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Raynor v. G4S Secure Solutions (USA) Inc.

United States District Court, W.D. North Carolina, Charlotte Division

December 21, 2017

E. RAY RAYNOR, Plaintiff,
v.
G4S SECURE SOLUTIONS (USA) INC., et al., Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS 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).

         At the 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.

         I. PROCEDURAL BACKGROUND

         Plaintiff 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, 25).

         Defendants 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.

         II. FACTUAL BACKGROUND[1]

         G4S 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).

         G4S 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).

         While 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).

         Plaintiff 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. 6).

         In 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).

         Plaintiff 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. 187:23-204:9).

         G4S's 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).

         After 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).

         Despite 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).

         III. STANDARD OF REVIEW

         On a 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).

         “The 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 255.

         IV. ANALYSIS

         A. Title VII: Disparate Treatment and Retaliation

         Title 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).

         Under 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.

         After 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 ...


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