Carter v. Dominion Energy, Inc.

• Decision Date: 26 March 2021
• Docket Number: Case No. 6:20-cv-48
• Parties: Addison CARTER & Tyrone Beaver, Individually and for Others Similarly Situated, Plaintiffs, v. DOMINION ENERGY, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

529 F.Supp.3d 525

Addison CARTER & Tyrone Beaver, Individually and for Others Similarly Situated, Plaintiffs,

v.DOMINION ENERGY, INC., et al., Defendants.

Case No. 6:20-cv-48

United States District Court, W.D. Virginia, Lynchburg Division.

Signed March 26, 2021

Harris D. Butler, III, Paul Mark Falabella, Zev Hillel Antell, Butler Curwood, PLLC, Richmond, VA, for Plaintiffs.

Bret Gregory Daniel, James Clay Rollins, Jimmy Frank Robinson, Jr., Ogletree Deakins Nash Smoak & Stewart, PC, Richmond, VA, for Defendants Dominion Energy, Inc., Virginia Electric and Power Company, William F. Reed.

James Clay Rollins, Ogletree Deakins Nash Smoak & Stewart, PC, Courtney Martin Malveaux, Jackson Lewis, PC, Richmond, VA, Donald E. English, Jr., Liane Dublinski Kozik, Jackson Lewis P.C., Baltimore, MD, for Defendants Frenzelit, Inc., Joey Brown, Tom O'Brien.

Alison D. Kewer, Steven David Brown, IslerDare PC, James Clay Rollins, Ogletree Deakins Nash Smoak & Stewart, PC, Whitney Elise Nelson, Isler Dare, PC, Richmond, VA, for Defendants Arc Energy Services, Inc., Roger D. Phillips, II.

James Clay Rollins, Ogletree Deakins Nash Smoak & Stewart, PC, Richmond, VA, Setareh Ebrahimian, Fisher & Phillips LLP, Arlington, VA, Margaret Jacobsen Scheele, Pro Hac Vice, Fisher & Phillips LLP, Bethesda, MD, for Defendant Christopher Dykes.

MEMORANDUM OPINION

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

This is a putative class action filed by Plaintiffs Addison Carter and Tyrone Beaver, two African-American Arc Energy employees, who worked as welders on-site at Dominion Energy's Bear Garden Power Plant. Dominion's subsidiary, Virginia Electric and Power Company, or "VEPCO," operates the Bear Garden Plant. In order to fulfill staffing needs on its government contracts, Dominion/VEPCO subcontracted with third parties like Frenzelit and Arc Energy. Frenzelit and Arc Energy provided staffing at the Bear Garden Plant, and employees from both companies interacted with one another. Dominion banned Plaintiffs from all Dominion sites after an incident between them and a Frenzelit employee. Because their employer, Arc Energy, only serviced Dominion sites, Arc Energy subsequently terminated them.

Plaintiffs have sued Defendants Dominion Energy, VEPCO and its employee William Reed, Frenzelit and its employees Joey Brown, Tom O'Brien, and Christopher Dykes, and Arc Energy and its president Roger Phillips.

All named defendants except Arc Energy and Phillips have filed motions to dismiss.¹ Dkts. 47, 50, 43, 58. The motions raise questions of which individual or corporate defendants would be liable for the alleged racial discrimination. In ruling on the motions to dismiss, the Court must assume the truth of all well-pleaded factual allegations in the complaint and draw any reasonable inferences therefrom in the light most favorable to Plaintiffs.

I. FACTS AS ALLEGED

A. Background & Relevant Parties

Plaintiffs worked as specialty welders for Arc Energy Services, Inc. ("Arc Energy") until March 26, 2019, when they were terminated. Beaver worked as a specialty welder for approximately 22 years. Id. While working for Arc Energy, between mid-2014 and early 2019, he exclusively serviced Dominion power plants. Id. ¶ 36. Carter was newer to the industry and trained under Beaver for two years. Id. ¶ 25. Arc Energy had only one customer, Dominion Energy, Inc. ("Dominion"). Id. ¶ 99.

Dominion is a 21,000-person public company that produces and transports energy across 18 states. Id. ¶¶ 14, 24. VEPCO, a wholly owned subsidiary of Dominion, operates the Bear Garden Power Plant in New Canton, Virginia, where it employed William Reed² as the on-site station director.³ Id. ¶ 14. Given the nature of its work, Dominion staffs many large service projects with subcontractors. Id. ¶ 15.

At the Bear Garden Plant, Dominion contracted with Frenzelit, Inc. ("Frenzelit"). Id. At the site, Frenzelit employed Joey Brown as a welding and labor supervisor, Tom O'Brien as a field services manager, and Christopher Dykes as a welder. Id. ¶¶ 17–18, 20.

Dominion also subcontracted with Arc Energy, which provided specialty welders to the Bear Garden Plant. Id. ¶ 16. Arc Energy staffs approximately 1,500 people at Dominion worksites. Id. Arc Energy employed Plaintiffs until March 26, 2019. Id. ¶ 13. While the amended complaint clearly alleges Frenzelit and Arc Energy were both subcontractors of Dominion/VEPCO, it does not expressly state the relationship between Frenzelit and Arc Energy.

B. Racial Composition of Dominion/VEPCO, Frenzelit, and Arc Energy

Throughout their welding careers, Plaintiffs worked at several of Dominion's power plants. Id. ¶ 34. Dominion has plants in West Virginia, Massachusetts, Pennsylvania, New Jersey, California, Iowa, Florida, Maryland, Georgia, North Carolina, South Carolina, and Virginia. Id. From mid-2014 through his termination in March 2019, Beaver worked exclusively at Dominion power plants. Id. ¶ 36. During this time, Beaver rarely saw any African Americans at Dominion job sites: he only saw "1–2 African Americans at sites with as many as 50–100 employees." Id. ¶¶ 37, 112. When he did see African Americans, most of them were "runners" or other unskilled laborers. Id. ¶ 112. Plaintiffs also allege that Dominion's corporate managers are almost all white, just like the management at the Bear Garden Plant. Id. ¶ 39. Plaintiffs further assert that African Americans are underrepresented within Dominion/VEPCO's power plant workforce, relative to the available and qualified African American labor pool. Id. ¶ 53. Plaintiffs extend their assertions to include Dominion/VEPCO's labor suppliers because they never encountered minority managers at Frenzelit or Arc Energy during their time at the Bear Garden Plant. Id. ¶¶ 40–41.

C. Specific Instances of Discrimination at the Bear Garden Plant

On March 19, 2019, Plaintiffs reported to the Bear Garden Plant for their first day of work at that site. Id. ¶ 57. Upon arriving, they noticed that out of about 125 people present, they were the only African Americans among the skilled laborers. Id. ¶ 58.

Plaintiffs attended a mandatory safety and discrimination session, which included a segment on Dominion's "Zero Tolerance" discrimination policy. Id. ¶ 62. Following the training, Plaintiffs entered "the [onsite] Frenzelit trailer." Id. ¶ 65. Within moments, Dykes, a white male and Frenzelit employee, accosted Carter. Id. He grabbed Carter's testicles and called Carter a "pretty young black boy." Id. Carter responded by placing Dykes "in a hold." Id. Jeremy Helmstetler, the Frenzelit supervisor, later introduced Carter to the all-white crew as "Toby"—a reference to the slave in the mini-series "Roots." Id. ¶ 66.

Over the next several days, Dykes's misconduct continued. Id. ¶ 67. He pushed and shoved Plaintiffs and told them to "get the f**k out of the way." Id. Dykes also discouraged other workers from helping Plaintiffs perform their work assignments—even though Beaver was the senior welder on the worksite. Id. ¶ 70. For instance, Dykes interfered with Beaver's helper, a white technician, by telling the technician to ignore Beaver's instructions and follow Dykes's advice instead. Id. Dykes's guidance was incorrect and inconsistent with the technician's task. Id. Dykes repeatedly and specifically referred to Plaintiffs’ race and also threatened co-workers who helped Beaver or Carter. Id. ¶¶ 71, 74. No co-workers ever discouraged Dykes's misconduct. Nor did any supervisors or managers, who observed, received reports of, or became aware of Dykes's conduct, correct or reprimand him. Id. ¶ 75. Despite the behavior, Plaintiffs maintained their composure which irritated Dykes further, leading to an escalation the week after Plaintiffs started work. Id. ¶ 76.

On March 26, Joey Brown, a Frenzelit employee, filled in as supervisor for Helmstetler. Id. ¶ 77. That morning, Dykes entered the trailer and pushed Carter aside while saying "get the f**k out of the way." Id. ¶ 78. Carter then asked Dykes if he "had a problem," to which Dykes responded with a racist tirade. Dykes referred to African Americans as a "species" and called them "lazy," before repeatedly calling Carter a "n***er." Id. ¶ 79. He then stated that he would call Frenzelit and make sure Carter would never "work for them again," referring to Carter as a "f**king mook." Id. ¶ 79. Finally, Dykes told Carter that he wanted to take Carter to his truck, where he could get his whip and "whip [Carter] like they used to do to the slaves." Id. Dykes's rant ended when he "thrust his fist into Carter's face, threaten[ed] Carter, and insist[ed] they go to the parking lot to fight." Id.

Brown did not step in. Instead, he told Carter to "take it to the parking lot and fight it out." Id. ¶ 80. Dykes continued directing racial and homophobic epithets and insults at Carter. Id. Rather than engaging in a physical altercation, Carter exited the area and went to the Dominion/VEPCO site office to file a discrimination complaint. Id. ¶ 82. Carter spoke with Reed, Dominion's on-site station director. Id. ¶ 86. Carter told Reed what happened and that he wanted to file a written incident report. Id. But during the meeting between Carter and Reed, Brown entered the office and notified them that he had "made a decision" and that Plaintiffs needed to "get their stuff and leave the site." Id. ¶ 86. Brown said that Dykes would be required to leave as well. Id. Reed did not permit Carter to complete a written complaint. Id. ¶ 87. Brown apologized about the situation to Reed. Id. ¶ 88. Brown expressed to Reed that the President of Frenzelit's North American subsidiary instructed that all involved persons be removed from the site. Id. Beaver asked Brown why he needed to leave, but Brown gave no explanation other than to "just leave." Id. ¶ 89.

Plaintiffs headed to their truck, but decided that they should not leave without filing a written complaint with Dominion/VEPCO, so they went back to see Reed. Id. ¶ 90. Reed...