Justin Brown v. Sherry Bratton ( 2022 )

USCA4 Appeal: 21-1998 Doc: 40 Filed: 11/30/2022 Pg: 1 of 27
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1998
JUSTIN BROWN,
Plaintiff - Appellant,
v.
SHERRY BRATTON; CHARLES COPPER; JAMES EASTLAND; BRYAN
NORTH; COUNTY COMMISSIONERS OF CAROLINE COUNTY,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Baltimore. J.
Mark Coulson, Magistrate Judge. (1:19-cv-01450-JCM)
Argued: September 14, 2022 Decided: November 30, 2022
Before KING, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ashton Zylstra, HANSEL LAW, P.C., Baltimore, Maryland, for Appellant.
Jason L. Levine, LOCAL GOVERNMENT INSURANCE TRUST, Hanover, Maryland,
for Appellees. ON BRIEF: Cary Johnson Hansel, III, HANSEL LAW, P.C., Baltimore,
Maryland, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Justin Brown (“Appellant”), who is Black, alleges his former employer, County
Commissioners of Caroline County, Maryland (the “County”), and his immediate
supervisor, James Eastland (“Eastland”) (collectively “Appellees”), subjected him to
various acts of discrimination, harassment, retaliation, and unequal treatment during his
employment. 1 The district court granted summary judgment to Appellees on all of
Appellant’s employment claims. Appellant argues the district court erred in concluding
Appellees’ actions did not create a racially hostile work environment and that Appellant
did not sufficiently establish his equal protection claims.
For the reasons set forth below, we hold that the district court correctly concluded
Appellant failed to demonstrate evidence of an equal protection violation or provide
admissible evidence of a racially hostile work environment for which liability may be
imputed to his employer. Therefore, we affirm the district court’s order granting summary
judgment to Appellees.
I.
A.
Appellant was hired by the County’s Department of Public Works as a Level I Motor
Equipment Operator (“MEO I”) on January 3, 2014. As an MEO I, Appellant was
responsible for various tasks, including cutting grass, digging holes, and picking up debris.
1
Appellant’s employment terminated due to unrelated medical issues and had no
relation to the claims made in this case.
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Appellant was one of approximately eight employees assigned to work in the “South
Crew,” which handles issues arising in the southern portion of Caroline County. Appellant
was one of two Black employees assigned to the South Crew. At the time Appellant was
hired, Eastland directly supervised all members of the South Crew. Eastland, in turn, was
supervised by Bryan North (“North”), the Road Superintendent. Eastland and North are
both white males. Shortly after Appellant was hired, Charles Copper (“Copper”), who is
Black, became head of the Department of Public Works.
Appellant did not report -- nor does he complain of -- any discriminatory acts or
hostile conditions during his first year of employment in 2014. Appellant’s allegations of
racial discrimination and a hostile work environment relate to incidents occurring between
2015 and 2017.
In October 2015, Appellant sought promotion to both the Level II Motor Equipment
Operator (“MEO”) II and Level III Motor Equipment Operator (“MEO III”) positions. In
addition to Appellant, two white individuals applied for the MEO III position: Richard
Kinnamon (“Kinnamon”) and Eric Thrift. The MEO III position required a Maryland Class
“A” commercial driver’s license (“CDL”) and two years of experience at the MEO II level.
At the time, neither Appellant nor Kinnamon was fully qualified for promotion to MEO
III. Appellant possessed a Class “A” CDL; however, he did not have two years of
experience as an MEO II. And while Kinnamon did not possess a Class “A” CDL, he had
13 years of experience with the County. Ultimately Kinnamon was promoted to the MEO
III position and given six months to obtain his CDL. Copper, who made the hiring decision
in consultation with North, explained during his deposition that “[s]eniority made the
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difference. Color of the skin had nothing to do with the decision we made. It was
seniority.” J.A. 583. 2 On October 7, 2015, Appellant was promoted to MEO II. Eastland
remained his immediate supervisor.
Beginning in 2015, Appellant complained to North that he was not being provided
the same overtime opportunities offered to other County employees. According to
Appellant’s deposition testimony, “MEO Is never really got called [for overtime]. It was
mainly MEO IIs and MEO IIIs and crew leaders.” J.A. 99. Appellant also stated that
overtime “depend[ed] on where you lived” and the employee’s availability when needed.
Id. Because overtime work typically required employees to clear potentially dangerous or
harmful situations, such as a downed tree, it was the County’s policy to call the closest
employee so that such conditions could be cleared before someone was injured. Copper
testified, “As far as overtime was concerned, it really depended on how close you lived to
work because when we had an emergency[,] we had to get people in as soon as we could.”
Id. at 579–80.
After Appellant complained about the lack of overtime, North raised the issue with
Eastland. In response, Eastland claimed that he had previously called Appellant with
overtime opportunities, but Appellant did not answer. For his part, Appellant maintained
that Eastland had never called him for overtime and offered to provide North with his phone
records. North testified that Appellant did show him “a piece of paper, a single sheet of
paper, with a list of phone numbers down the middle of it . . .. That’s all it showed.” J.A.
2
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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491. Eastland’s number did not appear on the list. To rebut Appellant’s version of events,
Eastland showed North his phone. North testified that, on viewing Eastland’s phone, he
observed at least two instances where Eastland’s phone “had [Appellant’s] number”
demonstrating Eastland “called, [or] tried to call” Appellant. Id. at 492. North did not
recall the length of the calls or whether Eastland left a voicemail. However, he “believe[d]”
the calls were placed “after normal work hours.” Id. at 493. North testified he then directed
Eastland to “please try to call [Appellant] when you can, to use him.” Id. at 494.
B.
On March 9, 2016, County employees Christopher Peach (“Peach”) and Dean
Davidson (“Davidson”) engaged in a conversation, with Appellant standing approximately
15 feet away. Appellant could not hear the conversation, but portions of this exchange
were later relayed to him by Davidson. Appellant testified that Peach, in speaking to
Davidson, said something to the effect of “if my daughter ever dated an African American,
a n***** . . . [I] would kill him.” J.A. 92. On March 10, 2016, Appellant reported this
incident to North. Appellant informed North that Peach’s comment made him
uncomfortable. Although North asked what Appellant had done to provoke Peach, North
advised Appellant he would talk with Peach, nonetheless.
North ultimately reported the March 9, 2016 comment to Copper, who questioned
Peach about the incident. Copper testified that Peach “confirmed that he made the
comments, but [contended that] he wasn’t talking to [Appellant]”; rather, he was having “a
general conversation” with “a couple other guys in his crew.” J.A. 559. Copper advised
Peach that such behavior would “not be tolerated in the Public Works Department or in
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Caroline County.” Id. at 563. Copper testified he “gave [Peach] an oral reprimand” and
“told him nope, I’m not going to tolerate it, and if you do say it again, you will be
punished.” Id.
Eastland further testified that, on a separate occasion, Peach came into the shop
“looking for [Eastland] because something had happened . . . and [Peach] was very upset
and he used the N word when he was just telling [Eastland] what had happened.” J.A. 330.
On this occasion, Peach was referring specifically to Appellant. For his part, Peach
testified that he did not recall “what word [he] used,” but that “if they said it, [he] must
have used it.” Id. at 769. Appellant was not present when Peach made this comment, and
the record is unclear as to when Appellant learned of this statement. Appellant testified
during his deposition that he “hardly worked with Peach” and did not detect any hostility
from Peach. Id. at 94.
Additionally, according to Appellant’s deposition testimony, on September 29,
2016, Eastland said he “was having a bad day and didn’t want to be around black people.”
J.A. 133–34. Although Appellant initially asserted he overheard this comment, he later
confirmed that he had not, in fact, heard the comment directly. Rather, the comment had
been relayed to him by Davidson. Appellant testified it was his understanding that after
Eastland made this comment, Eastland sent him “alone . . . to cut tree branches and unclog
a ditch in the rain in an area with exposed electrical wires.” Id. at 133. Eastland clarified
that he sent Appellant to look for problem spots and report any such problems. Appellant’s
answers to written discovery concede that he was not working alone. Instead, “Initially
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[Appellant] was working with Mr. Kinnamon who left early and Mr. Davidson was
ultimately relocated [to assist Appellant] hours later.” Id. at 800.
Appellant also points to a second occasion -- on an unidentified date in 2017 wherein
Appellant allegedly overheard Eastland make this same comment again. Appellant
testified that, when walking past Eastland and Peach, he heard Eastland say, “I do not want
to be around black people.” J.A. 166–67. Yet Appellant never identified this second
utterance in his discovery responses, nor did he report this comment to anyone.
C.
On December 22, 2016, Appellant contacted the County’s Director of Human
Resources, Sherry Bratton (“Bratton”), to request a meeting. On December 28, 2016,
Bratton met with Appellant, Copper, and North. During this meeting, Appellant described
having “communication issues” with Eastland, explaining that Eastland made Appellant
work alone and failed to provide Appellant with adequate instructions for completing tasks.
Appellant did not mention Eastland’s September 29, 2016 remark, being asked or required
to perform dangerous or unsafe tasks, or being denied overtime opportunities. Instead,
Appellant simply “reported that he got his assignments last from Mr. Eastland and that Mr.
Eastland didn’t like him.” J.A. 881. When Bratton spoke with Eastland about Appellant’s
complaints, Eastland stated he had also perceived communication issues with Appellant
and described several occasions where Appellant either ignored what Eastland was saying,
became combative when asked to do something, or refused to acknowledge Eastland
altogether.
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In the aftermath of this meeting, beginning in January 2017, Human Resources
instituted regular Friday meetings for Appellant, North, and Eastland in order to provide
Appellant with the opportunity to discuss his concerns. Additionally, Eastland committed
to providing Appellant with his work assignments first in the morning. However, Eastland
testified that this arrangement “didn’t end up working out” because Appellant “wasn’t
always the first one in the room and it just really didn’t make sense to necessarily wait
around for him” when others were already “there waiting for their assignment.” J.A. 369.
Therefore, this arrangement was discontinued after approximately one month.
However, the Friday meetings between Appellant, Eastland, and North continued.
Monitoring the situation, Bratton held a meeting with Appellant. According to Bratton’s
testimony, when she asked for possible solutions to form a better working relationship
between Appellant and Eastland, Appellant informed her, “the only way the working
relationship would get better is if [Appellant’s] skin color would change.” J.A. 881–82,
925.
D.
Appellant also complains of a number of alleged unsafe work conditions.
According to Appellant, on January 25, 2017, Eastland assigned him to operate a new
grader for the purpose of scraping roads. Appellant informed Eastland of two areas where
he observed bulging in the tires of the grader. In response, Eastland informed Appellant
that County mechanic Richard Breeding (“Breeding”) had inspected the grader and advised
that the grader was safe to operate. Appellant testified that he “knew this was unsafe from
his training” but was instructed to take the grader and start scraping roads. J.A. 169–70.
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Within approximately 25 minutes, and before Appellant could begin scraping, Copper
contacted Appellant and directed him to return with the grader. When Appellant returned
to the facility, he was confronted by North who claimed Eastland had instructed Appellant
to remain in the facility. Appellant informed North he left the facility at Eastland’s
direction. However, North informed Appellant that, as an operator, Appellant should have
known better than to leave with the equipment in its current state.
Per Appellant, a similar series of events occurred on August 16, 2017, when
Appellant observed a small puncture in one of the tires of the grader. Eastland again
advised Appellant that Breeding had inspected the grader, but shortly after leaving the
facility, Appellant was contacted by Copper, who directed Appellant to bring the grader
back because it was unsafe to operate. Appellant returned, and the tire was replaced.
On February 24, 2017, Eastland directed Appellant to remove a plow from one of
the graders. As a matter of safety, County employees do not perform this task alone. For
this reason, Eastland advised Appellant that he would assist him. After waiting
approximately two hours, Appellant radioed Eastland, who confirmed he was on his way
to assist Appellant. But, instead of waiting for Eastland to arrive, Appellant removed the
plow with the assistance of another individual.
On October 17, 2017, Eastland directed Appellant to change the grader blades. This
task is ordinarily completed by two people and is regarded as a mechanic’s job. However,
Appellant did not request assistance and began to perform the job alone. Another employee
observed him and stopped to assist. Appellant concedes he was not told to complete this
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task alone. Rather, he testified, “[w]ho else is going to do it? If [Eastland] tells me to do
it, who else is going to do it?” J.A. 188.
E.
On May 16, 2019, Appellant filed a complaint alleging 15 causes of action including
claims against the County and against Bratton, Copper, Eastland, and North in their
personal and official capacities. On February 21, 2020, the district court dismissed all
claims against Bratton, North, and Copper leaving only the following claims: (1) hostile
work environment pursuant to 42 U.S.C. § 1981, as to Eastland in his personal capacity;
(2) racially hostile work environment pursuant to 42 U.S.C. § 2000e et seq. (“Title VII”),
as to the County; (3) race discrimination -- only on the theory of alleged failure to promote
-- pursuant to Title VII, as to the County; (4) equal protection violation pursuant to 42
U.S.C. § 1983 and the Maryland Declaration of Rights (“MDR”), as to all Appellees; and
(5) hostile work environment pursuant to the Maryland Fair Employment Practices Act
(“MFEPA”), as to the County.
On January 20, 2021, Appellees moved for summary judgment on the remaining
claims. Appellees argued that Appellant failed to generate evidence of a racially hostile
work environment, Appellant’s non-promotion claim was time barred and had no
substantive merit, and Appellant failed to establish an equal protection claim. On August
10, 2021, the district court granted summary judgment on Appellant’s remaining claims.
In granting summary judgment on Appellant’s hostile work environment claims, the
district court found insufficient admissible evidence to demonstrate severe or pervasive
harassment based, in part, on the temporal remoteness of the racially charged remarks. The
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district court further held there was no basis for imputing liability to the County. Because
the same analysis governs both Appellant’s hostile work environment claims and
Appellant’s equal protection claims pursuant to federal and state law, the district court
granted summary judgment on the same basis. Moreover, in granting summary judgment
on Appellant’s failure to promote claim, the district court held -- and Appellant
acknowledged -- the matter was time barred.
Appellant filed a timely notice of appeal. 3
II.
We review a district court’s grant or denial of summary judgment de novo,
considering the evidence and viewing all reasonable inferences in the light most favorable
to the nonmoving party. Cowgill v. First Data Techs., Inc., 41 F.4th 370, 378 (4th Cir.
2022). We review the district court’s determination regarding admissibility of evidence,
for purposes of summary judgment, for abuse of discretion. See Nader v. Blair, 549 F.3d
953, 963 (4th Cir. 2008).
III.
A.
We begin our analysis with Appellant’s hostile work environment claims.
Appellant’s hostile work environment claims pursuant to 42 U.S.C. § 1981 and the MFEPA
are governed by the same analytical framework employed in Title VII hostile work
3
Appellant does not challenge the district court’s grant of summary judgment on
his failure to promote claim pursuant to Title VII.
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environment claims. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th
Cir. 2015) (en banc) (“The same test applies to a hostile work environment claim asserted
under 42 U.S.C. § 1981” as applied to a Title VII racially hostile work environment claim.);
Arsham v. Mayor of Baltimore, 85 F. Supp. 3d 841, 849 (D. Md. 2015) (“Because the
[MFEPA] is the state law analogue of Title VII, interpretation of [plaintiff’s] claim under
[MFEPA] is guided by federal cases interpreting Title VII.”).
To survive summary judgment on his hostile work environment claims pursuant to
Title VII, 42 U.S.C. § 1981 and the MFEPA Appellant “must show that there is (1)
unwelcome conduct; (2) that is based on [his] . . . race; (3) which is sufficiently severe or
pervasive to alter [his] conditions of employment and to create an abusive work
environment; and (4) which is imputable to the employer.” Boyer-Liberto, 786 F.3d at 277
(quoting Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)).
1.
As to the unwelcome conduct element, we agree with the district court that
Appellant easily satisfied his burden based on multiple instances where Appellant voiced
objection to the conduct he experienced. See Strothers v. City of Laurel, 895 F.3d 317,
328–29 (4th Cir. 2018) (“As this Court has repeatedly held, an employee can demonstrate
that certain conduct is unwelcome simply by voicing [his] objection to the alleged harasser
or to the employer.”).
The record demonstrates that on March 10, 2016, Appellant complained that
Peach’s comment(s) made him uncomfortable. Additionally, in December 2016, Appellant
requested a meeting with Human Resources. During the meeting, Appellant reported
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receiving his assignments last and that Eastland did not like him. Appellant subsequently
informed Bratton, the Director of Human Resources, that the only way his working
relationship with Eastland “would get better is if [Appellant’s] skin color would change.”
J.A. 881–82.
Given this evidence, the district court did not err in concluding Appellant adequately
demonstrated unwelcome conduct in the workplace.
2.
We turn next to an analysis of whether the unwelcome conduct was “because of”
Appellant’s race. 42 U.S.C. § 2000e-2(a)(1). An employee is harassed or otherwise
discriminated against because of his race if, “but for” the employee’s race, he would not
have faced such conduct. Smith v. First Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir.
2002). Thus, to survive summary judgment, Appellant must adduce sufficient evidence to
demonstrate “that the harassing conduct was motivated by [racial] animosity.” EEOC v.
Sunbelt Rentals, Inc., 521 F.3d 306, 314 (4th Cir. 2008) (internal quotation marks omitted).
“[H]arassment due to personality conflicts will not suffice.” Ziskie v. Mineta, 547 F.3d
220, 226 (4th Cir. 2008).
The district court determined that, apart from the racially charged remarks made by
Peach and Eastland, Appellant failed to show the unwelcome conduct was based on his
race. Specifically, the district court found Appellant “failed to carry his burden in
establishing that, because of his race, [Appellant] (1) was not offered overtime
opportunities . . . ; (2) was not promoted to the MEO III position; (3) was forced to work
with unsafe equipment; (4) was directed to singlehandedly complete dangerous tasks
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ordinarily reserved for two people; and (5) received his work assignments last.” Brown v.
Bratton, No. 1:19-cv-01450-JMC, 2021 WL 3510578, at *7 (D. Md. Aug. 10, 2021)
(emphasis in original). We agree.
a.
While the parties dispute whether Eastland ever called Appellant with an
opportunity to work overtime, the record is void of any evidence suggesting Appellant was
denied this opportunity because of his race. Although Appellant did complain to North
that he was not receiving overtime opportunities, Appellant never indicated this denial was
because of his race. Additionally, after Appellant complained to North about the lack of
overtime opportunities, the situation was addressed. Specifically, North instructed
Eastland to “try to call [Appellant] when you can, to use him.” J.A. 494. Even viewing
the record in the light most favorable to Appellant, nothing apart from Appellant’s opinions
suggest Eastland refused to contact Appellant for overtime because of race. See 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.”).
To the contrary, both Appellant and Eastland identify the County’s policy as
instructive on when and to whom overtime opportunities will be offered. Appellant
concedes in his deposition, “MEO Is never really got called [for overtime]. It was mainly
MEO IIs and MEO IIIs and crew leaders.” J.A. 99. Additionally, Copper explained, “As
far as overtime was concerned, it really depended on how close you lived to work because
when we had an emergency[,] we had to get people in as soon as we could.” Id. at 579–
80.
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b.
As to Appellant’s claim that he was denied promotion to MEO III, neither Appellant
nor Kinnamon was wholly qualified for this position. The MEO III position required a
CDL and two years of experience at the MEO II level. Kinnamon had 13 years of
experience with the County. And while Kinnamon did not have the required Class A CDL,
he could -- and did -- obtain this licensure within six months of promotion. As for
Appellant, although he did have a CDL, he applied for both the MEO II and MEO III
positions in October 2015. Therefore, he could not have had the requisite years of
experience in the MEO II position to achieve MEO III status. While Appellant argued
other County employees had been promoted directly from an MEO I position to MEO III
or higher, the record is undeveloped on this point. Without identifying specific instances
and providing comparative evidence, such as the date of promotion, qualifications of the
applicants at the time of promotion, or job description at the time of promotion, this
assertion lacks sufficient support. Moreover, in reaching the decision to promote
Kinnamon rather than Appellant, Copper testified “[s]eniority made the difference. Color
of the skin had nothing to do with the decision we made.” J.A. 583.
c.
The record compels the conclusion that Appellant was not required to work with
unsafe equipment because of his race. In fact, Appellant has not presented evidence
suggesting he was forced to work with unsafe equipment at all. Appellant reports he was
instructed to utilize the grader, which he claims was in an unsafe condition, on two
occasions. Both times, Breeding, the mechanic, had inspected the equipment for safety.
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Moreover, on each occasion, Appellant was called back to the facility shortly after leaving
and before he could begin utilizing the grader.
d.
Likewise, Appellant conceded that he was not instructed to complete a two-person
job alone. See J.A. 175–76 (Q: Eastland “didn’t say, for example, take the plow off and
do it yourself, correct?” A: “No. We don’t ever take plows off by ourselves.”). As to the
February 24, 2017 incident, Eastland informed Appellant he would come and assist him
with removing the snowplow. Appellant then confirmed, via radio, that Eastland intended
to provide assistance. But instead of waiting for Eastland’s assistance, Appellant chose to
undertake this task and received assistance from another employee. As to the October 17,
2017 incident, Appellant conceded that Eastland never directed him to change the blades
by himself. Rather, Eastland merely directed Appellant to change the blades, and
Appellant set out to complete this task on his own, never asking Eastland or anyone else
for assistance. See id. at 187–88 (Q: “[D]id Mr. Eastland direct you to change the grader
blade by yourself . . . or did he simply say change the grader blades? A: Change the grader
blades.”). And while Appellant was changing the grader blades, another employee stopped
and assisted.
e.
When Appellant complained during the Human Resources meeting that Eastland
gave him his assignments last, he described the issue as one of “communication.” J.A.
157. Following the meeting, Copper directed Eastland to provide daily assignments to
Appellant first. But Eastland testified that this practice lasted only a month as Appellant
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was not always the first to arrive and “it just really didn’t make sense to necessarily wait
around for him to come in when there was [sic] people already there waiting for their
assignment.” Id. at 369. During oral argument, Appellant argued that providing him with
work assignments first was also discriminatory because he was allegedly being segregated
based on his race. However, Appellant conceded that there is nothing in the record
supporting -- or even making -- this assertion. Oral Argument at 2:36–45, Brown v.
Bratton, No. 21-1998 (4th Cir. Sept. 14, 2022), http://www.ca4.uscourts.gov/oral-
argument/listen-to-oral-arguments (hereinafter “Oral Argument”).
f.
With respect to Eastland’s conduct, as outlined in detail above, the district court
properly concluded that Appellant failed to offer sufficient evidence demonstrating
unwelcome conduct “because of” his race. Although Appellant suggested to Bratton that
the only way his working relationship with Eastland “would get better is if [Appellant’s]
skin color would change,” Appellant himself attributed Eastland’s conduct to
“communication issues” and proffered no evidence that it was because of his race other
than his own conclusory allegations and subjective belief. J.A. 881–82.
Nevertheless, the district court properly determined that certain statements were
racially motivated. The district court concluded that Peach’s March 9, 2016 comment that
“if my daughter ever dated . . . a n*****, [I] would kill him”, J.A. 91, and Eastland’s
September 29, 2016 remark that he “didn’t want to be around black people,” id. at 133–34
constitute the sort of direct proof of discrimination necessary to satisfy the second element
of a hostile work environment claim for purposes of summary judgment. We agree.
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3.
“The third element of a hostile work environment claim requires that the offending
conduct be ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Strothers, 895 F.3d at 331
(quoting Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003)). The district
court concluded Appellant failed to clear this bar. The district court identified two
instances of unwelcome conduct based on Appellant’s race: (1) Peach’s March 9, 2016
comment; and (2) Eastland’s September 29, 2016 remark. As to Peach’s second use of the
N-word in a conversation with Eastland, the district court explained it did “not weigh
heavily in the hostile work environment analysis” because Appellant did not hear the
remark, and the record was unclear as to how or when Appellant learned about the remark
or what effect it had on his work environment. Brown, 2021 WL 3510578, at *9. The
district court did not identify, or evaluate the admissibility of, Eastland’s 2017 statement
that he “do[es] not want to be around black people.” J.A. 166–67. Ultimately, the district
court held only Peach’s March 9, 2016 comment was supported by admissible evidence.
a.
“While a party may support its position on summary judgment by citing to almost
any material in the record, the party’s reliance on that material may be defeated if ‘the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.’” Whittaker v. Morgan State Univ., 524 F. App’x. 58, 60 (4th Cir.
2013) (quoting Fed. R. Civ. P. 56(c)(2)). Therefore, we must evaluate the admissibility of
Appellant’s evidence and determine whether the district court abused its discretion.
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In his discovery responses, Appellant asserts he overheard Peach make the March
9, 2016 comment. However, Appellant testified during his deposition that he did not
actually hear the comment. See J.A. 123 (Appellant testifying, “I didn’t hear the comment,
no.”). Rather, Appellant learned of Peach’s comment from Davidson.
In reviewing the district court’s admissibility ruling for abuse of discretion, we
conclude the district court did not abuse its discretion in ruling that the March 9, 2016
comment was admissible. Pursuant to Federal Rule of Evidence 801(c), hearsay is a
statement “the declarant does not make while testifying at the current trial or hearing; and
a party offers in evidence to prove the truth of the matter asserted in the statement.” So
long as Appellant does not intend to offer Peach’s March 9, 2016 comment for the truth of
the matter asserted (i.e., to prove Peach would kill a Black man for dating his daughter),
the statement is being offered solely to demonstrate it was uttered at all. See United States
v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989) (“If the significance of a statement lies in
the fact that it was made, rather than in the veracity of the out-of-court declarant’s assertion,
the statement is not hearsay because it is not offered to prove the truth of the matter
asserted.” (internal quotation marks omitted)). Therefore, the district court was correct to
deem Peach’s March 9, 2016 comment admissible.
Next, we review the admissibility of Peach’s second use of the N-word. At that
time, Peach was upset with Appellant and, in describing to Eastland what had upset him,
Peach used the N-word to refer to Appellant. The district court did not determine the
admissibility of this statement; instead, it concluded the statement did not factor heavily
into its analysis of Appellant’s claim because Appellant did not personally hear it.
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However, Eastland confirmed during his deposition that Peach “came into the shop looking
for [Eastland] because something had happened where [Appellant] had angered [Peach]
and [Peach] came in and [Peach] was very upset and [Peach] used the N word when [Peach]
was telling [Eastland] what had happened.” J.A. 330. Additionally, Peach did not deny
making the comment but testified, “I don’t remember what word I used, but . . . if they said
it, I must have used it.” Id. at 769. If Peach testifies inconsistently at trial, this statement
is not hearsay and will be admissible. See Fed. R. Evid. 801(d)(1)(A) (providing that a
statement is not hearsay when “[t]he declarant testifies and is subject to cross-examination
about a prior statement, and the [prior] statement is inconsistent with the declarant’s
testimony and was given under penalty of perjury . . . in a deposition”). Moreover, this is
another instance where the statement may be offered to demonstrate it was uttered at all --
as opposed to being offered for the truth of the matter asserted. Therefore, we deem this
statement admissible.
As to the admissibility of Eastland’s September 29, 2016 remark that he “didn’t
want to be around black people,” J.A. 133–34, Appellant states in his discovery responses
that he heard Eastland make this remark. However, during his deposition, Appellant
clarified that he did not actually personally hear this remark. See id. at 136 (Q: “Based on
what you told me, is it fair to say that you did not hear that, that Mr. Davidson told you that
he heard that, correct? A: Correct.”). Unlike the March 9, 2016 comment, it is difficult to
discern how this statement would be introduced if not to demonstrate truth, i.e., that
Eastland “did not feel like being around any black people.” Id. 136. The district court held
this remark to be of little value “because the record contains no admissible evidence to
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support it.” Brown v. Bratton, No. 1:19-cv-01450-JMC, 2021 WL 3510578, at *9 (D. Md.
Aug. 10, 2021). Appellant offers no refutation as to Appellees’ contention that this
comment presents itself in the record only as double hearsay, nor does he offer a basis for
admissibility. Without more, we will not disturb the district court’s ruling as to
admissibility and hold the district court did not abuse its discretion in deeming this
statement inadmissible.
As to Eastland’s 2017 remark, the district court did not evaluate admissibility.
Appellant claims he “himself heard Eastland say that, which is obviously admissible.”
Appellant Reply Br. 15, n.2. However, simply overhearing a statement does demonstrate
admissibility. During oral argument, Appellant did not address admissibility as to this
specific remark. Rather, Appellant asserted generally that all statements were admissible,
either as non hearsay, as excited utterances, or for their effect on Appellant. On review,
we deem Eastland’s 2017 remark -- that he “do[es] not want to be around black people”,
J.A. 166–67, to be admissible non hearsay. See Fed. R. Evid. 801(d)(2)(A) (an opposing
party’s statement is not hearsay when it is “offered against an opposing party and was made
by the party in an individual or representative capacity”). Here, Eastland is a defendant and
former supervisor for the County. Thus, this statement was made in Eastland’s individual
or representative capacity and is being offered against he and the County. Id.In sum, the record supports three separate admissible statements, that is, the two
statements made by Peach and Eastland’s 2017 remark.
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b.
We next evaluate whether the three admissible statements we have identified are
sufficiently severe or pervasive to create a hostile work environment. As we have
previously explained, the severe or pervasive element “requires a showing that ‘the
environment would reasonably be perceived, and is perceived, as hostile or abusive.’”
Boyer-Liberto, 786 F.3d at 277 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). Thus, the third “element has both subjective and objective components.”
Ocheltree, 335 F.3d at 333. Appellant must demonstrate both components to thwart
summary judgment.
“[I]f the victim does not subjectively perceive the environment to be abusive, the
conduct has not actually altered the conditions of the victim’s employment, and there is no
Title VII violation.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993). Here,
Appellant demonstrates he subjectively perceived the work environment to be hostile and
abusive as he reported Peach’s March 9, 2016 comment to North the next day.
Turning to the objective component, Appellant has failed to demonstrate an
objectively severe or pervasive hostile or abusive work environment based on race.
Whether an environment is objectively hostile or abusive is “judged from the perspective
of a reasonable person in the plaintiff’s position.” Boyer-Liberto, 786 F.3d at 277. In
determining “whether harassment is objectively abusive, courts must examine the totality
of the circumstances.” Strothers, 895 F.3d at 331. To assist in determining if conduct was
objectively severe or pervasive, we consider “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
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utterance; and whether it unreasonably interferes with an employee’s work performance.”
Harris, 510 U.S. at 23. The bar for demonstrating conduct was objectively severe or
pervasive is a high one. See Perkins v. Int’l Paper Co., 936 F.3d 196, 208 (4th Cir. 2019)
(“[R]ude treatment by [coworkers], callous behavior by [one’s] superiors, or a routine
difference of opinion and personality conflict with [one’s] supervisor, are not actionable
under Title VII.” (quoting EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315–16 (4th Cir.
2008) (alterations in original)).
As to frequency, over the course of nearly five years working for the County,
Appellant points to three admissible statements constituting unwelcome conduct based on
race: (1) Peach’s March 9, 2016 comment; (2) Peach’s second separate use of the N-word;
and (3) Eastland’s 2017 statement. See Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745,
753–54 (4th Cir. 1996) (noting that a few discriminatory incidents occurring
“intermittently over a seven-year period, with gaps between incidents as great as a year . .
. suggests the absence of a condition sufficiently pervasive to establish Title VII liability”),
abrogated on other grounds by Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
In evaluating severity, we look to the language utilized. On two occasions Peach
utilized the N-word, which we have expressly held “is pure anathema to African-
Americans.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001). “Perhaps
no single act can more quickly alter the conditions of employment and create an abusive
working environment than the use of an unambiguously racial epithet . . . by a supervisor
in the presence of his subordinates.” Id. (quoting Rodgers v. Western-Southern Life Ins.
Co., 12 F.3d 668, 675 (7th Cir. 1993)). We acknowledged even “an isolated incident of
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harassment can amount to discriminatory changes in the terms and conditions of
employment, if that incident is extremely serious.” Boyer-Liberto, 786 F.3d at 277
(internal quotation marks omitted). However, we have also recognized that “a single act
of harassment may not be actionable on its own.” Id. And the “mere utterance of an . . .
epithet which engenders offensive feelings in an employee[] does not sufficiently affect
the conditions of employment to implicate Title VII.” Id. (quoting Harris, 510 U.S. at 21).
Appellant relies on our decision in Boyer-Liberto v. Fontainebleau Corp., 786 F.3d
264 (4th Cir. 2015) in attempt to support his allegation that the unwelcome conduct was
severe or pervasive. In Boyer-Liberto, we held a supervisor’s two uses of racially charged
language, made to the plaintiff’s face, and accompanied by a threat to fire her, were
sufficient to support the severe or pervasive element. Id. at 268. In contrast, here, none of
the three comments were made directly to Appellant. Indeed, Appellant confirmed he did
not hear Peach, a co-worker and not a supervisor, make either of the offensive comments.
And Appellant does not suggest Peach’s March 9, 2016 comment, or Eastland’s 2017
comment, was made about or otherwise directed at him.
While the racially disparaging statements made by Peach and Eastland are
reprehensible and abhorrent, they were isolated and remote in time. See Faragher v. City
of Boca Raton, 524 U.S. 775, 787 n.1 (1998) (concluding that to be deemed objectively
pervasive, the “harassment must be more than episodic; [it] must be sufficiently continuous
and concerted”) (quotation marks omitted). Moreover, Appellant was not threatened with
the loss of his employment. And Appellant did not report Eastland’s 2017 remark or
otherwise adduce evidence to demonstrate this statement interfered with his work
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performance, despite continuing to work for the County for nearly two years following the
last incident of alleged harassment.
Therefore, we agree with the district court in holding that, in this case, the alleged
conduct was insufficiently severe or pervasive to create a hostile work environment.
4.
The fourth element of a hostile work environment claim requires a basis for
imputing liability to the employer. See Strothers, 895 F.3d at 332 (citing Boyer-Liberto,
786 F.3d at 278). Different standards exist for evaluating the conduct of a co-worker versus
a supervisor.
a.
An employer may be liable where the victim is harassed by a co-worker only when
the employer “knew or should have known about the harassment and failed to take effective
action to stop it.” Strothers, 895 F.3d at 333 (alteration in original) (quoting Vance v. Ball
State Univ., 570 U.S. 421, 424 (2013)). Effective corrective action means discipline that
is reasonably calculated to end the behavior. Here, the County took corrective action as to
Peach. Specifically, Copper verbally reprimanded Peach for using racially charged
language, stating that such behavior “will not be tolerated in the Public Works Department
or in Caroline County.” J.A. 563. And there is no evidence of Peach using the N-word --
or similar language -- following the reprimand. Oral Argument at 3:02–4:06 (The court:
“I thought the record indicated, tell me if I’m wrong, but once the [Appellant] complained
about [Peach’s comments] and the employer counseled Peach there was not repetition of
that.” A: “So, your honor, there isn’t anything in the record to show any further incidents
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past March 2016 specifically with those comments.”). See Pryor v. United Air Lines, Inc.,
791 F.3d 488, 499 (4th Cir. 2015) (recognizing that “the effectiveness of an employer’s
actions remains a factor in evaluating the reasonableness of the response”). Therefore, we
agree with the district court in holding the County responded with appropriate remedial
action reasonably calculated to end Peach’s conduct and that, in this context, liability may
not be imputed to the County for Peach’s comments.
b.
As to Eastland’s 2017 remark, we must look to the standard for imputing conduct
of a supervisor to the employer. Where “the harasser is a supervisor, then the employer
may be either strictly or vicariously liable for the supervisor’s actions.” Strothers, 895
F.3d at 333 (citing Vance, 570 U.S. at 431). However, where no adverse employment
action is taken, “a defending employer may raise an affirmative defense to liability . . .
subject to proof by a preponderance of the evidence. Faragher, 524 U.S. at 777–78. To
prevail, the employer must demonstrate: (1) “that the employer exercised reasonable care
to prevent and correct promptly any [racially] harassing behavior, and [(2)] that the plaintiff
employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer.” Id. at 778. The County has shown the exercise
of reasonable care to prevent and promptly correct harassment. As outlined above, upon
Appellant’s reporting, the County verbally reprimanded Peach causing the alleged
discriminatory comments to cease. Additionally, the record clearly demonstrates that
Appellant had the ability to report Eastland’s behavior -- as he previously reported their
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communication issues -- but failed to take advantage of this preventative or corrective
opportunity. Therefore, we conclude liability may not be imputed to the County.
B.
Appellant’s equal protection claims pursuant to § 1983 and the MDR are governed
by the Title VII analysis set forth above. See Beardsley v. Webb, 30 F.3d 524, 529 (4th
Cir. 1994) (citation omitted) (“Courts may apply the standards developed in Title VII
litigation to similar litigation under § 1983.”). Accordingly, because the district court did
not err in granting summary judgment on Appellant’s hostile work environment claims,
Appellant’s equal protection claims likewise fail.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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