Alford v. Martin & Gass, Inc. , 391 F. App'x 296 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1134
CHARLES ALFORD, III,
Plaintiff – Appellant,
v.
MARTIN & GASS, INCORPORATED; SAMUEL G. GASS; ANGLER
CONSTRUCTION COMPANY, L.L.C.,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:08-cv-00595-LMB-TRJ)
Argued: May 13, 2010 Decided: July 28, 2010
Before KING and DAVIS, Circuit Judges, and C. Arlen BEAM, Senior
Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Nicholas Woodfield, EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellant. Michael Joseph Pierce,
KASSIMER & ANNINO, PC, Falls Church, Virginia, for Appellees.
ON BRIEF: R. Scott Oswald, EMPLOYMENT LAW GROUP, PC, Washington,
D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Plaintiff Charles Alford, III, appeals from the district
court’s awards of summary judgment to Martin & Gass,
Incorporated (“M&G”), and Angler Construction Company, L.L.C.
(“Angler”), on Alford’s workplace discrimination and negligence
claims pursued under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”); the Civil Rights
Act of 1866, 42 U.S.C. § 1981 (“§ 1981”); and Virginia common
law. See Alford v. Martin & Gass, Inc., No. 1:08-cv-00595 (E.D.
Va. Feb. 25, 2009) (the “Opinion”). 1 More specifically, Alford,
who is African-American, alleges that M&G and Angler — acting as
his joint employers — subjected him to a racially hostile work
environment and retaliated against him following his complaints
about the harassment. Alford also maintains that Angler
negligently retained one of his harassers. As explained below,
we are constrained to affirm the district court.
I.
A.
In the mid- to late-1990s, Alford began working as an
equipment operator for M&G, a company based in Springfield,
1
The Opinion is found at J.A. 1720–51. (Citations herein
to “J.A. ____” refer to the Joint Appendix filed by the parties
in this appeal.)
2
Virginia, that performs heavy construction projects such as road
construction and utility installations. 2 After leaving M&G for a
short time, Alford rejoined the company as the foreman of a six-
member crew in 2004, but subsequently requested to step down as
foreman in early 2007. 3 Thereafter, he became the primary
operator of M&G’s only “crusher,” a machine that crushes rocks
and concrete to recycle those materials for use in road paving
and other projects. M&G sometimes utilized the crusher on its
own worksites, but more often leased it to other construction
companies. Whenever a company leased the crusher from M&G, an
M&G employee was required to report to the lessee’s worksite to
operate and maintain the machine. Because Alford was the
crusher’s primary operator, he frequently worked at the various
lessees’ worksites.
2
The facts spelled out herein are drawn from the summary
judgment record created in the district court. We recite these
facts in the light most favorable to Alford, as the nonmoving
party. See In re Peanut Crop Ins. Litig., 524 F.3d 458, 470
(4th Cir. 2008).
3
According to Alford, he left M&G in 2003 because of race-
based wage disparities but was persuaded to return to the
company in 2004. While subsequently serving as foreman, Alford
was subjected to racial harassment by a member of his crew.
Alford reported the harassment to M&G, which discharged Alford’s
harasser. Thereafter, other crew members — upset that their
coworker was terminated — also began harassing Alford. At that
point, in early 2007, Alford reported the further harassment and
requested to step down as foreman. Neither the alleged race-
based wage disparities nor harassment by fellow M&G employees
are the subject of the claims at issue in this appeal.
3
Between 2006 and 2008, M&G leased the crusher to Angler, an
excavating contractor based in Manassas, Virginia, which
regularly used the crusher at its Manassas materials recycling
yard. Accordingly, Alford often reported to the Angler
recycling yard to operate the crusher. While working at the
Angler yard, Alford was the only African-American worker there,
other than two Angler truck drivers who made brief stops at the
yard for loading several days a week and an M&G fuel truck
driver who was there for about thirty minutes each day to
service the crusher. Because he worked at the yard only on days
that Angler needed the crusher there, Alford sometimes spent
several days or weeks away from the yard working at other
locations, including another Angler worksite.
While working at the Angler recycling yard in late 2007 and
early 2008, Alford was subjected to a series of racist
incidents. According to Alford, various Angler employees —
including two individuals, Kenneth McDonald and Gordon Sutton,
whom he describes as his supervisors — “constantly made racial
jokes” in his presence. J.A. 823. More specifically, Alford
recounted the following incidents:
• McDonald “made comments about [Alford] such as
‘Black people like Dr. Pepper’”;
• Sutton “asked [Alford] on several occasions, ‘How
do you get into that Black skin?’”;
4
• Sutton once “used the word ‘nigger’ in
conversation with [Alford]”;
• In approximately December 2007, Sutton “tried to
scare [Alford] by running around with a white
cloth on his head with eyeholes cut out, as if he
were wearing a Ku Klux Klan hood”;
• In early 2008, when Alford attempted to instruct
an Angler worker on the use of an excavator
leased from M&G, “[t]he worker became angry and
deliberately swung a large rock around with the
machine in a threatening manner, nearly hitting
[Alford]”; and,
• On another occasion in 2008, “an Angler worker
attached a large Confederate flag to his green
SUV and glared at [Alford] as [the worker] slowly
drove by.”
Id. It is uncontested that Alford did not contemporaneously
report this conduct of McDonald, Sutton, or the other Angler
employees to any higher-level representatives of Angler or M&G,
including Jack Hazel, president of Angler, or Samuel Gass, owner
and president of M&G. Alford explained that, although he was
offended by the incidents, he “tolerated the insults and did not
report them because [he] needed the job.” Id. Nevertheless,
Alford also acknowledged that he was comfortable speaking — and
indeed had spoken — to both Hazel and Gass about workplace
issues, and that Hazel had provided his cell phone number to
Alford at Alford’s request.
On Friday, February 29, 2008, after having spent more than
a week operating the crusher at the other Angler worksite,
5
Alford reported to the recycling yard at about 12:35 p.m. to run
the crusher there. Approximately thirty minutes after his
arrival, Alford noticed a noose hanging from a piece of
equipment approximately five feet from where he normally parked
his truck and twenty feet from where the crusher was positioned.
Inside the noose was a piece of black drainage pipe protruding
from the hood of a black sweatshirt. Alford interpreted the
display as “a crudely-constructed [effigy depicting] a black man
with a hangman’s noose around his neck.” J.A. 823. About
twenty minutes after noticing the noosed effigy, Alford showed
it to Steve Hoffman, the African-American fuel truck driver for
M&G, who had just arrived at the Angler yard. Alford and
Hoffman agreed that the effigy was “‘not funny,’” and Hoffman
reiterated an earlier warning to Alford (first made shortly
after Alford began working at the Angler yard) that the Angler
employees “‘didn’t want [Alford] working around them.’” Id. at
319.
According to Alford, he next reported the noosed effigy to
McDonald and asked him to remove it. McDonald “seemed
unconcerned,” J.A. 823, and “said he was busy right then, [and
that he would] be out in a little bit,” id. at 321. McDonald
also asked Alford if the effigy offended him, and Alford
responded, “Of course.” Id. Alford then took photographs of
the effigy, unsuccessfully attempted to contact M&G’s Gass by
6
telephone without leaving a message, and completed his shift at
the Angler yard, working until about 4:00 p.m. McDonald had
removed the effigy about an hour after Alford reported it, and
sometime later (that day or the following Monday, March 3, 2008)
remarked to Alford, “I guess you’re going to have Al Sharpton
out here.” Id. at 321-22.
During the morning of Monday, March 3, Alford appeared at
M&G’s office, where he reported the noosed effigy to Gass and
showed him photographs of it. According to Alford, he “was
upset” and Gass “was very upset.” J.A. 324. Alford provided
Gass with the cell phone number for Angler’s Hazel, and Gass
called Hazel outside Alford’s presence. Gass then arranged for
Alford to meet Hazel at the Angler yard, where Alford waited in
a private area while Hazel investigated the noose incident. 4
Hazel’s investigation promptly revealed that three white
Angler employees — Ernest Lease, Jeffrey “Craig” Lease, and Gary
Wolfe — had erected the noosed effigy about a week prior to its
discovery by Alford. According to Hazel, the employees told him
4
Gass provided the only evidence that, during their
conversation that morning about the noose incident, Alford
reported prior incidents of racial harassment by Angler
employees. According to Gass, he asked Alford if there had been
prior incidents, and Alford responded “that there’d been a lot
of joking around going on” for months. J.A. 868. Gass then
asked why Alford had not reported such conduct, and Alford said
he “didn’t feel like there was anything to report” because “[w]e
were all joking around.” Id.
7
that “they had put [the noose] there purely because they were
just fooling around and didn’t use their head.” J.A. 392.
Notably, in January 2008, approximately six weeks before the
noose incident, Craig Lease was involved in a workplace physical
altercation with another white Angler employee; Lease and the
other employee each had been suspended for three days.
Immediately after speaking on March 3 with the three
employees responsible for the noosed effigy, Hazel assured
Alford that the employees were sorry for the noose incident and
that such conduct would not recur. At some point that day,
Ernest Lease apologized to Alford on behalf of the three
employees. According to Alford, he called Gass from the
recycling yard and said he was “‘going to work the rest of the
day and see how it goes.’” J.A. 327. Alford was satisfied with
Hazel’s response to the noose incident, as reflected by Alford’s
later acknowledgement that he did not “know if [Hazel] could
have done anything [more].” Id. Furthermore, according to
Gass, Alford related during their March 3 phone conversation
that “the situation was resolved to his satisfaction.” Id. at
372. Hazel also called Gass and assured him that the incident
was horseplay and that the three employees did not mean any harm
to Alford or anyone else. Gass did not inquire into the details
of what Hazel had done to address the situation but was
satisfied that the problem had been resolved, based on Hazel’s
8
and Alford’s representations. Gass also spoke with Hoffman, the
M&G fuel truck driver who serviced the crusher, who reported
experiencing no problems at the Angler yard.
Hazel directed Richard Athey, Angler’s safety officer, to
conduct “a follow-up investigation with the same individuals
. . . [t]o make sure that [Athey] had the same information that
[Hazel] had.” J.A. 396. According to Athey, the three
employees responsible for the noose incident told him they had
no racist intent and that the noose was not directed at Alford
or any other African-American worker. Craig Lease explained
that he had recently watched a movie involving a hangman’s noose
and that Wolfe was merely showing Ernest Lease and him how to
tie such a knot. Each of the three employees asserted that the
figure inside the noose was a horse or donkey that the employees
called “Pedro,” and was not intended to depict a hanged black
man. See id. at 1009. Athey thus concluded that the incident
was an inappropriate joke between the three employees and
nothing more. Notably, Athey made handwritten notes of his
interviews of the three employees, either during or immediately
after each interview, but claimed to have lost the notes within
the next week. Accordingly, Angler failed to produce Athey’s
interview notes to Alford in these proceedings. The record
contains, however, copies of written warning notices given by
Athey to the three employees on March 3. The notices state:
9
Employee was involved in an inappropriate joke. A
hangman’s noose was made & hung at the end of the wood
processor, which offended an employee from Martin &
Gass (Charlie ________) running a crusher in our yard.
All involved have apologized and assured Mr. Charlie
that this was not done directed at him or anyone and
that it would never happen again.
See id. at 401-03. The notices advise that “termination of
employee” would result “should incident occur again.” See id.
Nevertheless, according to Alford, after returning to work
in the recycling yard during the afternoon of March 3, he was
subjected to threatening behavior by Angler employees. More
specifically, an employee — apparently Wolfe — drove a loader
near Alford “in a threatening motion,” “[s]winging the machine
back and forth, like [it was] going to hit [Alford’s] truck.”
J.A. 328. Additionally, several employees “walked by and glared
at [Alford] angrily.” Id. at 824. Alford called Gass that
afternoon to report that he “was very uncomfortable in trying to
work [at the Angler yard]” and was planning to contact the
police. Id. at 328. According to Alford, Gass responded “that
he didn’t have anything else for [Alford] to do if [he] wasn’t
working [at the Angler recycling yard].” Id. 5 It is undisputed
5
Alford contends that Gass did not offer him any
alternative positions at M&G. Gass claims, however, that he
immediately inquired as to other available M&G positions for
which Alford would be suitable, and offered Alford a position as
a rubber tire loader operator at an M&G worksite — albeit at
$20.00 an hour, $7.30 less than Alford’s pay rate for operating
the crusher.
10
that Alford did not inform Gass or anyone else at M&G that
Angler employees had engaged in threatening behavior following
the investigation of the noose incident. Additionally, Alford
did not report any such threatening behavior to Hazel or Angler.
After leaving the Angler recycling yard on March 3, Alford
“was so stressed that [he] passed out twice before [he] got
home” and “almost had an accident.” J.A. 330. Alford “fe[lt]
that [he] was being punished because [he] reported [the noosed
effigy],” and he believed that he no longer had a job. Id. at
331. That evening, Alford filed a report with the Prince
William County Police Department. 6 The next day (Tuesday, March
4), Alford made an appointment to see a doctor. That morning,
Gass called Alford to ask whether he intended to return to work,
and Alford answered “no” and stated that he had a doctor’s
appointment. Id. at 332. Gass suggested that Alford use
vacation time for the remainder of the week to consider what he
wanted to do, and Alford agreed. Gass called again the
following Monday, March 10, and Alford advised that he was
6
The Prince William County Police Department investigated
the noose incident as a possible hate crime (and notified the
FBI of same), prompting Angler to call a meeting of all
recycling yard employees to explain the seriousness of the noose
incident and to direct cooperation with the authorities. There
is no evidence in the record, however, as to the results of the
police (or any FBI) investigation.
11
“still under doctor’s care.” Id. at 333. Alford has not worked
for M&G since that time.
B.
On June 6, 2008, Alford initiated this action in the
Eastern District of Virginia. On October 10, 2008, he filed a
second amended complaint — the operative complaint herein —
alleging that M&G and Angler had violated Title VII and § 1981
by subjecting him to a racially hostile work environment (the
“hostile work environment claim”) and by retaliating against him
after he complained about the harassment (the “retaliation
claim”). 7 Alford also alleged, under Virginia common law, that
Angler had negligently retained employee Craig Lease (the
“negligent retention claim”). Finally, Alford asserted several
claims under the Fair Labor Standards Act against M&G and Gass
(the “FLSA claims”).
On January 2, 2009, following extensive discovery, the
parties filed cross-motions for summary judgment. In relevant
part, M&G moved for summary judgment on some of the claims
against it, seeking relief on the hostile work environment and
7
In a separate count of the second amended complaint,
Alford also asserted that M&G and Angler had subjected him to
racial discrimination by failing to prevent or correct the
harassment. Because this claim alleges conduct identical to the
hostile work environment claim, we do not consider it as
constituting a separate cause of action.
12
retaliation claims, but not the FLSA claims; Angler moved for
summary judgment on all claims against it, i.e., the hostile
work environment, retaliation, and negligent retention claims;
and Alford sought summary judgment on his hostile work
environment and retaliation claims against M&G and Angler and
the negligent retention claim against Angler alone. On January
16, 2009, the district court conducted a hearing on the parties’
summary judgment motions and disposed of them from the bench,
granting M&G’s and Angler’s motions and denying Alford’s
motions. Thereafter, on February 25, 2009, the court issued its
written Opinion, further explaining the summary judgment
rulings. Alford has timely appealed, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291. 8
8
Notably, the district court’s January 16, 2009 summary
judgment rulings disposed of all claims against Angler, but not
M&G (which, along with Gass, yet faced the FLSA claims). On
February 2, 2009, in an effort to enable Alford to pursue an
immediate appeal, the district court granted the parties’ joint
request for certification that the judgment for M&G on the
hostile work environment and retaliation claims was final. See
Fed. R. Civ. P. 54(b) (“When an action presents more than one
claim for relief . . . , the court may direct entry of a final
judgment as to one or more, but fewer than all, claims . . .
only if the court expressly determines that there is no just
reason for delay.”). Normally, we would be obliged to review
the sufficiency of the Rule 54(b) certification to confirm the
existence of appellate jurisdiction. See, e.g., Culosi v.
Bullock, 596 F.3d 195, 203 (4th Cir. 2010) (dismissing appeal
pursued under Rule 54(b) where “district court failed to specify
any reasons for certifying [it]”). While this appeal was
pending, however, the remaining FLSA claims against M&G (and
Gass) were resolved — with Alford prevailing before a jury and
(Continued)
13
II.
We review de novo a district court’s award of summary
judgment, viewing the facts and inferences reasonably drawn
therefrom in the light most favorable to the nonmoving party.
See In re Peanut Crop Ins. Litig., 524 F.3d 458, 470 (4th Cir.
2008). Summary judgment is appropriate only if the record
reflects “that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
III.
On appeal, Alford contends that the district court erred in
awarding summary judgment to M&G and Angler on the hostile work
environment and retaliation claims, and to Angler on the
negligent retention claim. Alford also suggests that the court
erred in denying his summary judgment motions with respect to
the same claims. We assess the court’s rulings on these claims
in turn. 9
being awarded $23,587.20 in compensatory and liquidated damages
and $71,158.53 in costs and attorneys’ fees. In these
circumstances, we possess jurisdiction under § 1291 — without
any need for a proper Rule 54(b) certification — because there
is a final judgment as to each of Alford’s claims.
9
Prior to the deadline for filing a responsive appellate
brief, Angler’s lawyers moved in this Court — with the consent
(Continued)
14
A.
As for his hostile work environment claim, Alford seeks
relief for the noose incident perpetrated by co-workers Ernest
Lease, Craig Lease, and Wolfe, as well as for the pre-noose
incident conduct of alleged supervisors McDonald and Sutton.
Importantly, the elements of a hostile work environment claim
are the same under Title VII and § 1981. See Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001). The plaintiff
must establish, to avoid summary judgment for the employer, that
a reasonable jury could find harassment that was “(1) unwelcome;
(2) based on race; and (3) sufficiently severe or pervasive to
alter the conditions of employment and create an abusive
atmosphere.” Id. at 183. Additionally, “even if the record
supports the conclusion that a triable issue exists with regard
to each of these three elements, [the plaintiff] may not prevail
absent sufficient evidence of a fourth element: that there is
some basis for imposing liability on [the employer].” Id. at
184 (internal quotation marks omitted).
of Angler and the other parties — to withdraw as counsel due to
Angler’s nonpayment of outstanding attorneys’ fees. The motion
explained that Angler was insolvent after recently ceasing
operations and liquidating its assets, and intended to rely in
this appeal on the summary judgment papers and record from the
district court and any favorable portions of M&G’s appellate
brief. We granted the withdrawal motion by Order of August 19,
2009.
15
In granting summary judgment to M&G and Angler on the
hostile work environment claim, the district court assumed that
Alford had established the first three elements of such a claim
with respect to the noose incident, see Opinion 17-18 (accepting
that the noose incident, “by itself, could constitute severe and
pervasive conduct because of the deeply hurtful meaning of a
noose to African-Americans”), but not the pre-noose incident
conduct, see id. at 29 (deeming “[m]ost of the prior incidents,
while offensive, [to be] in the nature of simple teasing,
offhand comments, and isolated incidents” (internal quotation
marks and alteration omitted)). The court further concluded,
with respect to all of the alleged harassment, that Alford could
not satisfy the fourth element of his hostile work environment
claim — namely, some basis for imputing liability to either M&G
or Angler.
On the fourth element, the parties disagreed over the
applicable standard. M&G and Angler contended that, because all
of Alford’s alleged harassers were his coworkers (rather than
supervisors), the court should apply the standard utilized in
EEOC v. Sunbelt Rentals, 521 F.3d 306 (4th Cir. 2008). Under
this standard, “[a]n employer is liable for harassment by the
victim’s coworkers only if it knew or should have known about
the harassment and failed to take effective action to stop it.”
16
Sunbelt Rentals, 521 F.3d at 319 (internal quotation marks
omitted).
By contrast, Alford urged the court to deem M&G and Angler
vicariously liable for the alleged harassment unless they could
satisfy the Faragher/Ellerth affirmative defense. See Faragher
v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742 (1998). This standard, which
applies where the harasser was a supervisor but the plaintiff
suffered no tangible employment action, allows the employer to
avoid liability only “if it can demonstrate, by a preponderance
of the evidence, that (1) it exercised reasonable care to
prevent and correct promptly any harassing behavior; and (2) the
plaintiff unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.” White v. BFI Waste Servs., LLC,
375 F.3d 288, 299 (4th Cir. 2004) (internal quotation marks
omitted). In assessing “whether a harasser was the plaintiff’s
supervisor, the critical question [is] ‘whether the particular
conduct was aided by the agency relation.’” Whitten v. Fred’s,
Inc., 601 F.3d 231, 244 (4th Cir. 2010) (quoting Mikels v. City
of Durham, 183 F.3d 323, 332 (4th Cir. 1999)). “[H]arassment by
employees with only ‘some measure of supervisory authority’
could be aided by the agency relation,” but that supervisory
authority must be more than “‘the occasional authority to direct
17
[the plaintiff’s] operational conduct while on duty.’” Id. at
245 (quoting Mikels, 183 F.3d at 332).
With respect to the noose incident, the district court
observed that it was undisputed that such incident was
perpetrated by Alford’s nonsupervisory coworkers and, thus, that
the Sunbelt Rentals standard controlled. Applying this
standard, the court determined that “[t]he evidence in the
record clearly establishes that Angler responded reasonably to
the noose incident.” Opinion 26. The court explained, in
relevant part, that “Hazel personally went to the yard and
interviewed the employees on the same day he learned of the
noose incident. Athey also interviewed those responsible and
each was reprimanded and given both oral and written warnings
that future inappropriate conduct would result in termination.”
Id. Similarly, the court concluded that M&G could not be held
liable for the noose incident “because it took appropriate
remedial action once put on notice.” Id. at 18. In so
concluding, the court rejected Alford’s assertion that M&G’s
response was inadequate because it relied on Angler to end the
harassment rather than conducting its own investigation. As the
court observed, “[t]here is no evidence in the record that would
have caused Gass to believe that Hazel — who himself went
promptly to the yard, spoke to the employees and Alford, and
18
reprimanded the employees — was being disingenuous. Moreover,
Alford told Gass he was satisfied.” Id.
In addressing the pre-noose incident conduct of McDonald
and Sutton, the district court rejected Alford’s theory that M&G
and Angler — absent satisfaction of the Faragher/Ellerth defense
— were vicariously liable for McDonald’s and Sutton’s conduct
because they were Alford’s supervisors. Alford relied on
evidence “that he viewed [McDonald and Sutton] as in charge of
the yard, and in particular viewed McDonald as the foreman.”
Opinion 28. The court observed, however, that “whether or not
they supervised other Angler employees, McDonald and Sutton
clearly had no supervisory authority over Alford.” Id. Rather,
“[a]t most, by telling him what stones to crush, McDonald had
‘occasional authority to direct [Alford’s] operational
conduct.’” Id. (quoting Mikels, 183 F.3d at 334 (alteration in
original)). In these circumstances, the court concluded, Alford
was obliged to satisfy the Sunbelt Rentals standard for imputing
liability for McDonald’s and Sutton’s harassment to M&G and
Angler. And — because Alford “never reported any of these
incidents” to Angler, id. at 27, and merely “alluded to the past
incidents” when reporting the noose incident to M&G, id. at 17;
see also supra note 4 — there was no basis for holding M&G or
Angler liable for the pre-noose incident conduct.
19
Although we are willing to assume that Alford has
established the first three elements of his hostile work
environment claim with respect to both the noose incident and
the pre-noose incident conduct, we agree with the balance of the
district court’s analysis outlined above. Accordingly, we
affirm the court’s summary judgment awards to M&G and Angler on
Alford’s hostile work environment claim.
B.
Next, on his retaliation claim, Alford contends that M&G
and Angler subjected him to retaliatory harassment after
reporting the noose incident — thereby bringing about his
constructive discharge. See Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 67-68 (2006) (holding that, to prove
“actionable retaliation,” “a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse”). Alford points to the harassing conduct of
Angler employees: McDonald made the “Al Sharpton” comment;
another employee (apparently Wolfe) drove a loader near Alford
in a threatening manner; and several other employees glared
angrily at Alford as they walked by him. In support of his
retaliation claim, Alford contends that “Angler deliberately
retaliated against [him] through its supervisors’ and employees’
taunting Alford and threatening him with physical harm,” and
that M&G “deliberately retaliated against [him] by failing and
20
refusing to assign work to [him] in any location other than the
hostile work environment that persisted at the Angler worksite.”
Br. of Appellant 45-46.
Unfortunately for Alford, even assuming that the alleged
retaliatory harassment was sufficiently severe to be actionable,
there is no basis for imputing liability for such harassment to
M&G and Angler. Significantly, Alford has conceded that he
never reported the harassment to M&G or Angler, and he has not
otherwise shown that either defendant was aware of it. Indeed,
the record reflects that — as far as M&G and Angler knew — the
noose incident was the last act of harassment perpetrated
against Alford at the Angler yard, and that incident had been
resolved. Although, after the retaliatory harassment occurred,
Alford informed Gass that he “was very uncomfortable in trying
to work [at the Angler yard],” J.A. 328, Alford did not explain
that his discomfort resulted from fresh acts of retaliatory
harassment rather than the prior racial harassment that had
already been addressed. As such, “there are no facts in
evidence that support any deliberate efforts by M&G to force
[Alford] to quit.” See Opinion 20-21 (citing Matvia v. Bald
Head Island Mgmt., Inc., 259 F.3d 261, 272 (4th Cir. 2001), for
the proposition that “[c]onstructive discharge requires that an
employer deliberately make an employee’s working conditions
intolerable in an effort to induce him to quit”). Furthermore,
21
Angler cannot be held vicariously liable for the retaliatory
harassment, because there is no evidence that it was perpetrated
by supervisory employees. See id. at 30. We therefore affirm
the district court’s summary judgment awards to M&G and Angler
on Alford’s retaliation claim.
C.
Finally, on his negligent retention claim, Alford contends
that Angler negligently retained Craig Lease following his
January 2008 workplace physical altercation with another white
employee. Under Virginia law, an employer may be “subject to
liability for harm resulting from the employer’s negligence in
retaining a dangerous employee who the employer knew or should
have known was dangerous and likely to harm [others].” Se.
Apartments Mgmt., Inc. v. Jackman, 513 S.E.2d 395, 397 (Va.
1999). The harm suffered by the plaintiff must be a foreseeable
result of the negligent retention. See, e.g., Blair v. Defender
Servs., 386 F.3d 623, 628-30 (4th Cir. 2004); Se. Apartments
Mgmt., 513 S.E.2d at 397-98. Alford contends that, following
Craig Lease’s January 2008 altercation, “Angler knew Lease was
dangerous and likely to harm others, yet it retained his
employment” — thereby “creating an unreasonable risk of harm to
Alford,” who, “because of his race,” was threatened by Lease.
Br. of Appellant 47-48.
22
The district court concluded that — even “[a]ssuming that a
noose-hanging can constitute the ‘harm’ necessary to trigger a
negligent retention claim under Virginia law” — Alford’s claim
“fail[ed] because the harm caused by Lease was not a foreseeable
result of Angler’s decision to retain him” following the January
2008 altercation. Opinion 31. The court explained that “[t]his
altercation in no way put Angler on notice that Lease might
engage in a racially discriminatory act such as a noose-
hanging.” Id. at 32. We are constrained to agree and thus
affirm the court’s award of summary judgment to Angler on
Alford’s negligent retention claim.
IV.
Pursuant to the foregoing, we affirm the district court’s
summary judgment awards to M&G and Angler. 10
AFFIRMED
10
In these circumstances, we conclude that the district
court properly denied Alford’s cross-motions for summary
judgment, which were largely premised on the contention that M&G
and Angler were not entitled to the Faragher/Ellerth defense, in
part because of Angler’s spoliation of evidence (safety officer
Athey’s interview notes). Furthermore, we affirm the summary
judgment awards to M&G and Angler without addressing the court’s
other grounds for such awards, including its ruling that Angler
was not Alford’s “employer” for purposes of Title VII.
23