Thomas v. Shoney's Inc.
Decision Date | 03 March 1994 |
Docket Number | Civ. A. No. 2:93-0701. |
Citation | 845 F. Supp. 388 |
Parties | Stephen G. THOMAS, Plaintiff, v. SHONEY'S INC. D/B/A Captain D's, a corporation, Defendant. |
Court | U.S. District Court — Southern District of West Virginia |
Theodore R. Dues, Jr., Charleston, WV, for plaintiff.
Roger A. Wolfe, Jackson & Kelly, Charleston, WV, for defendant.
Pending is the Motion for Summary Judgment of the Defendant, Shoney's Inc. The Plaintiff, Stephen G. Thomas, has not filed a response or otherwise replied to Defendant's motion.1
Plaintiff filed his complaint against the Defendant in the Circuit Court of Kanawha County on July 14, 1993, alleging Defendant illegally conspired to terminate his employment due to his race, failed to provide a workplace free from harassment, and conspired to defame him. On August 6, 1993, Defendant removed the action to this Court based upon 28 U.S.C. § 1332(a).2 Defendant filed its motion for summary judgment on January 26, 1994, contending no issue of material fact exists and it is entitled to judgment as a matter of law. The Court concurs.
The uncontroverted facts as presented by the Defendant are as follows.3 The Plaintiff, an assistant manager of a restaurant owned by the Defendant, contended in deposition testimony that a restaurant employee had told him the restaurant manager had schemed to terminate his employment.4 Plaintiff contended a female restaurant employee informed him the manager had hired her to "set up" Plaintiff for a charge of sexual harassment, so that the manager would have a legitimate reason for terminating Plaintiff's employment.5 Plaintiff also contended that a different restaurant employee, whose name he could not remember, told him the manager had made racially derogatory comments about Plaintiff on several occasions.6 Plaintiff stated he had no other reason to believe the manager's alleged scheme was racially motivated. Plaintiff admitted he had not been accused of sexual harassment at the restaurant and that he had not been terminated from his employment.7
The standard used to determine whether a motion for summary judgment should be granted or denied was most recently stated by our Court of Appeals as follows:
Plaintiff's cause of action arose under the West Virginia Human Rights Act, W.Va. Code § 5-11-9(1) (1992). That provision makes it an unlawful discriminatory practice, "for any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment." The West Virginia Supreme Court of Appeals has held that the evidentiary standards under the West Virginia Human Rights Act are identical to those for Title VII of the Federal Civil Rights Act.8 Heston v. Marion County Parks & Recreation Commission, 181 W.Va. 138, 381 S.E.2d 253, 256 (1989) (per curiam). See Shepherdstown Volunteer Fire Dept. v. West Virginia Human Rights Comm'n, 172 W.Va. 627, 637-38, 309 S.E.2d 342, 351-52 (1983).
The Supreme Court went on to state the evidentiary standard racial harassment claims must meet to be actionable under Title VII is as follows:
"As we said Meritor, `harassment which is sufficiently severe or pervasive "to alter the conditions of the victim's employment and create an abusive working environment,"' id., at 67 (citation omitted), 106 S.Ct., at 2405, is actionable under Title VII because it `affects a "term, condition, or privilege" of employment,' ibid." 491 U.S. at 180, 109 S.Ct. at 2374, 105 L.Ed.2d at 153.
Thus, it seems clear that to be actionable under either W.Va.Code § 5-11-9(1) or Title VII, racial discrimination must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.9
More recently, the Supreme Court elaborated on the standards articulated in Patterson, supra, and Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), in Harris v. Forklift Systems, Inc., ___ U.S. ___, ___, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295, 301-03 (1993), stating:
Despite the benefit of all reasonable inferences, Plaintiff has failed to meet the foregoing standard. Plaintiff has not shown the conditions of his employment were altered in any way. Nor has he shown he was subjected to an abusive or hostile working environment. Plaintiff has shown only that he heard from others his manager made several racially derogatory comments about him.11 There is no evidence the alleged comments were made with any frequency or severity. Nor is there any evidence that the alleged racial comments of the manager were linked to the alleged scheme to terminate Plaintiff's employment. Moreover, there is no evidence that those comments, not made directly to the Plaintiff, interfered with Plaintiff's work performance, or that he found them, however despicable, physically threatening or humiliating.
Because the Plaintiff has failed to respond to Defendant's motion for summary judgment, it is clear that there are no material facts in dispute. The party opposing a motion for summary judgment motion must present more than "a mere scintilla of evidence," and "he may not rest upon mere allegations." Shaw v. Stroud, supra. In this case the Plaintiff is resting upon mere allegations and has not presented anything more than the merest scintilla of evidence in support of his contentions. Moreover, as a matter of law, it is the opinion of this Court that the comments alleged by the Plaintiff do not, on an objective level, rise to the level of severe or pervasive, and, upon the evidence of record, have not created an abusive working environment or altered the Plaintiff's work environment in such a way as to withstand the Defendant's motion for summary judgment.12
Based upon the foregoing, the Defendant's motion for summary judgment is GRANTED. The Court ORDERS that the Defendant's motion for summary judgment is granted and that this action is dismissed and stricken from the docket of the Court.
1 Rule 2.03 of Rules of Practice and Procedure for this District requires, "Memoranda and other matter in opposition to motions shall be submitted to the Clerk, with copies also submitted to the assigned judge and served on opposing counsel or parties entitled thereto within fourteen days from the date of...
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