United States District Court, W.D. North Carolina, Statesville Division
KENNETH D. BELL UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant
Louisiana-Pacific Corp.'s (“LP” or
“Defendant”) Motion for Summary Judgment (Doc.
No. 18), which Plaintiff James Parks (“Plaintiff”
or “Parks”) opposes. The Court has carefully
reviewed the motion and considered the parties'
arguments, briefs and exhibits. For the reasons discussed
below, the Court will GRANT the motion and
enter Summary Judgment in favor of Defendant.
matter is a discrimination and hostile work environment
action brought pursuant to 42 U.S.C. § 1981. Plaintiff
filed this action against his former employer, LP, after he
was terminated for failing to follow a written safety policy.
Plaintiff asserts claims for hostile work environment,
disparate treatment, and retaliation.
“one of the largest building products manufacturers in
North America.” (Doc. No. 26, at 2.) Plaintiff was
originally hired by LP on June 14, 2004 as a temporary
utility worker at its Roaring River manufacturing facility in
North Carolina. (Doc. No. 32, at 3.) In December 2005, LP
transferred Plaintiff to the maintenance department.
(Id.) Plaintiff worked in maintenance until his
termination on March 23, 2015. (Id.) Over the course
of his employment at LP, Parks received “various
promotions and pay raises.” (Doc. No. 26, at 4.)
Plaintiff's Safety Violation and Termination
parties agree that LP has a written “Lock out/Tag
out” (“LOTO”) safety policy applicable to
all employees who perform maintenance on machines in the
manufacturing facility. The LOTO policy provides that, before
performing any work on the machine, the employee must turn
off the machine's energy source at the breaker and place
a lock on the switch. (Doc. No. 26, at 2.) Second, the
employee must verify that the machine has no power by
attempting to switch it on before beginning any work.
(Id.) Citing the language of the LOTO policy, LP
states that violations of LOTO “will be viewed as an
act of serious misconduct” but that “[i]n all
cases where discipline is being considered, the facts and
merits of the specific event will be thoroughly reviewed
before corrective action is taken.” (Id. at
3.) Despite this written qualifier, Plaintiff takes the
position that all employees were unequivocally told that any
LOTO violation resulted in “automatic
termination.” (Doc. No. 32, at 3.) Plaintiff cites
deposition testimony from his son and fellow LP employee,
Michael Lamont Houpe, in support of this assertion.
parties agree that on March 18, 2015, Plaintiff violated the
LOTO policy. After receiving a work order for a machine,
Plaintiff inadvertently locked out a breaker directly below
the one that actually provided power to the machine. (Doc.
No. 32, at 5.) The parties agree that Plaintiff then failed
to verify the machine had no power before beginning to work.
(Id.; Doc. No. 26, at 5.) Citing Plaintiff's
deposition testimony, LP contends that a foreman noticed
Plaintiff's mistake, and instructed Plaintiff to lock out
the correct machine. (Doc. No. 26, at 5.) Again citing
Plaintiff's deposition testimony, LP asserts that
Plaintiff then locked out the correct machine, but again
failed to perform the verification step of the LOTO procedure
before beginning to work. (Id.)
parties agree that LP immediately suspended Plaintiff and
performed an investigation of Plaintiff s LOTO violation.
(Doc. No. 26, at 5; Doc. No. 22-27.) The investigators deemed
the violation “willful” because “the
employee understands the lockout process and chose not to
complete verification prior to beginning the task.”
(Id.) Plaintiff was terminated on March 23, 2015.
(Doc. No. 26, at 5.) LP states that when LP employees met
with Plaintiff to terminate him, Plaintiff was informed that
the LOTO violation was the sole reason for his firing.
Working Environment at LP
also asserts that LP's Roaring River facility was
“infested with racists” while he was employed
there. He testified to the following facts as evidence of
1. Plaintiff testified that shortly after he j oined the
maintenance department in 2005, he found a sign taped to his
locker reading “We don't want n****rs in
maintenance.” (Doc. No. 32-9, at 46.) Plaintiff does
not recall whether he reported this to LP. (Id.)
2. Plaintiff testified that an LP employee named Eddie Dancy
called him “bootlip” and “blue gum”
on two different occasions. (Id. at 41-42.)
Plaintiff testified he complained to Jimmy Purdue after both
incidents, and that Purdue told Plaintiff he would
“take care of it.” (Id.) Dancy later
apologized to Plaintiff. (Id. at 43.) Plaintiff
testified this occurred sometime around 2013 or 2014.
3. Plaintiff testified he witnessed LP employees make
racially derogatory jokes about African Americans. For
example, Plaintiff witnessed LP employees reenact a comedy
skit from the Dave Chappell Show in which an African American
man is portrayed as a Ku Klux Klan leader. (Id. at
43-44.) Plaintiff testified he did not complain about this to
LP. (Id.) Plaintiff could not remember which
employees engaged in this activity. (Id.)
4. Plaintiff testified one LP employee named Rocky Edwards
asked him if he was a drug dealer when the employee became
aware Plaintiff lived in a nice area of town. (Id.
at 45.) Plaintiff did not complain about this to LP
(Id.) It is not clear from the deposition transcript
when this incident occurred.
5. Plaintiff testified that an LP employee named Connelly
Howard addressed him using the word “n****r.”
Plaintiff complained about this incident to Larry Johnson,
who told Plaintiff he would investigate. (Id. at
53.) Plaintiff testified this occurred in 2015.
1. Plaintiff testified he witnessed a vehicle in the LP
employee parking lot displaying a bumper sticker stating
“Obama/Osama, what's the difference?” and
depicting a swastika. (Id. at 48.)
2. Plaintiff testified that after President Barack Obama was
elected to office, someone taped a cartoon from the newspaper
depicting a gunman shooting a caricature of President Obama
to his locker. (Id.) Plaintiff testified he
complained about this incident to an individual named Lam
Nguyen, who told Plaintiff he would “look into it,
” but Plaintiff never heard anything more about it.
(Id. at 47.)
3. Parks testified he was subjected to symbols of racism on a
“daily basis, ” including images of the
confederate flag, which he testified he views as a symbol of
the Ku Klux Klan. (Id. at 30.) He testified that
individuals on the maintenance team had lunchboxes depicting
the flag, and that he also saw images of the flag on hats,
lockers, and in the bathrooms. (Id. at 30-31.)
Plaintiff could not name any specific employees who displayed
the confederate flag. (Id.) Plaintiff did not report
this to LP. (Id.)
4. Park testified he saw the word “n****r” and
the phrase “KKK” scratched into a bathroom stall
in a bathroom he frequently used. (Id. at 31, 48.)
1. Plaintiff testified that someone placed a dead skunk in
his locker and then welded it shut. Plaintiff could not
recall the exact date of this incident, but stated that he
complained to a former LP supervisor named Ernest Higgins,
who retired in 2007. (Id. at 33-34.) Plaintiff
stated that Higgins then held an emergency meeting about
harassment “that same day.” (Id. at 34.)
2. Plaintiff testified that someone placed severed male deer
genitalia on his personal belongings inside his locker.
(Id.) Plaintiff could not recall the exact date of
this incident, but testified that Higgins was still his
supervisor at the time and that this incident occurred after
the skunk incident. (Id.) Plaintiff testified he
again complained to Higgins, who told Plaintiff he would
“look into it, ” but that nothing else happened.
3. Plaintiff testified that his tools were hidden in
locations far from his work area on “six or seven
times.” (Id. at 35.) Plaintiff testified that
this was witnessed by an LP supervisor named Donnie Vanhoy.
4. Plaintiff testified that in early 2015, when he returned
to work after taking medical leave, he found his locker
stuffed with hundreds of freeze pop wrappers. (Id.
at 36.) Plaintiff testified he complained to an LP supervisor
named Danny Gambill about this, and that Gambill told him
that “if they didn't like you, they wouldn't
mess with you.” (Id. at 39.)
Opposition also cites to Houpe's deposition testimony
describing incidents in which LP employees used racial slurs.
Houpe testified that he personally witnessed the following
1. Houpe was told by an unnamed LP employee not to trust a
lot of people at LP because “they called [him] the
N-word behind [his] back an awful lot.” (Doc. No. 32,
at 6; Doc. No. 32-2, at 120.)
2. Houpe witnessed unnamed LP employees use the term
“coon” and refer to Hispanic individuals as
“wet backs” and “slick back n****rs.”
(Doc. No. 32-2, at 126.)
3. Houpe testified he observed swastikas and the word
“n****r” “all over the place” and
specifically in the bathrooms at LP. (Id. at 128.)
He further testified that LP repainted
“everything” and removed the slurs, but that
“beforehand, they would be removed and then, you know,
maybe a week later, somebody would put something else up
there.” (Id. at 128-29.)
also testified that at some point after Plaintiff
complained about discrimination, LP stopped allowing
employees to wear “articles of clothing with rebel
flags” to work and “started cracking down on it a
little bit more.” (Id. at 129.) Houpe
testified that after Plaintiff complained about racism, LP
“made this big thing” and “even had a
safety meeting on it.” (Id. at 130.)
Plaintiff cites to the deposition testimony of Shannon Parks,
Plaintiff's wife, who also witnessed vehicles in the LP
employee parking lot that displayed bumper stickers relating
to President Obama, specifically one portraying President
Obama being urinated on. (Doc. No. 32- 10, at 47-48.) She
further testified that at least three vehicles had stickers
on them that she viewed as racist, but could not recall
specifics as to what made her interpret them as racist.
(Id. at 51.) Parks testified she saw images that
Plaintiff brought home from LP portraying President Obama
with “monkey ears, ” and depicting a confederate
flag. (Id. at 49, 52, 54.)
parties do not dispute that LP has adopted a written
anti-harassment policy, anti-retaliation policy, equal
employment opportunity policy, and affirmative action policy.
(Doc. Nos. 22-12, 22-13, 22-14, 22-15.)
judgment must be granted “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 factual dispute is considered 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).
“A fact is material if it might affect the outcome of
the suit under the governing law.” Vannoy v.