Thompson v. Town of Front Royal

Page 522

117 F.Supp.2d 522

Isaac THOMPSON, Plaintiff, v. TOWN OF FRONT ROYAL, et al., Defendants.

No. CIV. A. 5:98CV00083.

United States District Court, W.D. Virginia, Harrisonburg Division.

October 3, 2000.

COPYRIGHT MATERIAL OMITTED

Thomas Hunt Roberts, Roberts Professional Law Corp., Richmond, VA, Tim Schulte, Thomas H. Roberts & Associates, P.C., Roberts Professional Law Corp., Richmond, VA, for Isaac Thompson.

Mark Dudley Obenshain, Thomas E. Ullrich, Wharton, Aldhizer & Weaver, PLC, Harrisonburg, VA, for Town of Front Royal, Va.

Bruce Edward Downing, Harrison & Johnston, Winchester, VA, James Greer Welsh, Randall Tyree Perdue, Timberlake, Smith Thomas & Moses, P.C., Staunton, VA, for Eugene Teewalt.

MEMORANDUM OPINION

MICHAEL, Senior District Judge.

Before the court are cross motions by the parties for summary judgment and the responses thereto.¹ The court referred the matter to the presiding United States Magistrate Judge to issue a report and recommendation on the dispositive motions, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge returned his Report and Recommendation on May 3, 2000 and both parties filed objections and responses thereto. Accordingly, the court has performed a de novo review of the matter and its findings follow below. See 28 U.S.C. § 636(b)(1)(C). The plaintiff also filed a motion to strike the defendant's June 5, 2000 Response to Plaintiff's Objections to Report and Recommendation on the grounds that the defendant's response was untimely. This motion shall also be addressed in turn.

I.

The facts of this case are well known by the parties and the court, and familiarity of the reader will be assumed. For a recitation of the facts by the court, see Thompson v. Front Royal, Memorandum Opinion, March 16, 2000 at 2-3. In short, the plaintiff has filed a lawsuit against the defendant, wherein six of ten counts remain and are the subject of the instant summary judgment opinion. The remaining counts include Counts Nine and Ten, alleging race-based discrimination and retaliation under Title VII of the 1964 Civil Rights Act, as codified in 42 U.S.C. §§ 2000e-2 and -3. Also remaining and contested are Counts Four through Seven, respectively alleging state law claims of battery, assault, negligent supervision/retention, and intentional/negligent infliction of emotional distress. Recitation of specific facts or allegations as they relate to each of the counts shall be included as the counts are addressed

II.

Both the plaintiff and the defendant have moved for summary judgment on various counts. Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The non-moving party is to have the credibility of all its evidence presumed. See Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990). Where both parties move for summary judgment on the same count, the credibility of the non-movant's evidence will be assumed when considering the movant's argument. "[S]ummary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir.2000) (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991)). If the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party, then there are genuine issues of material fact. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant has the initial burden of showing absence of evidence in support of the non-movant's case before the non-movant bears the burden of demonstrating the existence of some triable issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, the non-movant may not rest upon mere allegations and denials of the pleadings, and must assert more than a "mere scintilla" of evidence in support of his case in order to survive an adverse entry of summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Of particular relevance to the instant case, courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue. See Beall v. Abbott Laboratories, 130 F.3d 614, 619 (4th Cir.1997) (citing Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996)).

III.

Counts Nine and Ten of the plaintiff's amended complaint allege Title VII violations of employment discrimination and retaliation. The defendant addresses these claims as ones of disparate treatment with respect to wages and other job benefits, hostile work environment, and general retaliation. The Magistrate recommends that Counts Nine and Ten, in their entirely, retain genuine issues of material fact and therefore, the cross motions for summary judgment as to these counts should be denied. The defendant strongly objects to the recommendation, alleging primarily, that these claims are time-barred, and asserting alternate reasons in favor of summary judgment as well.

A.

Any incidents or events alleged to have occurred more than 300 days prior to the filing of plaintiff's suit are outside the statutory period of limitations for Title VII claims. See 42 U.S.C. § 2000e-5(e)(1). Thus, the defendant contends that the plaintiff is barred from recovering any claims of discriminatory conduct or retaliation occurring prior to September 2, 1997 (300 days prior to June 30, 1998, the date on which the plaintiff contacted the Equal Employment Opportunity Commission). However, both parties recognize that there is an exception to the strict application of the statutory period of limitations under the continuous violation doctrine. Where the parties differ, however, is whether the plaintiff can avail himself of this doctrine.

The Magistrate recommends application of the continuous violation doctrine and the court agrees. The defendant objects to the doctrine's application on several grounds. First, the defendant argues that the prior opinion of this court precluded application of the continuous violation doctrine when it ruled that the doctrine could not save Count One, failure to promote pursuant to 42 U.S.C. § 1981. (Mem. Op. at 5.) While the continuous violation doctrine did not apply to Count One, ruling that it applies to Counts Nine and Ten is not inconsistent with the court's prior judgment.

A "series of separate but related acts" amount to a continuing violation. See Beall v. Abbott Laboratories, 130 F.3d 614, 620 (4th Cir.1997) (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir.1980)(per curiam)). However, only where an actual violation has occurred within the requisite time period—in this case after September 2, 1997—can the theory of the continuous violation doctrine possibly be sustained. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2000); Tinsley v. First Union Nat. Bank, 155 F.3d 435, 442-43 (4th Cir.1998); Beall, 130 F.3d at 621; Hill v. AT & T Techs., Inc., 731 F.2d 175, 180 (4th Cir.1984); Woodard v. Lehman, 717 F.2d 909, 915 (4th Cir.1983). The § 1981 claim, which was an allegation of unlawful failure to modify the plaintiff's contract by failing to promote him, was time-barred because no allegations of the unlawful act (failure to promote) occurred in the requisite statutory period of after September 2, 1997. The court affirms its prior decision in this matter, noting that the alleged assignment of the plaintiff to menial tasks, notwithstanding his promotion, could not resuscitate the § 1981 failure to promote claim because a "continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." See Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 189 (4th Cir. 1999) (quoting National Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991) (internal quotation marks omitted)).

Although claims asserted under both § 1981 and Title VII require that, absent direct evidence of discriminatory treatment, certain elements must be established, see Gairola v. Com. of Va. Dept. of General Services, 753 F.2d 1281, 1285-86 (4th Cir.1985), the facts used to establish the prima facie cases are necessarily different because the statutes themselves are different. The most notable difference is that a § 1981 claim is grounded in contract whereas a Title VII claim is grounded in employment practices and treatment. See, e.g. Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) Title VII "covers more than terms and conditions in the narrow contractual sense." (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). The continuous violation doctrine did not apply to the plaintiff's § 1981 claim because there was not continuous violation of the alleged § 1981 contract violation: failure to promote. However, the alleged violation of Title VII under Count Nine is discriminatory and disparate treatment of the plaintiff. The allegations relevant to this Title VII claim include the alleged racial epithets, threats, failure to train, hostile work environment, and the assignment of menial tasks as it relates to disparate treatment through discriminatory employment practices, not as a consequence of the failure to promote. The plaintiff has alleged that discriminatory incidents relating to the aforementioned continued to occur after September 2, 1997. (First Am. Compl. at ¶¶ 34-44.) The defendant does not necessarily contest that these alleged incidents took place during the requisite period, but rather contests whether such incidents support an actionable Title VII claim.

To perform the task of determining whether a continuous violation exists, the defendant urges the application of the three-pronged test of the Fifth Circuit,...