UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-2127
KYLE DAWSON,
Plaintiff - Appellant,
v.
WASHINGTON GAS LIGHT COMPANY; DENNIS SAMUEL; KEVIN GORDON,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:18-cv-00971-CMH-JFA)
Argued: May 4, 2021 Decided: July 13, 2021
Before WILKINSON, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Wilkinson and Judge Harris joined.
ARGUED: Patricia Armstrong Randle, RANDLE & RANDLE ATTORNEYS AT LAW, LLC, Greenbelt, Maryland, for Appellant. Lincoln Owens Bisbee, MORGAN LEWIS & BOCKIUS, LLP, Washington, D.C., for Appellees. ON BRIEF: Alex S. Gordon, Associate General Counsel, WASHINGTON GAS LIGHT COMPANY, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. WYNN, Circuit Judge:
Kyle Dawson, a former employee of Washington Gas Light Company
(“Washington Gas”), sued Washington Gas and two of his former supervisors (collectively,
“Defendants”) alleging race and color discrimination, unlawful retaliation, and the creation
of a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 and
42 U.S.C. § 1981. Dawson appeals from the district court’s entry of summary judgment in
favor of Defendants on each of his claims. We affirm.
I.
A.
In reviewing an award of summary judgment, we “state the facts and draw all
reasonable inferences in the light most favorable to [Dawson], the nonmoving party.”
Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 115 (4th Cir. 2021) (citing Smith v.
Collins, 964 F.3d 266, 274 (4th Cir. 2020)).
In January 2007, Dawson began working at Washington Gas, a “regulated natural
gas distribution utility.” J.A. 54. 1 During the period relevant to this matter, Washington
Gas had a labor contract with Local Union No. 96—a union affiliated with the International
Brotherhood of Teamsters. As a union member, Dawson’s employment was governed by
that labor contract.
Under the contract’s “Disciplinary Action Guidelines,” employees were subject to
a progressive, five-step discipline structure where “[t]he actual step (level of action) taken”
1 Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.
2 was based on “the nature of the current incident as well as the employee’s prior record.”
J.A. 180–81. At the first step, employees were disciplined with a written reprimand.
Infractions occurring under step two and step three could result in both a written reprimand
and a two-day (step two) or five-day (step three) suspension. Step-four infractions resulted
in a final disciplinary warning and a ten-day suspension. Finally, an infraction under step
five led to termination. However, previous infractions did not always result in more severe
punishment for subsequent infractions because under the contract, an employee on a given
step of discipline dropped one step “every [twelve] months that the employee d[id] not
incur an additional step of discipline.” J.A. 181.
It appears that Dawson kept a clean disciplinary record until 2013, when he was a
crew leader in training through Washington Gas’s Crew Leader Development Program, an
“18-month program consist[ing] of classroom and field activities for participants as
‘trainees.’” Opening Br. at 5. His supervisor in the program was Robert Surdam.
According to Dawson, his relationship with Surdam was “neutral” until Surdam saw
a photo of Dawson’s mother—who is white—and learned that Dawson was biracial
because his father is African American. J.A. 768. Dawson alleged that thereafter,
Surdam—who is white—directed his anger regarding his own daughter’s interracial
relationship towards Dawson.
Dawson’s relevant disciplinary troubles commenced on June 28, 2013, when
Surdam issued Dawson a first-step disciplinary action for excessive tardiness. An
“Employee Performance Discussion Tracking Log” reflects that Dawson was late on at
least twelve occasions between February 2012 and his reprimand on June 28, 2013. J.A.
3 586–87. But while Dawson received a written reprimand for arriving late, it appears that
two other monoracial Washington Gas employees evaded discipline for tardiness. One
employee—an African American man—was late “numerous times,” yet he “never received
any discipline at all.” J.A. 847. And Surdam told the other employee—a white man—to
“go around back” when he was late so that “no one w[ould] see [him] come in late.” Id.
Surdam took second-step disciplinary action against Dawson on August 14, 2013
for Dawson’s involvement in an “avoidable accident” the previous month. J.A. 578–79. A
description of the accident, memorialized in a “Vehicle Accident Investigation Report,”
states: “As [Dawson] changed from [the] left to [the] right lane to make a right-hand turn,
he collided with [an]other vehicle that was traveling in the right lane.” J.A. 581. Dawson
received a written reprimand and a two-day suspension.
A little over a month later, on September 25, 2013, Dawson received a third-step
disciplinary action for failing to follow Washington Gas procedures and policies, resulting
in yet another written reprimand and a five-day suspension. The offense summary stated
that “[o]n Friday August 3, 2013 [Dawson] was using the back-hoe to dig a gas leak,” when
he “struck a water service causing a water leak.” J.A. 571. And while it appears that the
water-service line was not marked, the report stated that “there was clear evidence of a
water service where he was machine digging,” that “[t]he water meter box was
approximately eight (8) feet in front of the back hoe,” and that Dawson had previously
4 “been informed about locating all facilities before digging.” Id. Upon receiving a third-step
disciplinary action, Dawson was removed from the Crew Leader Development Program. 2
After his removal from the leadership program, Dawson worked as a crew mechanic
under the supervision of Joseph Dobbins. Although he gained a new supervisor, Dawson’s
disciplinary troubles continued. On November 20, 2013, he received a fourth-step
disciplinary action for failing to timely report an incident involving a company vehicle.
The disciplinary action form reports that while exiting the fleet parking garage, Dawson
swiped his ID to raise the exit gate, and as he was exiting, the gate lowered and struck his
vehicle. But rather than report the incident, Dawson inspected his vehicle for damage, and
finding none, went about his business.
After making multiple complaints to Washington Gas’s human resources
department about harassment and discrimination, Dawson filed a charge with the Equal
Employment Opportunity Commission on March 28, 2014. Despite Dawson’s multiple
reprimands, both his 2013 year-end review from Surdam and his 2014 mid-year review
from Dobbins rated Dawson’s overall work performance as “Meets Requirements,” which
was the second-highest rating behind “Exceeds Requirements.” J.A. 589, 594.
Some time would pass before Dawson’s disciplinary issues resumed. Thus, pursuant
to the Union’s contract with Washington Gas requiring the reduction in steps after the
2 Dawson eventually filed a grievance related to his third-step discipline, and in September 2014, following a meeting between Washington Gas management and the Union representative, Dawson’s discipline for striking a water service line was overturned and he received back pay from his five-day suspension.
5 passage of time, Dawson’s disciplinary record reduced down to step one by the time he
received his next disciplinary action in August 2017.
From November 2016 through July 2018, Defendants Dennis Samuel and Kevin
Gordon were Dawson’s first- and second-level supervisors, respectively. On August 16,
2017, Samuel ordered that Dawson receive a second-step disciplinary action and two-day
suspension for poor job performance and failure to follow policies and procedures.
Specifically, Samuel disciplined Dawson for failing to report directly to the location of an
emergency gas leak that he had been assigned to address and stopping for breakfast on his
way to the location.
On June 6, 2018, Dawson filed a second charge with the Equal Employment
Opportunity Commission. Less than a month later, on July 3, Samuel issued Dawson a
third-step disciplinary action and imposed a five-day suspension for falsifying company
documents and failing to follow policies and procedures related to paid time off. Although
Dawson’s paid time off request was initially denied by the scheduler, the record shows that
a supervisor was willing to approve his request if Dawson could secure coverage from an
eligible employee, that is, an employee who was not already working that day and would
not work seven consecutive days if they picked up Dawson’s shift. Dawson claims on
appeal that he found a coworker to cover his shift, received supervisory approval for the
coverage, and was not required to submit any forms confirming his time off. Dawson also
received a fourth-step disciplinary action that very same day for running a red light while
operating a company vehicle, which resulted in a final disciplinary warning and a ten-day
suspension.
6 Dawson’s return from his combined fifteen-day suspension was short-lived. On July
24, 2018, Dawson received a fifth-step disciplinary action for violating company policy by
disconnecting the DriveCam video recording device in company vehicles on sixteen
different occasions between May 29 and June 21, 2018. In accordance with the progressive
discipline plan established in the labor contract, Dawson’s employment with Washington
Gas was terminated upon the July 24 fifth-step disciplinary action.
B.
On August 6, 2018, Dawson filed a five-count Complaint alleging discrimination,
harassment, and creation of a hostile work environment based on race, in violation of Title
VII (Count I—Washington Gas); discrimination, harassment, and creation of a hostile work
environment based on color, in violation of Title VII (Count II—Washington Gas);
unlawful retaliation, in violation of Title VII (Count III—Washington Gas); race
discrimination and a hostile work environment, in violation of 42 U.S.C. § 1981 (Count
IV—all Defendants); and unlawful retaliation, in violation of 42 U.S.C. § 1981 (Count V—
all Defendants).
The parties submitted written stipulations of uncontested facts in accordance with
the district court’s Scheduling Order. Defendants then moved for summary judgment.
Because Dawson did not produce direct evidence of discrimination or retaliation, the
district court considered the summary judgment motion in light of the three-step, burden-
shifting scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Resolving all disputed facts in Dawson’s favor, the district court found that Dawson made
out prima facie claims of discrimination and retaliation. But after Defendants came forward
7 with legitimate nondiscriminatory and nonretaliatory justifications for their actions, the
district court found that Dawson failed to show that those reasons were pretextual. The
district court also found that Dawson could not make out prima facie hostile work
environment claims. Thus, the district court granted Defendants’ motion for summary
judgment. Dawson timely filed a notice of appeal.
II.
This Court reviews an award of summary judgment de novo. Haynes v. Waste
Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019). In conducting our review, we apply
the same standard as the district court, Goodman v. Diggs, 986 F.3d 493, 497 (4th Cir.
2021), and ask “whether there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either party,”
Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 413 (4th Cir. 2015) (internal quotation
marks omitted). Summary judgment is appropriate if “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). “A fact is material if proof of its existence or non-existence would affect disposition
of the case under applicable law . . . [and] [a]n issue of material fact is genuine if the
evidence offered is such that a reasonable jury might return a verdict for the non-movant.”
Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020) (internal citation and
quotation marks omitted).
The Court not only construes the evidence in the light most favorable to Dawson,
but also draws all reasonable inferences in his favor. Haynes, 922 F.3d at 223. And yet,
“there must be ‘sufficient evidence favoring [Dawson] for a jury to return a verdict for
8 [him]. If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.’” Holland v. Wash. Homes, Inc., 487 F.3d 208, 213 (4th Cir.
2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)).
Dawson argues that Defendants were not entitled to judgment as a matter of law. In
bringing his Title VII and 42 U.S.C. § 1981 claims, Dawson did not allege direct evidence
of discrimination or retaliation but instead relied on the McDonnell Douglas burden-
shifting framework to show that Defendants engaged in discrimination and retaliation. He
also argued that Defendants’ race-based discrimination created a hostile working
environment.
“Title VII [of the Civil Rights Act of 1964] forbids (i) employment practices that
discriminate against an employee on the basis of race, color, religion, sex, or national
origin, and (ii) retaliation against an employee for opposing adverse actions that she
reasonably suspects to be unlawful under Title VII.” Strothers v. City of Laurel, 895 F.3d
317, 326–27 (4th Cir. 2018) (internal citations omitted). And § 1981 guarantees “[a]ll
persons . . . the same right . . . to make and enforce contracts,” 42 U.S.C. § 1981(a), and
creates a cause of action for those aggrieved by an employer’s racial discrimination or
retaliation, see Gary v. Facebook, Inc., 822 F. App’x 175, 179 (4th Cir. 2020) (unpublished
but orally argued) (citing Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459–60
(1975)). When a plaintiff asserting discriminatory treatment or retaliation under Title VII
or § 1981 fails to allege direct evidence of discrimination, they may avoid summary
judgment by successfully proceeding under the burden-shifting framework established in
9 McDonnell Douglas Corp. v. Green. See Guessous v. Fairview Prop. Invs., LLC, 828 F.3d
208, 216 (4th Cir. 2016).
Under this framework, a plaintiff must first demonstrate a prima facie case of
discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds,
then the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory
reason” for the adverse action. Id. “This burden is one of production, not persuasion; it can
involve no credibility assessment.” Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725
(4th Cir. 2019) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000)). If the employer meets this burden of production, the burden shifts back to the
plaintiff to prove by a preponderance of the evidence that the defendant’s articulated
reasons are pretextual. Id. at 726. To satisfy this burden, a plaintiff may rely on evidence
showing, for example, that an employer’s proffered nondiscriminatory justification for its
adverse action is false or inconsistent over time. E.E.O.C. v. Sears Roebuck & Co., 243
F.3d 846, 852–53 (4th Cir. 2001). Despite this burden-shifting framework, “[t]he ultimate
burden of persuading the trier of fact remains with the employee at all times.”
Westmoreland, 924 F.3d at 726 (internal quotation marks omitted).
1.
Dawson identifies the following adverse actions as supporting his discrimination
claims: (1) his written reprimand for tardiness; (2) his reprimand for an avoidable accident;
(3) his reprimand for striking a water service line (which was later overturned); (4) his
reprimand for failing to timely report the incident involving the garage exit gate striking
his vehicle; and (5) his reprimand for failing to follow Washington Gas’s policy on paid
10 time off. Despite recognizing that the record was “unclear” as to some facts asserted by
Dawson, the district court, “in order to resolve any disputed facts in [Dawson’s] favor,”
held that there “could be an inference of discriminatory intent behind the disciplinary
actions taken by [Defendants].” J.A. 1324–25. As such, the court held that Dawson
established a prima facie claim for discrimination, and the burden shifted to Defendants to
articulate legitimate and nondiscriminatory reasons for the adverse actions referenced
above. Like the district court, we assume for present purposes that Dawson has set out a
prima facie discrimination claim.
For each of the listed reprimands, Defendants have produced evidence showing that
Dawson violated a specific Washington Gas policy, resulting in the disciplinary action
taken. The burden here is merely one of production, not persuasion, and this is enough to
satisfy Defendants’ burden as to the reprimands. As such, the burden shifts back to Dawson
to show by a preponderance of the evidence that Defendants’ reasons were merely pretext
for discrimination.
Again, to demonstrate pretext, Dawson may show, for example, that the
nondiscriminatory reasons for the adverse actions are false or inconsistent over time. Sears
Roebuck & Co., 243 F.3d at 852–53. He might also identify comparator evidence, that is,
“evidence that other employees who were similarly situated to [him] (but for [race or
color]) were treated more favorably.” Laing v. Fed. Express Corp., 703 F.3d 713, 719 (4th
Cir. 2013). However, Dawson must make any showing of pretext by a preponderance of
the evidence, which “requires the trier of fact to believe that the existence of a fact is more
probable than its nonexistence.” Salem v. Holder, 647 F.3d 111, 116 (4th Cir. 2011)
11 (internal quotation marks omitted). At this third McDonnell Douglas step, we may consider
both Dawson’s evidence establishing a prima facie discrimination claim and the remaining
evidence in the record to determine whether Defendants’ articulated reasons were merely
pretext for discrimination. See Westmoreland, 924 F.3d at 727 (citing Reeves, 530 U.S. at
143).
We agree with the district court that Dawson has not satisfied his burden to show
that Defendants’ justifications were pretextual. For each of the adverse employment
actions, we assume that Defendants knew that Dawson was biracial. But for each
disciplinary action, Dawson’s evidence of pretext is substantially the same as the evidence
he relies on at the prima facie stage to create an inference of discrimination: that
Defendants knew he was biracial, and as a result, he received discipline for incidents that
other, monoracial Washington Gas employees were not reprimanded for. This evidence
certainly creates an inference of discrimination. But could a jury reviewing this evidence,
on its own, find by a preponderance of the evidence that Defendants’ justifications were
merely a cover-up for discrimination? Or, in other words, could a jury find it more probable
than not that Defendants’ proffered reasons were merely an excuse to distract from their
discriminatory motives? See, e.g., Salem, 647 F.3d at 116 (setting out preponderance-of-
the-evidence standard). We do not think so.
First, we note that Defendants’ justifications for Dawson’s reprimands have
remained consistent prior to and throughout this litigation. This is important because the
facts that an employer “never changed its story” and that its “explanation has been
12 consistent from the moment” it took an adverse action tend to support its argument that it
did not act pretextually. Holland, 487 F.3d at 217 n.7.
Further, Dawson has failed to produce evidence showing, for example, that
Defendants are being untruthful. And, his identified evidence does not undermine
Defendants’ justifications. Dawson does attempt to identify comparators regarding his
first-step disciplinary action for tardiness—directing the Court to an African American
employee who was late “numerous times,” but “never received any discipline,” J.A. 846–
47, and a white employee who was coached on how to evade being caught for tardiness—
but he fails to point to sufficient evidence on which a reasonable jury could compare him
to those colleagues.
“The similarity between comparators and the seriousness of their respective
offenses must be clearly established in order to be meaningful.” Lightner v. City of
Wilmington, 545 F.3d 260, 265 (4th Cir. 2008). And relevant evidence typically includes
“evidence that the [employees] dealt with the same supervisor, [were] subject to the same
standards[,] and . . . engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for
it.” Haynes, 922 F.3d at 223–24 (internal quotation marks omitted).
Dawson does claim that these similarly tardy coworkers also worked under Surdam
and that they faced more lenient discipline than he did. But he does not account for
mitigating circumstances or explain away distinguishing facts that contrast his situation
with those of his coworkers. For example, Surdam testified in his deposition that the
African American employee had extenuating circumstances—he was a single father who,
13 at times, had issues securing childcare—and that he called every time he was going to be
late. Dawson has not produced any evidence that he called to inform Surdam when he was
going to be late. And as for the white employee who Surdam told to go around back to
evade discipline for tardiness, Dawson concedes that he himself evaded discipline and
instead received counseling from Surdam about his tardiness the first time he was late.
Missing here is evidence—evidence Dawson has the burden of producing—that the
white employee routinely evaded discipline or that his disciplinary record was such that he
should have been disciplined in the same manner as Dawson. On the evidence provided,
we conclude that no reasonable jury could compare Dawson’s circumstances with those of
his colleagues and distill out discrimination as the intent behind Defendants’ actions.
Dawson also attempts to create a jury issue by identifying several factual issues that
he contends are in dispute. Relevant to his pretext argument, he argues that the district court
erred when it found that it was unclear whether Dawson’s supervisors directed racist
comments at him, and that it was unclear whether Dawson “was treated more harshly than
all other employees or only those outside his protected class.” 3 J.A. 1324–25. We agree
that these factual issues, resolved in Dawson’s favor, might support a finding that
discrimination led to Defendants’ actions. But at the summary judgment stage, we are
3 Dawson points to other alleged factual disputes, as well, but does not explain why they are material.
14 concerned with evidence rather than arguments. And we conclude that the evidence in the
record does not create a genuine dispute as to these facts. 4
To show that Surdam directed racist comments at him, Dawson relies on an affidavit
submitted by his coworker in support of Dawson’s Equal Employment Opportunity
Commission claim. But while the coworker averred that he heard Surdam “make offensive
racist remarks regarding [Dawson],” he could not remember the comments that were made.
J.A. 979. Dawson also relies on the testimony of another coworker to show that he was
disciplined more severely than employees outside of his protected classes. But all that
coworker said was that in the coworker’s view, Surdam treated Dawson as “fair game”
because he is biracial. J.A. 992.
In showing that a genuine dispute exists, Dawson cannot rely on “[u]nsupported
speculation,” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (citation omitted), “the building of one inference upon another,” Sharif v. United
Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016) (citation omitted), or evidence that is
“merely colorable” or “not significantly probative,” Anderson, 477 U.S. at 249–50. And
“the mere existence of a scintilla of evidence” or “conclusory allegations or denials,
without more” are not enough to demonstrate a genuine dispute of material fact. Sedar v.
4 In our de novo review, we do not see the record as “unclear,” but instead find it unmistakable that no genuine dispute exists. In drawing all reasonable inferences in Dawson’s favor, the district court stepped too far and gave Dawson more benefit than was appropriate. Accordingly, the district court erred in its findings. But “we may affirm a grant of summary judgment on any ground that the law and the record permit,” Hodgin v. UTC Fire & Sec. Ams. Corp., 885 F.3d 243, 251 n.3 (4th Cir. 2018) (cleaned up), and we do so here.
15 Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761 (4th Cir. 2021) (internal quotation marks
omitted). Dawson’s cited evidence strikes as conclusory and is not significantly probative
to the allegations at issue. We conclude that Dawson has failed to raise genuine disputes
of material fact as to pretext.
Accordingly, and with full respect for the jury’s role as a factfinder, we do not
believe a reasonable jury could find that sufficient evidence exists in this record to show
pretext by a preponderance of the evidence. Thus, summary judgment was proper.
2.
Dawson’s retaliation claims face the same fate. Dawson claims he engaged in
protected activity—specifically, complaining about unlawful treatment and filing a claim
with the Equal Employment Opportunity Commission—and that as a result, Defendants
took several adverse actions against him. The alleged adverse actions were: (1) his
reprimand for failing to promptly report to the site of a gas leak; (2) his reprimand for
taking paid time off without proper approval; (3) his reprimand for running a red light in a
company vehicle; (4) his reprimand for disconnecting his vehicle’s DriveCam video
recorder; and (5) his termination. The district court found that Dawson established a prima
facie claim of retaliation. We assume the same for purposes of this appeal.
The burden thus shifts to Defendants to articulate legitimate and nonretaliatory
reasons for taking these adverse actions. As with the discrimination claims, Defendants
rely on disciplinary records in evidence to argue that the adverse actions were warranted
because Dawson violated specific Washington Gas policies, and that the discipline
imposed on Dawson was in line with the progressive discipline scheme set forth in the
16 union contract. We find that this is enough to satisfy Defendants’ burden of producing
evidence supporting a legitimate and nonretaliatory justification. As such, the burden shifts
back to Dawson to demonstrate by a preponderance of the evidence that these justifications
are actually pretext for retaliation.
Absent from this record is evidence establishing that Defendants’ justifications for
their adverse actions are false and that the real reason for the adverse actions was
retaliation. Dawson notes that several adverse actions were taken in close temporal
proximity to his complaints about unfair treatment and his notifying Washington Gas about
his claim with the Equal Employment Opportunity Commission. Specifically, Dawson
claims that his August 16, 2017 second-step disciplinary action for failing to timely report
to a gas leak on August 2 was in fact retaliation for a tense conversation he had with Samuel
on August 7. 5 He also notes that his July 3, 2018 third- and fourth-step disciplinary actions
and his July 24 termination came within weeks of when Washington Gas learned of his
second charge with the Equal Employment Opportunity Commission on either June 6 or
June 7.
The district court correctly found that such temporal proximity can inform whether
an inference of retaliation exists at the prima facie stage. See, e.g., Waag v. Sotera Def.
Sols., Inc., 857 F.3d 179, 191–92 (4th Cir. 2017) (considering temporal proximity at the
prima facie stage of the McDonnell Douglas burden-shifting framework); Watkins v. Pro.
5 Dawson’s description of this conversation has shifted over time. He initially stated that it happened on August 18—two days after the disciplinary action. He later “amended his responses to say that the conversation happened on August 7.” J.A. 1331.
17 Sec. Bureau, Ltd., 201 F.3d 439, at *5–6 (4th Cir. 1999) (per curiam) (same). But, while
proximity certainly can also play a role in demonstrating pretext, 6 Dawson has pointed to
no additional evidence in the record to rebut Defendants’ legitimate, nonretaliatory
justifications, and the proximity was not close enough to bear the load on its own in this
case. Because no reasonable jury reviewing the evidence in this record could find for
Dawson, summary judgment was appropriate.
3.
Finally, Dawson argues that the district court erred in finding that Defendants were
entitled to judgment as a matter of law on Dawson’s hostile work environment claim. “A
hostile environment exists ‘[w]hen 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.’”
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To prove a hostile work
environment claim under either Title VII or § 1981, a plaintiff “must show that there is (1)
unwelcome conduct; (2) that is based on the plaintiff’s [protected status]; (3) which is
sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to
6 The district court appeared to limit evidence of proximity to the prima facie stage. The court found evidence of proximity “unimportant” at the third stage of the McDonnell Douglas burden-shifting framework, stating that Dawson must rebut Defendants’ nondiscriminatory justifications with “evidence of pretext and actual retaliation.” J.A. 1332. But “‘the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case’ at the final McDonnell Douglas stage.” Westmoreland, 924 F.3d at 727 (citing Reeves, 530 U.S. at 143).
18 create an abusive work environment; and (4) which is imputable to the employer.” Id.
(quoting Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)).
Dawson alleges that he was harassed, made fun of, and yelled at by his
supervisors—assertions of unwelcome conduct that we assume are true for purposes of this
appeal. However, he immediately faces an insurmountable hurdle on the next element of
his claim. Dawson cannot show that the unwelcome conduct directed at him was based on
his race or color. “Title VII does not prohibit all verbal or physical harassment in the
workplace—it is directed only at actions that occur because of one of the protected
statuses.” Strothers, 895 F.3d at 329 (emphasis added) (internal quotation marks omitted).
Dawson repeatedly claims that he was harassed because of his race and color, but at
summary judgment, unsupported assertions are not enough. Dawson fails to cite record
evidence that a reasonable jury could rely on in finding that Defendants’ unwelcome
conduct towards him was based on his race or color. Accordingly, the district court
properly found that Defendants were entitled to judgment as a matter of law.
Dawson also maintains that the district court erroneously dismissed his case without
making any factual findings or legal conclusions on his Title VII color discrimination
claim. Color discrimination gives rise to a cause of action distinct from race discrimination,
and either (or both) can be brought under Title VII. See Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 132–33 & n.5 (4th Cir. 2002) (distinguishing between the plaintiff’s race
19 discrimination claims and his color discrimination claims, which “arise[] when the
particular hue of the plaintiff’s skin is the cause of the discrimination”).
In the district court’s order awarding summary judgment, it acknowledged that
Dawson raised a standalone color discrimination claim under Title VII. When applying the
McDonnell Douglas burden-shifting framework, the district court noted that Dawson
claimed he was “discriminated against because of both his race and his color,” but
ultimately found Dawson’s claims lacking because he “did not directly address the
legitimate, nondiscriminatory reasons produced by Defendants.” J.A. 1322, 1330. And the
district court later found that Dawson was “unable to show that race, color, or retaliation”
supported his hostile work environment claim. J.A. 1336 (emphasis added). While the
district court did not parse out race discrimination and color discrimination into different
sections of its opinion, we are satisfied that it adequately considered Dawson’s claim and
established findings of fact and conclusions of law that allow this Court to conduct a
meaningful review. Accordingly, there was no error.
III.
For the reasons set forth above, the district court’s order granting summary
judgment to Defendants is
AFFIRMED.