McKinney v. G4S Gov't Solutions, Inc.
| Decision Date | 31 March 2016 |
| Docket Number | Civil Action No. 7:14-cv-00101 |
| Citation | 179 F.Supp.3d 609 |
| Parties | John L. McKinney, Jr., Plaintiff, v. G4S Government Solutions, Inc., Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Brittany Michelle Haddox, Terry Neill Grimes, Terry N. Grimes, Esq., P.C., Roanoke, VA, for Plaintiff.
Brandon L. Morrow, Edward Gorham Phillips, Kraymer Rayson LLP, Knoxville, TN, Stewart James Robert Slemp, Moss & Rocovich, P.C., Roanoke, VA, for Defendant.
Plaintiff John L. McKinney, Jr. filed this action against his employer, G4S Government Solutions, Inc. (G4S), asserting the following claims: (1) a hostile work environment claim under both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, based on his race (African-American); (2) a retaliation claim under the same two statutes;1 and (3) a claim for intentional infliction of emotional distress under Virginia law.
Pending before the court is G4S's motion for summary judgment. (Dkt. No. 43.) G4S contends that it is entitled to summary judgment in its favor as to all of McKinney's claims. First, it argues that the undisputed evidence establishes that it has satisfied each of the requirements of the Faragher / Ellerth affirmative defense,2 entitling it to judgment in its favor on the hostile work environment claim. Second, it posits that McKinney's retaliation claim fails both because he did not engage in protected activity before receiving the May 24, 2013 write-ups, and because no legally sufficient retaliatory action was taken against him at any time. Third and finally, it argues that McKinney has failed to establish at least two of the four elements of his emotional distress claim.
The motion has been fully briefed, the court heard argument on the motion on September 14, 2015, and the court has considered all written submissions, including the supplemental briefs filed after the hearing. For the reasons set forth below, the court will grant G4S's motion for summary judgment.
The court construes the evidence, and reasonable inferences therefrom, in the light most favorable to McKinney, the non-moving party. Laing v. Fed. Express Corp. , 703 F.3d 713, 714 (4th Cir.2013).
McKinney, who is African-American, was hired by G4S in September 2005 to work as a Security Officer at the Radford Army Ammunition Plant (RFAAP). (Allen Decl. ¶ 8, Dkt. No. 44–-1, at 3-19.)3 RFAAP is operated by BAE Systems, Inc. (BAE), pursuant to a contract with the Department of Defense. (Allen Decl. ¶ 4.) At all relevant times, BAE subcontracted with G4S to provide certain on-site services at RFAAP. These included security services, fire protection services/EMT, janitorial services, and copying and mail services. (Id. )
G4S is a Florida corporation with both domestic and international operations, and the primary individuals involved in investigating and remedying the alleged harassment are not based at RFAAP. These include Senior Vice-President Rich Allen—who is also African-American and is directly responsible for oversight of G4S's operations at RFAAP—and Rob Handel, the human resources employee who was tasked with investigating McKinney's complaint. (Id. ¶¶ 1, 4–5, 14; Handel Decl. ¶¶ 2–3, 8–10, Dkt. No. 44–1, at 26–55.) G4S's highest-ranking supervisor located at RFAAP during most of the pertinent time was Project Manager Shawn Lewis, who McKinney alleges was his primary harasser. Lewis reported directly to Allen, who reported to G4S's President. (Allen Decl. ¶¶ 5–6.)
On February 20, 2012, McKinney was promoted to corporal (now called relief captain) and received a 16% raise. (Id. ¶ 8; McKinney Dep. 31–32, Dkt. Nos. 44–3 and 50–2; McKinney Dep. Ex. 3, Dkt. No. 44–3, at 95.)4 Approximately six months later, on September 6, 2012, he was promoted to the position of shift captain (on the second shift) and received an additional 3.8% raise. (McKinney Dep. 33 & Ex. 4, Dkt. No. 44–3, at 96.) In late May 2013—mere weeks after the most serious incidents of harassment alleged by McKinney—he was transferred to the position of first shift captain. Notably, the first shift is McKinney's preferred shift, and he testified that it is a more prestigious position than second shift, because it involves both more responsibilities and more personnel to supervise. (McKinney Dep. 37–39; see also Anderson Decl. ¶ 6, Dkt. No. 44–1, at 20–25.) McKinney remains employed in that position today. At no point during his employment was McKinney demoted, and, as noted, his salary increased twice in 2012, and it has not been reduced since.
The most severe incidents of harassment—which the court refers to as the “noose incident” and the “sheet incident”—occurred on May 23, 2013. McKinney also testified about two prior incidents when he heard offensive comments, neither of which McKinney reported to anyone prior to May 2013.5 (McKinney Dep. 52–55, 57.) The noose incident occurred when McKinney first arrived at work on May 23. As he walked into the common area near his office, he saw Shawn Lewis and three other white employees standing in a group and laughing. The others were J.C. Allison, Greg Gravley, and Ryan Gellner. (Id. at 60–62.) Lewis said, “I am going to ask, I am going to ask [McKinney],” and, as Lewis said that, the three others walked away into their respective offices, with at least two of them laughing. (Id. at 81.)
When McKinney asked what was going on, Lewis asked him if he knew there was a noose hanging on a nail inside a small closed cabinet outside the security captain's office.6 Lewis then had McKinney follow him to show him the noose, and directed McKinney to get rid of it, despite McKinney's protests. (Id. at 82–84.) McKinney, who retained the noose rather than throwing it out, has since described that the noose and rope together are longer than 16 feet, and about one and one-half inches to two inches in diameter. (Id. at 86; Pl.'s Opp. to Mot. for Summ. J. 4 n. 4, Dkt. No. 50 (Pl.'s Opp.).)
As McKinney was walking away with the noose, a non-supervisory employee, Joe Roth, walked by and said, (McKinney Dep. 92–94.) McKinney explained that Roth lives in a neighborhood with African-American neighbors and that he interpreted Roth's comment as referring to using the noose on his African-American neighbors. (Id. at 93–94.) McKinney also testified that Roth had used the N-word once before in McKinney's presence, although it was not directed toward McKinney. (Id. at 94.)
As noted, Roth was not a supervisor. Gellner was a shift captain like McKinney, although on a different shift. Lewis, Allison, and Gravley were all supervisors and Lewis and Allison were in McKinney's direct chain of command. As already noted, Lewis was the G4S Project Manager and the highest-ranking on-site supervisor for G4S. He had been the project manager since April 1, 2013, and was hired by—and reported to—Rich Allen. Allison, the security chief, reported to Lewis, and McKinney reported to Allison. Gravley was the head of the janitorial and fleet services. (Allen Decl. ¶ 6.)
As he left with the noose, McKinney went to Gravley's office and conveyed to Gravley that he couldn't understand why Gravley would participate or laugh about the noose, because McKinney believed they were friends.7 Gravley laughed and said he had nothing to do with the noose. (McKinney Dep. 96–97.)
The sheet incident occurred shortly thereafter, on the same day. Lewis was in the supply room as McKinney walked by. Lewis was on a ladder in the room, and asked McKinney to come in and hold a box. Gellner was walking toward the room at the same time and McKinney asked Gellner to go hold the box instead, so that McKinney could get ready to start his shift. Gellner did so, and McKinney walked away. But McKinney heard the two men laughing and went back to see what they were doing. When McKinney looked in the supply room, he saw Lewis standing on a ladder and holding a white sheet above Gellner's head, so that it “form [ed] a triangle-shaped cylinder ... like a KKK hood.” (Id. at 126–29, 365.)
McKinney said to them, (Id. at 129.) Neither of them said anything, according to McKinney. (Id. at 131–32.)8 Gellner subsequently apologized to McKinney and told him he had nothing to do with the incidents, saying In response, McKinney said, “Are we cool?,” to which Gellner responded, “Yeah.” (Id. at 135–37.)
McKinney also alleges that the day after the noose and sheet incidents, on May 24, he received from Allison what he calls “two bogus write-ups,” which were on forms titled “Employee Counseling.” (McKinney Dep. 166 & Exs. 19–20, Dkt. No. 44–4, at 12–15 (forms).) Although both are dated May 23, and he signed and dated both of them May 23, McKinney testified that they were given to him on May 24, and that he was told to backdate them. (McKinney Dep. 194–97.) The reports counseled him for failing to complete certain paperwork, and he disputes that at least some of that paperwork was his responsibility. Instead, he says that others had agreed to prepare and file those reports for him. (Id. at 197–201.) In his deposition, McKinney claimed that he received the write-ups because Lewis was upset that he (Lewis) had been chastised by his superiors for working McKinney and others long hours. (Id. at 180–81, 184–86, 188.) McKinney never testified that he believed he received those forms as retaliation for his complaint, despite his counsel's arguments to that effect. In any event, it is undisputed that those counseling forms did not result in any demotion or reduction in his pay.
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