United States District Court, E.D. North Carolina, Western Division
GLENN W. TURNER, Plaintiff,
SUNSTATES SECURITY, LLC, Defendant.
C. DEVER III UNITED STATES DISTRICT JUDGE.
December 28, 2017, Turner ("Turner" or
"plaintiff') filed an amended complaint against
Sunstates Security LLC ("Sunstates" or
"defendant") alleging discrimination on the basis
of race, color, and sex, and retaliation in violation of
Title VE of the Civil Rights Act of 1964 ('Title
VE"), 42 U.S.C. § 2000e et seq.,
discrimination on the basis of race in violation of 42 U.S.C.
§ 1981, and discrimination on the basis of age in
violation of the Age Discrimination in Employment Act of 1967
("ADEA"), 29 U.S.C. § 629 et seg. See Am.
Compl. [D.E. 27]. On September?, 2018, Sunstates moved for
summary judgment [D.E. 38], filed a memorandum in support
[D.E. 39], and filed exhibits [D.E. 39-1-39-4]. On September
28, 2018, Turner responded in opposition [D.E. 40] and filed
a memorandum and affidavit [D.E. 41, 42]. On October 12,
2018, Sunstates replied [D.E. 43, 44], moved to strike in
part one of Turner's affidavits [D.E. 45], and filed a
memorandum in support [D.E. 46]. On November 1, 2018, Turner
responded in opposition and filed a memorandum [D.E. 47, 48].
As explained below, the court denies Sunstates's motion
to strike and grants Sunstates's motion for summary
is a private security company that operates in 25 states and
has approximately 2, 300 employees. See [D.E. 39] ¶ 1;
Kleiman Aff. [D.E. 39-1] ¶ 2. On July 25, 2016,
Sunstates hired Turner to work as a security guard at a
construction site in Clayton, North Carolina. See [D.E. 39]
¶ 2; Kleiman Aff.[D.E.39-1] ¶3. Turner is a 79-year
old African American. See Turner Aff.[D.E. 40-1] ¶ 1.
Rogelio Valencia ("Valencia"), an operations
manager for Sunstates, interviewed and hired Turner. See
[D.E. 39] ¶ 2; Valencia Aff. [D.E. 44] ¶¶ 1-2.
Sunstates hired Turner, Turner confirmed that he read and
understood Sunstates's policies, including
Sunstates's policy concerning client keys. See [D.E. 39]
¶ 3; Ex. 1 [D.E. 39-1] 5-7; Ex. 2 [D.E. 39-1] 40-41.
Under Sunstates's client key policy, security guards must
"meticulously" account for keys used in performing
their duties, "conduct a key inventory at the beginning
of each shift," and immediately report missing keys to
supervisors. [D.E. 39] ¶ 3; Ex. 2 [D.E. 39-1] 40.
Security guards "found to be negligent in the area of
key control may be subject to termination of employment"
[D.E. 39] ¶ 3; Ex. 2 [D.E. 39-1] 41. Sunstates considers
key security to be critical, with one Sunstates employee
claiming that "the only thing more significant than key
security is loss of life." [D.E. 39] ¶ 4; see [D.E.
39-3] 54-59. Sunstates uses three steps (its "corrective
action procedure") to address employee performance
issues or misconduct: verbal counseling, written warning, and
final written warning. See Ex. 2 [D.E. 39-1] 50-51. Although
supervisors ordinarily use this procedure, "[t]here may
be situations... in which the severity of [an] offense
justifies the omission of one or more of the steps in the
procedure." Id. at 50. Sunstates may also
suspend an employee at any point if the employee threatens
"the security, safety or service to the client, the
client's employees or Sunstates['s] employees."
Id. at 51.
October 8, 2016, Turner left the Clayton construction site
unattended even though the site supervisor, William
"Matt" Sprayberry ("Sprayberry"),
instructed Turner to remain on site. See Valencia
Aff. [D.E. 44] ¶ 3. As a result, Turner received a final
written warning. See id.; [D.E. 44-1]. On October
13, 2016, Sprayberry trained Turner concerning workplace
policies. See [D.E. 39] ¶5.
night of November 12, 2016, Turner received a set of keys,
the patrol vehicle keys and the client site keys, from the
security guard whose shift had just ended, Kimberly Weeks
("Weeks"). See Id. ¶ 6. When Weeks
arrived to relieve Turner the following morning, Turner gave
Weeks the patrol vehicle keys, but he could not locate the
client site keys. See Id. ¶ 7; Turner Aff.
[D.E. 42] ¶¶ 8-10. Turner claims that he "threw
the site keys," which had been separated from the patrol
vehicle keys, into the Sunstates patrol vehicle. Turner Aff.
[D.E. 42] ¶ 6. Valencia and others searched for the
keys, but they never found them. See [D.E. 39] ¶ 10;
Turner Aff. [D.E. 42] ¶¶ 13-17. Turner and
Sunstates dispute whether Valencia told Turner to go home and
whether Turner orally informed his supervisors that he lost
the keys. See [D.E. 41] ¶¶ 1-2; Turner Aff. [D.E.
42] ¶ 11. Valencia concedes that he may have told Turner
that, depending on the circumstances, Sunstates might be able
to find Turner another position at Sunstates. See Valencia
Aff. [D.E. 44] ¶ 5; Turner Aff. [D.E. 42] ¶ 17.
investigating the key loss, Valencia concluded that Turner
was responsible for losing the client site keys. See Valencia
Aff. [D.E. 44] ¶ 6. Sunstates terminated Turner for
losing the client site keys, which cost Sunstates thousands
of dollars to re-key the entire facility, and because he had
already received a final written warning. See Id.
¶¶ 6-7; [D.E. 39] ¶ 9. Sunstates claims that
it did not base the decision to terminate Turner on
Turner's age, race, gender, or in retaliation for any
action or statement. See [D.E. 39] ¶ 11. Sunstates
alleges that two Sunstates employees took Turner's
shifts: Bruno Nwachukwu, a 47-year-old black man, and
Robert Davis, a 57-year-old white man. See [D.E. 39]
¶ 13. But see [D.E. 41] ¶ 10.
Sunstates terminated Turner, Weeks continued to work for
Sunstates despite some performance struggles. Specifically,
another security guard, Brenda Waddell ("Waddell"),
reported that Weeks was sleeping at her guard post. See
Valencia Aff. [D.E. 44] ¶ 8. Weeks received verbal
counseling for this infraction. See Id. Valencia did
not terminate Weeks, however, because Waddell lacked
corroborating evidence of the alleged infraction. See
Id. On March 8, 2017, Weeks received a written
warning for improperly checking in visitors to the site. See
Id. ¶ 9. On March 18, 2017, Weeks refused to
take a random drug test, and Sunstates terminated her
employment. See Id. ¶ 10.
moves to strike portions of Turner's affidavit [D.E. 45].
"An affidavit submitted in opposition to a
summary-judgment motion must contain admissible evidence, and
the affiant must have personal knowledge of the information
contained in the affidavit." Velasquez v. Salsas
& Beer Rest., Inc., No. 5:15-CV-146-D, 2017 WL
4322814, at *6 (E.D. N.C. Sept. 28, 2017) (unpublished); see
Fed.R.Civ.P. 56(c)(4); Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). "A
court may only consider affidavits submitted on summary
judgment when they present evidence that would be admissible
if the affiant were testifying in court." Bostic v.
Rodriguez, 667 F.Supp.2d 591, 603 (E.D. N.C. 2009); see,
e.g., Evans, 80 F.3d at 962. "[H]earsay
evidence, which is inadmissible at trial, cannot be
considered on a motion for summary judgment." Md.
Highways Contractors Ass'n v. Maryland, 933 F.2d
1246, 1251 (4th Cir. 1991); Bostic, 667 F.Supp.2d at
Sunstates challenges several paragraphs in Turner's
affidavit, see [D.E. 42], as hearsay. As for paragraph four,
in which Turner states that Weeks told him that Sprayberry
wanted the patrol vehicle keys and client site keys to be
separated, see Id. ¶ 4, this statement is not
hearsay if offered to show Turner's state of mind. See
Campbell v. Bos. Sci. Corp., 882 F.3d 70, 78 (4th
Cir. 2018). Thus, the court denies Sunstates's motion to
strike this statement. As for Turner's statement that
Weeks arrived on November 13, 2016, accompanied by an
unidentified male who "was indicated as her
boyfriend," see [D.E. 42] ¶ 9, Turner does not
specify how the man "was indicated" to be
Weeks's boyfriend. Thus, the court cannot conclude that
the assertion is hearsay and denies Sunstates's motion to
strike this statement As for Turner's statements that
Valencia told Turner to go home and that Valencia would look
for another work site for Turner, see Id. ¶ 17,
that Valencia told Turner that Turner had been terminated for
leaving the Clayton site without notifying Sunstates of the
missing keys, see Id. ¶ 20, and that Valencia
never told Turner that he fired Turner for losing the keys,
see Id. ¶ 22, Valencia allegedly made the
statements while an employee of Sunstates on a matter within
the scope of that employment relationship. Thus,
Valencia's alleged statements to Turner are not hearsay.
See Bostic, 667 F.Supp.2d at 603; Fed.R.Evid.
801(d)(2)(D). Accordingly, the court denies Sunstates's
motion to strike these statements.
Sunstates argues that Turner lacks personal knowledge for
five of his statements: (1) Turner's statement that the
patrol vehicle keys and client site keys had not been
separated before November 13, 2016; (2) Turner's
statement that a video showed him tossing the client site
keys into the patrol vehicle; (3) Turner's statement that
he believed that the site keys should have remained in the
patrol vehicle; (4) Turner's statements that Sprayer
"was notified" of the missing keys and that Turner
"was directed" to go home; and (5) Turner's
statement that, on November 14, 2016, he returned to work
"as directed." See Id. ¶¶ 5-7,
11-12. As for the first two statements, the court disagrees
that Turner lacks personal knowledge. As for the third
statement, Turner's statement merely goes to his belief
that the keys should have remained in the vehicle. As for the
fourth statement, Turner can testify that someone told him to
go home. As for the fifth statement, Turner has personal
knowledge of what he believed that his supervisor directed
him to do. Thus, the court denies Sunstates's
motion to strike these statements. Accordingly, the court
denies Sunstates's motion to strike.
judgment is appropriate when, after reviewing the record as a
whole, the court determines that no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. See Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986). The
party seeking summary judgment must initially demonstrate the
absence of a genuine issue of material fact or the absence of
evidence to support the nonmoving party's case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party has met its burden, the nonmoving party
may not rest on the allegations or denials in its pleading,
see Anderson, 477 U.S. at 248-49, but "must
come forward with specific facts showing that there is a
genuine issue for trial." Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(emphasis and quotation omitted). A trial court reviewing a
motion for summary judgment should determine whether a
genuine issue of material fact exists for trial. See
Anderson, 477 U.S. at 249. In making this
determination, the court must view the evidence and the
inferences drawn therefrom in the light most favorable to the
nonmoving party. See Scott v. Harris, 550 U.S. 372,
genuine issue of material fact exists if there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party. See Anderson, 477 U.S. at
249. "The mere existence of a scintilla of evidence in
support of plaintiffs position [is] insufficient"
Id. at 252; see Beale v. Hardy, 769
F.2d213.214 (4th Cir. 1985). Only factual disputes that