South Carolina Cases October 25, 2021: Bennett v. The Boeing Co.

Case Description

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REPORT AND RECOMMENDATION

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

Plaintiff filed this action alleging race discrimination, hostile work environment, and retaliation in violation of 42 U.S.C. § 1981. This matter is now before the Court upon Defendant's Partial Motion for Summary Judgment. (Dkt. No. 70.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that Defendant's Partial Motion for Summary Judgment (Dkt. No. 70) be granted.

BACKGROUND

Plaintiff is a black male. (Dkt. No. 74 at 3.) He began working for Defendant as an aircraft painter in May of 2013. (Dkt. No. 70 at 2; Dkt. No. 74 at 3.) Defendant has two paint departments: the Component Paint Department and the Decorative Paint Department. (Dkt. No. 70 at 2-3; Dkt. No. 74 at 3.) Plaintiff began his career in the Component Paint Department but later moved into the Decorative Paint Department. (Dkt. No. 70 at 2-3; Dkt. No. 74 at 3.) According to Defendant, the Component Paint Department experienced a staff shortage at some point in 2017. (Dkt. No. 70 at 3-4.)

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Because of this staff shortage, Defendant implemented a “Component Recovery Plan” which “loaned” painters in the Decorative Paint Department to the Component Paint Department to assist with a backlog of work. ( Id . at 4.)

Plaintiff claims that he began experiencing harassment and discrimination when Eric Infinger became his immediate supervisor in the Decorative Paint Department. (Dkt. No. 74 at 3.) Specifically, Plaintiff claims that “Infinger blatantly showed racial favoritism towards Caucasian employees to the direct detriment of African American workers” by loaning Plaintiff and other African American workers to the Component Paint Department to perform less-desirable work such as sanding, sweeping, taking out trash, and cleaning up after Caucasian co-workers. (Dkt. No. 40 at 2; Dkt. No. 74 at 3-4.) Plaintiff further claims that Mr. Infinger made racist comments to Plaintiff, talked down to Plaintiff, and micromanaged Plaintiff. (Dkt. No. 40 at 3-4; Dkt. No. 74 at 5.) Plaintiff asserts that he reported Mr. Infinger's actions to Defendant's Human Resources Department and its upper-level management, but that nothing was done. (Dkt. No. 40 at 2; Dkt. No. 74 at 5.)

Plaintiff also contends that two of his Caucasian co-workers, David Lakes and David Dugger, commented that they did not have to wear safety glasses, but that Plaintiff had to wear them “because he is black.” (Dkt. No. 40 at 2; Dkt. No. 74 at 5.) Plaintiff alleges that Mr. Lakes became his “new Lead in the paint shop” following this incident. (Dkt. No. 40 at 2-3.)

Plaintiff claims that he reported the incident with Mr. Lakes and Mr. Dugger to Defendant's Human Resources Department, an investigation ensued, and the Human Resources Department concluded that Plaintiff's complaint was unsubstantiated. (Dkt.

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No. 40 at 2; Dkt. No. 74 at 5.) Plaintiff contends that Defendant did not adequately address this complaint, nor his complaints about Mr. Infinger. (Dkt. No. 40 at 2; Dkt. No. 74 at 5-6.) He further contends that “Defendant retaliated against [him] by practicing a continuing pattern of animus, harassment, and denial of opportunities and relocations” after he “informed Defendant of the racial harassment and mistreatment that [he] [] was exposed to.” (Dkt. No. 40 at 7.)

Plaintiff alleges that Defendant's unfair treatment is motivated by race-based discrimination. ( See generally Dkt. No. 40; Dkt. No. 74.) He claims that Defendant's actions have caused him to “suffer[] tremendously in terms of his mental, physical, and emotional heath, as well as suffering other ongoing actual and compensatory damages.” (Dkt. No. 40 at 3.) Thus, he filed the instant civil action. ( See generally Dkt. No. 40.)

PROCEDURAL HISTORY

Plaintiff, along with three co-Plaintiffs (Donta Alston, Kevin Austin, and Joel Washington), filed an initial complaint against Defendant on September 24, 2019. (Dkt. No. 1.) The initial complaint alleged race discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981, breach of contract, breach of contract accompanied by a fraudulent act, and promissory estoppel. (Dkt. No. 2.) On March 24, 2020, this Court ordered that the claims be severed into four separate actions, noting that each Plaintiff should file an amended complaint. (Dkt. No. 1.) Plaintiff filed his Amended Complaint on May 5, 2020. (Dkt. No. 6.) After requesting and receiving leave from the Court, Plaintiff filed a Second Amended Complaint on September 11, 2020, eliminating his promissory estoppel claim. (Dkt. No. 40.)

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On September 25, 2020, Defendant filed a Motion to Dismiss Plaintiff's Second Amended Complaint. (Dkt. No. 41.) On January 14, 2021, the Court granted in part and denied in part Defendant's Motion to Dismiss. (Dkt. No. 57.) In doing so, the Court dismissed Plaintiff's claims for breach of contract and breach of contract accompanied by a fraudulent act. ( Id .) Accordingly, only Plaintiff's claims for race discrimination, hostile work environment, and retaliation in violation of 42 U.S.C. § 1981 remain.

Now before the Court is Defendant's Partial Motion for Summary Judgment, which was filed on April 19, 2021. (Dkt. No. 70.) After requesting and receiving an extension of time, Plaintiff filed his response in opposition to Defendant's motion on June 1, 2021. (Dkt. No. 74.) Defendant replied to Plaintiff's response on June 14, 2021. (Dkt. No. 77.) As such, the motion before the Court has been fully briefed and is ripe for disposition.

LEGAL STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth. , 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)).

“As the moving party, Defendant[] [is] required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with

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the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation , No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial.” Id . (citing Celotex Corp ., 477 U.S. at 317). “Plaintiff[] may not rest on mere allegations or denials; [she] must produce ‘significant probative evidence tending to support the complaint.'” Id . (quoting Anderson , 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp ., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp ., 477 U.S. at 317), adopted in part , 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp ., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).

In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie , 526 U.S. 541, 552 (1999) (quoting Anderson , 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc. , 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cty. of Horry , 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather , 731 F.3d 303, 311 (4th Cir. 2013)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of

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summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson , 477 U.S. at 248.

DISCUSSION

Defendant asserts that it is entitled to summary judgment on Plaintiff's discrimination and retaliation claims. (Dkt. No. 70 at 14-27; Dkt. No. 77 at 14-15 .) By contrast, Plaintiff contends that genuine issues of material fact exist as to each of these claims and that summary judgment is therefore inappropriate. (Dkt. No. 74 at 7-17.) For the reasons set forth below, the undersigned finds that Plaintiff's discrimination and retaliation claims fail as a matter of law and recommends that the Court grant Defendant's Partial Motion for Summary Judgment.

I. Race Discrimination

Section 1981 states that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. Plaintiff brings a race discrimination claim against Defendant under this statute. A plaintiff may prove a § 1981 race discrimination claim through “direct or circumstantial evidence showing that an adverse employment action was [caused] by intentional discrimination aimed at the plaintiff's [race], ” or through the “burden-shifting framework” of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Ali v. BC Architects Engineers, PLC , 832 Fed.Appx. 167, 171 (4th Cir. 2020), as

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amended (Oct. 16, 2020) (referencing Guessous v. Fairview Prop. Inv., LLC , 828 F.3d 208, 216 (4th Cir. 2016)). It appears undisputed that Plaintiff has failed to provide direct evidence of discrimination or retaliation. ( See generally Dkt. No. 70; Dkt. No. 74; Dkt. No. 77.) Indeed, both parties have analyzed Plaintiff's discrimination and retaliation claims using the McDonnell Douglas framework. ( See generally Dkt. No. 70; Dkt. No. 74; Dkt. No. 77.) The undersigned has therefore evaluated Plaintiff's claims under this same framework.

Under the McDonnell Douglas paradigm, the plaintiff must first establish the elements of a prima facie discrimination claim. Ferguson v. Waffle House, Inc. , 18 F.Supp.3d 705, 719 (D.S.C. 2014). A prima facie case for race discrimination under § 1981 requires that: (1) the plaintiff is a member of a protected class; (2) the plaintiff performed his job in a satisfactory manner; (3) the plaintiff was subjected to an adverse employment action; and (4) the plaintiff was treated differently than similarly situated individuals outside of his protected class. See Flowers v. International Longshoreman's Ass'n Local 1422 , No. 2:19-cv-00254-DCN-MGB, 2019 WL 6093255, at *9 (D.S.C. June 4, 2019), adopted sub nom. Flowers v. International Longshoremen's Ass'n Local 1422 , No. 2:19-cv-00254-DCN, 2019 WL 3927444 (D.S.C. Aug. 20, 2019) (citing Coleman v. Maryland Court of Appeals , 626 F.3d 187, 190 (4 Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland , 566 U.S. 30 (2012)); see also Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998) (citing Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985)) (noting that the elements required to establish a prima facie case are the same under Title VII and § 1981).

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If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant “to show a legitimate, nondiscriminatory reason” for the adverse employment action. Ferguson , 18 F.Supp.3d at 719. If the defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the burden is then on the plaintiff to demonstrate that the defendant's asserted reasons “are a mere pretext for its true discriminatory motives.” See Id. (referencing McDonnell Douglas Corp. , 411 U.S. at 802-05). In order to do that, the plaintiff must come forward with evidence showing that the employer's reason for the adverse employment action was false, and that discrimination was the real reason. See Collins v. Charleston Place, LLC , No. 2:15-cv-4465-PMD-BM, 2017 WL 3167330, at *2 (D.S.C. July 26, 2017), aff'd , 720 Fed.Appx. 701 (4th Cir. 2018). “[The plaintiff] must prove both because ‘[i]t is not enough . . . to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'” See Id. (referencing St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993)) (emphasis in original).

Here, Plaintiff's discrimination claim is based on his assignments to the Component Paint Department. (Dkt. No. 74 at 8-16.) Plaintiff contends that working in the Component Paint Department constitutes adverse action because he performed less-desirable tasks while there. ( Id . at 8-9.) Specifically, Plaintiff argues that he was “made to perform some of the harshest work in Component, including janitorial duties” and sanding. ( Id . at 12.) He argues that his work assignments in the Component Paint Department were a significant decrease in responsibility from his duties in the Decorative Paint Department. ( Id . at 8-10.) He further contends that he was treated differently than his similarly situated Caucasian employees because “the groups sent to [the] Component

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Paint Shop would consist[] of either entirely African American painters, or majority African American painters.” ( Id . at 10-11.) Defendant, on the other hand, contends that Plaintiff's assignments in the Component Paint Department were not sufficiently adverse. (Dkt. No. 70 at 15-23; Dkt. No. 77 at 6-14.)

Because it is undisputed that Plaintiff is a member of a protected class and that he performed his job in a satisfactory manner at all times relevant to this case, the undersigned need not address those elements of Plaintiff's prima facie case of discrimination. For the reasons set forth below, the undersigned finds that Plaintiff cannot demonstrate that he experienced an adverse employment action and therefore recommends that the Court grant Defendant's Partial Motion for Summary Judgment as to this claim.

“[An] adverse employment action is ‘an absolute precondition' to an employment discrimination suit.” Batten v. Grand Strand Dermatology, LLC , No. 4:18-cv-0616-MGL-TER, 2019 WL 9667692, at *6 (D.S.C. Dec. 20, 2019) (quoting Bristow v. Daily Press, Inc. , 770 F.2d 1251, 1255 (4th Cir. 1985)). However, not every personnel decision constitutes an adverse employment action for purposes of a discrimination claim. Hemphill v. United Parcel Serv., Inc. , 975 F.Supp.2d 548, 570 (D.S.C. 2013); see also Thorn v. Sebelius , 766 F.Supp.2d 585, 599 (D. Md. 2011), aff'd , 465 Fed.Appx. 274 (4th Cir. 2012) (“[N]ot everything that makes an employee unhappy is actionable adverse action.”). Rather, an adverse employment action is explicitly limited to those actions that affect employment or alter the conditions of the workplace. Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 62 (2006).

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In other words, an alleged discriminatory act must “adversely affect[] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes, Inc. , 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation omitted). “Typical examples of adverse employment actions include ‘discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, [and] reduced opportunities for promotion.'” Cole v. Wake Cty. Bd. of Educ. , 494 F.Supp.3d 338, 345 (E.D. N.C. 2020), aff'd , 834 Fed.Appx. 820 (4th Cir. 2021), cert. denied sub nom. Cole v. Wake Cty. BD. of ED. , No. 20-1373, 2021 WL 2302100 (U.S. June 7, 2021) (quoting Boone v. Goldin , 178 F.3d 253, 255-56 (4th Cir. 1999)). Less severe employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization” in order to survive summary judgment. Blakney v. N. Carolina A&T State Univ. , No. 1:17-cv-874, 2019 WL 1284006, at *15 (M.D. N.C. Mar. 20, 2019) (referencing Boone , 178 F.3d at 256-57). Ultimately, an adverse employment action must have a “significant detrimental effect” on the employee in order to be cognizable. Laird v. Fairfax Cty., Va. , 978 F.3d 887, 893 (4th Cir. 2020) (quoting Holland , 487 F.3d at 219).

As noted, Plaintiff contends that African American employees were disproportionately assigned to work in the Component Paint Department and made to perform less-desirable duties while there. (Dkt. No. 74 at 11-12.) Plaintiff asserts that “Plaintiff's assignments to Component . . . were a significant change in his job responsibilities and promotional opportunities” because “African Americans, including Plaintiff[, ] were given janitorial duties” and required to sand more often than Caucasian employees. ( Id . at 9-11.) Plaintiff testified that he and other African American employees

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working in the Component Paint Department were made to pick up trash, sweep the floor, and scrape paint off the floor. (Dkt. No. 74-1 at 18-19.)

Plaintiff cites to deposition testimony from Kevin Austin and sworn affidavits from Ivory Jackson, Anthony Leonard, and Ira Hughes to support his contentions. (Dkt. No. 74 at 9.) The evidence to which Plaintiff cites reiterates that African American employees were required to clean up and to sand while working in the Component Paint Department. (Dkt. No. 74-2 at 3; Dkt. No. 74-3 at 3; Dkt. No. 74-4 at 2; Dkt. No. 74-5 at 3.)

However, even considering the evidence in the light most favorable to Plaintiff, he cannot show that his assignments to the Component Paint Department had a significant detrimental effect on his employment. At the outset, the undersigned notes that Plaintiff's assignments to the Component Paint Department were temporary. ( See generally Dkt. No. 70-2; Dkt. No. 70-3; Dkt. No. 70-4; Dkt. No. 70-5; Dkt. No. 70-20.) Indeed, the record reflects that Plaintiff volunteered for two longer-term assignments (lasting approximately three months) in the Component Paint Department as part of the Component Recovery Plan. (Dkt. No. 70-3 at 2.) Plaintiff testified that he was then sent to the Component Paint Department whenever the department needed extra help (about twice per week for six months to a year). (Dkt. No. 70-1 at 12.) Plaintiff does not argue that he was permanently reassigned to the Component Paint Department or that he worked there for an extended period of time. ( See generally Dkt. No. 74.) The temporary nature of Plaintiff's assignments to the Component Paint Department suggests that he cannot establish the third prong of his prima facie discrimination claim. See, e.g. ,

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Haggins v. Sam's E., Inc. , No. 3:13-cv-1596-MBS, 2015 WL 5781390, at *8 (D.S.C. Sept. 30, 2015) (“Temporary changes to assigned tasks or workload are not adverse employment actions.”); Taylor v. Burwell , No. PWG-13-1998, 2014 WL 3547337, at *6 (D. Md. July 16, 2014) (“Courts regularly have found that temporary changes to an employee's workload or to the tasks he is assigned do not constitute an adverse employment action”); Balinao v. Gonzales , No. 9:06-cv-0254-PMD-GCK, 2007 WL 5307975, at *8 (D.S.C. Aug. 16, 2007), aff'd sub nom. Balinao v. Mukasey , 270 Fed.Appx. 260 (4th Cir. 2008) (stating that “[a] temporary assignment of undesirable duties does not constitute an adverse employment action” (internal quotation marks and citation omitted)).

Further, the record does not reflect that Plaintiff's assignments to the Component Paint Department involved a significant change in his job responsibilities. For example, Plaintiff testified that workers in both departments had similar skillsets. (Dkt. No. 70-1 at 11.) In addition, the record reflects that workers in both departments were required to clean and sand. (Dkt. No. 70-2 at 2.) Indeed, Robert Jernigan stated in a sworn declaration that employees in the Decorative Paint Department performed many of the same functions as those in the Component Paint Department-including “sanding, masking, [and] demasking.” ( Id .) Mr. Jernigan also explained that:

All painters are required to participate in clean-as-you-go activities while they perform their work and at the end of each shift. The clean-as-you-go principles are outlined in Boeing's Foreign Object Debris/Damage (“FOD”) Prevention Policy, which sets standards for cleanliness of specific work areas to ensure that debris, and other trash does not become entrapped in the airplane, causing catastrophic damage and/or contamination of certain areas of the airplane. This policy requires painters to clean their immediate work areas and specifically instructs employees to use brooms and other tools to clean their immediate work

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spaces. Painters are also required to pick up their trash as part of this work process.

( Id . at 5.) Based on the above, Plaintiff would have been required to clean while working in both the Component Paint Department and the Decorative Paint Department. ( See generally id .) Thus, “janitorial duties” and sanding fall within the scope of Plaintiff's normal job duties. (Dkt. No. 77 at 10.) Even assuming that Plaintiff was required to do more cleaning and sanding while working in the Component Paint Department, he would not have experienced a significant change in his job responsibilities. See Vedula v. Azar , No. 8:18-cv-0386-TDC, 2020 WL 5500279, at *9 (D. Md. Sept. 11, 2020) (finding no adverse employment action where “additional” work assignments were “largely memorialized duties and responsibilities that were already required of employees in [plaintiff's] position”).

Moreover, Plaintiff's assignments to the Component Paint Department had no negative impact on his pay, his potential for continued employment, or his ability to be promoted. Blakney , 2019 WL 1284006, at *15 (referencing Boone , 178 F.3d at 256-57) (noting that adverse employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization”). Plaintiff himself confirmed that his pay, benefits, and job title did not change when he worked in the Component Paint Department. (Dkt. No. 70-1 at 15-16.) In fact, Defendant has provided evidence that Plaintiff sometimes earned more money working in the Component Paint Department. ( See generally Dkt. No. 70-18.) Defendant has also provided evidence showing that Plaintiff was regularly promoted and given

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raises throughout the time period at issue, negating any contention that Plaintiff's temporary assignments to the Component Paint Department stripped him of responsibility or limited his opportunity to advance. (Dkt. No. 77 at 9, citing to Dkt. No. 70-18.)

In sum, Plaintiff has failed to show that working in the Component Paint Department had any “significant detrimental effect” on his employment. Laird , 978 F.3d at 893 (quoting Holland , 487 F.3d at 219); see Wandji v. Wilkie , No. 2:18-cv-03036-RMG-MGB, 2020 WL 7647552, at *16 (D.S.C. Nov. 9, 2020), adopted , 2020 WL 7237922 (D.S.C. Dec. 9, 2020), aff'd sub nom. Wandji v. McDonough , 850 Fed.Appx. 851 (4th Cir. 2021) (noting that plaintiff's “temporary re-orientation” did not constitute a material job change because plaintiff continued to perform many of his previous duties, returned to those duties following his re-orientation, and the re-orientation did not result in a change to his job title or overall level of responsibility); see also Cole , 494 F.Supp.3d at 345 (“When analyzing a transfer or reassignment, the mere fact that a new job assignment is less appealing to the employee . . . does not constitute adverse employment action.” (internal quotation marks and citation omitted)); White v. City of Annapolis (MD) , No. CIV. JFM-13-1330, 2015 WL 5009853, at *16 (D. Md. Aug. 21, 2015), aff'd sub nom. White v. City of Annapolis, Md. , 639 Fed.Appx. 209 (4th Cir. 2016) (determining that plaintiff could not prove that his “degrading assignments” were adverse employment actions because he failed to show that they had a tangible effect on the terms and conditions of employment or that he suffered humiliation as a result); Grimsley v. Marshalls of MA, Inc. , 284 Fed.Appx. 604, 2008 WL 2435582, at *4 (11th Cir. 2008) (“Although Grimsley's workload sometimes increased and he was occasionally assigned additional tasks, these kinds of temporary assignments, without a change in compensation

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or position, do not amount to a serious and material change in the terms, conditions, or privileges of employment.” (internal quotation marks and citation omitted)).

Plaintiff's claim that his work in the Component Paint Department was an adverse action is further undermined by the fact that he volunteered to work there. (Dkt. No. 70-3 at 2; Dkt. No. 70-4 at 2.) Plaintiff contends that he only volunteered to work in the Component Paint Department under Robert Jernigan in December of 2017 for a special project, (Dkt. No. 74 at 10), and that he did not volunteer again “after his assignment under Eric Infinger in 2017” because Infinger made him “tak[e] out trash, sweep[], [and] scrap[e] paint off the floors . . . .” ( Id . at 3-4, citing to 74-1 at 11.) However, the record reflects that Plaintiff and his co-worker, Kevin Austin, requested to work in the Component Paint Department under Eric Infinger on at least one occasion in 2018. (Dkt. No. 70-3 at 2.)

This evidence not only undermines Plaintiff's claim that working in the Component Paint Department was so detrimental as to constitute an adverse employment action, but it also undermines Plaintiff's claim that Defendant relegated him to work in the Component Paint Department on account of race-based discrimination. (Dkt. No. 74 at 8-16.) Rather, this evidence suggests that Defendant assigned Plaintiff to work in the Component Paint Department because he requested to work there. (Dkt. No. 70-3 at 2; Dkt. No. 70-4 at 2.) Similarly, Plaintiff admitted that he was one of the most qualified employees to help out in the Component Paint Department because he was familiar with the Component Paint Department's “statement of work” after having worked there for several years. (Dkt. No. 70-1 at 15.) He conceded that this was “one of the reasons that [he] went over there to work.” ( Id .) Thus, Plaintiff's own testimony indicates that he was

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assigned to the Component Paint Department because he was especially qualified to work there, not because of his race. ( Id .)

Based on the above, Plaintiff has failed to set forth a prima facie case of race discrimination under § 1981, and the undersigned therefore recommends that Defendant's Partial Motion for Summary Judgment be granted as to this claim.

II. Retaliation

Plaintiff also brings a retaliation claim under § 1981. (Dkt. No. 40 at 6-7.) As noted, it is undisputed that Plaintiff has not presented direct evidence of retaliation in this case. Thus, the undersigned again analyzes Plaintiff's claims pursuant to the familiar McDonnell Douglas framework. See Perkins , 936 F.3d at 206 n.4 (referencing Foster v. Univ. of Maryland-E. Shore , 787 F.3d 243, 250 (4th Cir. 2015)); Parks v. Louisiana-Pac. Corp. , 400 F.Supp.3d 393, 412 (W.D. N.C. 2019), appeal dismissed , No. 19-2015, 2020 WL 1283635 (4th Cir. Feb. 20, 2020) (“Courts analyze race discrimination and retaliation claims filed under 42 U.S.C. § 1981 using the [ McDonnell Douglas ] burden-shifting framework.”)

Under this framework, the plaintiff must first make a prima facie showing of retaliation by proving that: (1) he engaged in a protected activity; (2) his employer took a materially adverse action against him; and (3) there was a causal link between the two events. Perkins , 936 F.3d at 213; Boyer-Liberto v. Fontainebleau Corp. , 786 F.3d 264, 281 (4th Cir. 2015) (“A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements [as a Title VII retaliation claim].”). Under § 1981, “an employee opposes race discrimination when she ‘communicates to her employer a belief that the employer has engaged in' such discrimination.” Ali , 832 Fed.Appx. at 172 (quoting Crawford v.

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Metro. Gov't of Nashville & Davidson Cnty., Tenn. , 555 U.S. 271, 276 (2009)). An employee is protected from retaliation for reporting both “employment actions actually unlawful under [§ 1981]” and “employment actions she reasonably believes to be unlawful.” Id . (quoting Boyer-Liberto , 786 F.3d at 282). “In line with other § 1981 claims, to state a § 1981 retaliation claim, a plaintiff must allege facts rendering it plausible that, but for her participation in protected activity, she would not have suffered a materially adverse action.” Id . at 172-73 (citing Guessous , 828 F.3d at 217- 18; Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media , 140 S.Ct. 1009, 1019 (2020)).

If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Marzett v. Charleston Cty. Sch. Dist. , No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *10 (D.S.C. Jan. 27, 2017), adopted , 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd , 697 Fed.Appx. 186 (4th Cir. 2017) (referencing Dowe v. Total Action Against Poverty in Roanoke Valley , 145 F.3d 653, 656 (4th Cir. 1998)). The plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id.

Here, Plaintiff alleges that “Defendant retaliated against [him] by practicing a continuing pattern of animus, harassment, and denial of opportunities and relocations” after he “informed Defendant of the racial harassment and mistreatment that [he] [] was exposed to.” (Dkt. No. 40 at 7.) Plaintiff contends that he complained about race-based discrimination and harassment, but his complaints were not properly addressed. (Dkt. No. 40 at 2; Dkt. No. 74 at 5.) Plaintiff further contends that he complained specifically about

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Mr. Infinger, and that Mr. Infinger knew about these complaints because he was present while Plaintiff was making his complaints to upper management. (Dkt. No. 74 at 17, citing to Dkt. No. 74-1 at 16-17.) Plaintiff argues that Mr. Infinger retaliated against him for making these complaints by assigning Plaintiff to work in the Component Paint Department where he performed less-desirable tasks than he would have in the Decorative Paint Department. ( Id .) In response, Defendant argues that “the same defects that plague Plaintiff's discrimination claim also prove fatal to his claim of retaliation.” (Dkt. No. 77 at 15.) Defendant asserts that Plaintiff therefore “lacks the requisite evidence needed to prove his claim.” ( Id .)

It appears undisputed that Plaintiff engaged in protected activity when he complained to upper management about Mr. Infinger's racially discriminatory and harassing behavior. ( See generally Dkt. No. 70; Dkt. No. 74; Dkt. No. 77.) Thus, the undersigned need not address the first element of Plaintiff's retaliation claim and limits the remaining discussion accordingly.

With respect to the second element of Plaintiff's retaliation claim, the undersigned notes that the “materially adverse action” standard differs from the “adverse employment action” standard required for discrimination claims. See Perkins , 936 F.3d at 213 (referencing Burlington , 548 U.S. at 61-68 for redefining the second prima facie element

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of Title VII retaliation); Boyer-Liberto , 786 F.3d at 281 (noting that the elements of a prima facie retaliation claim are the same under § 1981 as under Title VII). Indeed, a plaintiff need only show “that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'” See Id. (referencing Burlington , 548 U.S. at 68). The undersigned finds that Plaintiff's assignments to the Component Paint Department cannot be considered materially adverse for many of the same reasons that such assignments cannot be considered adverse employment actions. ( See supra at 11-15.) Most pertinently, Plaintiff's less-desirable assignments to the Component Paint Department were temporary and had no impact on his pay or job title. McLaughlin v. Barr , No. 1:19-cv-318, 2020 WL 869914, at *11 (M.D. N.C. Feb. 21, 2020) (finding that a temporary change in the plaintiff's job duties did not constitute a materially adverse action where plaintiff failed to allege any detrimental effect on her employment, other than the reassignment itself).

Even assuming that Plaintiff's assignments to the Component Paint Department could be considered materially adverse, Plaintiff cannot demonstrate a causal connection between those assignments and his protected complaints. As noted, Plaintiff must show that the decisionmaker responsible for an alleged retaliatory act had knowledge that he engaged in protected activity and retaliated against him because of that protected activity in order to establish a causal connection. See Ali , 832 Fed.Appx. at 172-73 (citing Guessous , 828 F.3d at 217-18; Comcast Corp. , 140 S.Ct. at 1019); see also Holland , 487 F.3d at 218. To make this showing, Plaintiff points to his personal deposition testimony stating that he was assigned to the Component Paint Department

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following each of his protected complaints about Mr. Infinger. (Dkt. No. 74 at 17, citing to Dkt. No. 74-1 at 23.) However, Plaintiff testified that he did not remember when he made any of his protected complaints against Mr. Infinger, (Dkt. No. 70-1 at 47; Dkt. No. 74-1 at 16-17), and he provides the Court with no evidence to support his claim that he was assigned to the Component Paint Department in retaliation for these complaints. ( See generally Dkt. No. 70-4.) Plaintiff does not direct the Court to any evidence (other than his own conclusory assertions) of temporal proximity between his complaints and his assignments to the Component Paint Department, nor does he provide other relevant evidence to suggest a causal connection. See Perry v. Kappos , 489 Fed.Appx. 637, 643 (4th Cir. 2012) (“Where the time between the events is too great to establish causation based solely on temporal proximity, a plaintiff must present ‘other relevant evidence . . . to establish causation.'” (quoting Lettieri v. Equant Inc. , 478 F.3d 640, 650 (4th Cir. 2007))). Without more, the undersigned cannot draw a reasonable inference that Mr. Infinger retaliated against Plaintiff by sending him to work in the Component Paint Department. See Nat'l Enterprises, Inc. v. Barnes , 201 F.3d 331, 335 (4th Cir. 2000) (finding “self-serving affidavit” insufficient to defeat motion for summary judgment); Mackey v. Shalala , 360 F.3d 463, 469-70 (4th Cir. 2004) (“A plaintiff's own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination.”); Wilson v. Wal-Mart, Inc. , No. 3:15-cv-1157-JFA, 2016 WL 3086929, at *3 (D.S.C. June 2, 2016) (“Uncorroborated and self-serving testimony cannot give rise to a genuine factual dispute.”).

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Moreover, the record reflects that Mr. Infinger was not the only manager involved in assigning Plaintiff to work in the Component Paint Department. (Dkt. No. 70-1 at 9- 10.) Rather, Robert Jernigan's sworn declaration states that he specifically requested that Plaintiff “be loaned to the Component Paint Shop [because he] was an ideal candidate to help in the Component Paint Shop because of his familiarity with the scope of work and his ability to complete the needed tasks with little-to-no instruction or supervision.” (Dkt. No. 70-2 at 4.) Mr. Jernigan's declaration also states that he was “solely responsible for the job duties assigned to each painter who worked during [his] shift.” ( Id .) This evidence undermines Plaintiff's contentions that Mr. Infinger loaned him to the Component Paint Department and assigned him less-desirable duties while there in retaliation for his protected complaints. ( Id .) Instead, Mr. Jernigan's declaration provides a legitimate, non-discriminatory reason that Mr. Infinger assigned Plaintiff to the Component Paint Department, which Plaintiff does not contest. ( See generally Dkt. No. 74.) As such, Plaintiff has failed to establish that he would not have been assigned to work in the Component Paint Department but for his protected activity. See Ali , 832 Fed.Appx. at 172- 73 (citing Guessous , 828 F.3d at 217-18; Comcast Corp. , 140 S.Ct. at 1019) (“[A] plaintiff must allege facts rendering it plausible that, but for her participation in protected activity, she would not have suffered a materially adverse action.”); see also Lambert , 2019 WL 8164782, at *4 (D.S.C. Aug. 19, 2019), (referencing Univ. of Tex. Sw. Med. Ctr. , 570 U.S. at 360, 362) (“A plaintiff must show that but for the protected activity, he would not have experienced the alleged adverse act.”).

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Based on the above, Plaintiff cannot set forth a prima facie case of retaliation. The undersigned therefore recommends that Defendant's Partial Motion for Summary Judgement be granted as to this claim.

CONCLUSION

For the foregoing reasons, the undersigned recommends that the Court grant Defendant's Partial Motion for Summary Judgment. (Dkt. No. 70.)

IT IS SO RECOMMENDED.

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Notes:

The original complaint also included a claim for workers' compensation retaliation on behalf of Plaintiff Austin. (Dkt. No. 2 at 11.)

In his Second Amended Complaint, Plaintiff contends that his assignments to the Component Paint Department were discriminatory partly because of the “dirty and hazardous” conditions of the building in which he was required to work. (Dkt. No. 40 at 2.) However, Plaintiff does not make this contention anywhere in his response brief. ( See generally Dkt. No. 74.) The undersigned must therefore assume that Plaintiff has abandoned this argument. See Jones v. Family Health Ctr., Inc. , 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in opposition memorandum had been abandoned). The undersigned limits the discussion of Plaintiff's race discrimination claim accordingly.

The affidavits from Ivory Jackson, Anthony Leonard, and Ira Hughes state that African American employees were asked to clean up after Caucasian employees specifically. (Dkt. No. 74-3 at 3; Dkt. No. 74-4 at 2; Dkt. No. 74-5 at 3.)

For this reason, the undersigned finds Plaintiff's argument that his work in the Component Paint Department was “especially onerous or humiliating” unpersuasive. (Dkt. No. 74 at 11.) Indeed, the “onerous and humiliating” tasks about which he complains were part of his job in the Decorative Paint Department, as well. ( See generally Dkt. No. 70-2.)

As Defendant correctly notes in its reply to Plaintiff's response in opposition, Plaintiff does not respond to certain arguments Defendant sets forth in its Partial Motion for Summary Judgment, including that “[t]here is no causal connection between Plaintiff's complaint about [David] Lakes and [David] Lakes' placement in a Team Lead position.” ( See generally Dkt. No. 70; Dkt. No. 74.) The undersigned therefore assumes that Plaintiff has abandoned the claims to which he has failed to respond. See Jones v. Family Health Ctr., Inc. , 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in opposition memorandum had been abandoned). Even if the Court were to find that Plaintiff did not abandon his claim that Defendant retaliated against him by promoting David Lakes to Team Lead shortly after Plaintiff made a complaint against him, this claim would fail nevertheless. The record makes clear that Team Leads were selected by Plaintiff and his co-workers through a voting process, not by Defendant's upper management. ( See generally Dkt. No. 70-15; Dkt. No. 70-16; Dkt. No. 70-17.) Thus, Defendant could not have promoted Mr. Lakes to Team Lead in retaliation for Plaintiff's protected complaints.

In fact, the record contains no evidence of Plaintiff's protected complaints about Mr. Infinger, other than his personal deposition testimony. (Dkt. No. 74-1 at 16.)

As noted, Plaintiff admitted that he was particularly qualified to work in the Component Paint Department. (Dkt. No. 70-1 at 15.)

Accordingly, Plaintiff has one remaining cause of action against Defendant: hostile work environment in violation of 42 U.S.C. § 1981. (See generally Dkt. No. 40.)

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