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Turner v. Sunstates Security, LLC

United States District Court, E.D. North Carolina, Western Division

July 22, 2019

GLENN W. TURNER, Plaintiff,
v.
SUNSTATES SECURITY, LLC, Defendant.

          ORDER

          JAMES C. DEVER III UNITED STATES DISTRICT JUDGE.

         On 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 judgment.

         I.

         Sunstates 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.

         When 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.

         On 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.

         On the 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.[1] 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.

         After 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.

         After 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.

         II.

         Sunstates 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 603.

         First, 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.

         Next, 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.

         III.

         Summary 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, 378 (2007).

         A 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 ...


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