United States District Court, W.D. North Carolina, Charlotte Division
E. RAY RAYNOR, Plaintiff,
G4S SECURE SOLUTIONS (USA) INC., et al., Defendant.
D. Whitney Chief United States District Judge
MATTER is before the Court on Defendants G4S Secure Solutions
(USA) Inc. (“G4S”), Chuck Brock, Donald Zeccardi,
Malcolm Burchett, Tifani Grusky, and Michael Nail's
Motion for Summary Judgment (Doc. No. 27).
hearing on Defendants' Motion for Summary Judgment on
December 11, 2017, the Court orally GRANTED Defendants'
Motion as to claims one, four, five, six, seven, and nine and
DENIED Defendants' Motion as to claims two and three. The
Court indicated that it would memorialize its ruling in a
detailed order. This order follows.
filed this action on February 21, 2017, in Superior Court in
Gaston County, North Carolina. (Doc. No. 1-1). Defendants
subsequently removed the action to this Court. (Doc. No. 1).
Defendants answered the Complaint on March 31, 2017 and moved
for judgment on the pleadings on August 11, 2017. (Doc. Nos.
7, 14, 15). On October 4, 2017, the Court granted in part and
denied in part Defendants' motion for judgment on the
pleadings. (Doc. No. 23). The Court dismissed Plaintiff's
claims against G4S of (1) intentional infliction of emotional
distress;(2) negligent infliction of emotional distress; (3)
violation of North Carolina Constitution; (4) conspiracy to
violate Plaintiff's constitutional rights pursuant to 42
U.S.C. § 1985; and (5) claims under Title VII and
section 1981 to the extent based on discrete discriminatory
acts occurring before May 4, 2016. (Doc. No. 23). The Court
also dismissed claims against Chuck Brock, Donald S.
Zeccardi, Malcolm Burchett, Tifani Grusky, and Michael Nail
(the “Individual Defendants”) of (1) breach of
contract; (2) wrongful discharge; (3) discrimination claims
under 42 U.S.C. § 2000e, et seq.; and (4)
violation of the North Carolina Constitution. (Doc. Nos. 23,
moved for summary judgment on November 2, 2017. (Doc. No.
27). In accordance, with a modified briefing schedule to
accommodate additional discovery ordered by the Court,
Plaintiff filed a response on December 5, 2017, and
Defendants replied on December 8, 2017. (Doc. Nos. 40, 41).
The Court held a hearing on December 11, 2017. The Court
orally ruled on the Motion and indicated that this detailed
written order would follow.
secures people, property, and assets. (See e.g.,
Henning Aff. ¶ 2). G4S provides services and products to
its clients, including risk consulting and investigations,
systems integration, security software and technology, and
security professionals. (See e.g., Henning Aff.
¶ 2). Operations of G4S are divided into eight regions
in the United States and further divided into local offices.
(See e.g., Henning Aff. ¶ 3; Burchett Dep.
25:22-25). Employees in the Mid-Atlantic Region are generally
divided into regional/overhead, billable, and temporary
consultants. (Grusky Aff. ¶ 3).
employed Plaintiff, an African-American male, from on or
about July 16, 2001, until August 26, 2016. Plaintiff worked
in the Charlotte and Mid-Atlantic Region, starting as a
trainer in G4S's office in Charlotte, North Carolina.
(Burchett Dep. 35:6-11; Grusky Aff. ¶ 5; Clark Aff.
¶ 4). In 2002, Plaintiff began work as the Assistant
Project Manager of the Bank of America Corporate Center in
Charlotte, North Carolina, before becoming Operations Manager
of G4S's office in Charlotte, North Carolina, in 2004.
(Clark Aff. ¶ 4). In 2008, Plaintiff became the Manager
of Field Support for the Mid-Atlantic Region. (Burchett Dep.
35:6-11; Clark Aff. ¶ 5).
working as the Manager of Field Support, Plaintiff signed the
2014 Bonus Performance Contract given him by G4S. (Burchett
Dep., Ex. 2). However, in September of 2014, Plaintiff's
position as Manager of Field Support was eliminated, and he
was reassigned to a position as Site Manager of the Bank of
America Corporate Center in Charlotte, North Carolina.
(Raynor Dep. 182:10-184:14; Burchett Dep. 223:20-224:24;
Grusky Aff. ¶ 28). Plaintiff was later removed from his
position as Site Manager at the Bank of America Corporate
Center in 2015 (Burchett Dep. 239:15-20; Nail Dep. 51:18-21)
after he (1) posted a list of disciplined employees in the
break room (Raynor Dep. 213:7-22, Ex. 20, 21, 22; Burchett
Dep. 230:6-231:3, 238:9-239:5) and (2) failed to promptly
send updated post orders to a Bank of America Vice President
(Raynor Dep. 207:8-209:21, 213:7-22; Ex. 25, 26; Burchett
Dep. 233:11-17). Employees submitted complaints about the
posting of disciplined employees through the G4S Secure
Solutions Ethics and Compliance Hotline. (Raynor Dep., Ex.
20, 22). Plaintiff contends that he did timely send the
updated post orders and that Bank of America did not ask for
his removal. (Doc. No. 40 at 10-11).
continued to work for G4S but on various other accounts and
assignments in the Mid-Atlantic Region. (Burchett Dep.
78:9-16, 112:14-113:1; Raynor Dep. 159:11-25). Around March
2016, the Mid-Atlantic Senior Regional Vice President Malcom
Burchett offered Plaintiff two open positions with G4S,
Operations Manager of the Cincinnati, Ohio office and Account
Manager for Fifth Third Bank. (Burchett Dep. 25:251-3;
77:16-78:4, 83:6-7; Raynor Dep. 223:8-18). Plaintiffs
contends these offers were illusory, and Plaintiff had not
been informed that his current work for G4S was temporary.
(Doc. No. 40 at 12). In response to these offers, Plaintiff
gave Burchett a piece of paper with $120, 000 written on it
and stated words to the effect of “this is what it will
take to get me.” (Burchett Dep. 79:18-80:4; Raynor Dep.
225:17-226:6, 231:6-232:6). Plaintiff expected Burchett to
make a counter offer, but he admits he never followed up with
Burchett. (Raynor Dep. 229:10-13, 232:1-11). Burchett
believed $120, 000 was “inflated beyond a reasonable
request.” (Burchett Dep. 104:5-8). Plaintiff's
assignments concluded May 31, 2016. (Raynor Dep. 237:10-14).
Plaintiff did not apply to any positions in G4S, including
the positions offered by Burchett. (Raynor Dep. 70:19-23, Ex.
June, Plaintiff asked Tifani Grusky by email about his
vacation time. (Raynor Dep., Ex. 29; Grusky Aff. ¶ 42).
Grusky informed Plaintiff that he had no vacation time and
had a negative four-hour balance. (Raynor Dep., Ex. 29;
Grusky Aff. ¶43).
appeared on the no-earnings report in July of 2016. (Grusky
Aff. ¶ 44). The no-earnings report alerts G4S that an
employee has no wages in the past month. (Grusky Aff. ¶
44). Generally, G4S administratively terminates employees
listed on the no-earnings report without prejudice to the
employee's ability to reapply for employment with G4S.
(Grusky Aff. ¶44; Nail Dep. 268:9-20). Lesa Bodine
administratively terminated Plaintiff. (Nail Dep., Ex. 31).
Then, a severance agreement with four weeks of salary was
prepared. (Burchett Dep. 175:14-178:14). Upper-level
management employees, such as General Managers, received
severance packages of a higher amount. (Burchett Dep.
General Manager Michael Nail gave Plaintiff the Severance
Agreement and General Release on July 20, 2016. (Nail Dep.
180:7-20). Plaintiff had concerns about the terms of the
Agreement. (Raynor Dep. 249-50; Burchett Dep. 195-96,
249-50). Nail informed him that he could not answer his
question, but he could submit the questions to Burchett in
writing. (Raynor Dep. 248:1-250:12; Nail Dep. 184:3-188:22).
As a result, on July 21, 2016, Plaintiff sent a written
letter to G4S's Chief Human Resources Officer and
Burchett. (Raynor Dep., Ex. 35; Dep. Burchett, Ex. 4). The
letter outlined Plaintiff's concerns about the Agreement
and used the terms “hostile” and
“discriminatory.” (Raynor Dep., Ex. 35; Burchett
Dep., Ex. 4). Plaintiff contends the letter reports hostile
and discriminatory treatment (Doc. No. 40 at 15); Defendants
contend the letter describes the Agreement as
“hostile” and “discriminatory” but
failed to explain his reason for these allegations and to
identify a protected class (Doc. No. 27-1 at 11). During the
summer of 2016, Plaintiff received a letter from G4S's
President Drew Levine, thanking him for his fifteen years of
service with G4S. (Burchett Dep., Ex. 6).
Plaintiff refused the terms of the Severance Agreement,
Plaintiff was administratively terminated on August 26, 2016.
(See Burchett Dep. 110:17-21; 220:20-221:4; Grusky
Dep., Ex. 26).
knowing of the procedures to submit a complaint and G4S's
policy, in his 15 years of employment, Plaintiff never
utilized G4S's hotline to make a complaint of race
discrimination and never submitted a complaint of race
discrimination in accordance with G4S's harassment
policy. (Raynor Dep. 117:19-118:20; 121:10-121:20).
Plaintiff, however, contends his July 21, 2016 letter
complained of discrimination. (Doc. No. 40 at 6). Plaintiff
filed a charge of discrimination with the EEOC on January 11,
2017, alleging discrimination from July 8, 2016 to August 26,
2016. (Doc. No. 13-1).
STANDARD OF REVIEW
motion for summary judgment, the moving party “bears
the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of
the [record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
satisfies that burden, the non-moving party bears the burden
of “set[ting] forth specific facts showing that there
is a genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11
(1986) (quoting Fed.R.Civ.P. 56(e)). The moving and
non-moving party must support their assertions that a fact is
or is not genuinely disputed by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c). If a party “fails to properly
support an assertion of fact or fails to properly address
another party's assertion of fact” with admissible
evidence or explain how an admissible form of the evidence
will be introduced at trial, “the court may: . . . (2)
consider the fact undisputed for purposes of the motion;
[and] (3) grant summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it . . . .” Fed.R.Civ.P.
56(e); see also Fed.R.Civ.P. 56(c); Mitchell v.
Zia Park, LLC, 842 F.Supp.2d 1316, 1321 (D. N.M. 2012).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is material if it “might
affect the outcome of the suit under the governing law”
and is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The court views all material factual
disputes supported by admissible evidence in favor of the
non-moving party and draws all reasonable inferences in favor
of the non-moving party. Cole v. Cole, 633 F.2d
1083, 1092 (4th Cir. 1980); Anderson, 477 U.S. at
Title VII: Disparate Treatment and Retaliation
VII prohibits an employer from (i) discriminating against an
employee on the basis of race, color, religion, sex, or
national origin and (ii) discriminating against an employee
for opposing an unlawful employment practice under Title VII
or for involvement in a Title VII investigation, proceeding,
or hearing. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a).
Violations of Title VII for discrimination or retaliation may
be proven by Plaintiff “either through direct and
indirect evidence of retaliatory animus, or through the
burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 668
(1973).” Foster v. Univ. of Md.-E. Shore, 787
F.3d 243, 249 (4th Cir. 2015).
the burden-shifting framework, the plaintiff has the burden
of setting forth a prima facie showing for
discrimination or retaliation. McDonnell, 411 U.S.
at 802; Foster, 787 F.3d at 250. Then, the burden
shifts to the defendant to show that its purportedly
discriminatory or retaliatory action was in fact the result
of a legitimate non-discriminatory or non-retaliatory reason,
McDonnell, 411 U.S. at 802; Foster, 787
F.3d at 250 (citations omitted), by articulating a
“justification that is legally sufficient to justify a
judgment in his favor[, ]” Venable v.
Pritzker, No. GLR-13-1867, 2014 WL 2452705, at *13 (D.
Md. May 30, 2014) (quoting Mereish v. Walker, 359
F.3d 330, 335 (4th Cir. 2004), aff'd, 610 F.
App'x 341 (4th Cir. 2015). Defendant “is not
required to persuade [the Court] that the proffered reason
was the actual motivation for [its] decision.”
Mereish, 359 F.3d at 335.
the defendant shows a legitimate non-discriminatory or
non-retaliatory reason, “the burden then shifts back to
the plaintiff to prove by a preponderance of the evidence
that the stated reason for the adverse employment action is a
pretext and that the true reason is discriminatory or
retaliatory.” Guessous v. Fairview Prop. Invs.,
LLC, 828 F.3d 208, 216 (4th Cir. 2016) (citations
omitted). If the plaintiff fails to produce evidence to show
that the “proffered reasons . . . were pretextual or
motivated by discriminatory animus as required by
McDonnell Douglas, [the] claim fails” and
summary judgment is appropriate. Turner v. Danzig, 8
F. App'x 268, 270 (4th Cir. 2001) (citing Williams v.
Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)).
Even if the plaintiff demonstrates a prima facie case and
sufficient pretext, however, the Supreme Court has explained
that a defendant will still be entitled to judgment as a
matter of law if “no rational factfinder could conclude
that the action was discriminatory.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000); see also Waag v. Sotera Defense Sols., Inc.,
857 F.3d 179, 192 (4th Cir. 2017) (holding that to survive a
motion for summary judgment under the McDonnell Douglas
framework, “the plaintiff must produce sufficient
evidence to create a genuine dispute of material fact such
that a reasonable ...