Sawyer Dep. [D.E. 80-19] 17; Byers Dep. [D.E. 80-20] 6.

The government completely controlled access tothe JSOC compound on Fort Bragg. See [D.E. 76]

,r 8. On July 28, 2015, Byers and Sawyer took Swindell off the floor, informed Swindell that his

employment was terminated for performance reasons, and escorted him out of the building. See

Swindell Dep. [D.E. 63-2] 152-53.

II.

In order to be liable under Title VII, an entity must be an "employer" of plaintiff. See 42

U.S.C. § 2000e(b) (defining "employer" as a "person engaged in an industry affecting commerce

who has fifteen or more employees for each working day in each of twenty or more calendar weeks

in the current or preceding calendar year, and any agent of such a person."); Butler v. Drive Auto.

Indus, of Am.. Inc.. 793 F.3d 404,408 (4th Cir. 2015). In Butler, the Fourth Circuit adopted'the

"joint employment" doctrine, id- at 409. Under that doctrine, more than one entity may be an

"employer" under Title VII. See id. at 408. To determine whether plaintiff is employed by two or

more entities, a court uses a ten-factor "hybrid test" that combines the common-law element of

control and the following nine factors:

(1) authority to hire and fire the individual;

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(2) day-to-day supervision of the individual, including employee discipline;

(3) whether the putative employer furnishes the equipment used and the place of

work;

(4) possession of and responsibility over the individual's employment records,

including payroll, insurance, and taxes;

(5) the length of time during which the individual has worked for the putative

employer;

(6) whether the putative employer provides the individual with formal or informal

training;

(7) whether the individual's duties are akin to a regular employee’s duties;

(8) whether the individual is assigned solely to the putative employer; and

(9) whether the individual and putative employer intended to enter into an

employment relationship.

1^. at 414. Although noonefactor is dispositive, thefirst three arethemost salient and the last factor

is "ofrninimaf consequence." ]d. at 414-15 & n.12. Additionally, the "common-law element of

control remains the 'principal guidepost' in the analysis." Id. at 414; see Clackamas

Gastroenterology Assocs.. P.C. v. Wells. 538 U.S. 440, 448 (2003); Nationwide Mut. Ins. Co. v.

Dardm, 503 U.S. 318, 323-24 (1992); see also Cilecekv. InovaHealth Svs. Servs.. 115 F.3d 256,

259-61 (4th Cir. 1997).

Although defendants do not dispute QSL's and L-3’s status as joint employers for purposes

of their motions for summary judgment, the parties dispute the scope of joint-employer liability.

QSL and L-3 argue that each company is responsible only for actions of their respective employees.

See [D.E. 62] 9-10; [D.E. 69] 10-11. Specifically, QSL and L-3 argue that although the Fourth

Circuit in Butler did not explicitly limit a joint employer's liability to its own actions, the court

implicitly adopted such a limit when it cited out-of-circuit precedent that refused to"impute liability

from one joint employer to another" unless one employer participated inor knew ofand did nothing

to prevent the other employer's discriminatory actions. Velasquez v. Sonoco Display & Packaging.

LLC.No.l:17CV865-2018WL 1773128,at*3 (M.D.N.C.Apr. 11,2018¥unpublishedLre,oortand

recommendation adou 2018 WL 2016506 (M.D.N.C. Apr. 30,2018) (unpublished); gee [D.E.

62] 10; [D.E. 69] 11-12.

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Inopposition, Swindell argues that a joint employer may beliable for a co-employer's actions

if that employer "knew or should have known" about the discriminatory behavior and did nothing

to prevent it. £ee [D.E. 86-1] 13-14; see Burton v. Freescale Seminconductor. Inc.. 798 F.3d 222,

228 (5th Cir. 2015).4 In Burton, the Fifth Circuit joined the First, Seventh, and Eleventh Circuits

tohold that establishing a "'joint employer' relationship does not, create liability in the co-employer

for actions taken by the other employer." ]d- at 228 (quotation omitted). A joint employer may be

liable, however, if'it participates in the discrimination, or if it knows or should have known of the

[co-employer's] discrimination but fails to take corrective measures within its control." Id. at 229.

Swindell asserts that "both L-3 and QSL (and the government)... actually knew of [his] complaints

of a hostile work environment and retaliation," and that L-3 and QSL "failfed] to take corrective

actions" within their control before terminating Swindell's employment on July 28,2015. [D.E. 861] 15.

Defendants recognize the same core agency principle from Burton: L-3 can be liable for

QSL's discriminatory action, and vice versa, only if L-3 (or QSL) had actual or constructive

knowledge of the discriminatory action and failed to take corrective measures within its control.

Comnare [D.E. 86-1] 13-14 with [D.E. 62] 10 and [D.E. 69] 11. Although the Fourth Circuit has

notdirectly addressed this issue, district courts inthe Fourth Circuit that havereached the issue apply

the Burton standard. See Burton, 798 F.3d at 228 (collecting cases); Crump v. U.S. PeMp't ofNaw,

No. 2:13-cv-707, 2016 WL 901262, at *1-2 (E.D. Va. Mar. 3, 2016) (unpublished); Williams v.

Primes Aerosnace Co.. 988 F. Supp. 925,937-38 (D.S.C.l997). Additionally, the Burton standard

comports with EEOC guidance. See Velasquez. 2018 WL 1773128, at *3-4. Moreover, the Burton

standard comports with the fourth element ofa Title VII hostile work environment claim concerning

4 Swindell moves under Local Civil Rule 15.1 to amend his memorandum. See [D.E. 86].

L-3 and QSL do not object to Swindell's motion. See id. Swindell's motion complies with this

court's local rule. See [D.E. 86, 86-1, 86-2]; E.D.N.C. Civ. R. lS(a). Thus, the court grants

Swindell's motion.

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imputing liability for actions of an employee to an employer. See. .EEOC v. Xerxes Corn.. 639

F.3d 658, 669 (4th Cir. 2011). Thus, the court applies the Burton standard concerning a joint

employer's liability for actions of a co-employer to Swindell's Title VII and section 1981 claims.

m.

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

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

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

supportthenonmovin|gpartv'scase. See Celotex Corn, v. Catrett.477U.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 Blee. Indus. Co. v. Zenith Radio Coro..

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. £ee

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 tothenonmoving party. See Harris. 550 U.S.

at 378.

Agenuine issue of material fact exists if there is sufficient evidence favoring thenonmoving

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

existence ofa scintilla ofevidence in support of plaintiffs position [is] insufficient

"Id. at 252;

see Beale v. Hardv. 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.

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 17 of 39

A.

Swindell alleges a hostile work environment claim under Title VII against QSL and L-3. To

demonstrate a hostile work environment claim under Title VII, an employee must prove that (1) he

experienced unwelcome conduct, (2) theconduct was based onaprotected characteristic under Title

VII, (3) the conduct was sufficiently severe or pervasive to alter the conditions of employment and

create an abusive atmosphere, and (4) the conduct is imputable to the employer. See, e. &, Perkins

v. Int'l Paper Co.. 936 F.3d 196, 207-08 (4th Cir. 2019); Parker v. Reema Consulting Servs,. Inc.,

915 F.3d 297,302 (4th Cir. 2019); Bover-Liberto v. Fontainebleau Con... 786 F.3d 264,277 (4th

Cir. 2015) (en bane); Qkoli v. Cizv: ofBalt.. 648 F.3d 216,220 (4th Cir. 2011); EEOC v. Fairbrook

Med. Clinic. P.A.. 609 F.3d 320,327 (4th Cir. 2010); Ziskie v. Mineta. 547 F.3d 220,224 (4th Cir.

2008); Ocheltree v. Scollon Prods.. Inc.. 335 F.3d 325, 331 (4th Cir. 2003) (en bane); Coleman v.

Altec. Inc.. No. 5:16-CV-954-D, 2018 WL 4289610, at *3 (E.D.N.C. Sept. 7,2018) (unpublished);

Brownv. WakeCtv. Oov’t.No. 5:16-CV-806-D,2017WL2982971,at*5 (E.D.N.C. July 12,2017)

(unpublished). An employee also must show that his protected characteristic under Title VII was

the "but for" cause of the alleged harassment. See, e.g.. Gilliam v. South CarolinaDen'tof Juvenile

Justice. 474 F.3d 134,142 (4th Cir. 2007). Summary judgment is appropriate if'the facts are clearly

insufficient to satisfy the standard," but not if there is a"close question and reasonable minds could

differ when weighing all the facts against the law." Walkerv. Mod-U-KrafHomes. LLC. 775 F.3d

202,208 (4th Cir. 2014) (quotations omitted).

To determine whether conduct was sufficiently severe or pervasive to alter the employee's

terms and conditions of employment and create an abusive working environment based on a

protected characteristic, the court examines the allegations both subjectively and objectively. See.

Harris v. Forklift Svs.. Inc.. 510 U.S. 17, 21-22 (1993). First, the employee must subjectively

consider the conduct to be sufficiently severe or pervasive as to alter his conditions of employment.

See, e.g.. Clark Ctv. Sch. Dist. v. Breeden. 532 U.S. 268,270--71 (2001) (per curiam); Faraeher v.

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City offiocaRato!!. 524 U.S. 775, 787-88 (1998); Bover-Liberto. 786 F.3d at 277. Second, a court

views the conduct from the perspective of a reasonable person in the employee's position to

determine whether it is objectively severe or pervasive. See, e.g.. Breeden. 532 U.S. at 271;

Faragher. 524 U.S. at 787-88; Oncale v. Sundowner Offshore Servs.. Inc., 523 U.S. 75,81-82

(1998); Bover-Liberto. 786 F.3d at 277.

The objective component helps courts "to police the baseline for hostile environment

claims." Mendoza v. Borden. Inc.. 195 F.3d 1238, 1244 (11th Cir. 1999) (en bane) (quotation

omitted). The court considers all the circumstances, including the "frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's work performance." Forklift

Svs.-lnc.. S10 U.S. at 23: see Parker. 91S F.3d at304. The conduct must be severe orpervasive to

be actionable. See Forklift Svs.. Inc.. S10 U.S. at23: Faragher. S24 U.S. at 787-88; Bover-Liberto.

786 F.3d at 277-78. Title VII does notcreate "a general civility code for the American workplace."

Oncale. 523 U.S. at 80; see Irani v. Palmetto Health. 767 F. App'x 399,416 (4th Cir. 2019) (per

curiam) (unpublished). Rather, the "conduct must ... amount to a change in the terms and

conditions of employment." Faragher. S24 U.S. at 788; see Bover-Liberto. 786 F.3d at 277-81.

Simple teasing, sporadic rude language, oflhand comments, jokes related to a protected status, and

isolated incidents (unless extremely serious) will not amount to discriminatory changes inthe terms

and conditions of employment. See Burlington N. & Santa Fe Rv. v. White. S48 U.S. 53, 68—69

(2006); Breede!!. S32 U.S. at 270-71; Faragher. S24 U.S. at 788; cf. Bover-Liberto. 786 F.3d at

277-81. Likewise, mere rude or insensitive treatment cannot sustain a hostile work environment

claim. See, e..,g,_, Bonds v. Leavitt. 629 F.3d 369,38S-86 (4th Cir. 2011); Baairv. Princjpi. 434 F.3d

733, 746-47 (4th Cir. 2006);

also Breedm S32 U.S. at 270-71; Faragher. S24 U.S. at 787-88;

Oncale. 523 U.S. at 81-82; cf. Bover-Liberto. 786 F.3d at 277-81; Walker 77S F.3d at 207-10;

Freeman v. Dal-Tile Cor.p.. 750 F.3d 413,420-24 (4th Cir. 2014); Okoli, 648 F.3d at 220-22. "The

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real social impact of workplace behavior often depends on a constellation of surrounding

circumstances, expectations, and relationships which are not :f\illy captured by simple recitation of

the words used or physical acts performed." Oncale. 523 U.S. at 81-82. "Common sense, and

appropriate sensitivity to social context," will enable courts to distinguish between teasing,

distasteful jokes, sporadic rude language, vulgarity, stupidity, offhand cop).ID.ents, and insensitive

treatment and "conduct which a reasonable person in the plaintiffs position would find severely

hostile or abusive" based on a protected characteristic. ]d- at 82 (emphasis added); Hartsell v.

Duplex Prods.. Inc.. 123 F.3d 766, 772-73 (4th Cir. 1997).

Although hostile work environment claims often involve repeated conduct, an "isolated

incident of harassment can amount to discriminatory changes in the terms and conditions of

employment, if that incident is extremely serious." Bover-Liberto. 786 F.3d at 277 (quotations and

alterations omitted); see Prvor v. United Air Lines. Inc.. 791 F.3d 488,496 (4th Cir. 2015); Okoli.

648 F.3d at 220 & n.5. Furthermore, in assessing the severity of the harassing conduct, the status

of the harasser is an important factor. See Bover-Liberto. 786 F.3d at 278; Sonnier v. Diamond

Healthcare Com.. 114 F. Supp. 3d 349, 356 (E.D. Va. 2015). A "supervisor's power and authority

invests his or her harassing conduct with a particular threatening character." Burlington Indus.. Inc.

v. F.llerth. 524 U.S. 742, 763 (1998); see Bover-Liberto. 786 F.3d at 278.

To impute liability to an employer for an employee's harassment, a plaintiff must

demonstrate that "after having acquired actual or constructive knowledge ofthe harassing conduct,

the employer had taken no prompt and adequate remedial action to correct it"

Mikelsv. Cilvof

DurMM, 183 F.3d 323,329 (4th Cir. 2009) (alteration and quotation omitted) (collecting cases); see

791 F.3d at 498; Freeman. 750 F.3d at 423; Xerxes Com., 639 F.3d at 669; EEOC v. Sunbelt

Rentals. Inc.. 541 F.3d 306,319 (4th Cir. 2008). As for an employer's remedial actions, "Title VII

requires only that the employer take steps reasonably likely to stop the harassment." Xerxes Com..

639 F.3d at 669; Bazemore v. Best Buv. 957 F.3d 195,202 (4th Cir. 2020). In assessing remedial

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actions, the court must consider, inter alia, "the promptness of the employer's investigation when

a complaint is made, whether offending employees were counseled or disciplined for their actions,

and whether the employer's response was actually effective" in stopping the conduct of which

plaintiff complains. Xerxes Coro.. 639 F.3d at 669; see Bazemore. 957 F.3d at 202;

791 F.3d

at 498. "[S]o long as discipline is reasonably calculated to end the [offensive] behavior, the exact

disciplinary action lies within [the employer's] discretion." Bazemore. 957 F.3d at 202. "A

remedial action that effectively stops the harassment will be deemed adequate as a matter oflaw."

Xerxes Com.. 639 F.3d at 670; Bazemore. 957 F.3d at 201 —02.

Swindell argues that the cumulative effect of ten comments during a seven-week period of

his nearly five months of employment, when considered in the context of a high-stakes military

environment where Swindell was the sole African- American.contractor onthe Red Team for Dagger

II, created a racially hostile work environment See [D.E. 86-1 ] 17-25s. In support, Swindell cites

s The parties include the ten comments in their briefs and address the comments in their

arguments. gee [D.E. 62] 12-13; [D.E. 69] 13-14. The court describes each below and considers

all ten in its analysis.

During Swindell's first training period (March 16 to March 26,2015), Swindell overheard

a training classmate, Rob (LNU), speaking with another co-worker and discussing an older white

woman.Rob knew who referred to black people as"coloreds." Swindell Dep. [D.E. 63-2] 117. Rob

said, "Who am I to tell her to stop calling 'them' coloreds. She's been doing it for so long. She's

just a harmless old white lady. Well, they are colored aren't they." Id. at 117.

During the same training period, Swindell overheard Marion Spencer of QSL and Dick

Holden of L-3 talking about black people and swimming. Spencer opined that black people could

not swim due to body makeup or muscle mass or genetics. See id. at 119. Holden responded that

he thought black people just did not like to swim. See id.

Puring Swindell's second training period (March 23 to April 3, 2015), a military member

discussed with one of Swindell's classmates how to use white lines ina computer program tooutline

a military target (as opposed to red lines, blue lines, or black lines). After explaining this

requirement to use white lines to outline a target, the military member said to the classmate, "White

power. No offense, Swindell." See id. at 121-23.

On April 9,2015, Swindell overheard a conversation between an 18-year old black military

member and a GeoOwl employee in which the white GeoOwl employee asked the black military

member how many people in his family had gone to college. Before the military member could

answer, the GeoOwl employee then said, "I'm not just saying that because you are black kid. Me

and my brother were the first to go to college in my family." See id. at 128-30. According to

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three cases. See Strothers v. City of Laurel. 895 F.3d 317 (4th Cir. 2018); Gusseous v, Fairview

Pron. lnvs.. LLC. 828 F.3d 208,216 (4th Cir. 2016); Etefia v. E. Bait. Comm. Cog... 2 F. Supp. 2d

751 (D. Md. 1998). Swindell argues that the cited cases stand for theproposition that thecumulative

effect of the ten racial comments, plus negative_ performance reviews and statements from Rob

Harrison and Clark Hovland after the meeting on May 31, 2015, that Swindell subjectively perceived

as a threat, create a genuine issue of material fact whether Swindell's work place was racially

abusive or hostile.

Defendants do not dispute that a reasonable juiy could find that Swindell subjectively

Swindell, the military member "brushed" off the question "like it was nothing." Id. at 130.

On May 27,2015, Swindell was assigned to work with Rob Harrison. See id. at 136. The r

day before Swindell's team had worked late. See id. at 130-36. When Rob Harrison sat down in

a chair next to Swindell to work, Swindell asked, "How areyou?" Id. at 136. Harrison responded,

"I'm not doing good because I haveto work with you and I know I'm goingtohave toget out of here

late." ]d. at 136. Afewminutes later, Rob Harrison then"[r]andomly" told Swindell, "Chris, when

I think ofEBT, I think of you." See id. at 136—37. Swindell believed "EBT" was a reference of

Electronic Benefit Transfer. See id.

On May 28,2015, during a shift changeover, a black military member asked the group if

humans have veins intheir stomachs. Rob Harrison replied, "You wouldn't be able to see the veins

in your stomach because you are black." Id. at 138.

On May 28,2015, Rob Harrison and a black military member discussed black people's

ability to swim. See id. at 139. Rob Harrison asked why black people can't swim. 14- The military

member responded that hecould not swim. Id. Rob Harrison then asked Swindell ifhe could swim.

Swindell said, "Yes." ]d. Harrison then looked at the military member and said, "see... he can

swim."

at 140.

On May 28,2015, Rob Harrison told a female Riverside Research contract employee that

"You couldn't take a black man's banana and that you would slip and fall in your va-jay-:iay juice."

See id. at 140. According to Swindell, Rob Harrison and this female employee "always had very

explicit sexual conversations." Id- at 141.

OnMay 30,2015, Swindell and two government employees discussed whether an individual

would feel safer in Southeast D.C., or in Yemen. Swindell opined that he would feel safer in D.C.

even though it has the worst crime rate in the U.S. and Yemen has some of the worst crime in the

world. Id- at 147. One government employee responded to Swindell, "No, you couldn't fit in in

Yemen because you are a bigger black guy and Africans are skinny." Id.

During the week of June 1,2015, Swindell and two government employees discussed the

television show House of Cards. Id- at 148. Swindell stated that, ifhe were on the show, he would

play the role of a politician. A government employee replied "No, I would see you as the black guy

who owns the rib joint" |d. at 193.

*

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perceived his work environment as racially abusive or hostile. AB for the objective prong, even

viewing the evidence in a light most favorable to Swindell, no rational jury could find that

Swindell's work environment was racially abusive or hostile. Only four of the ten comments were

directed at Swindell. Moreover, the comments took place from March 16,2015, to the week of June

1, 2015, during Swindell's nearly five months of employment, and ended (with one exception)

following Swindell's complaint of May 30 and the meeting on May 31, 2015, to address the

inappropriateness of racial comments or a hostile work environment. The ten comments did not

include physical threats directed at Swindell. The ten comments also did not concern a disciplinary

action or termination decision directed at Swindell. No supervisor of Swindell made the comments,

and the comments were unrelated to the negative performance feedback that Swindell received in

March and April 2015 and on May 30--31, July 12, July 21, July 27, and July 28. Cf. Forklift Svs..

Inc.. 510U.S. at23; Parker. 915 F.3dat304; Irani. 767F. App'x at415-17; Foxv. Leland Volunteer

Fire/Rescue Debt.. Inc.. 648 F.App'x 290,293 (4th Cir. 2016) (per curiam) (unpublishedkHartsell.

123 F. 3d at 771-74. Moreover, Swindell's subjective belief that Rob Harrison and Clark Hovland's

comments after the May 31,2015 meeting were a threat does not change the calculus. Cf. Scoggins

v. Lee's Crossing Homeowner's ABs'Jb 718 F.3d 262, 274 (4th Cir. 2013); Williams v. Henderson.

129F.App'x 806, 814(4thCir. 2005) (percuriam) (unpublished); Williamsv. Giant Food Inc,, 370

F.3d 423,433 (4th Cir. 2004). Viewed objectively, Rob Harrison's and Clark Hovland's comments

to Swindell following the May 31, 2015 meeting were not threats. Cf. Irani. 767 F. App'x at

415-17;

791 F.3d at 490-91; Bover-l.iherto. 786 F.3d at 269-71.

"In a perfect world, each workplace would be entirely harmonious and no ... co-worker

would ever make an insensitive comment, irritate a colleague, or engage in a petty slight." Iskander

v. DelYt of Naw. 116 F. Supp. 3d 669, 676-77 (E.D.N.C. 2015). Common experience and

collective wisdom teach, however, that people are not angels. Some people are petty, offensive,

ignorant, and unkind. "Congress and the Supreme Court... have made clear that Title VII does not

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require ... a utopian workplace in order for an employer to avoid liability for a hostile work

environment" Iskander. 116 F. Supp. at 677. The ten comments that Swindell heard from co­

workers from March 16,2015, to the week of June 1,2015, during his employment from March 3,

2015, to July 28,2015, were insensitive, offensive utterances.6 Nonetheless, viewing the entire

record in the light most favorable to Swindell, no rational jury could find the insensitive offensive

utterances sufficiently "severe" or "pervasive" to create a racially hostile work environment under

Title VIL See, e.:&, Breeden. 532 U.S. at270-71: Faraeher. 524 U.S. at 787-88; Irani 767 F. App'x

at 415-17; Leavitt, 629 F.3d at 385-86; Baoir. 434 F.3d at 746-47; Hartsell, 123 F.3d at 771-74;

see also Oncale. 523 U.S. at 81-82; cf. Bover-Liberto. 786 F.3d at 277-81: Walker. 775 F.3d at

207-10; Frerman. 750 F.3d at 420-24; Qkoli. 648 F.3d at 220-22.

The cases upon which Swindell relies aredistinguishable. Specifically, Strothers. Guessous.

and Etifia concerned supervisory employee's actions toward and interactions with the respective

plaintiffs. See Strothers. 895 F.3d at 333-35; Guessous. 828 F.3d at 211-15; EtefiD. 2 F. Supp. 2d

at754-55. Asfor Swindell's argument concerning his classmate "Rob's" statement that anunknown

older white lady he knew used the term "coloreds," Swindell does not argue that the comment was

directed to him. Rather, Swindell overheard "Rob" use the term in a conversation concerning an

older white woman's use ofthe term. See. [D.E. 80-5] 2. In that context, the use ofthe term

^ Swindell asserts in his statement of facts that on an unknown date Rob Harrison stated to

African-American Private First Class Glenn Gamble that he would not make a good "house negro."

See [D.E. 77],r 34. L-3 Program Manager Jim Moore testified that Will Malave reported tohim that

someone had reported to Malave that Rob Harrison used the phrase "house negro" inthe workplace.

See Moore Dep. [D.E. 80-21] 7-8, 11. Malave testified that he received the report from Matt

Nelson. See Malave Dep. [D.E. 80-17] 22. After Malave received the report, Malave counseled

Rob Harrison that he had received the report and that such language would not be tolerated. See

Moore Dep. [D.E. 80-21 ] 7-8. Swindell testified that he never heard anyone use the term "house

negro" or the racial epithet "n ****** . See Swindell Dep. [D.E. 80-26] 57; see also Ulloa Dep. [D.E.

80-23] 31. Swindell did not leam of Rob Harrison's use of the term "house negro" until after his

employment ended. Thus, this alleged offensive comment of Rob Harrison was not part of

Swindell's work environment.

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does not establish a racially hostile work environment. See Savage v. Maryland. 896 F.3d 260,

276-77 (4th Cir. 2018). Accordingly, the court grants summary, judgment to L-3 and QSL

concerning Swindell's hostile work environment claim.

Alternatively, even ifthe conduct was sufficiently severe or pervasive, no rational jury could

find L-3 liable under Title Vll. See, e.g.. Bazemore. 9S1 F.3d at 201—03. On May 31,201S, L-3

Team Lead Malave notified Government Team ChiefMatt Craig about Swindell's complaint ofMay

30,201S. On May 31,201S, Craig then held a meeting with all personnel and stated that making

racial comments or creating a hostile work environment was against policy and would not be

tolerated. After the government personnel left, Malave held a Red Team meeting, and reiterated

L-3's prohibition on racial comments and stated that L-3 would not tolerate such comments or a

hostile work environment. Malave also counseled Rob Harrison. The only racial comment Swindell

records following the May 31,201S meeting is the House of Cards conversation that Swindell had

with a government employee. Swindell does not identify anyevidence showing that L-3 knew about

that conversation, that he reported the conversation, or that L-3 should have known about it. See

Swindell Dep. [D.E. 80-26] 3S. Moreover, an L-3 employee did not participate in the House of

Cards conversation. Thus, even viewing the record in the light most favorable to Swindell, L-3's

remedial actions were effective. See, e.g.. Bazemore. 9SJ F.3d at 201—03; Burton, 798 F.3d at 228;

Xerxes Com.. 639 F.3d at 670; Velasquez. 2018 WL 1773128, at *3: Crump. 2016 WL 901262, at

*1-2; Williams. 988 F. Supp. at 937-38. Accordingly, the court grants L-3 summary judgment

concerning Swindell's hostile work environment claim.

In opposition, Swindell argues that L-3 had actual knowledge of racial harassment of

Swindell and is jointly responsible with QSL for it. See [D.E. 86-1] 24-2S. In support, Swindell

cites Sunbelt Rentals Inc., and argues that L-3 failed to take sufficient corrective action after his

complaint on May 30, 201S, and was willfully blind to Swindell's complaint See [D.E. 86-1] 26,

29-30.

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Even viewing the record in the light most favorable to Swindell, no rational jury could find

that L-3 had actual knowledge of the alleged comments that offended Swindell and failed to take

corrective action. On the contrary, Swindell spoke with L-3 Team Lead Malave during the evening

of May 30, 2015, about comments that offended him. Malave immediately notified Government

Team Chief Matt Craig ofSwindell's complaint on May 31,2015. On the same date, May 31,2015,

Malave counseled Rob Harrison about inappropriate comments in the workplace. After that

counseling session, and on the same date, Malave and Craig held a Red Team meeti.J?.g concerning

racial comments and the work environment and stated that such comments or a hostile work

environment would not be tolerated. Malave then discussed the comments again with contractor

personnel immediately following the meeting and again stated that racial comments were not

acceptable. After the meeting on May 31, 2015, Swindell did not hear any racially offensive

comments by L-3 or QSL personnel. See Swindell Dep. [D.E. 80-26] 35, 45-46. Moreover, as

discussed, no rational jury could find that L-3 knew, should have known, or intentionally failed to

know about that government employee's comment during Swindell's House of Cards conversation.

Accordingly, the court rejects Swindell's arguments concerning willful blindness.

As for Sunbelt Rentals. Inc., the plaintiff in that case made "frequent complaints" to his

supervisor and filed a complaint with defendant company's HR department that referenced his

complaints. Yet the supervisor "allowed the harassment to continue" without sanctioning or

reprimanding the offender. Sunbelt Rentals. Inc.. 521 F.3d at 319-20. Not so here. Swindell

complained to L-3 on May 30,2015, and L-3 immediately and effectively addressed the racial

comments about which Swindell complained. Sec. Bazemore. 957 F.3d at 201—03.

As for QSL, even viewing theevidence ina light most favorable to Swindell, no rational jury

could find that QSL is liable under Title VII concerning the ten comments about which Swindell

complains. Although a harassment policy and complaint procedure do notabsolve QSL of liability,

the court considers both when determining whether the company "exercised reasonable care to

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 26 of 39

prevent discrimination." Xerxes Con... 639 F.3d at 669. QSL's policy handbook prohibits

harassment based on race. See [D.E. 70-1] 230-33. QSL's policy handbook also describes the

process for reporting harassment. See id. The employee must first contact QSL's human resources

department at a telephone number provided in the policy book. ]d. QSL promises to "investigate

the report and then take prompt, appropriate remedial action." Id. Additionally, QSL's policy

"protect[s] the confidentiality of employees reporting suspected violations to the extent possible

consistent with our investigation." Id.

Swindell did not report any of the ten comments he identifies to QSL's Human Resources

representative, and does notdispute that heknew ofand signed thepolicy. £ee Swindell Dep. [D.E.

70-1] 157-59; [D.E. 70-l]230-33. The policy was adequate. See Howard v. Winter. 446 F.3d 559.

567-69 (4th Cir. 2006); Matvia v. Bald Head Island Mgmt.. Inc.. 259 F.3d 261,26&—69 (4th Cir.

2001); Barrett vApplied Radiant Energy Con... 240 F.3d 262,266-67 (4th Cir. 2001); cf. Ocheltree.

335 F.3d at 334. Moreover, QSL exercised reasonable care to correct promptly the comments after

Swindell's complaint to QSL on July 12,2015. Swindell concedes that thefirst date he reported the

alleged harassment to QSL was on July 12, 2015, when he spoke to QSL Director of Operations

Jason Sawyer. See Swindell Dep. [D.E. 80-26] 43, 65. Sawyer told Swindell that QSL would

address the concerns and gave Swindell two days off. Sawyer then immediately spoke with his

superiors at QSL and Jim Moore at L-3 concerning Swindell's reports of alleged retaliation for bis

complaints about racial comments. Sawyer also counseled Rob Harrison about inappropriate

comments inthe work place. Moore also promptly counseled Rob Harrison abouthis unprofessional

comments. QSL also issued a directive for all QSL employees to take follow-up EO training onthe

QSL anti-harassment policy and to immediately report EO issues. Sawyer and QSL Human

i

Resources Representative Pixley also set up a call with Swindell for July 23, 2015, to discuss

Swindell’s concerns. On July 22, 2015, Swindell canceled the scheduled call. Swindell does not

identify any comment after July 12, 2015, that he considered racially hostile. See Swindell Dep.

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[D.E. 80-26] 35,46. On this record, QSL took effective remedial action. See, e.g.. Bazemore. 957

F.3d at 201—03; Prvor. 791 F.3d at 498; Xerxes Coro.. 639 F.3d at 669.

In opposition, Swindell argues that QSL had actual knowledge of "the nature of the

harassment" and was willfully blind to it. In support, Swindell asserts that L-3 Team Lead Malave

told L-3 Program Manager Moore about Rob Harrison's alleged "house negro" comment to Private

First Class Glenn Gamble. Second, Swindell notes that Moore testified "anything ofthat nature [i.e.,

racially hostile comments] would include QSL as part of the discussion." [D.E. 86-1] 26.

Additionally, Swindell asserts that QSL did not act with reasonable care inensuring that QSL's anti.harassment policy was effective because QSL did not fire Rob Harrison, enforce a discipline plan

against him, orconduct sufficient equal opportunity ("EO") training. Seeid. at 26-27. Swindell also

argues that Rob Harrison was his supervisor under Title VII. See id. at 29-30.

The court rejects Swindell's arguments. As for Rob.Harrison, there is no g uine issue of

material fact concerning whether Rob Harrison was Swindell's supervisor. Swindell testified that

Rob Harrison was not his supervisor, gee Swindell Dep. [D.E. 80-26] 19,62—63; see also Sawyer

Dep. [D.E. 80-19] 8-9. Rather, Swindell testified that Will Malave and then Steve Loori was his

supervisor. See Swindell Dep. [D.E. 70-1] 110, 158. As for QSL and Swindell, the relevant

questions are when did Swindell report offensive comments to QSL, what did QSL do in response,

anddid QSL's response effectively endthealleged harassment of Swindell. Evenviewing the record

in the light most favorable to Swindell, QSL tookeffective action following theconversation of July

12, 2015, between Swindell and Sawyer. That conversation was the first conversation in which

Swindell complained to QSL about an alleged racially hostile work environment. QSL (through

Sawyer) promptly counseled Rob Harrison as did L-3 (through Moore). QSL also set up a meeting

with Swindell on July 23,2015, to address his concerns. Swindell, however, cancelled the meeting

with Sawyer and QSL Human Resources scheduled for July 23, 2015. QSL also issued a directive

for equal-opportunity training on QSL's non-harassment policy and to immediately report equal

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opportunity issues. Moreover, Swindell admits that he did not hear any racially hostile comments

following his conversation with Sawyer on July 12, 2015. At bottom, Swindell's arguments boil

down to what hethinks would have been anappropriate response of QSL to comments that Swindell

never reported to QSL until July 12, 2015. But that is not the test. See Barr 240 F.3d at 268

("Little can be done to correct... objectionable behavior unless the victim first blows the whistle

on it."). On this record, no rational jury could find that QSL's actions were not effective in

correcting the racially offensive comments about which Swindell complained. See Bazemore. 957

F.3d at 201-03;

791 F.3d at 498; Xerxes Corn.. 639 F.3d at 669. Accordingly, the court

grants summary judgment to QSL concerning Swindell's hostile work environment claim.7

Alternatively, QSL is entitled to nmmarv judgment concerning Swindell's hostile work

, environment claim under the Faragher-Ellerth defense. Although QSL did not assert the FaragherEllerth defense in its answer to Swindell's amended complaint, both parties address the defense in

swnmaryjudgmentbriefing. See [D.E. 69] 19-22; [D.E. 86-1] 29-30. Additionally, Swindell does

not assert that he was surprised or prejudiced by QSL's assertion of the defense. Cf.. * Patten

Grading & Paving v. Skanska 1 ISA Bwlding.. Inc.. 380 F.3d 200,205 n.3 (4th Cir. 2004) ("[I]t is

well established that an affirmative defense is not waived absent unfair surprise or prejudice).

Accordingly, the court addresses QSL's Faragher-Ellerth defense. See Adams v. Austal. U.S.A..

L.L.C.. 754 F.3d 1240, 1258-59 (11th Cir. 20141: Robinson v. Sanningtog.. 351 F.3d 317, 332-33

(7th Cir. 2003).

7 Assuming without deciding that QSL had notice of Swindell's complaints on May 30,

2015, QSL also had notice oftheremedial action ofthe government and L-3 on May 31,2015. After

L-3's remedial action, theonlyindividual to make a racial comment to Swindell was theunidentified

government employee who made a comment to Swindell during their House of Cards conversation

during the week of June 1, 2015. Swindell did not report that comment to QSL, and QSL had no

way to know about that comment. On this record, no rational jury could find that QSL's response

on May 31,2015, was ineffective. See Bazemore. 957 F.3d at 201-03; Burto;g„ 798 F.3d at 228;

Velasquez. 2018 WL 1773128, at *3: Crump. 2016 WL 901262, at *1-2; Williams. 988 F. Supp.

at 937-38.

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Under Faragher-Ellerth. an employer can assert an affirmative defense for unlawful co­

worker harassment. See Faraeher. 524 U.S. at 807—08. Likewise, if a supervisor subjects a

subordinate employee to unlawful harassment, but the supervisor's unlawful harassment does not

culminate in tangible employment action, then the employer may also present the affirmative

defense. SeeFBTaghet. 524 U.S. at 807-08; Ellerth. 524 U.S. at 762-63,765; Barrett. 240 F.3d at

265-66; Brown v. Penv, 184 F.3d 388, 394-97 (4th Cir. 1999); Lissau v. S. Food Serv.. Inc.. 159

F.3d 177, 182 (4th Cir. 1998) ("Tangible employment actions, if not taken for discriminatory

reasons, do not vitiate the affirmative defense. If [plaintiffs] termination did not result from a

refusal to submit to [her supervisor's] unlawful harassment, then [the employer] may advance [the

affirmative] defense."). The Fameher-Ellerthaffirmative defense requires the employer to prove:

(1) "that the employer exercised reasonable care toprevent and tocorrect promptly any... harassing

behavior," and (2) "that the plaintiff employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

Faraeher. 524 U.S. at 807; Ellerth, 524 U.S. at 765; Barrett. 240 F.3d at 265-66; Lissau. 159 F.3d

at 182; Swann v. Source One Staffing Solutions. 778 F. Supp. 2d 611,618-22 (E.D.N.C. 2011).

As discussed, QSL took reasonable care to promptly address the comments about which

Swindell complained, and Swindell acted unreasonably when hefailed to follow the procedures for

complaints in the QSL employee handbook. Thus, even viewing the evidence in the light most

favorable to Swindell, QSL has proven the Faragher-Ellerth affirmative defense.

In opposition, Swindell makes two arguments. First, Swindell argues that the FaragherEllerth defense is not available to QSL because Rob Harrison was Swindell's supervisor, and Rob

Harrison's harassment led to the termination of Swindell's employment. See [D.E. 86-1] 29-30.

Second, Swindell argues that QSL's policy was unreasonable because it provided only a phone

number for human resources. See id.

The court rejects Swindell's arguments. As discussed, Swindell testified that Rob Harrison

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 30 of 39

was not his supervisor. Rather, Will Malave was his supervisor as the Red Team Lead and then

Steve Loori was. In any event, even viewing the evidence in a light most favorable to Swindell, no

rational jury could find a causal connection between Rob Harrison's offensive racial comments in

May 2015 and the termination of Swindell's employment on July 28,2015. Thus, QSL can assert

the affirmative defense. See Faraeher. 524 U.S. at 807--08; Ell 524 U.S. at 762—63; Barr 240

F.3d at 265-66; T.issau. 159 F.3d at 182; Swann. 778 F. Supp. 2d at 618-22.

As for QSL's policy, Swindell signed the policy, and the court already has detailed why the

policy was adequate, how Swindell unreasonably failed to notify QSL of his concerns until July 12,

2015, and how QSL exercised reasonable care to promptly correct the alleged harassing behavior

once Swindell notified QSL. Thus, the court grants nmmarv judgment to QSL concerning

Swindell's hostile work environment claim.

B.

Swindell alleges that L-3 and QSL terminated his employment in retaliation for complaining

about a racially hostile work environment and thereby violated Title VII. See Am. Compl. [D.E. 13]

fl 43-48. Title VII prohibits an employer from taking adverse employment action against an

employee"becauseofsuchindividual'srace." 42U.S.C. §2000e-2(a)(l).8 Aplaintiffinayestablish

a Title VII or section 1981 violation in two ways. First, a plaintiff can show through direct evidence

that retaliation or racial discrimination motivated an employer's adverse employment action. See,

Diamond v. Colonial Life & Accident Ins: Co.. 416 F.3d 310, 318 (4th Cir. 2005). If a plaintiff

lacks direct evidence (as in this case), a plaintiff can alternatively proceed under the burden-shifting

framework in McDonnell Douglas Cor.p. v. Gr

411 U.S. 792, 802-03 (1973). See Hill v.

I ockheed Martin I opistics Mgmt.. Inc.. 354 F.3d 277,284-85 (4th Cir. 2004) (en bane), abrogated

in nart on other grounds Univ. of Tex. Sw. Med. Ctr. v. Nassar. 570 U.S. 338 (2013).

8 The court assumes without deciding that both QSL and L-3 are Swindell’s "employers"

for Title VII purposes.

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Case 5:17-CV-00617-D Document 96 Filed 09/30/20 Page 31 of 39

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

establish a primafacie case of employment discriminationor retaliation; (2) the burden ofproduction

thenshifts totheemployer toarticulate anon-discriminatory omon-retaliatory reason for theadverse

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. 828 F.3d at 216. The McDonnell Douglas framework

applies to claims under Title VII and section 1981. See. . Giant Food Inc.. 370 F.3d at 430;

Beall v. Abbott Tabs. 130 F.3d 614, 619 (4th Cir. 1997). abrogated in part on other grounds by

Gilliam 474 F.3d at 140.

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

produce evidence that the adverse employment action was "for a legitimate, nondiscriminatory

reason." Tex. De n't of Gmtv. 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 employer 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. Rnmsfelg- 328 F.3d 145,150-54 (4th Cir. 2003). A plaintiff can do so by showing that the

defendant employer's "explanation is unworthy of credence or by offering other forms of

circumstantial evidence sufficiently probative offillegal] 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. Pe psiCo. Inc.. 203 F.3d

274.279-80 (4th Cir. 2000). Rather, the court focuses on whether the plaintiff has raised a genuine

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 32 of 39

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 onthe basis of [race]." Laber v. Harvev. 438

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

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

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

To establish a prima facie case of retaliation, Swindell 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 tooktheadverse action because ofthe

protected activity. See DeMasters v. Carillon Clinic. 796 F.3d 409,416 (4th Cir. 2015); BoverLiberto. 786 F.3d at 281: Balas v. Huntinstnn Ingalls Indus.. Inc.. 711 F.3d 401,410 (4th Cir. 2013);

see also White. 548 U.S. at 67-70. "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 (citation and quotation omitted!: see Huckelba v. Peering. 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 plaintiffs protected activity and the alleged retaliation do not state a plausible Title VII

claim." Huckelb 2016 WL 6082032 at *3. Furthermore, the employee must demonstrate temporal

proximity between the alleged retaliation and the protected activity. &ee Breedm, 532 U.S. at

273-74:Hooven-Lewisv.Cald

249F.3d259.27Rf4thCir.200n:Huckelba.2016WL6082032.

at *4.

The court assumes without deciding that Swindell has alleged a prima facie case of

retaliation. In turn, QSL's and L-3's reason for terminating Swindell's employment - poor

performance -is legitimate and non-discriminatory. See, e.e.. Vannov v. Fed, Reserve Bank of

Richmond. 827 F.3d 296, 304-05 (4th Cir. 2016). Accordingly, the burden shifts to Swindell to

demonstrate that there is a genuine issue of material fact about pretext.

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Swindell makes three arguments concerning pretext. First, Swindell argues that the

.testimony in support ofdefendants' proffered explanation for Swindell's termination is not credible.

Specifically, Swindell argues that Contracting Officer Representative Sargent's testimony lacks

credibility because his emails demonstrate that L-3_ made the decision to terminate Swindell's

employment Sargent also sent an email the day after Swindell's termination that mentioned

Swindell was on a "witch hunt" and may "make a claim against someone." gee [D.E. 70-1] 221

(Sargent email of July 29,2015). Swindell suggests that Sargent's email demonstrates that L-3 and

the government were orchestrating Swindell's firing. Additionally, Swindell claims that Joel

Harrison (the senior civilian deputy commander) testified that he did not recall hearing about

Swindell's May 30 racial complaints, but Government Team Chief Craig emailed Joel Harrison and

others on May 31,2015, todiscuss Swindell's racial complaints to Malave and Craig. See [D.E. 861] 31-34; cf. Jacobs v. North CarolinaAdmin. Off, of the Courts. 780 F.3d 562, 574-75 (4th Cir.

2015). Second, Swindell argues that the time- line concerning the termination of Swindell’s

employment "leads to a reasonable inference of pretext." [D.E. 86-1] 34. Third, Swindell argues

that comparator evidence demonstrates pretext. Specifically, Swindell argues that it was "very rare"

that L-3 would :fire someone for poor performance, and that Loori recalled five to ten other analysts

disciplined for performance issues, with Swindell being the only one fired. See id. at 36—38.

As for Swindell's third argument, Swindell does not have comparator evidence. Swindell

fails to identify a similarly situated Dagger II employee who "dealt with the same supervisor [and

was] subject to the same standards and engaged in the same conduct without such differentiatingor

mitigating circumstances that would distinguish their conduct or the employer's treatment of them

for it." Havnes v. Waste Connections. Inc.. 922 F.3d 219, 223-24 (4th Cir. 2019) (alterations and

quotation omitted). Rather, he relies on Loori's testimony concerning five to teD unnamed and

otherwise unknown Dagger II analysts, and Loori’s testimony concerning Lionel Brown. See Loori

Dep. [D.E. 80-18] 12-13. Loori's testimony concerning Lionel Brown establishes only that Brown

34

Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 34 of 39

was an analyst who was removed from employment at the government's request for poor

performance. See id. Tellingly, Swindell does not rely on the testimony concerning Brown to

oppose QSL's and L-3's summary judgment motions. Rightly so. Brown was not treated more

favorably. As for thefiveto ten unidentified employees disciplined for poor performance, Swindell

did not identify the circumstances concerning these employees sufficiently to have them serve as

comparators. Comnarel.ooriDen. [D.E. 80-18] 12withBversDep. [D.E. 80-20] 6,29(discussing

numerous L-3 employees removed from the contract at the government's request). Accordingly,

Swindell's third argument does not support falsity or pretext. See Havnes. 922 F.3d at 224; Laing

v. Fed. Express Coro.. 703 F.3d 713, 721 (4th Cir. 2013).

As for Swindell's first argument, Swindell's allegations concerning "orchestration" are

speculative. Essentially, Swindell invites the court to read the term "witch hunt" in Contracting

Officer RepresentativeSargent's email ofJuly 29, 2015, as indicating a conspiracy between L-3 and

i thegovemment tofire Swindell inretaliation for Swindell's complaints about racial comments. The

court declines that invitation. Even viewing the record in a light most favorable to Swindell, no

evidence supports Swindell's reading of Contracting Officer Representative Sargent's email. Asfor

Joel Harrison's testimony about the events leading to the government's request of July 28,2015, to

remove Swindell from Dagger II, Swindell does not connect the inconsistency of Joel Harrison's

memory about Matt Craig's email of May 31, 2015, with Joel Harrison's recommendation of July

28, 2015. Furthermore, Joel Harrison's testimony that he did not recall Craig's email of May 31,

2015, which discussed Swindell's race-related complaints of May 30, 2015, is unrelated to the

termination of Swindell's employment on July 28, 2015, for poor performance. Swindell had

performance problems dating back to his initial training. The problems continued in July, after

nearly five months of employment. Swindell cannot seek to expose a poor performance rationale

as pretextual "by focusing on minor discrepancies that do not cast doubt on the explanations'

validity, or by raising points that are wholly irrelevant to it." Hux v. Cicv ofNe:wport News. 451

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 35 of 39

F.3d 311,315 (4th Cir. 2006). "The form.er would not create a 'genuine' dispute." Id- (quoting

Matsushita Elec. Indus. Co.. 475 U.S. at 586-87). The "latter would fail to be 'material.'" Id.

(quoting Anderso 477 U.S. at 248). "[MJere mistakes of fact are not evidence of unlawful

discrimination." Price v. Thomnso 380 F.3d 209, 214 n.l (4th Cir. 2004), abrogated on other

grounds hvFosterv. IJniv. ofMd.-E. Shore. 787 F.3d 243 (4th Cir. 2015). After all, a "[pjretextis

a lie, not merely a mistake." Id. Accordingly, even if Joel Harrison mistakenly failed to recall

Craig's email of May 31, 2015, that alleged mistake is insufficient to raise a genuine issue of

material fact about pretext in this case. See Hux. 451 F.3d at 315; see also Freeman v. N, State

Bank. 282 F. App'x 211, 216-17 (4th Cir. 2008) (per curiam) (unpublished); Baldwin v. England.

137 F. App'x 561,564 (4th Cir. 2005) (per curiam) (unpublished).

Inopposition, Swindell cited Jacobs. The alleged inconsistency Swindell identifies, however,

is distinguishable from the inconsistencies in Jacobs. In Jacobs, the relevant testimony was from

plaintiffs supervisor who both hired and fired plaintiff. The Fourth Circuit observed that while the

supervisor claimed her reason for firing plaintiff was plaintiffs sleeping on the job, the supervisor

did not mention that reason when terminating plaintiffs employment. Jacobs. 780 F.3d at 576-77.

Rather, the supervisor only provided that reason in connection with the litigation. Furthermore, in

providing that new reason, the supervisor testified about a conversation with plaintiff during the

termination meeting that was "entirely absent from the UDaltered audio recording of the meeting."

14- at 576.

Jacobs is distinguishable. Joel Harrison's email of July 28, 2015, concerns Swindell's

deficient performance. Moreover, at his deposition, Joel Harrison discussed at length the

information he received about Swindell's performance deficiencies during Swindell's five months

of employment. Harrison received that information from Matt Craig, other government personnel,

and contractor personnel. Unlike in Jacobs, the only reason that Joel Harrison has ever given for his

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 36 of 39

recommendation to remove Swindell from Dagger II was his honest belief about Swindell's poor

performance. Accordingly, the court rejects Swindell's first argument.

Swindell's final argument concerns temporal proximity between his protected activity and

his termination. Although generally courts consider temporal proximity in the context of plaintiff s

primafacie case, see, e

Hemw. Vaughn Indus.. Inc.. 45Q F. Supp. 3d 671,684 (E.D.N.C. 2020),

the court may consider temporal proximity concerning pretext. See Reeves. 530 U.S. at 143; Ramos

vCarolina Motor Club. Inc.. No. 3:17-cv-00212-RJC-DSC,2018 WL 3040028, at *8-*9 (W.D.N.C.

June 19,2018) (unpublished): E.E.O.C. v. Safelite Glass Corn.. No. 4:10-CV-102-F, 2012 WL

3266333, at *8 (E.D.N.C. Aug. 9, 2012) (unpublished). As discussed, on the evening of May 30,

2015, Swindell notified Malave the L-3 Team Lead of racial comments overheard and directed at

Swindell. On May 31,2015, L-3 took immediate, effective remedial action. Likewise, as discussed,

on July 12, 2015, after the government directed Swindell' removal from assignment for poor

performance, Swindell told Loori (the new L-3 Team Lead) and Ulloa that he was "targeted" for his

complaints about racial comments. On the same date, Loori called Sawyer (QSL's Director of

Operations) and told him about Swindell's belief that he was targeted dueto complaints about racial

comments. Sawyer, in turn, spoke with Swindell and attempted to address Swindell's concerns by

giving him two days off, setting up a call to discuss the matter with Swindell and QSL Human

Resources on July 23,2015, and notifying QSL senior management and L-3 Program manager Jim

Moore ofSwindell's concerns. Afterspeaking with Sawyer and QSLHumanResources, Sawyer and

Moore promptly and independently counseled Rob Harrison about his unprofessional comments.

Additionally, QSL issued a directive for equal employment training on the company's non­

harassment policy and that any alleged harassment should be reported immediately. Sawyer and

QSL Human Resources also scheduled a July 23, 2015 call with Swindell to discuss his concerns.

On July 22, 2015, Swindell canceled the meeting with Sawyer and QSL's Human Resources

Representative.

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As for pretext, the evidence demonstrates that Swindell's performance issues began during

his training beginning on March 9,2015, and persisted throughout his five-month employment until

his termination on July 28, 2015. As discussed, Swindell was recycled through FMV training for

Dagger II because he did not meet the expectations of the training staff. Moreover, throughout his

tenure on Dagger II, Swindell was assigned a trainer which meant that he was not performing to

standard. On July 12,2015, after removing Swindell from a live mission due to poor performance,

Loori and Ulloa prepared a PIP for Swindell and discussed it with him. See Loori Dep. [D.E. 80-18]

15-16; Ulloa Dep. [D.E. 63-2] 178-79. On July 21, 27, and 28, 2015, Shaw observed Swindell's

performance and noted various performance deficiencies including, inter alia, off-target calls, poor

attention to detail, and submitting an "overview" product with several issues. See Schagne Dep.

[D.E. 63-2] 84-86,90-92,96-98; Schagne Dep. Ex. [D.E. 64] 2-3.

Swindell obviously disagrees with the government's recommendation to remove him from

Dagger II for poor performance, L-3's belief that his performance was poor, and QSL's inability to

place him in another position with QSL. However, the "ultimate responsibility" for the decision to

remove Swindell from Dagger II and end his employment lies with L-3 and QSL. Mereisb. 359 F.3d

at 339. Moreover, Swindell's opinion of his own performance is not relevant. It is the perception

of the decisionmaker that counts. See Kmg, 328 F.3d at 149; Hawkins. 203 F.3d at 280; Smithy.

FI

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

The "crucial issue" is whether "an unlawfulD

discriminat[ing]motive fora defendant's conduct [exits], notthewisdom orfolly of[the employer's]

business judgment." Jiminez v. Marv Washington Coll.. 57 F.3d 369,383 (4th Cir. 1995). "Dutybound 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. 451 F.3d

at 315. Even viewing the evidence ina light most favorable to Swindell, no rational jury could find

thatthestated reason for terminating Swindell's employment waspretextual. Accordingly, thecourt

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 38 of 39

grants each defendant's motion for summary judgment concerning Swindell's Title VII retaliation

claim.9

C.

Swindell alleges a section 1981 claim against QSL and L-3. Specifically, Swindell alleges

that QSL and L-3 discriminated against Swindell "on the basis of his race in violation of 42 U.S.C.

§ 1981... by retaliating against his with poor performance reviews when he complained of racial

9 Swindell makes another argument concerning QSL's and L-3's liability. Swindell asserts

that under Fourth Circuit precedent, L-3 and QSIflTe liable for the government's employee's

alleged illegal motive in tenninating Swindell's employment See [D.E. 86-1] 14—17. In support,

Swindell intertwines two strands of Fourth Circuit precedent First, Swindell asserts that an

employer cannot avoid Title VII liability by wil lful ignorance, and that an employer can be liable for

a third party's actions ina Title VII hostile work environment claim. See Freeman. 750 F.3d at 423.

Second, Swindell asserts that anemployer cannot avoid Title VII liability because itscustomer wants

to fire an employee in retaliation for the employee's complaints of race discrimination. See [D.E.

86-1] 16-17 (collecting cases). From these two lines of cases, Swindell argues that L-3 and QSL

are liable under Title VII because they were wi 11 fully blind to their third-party customer's (i.e., the

government) racial or retaliatory motive in terminating Swindell's employment See [D.E. 86-1]

14-17.

Even viewing the evidence ina light most favorable to Swindell, no rational jury could find

that the government acted with discriminatory animus or retaliatory animus when it recommended

terminating Swindell's employment on Dagger Ilfor poor performance on July 28,2015. Under the

customer-animus line of cases, an employer is liable for its customer's animus only as that animus

concerned the employer's decision to terminate plaintiffs employment. See Chanev v. Plainfield

Healthcare Ctr.. 612 F.3d 908, 912-13 (7th Cir. 2010); Ferrill v. Parker Om„ Inc.. 168 F.3d 468,

473-75(11th Cir. 1999V Williams v. G4S Secure Solutions tlJSAL Inc.. 2012 WL 1698282, at *22

(D. Md. May 11, 2012) (unpublished); Hvlind v. Xerox Con... 380 F. Supp. 2d 705, 713 (D. Md.

2005). Joel Harrison and Walter Sargent were the two government employees who recommended

on July 28, 2015, terminating Swindell's employment on Dagger II for poor performance. The

recommendation said nothing about Swindell's continued employment with QSL or L-3. Rather,

given the mission critical nature of the Dagger II contract and Swindell's continued poor

performance on a contract where lives were at stake, the government simply wanted Swindell

removed from Dagger II. The record belies Swindell's assertion that Joel Harrison and Walter

Sargent really did not have performance concerns when they made the recommendation or that Joel

Harrison and Walter Sargent acted with discriminatoryor retaliatory animus, Holland. 487 F.3d

at 217 (plaintiff failed to show that the decisionmaker did not honestly believe that the plaintiff

engaged in misconduct warranting discipline); Hill. 354 F.3d at 293 (plaintiff failed to show that the

decisionmaker did not honestly believe that the plaintiffs misconduct warranted discipline).

Accordingly, the court rejects Swindell's customer-animus argument.

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 39 of 39

harassment, and by ultimately tenninatine his employment." Am. Comp!. [D.E. 13J151. As with

his Title VII retaliation claim, Swindell does not have direct evidence of race discrimination or

retaliation. Accordingly, Swindell proceeds under the McDonnell Douglas framework.

The parties agree that Swindell's section 1981 claim "has the same elements as a Title VII

retaliationclaim." Bover-Liberto. 786F.3dat281; gee [D.E. 62] 24-25; [D.E. 69] 31-32; [D.E. 861] 38-39. Thus, Swindell's section 1981 claim fails for the same reasons as his Title VII retaliation

claim. Accordingly, thecourt grants QSL's and L-3's motions for summary judgment on Swindell's

section 1981 claim. 1°

D.

Swindell alleges a wrongful discharge in violation of public policy claim under North

Carolina law against QSL and L-3. The court assumes without deciding that QSL and L-3 are

"employers" for purposes of this analysis. Under North Carolina law, an employer generally may

terminate an at-will employee for any reason. Gamer v. Rentenbach Constructors Inc.. 350 N.C.

567, 568-72, 515 S.E.2d438, 439-41 (1999). North Carolina recognizes anarrowexceptiontothat

general rule if an employee's termination violates North Carolina public policy. See. Whitt v.

Harris Teeter. Inc.. 359 N.C. 625,625,614 S.E.2d 531,532 (2005) (per curiam) (adopting dissenting

opinion at 165 N.C. App. 32,43-50, 598 S.E.2d 151,159-63 (2004) (McCullough, J., dissenting));

Gamer. 350N.C. at 568-72, 515 S.E.2d at439-41: Amos v. Oakdale Knitting Co.. 331 N.C. 348,

350-54, 416 S.E.2d 166, 167-70 (1992); Coman v. Thomas Mfg. Co., 325 N.C. 172,176-78, 381

S.E.2d 445,447-49 (1989). To prove a claim of wrongful discharge in violation ofNorth Carolina

public policy, a plaintiff must identify and rely upon a specific North Carolina statute or North

Carolina constitutional provision stating North Carolina's public policy; See Gamer. 350 N.C. at

568-72, 515 S F..?dat439-41 :Amos.331 N.C. at350-54,416 S.E.2dat 167-70; Coman. 325N.C.

10 Inlight ofthis conclusion, thecourt declines toaddress L-3's argument concerning its lack

of a contractual relationship with Swindell.

40

Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 40 of 39

at 176,381 S.E.2d at 447: Home v. Cumberland Ctv. Hosp. Svs.. Inc.. 228 N.C. App. 142,146,746

S.E.2d 13,17-19(20131: Gillis v. Montgomecv: Ctv. Sheriffs De.P't. 191 N.C. App. 377,379-81,

663 S.E.2d 447,449-50 (2008); Whiting v. Wolfson Casing Coro.. 173 N.C. App. 218,222,618

S.E.2d 750,753 (2005); Considinev. Compass Grp. USAJnc.. 145N.C.App. 314,321,551 S.E.2d

179,184,^12^354 N.C. 568,557 S.E.2d 528 (2001) (per curiam).

Swindell relies on N.C. Gen. Stat. § 143-422.2 as the source of North Carolina's public

policy.11 Swindell contends that defendants terminated his employment inretaliation of complaints

about race discriminationand due to his race.

Section 143-422.2 does not create a private right of action for retaliation or provide a source

of public policy concerning retaliation. See. e.g.» Whi 359 N.C. at 625, 614 S.E.2d at 532;

McLean v. Patten Cmtvs.. Inc.. 332 F.3d 714, 719 (4th Cir. 2003); Swann. 778 F. Supp. 2d at

622-23:Halew. Wa1-MartStoresE.-L.P..No.5:07-CV-219-D.2008WL5069073,at*4(E.D,N,C.

Nov. 17,2008) (unpublished); Bratcher v. Pharm. Prod. Dev.. Inc.. 545 F. Supp. 2d 533, 544

(E.D.N.C. 2008); Efird v. Rilev. 342 F. Supp. 2d 413,428 (M.D.N.C. 2004); Stout v. Kimberly

Clark Com.. 201 F. Supp. 2d 593,607 (M.D.N.C. 2002); Bradley v. CMI Indus.. Inc.. 17 F. Supp.

2d 491,499 (W.D.N.C. 1998). Accordingly, the court grants summary judgment to defendants to

11 N.C. Gen. Stat§ 143-422.2 states:

(a) It is the public policy of this State to protect and safeguard the right and

opportunity of all persons to seek, obtain and hold employment without

discrimination or abridgement on account of race, religion, color, national origin,

age, sex or handicap by employers which regularly employ 15 or more employees.

(b) It is recognized that the practice of denying employment opportunity and

discriminating in the terms of employment foments domestic strife and unrest,

deprives the State of the fullest utilization of its capacities for advancement and

development, and substantially and adversely affects the interests of employees,

employers, and the public in general.

N.C. Gen. Stat § 143-422.2.

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 41 of 39

the extent Swindell asserts a retaliation claim under North Carolina law.

As for Swindell's wrongful discharge claim based on race, it fails for the same reason that

his Title VII and section 1981 claims fail. See Henson v. Liggett G:m.. Inc.. 61 F.3d 270,277 (4th

Cir. 199SV Coleman v. Altec. Inc.. No. S:16-CV-9S4-D. 2018 WL4289610. at *7 (E.D.N.C. Sept.

7,2018) (unnuhlished!: Ricketts v. Logics. LLC. No. S:lS-CV-293-D, 2017 WL 4293406, at *8

(E.D.N.C. Sept 27,2017) (unpublished); Wood v. Town of Warsaw. 914 F. Supp. 2d 73S, 744

(E.D.N.C. 20121: McDoueal-Wilson v. Goodyear Tire & Rubber Co.. 427 F. Supp 2d S9S, 621

fF. D N-C- 2006V North Carolina Den't of Corr. v. Gibson. 308 N.C. 131,_ 141,301 S.E.2d78, 8S

(1983). No rational juiy could find that Swindell was terminated from his employment because of

his race.12 Accordingly, the court grants QSL's and L-3's motions for summary judgment on

Swindell's wrongful discharge claim.

IV.

In sum, the court GRANTS plaintiffs motion to amend his memorandum in opposition to

defendants' motions for summaiy judgment [D.E. 86], and GRANTS L-3's and QSL's motions for

summary judgment [D.E. 61,68]. Defendants 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.a. day of September 2020.

eslJLK

%Rill

United States District Judge

12 Swindell does not assert a hostile work environment based on race in violation ofNorth

Carolina law. North Carolina does not recognize such a cause of action. e.g„ McDonald v.

Hanger Prosthetics & Orthotics. Inc.. No. 7:14-CV-91-D, 2014 WL 4978S0S, at *1 (E.D.N.C. Oct.

6,2014) (unpublished!: Whitt. 3S9N.C. at62S, 614 S.E.2d at532.

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Case 5:17-cv-00617-D Document 96 Filed 09/30/20 Page 42 of 39

FILED: September 27,2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2179

(5:17-cv-00617-D)

CHRISTOPHER SWINDELL

Plaintiff - Appellant

v.

CACINSS, INC., f/k/a L-3 National Security Solutions, Inc.; QUICK SERVICES, LLC

Defendants - Appellees

NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.

Amicus Supporting Appellant

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Motz, Judge Richardson, and

Judge Quattlebaum.

For the Court

/s/ Patricia S. Connor. Clerk

APPENDIX C

43

Additional material

from this filing is

available in the

Clerk's Office.