ROBERT CONRAD JR., District Judge
THIS MATTER is before the Court upon motion of the defendant for a new trial (Doc. No. 1103) and the government's response (Doc. No. 1147). For the reasons stated below, the Court will DENY the defendant's motion.
I. BACKGROUND
The defendant, along with 25 co-defendants, was charged with multiple federal offenses arising out of his affiliation with La Mara Salvatrucha, also known as the MS-13 gang. (Doc. No. 623: Third Superseding Indictment). Among other offenses, Count One charged the defendant with a RICO conspiracy, in violation of 18 U.S.C. § 1962(d). The defendant was also charged with the murders of Ruben and Manuel Salinas on December 8, 2007, in Greensboro, North Carolina (the "Greensboro murders"), as overt acts in furtherance of the RICO conspiracy. The Greensboro murders were charged separately in Counts Twenty-two and Twenty-four as murders in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and in Counts Twenty-three and Twenty-five as use of a firearm during and in relation to a crime of violence resulting in death, in violation of 18 U.S.C. § 924(j). Counts Sixty-one, Sixty-two, and Sixty-three also charged the defendant with conspiracy to commit obstruction of justice and witness tampering, in violation of 18 U.S.C. §§ 371, 1503, and 1512(b)(1), as well as those substantive offenses. As required by the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq., the government gave notice of its intention to seek the death penalty for Counts Twenty-two through Twenty-five. (Doc. No. 275: Notice).
The defendant's case proceeded to a jury trial. With the exception of Count Sixty-two, the jury returned a verdict on April 19, 2010, finding the defendant guilty of all offenses charged. (Doc. No. 1043: Verdict Form). After presentation of aggravating and mitigating evidence in a separate sentencing hearing that immediately followed, the jury returned verdicts recommending a sentence of death for each charge for which the government had sought it. (Doc. Nos. 1048-51: Penalty Selection Verdict Forms). The defendant has yet to be sentenced, but filed this motion after receiving an extension of time in which to do so.
The Court granted the defendant's Fed.R.Crim.P. Rule 29 motion with respect to the conspiracy's object to obstruct a federal investigation (Count Sixty-one) and the actual or attempted obstruction of a federal investigation (Count Sixty-two), in violation of 18 U.S.C. §§ 2, 371, and 1503. The Court found that the government had failed to prove that the defendant knew the investigation was a federal, not a state, matter. (Trial Tr. vol. V-A at 1133-1134, Apr. 16, 2010).
The defendant raises a number of claims supporting his motion for a new trial, many of which were previously raised at some point during these proceedings. The defendant contends that the Court improperly instructed the jury on the elements of murder in the aid of racketeering; that there is insufficient evidence to support his conviction of witness tampering; that evidence of unadjudicated crimes was improperly admitted during the defendant's sentencing proceeding; that the penalty selection verdict forms did not include a finding that he was likely to commit acts of violence in the future; that the Court improperly excluded a police report summarizing an interview with the defendant's mother; that admission of the defendant's April 2008 recorded interview with law enforcement violated his Fifth and Sixth Amendment rights; that expert testimony given by Detective Frank Flores was inadmissible character evidence; that the government's rebuttal argument at the conclusion of the defendant's sentencing hearing was improper; and that the Court improperly struck the defendant's proposed mitigating factor stating that his execution would cause grief and loss to his family.
II. LEGAL STANDARD
Upon motion of the defendant, a district court "may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). A district court "`should exercise its discretion to award a new trial sparingly,' and a jury verdict is not to be overturned except in the rare circumstance when the evidence `weighs heavily' against it."United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006) (quoting United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003)). The defendant, as movant, carries the burden of showing that the interest of justice requires a new trial.
The Court assumes without deciding that its authority to grant a new trial under Fed.R.Crim.P. 33(a) applies equally to the guilt phase of the defendant's trial and the sentencing hearing that followed.
III. DISCUSSION
A. Jury Instruction for Murder in the Aid of Racketeering
The defendant argues that he should be granted a new trial on Counts Twenty-two and Twenty-four because the Court failed to instruct the jury that in order to find him guilty of murder in aid of racketeering, he must have committed the murders to maintain or increase his own — not another's — position in MS-13. (Doc. No. 1103: Motion at 2). The applicable criminal statute reads, in pertinent part:
Whoever, . . . for the purpose of . . . maintaining or increasing position in an enterprise engaged in racketeering activity, murders, . . . assaults with a dangerous weapon, . . . or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States [commits an offense].
18 U.S.C. § 1959(a). The Court gave the following instruction to the jury:
In determining whether a person's purpose in committing the alleged murder, assault with a deadly weapon, or other crime was to maintain or increase position within the enterprise, you should give the words "maintain" and "increase" their ordinary meanings. You should consider all the facts and circumstances in making that determination. For example, you may consider evidence that the crime, if proved, was committed in order to maintain discipline within the enterprise and served to maintain position in the enterprise. If the defendant committed the crime because he knew it was expected of him by reason of his membership in the enterprise, or if he committed the crime because he thought it would enhance position or prestige within the enterprise, or if he committed it because he thought it was necessary to maintain the position already held, this element would be established. These examples are only illustrations.
Conversely, it is not sufficient for the murder to be in furtherance of or consistent with the purposes of the enterprise. The defendant had to have had the conscious purpose to maintain or enhance position within the organization. The statute prohibits murders that are committed with the purpose of maintaining or enhancing a defendant's or another's relative position with the enterprise, vis-a-vis other members of the enterprise. In the absence of that specific prohibited purpose, a murder with the purpose of advancing a defendant's or the enterprise's reputation in the broader community is not covered by the statute.
(Trial Tr. vol. V-B at 1246-47, Apr. 16, 2010). The defendant argues that the Court's instruction should have been drawn from Fourth Circuit precedents describing a defendant's purpose of increasing or maintaining "his" position in the enterprise as an element of the offense. United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996); United States v. Fiel, 35 F.3d 997, 1004 (4th Cir. 1994) (both quoting United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992)).
Transcripts of the guilt phase of the trial will be designated as "Trial Tr.," and transcripts of the penalty phase sentencing hearing will be designated as "Sent. Tr."
Although these cases assumed that the position to be maintained or increased in the racketeering organization was the defendant's own, each addressed the sufficiency of evidence admitted at trial showing that to be the case. Neither held that violent crimes committed for the purpose of maintaining or advancing another's position in a racketeering enterprise would fall outside the scope of 18 U.S.C. § 1959(a). Moreover, the defendant cannot assign error to a jury instruction that accurately tracks the language of the applicable criminal statute. United States v. Wills, 346 F.3d 476, 494 (4th Cir. 2003); accord United States v. Williams, 299 F.3d 250, 258 (3d Cir. 2002); United States v. Wise, 221 F.3d 140, 152 (5th Cir. 2000). Thus, the defendant has not shown that the jury was improperly instructed on the elements of the offenses charged in Counts Twenty-two and Twenty-four.
B. Witness Tampering Convictions
Next, the defendant claims the evidence was insufficient to support the jury's verdict on charges of conspiracy to tamper with witnesses (Count Sixty-one) and actual or attempted tampering with witnesses (Count Sixty-three), in violation of 18 U.S.C. §§ 2, 371, and 1512. (Doc. No. 1103: Motion at 5).
To sustain a conviction for conspiracy to commit witness tampering, the government was required to prove beyond a reasonable doubt: (1) that the defendant and at least one other person made an agreement to commit witness tampering; (2) that the defendant knew the unlawful purpose of the agreement and joined in it willfully; and (3) that one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the indictment, in order to accomplish some object or purpose of the conspiracy. United States v. Kingrea, 573 F.3d 186, 198 (4th Cir. 2009) (§ 371 elements). Witness tampering is established if the government proves beyond a reasonable doubt: (1) that the defendant or co-conspirator used threats or intimidation against a person; and (2) that the defendant or co-conspirator acted knowingly and did so for the purpose of influencing, delaying, or preventing that person's testimony in an official proceeding. United States v. Thompson, 76 F.3d 442, 453 (2d Cir. 1996).
The defendant's claim centers on the allegation that only one witness linked him to the conspiracy which led to armed MS-13 gang members traveling to Greensboro, North Carolina to intimidate witnesses at the restaurant where the murders at issue were committed. (Doc. No. 1103: Motion at 6). That witness was Alexander Granados, a.k.a. "Gorilon," an illegal alien from El Salvador who joined MS-13 in Boston, Massachusetts when he was sixteen or seventeen years old. (Trial Tr. vol. IV-A at 866-68, Apr. 15, 2010). He came to Charlotte, North Carolina in 2006 after being deported and became active with the gang here. (Id. at 873). After the defendant was arrested for the Greensboro murders, Granados attended a gang meeting led by "Misterio." According to Granados, Misterio told the group that the defendant told him that the defendant had a court date the following week and sent a message to Misterio so that "there won't be somebody speaking out at the court." (Id. at 890). He identified the types of handguns the group planned to carry, (Id. at 891), which were later found on the gang members in Greensboro after one of them went into the restaurant to intimidate the owner. (Trial Tr. vol. IV-B at 925-26, 948, Apr. 15, 2010).
He admits the other elements of the offenses were satisfied. (Doc. No. 1103: Motion at 5-6).
The uncorroborated testimony of a single witness may be sufficient evidence of guilt, even if the witness is an accomplice, a co-defendant, or an informant. United States v. Wilson, 115 F.3d 1185, 1189-90 (4th Cir. 1997). Although no other participants in the meeting led by Misterio testified at the trial, details consistent with Granados's account were established by other evidence, such as the recovery of the guns in Greensboro. Counsel for the defendant cross-examined Granados about the defendant's alleged statement to Misterio. (Trial Tr. vol. IV-B at 915-17, Apr. 15, 2010). While he hoped to receive benefits from his plea agreement, Granados took a considerable risk of physical harm by breaking the gang's rule about providing information and testimony about a fellow member. The Court had the opportunity to observe the demeanor of Granados and finds that his testimony was credible. Thus, the evidence does not weigh heavily against the verdict and the Court will not grant a new trial based on the sufficiency of the evidence presented to the jury as to Counts Sixty-one and Sixty-three.
C. Evidence of Uncharged Murders
The defendant next argues that the Court erred by admitting evidence during his sentencing hearing that he had committed three murders in 2005 while living in Los Angeles. (Doc. No. 1103: Motion at 7). Evidence was received that on July 27, 2005, the defendant shot Jose Herrera and Gustavo Porras on Fairfax Street following a gang-related altercation (the "Fairfax Street murders"), and on September 28, 2005, the defendant shot Andy Abarca at Lemon Grove Park (the "Lemon Grove murder"). These murders were not charged as separate crimes, but were alleged by the government as part of a non-statutory aggravating factor ("Participation in Additional Uncharged Murders and Other Acts of Violence"). (Doc. No. 275: Notice at 4 7). See also 18 U.S.C. § 3592(c) (directing a capital sentencing jury to consider a number of enumerated statutory aggravating factors, as well as "any other aggravating factor for which notice has been given"). The jury unanimously found this aggravating factor and, specifically, that the defendant had committed both the Fairfax Street and Lemon Grove murders. (Doc. Nos. 1048-51: Penalty Selection Verdict Forms at 2).
In his motion for new trial, the defendant makes a number of objections to the admissibility of evidence related to these murders, chiefly that evidence relating to unadjudicated criminal conduct is per se unreliable; that a jury that has already found a defendant guilty of underlying capital offenses cannot impartially consider evidence of uncharged crimes; and that allegations of unadjudicated criminal conduct violate a defendant's constitutional right to a presumption of innocence during the penalty phase of a capital trial. The defendant raised the same arguments in his motion to strike this factor from the government's Notice (Doc. No. 483), which the Court considered and denied prior to the defendant's sentencing hearing. (Doc. No. 1000: Order).
The defendant argues for a different result in light of the government's sentencing hearing summation argument, where it drew similarities between the commission of the Greensboro murders and all three Los Angeles murders. He contends that the jury was effectively told to find the defendant guilty of the Los Angeles murders because he committed the Greensboro murders, a violation of his right to a presumption of innocence. However, by arguing the that the charged and uncharged murders were committed in a similar manner, the government did not invite the jury to disregard the defendant's presumed innocence of the uncharged allegations. The Greensboro murders were referenced not as evidence of the defendant's propensity to commit bad acts but to show a series of shootings committed in a similar manner. See United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990) (citing Fed.R.Evid. 404(b), holding evidence of "a string of robberies committed in the same manner" admissible as "evidence of a signature crime"). The government's reference to the Greensboro murders during its summation argument provides no reason for the Court to retreat from its previous ruling allowing evidence of uncharged conduct during the sentencing hearing.
Similarly, the defendant attempts to resurrect his objection to the admission of this evidence on the ground that it fails to meet a threshold standard of reliability. This issue was already raised in a motion in limine filed by the defendant (Doc. No. 960), which the Court granted in part and denied in part on the basis of the government's proffered evidence (Doc. No. 1021: Order). After conducting an in camera review, the Court determined that, with the exception of proposed testimony by police officers relating eyewitness Freddy Gonzalez' prior identification of the defendant from a photograph line-up as the Lemon Grove shooter, the government's proffered evidence bore sufficient indicia of reliability to warrant admission under the applicable evidentiary standard set out in 18 U.S.C. § 3593(c). (Id.). The Court permitted Gonzalez to testify live as to his prior identifications of the defendant, but prohibited him from making an in-court identification, finding the totality of circumstances unduly suggestive. (Sent. Tr. vol. III-A at 327-35, Apr. 21, 2010).
In the same Order, the Court also determined that proffered evidence of the defendant's participation in another murder, the beheading of Jaime Samayoa in El Salvador, lacked sufficient indicia of reliability necessary for admission at the defendant's sentencing hearing. This evidence was never presented to the jury.
The Court finds no grounds to re-examine its prior ruling on this matter, as the evidence introduced by the government at the sentencing hearing was consistent with its proffer. With regard to the Fairfax Street murders, Los Angeles Police Department ("LAPD") Officer John Maloney relayed statements by an eyewitness, Noe Bautista, who stated that on the day of the murders,
He observed two young men walking south on the west side of the street. I guess arguing with three suspects in a vehicle, in a gold Altima, Nissan Altima. And that the vehicle pulled over. They got out, walked passed them. One of the suspects removed the handgun from his waistband and shot the two victims, and then fled back into the vehicle, southbound on Fairfax.
(Sent. Tr. vol. II-A at 161, Apr. 26, 2010). LAPD Detective Gene Parshall testified that two .22 caliber shell casings were recovered from the scene. (Sent. Tr. vol. II-B at 174, Apr. 20, 2010). He also testified that Bautista further stated that one of the occupants who exited the Altima had been on crutches. (Id. at 178). This lead Det. Parshall to Luis Rivera, a known MS-13 member who was on crutches when the Fairfax Street murders occurred. (Id. at 178). Rivera was brought in for questioning and eventually stated to Det. Parshall that he and Rene Arevalo, Luis Ramos, Eddie Ruiz, and the defendant had been driving down Fairfax Street in a Nissan Altima on the day of the murders. Arevalo was driving, the defendant was sitting in the front passenger seat, and Rivera, Ramos, and Ruiz were in the back. (Id. at 180). Rivera then gave an account of the shooting and identified the defendant as the shooter. (Id. at 181).
Det. Parshall then testified that Ramos was subsequently brought in for questioning, and after he refused to cooperate, he was put in a holding cell with Rivera. Det. Parshall testified that he and other LAPD personnel had installed audio surveillance in the cell, and observed Rivera and Ramos discussing their desire to avoid serving a prison sentence for a murder they did not commit. (Id. at 183). Several days later, Ramos came forward with a statement identifying the same occupants in the Altima and naming the defendant as the shooter. (Id. at 185). Det. Barry Telis, Det. Parshall's partner, testified that they eventually located Arevalo, who gave a statement that was largely corroborative of Rivera's and Ramos'. (Id. at 229).
Det. Parshall also testified that in April 2008, he and Det. Telis interviewed the defendant regarding the Fairfax Street murdersy animus based on a protected trait can be shown by the employer's differential treatment of similarly situated employees outside of his protected class []." Baqir, 434 F.3d at 746. While Plaintiffs suggest that Carter was subjected to a constant barrage of racially-based insults, most of what Carter experienced was race-neutral abuse wherein Miller called Carter and a number of his co-workers "dumb motherfuckers," "incompetent motherfuckers," "stupid bastards," "bastards," and "dumb bitch[es]." (Doc. No. 63, Carter Dep. at 119, 121-22, 126, 136, 194, 336; id., Holmes Dep. at 25.) Plaintiff alleges that these facially race-neutral attacks are still actionable because they were overwhelmingly directed towards African-Americans, and Caucasian employees did not experience the same vitriol that Miller allegedly reserved for his African-American subordinates.
In the instant case, Carter fails to bring sufficient evidence to show that "but for" his race he would not have been subject to Miller's profanity. In contrast, there is substantial record evidence that Miller was indiscriminately abusive and belittling to all of his subordinates, regardless of race. ( See Doc. No. 63, Carter Dep. at 119 ("Even though he's not being racial [and] he's not making any racial statements, [] he is continuing to call my subordinates dumb motherfuckers.").) Brian Holmes and Robert Smith, both African-American former employees of VLS, conceded that Miller's verbal abuse was not racially motivated, but was in actuality a manifestation of his feeling of superiority over all of his subordinates, the majority of whom happened to be African-American. ( See Doc. No. 63, Holmes Dep. at 55 ("He had [this] arrogance about him and it was pretty much to anybody that didn't do [their work] the way he thought it should be done. Ladies in the office who were Caucasian, Robert Carstens, they had a couple of issues."); id., Smith Dep. at 22-23 ("I've witnessed him saying, you know, that kind of stuff to white people as well as anybody else. He just had a temper and sometimes he would go off, you know.").) Furthermore, Sandra Tierney, a white female employee, testified that Miller would regularly insult her and her daughter's intelligence, "cuss" at them, "yell [] and scream []," and otherwise belittle them. ( See Doc. No. 63, Tierney Dep. at 47-48; 76.) As such, Plaintiff has failed to prove that Miller's facially race-neutral insults such as "motherfucker" and "bastard" were racially motivated, and thus these incidents fail the second prong of the test and are not actionable.
However, Carter has identified a number of explicitly racial comments made by Miller that include his comments to Wingate and Meeks, his remarks about traditional African-American hairstyles, and his use of the phrase "black Fresh Prince[s] of Bel-Air." Defendants cite Rose v. Son's Quality Food Co. for the proposition that the addition of the word "black" to a race-neutral insult does not constitute race-based harassment that would support a hostile work environment claim. No. AMD 04-3422, 2006 WL 173690, at *4 (D. Md. Jan. 25, 2006). In that case, the Court found racial harassment that included the use of phrases such as "black dummy" and "black bitch" did not create a hostile work environment. While the Rose court held that those insults were not racial in nature, this Court has identified a number of other cases within the Fourth Circuit wherein the use of the word "black" as a modifier for otherwise racially-neutral
insults was, in fact, considered race-based harassment. See, e.g., Finch v. Smighfield Packing Co., No. 5:99CV10-BR, 2000 WL 33682696, at *4 (E.D.N.C. Feb. 10, 2000) (holding that "unequivocal examples of racial animus" included instances when plaintiff was instructed to keep his "black ass" off the phone and was called a "black son of a bitch" and a "black motherfucker"); Jenkins v. City of Charlotte, No. Civ. A. 3:03CV44, 2005 WL 1861728, at *3, 11 (W.D.N.C. July 26, 2005) (holding that the use of the phrase "kicking [plaintiff's] black ass" constituted race-based harassment that should be considered on summary judgment). As such, the Court holds that the addition of the word "black" to otherwise race-neutral insults is an indicator that the individual is being targeted because of his race, and thus satisfies the "but for" prong of the prima facie test.
Defendants further contest Plaintiff's assertion that Miller's monkey statute was offensive because "it evoked historical depictions of African-Americans as monkeys and apes and in positions of servitude to, or as comic relief for, whites." ( See Doc. No. 63 at 43.) The Fourth Circuit has repeatedly held that comparing an African-American to a monkey is a degrading and outrageous form of race-based harassment. See, e.g., Spriggs, 242 F.3d at 189 ("To suggest that a human being's physical appearance is essentially a caricature of a jungle beast . . . is degrading and humiliating in the extreme."); White v. BFI Waste Sys., 375 F.3d 288, 298 (4th Cir. 2004) (same). Drawing all inferences in favor of Plaintiff, the Court holds that the alleged constant display of the monkey statute and Miller's deliberate placement of it in front of African-American employees during at least one dispute is an act of race-based harassment to be considered on summary judgment.
Plaintiff also contends that an African-American employee named Peres Turner sought a peace order against Miller after he physically threatened her and said that "if he had a gun, he would shoot [her]." (Doc. No. 63 at 45.) While Defendants have shown that Miller's general, race-neutral profanity was directed at all of his subordinates regardless of their race, there is no evidence that Miller ever physically threatened a white employee with violence. The same is true of the incident where Miller violently swept the items off of his desk, hitting an African-American employee in the process. Such disparate treatment is sufficient to infer that these threats and acts of violence were racially motivated so that they may be considered on summary judgment.
2. "Severe or Pervasive" Harassment
In order to create a hostile work environment, any harassment based on race must be "sufficiently severe or pervasive to alter the conditions of [] employment and [] create an abusive environment." Baqir, 434 F.3d at 745-46. The "standard for proving an abusive work environment is intended to be a very high one because the standard is designed to filter out complaints attacking `the ordinary tribulations of the workplace.'" Wang v. Metro. Life Ins. Co., 334 F. Supp. 2d 853, 864 (D. Md. 2004) (citing Mackey v. Shalala, 80 F.3d 954, 959 (4th Cir. 1996)). In order for a hostile work environment claim to survive summary judgment, the conduct at issue must be far more severe than that of "a merely unpleasant working environment," Hopkins v. Balt. Gas Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996), and must be sufficiently "pervasive [so] as to become diffuse throughout every part of the . . . work environment in which plaintiff functioned." Schweitzer-Reschke v. Avnet, Inc., 874 F. Supp. 1187, 1195 (D. Kan. 1995). As such, courts usually only allow hostile work environment claims to proceed where the discriminatory abuse is near constant, oftentimes of a violent or threatening nature, or has
impacted the employee's work performance.
In Spriggs, the plaintiff was exposed on a "continuous daily basis" to particularly severe racial insults made by a supervisor in which he called a number of African-American employees "monkey[s]", "dumb monkey[s]", and "ni * * * * *." 242 F.3d at 182 ("Far more than a `mere offensive utterance,' the word `ni * * * *' is pure anathema to African-Americans. 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 such as `ni * * * *' by a supervisor in the presence of his subordinates.") (internal quotations omitted). Similarly, in Central Wholesalers, Inc., the Fourth Circuit reversed the lower court's grant of summary judgment and allowed the African-American plaintiff's hostile work environment claim to proceed where a number of her co-workers used the word "ni * * * *" in her presence on a daily basis, and two of her co-workers kept "blue-colored mop-head dolls in their offices . . . hanging from nooses which were tied around the dolls' neck[s]." 573 F.3d at 175. In Amirmokri v. Balt. Gas Elec. Co., the Fourth Circuit found that the alleged harassment was sufficiently severe or pervasive because an Iranian plaintiff was called "names like `the local terrorist,' a `camel jockey' and `the Emir of Waldorf'" on an almost daily basis, he was denied company benefits, and he suffered an ulcer as a result of the stress. 60 F.3d 1126, 1131 (4th Cir. 1995). In Demby v. Preston Trucking Co., the Court denied summary judgment where racial epithets were used repeatedly, the plaintiff experienced several incidents of disparate treatment, and his work space was vandalized with a painted swastika and a threatening and offensive phrase. 961 F. Supp. 873, 880 (D. Md. 1997). Finally, in Collier v. Ram Partners, Inc., the court denied summary judgment where plaintiff was subjected to repeated racial epithets and physical threats. 159 F. Supp. 2d 889, 890 (D. Md. 2001). As such, courts in the Fourth Circuit allow hostile work environment claims to proceed where a combination of the four Spriggs factors is present.
In contrast, courts in the Fourth Circuit typically grant summary judgment where many of these factors are missing, such that the abuse plaintiff alleges created a hostile work environment is not particularly frequent, threatening in nature, or disruptive to his ability to perform his work responsibilities. In Martin v. Merck Co., the Court granted summary judgment on a hostile work environment claim where African-American employees were subjected to numerous incidents of serious abuse where the word "ni * * * *" was used in plaintiff's presence, a racially offensive cartoon was posted on an African-American employee's office door, an employee was taunted with a noose, another employee was told he needed to "go back to the jungle," and Ku Klux Klan material was shown to an African-American employee on the internet. 446 F. Supp. 2d 615, 627 (W.D. Va. 2006). In granting summary judgment, the Court held that the acts of harassment plaintiff experienced were insufficiently frequent because he could only identify eight acts that took place over the course of twenty years. Id. Similarly, in Rose, this Court granted summary judgment for defendant because plaintiff could only identify two relatively non-severe racial insults that were non-threatening, and that did not appear to adversely impact plaintiff's ability to do her job. 2006 WL 173690, at *4. The racial comments at issue in Orenge v. Veneman were similarly infrequent and non-threatening. 218 F. Supp. 2d 758, 767 (D. Md. 2002) (holding that repeated racial comments such as "whites will never trust blacks again," "blacks are trying to get a free ride," and "you guys don't pull your weight" did not rise to the level of severe or pervasive).
The Court finds that Plaintiff has alleged sufficient facts to support his hostile work environment claim, and has identified approximately ten actionable incidents of harassment that took place between 2005 and 2007, while Carter worked under Miller's supervision: (1) the Wingate incident; (2) the presence of the monkey statute on Miller's desk; (3) several instances where Miller referred to the route drivers as his "black Fresh Prince[s] of Bel-Air" (4) Miller's comment to Areesha Meeks wherein he called her a "black bitch"; (5) three instances where Miller mocked traditional African-American hairstyles; (6) the incident wherein Miller threatened to kill Peres Turner with a gun; and (7) the incident where Miller threw the items off his desk, hitting Felton Williams in the head. In applying the first of the Spriggs factors, this Court holds that a reasonable jury could find that Miller's abuse was sufficiently frequent to support a claim. The Court has identified approximately ten incidents of racial harassment over the course of two years, such that a question of material fact exists as to whether the harassment Carter experienced was so "pervasive [] as to become diffuse throughout every part of the . . . work environment in which [he] functioned." Schweitzer-Reschke, 874 F. Supp. at 1195. While there is certainly no allegation that Miller made racial comments on a daily or weekly basis, as has been true in many cases where courts have allowed hostile work environment claims to proceed, the objective inquiry "is not, and by its nature cannot be, a mathematically precise test." Harris, 510 U.S. at 22.
Plaintiff also has identified two instances in 2004 where Miller called his employees "black bastards," and approximately five instances at the beginning of his tenure as general manager, presumably at some point in 2004 when he transferred to Landover, where he commented that the problems he was experiencing in the route department were attributable to the fact that his employees were African-American. ( See Doc. No. 63, Holmes Dep. at 23, 81-82, 87.) Carter did not begin working for Miller until 2005, and there is no evidence in the record that he was present for, or even knew about, these incidents. While it is firmly established law that a hostile work environment may be supported by incidents of harassment that were witnessed by but not directed at a plaintiff, it is less clear that this Court may consider incidents that Plaintiff did not even know about, and that could not possibly have contributed to Plaintiff's subjective impression of the hostility of his work environment. Spriggs, 242 F.3d at 184 ("Although [Defendant] contends that conduct targeted at persons other than [Plaintiff] cannot be considered, its position finds no support in the law."). Other circuits have taken differing views on this issue. Compare Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (holding that a court may consider "the lexicon of obscenity that pervaded the environment of the work place both before and after the plaintiff's introduction into its environs") with Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 335 (6th Cir. 2008) (holding that the court can only "consider evidence of other acts of harassment of which a plaintiff becomes aware during the period of his or her employment"). This Court need not take a position on this issue, as the facts alleged by Plaintiff are sufficient to support his claim even if these particular comments are not considered on summary judgment.
Furthermore, several of the above-mentioned incidents were particularly offensive and involved at least some kind of physical threat. Miller said of Wingate that he was "going to kick that black bastard's ass and drag his motherfucking ass across the fucking parking lot," Peres Turner sought a peace order after Miller threatened to shoot her, and Miller struck Felton Williams with items he violently threw off his desk. (Doc. No. 63 at 7.) In addition, assuming that Miller's monkey statute was intended to parody African-Americans, courts have repeatedly held that comparing an African-American to a monkey is a particularly severe and egregious practice. And finally, there is evidence in the record that Miller's harassment impacted Carter's ability to do his job. After the Wingate incident, Carter was so upset that he was unable to return to work, and went out on a route in order to get away from Miller and to calm down. When he recounted this incident to Gwaltney, he insisted on doing so in a neutral meeting place away from the office. As such, this Court finds that a reasonable jury could find that Carter's work environment was both objectively and subjectively hostile. While the number of racial incidents are fewer than those in many cases where courts have denied summary judgment, the presence of the other three Spriggs factors creates a question of material fact as to the severity of the conduct that cannot be resolved on summary judgment.
3. Imputing Liability to VLS
"Employers may avoid strict liability for a supervisor's harassment where no adverse employment action was taken against the employee and the employer can demonstrate that (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior and (2) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer." Sheikh v. 7-Eleven, Inc., No. AW-03-2270, 2004 WL 3584088, at *7 (D. Md. Dec. 17, 2004). The adequacy of VLS's response once it was aware of the harassment is a factual issue. See Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989). In Paroline, after a Unisys employee complained of sexual harassment by a coworker, Unisys responded by launching a formal investigation, disciplining the harasser, and requiring him to seek counseling. The employee was further instructed that any further incidents of harassment would result in his immediate termination. See id. Despite these efforts, the Court in that case found that Unisys' actions were intended to be nothing more than "a slap on the wrist," and held that a genuine issue of fact existed as to whether the company's actions were reasonably calculated to end the harassment. See id.
In the case at bar, VLS's response to Plaintiff Carter's repeated complaints does not even begin to approach the level of Unisys' actions in Paroline. Carter alleges that he complained about Miller's behavior on at least seventeen different occasions, including after the Wingate incident, when he spoke with Gwaltney and insisted on a written apology from Miller. ( See Doc. No. 63 at 9.) There is no evidence in the record that VLS initiated any kind of investigation into Miller's conduct, nor is there evidence that Miller ever faced any kind of discipline as a result. Carter maintains that he never received the apology he was promised, and was allegedly told by Gwaltney that "VLS was `the sandbox' of company chief executive officer and president David and Donald Struminger and that if he was `going to play in their sandbox, he would have to play by their rules.'" (Doc. No. 63 at 14.) As such, the Court finds that VLS's actions were not reasonably calculated to end the harassment Carter faced. There is sufficient evidence to impute Miller's actions to VLS, and the Court denies summary judgment as to Count VI accordingly.
Defendants do not address Plaintiff's claim for a hostile work environment based on retaliation in their motion for summary judgment. As such, the Court will deny summary judgment as to Count XI.
B. Discriminatory Denial of Promotion, Transfer, and Training Under 42 U.S.C. § 1981 (Counts VII VIII)
Plaintiff Carter also alleges he was denied a promotion, training opportunities, and a transfer to another Mohenis branch because of his race. Failure to promote, transfer, or train are disparate treatment claims that can be supported by either direct or circumstantial evidence. Demonstrating discrimination with circumstantial evidence requires the application of the burden-shifting framework set forth in McDonnell Douglas. See Chung Shin v. Shalala, 166 F. Supp. 2d 373, 376 (D. Md. 2001). In order to establish a prima facie case that a plaintiff was denied a promotion or a transfer because of race, he or she must prove that: "(1) he is a member of a protected group; (2) the defendant had an open position for which the plaintiff applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected under circumstances giving rise to an inference of discrimination." Janey v. N. Hess Sons, Inc., 268 F. Supp. 2d 616, 624 (D. Md. 2003); see also Venugopal v. Shire Labs., 334 F. Supp. 2d 835, 846 (D. Md. 2004). In order to establish a prima facie case that he was denied training opportunities, a plaintiff must prove that: (1) the plaintiff is a member of a protected class; (2) the defendant provided training to its employees; (3) the plaintiff was eligible for the training; and (4) the plaintiff was not provided training under circumstances giving rise to an inference of discrimination. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649-50 (citing Pafford v. Herman, 148 F.3d 658, 667 (7th Cir. 1998). If the plaintiff is able to make a prima facie case of discrimination, the burden shifts to the defendant to show that he or she had a legitimate, non-pretextual reason for taking the disputed employment action. See Chung Shin, 166 F. Supp. 2d at 376.
1. Failure to Promote and Transfer Claims
Plaintiff fails to make a prima facie case of failure to promote or transfer because he fails to provide evidence that there was an open position into which he could have been promoted or transferred so as to satisfy the second prong of the test. See, e.g., Janey v. N. Hess Sons, Inc., 268 F. Supp. 2d 616, 624 (D. Md. 2003) (granting summary judgment where "[p]laintiff fail[ed] to forecast sufficient evidence that [defendant] had an open position . . . and, therefore, [could not] fulfill the second element of the prima facie case"). Plaintiff argues that because VLS lacked a formal process of posting promotional opportunities for which employees could apply, and instead relied on an informal "tapping" system whereby employees were "tapped" by management for advancement, the application prong of the prima facie case is relaxed and a plaintiff can be treated as if he had actually applied for a specific position even if he did not formally do so. It is well established that an employee is not required to formally apply for a position when opportunities are not posted or otherwise made known to employees, as it is impossible to require an employee to apply for a position he did not know about. See Williams v. Giant Food, Inc., 370 F.3d 423, 431 (4th Cir. 2004) (internal quotation omitted) ("[I]f the employer fails to make its employees aware of vacancies, the application requirement may be relaxed and the employee treated as if she had actually applied for a specific position."). However, the Court rejects Plaintiff's interpretation of the case law wherein he argues that not only is a plaintiff excused from showing that he applied for a position, but he is also "not [even] required to demonstrate that a specific open position actually existed," whether he knew about it or not. ( See Doc. No. 63 at 56.) Such an argument stresses reasonableness. An employer cannot be found to have discriminated against an employee by not promoting him or transferring him into a position that does not even exist. Even in cases where an employee has been excused from having to show that he applied for a specific position, employment opportunities actually existed even if the employee did not know about them. See, e.g., Williams, 370 F.3d at 432-33; Moore v. Leavitt, 2007 WL 5123539, at *7 (D. Md. 2007).
As a result, Plaintiff Carter's failure to promote and transfer claims must fail. Carter can point to no specific available position at VLS or any other Mohenis depot for which he was qualified. It is undisputed that the only positions higher than Carter's in the VLS hierarchy were the Assistant General Manager, General Manager, and Vice President positions, all of which were filled. ( See Doc. No. at 27 n. 24.) Carter alleges that he had heard from Tim Sanderson, a route supervisor at a Mohenis depot located in Franconia, Virginia, that a position would soon be open because he planned to resign. ( See Doc. No. 63 at 56.) In contrast, Robert Mills, general manager of the Franconia division, submitted an affidavit asserting that there were no vacancies open at the time Carter sought a transfer. ( See id.) Plaintiff contends that Mills' affidavit directly conflicts with Carter's deposition testimony such that a dispute of material fact exists that would require a jury to weigh each party's credibility. The Court disagrees. Assuming that Carter's deposition testimony is true, and he was in fact informed that a route supervisor position in Franconia would come open at some unspecified point in the future, this is still insufficient to create a question of material fact because he offers no evidence that the position actually did become available during the time he worked at VLS. In contrast, Mills offers testimony that he did not hire any permanent, full-time route supervisors between October 2005 and April 2007 — two months after Carter left VLS. ( See Doc. No. 52-5 at 2.) While the Franconia depot did hire a replacement at some point in 2006 for Bill Gormours, a route supervisor who informed management he would be retiring, the replacement did not end up staying at Commercial Linen Service because Gormours decided not to retire.
Even if there were an open position, Plaintiff is unable to show that he was rejected from this hypothetical position under circumstances giving rise to an inference of discrimination. See Autry v. N.C. Dep't of Human Res., 820 F.2d 1384, 1386 (4th Cir. 1987) (holding that a plaintiff would have to show that "[he] was not promoted because of his race, not that [he] was a member of [a protected group] and was not promoted"). Gormours' temporary replacement was African-American, which creates an inference that Carter was not denied the same position because of his race, even though he did not apply for or even know of this vacancy. In addition, there is substantial evidence that Plaintiff has not been able to rebut Defendant's contention that Carter had not succeeded in his current position, which is "widely recognized as [a] valid, non-discriminatory bas[is] for any adverse employment decision." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 258-59 (1981). Furthermore, the promotion system Carter claims is discriminatory led to two prior promotions in 2003 and 2005. ( See Doc. No. 52 at 2-3.) Plaintiffs ask the Court to speculate that, despite Defendants' evidence to the contrary, a higher position was available at VLS or another unidentified Mohenis branch, Carter would have been interested in and qualified for such a position, and that but for Carter's race, he would have been promoted or transferred to this, as yet, unidentified position. Such speculation is insufficient to support a prima facie case of discriminatory denial of promotion or transfer. See McNeal v. Montgomery County, Md., No. 07-1323, 2009 WL 122607, at *6 (4th Cir. 2009) ("[A] plaintiff must present sufficient evidence, direct or circumstantial, for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practice." (internal quotations omitted)). The Court grants summary judgment as to Counts VII and VIII accordingly.
2. Failure to Train
Plaintiff further alleges, even though it is not an independent cause of action in the Complaint, that Plaintiff Carter was denied the opportunity to participate in VLS's Fast Track management training program because of his race. After reviewing the evidence in the light most favorable to Plaintiff, it is clear that he has presented no evidence of a denial of training that gives rise to an inference of discrimination, and thus he fails to make a prima facie case. There is evidence in the record that Carter received substantial management training before he was promoted into the route department superintendent position he held at the time of his resignation. ( See Doc. No. 64 at 28.) He admits that the thirteen-week management training program in which he participated was in fact more comprehensive than the training that would have been provided by the Fast Track program. ( See id.) Furthermore, Carter is unable to demonstrate that he was treated differently because of his race in being denied participation in the Fast Track program, as there is no evidence that anyone from VLS, of any race, ever participated in the Fast Track program. Nor is there evidence that individuals outside of the protected class were preferred when the company determined who would be allowed to participate, thus giving rise to an inference of discrimination. In Chika v. Planning Research Corp., the court found that the plaintiff's denial of training claim failed because he was unable to establish the race of other employees who were allegedly treated more favorably. 179 F. Supp. 2d 575, 585 (D. Md. 2002). Evidence of "discriminatory motive is critical." Fisher v. Md. Dep't of Housing Cmty. Dev., 32 F. Supp. 2d 257, 262 (D. Md. 1997). As such, Plaintiff's denial of training claim is not actionable.
C. Retaliatory Refusal to Promote and Transfer Under 42 U.S.C. § 1981 (Counts XII XIII)
Plaintiff Carter also alleges that he was retaliated against for opposing Plaintiff Tawwaab's firing by being denied a promotion or transfer. As discussed in section II.B, supra, a plaintiff must establish a prima facie case by showing that (1) the employee engaged in protected activity, (2) the employee suffered an adverse employment action, and (3) a causal connection exists between the employee's complaint and the adverse action. See Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). If a plaintiff succeeds in making a prima facie case, the burden shifts to the employer to prove that the employer had legitimate, non-pretextual reasons for taking the action in question. Id.
Even if Plaintiff were able to make a prima facie case, Carter is unable to show that VLS's reasons for not promoting or transferring him were mere pretext by rebutting VLS' assertion that there were no available positions into which Carter could have been promoted or transferred. An employer cannot be held liable for failing to promote or transfer an employee to a position that does not exist. Thus, for the reasons discussed in the prior section, the Court grants summary judgment as to Counts XII and XIII. D. Discriminatory and Retaliatory Constructive Discharge Based on Race Under 42 U.S.C. § 1981 (Counts IX XV)
Plaintiff Carter further alleges that he was constructively discharged by VLS because of his race. To prevail on a discrimination claim under § 1981, a plaintiff must show that he is a member of a racial minority, that his employer's termination of his employment was because of his race, and that the discrimination was intentional. See Jordan v. Alt. Res., Corp., 458 F.3d 332, 335 (4th Cir. 2006). Carter resigned, and thus must show that he was constructively discharged. "Constructive discharge occurs when `an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job.' A plaintiff must prove (1) deliberateness of the employer's action and (2) intolerability of the working conditions." Bryant v. Lucent Techs., Inc., 307 F. Supp. 2d 726, 742 (D. Md. 2004) (quoting Holsey v. Armour Co., 743 F.2d 199, 209 (4th Cir. 1984)).
Plaintiff Carter is unable to satisfy the second prong of the test and establish that the discrimination he faced was so intolerable that "a reasonable person in the plaintiff's position would have felt compelled to resign." Bryant, 307 F. Supp. 2d at 742-43. Constructive discharge claims are held to a high standard, and "[e]ven truly awful working conditions may not rise to the level of constructive discharge." Hill v. Verizon Md., Inc., No. RDB-07-3123, 2009 WL 2060088, at *13 (D. Md. July 13, 2009). "Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not intolerable as to compel a reasonable person to resign." Proa v. NRT Mid-Atl., Inc., 618 F. Supp. 2d 447, 468 (D. Md. 2002); see also Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) ("[Plaintiff] alleged that her supervisors yelled at her, told her she was a poor manager . . ., chastised her in front of customers, and once required her to work with an injured back. [The Court] agree[s] with the district court that these allegations, even if true, do not establish the objectively intolerable working conditions necessary to prove constructive discharge.").
Carter's constructive discharge claim fails because he is unable to show the intolerable nature of the abuse he faced. The "severe and pervasive" standard required to state a hostile work environment claim is lower than the "intolerability" standard required for a constructive discharge claim, and thus a finding that Carter's hostile work environment claim is actionable does not necessitate a finding that he was constructively discharged. See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) ("[W]orking conditions for constructive discharge must be even more egregious than the high standard for hostile work environment."); see also Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 (3d Cir. 2006) ("To prove constructive discharge, the plaintiff must demonstrate a greater severity of pervasiveness of harassment than the minimum required to prove a hostile work environment."); Griffin v. Delchamps, Inc., 176 F.3d 480 (5th Cir. 1999) (same). Carter is only able to state the minimum required to sustain his hostile work environment claim, and thus has insufficient evidence that he was subjected to a truly intolerable work environment that would leave a reasonable person with no choice but to resign. Carter's allegations that Miller called him race-neutral names, inconvenienced and undermined him in front of his superiors, and used sporadic racial epithets, even if true, are insufficient to establish intolerable conditions. As such, the Court will grant summary judgment as to Counts IX and XV.
E. Retaliation for Complaining About Discrimination Under 42 U.S.C. § 1981 (Count X)
Plaintiff Carter also states a generic claim for retaliation in violation of 42 U.S.C. § 1981. As discussed in section II.B, supra, a plaintiff must establish a prima facie case by showing that (1) the employee engaged in protected activity, (2) the employee suffered an adverse employment action, and (3) a causal connection exists between the employee's complaint and the adverse action. See Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). If a plaintiff succeeds in making a prima facie case, the burden shifts to the employer to prove that the employer had legitimate, non-discriminatory reasons for taking the action in question. Id.
Carter's retaliation claim fails because even assuming, arguendo, that Carter were able to establish that he engaged in protected activity, he is unable to establish that he was the victim of an adverse employment action. While an alleged adverse employment action need not be so severe and pervasive that it alters the terms or conditions of employment, it nonetheless must be materially adverse. See Martin v. Merck Co., 446 F. Supp. 2d 615, 637 (W.D. Va. 2006) (citing Burlington N. Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)). As such, a plaintiff is not required to show that the adverse action is in fact actionable discrimination, but "need only show that he experienced an action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. Santa Fe Ry., 548 U.S. at 68. Plaintiff contends that a jury could conclude that a reasonable worker would be dissuaded from making a charge of discrimination by (1) Miller's demeaning and belittling remarks that include the phrase "dumb motherfucker," (2) the fact that he allegedly undermined Carter's authority in front of his subordinates, (3) his insistence that Carter needlessly perform arbitrary and time-consuming tasks, and (4) Defendants' failure to promote or transfer Carter. ( See Doc. No. 63 at 35.)
Carter fails to establish that he was subjected to an adverse employment action that is sufficiently materially adverse so as to satisfy the second prong of the prima facie test. This Court has held that demeaning and disparaging comments by a supervisor, such as those directed at Carter by Miller, do not constitute an adverse employment action. See, e.g., Adams v. Upper Chesapeake Med. Ctr., Inc., No. AMD 08-346, 2009 WL 997103, at *4 (D. Md. 2009) ("personal slights are not adverse employment actions"); Blount v. Thompson, 400 F. Supp. 2d 838, 842 (D. Md. 2004) (stating that "disparaging remarks made by a supervisor do not state an adverse employment action"). Other circuits have also held that a change in job responsibilities, such as Miller's alleged insistence that Carter perform arbitrary and time-consuming tasks, does not constitute a materially adverse action if the new tasks "are not dirtier, more arduous, less prestigious, . . . objectively inferior, [or] possess[ing] [of] any analogous attribute." Stephens v. Erickson, 569 F.3d 779, 791 (7th Cir. 2009). In the instant case, Plaintiff alleges that Miller would frequently and arbitrarily order Carter to return to VLS's office while he was in the middle of a route for no legitimate business reason, only to require that Carter leave the VLS office and return to his route. However, they are able to point to only one specific instance where Miller engaged in the conduct alleged, which caused Carter to miss a family Thanksgiving celebration. ( See Doc. No. 63, Gwaltney Dep. at 171.) While undoubtedly irritating, this example of Miller's conduct is not analogous to the "dirtier, more arduous, less prestigious, [and] objectively inferior" task reassignment that courts have found necessary to constitute an adverse employment action. Furthermore, as stated above, Carter has failed to show that VLS's failure to promote him or transfer him to another VLS depot is attributable to anything other than the fact that there were no open positions. As a result, Plaintiff is unable to state a prima facie case of retaliation, and this Court will grant summary judgment as to Count X.
F. Retaliatory Denial of a Raise Under 42 U.S.C. § 1981 (Count XIV)
Plaintiff Carter also alleges that he was retaliated against for complaining about discrimination and harassment by being denied a raise. To set forth a prima facie case of retaliatory denial of a pay raise by circumstantial evidence, a plaintiff must demonstrate that (1) he engaged in protected activity; (2) he was denied a pay raise; and (3) there is a causal connection between his protected activity and his employer's denial of a raise. As with any other case of retaliation, the burden shifts to the defendant to prove that his or her reason for the adverse action is legitimate and non-discriminatory, and then back to the plaintiff to prove that the proffered reason is pretextual.
Plaintiff Carter's claim for retaliatory denial of a raise fails because, even assuming, arguendo, that he were able to make a prima facie case, he is unable to rebut VLS's legitimate, nondiscriminatory reason for not providing him with a pay raise. Plaintiff alleges that Gwaltney offered Carter a raise in August 2006, which Gwaltney later withdrew in response to Carter's unwillingness to fire Tawwaab. Defendants argue in response that Gwaltney never offered Carter a raise, but merely said that he would look into whether a raise was a possibility. However, at VLS, route supervisors are paid a percentage of the money earned on the routes they supervise and have no opportunity to earn individual pay increases. ( See Doc. No. 52 at 48.) Gwaltney testified both in his individual capacity and as a Federal Rule of Civil Procedure 30(b)(6) designee for VLS that Carter's income "is based on . . . what he might sell and earn commissions on. . . . As a route supervisor the pay structure is what the pay structure is and per se there are no individual raises." (Doc. No. 64, Gwaltney Dep. at 181-82; see also id., VLS Dep. at 161 ("The route supervisors are compensated based on . . . the average of the routes.").) Plaintiff attempts to manufacture a dispute of material fact by pointing to other language in Gwaltney's testimony as the VLS 30(b)(6) designee that implies that VLS had no "pay scale by position" and pay is "discretionary." ( See id., VLS Dep. at 146-47.) However, this language is not inconsistent with Gwaltney's other testimony. If a route supervisor's salary is determined by the money earned on the routes he supervises, the salary brought home by different route supervisors will vary depending on the success of each route such that there is no "pay scale by position." Furthermore, David Struminger also testified on deposition that route supervisors are compensated based on a fixed formula derived from the money earned on their routes, and Plaintiff Carter himself testified that route supervisors were paid a percentage of their routes. ( See id., Struminger Dep. at 261; Carter Dep. at 164.)
As such, the only way VLS could deliberately increase the amount of money a route supervisor earned is by recalculating his route so that the volume of business he supervised was greater. Gwaltney testified that he
honored Kenny's request [for a raise] and [he] sent a memo to Mr. Struminger regarding an increase in [Carter's] pay during a rerouting period that they were not prepared to do at which time his pay would have gone up . . . [Struminger] indicated that that was not our pay structure and that he couldn't make modifications to our pay structure for an individual.
( Id., Gwaltney Dep. at 182-83.) Plaintiff fails to provide any evidence that VLS's inability to recalculate the routes he supervised was tied to his resistance to Miller's firing of Tawwaab. Carter is unable to point to any situation where an individual who did not engage in protected activity received an increase in pay due to a route recalculation. See, e.g., Obi v. Anne Arundel County, Md., 28 F. App'x 333, 336 (4th Cir. 2002) (holding that a plaintiff "failed to rebut the [defendant's] proffered reason" for increasing employees' level of pay by failing to show that plaintiff's treatment was "disproportionate with individuals who did not engage in protected activity"). As such, Plaintiff has failed to put forth sufficient evidence of a causal connection, and this Court will grant summary judgment as to Count XIV.
G. Race Discrimination Under 42 U.S.C. § 1981 (Count V)
In Count V of the Complaint, Plaintiff alleges a generic discrimination claim under 42 U.S.C. § 1981 where he repeats his claims brought in Counts X, XI, XII, and XV. In doing so, he contends that Defendants subjected him to a "racially hostile work environment, retaliate[ed] against him for complaining about and opposing discrimination, den[ied] him transfers, den[ied] him a raise and constructively discharge[ed] him, on account of his race." (Compl. ¶ 84.) Each of these individual allegations have been discussed in detail above, and the Court will grant summary judgment as to Count V accordingly.
CONCLUSION
For the foregoing reasons, the Court will GRANT in part and DENY in part Defendants' Motion for Summary Judgment and GRANT Plaintiffs' Motion for Leave to File a Third Amended Complaint and for Joinder of Additional Party. As such, the only claims in the Third Amended Complaint that remain outstanding are Counts VI and XI. A separate Order will follow.