UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1881
JIMMY GIBSON, SR.; JIMMY GIBSON, JR.; HOWARD H. PIERCE; RANDY
CLARK; TERRY WHITE; ERTLE P. MOORE,
Plaintiffs - Appellants,
v.
FLUOR DANIEL SERVICES CORPORATION,
Defendant - Appellee,
and
FLUOR ENTERPRISES, INC., d/b/a Fluor Facility and Plant
Services, Incorporated; FLUOR CONSTRUCTORS INTERNATIONAL,
INCORPORATED; FLUOR DANIEL ILLINOIS, INCORPORATED; FLUOR
FEDERAL SERVICES, INCORPORATED; FLUOR INDUSTRIAL SERVICES,
INCORPORATED; FLUOR NE, INCORPORATED; FLUOR MAINTENANCE
SERVICES, INCORPORATED,
Defendants.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:05-cv-00525-WLO)
Argued: May 13, 2008 Decided: June 11, 2008
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Geraldine Sumter, FERGUSON, STEIN, CHAMBERS, GRESHAM &
SUMTER, PA, Charlotte, North Carolina, for Appellants. John
Doughty Cole, Sr., OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
Charlotte, North Carolina, for Appellee. ON BRIEF: Nicholas J.
Sanservino, Jr., OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Six Native Americans bring this employment discrimination suit
against Fluor Daniel Services Corporation (“Fluor”). The district
court granted summary judgment to Fluor; we affirm.
I.
Jimmy Gibson, Sr., Jimmy Gibson, Jr., Howard H. Pierce, Randy
Clark, Terry White, and Ertle P. Moore (collectively “the
employees”) filed this action against Fluor. All of the employees,
except Gibson, Jr., who complains of Fluor’s failure to hire him,
worked for Fluor at the Duke Power Belews Creek between mid-2002
and early 2003; most were discharged by Fluor after violating
company rules. Nevertheless, the employees allege that they were
subjected to a hostile work environment, unlawfully terminated,
refused promotion, refused hiring, and retaliated against in
violation of 42 U.S.C. § 1981 (2000) and suffered, at Fluor’s
hands, intentional infliction of emotional distress, negligent
infliction of emotional distress, negligent hiring or supervision,
and wrongful discharge in violation of state law. After completion
of discovery, the magistrate judge issued a thorough opinion,
recommending that the district court grant Fluor’s motion for
summary judgment with respect to all claims. The district court
adopted the magistrate judge’s recommendation in its entirety, and
the employees now appeal.
3
II.
After careful review of the magistrate judge’s recommendation,
the extensive record, and the parties’ excellent briefs and oral
arguments, we can only conclude that the district court properly
granted summary judgment to Fluor. For the most part, we agree
with the rationale set forth by the magistrate judge, and with the
few exceptions noted within, adopt it as our own.1
A.
The employees allege that Fluor subjected them to a hostile
work environment. To prevail on such a claim, they must proffer
evidence that they suffered harassment that was “(1) unwelcome; (2)
based on race; and (3) sufficiently severe or pervasive to alter
the conditions of employment and create an abusive atmosphere.”
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001).
The employees point to the presence of ugly racist graffiti in
the many port-o-johns surrounding the large construction site in
which they worked and the use of racially offensive derogatory
remarks on site. They complain that the magistrate judge erred in
1
The magistrate judge characterized several of the employees’
contentions as vague, conclusory, and unsubstantiated. Of course,
unsupported speculation will not defeat evidence proffered in
support of a summary judgment motion. See Francis v. Booz, Allen
& Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006). But
allegations of specific factual contentions, even if lacking exact
dates or details, differ from conclusory allegations. On review,
we give the employees the benefit of all factual allegations,
unless Fluor offered contrary evidence that the employees failed to
challenge.
4
evaluating the graffiti separately from their evidence as to the
general abusive workplace atmosphere. However, after evaluating
the graffiti together with the other evidence the employees offer
of a hostile work environment, we believe that the magistrate judge
nonetheless reached the correct conclusion. The alleged conduct
was not “sufficiently severe or pervasive to alter the conditions
of employment” or “create an abusive atmosphere.” Id.
B.
The employees also challenge several adverse employment
actions.
The majority of the employees assert that Fluor discharged
them for discriminatory reasons. A plaintiff can establish such a
claim in two ways.
First, under Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003),
an employee can offer sufficient direct or circumstantial evidence
of impermissible racial motives for the discharge. In this case,
however, as the magistrate judge explained, the employees have
failed to offer such evidence, and the record offers well-
substantiated alternate grounds for their discharge, e.g., Fluor
concluded that Gibson, Sr., threatened a supervisor with a welding
lead, that Pierce overturned a truck, that Clark worked within six
feet of the edge of an elevated platform without a safety harness,
and that White fought with a co-worker.
5
Alternatively, a plaintiff can demonstrate discriminatory
discharge by offering evidence from which a factfinder could
conclude, inter alia, that (1) the prohibited conduct in which he
engaged was comparable in seriousness to misconduct of employees
outside the protected class; and (2) he suffered more severe
discipline for their misconduct than the comparable employees
outside the protected class. Taylor v. Va. Union Univ., 193 F.3d
219, 234 (4th Cir. 1999) (en banc). This the employees have also
failed to do. The employees consistently complain that they did
not engage in the misconduct for which they were discharged and
that the relevant Fluor official, Paul Burgess,2 erred in finding
that they did engage in this misconduct. But “[a]n employer who
fires an employee under the mistaken but honest impression that the
employee violated a work rule is not liable for discriminatory
conduct.” Damon v. Fleming Supermarkets, 196 F.3d 1354, 1363 n.3
(11th Cir. 1999); see also Holland v. Washington Homes, Inc., 487
F.3d 208, 220 (4th Cir. 2007). Nothing in the record supports the
view that Burgess, even if incorrect, did not honestly believe that
the employees engaged in the misconduct in question. Thus, the
discharge claims fail.
2
Fluor asserts that Paul Burgess did not know that the
employees were Native Americans and so could not have discriminated
against them on this basis. The employees have offered some
evidence to the contrary. Accordingly, we do not in any way rely
on Burgess’s asserted lack of knowledge with regard to this matter.
6
The employees also protest two other kinds of employment
actions -- failure to promote and failure to hire. Gibson, Sr.,
Pierce, and White allege that Fluor discriminated against them when
it refused to promote them under circumstances giving rise to an
inference of unlawful discrimination; Gibson, Jr., asserts Fluor
similarly discriminated in refusing to hire him. See Honor v.
Booz-Allen & Hamilton, Inc., 383 F.3d 180, 189 (4th Cir. 2004). We
agree with the magistrate judge that Gibson, Sr., Pierce, and White
failed to offer evidence from which a jury could infer unlawful
discrimination and that Gibson, Jr., failed to offer any evidence
supporting an inference that Fluor did not hire him because of
unlawful discrimination. Summary judgment on these claims was also
proper.
C.
Finally, the employees allege that Fluor unlawfully retaliated
against them. To make out a prima face case of retaliation, a
plaintiff must demonstrate: (1) he engaged in protected activity;
(2) the employer took an adverse action against him; and (3) a
causal relationship exists between the protected activity and the
employer’s adverse actions. See Price v. Thompson, 380 F.3d 209,
212 (4th Cir. 2004). If a plaintiff makes this showing, an
employer can offer a nonretaliatory reason for the employment
action, which the plaintiff must demonstrate is pretextual in order
to prevail. Id.
7
Unquestionably, Fluor took adverse employment actions against
the employees. Moreover, although it is a close question, we
believe that the employees have proffered sufficient evidence from
which a jury could conclude that they engaged in protected activity
-- namely, complaints about the port-o-johns and racist language
and treatment in the workplace. But the employees have offered no
evidence that a causal nexus existed between any adverse employment
action and the protected activity. Moreover, Fluor offered
nondiscriminatory reasons for the employment actions, which the
employees failed to rebut. Thus, the district court also properly
granted summary judgment on these claims.3
III.
For all of these reasons, the judgment of the district court
is
AFFIRMED.
3
For the reasons stated by the magistrate judge, the
employees’ state law claims fail as well.
8