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Valcarcel v. ABM Industries/ Diversico Industries

United States District Court, M.D. North Carolina

June 7, 2019



          Thomas D. Schroeder United States District Judge.

         Plaintiff Patrick B. Valcarcel, proceeding pro se, alleges that his former employer, Defendant ABM Industry Groups, LLC (“ABM”), discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). Before the court is ABM's motion for summary judgment. (Doc. 40.) The motion is fully briefed and ready for consideration.[1] For the reasons set forth below, the motion will be granted and the action will be dismissed.

         I. BACKGROUND

         The facts, viewed in the light most favorable to Valcarcel as the non-moving party, are as follows:

         Valcarcel is a white male, American-born, who worked as an at-will employee of ABM from September of 2012 until he was terminated in October of 2015 at approximately age 57.[2] (Doc. 2-1 at 46-48; Doc. 40-1 at 12, 39, 68.) ABM maintains policies concerning discrimination in the workplace that are distributed to new employees when they are hired and are posted in the workplace.[3] (Doc. 40-1 at 80-85; Doc. 40-2 ¶ 4.) ABM's “Employee Instructions, Information, and Work Rules” states that discrimination against, or harassment of any employee on the basis of race, color, national origin or ancestry, amnesty, or any other consideration made unlawful by federal, state, or local laws will not be tolerated and is prohibited, as well as that “[f]ailure to observe any of the above rules may be cause for termination.” (Doc. 40-1 at 80- 81.) ABM also maintains a toll-free hotline for employees to report complaints of alleged discrimination, harassment, or retaliation. (Id. at 80; Doc. 40-2 ¶ 4.)

         Valcarcel's first supervisor was ABM Project Manager Chad Chadwick, and after Chadwick left ABM, his supervisor was Project Manager Nadia Moreno. (Doc. 40-2 ¶ 5; Doc. 40-3 ¶ 2.) Both Chadwick and Moreno reported to Ben Dodds, Senior Regional Director of Technology and Manufacturing for ABM's operations in North Carolina, who is sometimes referred to as the North Carolina branch manager. (Doc. 40-2 ¶¶ 1, 5.)

         In September or early October 2015, Vanessa Zamora[4], an ABM employee, reported to Moreno that Valcarcel had made statements A. Oh, yes. Oh, yeah. I didn't have to sign it to know this. (Doc. 40-1 at 50.) that offended her.[5] (Doc. 40-2 ¶ 6; Doc. 40-3 ¶ 3.) Upon Moreno's request, Zamora wrote a written statement about the incident, and Moreno sent the statement to Dodds, her supervisor. (Doc. 40-3 ¶ 3.) Valcarcel's comments, as reported in Zamora's written statement, accused Zamora of not being a citizen and referred to marks on her back from crawling under a fence to enter the country:

[Valcarcel and a security guard] had a conversation about voting elections. They started saying that they were gonna vote for Donald Trump the [sic] explained there [sic] reasons to me. But what made me feel really bad was when Pat ask [sic] me a very rude question. He ask [sic] me how did I get my papers? [And] if they were fake. That maybe [Moreno] had printed they [sic] off the computer for me. . . . I told them they wasn't fake. [Valcarcel] replied with look at your back from where you came under the fence. . . . I just really dislike how they said it in the lobby in front of people that were waiting to get on the elevator.

(Doc. 40-1 at 86; see Doc. 40-2 ¶ 6.) Moreno, ABM human resources representative Loretta Renteria, and Dodds discussed how to investigate and respond to the situation and decided that Moreno should meet with Valcarcel to determine whether he had engaged in the conversation described in Zamora's statement. (Doc. 40-2 ¶ 6; Doc. 40-3 ¶ 3.) Moreno informed Valcarcel that his employment was terminated due to his inappropriate statements. (Doc. 40-2 ¶ 6; Doc. 40-3 ¶ 3.) Valcarcel testified at his deposition that Moreno told him he was being fired for being a racist and making a statement about President Donald Trump, and that he refused to leave the building until he spoke with Dodds. (Doc. 40-1 at 23- 24, 26-27.) Moreno called Dodds, and Dodds told Valcarcel that his employment was terminated because of the inappropriate statements Zamora reported he made about her. (Doc. 40-1 at 23, 29; Doc. 40-2 ¶ 6; Doc. 40-3 ¶ 3.)

         II. ANALYSIS

         A. Legal Standard

         Summary judgment is appropriate “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 genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Basnight v. Diamond Developers, Inc., 146 F.Supp.2d 754, 760 (M.D. N.C. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining a motion for summary judgment, the court views the “evidence in the light most favorable to the non-moving party, according that party the benefit of all reasonable inferences.” Id. Summary judgment should be denied “unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.” Guessford v. Pa. Nat. Mut. Cas. Ins. Co., 983 F.Supp.2d 652, 659 (M.D. N.C. 2013) (quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)). Valcarcel proceeds pro se. “When reviewing a pro se complaint, federal courts should examine carefully the plaintiff's factual allegations, no matter how inartfully pleaded, to determine whether they could provide a basis for relief.” Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258, *1 (4th Cir. 1997) (citations omitted) (unpublished table opinion). However, the liberal construction of a pro se plaintiff's pleading does not require the court to ignore clear defects in pleading, Bustos v. Chamberlain, No. 3:09-1760, 2009 WL 2782238, at *2 (D.S.C. Aug. 27, 2009), or to “conjure up questions never squarely presented in the complaint, ” Brice v. Jenkins, 489 F.Supp.2d 538, 541 (E.D. Va. 2007) (internal quotation marks and citation omitted). Nor does it require that the court become an advocate for the unrepresented party. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         B. Title VII Race and National Origin Discrimination

         The court will consider the race and national origin claims at the same time, because Valcarcel's deposition frequently conflated the claims and ABM briefed them together.

         Title VII prohibits employment discrimination based on race and national origin. A plaintiff may prove discrimination under Title VII “either through direct and indirect evidence of [discriminatory] animus, or through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Foster v. Univ. of Md. - E. Shore, 787 F.3d 243, 249 (4th Cir. 2015), abrogated on other grounds by Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).

         Valcarcel has not produced any direct evidence of discrimination based on race or national origin. In fact, he admitted in his deposition that he has no proof of discrimination based on any protected category, no one employed at ABM at the time of his termination has information that would indicate that he was terminated because he was white or American, he has not spoken with any potential witnesses, and his evidence is circumstantial. (Doc. 40-1 at 6-7, 24, 55 (“Q. Did anybody at ABM ever tell you that any decision made about your employment had to do with your race? A. Oh, no.”), 62, 63 (stating that no one told him he was fired because of his national origin), 74.) When asked at his deposition whether he believes that Dodds made any decisions about his employment because he was a white American, Valcarcel responded that he had “no idea.” (Doc. 40-1 at 24.) When asked if he has any evidence at all to substantiate his assumption that Moreno had a problem with him because he is a white American, Valcarcel responded: “I ...

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