Professional Documents
Culture Documents
No. 09-1134
SAMUEL
G.
GASS;
ANGLER
Defendants Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:08-cv-00595-LMB-TRJ)
Argued:
Decided:
Before KING and DAVIS, Circuit Judges, and C. Arlen BEAM, Senior
Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
ARGUED:
Nicholas
Woodfield,
EMPLOYMENT
LAW
GROUP,
PC,
Washington, D.C., for Appellant.
Michael Joseph Pierce,
KASSIMER & ANNINO, PC, Falls Church, Virginia, for Appellees.
ON BRIEF: R. Scott Oswald, EMPLOYMENT LAW GROUP, PC, Washington,
D.C., for Appellant.
PER CURIAM:
Plaintiff Charles Alford, III, appeals from the district
courts
awards
Incorporated
of
summary
(M&G),
and
judgment
Angler
to
Martin
Construction
&
Gass,
Company,
L.L.C.
law.
the
harassment.
Alford
also
maintains
that
Angler
As explained below,
I.
A.
In
the
equipment
mid-
operator
to
late-1990s,
for
M&G,
Alford
company
began
based
working
in
as
an
Springfield,
short time, Alford rejoined the company as the foreman of a sixmember crew in 2004, but subsequently requested to step down as
foreman
in
early
2007. 3
Thereafter,
he
became
the
primary
and
maintain
the
machine.
Because
Alford
was
the
The facts spelled out herein are drawn from the summary
judgment record created in the district court. We recite these
facts in the light most favorable to Alford, as the nonmoving
party.
See In re Peanut Crop Ins. Litig., 524 F.3d 458, 470
(4th Cir. 2008).
3
According to Alford, he left M&G in 2003 because of racebased wage disparities but was persuaded to return to the
company in 2004. While subsequently serving as foreman, Alford
was subjected to racial harassment by a member of his crew.
Alford reported the harassment to M&G, which discharged Alfords
harasser.
Thereafter, other crew members upset that their
coworker was terminated also began harassing Alford. At that
point, in early 2007, Alford reported the further harassment and
requested to step down as foreman.
Neither the alleged racebased wage disparities nor harassment by fellow M&G employees
are the subject of the claims at issue in this appeal.
contractor
based
in
Manassas,
Virginia,
which
Accordingly,
Alford
often
reported
to
the
Angler
who
was
there
for
about
thirty
minutes
each
day
to
days
or
weeks
away
from
the
yard
working
at
other
2008,
incidents.
Alford
According
was
to
subjected
Alford,
to
various
series
Angler
of
racist
employees
J.A. 823.
such
as
Id.
Sutton
once
used
the
conversation with [Alford];
word
nigger
in
Id.
Nevertheless,
week
operating
the
crusher
at
the
other
Angler
worksite,
crusher
arrival,
there.
Alford
Approximately
noticed
noose
thirty
minutes
hanging
from
after
piece
his
of
J.A. 823.
About
who
had
just
arrived
at
the
Angler
yard.
Alford
and
Hoffman agreed that the effigy was not funny, and Hoffman
reiterated
an
earlier
warning
to
Alford
(first
made
shortly
after Alford began working at the Angler yard) that the Angler
employees didnt want [Alford] working around them.
Id. at
319.
According to Alford, he next reported the noosed effigy to
McDonald
and
asked
him
to
remove
it.
McDonald
seemed
unconcerned, J.A. 823, and said he was busy right then, [and
that he would] be out in a little bit, id. at 321.
also
asked
Alford
if
responded, Of course.
the
Id.
effigy
offended
him,
McDonald
and
Alford
McDonald had
removed the effigy about an hour after Alford reported it, and
sometime later (that day or the following Monday, March 3, 2008)
remarked to Alford, I guess youre going to have Al Sharpton
out here.
Id. at 321-22.
J.A. 324.
Alford provided
Gass with the cell phone number for Anglers Hazel, and Gass
called Hazel outside Alfords presence.
investigation
promptly
revealed
that
three
white
that they had put [the noose] there purely because they were
just
fooling
around
and
didnt
use
their
head.
J.A.
392.
after
responsible
speaking
for
the
on
March
noosed
with
effigy,
the
Hazel
three
assured
Alford that the employees were sorry for the noose incident and
that such conduct would not recur.
Ernest
Lease
employees.
apologized
According
to
to
Alford
Alford,
behalf
called
of
the
Gass
three
from
the
recycling yard and said he was going to work the rest of the
day and see how it goes.
J.A. 327.
done
anything
[more].
Id.
Furthermore,
according
to
Id. at
Hazel also called Gass and assured him that the incident
was horseplay and that the three employees did not mean any harm
to Alford or anyone else.
of
what
Hazel
had
done
address
the
situation
but
was
M&G fuel truck driver who serviced the crusher, who reported
experiencing no problems at the Angler yard.
Hazel directed Richard Athey, Anglers safety officer, to
conduct
follow-up
investigation
with
the
same
individuals
. . . [t]o make sure that [Athey] had the same information that
[Hazel]
had.
J.A.
396.
According
to
Athey,
the
three
employees responsible for the noose incident told him they had
no racist intent and that the noose was not directed at Alford
or any other African-American worker.
figure inside the noose was a horse or donkey that the employees
called Pedro, and was not intended to depict a hanged black
man.
was
nothing
inappropriate
more.
Notably,
between
Athey
made
the
three
employees
handwritten
notes
of
and
his
interview
to
notes
Alford
in
these
proceedings.
The
record
See id.
More
at [Alford] angrily.
Id. at 824.
[at
police.
the
Angler
Id. at 328.
yard]
and
was
planning
to
contact
the
Id. 5
It is undisputed
10
that Alford did not inform Gass or anyone else at M&G that
Angler employees had engaged in threatening behavior following
the investigation of the noose incident.
Additionally, Alford
J.A. 330.
Alford fe[lt]
that [he] was being punished because [he] reported [the noosed
effigy], and he believed that he no longer had a job.
Id. at
331.
Prince
That
evening,
Alford
filed
report
with
the
That morning,
Alford
answered
appointment.
no
at
Id.
and
332.
stated
Gass
that
he
suggested
had
that
doctors
Alford
use
to
following
do,
and
Monday,
Alford
March
10,
agreed.
and
Gass
Alford
called
advised
again
that
he
the
was
11
Id. at 333.
June
6,
2008,
Alford
initiated
this
action
in
the
he
complained
claim). 7
Angler
about
the
harassment
(the
retaliation
had
negligently
retained
employee
Craig
Lease
(the
claims under the Fair Labor Standards Act against M&G and Gass
(the FLSA claims).
On
January
2,
2009,
following
extensive
discovery,
M&G
moved
for
summary
judgment
on
some
of
the
In relevant
the
claims
12
retaliation claims, but not the FLSA claims; Angler moved for
summary judgment on all claims against it, i.e., the hostile
work environment, retaliation, and negligent retention claims;
and
Alford
sought
summary
judgment
on
his
hostile
work
On January
M&Gs
motions.
written
rulings.
and
Opinion,
Alford
Anglers
further
has
motions
explaining
timely
and
the
appealed,
denying
summary
and
we
Alfords
judgment
possess
II.
We
review
judgment,
de
viewing
novo
the
district
facts
and
courts
award
inferences
of
summary
reasonably
drawn
Summary
judgment
is
appropriate
only
if
the
record
III.
On appeal, Alford contends that the district court erred in
awarding summary judgment to M&G and Angler on the hostile work
environment
and
retaliation
claims,
and
to
Angler
on
the
in turn. 9
A.
As for his hostile work environment claim, Alford seeks
relief for the noose incident perpetrated by co-workers Ernest
Lease, Craig Lease, and Wolfe, as well as for the pre-noose
incident
conduct
of
alleged
supervisors
McDonald
and
Sutton.
The plaintiff
the
atmosphere.
conditions
of
Id. at 183.
employment
and
create
an
abusive
that there is
Id. at
15
In
granting
summary
judgment
to
M&G
and
Angler
on
the
to
African-Americans),
but
not
the
pre-noose
incident
offensive,
offhand
comments,
[to
and
be]
in
the
isolated
nature
incidents
of
simple
(internal
teasing,
quotation
the
fourth
applicable standard.
element,
the
parties
disagreed
over
the
Under
16
Sunbelt
Rentals,
521
F.3d
at
319
(internal
quotation
marks
omitted).
By contrast, Alford urged the court to deem M&G and Angler
vicariously liable for the alleged harassment unless they could
satisfy the Faragher/Ellerth affirmative defense.
See Faragher
the
evidence,
that
(1)
it
exercised
reasonable
care
to
prevent and correct promptly any harassing behavior; and (2) the
plaintiff
unreasonably
failed
to
take
advantage
of
any
375
2004)
F.3d
omitted).
288,
299
(4th
Cir.
(internal
quotation
marks
Whitten v. Freds,
Inc., 601 F.3d 231, 244 (4th Cir. 2010) (quoting Mikels v. City
of Durham, 183 F.3d 323, 332 (4th Cir. 1999)).
employees
with
only
some
measure
of
[H]arassment by
supervisory
authority
Id. at
respect
that
to
it
the
was
noose
incident,
undisputed
that
the
district
such
court
incident
was
Sunbelt
standard,
standard
Rentals
the
court
controlled.
determined
that
[t]he
Applying
evidence
this
in
the
noose
relevant
incident.
part,
that
Opinion
Hazel
26.
The
personally
court
went
to
explained,
the
yard
in
and
each was reprimanded and given both oral and written warnings
that future inappropriate conduct would result in termination.
Id.
liable
for
remedial
the
noose
action
concluding,
the
once
court
incident
put
on
because
notice.
rejected
Alfords
it
took
Id.
at
appropriate
18.
assertion
In
that
so
M&Gs
As the
caused
Gass
to
believe
that
Hazel
who
himself
went
18
Moreover,
Id.
they
were
Alfords
supervisors.
Alford
relied
on
supervised
other
Angler
employees,
McDonald
and
Id.
Sutton
Rather,
authority
to
direct
[Alfords]
operational
conduct.
original)).
for
McDonalds
and
Suttons
harassment
to
M&G
and
Angler.
19
Although
established
we
the
are
willing
first
three
to
assume
elements
that
of
his
Alford
has
hostile
work
courts
analysis
outlined
above.
Accordingly,
we
Angler
reporting
subjected
the
noose
him
548
actionable
reasonable
U.S.
53,
Angler
67-68
would
materially adverse).
employees:
thereby
harassment
bringing
after
about
his
retaliation,
employee
retaliatory
incident
constructive discharge.
White,
to
(2006)
(holding
plaintiff
have
found
that,
must
the
to
show
prove
that
challenged
action
made
the
Al
Sharpton
comment;
threatening
manner;
and
several
other
claim,
Alford
contends
that
employees
glared
In support of his
Angler
deliberately
and
Angler.
Significantly,
Alford
has
conceded
that
he
Indeed,
the record reflects that as far as M&G and Angler knew the
noose
incident
was
the
last
act
of
harassment
perpetrated
against Alford at the Angler yard, and that incident had been
resolved.
his
discomfort
harassment
already
rather
been
resulted
than
the
addressed.
from
prior
As
fresh
racial
such,
acts
of
retaliatory
harassment
there
are
no
that
had
facts
in
Head Island Mgmt., Inc., 259 F.3d 261, 272 (4th Cir. 2001), for
the proposition that [c]onstructive discharge requires that an
employer
deliberately
make
an
employees
working
conditions
Furthermore,
We therefore affirm
Angler
negligently
retained
Craig
Lease
following
his
Mgmt.,
Inc.
v.
Jackman,
513
S.E.2d
395,
397
Se.
(Va.
Servs., 386 F.3d 623, 628-30 (4th Cir. 2004); Se. Apartments
Mgmt., 513 S.E.2d at 397-98.
and
likely
to
harm
others,
yet
it
retained
his
22
Opinion 31.
in
hanging.
affirm
the
racially
Id. at 32.
courts
discriminatory
act
such
as
noose-
award
of
summary
judgment
to
Angler
on
IV.
Pursuant to the foregoing, we affirm the district courts
summary judgment awards to M&G and Angler. 10
AFFIRMED
10
23