United States District Court, D. Maryland
Elabbas M. Abdelnaby
Durham D&M LLC, et al.
before the Court is Defendants', Durham D&M LLC,
Durham School Services LP (“Durham”), and Durham
Transportation, Inc., Motion for Summary Judgment. (ECF No.
71). The Motion is ripe for disposition and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For
the reasons stated below, the Court will grant the Motion.
Elabbas M. Abdelnaby is a former employee of Defendants. (Am.
Compl. ¶ 1, ECF No. 40). On May 21, 2013, Abdelnaby
attended a meeting called by Defendants' management
personnel, where many employees were present. (Id.).
During the meeting, Abdelnaby asked one of the managers a
question, when another Durham driver, Frank McNeil,
interrupted him by saying, “You ignorant African
nigger, learn English or go home” (the
“Incident”). (Id. ¶ 2; Abdelnaby
Dep. 73:9-11, Sept. 6, 2016, ECF No. 71-5). Many employees
laughed after McNeil's statement, and none of
Defendants' management personnel took action during the
meeting. (Am. Compl. ¶¶ 2-3). Ten days later, on
May 31, 2013, Abdelnaby filed a complaint through
Durham's employee hotline. (Abdelnaby Dep. 113:1-5;
see also id. Ex. 3, ECF No. 71-6). The hotline
representative created a report describing the Incident.
(Id. Ex. 3). Durham assigned Abdelnaby's
complaint to John Kemblowski, Northeast Area Human Resources
Manager. (Kemblowski Decl. ¶¶ 2, 6, ECF No. 71-4).
maintain Kemblowski began an investigation of Abdelnaby's
complaint on May 31, 2013, the same day Abdelnaby filed his
complaint. (Id. ¶ 6). Defendants further
maintain that Kemblowski interviewed McNeil about the
Incident. (Id. ¶ 7). Kemblowski contacted
Abdelnaby to request an interview, but they never spoke.
(Id. ¶ 8). As a result of Kemblowski's
investigation, Defendants contend they gave McNeil a final
written warning for the Incident and for an unrelated
incident. (Id. ¶ 9; see also id. Ex.
B). Abdelnaby disputes that Kemblowski investigated the
complaint or interviewed McNeil. Abdelnaby also disputes that
Defendants gave McNeil a final written warning. The parties
do not dispute that Abdelnaby has not made any further
complaints of discrimination by McNeil or any other Durham
employee to Defendants since reporting the Incident.
(Abdelnaby Dep. 198:17-20; id. 200:1-8).
November 4, 2014, Abdelnaby initiated this action in the
Circuit Court for Baltimore City, Maryland. (Compl., ECF No.
2). On December 16, 2014, Defendants removed this action to
this Court based on federal question jurisdiction under 28
U.S.C. § 1331 (2012) and diversity jurisdiction under
§ 1332. (ECF No. 1). On November 24, 2015, Abdelnaby
filed an Amended Complaint. (Am. Compl.). In his four-count
Amended Complaint, Abdelnaby alleges: employment
discrimination in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), as amended, 42 U.S.C.
§§ 2000e et seq. (2012) and Title I of the
Civil Rights Act of 1991 (“Title I”), 42 U.S.C.
§1981(a) (Count I); violation of the Civil Rights Act of
1866, 42 U.S.C. §§ 1981 et seq. (Count
II); violation of the Maryland Fair Employment Practices Act
(“MFEPA”), Md. Code Ann., State Gov't
§§ 20-601 et seq. (West 2015) (Count III);
and attorney's fees and costs (Count IV). (Id.).
On October 14, 2016, Defendants moved for summary judgment.
(ECF No. 71). On October 31, 2016, Abdelnaby opposed the
Motion, (ECF No. 73), and on November 17, 2016, Defendants
filed a Reply, (ECF No. 74).
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A).
Significantly, a party must be able to present the materials
it cites in “a form that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting
affidavits and declarations “must be made on personal
knowledge” and “set out facts that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985) (citation omitted).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248. If the nonmovant has
failed to make a sufficient showing on an essential element
of her case where she has the burden of proof, “there
can be ‘no genuine [dispute] as to any material fact,
' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23
VII provides that “[i]t shall be an unlawful employment
practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). An employer
violates § 2000e-2(a)(1) by, inter alia,
requiring an African-American employee to work in a racially
hostile environment. E.g., Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015).
A hostile work environment exists when “the workplace
is permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an
abusive working environment.” Id. (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). To survive summary judgment, a plaintiff must show
that a reasonable jury could find that the harassment was
“(1) unwelcome; (2) based on [his] race; (3)
sufficiently severe or pervasive to alter the conditions of
[his] employment and to create an abusive work environment;
and (4) imputable to [his] employer.” Pryor v.
United Air Lines, Inc., 791 F.3d 488, 495-96 (4th Cir.
2015) (citing Okoli v. City of Balt., 648 F.3d 216,
220 (4th Cir. 2011)). A plaintiff must prove the same
elements for hostile work environment claims under §
1981. E.g., Pryor, 791 F.3d at 495 (citing
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184
(4th Cir. 2001)).
parties dispute whether Abdelnaby has shown that a reasonable
jury could find that McNeil's harassment during the
Incident was imputable to Defendants-the fourth
element.Under this element, when the harasser is
the victim's co-worker rather than the victim's
supervisor, the co-worker's harassment is imputable to
the employer only if the employer was “negligent in
controlling workplace conditions.”
Boyer-Liberto, 786 F.3d at 278 (quoting Vance v.
Ball State Univ., 133 S.Ct. 2434, 2439 (2013)). That is,
hostile work environments created by co-workers are imputable
to an employer if the employer “knew or should have
known about the harassment and failed to take effective
action to stop it by responding with remedial action
reasonably calculated to end the harassment.”
Pryor, 791 F.3d at 498 (quoting EEOC v. Sunbelt
Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008))
an employer's response to harassment was
“reasonably calculated to end the harassment”
depends, in part, on the “seriousness” of the
harassment. Id. Using the seriousness of the
harassment as a benchmark, courts examine whether an
employer's response was “proportional” by
examining “the promptness of any investigation, the
specific remedial measures taken, and the effectiveness of
those measures.” Id. Of course, “[t]here
is no ‘exhaustive list' or ‘particular
combination' of remedial measures or steps” that an
employer must respond with to “insulate itself from
liability.” EEOC v. Xerxes Corp., 639 F.3d
658, 669 (4th Cir. 2011) (quoting EEOC v. Cent.
Wholesalers, Inc., 573 F.3d 167, 178 (4th Cir. 2009)).
Courts consider “the promptness of the employer's
investigation when complaints are made, whether offending
employees were counseled or disciplined for their actions,
and whether the employer's response was actually
effective.” Id. When the harassment ceases
after the employer's response to it, the response was
actually effective-“which in turn evidences” that
the employer's response was reasonably calculated to end
the harassment, and thus, the harassment is not imputable to
the employer. Id. (quoting Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998)).
Defendants argue that the Incident is not imputable to them
because the undisputed facts establish that their response to
the Incident was reasonably calculated to end the harassment.
The Court agrees.
contends that Kemblowski should not have been a part of the
investigation because Kemblowski led the May 21, 2013 meeting
at which the Incident occurred. He also maintains that
Defendants failed to punish Kemblowski and another
individual, Eric Owen, for failing to admonish McNeil during
the Incident. Abdelnaby overlooks that “[t]here is no
‘exhaustive list' or ‘particular
combination' of remedial measures or steps”
Defendants must respond with. See id. (quoting
Cent. Wholesalers, 573 F.3d at 178). Indeed, the
Fourth Circuit has observed that plaintiffs “often feel
that their employer ‘could have done more to remedy the
adverse effects of the employee's conduct.'”
Id. at 674.
of focusing on what Defendants did not do, the Court must
focus on Defendants' response to the Incident to
determine whether it was “reasonably likely to stop the
harassment.” Id. (quoting Knabe v. Boury
Corp., 114 F.3d 407, 414 (3d Cir. 1997). The Court
concludes that the undisputed facts show it was. To be sure,
the harassment at issue-the use of a racial epithet-is very
serious. But Defendants demonstrate that they promptly
investigated the Incident. See id. at 669. The
investigation began the same day Abdelnaby called
Durham's employee hotline to report the Incident-May 31,
2013. (Kemblowski Decl. ¶ 6). Defendants establish that
they disciplined the offending employee, McNeil, by giving
him a final written warning. Id. ¶ 9; see
Xerxes, 639 F.3d at 669. And Defendants prove that their
response was actually effective. See Xerxes, 639
F.3d at 669. The parties do not dispute that Abdelnaby has
not made any further complaints of discrimination by McNeil
or any other Durham employee to Defendants since reporting
the Incident. (Abdelnaby Dep. 198:17-20; id.