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Nurse v. Rhodes Financial Services, Inc.

United States District Court, S.D. Georgia, Augusta Division

March 11, 2019

RONALD A. NURSE, Plaintiff,



         Before the Court is Defendant's motion for summary judgment. (Doc. 19.) Defendant's motion seeks dismissal of each of Plaintiff's remaining employment discrimination claims. For the reasons set forth below, Defendant's motion is GRANTED.

         I. BACKGROUND

         This employment discrimination case arises out of Plaintiff Ronald A. Nurse's brief employment with TaxSlayer Financial Services Group, LLC, which is owned and operated by Defendant Rhodes Financial Services, Inc. (Def.'s Statement of Material Facts ("Def.'s SOMF"), Doc. 19-1, ¶¶ 1, 3.)[1] Plaintiff, acting pro se, filed a complaint alleging race, age, sex, and national origin discrimination and violation of his rights under the Eighth and Fourteenth Amendments. (Compl., Doc. 1, at 2.) The United States Magistrate Judge screened the complaint and sanctioned Plaintiff's race discrimination and retaliation claims while recommending dismissal of Plaintiff's age discrimination, sex discrimination, and constitutional claims. (Report and Recommendation, Doc. 5, at 4-5; Order of Dec. 6, 2017, Doc. 4, at 3.) The Court adopted that recommendation without objection from either party. (Order of Jan. 3, 2018, Doc. 8.)

         A. Plaintiff's Allegations of Discrimination

         In October 2016, Plaintiff, an African-American man, was hired as a seasonal employee to work in Defendant's customer service department. (Dep. of Ronald A. Nurse ("Nurse Dep."), Doc. 19-2, at 39-42.) According to Plaintiff, he experienced multiple instances of discrimination against African-Americans during his employment. The complaint alleges black employees were forced to park their cars in a separate lot from other workers, Defendant refused to timely pay black employees, and Defendant's white employees looked down on their black co-workers because of feelings of hatred and contempt. (Compl., at 3-4.)

         Plaintiff further alleges that on November 28, 2016, he was harassed by two of his white co-workers. (Id. at 4.) Jacob McNeil referred to Plaintiff as his "slave" and another co-worker mimicked beating Plaintiff with a metal rod. (Id.) On November 30th, Candes "Candi" Spencer, one of Plaintiff's white supervisors, instructed Plaintiff to not sit next to her. (Id.) Plaintiff alleges Spencer was a known racist because she admonished female black employees for defecating on the toilets in the women's restroom. (Id.) Next, on December 2nd or 3rd, Will Smith, a white supervisor, reprimanded Plaintiff in front of other workers for visiting websites during work. (Id.) Plaintiff contends Smith was "nasty, rude, and condensing [sic]" and singled out Plaintiff despite multiple other employees also visiting websites. (Id.) This incident led Plaintiff to declare he quit and leave the building "to avoid a bad decision and violent altercation." (Id.; see also Nurse Dep., at 163, 188.) Plaintiff never returned to work after the incident with Smith. (Def.'s SOMF, ¶ 46.)

         B. Evidence Submitted with Summary Judgment Motion

         While Plaintiff's complaint levies multiple serious allegations of discrimination, his deposition testimony undermines many of those allegations. Plaintiff admitted the parking policy applied to all seasonal employees, regardless of race. (Nurse Dep., at 58; see also Ex. 5 to Nurse Dep., at 15.) Plaintiff also admitted that all seasonal employees were paid on the same day.[2](Id. at 71-76.) Next, Plaintiff conceded that Candes Spencer's warning to female employees about bathroom cleanliness was directed at all female seasonal employees. (Id. at 145-46.)

         When asked about the other incident with Spencer, Plaintiff provided that Spencer instructed him not to sit next to her that day at work.[3] (Id. at 194.) Plaintiff immediately confronted Spencer by asking if the reason she did not want him to sit next to her was because he was black. (Id. at 194-95.) Spencer responded that she just did not want Plaintiff to sit next to her. (Id.) That seat remained empty for the rest of the shift. (Id. at 195.)

         As to the November 28th incident, Plaintiff explained that an unknown white male employee was walking by his desk with metal rods when another white employee, Jacob McNeil, said "you're going to beat our slave? Don't. You know, you can't beat our slave like that." (Id. at 88-89.) The unknown man began swinging the metal rod at Plaintiff's head as if he were whipping a slave. (Id. at 89.) When asked whether the metal rod contacted him, Plaintiff first equivocated by stating, "[t]he rods didn't - it didn't hit me directly but it scraped me. ... I don't know if it actually hit me or whatever. ... I was in such of a shock that I couldn't even comprehend what was happening." (Id. at 89-90.) Later, Plaintiff admitted that the metal rod made no physical contact with him. (Id. at 103-04.)

         Plaintiff complained about the incident to Spencer, who reported the events to Defendant's Human Resources Department ("HR"). (Id. at 106-07.) HR investigated the matter by promptly interviewing Plaintiff, McNeil, and other witnesses. (Aff. of Cara Rolen ("Rolen Aff."), Doc. 19-5, ¶ 8.) According to Plaintiff, the investigation could not identify the employee with the metal rods, but Cara Rolen, Defendant's HR Coordinator, indicated it was IT employee Jared Campbell and the metal rods were in fact flexible fiberglass tubes called fish poles used to run cables in the ceiling. (Id. ¶ 9.) Rolen subsequently instructed Campbell not to engage in horseplay in the workplace. (Id. ¶ 10.)

         Defendant's investigation concluded that McNeil's actual comments during the incident were: "You're not going to hit anyone with that, are you?" and "Are you going to beat him or whip him?" Id. ¶¶ 7-8; Aff. of Jacob McNeil ("McNeil Aff."), Doc. 13-4, ¶ 4.) McNeil maintains he never used the word 'slave' or any other racially insensitive term nor did he intend for the statement to be anything but a joke. (McNeil Aff., ¶¶ 6-7.) Furthermore, McNeil did not witness Campbell hit anyone with the rods and never even made "any type of motion with the rod." (Id. 16.) Plaintiff testified that McNeil later apologized and indicated he was only joking around. (Nurse Dep., at 168.) In fact, Plaintiff revealed that he got along well with McNeil, who was "one of the - the white fellows in there that I felt comfortable around and I didn't feel any racism or anything." (Id. at 249.)

         Finally, the parties submit conflicting accounts of what occurred on December 2nd or 3rd between Plaintiff and Will Smith. Plaintiff contends that on December 2nd Defendant's computer system went down so many seasonal employees were visiting websites and playing cards. (Id. at 124.) Will Smith[4] approached Plaintiff and accused him of "printing stuff" in a "real nasty" manner that included "pointing in [Plaintiff's] face like he wanted to fight." (Id. at 126-27.) Another supervisor intervened, but at this point Plaintiff could no longer put up with the "race hating stuff." (Id. at 188.) He said, "I can't do this. . . . [i]t's just not worth it," handed his badge over, and quit. (Id. at 163, 188.) Plaintiff admitted that neither person made physical contact with him, said any racially charged words, or threatened him. (Id. at 183, 188, 199.)

         Defendant submits a different version of the incident. The intervening supervisor was Denis Flynn, who submitted an affidavit and copy of an email he sent on December 3rd recounting the events. (''Aff. of Denis Flynn ("Flynn Aff."), Doc. 19-3.) According to Flynn's email, on December 3rd, Plaintiff forgot his badge and had to return home to retrieve it before he could start work. (Flynn Aff., Ex. B.) He also forgot his login password for Defendant's computer system, which Will Smith reset for Plaintiff. (Id.) While helping Plaintiff log into the system, Smith reminded Plaintiff not to visit non-work-related websites. (Id.) This comment was prompted by Smith's discovery that Plaintiff had printed coupons[5] on December 2nd, the night before. (Id.) A few minutes after that conversation Plaintiff confronted Smith at his desk and accused Smith of singling him out and being disrespectful. (Id.) Smith and Flynn's attempts to calm Plaintiff down were futile, and Plaintiff threw his badge down and left the office. (Id.) Flynn's email also lists four seasonal employees who witnessed the incident, but there is no evidence in the record from those employees. (Id.)

         After the altercation with Smith, Plaintiff did not return to work. (Def.'s SOMF, ¶ 46.) Plaintiff filed a charge with the United States Equal Employment Opportunity Commission ("EEOC"). (Compl., at 5.) The EEOC issued a right to sue notice on July 7, 2017, and Plaintiff filed his complaint and motion to proceed in forma pauperis shortly thereafter. (Docs. 1, ...

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