United States District Court, E.D. North Carolina, Western Division
C. Dever III United States District Judge.
August 12, 2019, Kevin Spencer ("Spencer" or
"plaintiff"), proceeding pro se, filed a complaint
against defendants Beth G. Walker ("Walker") and
Linda White ("White;"collectively,
"defendants") in the General Court of Justice, Wake
County District Court Division-Small Claims. See
Compl. [D.E. 1-2]. Walker and White were Spencer's
supervisors at the Department of Homeland Security,
Transportation Security Administration ("TSA"). See
Def'ts' Ex.2 [D.E. 11-2] ¶ 4. Spencer alleges
that both defendants harassed him and fostered a
hostile work environment between May 19, 2019, and My 17,
2019, in violation of Title VII. See Compl. [D.E. 1-2]. The
United States timely removed the case to this court. See
October 4, 2019, defendants moved to dismiss the complaint or
in the alternative for summary judgment [D.E. 8] and filed a
memorandum in support [D.E. 9]. On October 4, 2019, the court
informed Spencer of his right to respond to the
defendants' motion and warned Spencer that he must file a
response on or before October 28, 2019 [D.E. 12]. See
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975) (per curiam). The court also warned Spencer that if he
failed to respond to the motion, the court may grant the
motion and enter summary judgment for defendants.
See [D.E. 12]. Spencer did not to respond to
defendants' motion. As explained below, the court grants
defendants' motion for summary judgment.
2019, Spencer worked for the TSA as a lead transportation
security officer and screener at Raleigh Durham International
Airport ("RDU"). [D.E. 11-2] ¶ 4. Walker was
the senior TSA official at RD U.See Id. at ¶ 3.
White was a TSA official responsible for managing the TSA
screening workforce at RD U.See Id. at ¶ 2.
February 14, 2019, while deployed at a Terminal 1 checkpoint,
a female co-worker alleged that Spencer stared at her for 90
seconds such that four passengers had to navigate around
Spencer. See Def'ts' Ex. 3 [D.E. 11-3] 1, 3-4. The
co-worker described the incident as harassment and reported
it to her supervisor. See Def'ts' Ex. 2 [D.E. 11-2]
¶ 5; Def't's Ex. 3[D.E. 11-3] 1. On February 28,
2019, Spencer provided a written statement to a supervisor as
part of the inquiry. See Def'ts' Ex. 3[D.E. 11-3] 2,
April 10, 2019, while Spencer was working at Terminal 2, he
loudly accused a subordinate TSA employee of lying to a
supervisor as both stood nearby. See Def'ts' Ex. 3
[D.E. 11 -3] 2, 4. When the supervisor told Spencer that she
would address the matter with him separately, Spencer loudly
stated "talk about what... I don't need to talk...
you supervisors were standing right there... why do you need
to talk to me?" See Id. at 2. The supervisor
then brought Spencer into a private screening room to discuss
the incident See Id. at 2. The supervisor asked
Spencer multiple times to explain what happened. See
Id. In response, Spencer angrily raised his voice
and refused to elaborate on his accusation. See Id.
at 2, 5.
received notice of the complaint that Spencer's female
co-worker made against Spencer concerning the February 14,
2019 incident and referred the complaint to Walker to
investigate under TSA's ISA Management Directive (MD)
1100.73-3 Anti-Harassment Program. See
Def'ts' Ex. 2 [D.E. 11-2] at ¶ 6. Walker
appointed a fact finder to investigate the harassment
complaint as well as the April 10, 2019 incident. See
id. at ¶ 7; Def'ts' Ex. 3 [D.E. 11-3]
7, 2019, TS A suspended Spencer for three days for
inappropriate conduct, providing inaccurate information in
his February 28, 2019 statement, and failure to exercise
courtesy toward a supervisor. See Def'ts' Ex. 2 [D.E.
11-2] ¶ 8; Def'ts' Ex. 3 [D.E. 11-3] 1. The
disciplinary action described the administrative grievance
procedures that Spencer could take to contest the action, but
Spencer did not pursue those procedures until after he filed
suit in Wake County District Court. See Compl. [D.E.
1-2]; Def'ts' Ex. 2 [D.E. 11-2] ¶ 9;
Def'ts' Ex. 3 [D.E. 11-3] 6.
considering defendants' motion for summary judgment, the
court views the evidence in the light most favorable to
Spencer, the nonmoving parry. See Fed.R.Civ.P. 56; Scott
v. Harris, 550 U.S. 372, 378 (2007); Celotex Corp.
v. Catrett, 477 U.S. 317, 325-26 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-55 (1986);
Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986). 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); see Anderson, 477 U.S. at 247-48. The party
seeking summary judgment must initially come forward and
demonstrate an absence of a genuine issue of material fact.
Celotex Corp., 477 U.S. at 325. Once the moving
party has met its burden, the nonmoving party then must
affirmatively demonstrate that there exists a genuine issue
of material fact for trial. See Matsushita, 475 U.S.
at 586-87. There "is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party." Anderson,
477 U.S. at 249. It is insufficient to show a "mere...
scintilla of evidence in support of the [nonmoving
party's] position . . .; there must be evidence on which
the [fact finder] could reasonably find for the [nonmoving
parry]." Id. at 252.
Spencer's complaint, he cites Title VII and alleges that
defendants harassed him, retaliated against him, and created
a hostile work environment "in general and specifically
between May 19, 2019, and July 17, 2019." Compl. [DE.
1-2]. The defendants' motion asserts that Spencer failed
to exhaust his administrative remedies before filing suit,
that Walker and White are not proper defendants under Title
VTJ, and that Spencer's complaint fails to plausibly
allege a Title VII violation. See [D.E. 9] 7-12.
statement of undisputed material facts is "deemed
admitted for purposes of the motion [for summary
judgment]" because Spencer failed to file an opposing
statement controverting defendants' statement of
undisputed material facts. Local Civil Rule 56.1(a);
Young v. Onslow Water & Sewer Authority, No.
7-16-CV-259-D, 2018 WL 405975, at *1 n.1 (E.D. N.C. Jan. 18,
2018) (unpublished). As such, there is no genuine issue of
material fact. See Anderson, 477 U.S. at 249.
Accordingly, in light of the record and governing law, the
court grants defendants' motion for summary judgment. See
[D.E. 9] 7-12; 42 U.S.C. § 2000e-16(c); Brown v.
Gen. Serv. Admin, 425 U.S. 820, 832 (1976).
the court GRANTS defendants' motion for summary judgment
[D.E. 8] and DISMISSES the action without prejudice for
failure to exhaust ...