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.CH/\R LOTTE, N. C.

IN THE UNITED STATES DISTRICT COURT

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.

.

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

JUN

.9.

2005i .. ~ .

CHARLOTTE DIVISION

U. S. DISTRICT COURT

EQUAL EMPLOYMENT

)

CIVIL ACTION NO. W. DIST. OF N. C.

OPPORTUNITY COMMISSION,

) )

3: 0 5 c u ~(, 9-11L{

Plaintiff,

)

)

COMPLAINT

v.

)

)

E & H ELECTRICAL SERVICE, INC. )

JURY TRIAL DEMAND

)

_______________D_e_fe_n_d_an_t_. ________

)
)

•

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991, to correct unlawful employment practices on the basis of race and to provide

appropriate relief to Ronald R. Locklear who was adversely affected by the practices. The U.S.

Equal Employment Opportunity Commission ("the Commission") alleges that Defendant E & H

Electrical Service, Inc. ("Defendant") discriminated against Ronald R. Locklear by subjecting

him to a racially hostile work environment because of his race, Native American.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)( 1) and (3) of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C~ § 2000e-5(f)(l) and (3) ("Title

VII"), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawful were committed within the

jurisdiction of the United States District Court for the Western District ofNorth Carolina.

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PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency ofthe United States ofAmerica charged with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, and is expressly authorized to bring this action by Sections 706(±)(1) and (3) of Title VII, 42 U.S.C. §2000e-S(f)(l) and (3). 4. At all relevant times, Defendant has continuously been a North Carolina corporation doing business in the State of North Carolina and the City of Indian Trail and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Ronald R. Locklear filed a charge with the Commission alleging violations ofTitle VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. From around October 2002 until around Apri12003, Defendant engaged in unlawful employment practices at its Indian Trail, North Carolina facility in violation of Section 703(a)(l) of Title VII, 42 U.S.C. §2000e-2(a)(l). Specifically, Defendant subjected Ronald R. Locklear to discrimination based on his race, Native American, by subjecting him to severe or pervasive racial comments that created a racially hostile work environment. The racial harassment included unwelcome derogatory comments and name calling, such as "redskin," "Injun Joe," ''Chief' and "half breed," all of which was based on Mr. Locklear's race. The
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harassment was perpetrated by Defendant's owner and two or more ofMr. Locklear's co-

workers. Although Mr. Locklear complained to Defendant about the racial harassment, and

Defendant otherwise knew or reasonably should have known about it, Defendant failed to take

action to stop it.

.

8. The effect ofthe practices complained ofin paragraph 7 above has been to deprive

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Ronald R. Locklear of equal employment opportunities and otherwise adversely affect his status

as an employee because of his race, Native American.

9. The unlawful employment practices complained of in paragraph 7 above were

intentional.

10. The unlawful employment practices complained of in paragraph 7 above were

done with malice or with reckless indifference to the federally protected rights of Ronald R.

Locklear.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a pennanent injunction enjoining Defendant, its officers, successors,

assigns, and all persons in active concert or participation with it, from maintaining a racially

hostile work environment and from any other employment practice that discriminates on the

basis ofrace.

B. Order Defendant to institute and carry out policies, practices, and programs that

provide equal employment opportunities for Native Americans, and which eradicate the effects

of its past and present unlawful employment practices.

3

..
C. Order Defendant to make whole Ronald R. Locklear by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, including medical expenses, in amounts to be determined at trial.
E. Order Defendant to make whole Ronald R. Locklear by providing compensation
for past and future non-pecuniary losses resulting from the unlawful practices complained ofin paragraph 7 above, including but not limited to emotional pain, suffering, inconvenience, loss of enjoyment of life, humiliation, loss of self-esteem and loss of civil rights, in amounts to be detern1ined at trial.·
F. Order Defendant to pay Ronald R. Locklear punitive damages for its malicious
I
and reckless conduct, as described above, in amounts to be detennined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public
interest. H. Award the Commission its costs of this action. WRY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
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,. ).
•

DATED this the 1th day of June, 2005.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
JAMES L. LEE
Deputy General Counsel
GWENDOLYN YOUNG REAMS
Associate General Counsel
EQ....UAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W. ____--.!W~as~.hington, D.C. 20507

•

L

A.BARNES

Acting Regional Attorney

MARY . YERSE
Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, North Carolina 28202 (704) 344-6886

ATTORNEYS FOR PLAINTIFF

•

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

E & H ELECTRICAL SERVICE, INC., )

)

Defendant.

)

CIVIL ACTION NO. 3:05CV269
AMENDED JOINT CONSENT PROTECTIVE ORDER

The parties move the Court for entry of this Consent Protective Order to expedite the flow of discovery materials, facilitate the prompt resolution of discovery disputes and disputes concerning confidentiality, protect certain materials designated as confidential ("confidential materials"), and ensure that protection is afforded only to material so designated.
IT IS HEREBY ORDERED THAT: 1. General Scope of the Agreement. This Consent Protective Order shall govern the
confidentiality of certain documents and other material produced in response to any discovery request or other request for information by Plaintiff and Defendant in this action, all information contained therein, and all copies, excerpts or summaries thereof, specifically including, but not limited to, answers to requests for admissions, answers to interrogatories, responses to requests for production of documents and documents produced in accordance therewith, documents subpoenaed in connection with depositions and any deposition transcript or portion thereof as to which protection is sought in accordance with this Agreement. The following documents and/or

information may be designated as "Confidential" pursuant to this Order: (a) medical records or other health-related information; (b) personal information about Defendant's employees, including but not limited to: social security numbers, tax information, personnel records, and health insurance information; and (c) confidential or proprietary business and personal information, including but not limited to, income tax returns, balance sheets, profit and loss statements and including specifically the Stipulation Regarding Defendant's Financial Information entered into between the parties on February 13,2006 and the contents thereof.
2. Designation as Confidential. Any party producing or furnishing information of any nature to another party, to the Court, or at a deposition in connection with this litigation, may designate as "Confidential," in accordance with the procedures set forth herein, any such information, document or part thereof, interrogatory answer, response to request for admissions, deposition testimony, excerpts and summaries of such information, or other materials as set forth in Paragraph 1 of this Agreement. Such designation shall be made at the time the information in produced or furnished, or at a later time as provided herein.
3. Procedure for Designating Information as Confidential. Parties may designate confidential materials in the following manner:
(a) In the case of documents or other written materials, by affixing to each page of every such document, at the time of production, the word "Confidential" by stamp or other method which will make the word conspicuous;
(b) In the case of answers to interrogatories, designation shall be made by placing the word "Confidential" adjacent to or at the end of any answer deemed to contain confidential information. Alternately, answers deemed to contain confidential information may be bound separately and marked with the word "Confidential";
2

(c) In the case of depositions or other pretrial testimony in this action by the parties or any of their officers or employees, by a statement to that effect on the record by counsel for the party who claims that confidential material is about to be or has been disclosed. Unless the parties intend to designate all of the information contained within a particular document or deposition testimony as confidential material, counsel for that party should indicate in a clear fashion the portion of the document or testimony which is intended to be designated as confidential. 4. Restricted Use ofInformation.
(a) Documentslinformation designated as "Confidential" pursuant to paragraphs 1 and 2 of this Order shall be used solely for the purposes of this action and shall not be disclosed to any person except the following individuals:
(i) the Court (including the Clerk's office, stenographic reporters and videographers, engaged in such proceedings as are necessary to the preparation for trial and trial of this action);
(ii) counsel for the parties, their staff members, their professional and para-professional employees;
(iii) any experts or service contractors (i.e., court reporters or outside photocopying or imaging services) associated by the parties regarding this action;
(iv) the parties, including officers or managers of a party who have a need to know the information for purposes of this litigation;
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(v) Ronald Locklear's treating physicians, psychiatrists, psychologists, counselors and other medical practicioners with whom Mr. Locklear consulted or from whom he received medical treatment or services; or
(vi) by mutual consent. (b) Documents produced pursuant to this Order shall not be used for any purpose other than evidence in this litigation and may not be disclosed under any circumstances to anyone not connected with this action as a party, witness, counsel, consultant, staff person or court personnel. Specifically, use of confidential material during the trial of this action or in any hearing in connection with the disposition of this matter by any party shall in no way permit the use of such material for or in connection with any other lawsuit, action, hearing or proceeding, without further order of the Court, express agreement by both parties, or pursuant to a subpoena. S. Acknowledgment of Agreement. All persons to whom confidential material is disclosed pursuant to paragraph 4 of this Order shall be bound by this Order. It shall be the responsibility of counsel for each party to this action to insure that persons authorized to receive confidential material pursuant to paragraph 4 of this Order have knowledge of the terms of this Order and agree to be bound by them. Any persons breaching the provisions of this Order are subject to the contempt powers of this Court. 6. Inadvertent Disclosure. In the event a party inadvertently produces materials which should have been, but were not, marked "Confidential," the party may designate such materials as "Confidential" by notifying counsel of the error and producing the documents again, with the "Confidential" designation, prior to the expiration of the discovery deadline set by the Court.
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The parties will then treat these documents as if they had been marked "Confidential" when they were first produced.
7. Use of Confidential Materials in this Case. Nothing in this Agreement shall prevent or impair the use by a party of confidential materials as set forth in paragraphs 1 and 2 of this Agreement in proceedings in this litigation, including motion papers, affidavits, briefs, other papers and depositions filed with the Court or at any deposition, or hearing, conference, or trial before the Court so long as confidentiality of such information is protected as provided herein. To the extent any confidential material is filed with the court, counsel filing the confidential material shall file it under seal in accordance in accordance with Local Rule 5.1 (D).
8. Challenging Confidentiality. Acceptance by a party of any information, document or thing identified as "Confidential" pursuant to this Order shall not constitute a concession that the information, document or thing is confidential material. Counsel for the parties shall serve written notice of any objections to specific designations upon the other party within twenty (20) days of receipt of such information, documents or things. Counsel shall first attempt to resolve any disputes of confidentiality between themselves. If Counsel are unable to agree on any such issue, counsel seeking protection of a document must bring the issue before the Court within twenty (20) days of receipt of any written notice of any objections. No disclosure of such information shall occur pending resolution of any dispute under this paragraph.
9. Right to Object. Notwithstanding the foregoing provisions, this Order shall not prejudice the right of any party to object to discovery on other grounds. Any party may, upon reasonable notice to the opposing party's counsel, move for an order relieving it of the provisions of this Order for good cause shown. All parties retain the right to apply to the Court for an order
5

affording additional protection to confidential material as the circumstances may warrant. Nothing contained herein shall prevent a party from seeking modification to this Order.
10. Disclosure. (a) Nothing contained herein shall prevent a party from disclosing, revealing or
using any documents, material or other information which is already lawfully in the possession of that party or which that party has lawfully obtained separately and independently from the discovery process in this matter and this Order shall not otherwise apply to such documents, material or other information.
(b) Nothing in this document shall prevent any party from producing any document or information in his, her, or its possession in response to a lawful subpoena or other compulsory process, provided that notice shall be given to the other party prior to the date that the party subpoenaed is required to respond to the subpoena or other compulsory process in which materials designated confidential are sought. 11. Return of Confidential Information. Ultimate disposition of protected materials is subject to final order of the court on completion oflitigation. Unless otherwise ordered by the court, all confidential material shall be returned to the producing party within ninety (90) days of the conclusion of this civil lawsuit, including conclusion of any appeal. However, unless otherwise ordered by the court, the EEOC, at its election, may destroy the confidential material in the normal course of its business and in accordance with its document retention procedures. 12. Modification of the Agreement. In the event of further proceedings in this action, if any of the parties hereto believe that this Agreement unreasonably impedes discovery to a party or the use of information discovered from a party for purposes of this litigation, or provides
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insufficient protection regarding discovery materials produced by a party, such party may serve notice upon the parties and request the Court modify this Agreement.
13. Protection of Copies. All copies, extracts or summaries prepared from confidential materials produced hereunder shall be subject to the same terms of this Agreement as the confidential material from which such copies, extracts or summaries were prepared, if properly designated.
14. Notices. Notice required under this Agreement shall be in writing and provided to the attorneys for the parties listed below. Notice to the parties shall be adequate if given solely to the parties' counsel of record.
15. Effective Date. This Agreement shall be effective immediately and shall survive the conclusion of this lawsuit.

IT IS SO ORDERED.

Signed: May 10, 2006

United States District Judge

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AGREED TO:
PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
sf Mary Ryerse MARY M. RYERSE (S.C. Bar No. 68387) Trial Attorney e-mail: mary.ryerse@eeoc.gov
LYNETTE A. BARNES (N.C. Bar No. 19732) Regional Attorney e-mail: lynette.barnes@eeoc.gov
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, North Carolina 28202 Phone: 704.344.6886 Facsimile: 704.344.6780
ATTORNEYS FOR PLAINTIFF

Dated this 8th day of May 2006
DEFENDANT E & H ELECTRICAL SERVICE, INC.
sf G. Bryan Adams, III G. BRYAN ADAMS, III (N.C. Bar No. 17307) e-mail: badams-vrad@carolina.rr.com
PHILIP M. VAN HOY (N.C. Bar No. 5869) e-mail: pvanhoy-vrad@carolina.rr.com
VAN HOY, REUTLINGER, ADAMS & DUNN 737 East Boulevard Charlotte, North Carolina 28203 Telephone: 704.375.6022
ATTORNEYS FOR DEFENDANT

8

 
 E.E.O.C. v. E&H Elec. Service, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 841942 United States District Court, W.D. North Carolina,
Charlotte Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
E & H ELECTRICAL SERVICE, INC., Defendant.
No. 3:05CV269. | March 19, 2007.
Attorneys and Law Firms
Eric S. Dreiband, Gwendolyn Young Reams, Equal Employment Opportunity Commission, Washington, DC, Lynette A. Barnes, Equal Employment Opportunity Commission, Charlotte District Office, Mary Margaret Ryerse, U.S. Equal Employment Opportunity Commission, Charlotte, NC, for Plaintiff.
Bryan G. Adams, III, Philip M. Vanhoy, Van Hoy, Reutlinger, Adams & Dunn, Charlotte, NC, for Defendant.
Opinion
ORDER
GRAHAM C. MULLEN, United States District Judge.
*1 This matter is before the court upon the Defendant E & H Electrical Services, Inc.’s (“E & H”) Motion for Summary Judgment.
FACTUAL BACKGROUND
This case involves a lawsuit brought by the Plaintiff EEOC on behalf of its Charging Party, Ronald Locklear (“Locklear”), a former employee of E & H. Locklear was employed by E & H from October 2002 until he quit on April 16, 2003. The Complaint alleges that Locklear was subjected to a hostile work environment because of his race, Native American, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (as amended) (“Title VII”).
E & H is a small residential electrical services company located in Indian Trail, North Carolina. The majority of E & H’s business comes from new residential construction. Tim Ellison (“Ellison”) is the sole owner of E & H.

Locklear, a Native American, and member of the Lumbee Indian Tribe, was hired by Ellison and worked at E & H starting in October of 2002 as an electrician’s helper. Ellison knew Locklear was Native American when he hired him. During the six months he worked at E & H, Locklear asked for and received a raise and also received a Christmas bonus.
Prior to working at E & H, Locklear worked for a company called Universal Electric. At Universal Electric, he worked with Larry Miller (“Miller”), who also came to work for E & H during the same time period as Locklear. When Miller and Locklear worked together at Universal, Miller had called Locklear by the nickname “Chief.” Before working with Locklear at Universal, Miller had worked with a man who was a Catawba Indian who wanted to be called “Chief” and that is how Miller claims that Locklear’s nickname originated. Ellison and other E & H employees observed that Locklear and Miller were friends and got along well with each other. Miller was known E & H as a “jokester” who was always kidding around with other employees.
Most of the employees at E & H, including Locklear, worked on a “crew” consisting of a lead man electrician and one or two helpers. The helpers are in charge of loading the truck in the morning and performing electrical wiring as directed by the lead man. Each crew operates out of and travels to and from jobs on a company van. Locklear was on a crew with Roger Helms. Each morning, the employees arrive at the shop and Ellison gives the electricians work tickets detailing their crew’s work assignment. During this time, the crews usually congregate in the facility’s 5000 square foot warehouse in order to load materials and supplies for the day’s work assignment. Employees generally spend 15 to 20 minutes at the shop in the mornings loading the vans. During this time the employees and Ellison often joke around and tease each other. All crews then depart from E & H by 8:00 a.m. to go to the jobsite. All crews leave the jobsite at 4:30 and return to the shop. Helpers are free to leave as soon as they return to the shop. Some employees hang around the shop and talk and joke with Ellison.
*2 Many of the employees at E & H have nicknames and refer to each other by those nicknames instead of by their given names. In addition to having nicknames, employees often tease and joke with one another and occasionally use profanity, which is common in a construction-related business. Locklear was known to have engaged in this type of banter and horseplay.
Locklear alleges that during his six-month employment with E & H he was subjected to slurs, jokes and comments about Native Americans by Ellison, coworker Larry Miller (“Miller”) and co-worker Woodrow Wilson
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E.E.O.C. v. E&H Elec. Service, Inc., Not Reported in F.Supp.2d (2007)

(“Wilson”). This harassment occurred mostly when the crews were gathered at E & H’s facility in the mornings and evenings. Locklear claims that he was at the facility approximately 30-45 minutes each morning. After returning from the jobsite, Locklear claims that he did not stick around the shop to talk or “fellowship” with the other employees.
Locklear alleges that when he and Miller were both at the facility, Miller would refer to Locklear as “Injun Joe,” “chief,” “redskin,” and “half-breed.” On Locklear’s first day of work, Miller remarked that Locklear was “one of them Lumbee Indians” and that “some people sat they ain’t even Indians.” When Locklear was passed over for a lead position, Miller said “Injun Joe, are you going to let [Ellison] do you like that?” When Locklear asked what he meant, Miller answered “Well, they done took all your land. Now he’s going to sit right there and take your van and give it to someone over you.” Locklear told Miller not to refer to him as “Injun Joe.”
Miller told Ellison and the other employees that Locklear’s nickname was “Chief.” Locklear stated that “almost daily” Miller called him “Chief,” “Big Indian,” and “Lumbee.” Locklear complained to Miller several times about his use of “racial terms,” and Miller would respond that “he didn’t mean nothing by it.”
Locklear claims that Wilson referred to him as “spear chucker,” “Indian Joe,” and “redskin.” and made “corny Indian jokes” that related to “totem poles” and “squaws.” When Locklear complained to Wilson, Wilson would respond that he “didn’t mean no harm by it.”
Locklear alleges in his deposition that when he was interviewed on October 14, 2003 by Ellison for the job at E & H, Ellison asked Locklear if he was “one of those damn Lumbees.” Locklear did not mention this during the EEOC investigation. Moreover, in his Amended EEOC charge, Locklear indicates that the alleged harassment began on November 4, 2002. Ellison admittedly referred to Locklear as “Chief.” On one occasion, Locklear went into Ellison’s office after returning from a job site. Ellison, who was talking to several employees, said, “Chief, why don’t you come in here and tell us about them sand niggers down in Lumberton.” On another occasion, Ellison came to a job site looking for Locklear, presumably to verify that he was still working because Ellison had turned down his request to leave early. Locklear heard Ellison asking “Where is that damn Indian at?”
*3 On April 16, 2003, Ellison met with five employees, including Locklear, about a code violation that the Mecklenburg County Inspectors had reported to E & H. Specifically, a house that E & H had wired did not pass inspection because the ground wires had been cut too short in violation of the City code. During this meeting,

Ellison attempted to explain the inspection issue to the crew and how he wanted the problem corrected. Locklear and Ellison got into a dispute over the proper way to cut ground wires. Ellison became upset and started to yell at the entire crew, using profanity. Locklear alleges that he objected to Ellison’s use of profanity and was told that if he didn’t like it he was free to leave. That day, Locklear resigned his employment with E & H.
Locklear alleges in his deposition that Ellison called him a “Damn stupid Indian” during the meeting. However, in his EEOC interview, Locklear indicated that he was offended by Ellison cursing because he is a Christian. The EEOC interview notes which Locklear verified as being accurate in his deposition are completely devoid of any reference to Ellison making the statement “stupid Indian” or “stupid damn Indian,” or making any racial comments at all during this meeting.
DISCUSSION
Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-moving party, there is no genuine issue of any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment requires a determination of the sufficiency of the evidence, not a weighing of the evidence. Anderson v. Liberty Lobby, 477 U.S. 242 (1986). The party opposing the motion may not rest upon its pleadings but instead must provide evidence or point to evidence already on the record that would be sufficient to support a jury verdict in its favor. Id. at 248. The movant may be entitled to summary judgment merely by showing that the other side will not be able to prove an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 322-23.
The Plaintiff alleges that he was subjected to a racially hostile work environment. In order to prove a prima facie case of a racially hostile work environment, the Plaintiff must show: 1) that the conduct was unwelcome; 2) that the harassment was based upon race; 3) that the harassment was sufficiently severe and pervasive that it altered the conditions of employment and created an abusive working environment; and 3) that some basis exists for imputing liability to the employer. Causey v. Balog, 162 F.3d 795, 801 (4th Cir.1998). Courts have made it clear that Title VII is not a “federal guarantee of refinement and sophistication in the workplace.” Hartsell v. Duplex Products, Inc., 123 F.3d 766, 773 (4th Cir.1997). Moreover, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca
2

E.E.O.C. v. E&H Elec. Service, Inc., Not Reported in F.Supp.2d (2007)

Raton, 524 U.S. 775, 788 (1998). Indeed, to be actionable, the workplace must be “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.’ “ Harris v. Forklift Systems, Inc, 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 & 67 (1986)). The “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee [does] not affect the conditions of employment to [such a] sufficiently significant degree [as] to violate Title VII.” Meritor, 477 U.S. at 67
*4 The court will focus its analysis on the “severe and pervasive” element. In order to determine if this element of the prima facie case is met, the court must consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23. “[T]he objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’ “ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting Harris, 510 U.S. at 23). This inquiry “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target .” Oncale, 523 U.S. at 81.
The court finds that Plaintiff’s evidence, even when viewed in the light most favorable to the Plaintiff, simply does not rise to the level of severity and pervasiveness as to create a hostile working environment in violation of Title VII. First of all, there are no allegations of physically threatening behavior. Locklear admits in his deposition that the “name calling” and teasing were never physically threatening. Locklear further concedes that the alleged harassment never impacted his job performance, which remained “good” throughout his employment. Indeed, he received a raise and Christmas bonus. Thus, the court’s analysis of Plaintiff’s claim must focus on the frequency and severity of the alleged harassment.
Locklear could have only been exposed to the alleged name calling and teasing for a brief period each morning during which he loaded his truck. Locklear admits that Roger Helms, with whom he worked on a crew every day, did not subject him to harassment. Locklear admits that he did not hang around the shop in the afternoons, so he was not subjected to harassment at that time.
The “social context” in which the alleged harassment took place was the construction industry, where, Locklear admits, profanity and “construction talk” were common. Moreover, Locklear claims that he did not know, and therefore cannot dispute, that almost everyone that worked at E & H had a nickname. Locklear was known as an employee who engaged in horseplay and laughed at

jokes told in his presence. Even if Locklear found his co-workers’ comments to be subjectively offensive, the comments were made in a teasing, and not a hostile manner, within the context of a work environment in which teasing, joking, nicknames, profanity, and some horseplay was common, as opposed to a work environment charged with racial hostility. See Faragher, 524 U.S. at 788. Locklear does not dispute that Ellison and others used “Chief” as a friendly greeting. He claims Ellison used the term “sand niggers,” but fails to explain or establish how this term relates to Native Americans. The most egregious term Ellison allegedly used, “damn stupid Indian,” was only alleged to have been used once, and is thus a stray remark. Locklear admits that Miller and Wilson both told him that they “didn’t mean anything by” their comments. Indeed, there is no evidence that any comments were motivated by racial animus. Locklear states in deposition that he just “assume[s]” that the comments were made because of his race. Even considered collectively, the comments made to Locklear are not so objectively severe so as to create an abusive working environment.
*5 Courts have rejected allegations of racial harassment based upon evidence which is comparable to or far more egregious than that alleged by Locklear. For example, in Greene v. Swain County Partnership for Health, 342 F.Supp.2d 442, 454-55 (W.D.N.C.2004), the court found that the Native American plaintiff’s evidence that a co-worker used the term “Token Indian,” made derogatory comments about her black hair and high cheekbones, and made insensitive comments about Native American teen pregnancy rates was insufficiently severe and pervasive. In Li Li Manatt v. Bank of America, 339 F.3d 792, 795-99 (9th Cir.2003), the court held that co-workers’ comments to plaintiff such as “I am not a China man, I’m not like China man with their eyes like that,” “China woman, China woman, get your butt over here,” and pulling their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians were not severe and pervasive. See also Martin v. Merck & Co., 446 F.Supp.2d 615, 627-630 (W.D.Va.2006) (numerous racially offensive comments and conduct over a span of years, including employees’ use of the word “nigger,” altering workplace poster to include the word “nigger,” displaying a racially offensive cartoon, holding a hangman’s noose, the comment that black employee should: “go back to the jungle where he came from,” referring to a black female employee’s “unpleasant odor because she was a black woman” was found to be not sufficiently severe and pervasive to be actionable under Title VII.); Gustave-Schmidt v. Chao, 360 F.Supp.2d 105 (D.D.C.2004) (supervisor’s referring to Hispanic employee as “spic,” yelling at her in front of other employees, making sexist comments and having her investigated, followed by another employee and closely monitored, was not severe and pervasive); Smith v. Beverly Health and Rehab. Servs., Inc., 978 F.Supp. 1116
3

E.E.O.C. v. E&H Elec. Service, Inc., Not Reported in F.Supp.2d (2007)

(N.D.Ga.1997) (black nursing assistant’s hostile work environment claim, predicated on several racially charged statements, including supervisor’s comments that: “all that mooly can do is make coffee and bring it to me,” “these goddamn Georgia niggers think they own Georgia,” and “where I come from niggers knew their place,” rejected because comments were offensive utterances and were not sufficiently severe and pervasive).
Plaintiff’s evidence simply does not establish a workplace “permeated by racism, by threats of violence, by improper interference with work, or by conduct resulting in psychological harm.” Jordan v. Alternative Resources

Corp., 458 F.3d 332, 340 (4th Cir.2006). Since Plaintiff cannot establish that the alleged harassment was sufficiently severe or pervasive, the claim must fail.
IT S THEREFORE ORDERED that Defendant’s Motion for Summary Judgment is hereby GRANTED.
Parallel Citations 100 Fair Empl.Prac.Cas. (BNA) 380
	  

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U.S. District Court Western District of North Carolina (Charlotte) CIVIL DOCKET FOR CASE #: 3:05-cv-00269-GCM

APPEAL

Equal Employment Opportunity Commission v. E&H Electrical Service, Inc. Assigned to: Senior Judge Graham Mullen Case in other court: 4th Circuit, 07-01467 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 06/09/2005 Date Terminated: 03/20/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Eric S. Dreiband Equal Employment Opportunity Commission 1801 L Street, N.W. 7th Floor Washington, DC 20507 202/663-4736 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwendolyn Young Reams Equal Employment Opportunity Commission 1801 L Street, N.W. 7th Floor Washington, DC 20507 202/663-4736 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynette A. Barnes Equal Employment Opportunity Commission Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, NC 28202 704.344.6878 Fax: 704.344.6780 Email: lynette.barnes@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Margaret Ryerse

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V. Defendant E&H Electrical Service, Inc.

EEOC U.S. Equal Employment Opportunity Commission 129 W. Trade Street, Suite 400 Charlotte, NC 28202 704-344-6886 Fax: 704-344-6780 Email: mary.ryerse@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by G. Bryan Adams, III Van Hoy, Reutlinger, Adams & Dunn 737 East Blvd. Charlotte, NC 28203 704-375-6022 Fax: 704-375-6024 Email: badams-vrad@carolina.rr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip M. VanHoy Van Hoy, Reutlinger, Adams & Dunn 737 East Boulevard Charlotte, NC 28203 704/375-6022 Fax: 704/375-6024 Email: phil.vanhoy@vradlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/09/2005 06/09/2005 07/01/2005 08/03/2005

# Docket Text
1 COMPLAINT against E&H Electrical Service, Inc. , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Basile, Antonietta) (Entered: 06/13/2005)
2 NOTICE OF LAWSUIT AND REQUEST FOR WAIVER of Service of Summons sent to Tim S. Ellison, Registered Agent for E&H Electrical Service, Inc. by Equal Employment Opportunity Commission. (Basile, Antonietta) (Entered: 06/13/2005)
3 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. E&H Electrical Service, Inc. waiver sent on 6/9/2005, answer due 8/8/2005. (Barber, Suzanne) (Entered: 07/01/2005)
4 ANSWER to Complaint with Jury Demand by E&H Electrical Service, Inc..(Wallace, Betsy) (Entered: 08/09/2005)

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09/01/2005 09/14/2005
12/12/2005
12/12/2005 12/19/2005 05/05/2006 05/08/2006 05/10/2006 05/17/2006 05/17/2006 05/17/2006 05/23/2006 06/28/2006 06/30/2006 06/30/2006 08/30/2006

7 CERTIFICATION of initial attorney conference and discovery plan by Equal Employment Opportunity Commission, E&H Electrical Service, Inc..(Cochran, Candace) (Entered: 09/06/2005)
8 SCHEDULING ORDER: Discovery due by 5/30/2006. Motions due by 6/30/2006. Jury Trial set for 12/4/2006 10:00 AM in Courtroom #3, 401 W. Trade St., Charlotte, NC 28202 before Graham Mullen.. Signed by Judge Graham Mullen on 9/14/05. (Wallace, Betsy) (Entered: 09/14/2005)
9 Joint MOTION for Extension of Scheduling Deadlines for Disclosure of Expert Witness(es) by Equal Employment Opportunity Commission, E&H Electrical Service, Inc.. Responses due by 12/27/2005 (Attachments: # 1 Text of Proposed Order)(Ryerse, Mary) (Entered: 12/12/2005)
Proposed document submitted to Judge Graham Mullen. (Ryerse, Mary) (Entered: 12/12/2005)
10 ORDER granting 9 Motion for Extension of Scheduling Deadlines . Signed by Judge Graham Mullen on 12/19/05. (Huntley, Cynthia) (Entered: 12/20/2005)
11 Joint MOTION for Protective Order by Equal Employment Opportunity Commission, E&H Electrical Service, Inc.. Responses due by 5/22/2006 (Attachments: # 1 Proposed Order Consent Protective Order)(Ryerse, Mary) (Entered: 05/05/2006)
12 NOTICE by Equal Employment Opportunity Commission re 11 Joint MOTION for Protective Order (Attachments: # 1 Proposed Order Amended Consent Protective Order)(Ryerse, Mary) (Entered: 05/08/2006)
13 ORDER granting 11 Motion for Protective Order . Signed by Judge Graham Mullen on 5/10/06. (MacEwan, Cathy) (Entered: 05/11/2006)
14 Joint MOTION for Extension of Scheduling Deadlines by E&H Electrical Service, Inc.. (Adams, G.) (Entered: 05/17/2006)
15 ORDER granting 14 Motion for Extension of Scheduling Deadlines . Signed by Judge Graham Mullen on 5/17/06. (Huntley, Cynthia) (Entered: 05/18/2006)
Set/Reset Deadlines: Discovery due by 7/1/2006. Motions due by 8/1/2006. (Huntley, Cynthia) (Entered: 05/18/2006)
16 REPORT of Mediation - The parties have reached an impasse.(Huntley, Cynthia) (Entered: 05/24/2006)
17 Joint MOTION for Extension of Scheduling Deadlines by E&H Electrical Service, Inc.. (Adams, G.) (Entered: 06/28/2006)
18 ORDER granting 17 Motion for Extension of Scheduling Deadlines . Signed by Judge Graham Mullen on 6/30/06. (Huntley, Cynthia) (Entered: 07/03/2006)
Set Deadlines/Hearings: Discovery due by 9/1/2006. Motions due by 10/1/2006. Jury Trial set for 3/5/2007 10:00 AM in Courtroom #3, 401 W. Trade St., Charlotte, NC 28202 before Graham Mullen. (Huntley, Cynthia) (Entered: 07/03/2006)
19 MOTION for Extension of Scheduling Deadlines by E&H Electrical Service, Inc..Responses due by 9/18/2006 (Adams, G.) (Entered: 08/30/2006)

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09/01/2006 11/16/2006 11/16/2006
12/04/2006
12/05/2006 12/15/2006 12/22/2006 12/27/2006 01/05/2007 01/23/2007 03/19/2007

20 ORDER granting 19 MOTION for Extension of Scheduling Deadlines. Discovery due by 10/16/2006. Motions due by 11/16/2006. Signed by Judge Graham Mullen on 9/1/06. (com) (Entered: 09/01/2006)
21 MOTION for Summary Judgment by E&H Electrical Service, Inc..Responses due by 12/4/2006 (Adams, G.) (Entered: 11/16/2006)
22 MEMORANDUM in Support re 21 MOTION for Summary Judgment filed by E&H Electrical Service, Inc.. (Attachments: # 1 Appendix Locklear Deposition Excerpts# 2 Appendix Locklear Deposition Exhibits# 3 Appendix Ellison Depo Excerpts and Exhibits# 4 Appendix Braswell Deposition Excerpts# 5 Appendix Miller Deposition Excerpts# 6 Appendix Helms Deposition Excerpts# 7 Appendix Wilson Deposition Excerpts# 8 Appendix Heafner Deposition Excerpts# 9 Affidavit Tim Ellison Affidavit# 10 Affidavit TIm Harbin Affidavit# 11 Affidavit Gary McDowell Affidavit# 12 Affidavit Robert McDowell Affidavit# 13 Exhibit Memorandum Exhibit A# 14 Exhibit Memorandum Exhibit B# 15 Appendix Unpublished Decisions Pt. 1# 16 Appendix Unpublished Decisions Pt. 2)(Adams, G.) (Entered: 11/16/2006)
23 MEMORANDUM in Opposition re 21 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix # 2 Exhibit 1 Locklear Depostion Excerpts# 3 Exhibit 2 - Locklear Dep Exhibit 6# 4 Exhibit 3 Locklear Dep Exhibit 10# 5 Exhibit 4- Locklear Affidavit# 6 Exhibit 5 - Ellison Deposition excerpts# 7 Exhibit 6 - Ellison Dep Exhibit 4# 8 Exhibit 7 - Ellison Dep Exhibit 12# 9 Exhibit 8 - Braswell Deposition excerpts# 10 Exhibit 9 - Helms Deposition excerpts# 11 Exhibit 10 - Wilson Deposition excerpts# 12 Exhibit 11 - Miller Deposition excerpts# 13 Exhibit 12 - Unreported cases# 14 Exhibit 13 - Unreported cases 2)(Ryerse, Mary) (Entered: 12/04/2006)
24 Unredacted Documents re: 23 Memorandum in Opposition to Motion; Exhibit 2 and (Attachments: (1) Exhibit 3)(com) (Entered: 12/07/2006)
25 REPLY to Response to Motion re 21 MOTION for Summary Judgment filed by E&H Electrical Service, Inc.. (Attachments: # 1 Appendix Luke Heafner Deposition Excerpt)(Adams, G.) (Entered: 12/15/2006)
26 Surreply by Equal Employment Opportunity Commission as to 21 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 1 - Locklear Deposition excerpts)(Ryerse, Mary) (Entered: 12/22/2006)
27 MOTION for Leave to File A Surreply Memorandum to Defendant's Reply Memorandum by Equal Employment Opportunity Commission.Responses due by 1/16/2007 (Attachments: # 1 Attachment A: Proposed Surreply Memo with Exhibit# 2 Proposed Order)(Ryerse, Mary) (Entered: 12/27/2006)
28 ORDER granting 27 Motion for Leave to File a memorandum in response to Defendant's Reply Memorandum in Support of Defendant's Motion for Summary Judgment. Signed by Judge Graham Mullen on 1/5/07. (chh) (Entered: 01/05/2007)
29 ORDER Jury Trial reset for 5/7/2007 10:00 AM in Courtroom #3, 401 W. Trade St., Charlotte, NC 28202 before Graham Mullen. Signed by Judge Graham Mullen on 1/23/07. (com) (Entered: 01/23/2007)
30 ORDER granting 21 Motion for Summary Judgment. Signed by Judge Graham Mullen on 3/19/07. (com) (Entered: 03/19/2007)

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03/20/2007 05/18/2007
05/18/2007 05/24/2007 10/03/2007

31 CLERK'S JUDGMENT is hereby entered in accordance with the Court's Order dated 3/19/07 (com) (Entered: 03/20/2007)
32 NOTICE OF APPEAL as to 31 Clerk's Judgment, 30 Order on Motion for Summary Judgment by Equal Employment Opportunity Commission. (Ryerse, Mary) (Entered: 05/18/2007)
33 Transmission of Notice of Appeal to US Court of Appeals re 32 Notice of Appeal (tmg) (Entered: 05/18/2007)
34 USCA Case Number 07-1467 for 32 Notice of Appeal USCA Case Manager: Richard H. Sewell. (smj) (Entered: 05/24/2007)
35 MANDATE of USCA as to 32 Notice of Appeal (Attachments: # 1 Order)(mga) (Entered: 10/12/2007)

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 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 07-1467 3:05-cv-00269
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff - Appellant
v. E & H ELECTRICAL SERVICES, INCORPORATED
Defendant - Appellee

FILED October 3/ 2007

o R D E R
Appellant has filed a consent motion to dismiss. The Court dismisses this appeal, upon such terms as have been agreed to by the parties, pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. The Clerk of this Court will issue a certified copy of this order to the Clerk of the District Court as and for the mandate.
For the Court - By Direction
lsi Patricia S. Connor
CLERK

A 'True Copy, Teste:

Patri~.~onnor, ?Frk~

BY i/UrO!U~ ~(j~ )

~

.

Deputy Clerk