ORDER GRANTING REQUEST TO APPEAR BY TELEPHONE AT HEARING ON MOTION TO DISMISS
WILLIAM SHUBB, District Judge
The Court having reviewed the Request to Appear by Telephone of defendant JPMorgan Chase Bank, N.A., an acquirer of certain assets and liabilities of Washington Mutual Bank from the FDIC acting as receiver ("JPMorgan" or "Defendant"), erroneously sued as JPMorgan Chase Bank, NA., as successor by merger to Washington Mutual Bank aka JPMorgan Chase Bank, N.A., as an acquirer of certain assets and liabilities of Washington Mutual Bank from the FDIC acting as receiver through its undersigned counsel, seeks leave of Court for its counsel to attend the hearing on the Motion to Dismiss ("Motion") before the Honorable William B. Shubb currently set for August 30, 2010 at 2:00 p.m. via telephone, as follows:
IT IS HEREBY ORDERED, that JPMorgan may appear telephonically at the hearing on the Motion to Dismiss, currently set to be heard on August 30, 2010 at 2:00 p.m. in Courtroom 5, before the Honorable District Judge William B. Shubb of the above-entitled Court, by and through its counsel, S. Christopher Yoo, (714) 852-6868.
laim, 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,
126 S.Ct. 2405,
165 L.Ed.2d 345 (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 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, 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, 257 Va. 256, 513 S.E.2d 395, 397 (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.
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. AFFIRMED.
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 (2) trial court allowing prosecutor to make allegedly improper remarks in closing argument was not plain error. 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.