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Curtis Y. Pompey v. Leggett & Platt

January 24, 2011


The opinion of the court was delivered by: L. Patrick Auld United States Magistrate Judge


This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Defendant's Motion for Summary Judgment (Docket Entry 20). (See Docket Entry dated Dec. 2, 2010; Fed. R. Civ. P. 72(b)(1).) For reasons that follow, said Motion should be granted.


Plaintiff filed a Complaint in this Court alleging that Defendant, his former employer,*fn1 "is liable to [him]":

1) under Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981 ("Section 1981") for "subjecting him to race discrimination, hostile work environment and disparate treatment due to race in the terms and conditions of his employment" (Docket Entry 1 at 6);

2) under Title VII, Section 1981, and N.C. Gen. Stat. § 143-422.2 for "wrongful[ly] terminati[ng] [his employment] due to race discrimination" (id.); and

3) under North Carolina state law "for the Negligent Supervision and Retention of [Robert Sawyer, a former employee of Defendant, with whom Plaintiff had an altercation at work]" (id.).

In his deposition, Plaintiff clarified that he claimed race discrimination due to the existence of a hostile work environment and in connection with his firing, but that he did not allege "[a]ny other incident that . . . was negative for [him] that was based upon [his] race in this lawsuit[.]" (Docket Entry 21, Ex. A at 72-73.) After the completion of discovery, Defendant moved for summary judgment. (Docket Entry 20.) In support of said Motion, Defendant filed a brief (Docket Entry 21), to which it attached:

A) a transcript of Plaintiff's deposition from April 27, 2010 (id., Ex. A);

B) an affidavit from Joseph Navarro, a regional Vice President of Operations for Defendant, who worked at the same facility as did Plaintiff (id., Ex. B);

C) an affidavit from Kenneth Campbell, Defendant's Plant Manager for said facility (id., Ex. C); and

D) an affidavit from Belinda Clark, Defendant's Human Resources Manager for said facility (id., Ex. D).

Plaintiff responded in opposition (Docket Entry 22) and contemporaneously filed therewith:

A) an affidavit from Plaintiff dated November 4, 2010 (Docket Entry 26) and print-outs from regarding Sawyer (Docket Entries 26-1, 26-2);

B) a copy of an "Employee Disciplinary Report Form" from 2007 which documented Plaintiff's provision of an "Oral Warning" to Sawyer for "Absenteeism" (Docket Entry 23);

C) a copy of an "Employment Separation Form" dated March 28, 2008, documenting Defendant's placement of Plaintiff on "one week disciplinary leave with pay" on March 24, 2008 (Docket Entry 24);

D) unsworn written statements from Edward Smith and Sheneda Love about their observations of the altercation between Sawyer and Plaintiff (Docket Entry 25); and

E) Defendant's responses to Plaintiff's Interrogatories, Requests for Admissions, and Requests for Production of Documents (Docket Entry 27).

Defendant filed a reply (Docket Entry 31), along with a supplemental affidavit of Vice President Navarro (Docket Entry 32).


Plaintiff -- who, in his deposition, described himself as "black" (Docket Entry 21, Ex. A at 36) -- began working for Defendant in 1981. (Id., Ex. A. at 23-25, Ex. B at 3.)*fn3 From 1997 until his firing in March 2008, Plaintiff served as a Production Supervisor overseeing the assembling, painting, and packing of bed frames and rails at Defendant's facility in Lexington, North Carolina. (Id., Ex. A at 26, 28-30.) He reported to Plant Manager Campbell, who reported to Vice President Navarro. (Id., Ex. A at 31.)*fn4 While working as a Production Supervisor, Plaintiff received positive annual evaluations and, as a result, annual raises. (Id., Ex. A at 96.) At the time of Plaintiff's discharge, Defendant had an Employee Handbook of which Plaintiff had knowledge (including as to its portions prohibiting and providing for the reporting of race-based, work-place harassment and authorizing discipline -- up to dismissal -- of employees who fought on company property). (Id., Ex. A at 44-46 and Dep. Exs. 3, 4.)

Racially Hostile Work Environment

In August 2007, Plaintiff had an argument with another Production Supervisor, Kay Swing, over access to some equipment. (Id., Ex. A at 30, 73-76.) During the dispute, Plaintiff "was a little loud, so [Swing] went to [Plant Manager Campbell]." (Id. at 74.) As a result, Campbell, Swing, and Plaintiff had a joint meeting. (Id., Ex. A at 75.) Swing "claimed that [Plaintiff] cursed her"; Plaintiff had not cursed at Swing and told Campbell so. (Id., Ex. A at 76.) In addition, Plaintiff stated that he was "tired of [Swing] calling [him] boy." (Id.)*fn5 Prior to that report, Campbell "was not aware of" Swing's use of that term and "was shocked at the time." (Id.)*fn6 Swing denied Plaintiff's accusation, but apologized nonetheless. (Id., Ex. A at 77.) Plaintiff did not "hear that [term] from [Swing] anymore after the meeting"; nor "did she refer to [Plaintiff] in any way that [he] found offensive after that meeting took place[.]" (Id.)

During Plaintiff's deposition, Defendant's counsel asked Plaintiff to identify "any other basis for [his] claim of harassment" and Plaintiff answered: "Well, I was constantly subject to black jokes." (Id., Ex. A at 80.) Plaintiff then cited an occasion, during a "supervisors' trip" away from the plant in March or April 2007, when (while Plaintiff and his co-workers were "drinking") two of Plaintiff's co-workers, John Gillespie and Charles Reid, used the term "black bees and stuff like that in a joking manner, but to [Plaintiff] it wasn't a joke." (Id., Ex. A at 80-81, 87-88.) When questioned about the meaning of the term "black bees," Plaintiff stated: "If you want me to say it, I'll say it. They're calling me a black bastard." (Id., Ex. A at 81.)*fn7 Plaintiff did not report that incident to anyone because he had known "these guys for years, and [he] really wasn't trying to hurt [them]." (Id., Ex. A at 81-82.)

Plaintiff further asserted that, during supervisory-level meetings at the facility, "sometimes [there were] black jokes told in there." (Id., Ex. A at 83.) He could provide no examples. (Id., Ex. A at 86.) These jokes occurred "about at least every other month," either during a "six-month period" beginning around March or April 2007 or throughout all of 2007. (Id., Ex. A at 86-88.)*fn8 As to "[w]ho told the black jokes," Plaintiff initially stated: "Well, usually, one of my fellow supervisors would tell a joke, a black joke." (Id., Ex. A at 83.) He then said: "Well, Charlie, Mike, all of them would make jokes like that." (Id.)*fn9 Again, Plaintiff did not "complain to anybody about it," because "these guys [he] considered friends. And [he] really didn't want to hurt these guys. [He had] know[n] these guys for years and years and years." (Id., Ex. A at 83-84.)*fn10

When asked if he "ever hear[d] [Vice President] Navarro make a racist joke or anything like that," Plaintiff responded: "Yes." (Id., Ex. A at 94.) As to what he heard, Plaintiff stated only: "I just heard him say the bad -- I'm not sure exact [sic] the word verbatim but about some black." (Id.) In response to a request for a more specific description, Plaintiff demurred, because it had "been so long [since he] heard it." (Id.) More specifically, Navarro made the remark in question "[t]hree or four years before [Plaintiff] w[as] terminated[.]" (Id.) Further inquiry as to the "context" of Navarro's complained-of comment led Plaintiff to testify only that "it was like a joke in one of those meetings that we was [sic] in." (Id.) Plaintiff could remember only one such utterance by Navarro. (Id., Ex. A at 95.)

Toward the end of the initial round of deposition questioning by Defendant's counsel, Plaintiff had a chance to describe "anything else that [he] th[ought] w[as] relevant to [his] claims"; he took that opportunity to assert that he had failed to report the jokes made in meetings because "there wasn't anyone in there [he] th[ought] [he] could trust to tell" and because he "didn't think anything would get done." (Id., Ex. A at 115.) Defendant's counsel then confronted Plaintiff with the fact that Defendant's anti-harassment policy did not require Plaintiff to report his concerns to persons at his facility, but instead gave him "the option of calling [Defendant's] Corporate Personnel Office in Missouri[.]" (Id., Ex. A at 115-16.) Plaintiff nonetheless maintained that he "didn't feel like anything would get done," but conceded that, at the time those events occurred, he "[n]ever" had complained to the Corporate Personnel Office in Missouri (and thus lacked a basis for such a perception). (Id., Ex. A at 116.)

During subsequent examination by his own attorney, Plaintiff testified that, in the meetings he had described, "[his] supervisors [were] in the room when the racial comments were made . . . [and] participated in making some of the racial comments[.]" (Id., Ex. A at 129-30.) Plaintiff further averred that he was "afraid to complain" because his "job was at stake" (i.e., that he might "lose [his] job"). (Id., Ex. A at 130.) As grounds for his fear, Plaintiff cited the fact that, on three prior occasions, he "lost [his] job when [he] complained about racism . . . ." (Id.)

At the conclusion of the examination by Plaintiff's counsel, Defendant's counsel "ha[d] some follow-up . . . questions." (Id., Ex. A at 131.) During that questioning, Plaintiff acknowledged that he "testified before that [he] only heard [Vice President] Navarro make one comment four or five years ago and [he] couldn't remember what it was but [he] believe[d] it was racial[.]" (Id.) When asked if that was "still the only thing that [he] c[ould] remember [Navarro] saying," Plaintiff responded: "He always made comments about -- racist comment." (Id.) Plaintiff then added that Navarro "made only one joke, but he would make a comment out of texture." (Id.) In response to a request for clarification, Plaintiff stated: "Out of texture; out of the ordinary, he would just make a comment about what a black man do [sic]." (Id.)

Defendant's counsel then solicited "any specifics about what [Navarro] may have said," and Plaintiff replied: "He would say something like -- that black motherfucker always messing up [sic]." (Id., Ex. A at 131-32.) As to why he failed to mention that matter during his earlier testimony, Plaintiff said: "Because I just -- it just popped up on me. You ask [sic] me the question. It come [sic] back to me. All I was thinking about was what was in the meeting." (Id., Ex. A at 132.) Next, Defendant's counsel asked "[h]ow many times did [Plaintiff] hear [Vice President] Navarro make a comment like [Plaintiff] just described?" (Id.) Plaintiff answered: "I guess that was only once too. That's why it didn't come back for too long." (Id.) According to Plaintiff, Navarro made that lone remark "a few years ago," "[a]bout the same time as the one joke [Plaintiff] thought [Navarro] made but couldn't remember specifics[.]" (Id.)

In addition, during follow-up questioning by Defendant's counsel, Plaintiff acknowledged that the "three times [he was fired for making] claims of racism . . . all [occurred] in the mid 80's" (prior to his promotion to Production Supervisor) and that Plant Manager Campbell and Vice President Navarro "were not around when these times . . . occurred in the 1980's[.]" (Id., Ex. A at 132- 33.) On those occasions, Plaintiff did not complain to Defendant's Corporate Personnel Office, but instead "went to the Plant Manager" and "got [his] job back." (Id., Ex. A at 133.)

The only other form of harassment Plaintiff cited during his deposition concerned his sense that he "was always being blamed for everything. And to a white employee, female supervisors, [he] was always wrong. [He] was always the wrong one." (Docket Entry 21, Ex. A at 82.) Plaintiff identified two examples:

A) "[He] had to walk the furthest of anyone [to plant meetings], but [he] was always accused of being late, because [he] ha[d] to stop, make sure the department [wa]s running before [he] even [went] to that meeting. But if [he] stop[ped] and got a ...

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