United States District Court, D. Columbia.
KEITH A. BATTLE, Plaintiff,
TRULAND SYSTEMS CORPORATION, Defendant
[Copyrighted Material Omitted]
For Keith A. Battle, Plaintiff: Richard Ethelbert Patrick, LEAD ATTORNEY, JORDAN, PATRICK & COOLEY, LLP, Fairfax , VA.
For Truland Systems Corporation, Defendant: Craig J. Franco, Lauren M. Piana, LEAD ATTORNEYS, ODIN, FELDMAN & PITTLEMAN, P.C., Reston , VA.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Keith Battle filed suit against Defendant Truland Systems Corporation (" Truland" ) claiming a hostile work environment, retaliation, and disparate treatment in violation of 42 U.S.C. § 1981. Plaintiff's claims arise out of a series of racially charged incidents that occurred while Plaintiff was employed as an electrician by Truland in the construction of the new Washington Nationals baseball stadium. Presently before the Court is Defendant's  Motion for Summary
Judgment. In the course of briefing Defendant's Motion for Summary Judgment, Plaintiff conceded his hostile work environment claim. See Pl.'s Opp'n. at 13. Consequently, only Plaintiff's retaliation and disparate treatment claims remain before the Court to consider on summary judgment. Upon consideration of the pleadings , the relevant legal authorities, and the record as a whole, the Court finds that Plaintiff has failed to demonstrate that a genuine issue of material fact exists concerning his disparate treatment and retaliation claims. Accordingly, Defendant's Motion for Summary Judgment is GRANTED.
A. Factual Background
The following facts are not disputed by the parties. Plaintiff, an African American male and a journeyman electrician, began working with Defendant Truland Systems Corporation (" Truland" ) on the construction of the Washington Nationals baseball stadium on November 5, 2007. Def.'s Stmt. ¶ ¶ 11, 13. Truland was responsible for the electrical subcontract on the stadium project. Id. ¶ 2. On January 22, 2008, while Plaintiff was taking a break in the break room at the stadium, another electrician picked up a noose that had been fashioned out of electrical wire earlier in the day by two other employees, looked at Plaintiff, started laughing, held the rope up to his own neck, and said " I'm outta here." Id. ¶ ¶ 34, 38. The next day, Plaintiff, Bradley Brown, and several other electricians who were present during the noose incident reported the incident to their foreman, who in turn reported the incident up Truland's management chain. Id. ¶ ¶ 62, 64, 68, 70, 72, 77. A few days after the incident, Truland terminated the employment of all of the individuals involved in the noose incident. Id. ¶ 102. Truland Chairman and CEO Robert Truland also issued a public apology for the incident, as well as a private apology to Plaintiff and an apology to all Truland employees in which Truland expressed its opposition to the noose. Id. ¶ ¶ 125-29. On January 30, 2008, Truland management appeared at a roundtable meeting of the D.C. City Council regarding the noose incident. Id. ¶ 130. Plaintiff, Bradley Brown, and two other electricians also appeared and testified before the D.C. City Council. Id. ¶ 131. Plaintiff alleges that during the meeting Robert Truland testified that Plaintiff would not be terminated for the next two years. Pl.'s Resp. Stmt. ¶ 23; Pl.'s Ex. 18.
Around the same time, Plaintiff and several other electricians also complained to Truland management about racial graffiti in the portable toilets at the stadium. Def.'s Stmt. ¶ ¶ 109-117. Truland had the graffiti painted over and signs warning against graffiti were placed in the portable toilets. Id. ¶ ¶ 118-119, 121. Finally, on February 6, 2008, Plaintiff reported to Truland's management that an employee
of Mahogany Interior who was also employed at the stadium jobsite had made inappropriate racial comments. Id. ¶ 140. Truland in turn reported the incident to Mahogany Interior's management and the Mahogany Interior employee was fired. Id. ¶ ¶ 145, 151.
On March 10, 2008, Plaintiff, at his request, was promoted to subforeman. Id. ¶ 156; Pl.'s Ex. 9 (EEOC Complaint). Initially, Plaintiff was not paid the increased rate of a subforeman. Id. ¶ 173. On May 6, 2008, Plaintiff filed a complaint with the EEOC explaining that although he had been promoted to subforeman, his salary was not increased and he had not been given responsibilities commensurate with his position. See Pl.'s Ex. 9 (EEOC Complaint). Plaintiff alleged that he was being discriminated against based on his race and in retaliation for his complaints regarding the noose incident. Id. Sometime thereafter, Plaintiff began to be paid the increased rate and was retroactively paid for the increased rate back to the time at which he became subforeman. Def.'s Stmt. ¶ 173. Although Plaintiff alleged in his EEOC complaint that his lower salary and responsibilities were the effects of discrimination and retaliation, in his Opposition to Defendant's Motion for Summary Judgment Plaintiff does not now claim either as an adverse employment action.
In May 2008, the Washington Nationals stadium project was coming to a close, and Truland was laying off and transferring a lot of workers. Id. ¶ ¶ 185, 187-88. On June 13, 2008, Plaintiff was transferred fro the stadium jobsite. Id. ¶ 189. Prior to Plaintiff's reassignment from the stadium project, Truland management discussed via email to which project Plaintiff and Bradley Brown could be assigned. Id. ¶ 190; Pl.'s Ex. 19 (Email Exchange Regarding Transfer). As part of the email exchange, Joe Roscher, a Truland Vice President and project executive, indicated that Truland " need[s] to keep Battle and Brown for at least a year." Pl.'s Ex. 19 (Email Exchange Regarding Transfer), at D660. Howard " Al" Silcott, Truland's general superintendent with responsibility for the stadium project, recommended that Plaintiff and Bradley Brown be assigned to GEICO, a Truland project in Fredericksburg, Virginia, because it was a " cost-plus" construction contract, which would permit Truland to obtain reimbursement under the contract for the additional labor hours that Plaintiff and Bradley Brown's assignment to the project would foster. Id. at D659; see also Def.'s Stmt. ¶ 192. In his email proposing the reassignment to GEICO, Mr. Silcott wrote: " got to get them [Plaintiff and Bradley Brown] off stadium." Pl.'s Ex. 19 (Email Exchange Regarding Transfer), at D659. In response to Mr. Silcott's email, Dean Filomena, a Truland general superintendent for the One Noma project, wrote:
I'm laying off 10 a week for the next 3 to 4 weeks at Geico and will be coming down at One Noma at the end of the month I can swap some out I don't need your problem children.
Id. Shortly thereafter, Plaintiff was told he would be transferred to the GEICO project, but, concerned about the travel time, Plaintiff researched Truland's other projects, and requested to be assigned to the One Noma project in Washington, D.C. Id. ¶ 193. Per his request, Truland transferred Plaintiff to the One Noma project instead. Id. ¶ 194. Plaintiff never went to the GEICO job site. Id.
When Plaintiff arrived at the One Noma project in June 2008, the project was already coming to an end. Id. ¶ 200. John Young, the owner of Nationwide Electric (" Nationwide" ), called Mr. Filomena to ask if Truland had anyone who would be interested in coming to work for him. Id.
¶ 201. Mr. Filomena spoke to Plaintiff about the opportunity at Nationwide and Plaintiff expressed his interest in accepting the opportunity. Id. ¶ ¶ 203-04. Had Plaintiff not taken the Nationwide position, he likely would have been laid off from Truland because the One Noma project was coming to an end. Id. ¶ 210. In order to take the position at Nationwide, Plaintiffs employment at Truland had to be terminated. Id. ¶ 205. Plaintiff's employment with Truland ended on July 3, 2008, and Plaintiff began working at Nationwide during the first week of July 2008. Id. ¶ 207.
On August 22, 2008, Nationwide terminated Plaintiffs employment. Id. ¶ 212. After Plaintiff was terminated, Plaintiff registered on the out-of-work list with the International Brotherhood of Electrical Workers (" IBEW" ) Union. Id. ¶ 214. Plaintiff was then hired by VARCO/MAC from October 31, 2008, until January 2, 2009, when he was terminated. Id. ¶ ¶ 214-15. After his termination, Plaintiff again registered with the IBEW Union's out-of-work list. Id. ¶ 217. The Collective Bargaining Agreement (" CBA" ) that IBEW had with Truland, Nationwide, and VARCO/MAC provided that " [t]he Union shall be the sole and exclusive source of referral of applicants for employment." Id. ¶ 220. Under the CBA, the Union is required to " refer applicants in the order of their place on the out-of-work list on which applicants are listed in chronological order of the dates they registered their availability for employment." Id. ¶ 222. As a result of not being in a position high ...