Thompson v. HICAPS Inc.

628 F.Supp.3d 292

Fred THOMPSON, Plaintiff, v. HICAPS INCORPORATED, et al., Defendants.

Civil Action No. 20-3077 (RC)

United States District Court, District of Columbia

Signed September 19, 2022

David A. Branch, Michael Steven Ludwig, Law Offices of David A. Branch & Associates, PLLC, Washington, DC, for Plaintiff.

Ashleigh Eames, Fox Rothschild LLP, Atlanta, GA, Francis V. Cook, Fox Rothschild LLP, Lawrenceville, NJ, Philip Thomas Abbruscato, Fox Rothschild LLP, Washington, DC, for Defendants Hicaps Incorporated, Wayne Mcgee.

Christine M. Costantino, Seyfarth Shaw, LLP, Washington, DC, for Defendant Motorola Solutions.

MEMORANDUM OPINION

DENYING DEFENDANTS HICAPS AND MCGEE'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANTS MSI AND SILVERFARB'S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

A few years ago, Plaintiff Fred Thompson was fired from his job as a construction site supervisor. Mr. Thompson was working on a project for Washington Metropolitan Area Transit Authority ("WMATA") when a serious safety violation occurred on his watch. Mr. Thompson's employer, HICAPS Inc. ("HICAPS"), was a subcontractor to Motorola Solutions ("MSI"), the project's prime contractor. According to Mr. Thompson, an African American male, he was fired because of his race. He brings this three-count action for: (1) violation of the District of Columbia Human Rights Act ("DCHRA") by Defendants HICAPS, Wayne McGee (Vice President and co-owner of HICAPS), MSI, and Jake Silverfarb (Lead Program Manager of MSI); (2) tortious interference with employment contract/relationship by MSI and Mr. Silverfarb; and (3) violation of the Civil Rights Act of 1866, codified at 42 U.S.C. § 1981, by HICAPS and MSI. For the reasons described below, the Court finds that there is a genuine dispute of material fact with respect to Mr. Thompson's race discrimination claims against HICAPS and Mr. McGee. Therefore, the Court will deny their motion for summary judgment. By contrast, the Court finds that Mr. Thompson has not raised a genuine dispute of material fact in his race discrimination and tort claims against MSI and Mr. Silverfarb. Therefore, the Court will grant their motion for summary judgment.

II. BACKGROUND

A. Factual Background

Mr. Thompson was employed by HICAPS from February 7, 2019 until his termination on August 2, 2019. See Ex. D to Defs.' HICAPS Inc. and Wayne McGee's Mot. Summ. J. ("HICAPS Mot."), ECF No. 30-6; Ex. M to HICAPS Mot., ECF No. 30-15. HICAPS was a subcontractor to MSI, the prime contractor on the "WMATA Project." Def. HICAPS's Statement of Undisputed Material Facts ("HICAPS Undisputed Facts") ¶¶ 1, 3, ECF No. 30-1. The WMATA Project's purpose was to provide radio frequency communications network solutions, and it spanned over two dozen work sites across the Washington, D.C. area. Def. MSI's Statement of Material Facts as to Which There Is No Genuine Dispute ("MSI Undisputed Facts") ¶ 1, ECF No. 31-3.

In February 2019, HICAPS interviewed and hired Mr. Thompson for the position of Quality Control Inspector (also known as Construction Inspector). Id. ¶ 9. Wayne McGee, the Vice President and co-owner of HICAPS, was involved in the decision to hire Mr. Thompson. Id. ¶¶ 6, 8. During his time at HICAPS, Mr. Thompson was supervised by Lee Ragin, HICAPS's Quality Manager, who knew him previously and who recommended him for this job. Ragin Dep. 7:1-2, 10:3-19, 12:13-20.¹ About two months into his job, HICAPS notified Mr. Thompson that it needed to fill a vacancy for a Site Supervisor (also known as Construction Superintendent). MSI Undisputed Facts ¶ 18. Mr. Thompson subsequently filled the Site Supervisor position in a temporary capacity while continuing to perform his duties as Quality Control Inspector. Id. ¶¶ 18, 24; HICAPS Undisputed Facts ¶ 10. The Site Supervisor position had more responsibilities compared to the Quality Control Inspector position, but the two jobs shared significant overlap, and both job descriptions included the duty to ensure safety. MSI Undisputed Facts ¶ 19. Mr. Thompson claims that he was qualified for both positions. Pl.'s Mem. Points and Authorities in Opp'n to Defs.' Mot. Summ. J. ("HICAPS Opp'n") at 10, ECF No. 33. While employed at HICAPS, Mr. Thompson acquired an OSHA 30 certificate, which entailed basic OSHA safety training and an online test. Thompson Dep. 20:13-21:12.²

In late July 2019, Mr. Thompson was the assigned Site Supervisor at the WMATA Project's Dyson site located in Brandywine, Maryland. MSI Undisputed Facts ¶¶ 25-26. At that time, part of the work being performed at the Dyson site was an excavation to place a concrete box in the ground to provide footing for a propane tank. Id. ¶ 28. Several meetings occurred prior to the excavation to discuss its details. Id.; HICAPS Undisputed Facts ¶¶ 20-21. On July 31, Mr. Thompson attended a meeting including Mr. Green, Mr. Semler, and others to discuss the excavation. HICAPS Opp'n at 4-5; Pl.'s Mem. Points and Authorities in Opp'n to Def.'s Mot. Summ. J. ("MSI Opp'n") at 5, ECF No. 35; see also Smith Dep. 18:13-17 (preconstruction meeting was held involving "several people from WMATA, HICAPS, and [subcontractor] Project Concrete on site"). Following this meeting, excavation for the propane tank began. A daily report from WMATA dated July 31 describes the "[s]cope of work" as "excavating footing for propane tank." Ex. H to HICAPS Mot. at 1, ECF No. 30-10.

On August 1, several events occurred that form the center of this dispute. Mr. Thompson signed in at the Dyson site that morning at 7:00 a.m. Ex. K to HICAPS Mot. ("Aug 1. Timesheet") at 1, ECF No. 30-13; Thompson Dep. 68:4-5. Between the hours of 7 a.m. and 11 a.m., at least two employees from subcontractor Project Concrete were working in the excavation. Ex. J. to HICAPS Mot. ("C-23 Form") at 1, 4, ECF No. 30-12; Thompson Dep. 85:24-86:7. The parties agree that Coke Smith, HICAPS's Construction Manager and one of Mr. Thompson's supervisors, was not present at the site. HICAPS Undisputed Facts ¶¶ 32-34.³ But they dispute whether any other HICAPS employees were at the site between 7 and 11 a.m. According to Defendants' timeline of events, at about 11 a.m., Tom Hardee, WMATA's Safety Manager, and James Semler, HICAPS's Safety Assistant Superintendent, both arrived at the site. HICAPS Undisputed Facts ¶¶ 28-29; Def. Motorola Solutions, Inc.'s Mot. Summ. J. ("MSI Mot.") at 16, ECF No. 31-2; Semler Decl. ¶¶ 3-4, Ex. H to MSI Mot., ECF No. 31-12. Mr. Hardee and Mr. Semler saw that the excavation was improperly shored and filled with water, and that two workers were inside the trench and "exposed to risk of serious injury or death." MSI Undisputed Facts ¶ 36. Mr. Thompson agrees that Mr. Hardee arrived at the site at about 11 a.m. HICAPS Undisputed Facts ¶ 28. Mr. Thompson claims, however, that Mr. Semler was already present at the site "early" in the morning and "[w]ay before" Mr. Hardee had arrived. Thompson Dep. 67:6-68:18; HICAPS Opp'n at 5.⁴

All parties in this case agree that the situation at the Dyson site that morning constituted a "serious OSHA violation." MSI Undisputed Facts ¶ 38; see also HICAPS Opp'n at 6 (workers in trench were exposed to "risk of serious injury or death"); Jones Dep. 29:18-30:2 (situation was "life-endangering"). According to Mr. Hardee's report documenting this incident, there was "[b]ad excavation," "eight ft verticle walls [sic], no [l]adder, no spoils 2 ft off slope, water filtering into trench, 2 employees exposed, [n]o shoring on-site." MSI Undisputed Facts ¶¶ 40-41 (alterations in original); see Ex. J to HICAPS Mot. ("C-21 Report"), ECF No. 30-12. Mr. Hardee's report indicates that this setup violated OSHA regulations which require additional safety measures when excavating beyond a depth of five feet. MSI Undisputed Facts ¶ 43. Upon seeing the excavation, Mr. Hardee immediately stopped work and sent the workers home. Id. ¶¶ 38, 44.⁵ Mr. Hardee then sent a copy of the C-21 Report to Wes Jones, MSI's Program Director. Id. ¶ 40.

Later that same day, WMATA's Project Manager Allen Wonder sent an email to Mr. Jones describing this incident in detail and attaching photos from the excavation site. Ex. 14 of Ex. A to MSI Mot. ("WMATA Email"), ECF No. 31-5. The email also announced a stop work on every work site across the entire WMATA Project. Id.; MSI Undisputed Facts ¶ 51. WMATA explained it was doing this as a result of having "recently observed multiple safety and quality infractions by subcontractors performing work under Motorola." WMATA Email. WMATA further imposed several new training, meeting, and certification requirements on MSI and all the subcontractors working on the WMATA Project before WMATA would permit work to resume. Id.

After reviewing the WMATA email, Mr. Jones called Mr. McGee. MSI Undisputed Facts ¶ 58; McGee Dep. 11:6-7. On the call, Mr. Jones asked Mr. McGee to identify "who was the Motorola [or] HICAPS representative on site," and Mr. McGee identified solely Mr. Thompson. Jones Dep. 17:11-22, 42:1-4. Mr. Jones then directed Mr. McGee to remove Mr. Thompson from the WMATA Project. HICAPS Undisputed Facts ¶ 39; Jones Dep. 14:12-18; McGee Dep. 10:21-11:2. Mr. McGee testified that he had also reviewed photographs from the Dyson site and was familiar with the facts of the incident, and he was "pretty certain" that he spoke to Mr. Smith, Mr. Green, and Mr. Semler that day as part of his own investigation. MSI Undisputed Facts ¶ 69; McGee Dep. 13:1-3, 22:7-19.

The next day, on August 2, Mr. McGee called Mr. Thompson to inform him that he was terminated from HICAPS. McGee Dep. 14:6-10; Thompson Dep. 100:14-101:4. At some point, Mr. Thompson called Mr. McGee back to ask why he was being terminated. McGee Dep. 16:5-17:3; Thompson Dep. 101:9-102:3. Mr. McGee explained that his termination was due to the incident at the Dyson site and the fact that HICAPS had no other work available for him outside the WMATA Project....