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Blackman v. Town of Front Royal

 

CHARLES BLACKMAN, Plaintiff, 
vs.
TOWN OF FRONT ROYAL, et al., Defendants.

CIV. ACTION NO. 5:99CV00017
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, HARRISONBURG DIVISION
2000 U.S. Dist. LEXIS 17512
October 19, 2000, Decided

COUNSEL

For CHARLES W. BLACKMAN, plaintiff: Thomas Hunt Roberts, ROBERTS PROFESSIONAL LAW CORP., Tim Schulte, THOMAS H. ROBERTS & ASSOCIATES, P.C., ROBERTS PROFESSIONAL LAW CORPORATION, RICHMOND, VA. 
For TOWN OF FRONT ROYAL, VIRGINIA, defendant: LeAnn M. Buntrock, Mark Dudley Obenshain, Thomas E. Ullrich, WHARTON, ALDHIZER & WEAVER, PLC, HARRISONBURG, VA USA. 
For EUGENE TEWALT, defendant: James Greer Welsh, TIMBERLAKE, SMITH, THOMAS & MOSES, P.C., STAUNTON, VA. 
JUDGES
James H. Michael, Jr., Senior United States District Judge. 
AUTHOR: MICHAEL
OPINION


MEMORANDUM OPINION 
JUDGE JAMES H. MICHAEL, JR. 

Before the court are motions by the defendants for summary judgment and the plaintiff's responses thereto. The court referred the matter to the presiding United States Magistrate Judge, B. Waugh Crigler, to issue a Report and Recommendation on the dispositive motions, pursuant to 28 U.S.C. 636(b)(1)(B). The Magistrate Judge returned his Report and Recommendation on May 3, 2000, recommending that Counts One, Two and Five retain genuine issues of material fact with respect to the Town of Front Royal ("the Town") and therefore, the Town's motion for summary judgment as to these counts should be denied. On these same counts, the Magistrate recommends granting Defendant Eugene Tewalt's motion for summary judgment. As to the supplemental state law claims alleged in Counts Three and Four, the Magistrate recommends granting the motions for summary judgment with respect to both defendants. All parties object to the recommendation. Accordingly, the court has performed a de novo review of the matter and its findings follow below. See 28 U.S.C. 636(b)(1)(C). For Counts One, Two, and Five, the defendants shall be addressed separately and for Count Three and Four, they shall be addressed together, to the extent possible. 

The plaintiff also filed a motion to strike the Town's June 5, 2000 Response to Plaintiff's Objections to Report and Recommendation on the grounds that the Town's response was untimely. This motion shall also be addressed in turn. 


I. Statement of Facts 

The plaintiff, Charles Blackman, has sued his former employer,1 the Town of Front Royal, and the former Director of the Town's Public Works Department, Eugene Tewalt (in his individual capacity), for alleged race-based employment discrimination. The plaintiff alleges that, solely on account of his race, he was subjected to workplace verbal harassment, discrimination, and a hostile environment, all of which resulted in lost income in the form of lost compensation, benefits, and privileges, together with emotional distress, humiliation, embarrassment and mental anguish. These allegations form the basis of essentially all five of Blackman's claims. The five counts of the Complaint, in order, allege: (1) racial harassment in violation of Title VII, 42 U.S.C. 2000 et. seq; (2) race-based failure to increase wages in violation of 42 U.S.C. 1981; (3) negligent supervision; (4) negligent/intentional infliction of emotional distress; and (5) racial discrimination in violation of Title VII. 

This case has many facts in common with another case pending before the court, Thompson v. Front Royal, et al, Civil Action Number 5:98Cv00083. Thompson is another Town employee in the Public Works Department with race discrimination claims against the Town, Tewalt, and a third party not named in Blackman's Complaint. The parties to the instant action have agreed, as memorialized by order of the court dated February 16, 2000, that certain discovery filed in Thompson shall be deemed filed in this case. Due to the overlapping evidence, many of the factual underpinnings of Blackman's claims have already been recited in Thompson v. Front Royal, 2000 U.S. Dist. LEXIS 3876, Memorandum Opinion, March 16, 2000 at 2-3. However, there are differences between the two plaintiffs that should not be overlooked, and certain relevant facts are unique to the instant litigation. 

Blackman began working as a carpenter for the Town part time in 1979. In December 1979, Blackman moved from a part time worker to a full time worker with benefits, and his hourly wage was decreased by approximately 85 cents per hour. The reasons for said decrease are in dispute. Most of the pertinent facts, however, are not in dispute, but their significance and interpretation are the source of much disagreement. The court does not attempt to repeat every allegation and denial of the parties in its statement of facts, but rather focuses on some of the facts which bring the most to bear on the matter of summary judgment. 

Blackman allegedly made several complaints of racial discrimination during his tenure with the Town. Blackman allegedly received fewer promotions and pay raises of smaller percentages than white Town employees. The Town alleges that Blackman never sought a promotion, but that he was the highest paid non-management employee. Blackman's Complaint also relies on incidents that occurred outside of his presence to form part of the basis for his race discrimination claims. The Town does not deny that these alleged incidents occurred, such as repeated use of racial epithets, but challenges their sufficiency to form the basis of Blackman's Complaint. The Town claims that racially derogatory comments directed at Isaac Thompson, or racially offensive remarks not directed at particular employees or made outside of the plaintiff's presence, cannot form the basis of Blackman's Complaint. Blackman, on the other hand, contends that these incidents are illustrative of his claims of race discrimination and a hostile work environment. 

Blackman contends that, as a result of the racial discrimination he allegedly endured, the defendants are guilty of violating Title VII, 42 U.S.C. 2000 et seq., and 42 U.S.C. 1981 (for which the plaintiff seeks monetary damages), and for also violating Virginia state laws prohibiting negligent supervision, and intentional/negligent infliction of emotional distress. The plaintiff filed this lawsuit on March 19, 1999 and the defendants have both moved for summary judgment on all five counts. 

II. Standard of Review 

Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The non-moving party is to have the credibility of all its evidence presumed. See Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990). "Summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991)). If the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party, then there are genuine issues of material fact. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The movant has the initial burden of showing absence of evidence in support of the non-movant's case before the non-movant bears the burden of demonstrating the existence of some triable issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Thus, the non-movant may not rest upon mere allegations and denials of the pleadings, and must assert more than a "mere scintilla" of evidence in support of his case in order to survive an adverse entry of summary judgment. See Anderson, 477 U.S. at 248. Of particular relevance to the instant case, courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue. See Beall v. Abbott Laboratories, 130 F.3d 614, 619 (4th Cir. 1997) (citing Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996)). 


III. Counts One, Two and Five 

A. Defendant Eugene Tewalt 


Defendant Tewalt, sued in his individual capacity as Blackman's supervisor, has moved for summary judgment. In Smith v. County of Culpepper, 1998 WL 964501 at *3 (Dec. 23, 1998 W.D. Va), aff'd 191 F.3d 448 (4th Cir. 1999), the court first adopted the Fourth Circuit position taken in Lissau v. Southern Food Service, 159 F.3d 177, 180-81 (4th Cir. 1998), holding that a Title VII claim cannot be maintained against a supervisor in the supervisor's individual capacity. See also Londeree v. Crutchfield, Corp, 68 F. Supp. 2d 718, 723-24 (W.D. Va. 1999) (citing Lissau for proposition that supervisors cannot be held liable for Title VII violations in their individual capacities). In Lissau, the Fourth Circuit's holding was consistent with that of every other circuit to address the issue of Title VII individual liability since the enactment of the Civil Rights Act of 1991. See Lissau, 159 F.3d at 177 (citing cases). The plaintiff's reliance on Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part, 900 F.2d 27 (4th Cir.1990), is unpersuasive in light of Lissau's thorough analysis of liability under Title VII in the context of the 1991 Civil Rights Act, which was enacted after Paroline. Accordingly, Defendant Tewalt's motion for summary judgment on the Title VII claims (Counts One and Five) shall be granted, as recommended by the Magistrate Judge. 

With respect to Count Two, Blackman's 1981 claim, Tewalt again contends that he cannot be held liable in his individual capacity. In order to maintain a 1981 claim against an individual, the plaintiff must allege direct involvement by the individual because there is no respondeat superior liability under either 1981 or 1983. See Collin v. Rector and Bd. of Visitors of Univ. of Virginia, 873 F. Supp. 1008, 1014 (W.D. Va. 1995). The plaintiff must allege that the supervisor intentionally violated the plaintiff's rights through acts, practices, or policies, that lead to the alleged deprivation. See id. at 1013-14 (citing United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir.1979). Blackman alleges that Tewalt directly affected Blackman's salary because Tewalt had the power to hire, fire, promote, and gave the impression that he had the authority to determine employee wages. However, the Director who allegedly lowered Blackman's salary in 1979 due to complaints from white workers was not Tewalt. (Compl. at P 10.) As for any other discriminatory wage practices, Blackman alleges in his Complaint that the salary of white employees was raised at a disproportionately higher rate than that of Blackman's wage increases. (Compl. at P 11-13.) Blackman failed to plead in his complaint any direct involvement of Tewalt in the decisions regarding Blackman's wages. Further, Blackman points to no evidence that Tewalt actually had direct involvement in determining Blackman's wages. Instead, Blackman relies solely on the deposition of a Town employee (Crawford) that Tewalt "gave the impression" that he controlled employee wages, to allege the requisite direct involvement. (Pl. Mem. in Opp. to Tewalt Mot. for Summ. J. at 27.) Such failure to point to any direct evidence that Tewalt actually controlled Blackman's wages requires summary judgment as a matter of law in Tewalt's favor on Count Two. See, e.g., Anderson, 477 U.S. at 248 (requiring more than a "mere scintilla" of evidence to survive summary judgment); Celotex, 477 U.S. at 323-24 ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims"). 

B. The Town 

1. Statute of Limitations 

The Town's Motion for Summary Judgment and Objections to the Report and Recommendation are based largely on grounds that the plaintiff's Title VII claims are time-barred. Any incidents or events alleged to have occurred more than 300 days prior to the filing of plaintiff's suit are outside the statutory period of limitations for Title VII claims. See 42 U.S.C. 2000e-5(e)(1). Thus, the Town contends that the plaintiff is barred from recovering any claims of discriminatory conduct or retaliation occurring prior to January 31, 1998 (300 days prior to November 27, 1998, the date on which the plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission). However, all parties recognize that there is an exception to the strict application of the statutory period of limitations under the continuous violation doctrine. Where the parties differ, however, is whether the plaintiff can avail himself of this doctrine. 

The Magistrate recommends application of the continuous violation doctrine and the court agrees. A "series of separate but related acts" amount to a continuing violation. See Beall v. Abbott Laboratories, 130 F.3d 614, 620 (4th Cir. 1997) (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980)(per curiam)). However, only where an actual violation has occurred within the requisite time period -- in this case after January 31, 1998 -- can the theory of the continuous violation doctrine possibly be sustained. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2000); Tinsley v. First Union Nat. Bank, 155 F.3d 435, 442-43 (4th Cir. 1998); Beall, 130 F.3d at 621; Hill v. AT & T Tech., Inc., 731 F.2d 175, 180 (4th Cir.1984); Woodard v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983). 
The Town alleges that the continuous violation doctrine applies neither to the Title VII claims nor to the 1981 claims. The court shall address each argument in turn. 

a. Title VII 

Counts One and Five of the plaintiff's complaint allege Title VII violations and seek damages therefrom. With respect to Blackman's Title VII claims of race discrimination through workplace harassment, the allegations relevant to this claim include the alleged racial epithets, threats, hostile work environment, and lost income. The plaintiff alleges that discriminatory incidents relating to the aforementioned occurred after January 31, 1998. (Compl. at P 42.) The defendant does not necessarily contest that these alleged incidents took place during the requisite period, but rather contests whether such incidents support an actionable Title VII claim. 

To perform the task of determining whether a continuous violation exists, the Town urges the application of the three-pronged test of the Fifth Circuit, as applied by the Eastern District of Virginia. See Stringfield v. Christopher Newport Univ., 64 F. Supp. 2d 593, 596 (E.D. Va. 1999) (adopting the standard of Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971 (5th Cir.1983)). However, the Fourth Circuit has never delineated what constitutes a "continuing violation" beyond the "series of separate but related acts" test of Jenkins. Other circuits, however, have developed a number of tests for determining whether a claimant was suffering from a continuing violation. See, e.g., DeNovellis v. Shalala, 124 F.3d 298, 307 (1st Cir.1997) (finding continuing violation in case in which violation is systemic or serial); Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989) (finding continuing violation whenever "plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory mistreatment"); Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir.1983) (finding continuing violation when three-prong test involving type of conduct, frequency of alleged acts, and degree of permanence of acts is satisfied). Because the Fourth Circuit has, as of yet, declined to adopt any of the standards of the other circuits, including the Fifth Circuit test urged by the Town, the court finds the adoption of one of these tests unnecessary for the determination of the instant matter. Instead, the court focuses on the Fourth Circuit's Jenkins test, which remains good law, and also looks to the Supreme Court, which has stated that the "critical question" in a continuing violation case is "whether any present violation exists." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977). 

The plaintiff has sufficiently alleged a series of separate but related acts to which he was subjected that he contends were motivated by racial animus. Even the defendant, in applying the Fifth Circuit test the court herein declines to adopt, stated "In short, Blackman knew that these separate and distinct acts of discrimination alleged a pattern of allegedly discriminatory mistreatment long before January, 1998 and he cannot new (sic) rely upon this long-ago, alleged misconduct." (Town Mot. for Summ. J. at 15; Town Obj. to R&R at 12.)) By the Town's own admission, the alleged discriminatory acts satisfy the Jenkins test for application of the continuous violation doctrine. Thus, judgment as a matter of law on grounds that the plaintiff's Title VII claims are time-barred would be inappropriate at the summary judgment stage of litigation. 

b. 1981 

With respect to Count Two, the plaintiff's 1981 claim, Blackman alleges that he received low wages based on his race. The defendant asserts that the 1981 claim is also time-barred. (Town Mot. for Summ. J. at 15-18.) Whether this count is time-barred depends on whether there was an alleged violation within the requisite statutory period of two years.2 The Town claims that, even if the incidents complained of by the plaintiff with respect to wages constituted 1981 violations, they were distinct events that do not constitute continuous violations and occurred more than two years prior to the filing of the lawsuit. The Fourth Circuit recognizes that a "continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." See Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 189 (4th Cir. 1999) (quoting National Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir.1991) (internal quotation marks omitted)). However, the Fourth Circuit also holds that "in a compensation discrimination case, the issuance of each diminished paycheck constitutes a discriminatory act." Brinkley-Obu v. Hughes Training Inc., 36 F.3d 336, 346 (4th Cir. 1994). Certainly, the plaintiff continued to receive paychecks within the two years prior to the filing of the complaint in this action. If those paychecks were lower than they should have been, solely because of the plaintiff's race, then each paycheck constitutes a continuous violation. See id. Because the court cannot definitively answer the question of whether the plaintiff's wages were affected by race discrimination, the court can not dismiss the plaintiff's 1981 and Title VII wage claims as time-barred based on the information presently before the court. 

Accordingly, the court accepts the recommendation of the Magistrate that the Title VII and 1981 claims of the plaintiff, namely Counts One, Two, and Five, are not time-barred an the defendants' motions for summary judgment on statute of limitations grounds shall be rejected. 

2. Race Discrimination 

The plaintiff has alleged Title VII violations based, among other things, on the defendants' alleged race-based employment discrimination, including verbal harassment, hostile environment, and discrimination in lost income, in the form of lost wages, privileges and benefits. See 42 U.S.C. 2000e-2(a)(1). To establish a prima facie Title VII claim against an employer, the plaintiff must establish that the defendant took an adverse employment action against him, based on (in this case) his race. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 523-24, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). Title VII disparate treatment claims, made pursuant to 42 U.S.C. 2000e-2(a)(1), have "consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions." Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). 
The Town contends that none of Blackman's allegations are actionable Title VII claims because they do not constitute ultimate employment decisions. This position appears to be supported in Page, where the Fourth Circuit listed a number of decisions that are traditionally considered "ultimate employment decisions," and the list did not include the types of decisions alleged to have been made adversely to the plaintiff. However, Page also held that its list was not meant to be exclusive and could include additional claims. See Page, 645 F.2d at 233. In Page, the Fourth Circuit expressly refused to adopt a test for what constitutes an "ultimate employment decision," simply holding that, in the facts of that case, the decision at issue was interlocutory or mediate, not having any effect on the employment conditions of the plaintiff. The court understands Page to promote a case-by-case analysis of whether alleged discriminatory practices have an effect on the employment conditions of the plaintiff. 

Consistent with this view, the Supreme Court has recently held that when discriminatory treatment culminates in a "tangible employment action," there is an actionable Title VII claim. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998). A "tangible employment action" requires "a significant change in employment status." Reinhold v. Commonwealth of Virginia, 151 F.3d 172, 175 (4th Cir. 1999) (quoting Ellerth, 524 U.S. at 761). Based on the contested nature of the allegations and the fact that the Fourth Circuit has never adopted a specific test to determine what constitutes an actionable adverse employment decision, whether the alleged discriminatory treatment of the plaintiff affected his ultimate employment conditions or created a significant change in his status, are disputed questions of fact. Accordingly, with respect to the Town, the Title VII claims (Counts One and Five) cannot be disposed of at the summary judgment stage. The Magistrate's recommendation with respect to this issue is accepted and the Town's Motion for Summary Judgment on the Title VII claims based on the argument that the grounds for the claims are not actionable, shall be denied.

3. Hostile Work Environment 

If a "tangible employment action" is not established under the plaintiff's Title VII disparate treatment claims, the next question is whether the plaintiff can establish liability for a hostile work environment. See Reinhold, 151 F.3d at 175. Although the phrase "hostile work environment" does not appear in Title VII, such claims are actionable under Title VII through 42 U.S.C. 2000e-2(a)(1) and require a showing of "severe or pervasive conduct." Ellerth, 524 U.S. at 743; see also Hawkins, 203 F.3d at 281 (conditions must be "sufficiently severe or pervasive to . . . create an abusive working environment.") Although there are several requirements to prevail on a hostile work environment claim, see Hartsell v. Duplex Products, Inc., 123 F.3d 766, 772 (4th Cir. 1997), the severe or pervasive requirement is the one in controversy between the parties. The Town contends that the plaintiff's allegations in support of his hostile work environment claim do not rise to the level of severe or pervasive. 

The Supreme Court recently held that "standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (citations and quotations omitted). However, no bright line test has ever emerged for determining what treatment is to be considered hostile. Factors such as severity and pervasiveness must be considered, but cannot be calculated by a formulaic test, such as finding that a certain number of incidents will or will not meet the threshold. Rather, the very nature of a test that requires behavior to be either severe or pervasive means that whether there is a hostile work environment will depend on the facts of an individual case. 

The court agrees with the Magistrate that a concern of the court must be whether the plaintiff will be able to meet the pervasive and severity requirements needed to establish a prima facie case of employment discrimination. The concerns are grounded in the fact that many of the allegedly racist actions challenged by Blackman were not specifically directed at him. However, the record presently before the court, specifically the exhibits under seal, raises genuine issues of fact as to the severity of the discrimination that Blackman allegedly endured. In the instant matter, the parties ardently contest the significance of many of the alleged discriminatory incidents. For example, what the plaintiff interprets as a hostile racial threat, the Town contends was merely a joke. Thus, the court accepts the conclusion of the Magistrate, and finds that the genuine issues of material fact are self-evident, and the Town is not entitled to summary judgement on the hostile work environment issue. 

4. Affirmative Defense to Hostile Work Environment 

The Town has asserted an affirmative defense against the plaintiff's hostile work environment claim. An affirmative defense to a hostile work environment claim is only available where no tangible employment action has been taken. See Faragher, 524 U.S. at 777-78. Because the defendant moved for summary judgment on its affirmative defense, all inferences from the plaintiff's alleged facts shall be made in the plaintiff's favor. See Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990). Thus, the court must assume that the facts will support an inference that the defendant took tangible employment action against the plaintiff. See infra, Part III.B.2. Under such circumstances, the affirmative defense of Faragher, asserted by the defendant, is not available. Thus, the defendant's motion for summary judgment based on its affirmative defense to the hostile environment claim shall be denied. 

However, even if the affirmative defense were assumed to be available to the defendant, the defendant would have to prove by a preponderance of the evidence that it exercised reasonable care to prevent or correct promptly any harassing behavior and that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the defendant to avoid harm. See Brown v. Perry, 184 F.3d 388, 395 (4th Cir. 1999). By using standards such as "reasonable care" and "unreasonable failure" the affirmative defense places a premium on fact-intensive determinations of reasonableness of the conduct of the parties. The court agrees with Circuit Judge Blane Michael that "when the reasonableness of conduct is in question, summary judgment is rarely appropriate because juries have unique competence in applying the reasonable person standard to the facts of the case." Lissau v. Southern Food Services, Inc., 159 F.3d 177, 184 (4th Cir. 1998) (internal citations and quotations omitted). Accordingly, whether the defendant can even avail itself of the affirmative defense, such a defense requires determinations of reasonableness of conduct. Such determinations in this case involve genuine issues of material fact, thereby making this issue inappropriate for summary judgment. 

5. Lost Income 

Part of Blackman's Title VII claims (Counts One and Five) and the 42 U.S.C. 1981 claim (Count Two) allege lost income in the form of lost wages, benefits, and privileges. As explained infra, Part III.B.1, these claims are not time-barred. Thus, the Town's summary judgment motion as it relates to the issue of lost income must be addressed on the merits. The prima facie requirement for a Title VII claim, that an adverse employment action was taken against the plaintiff based on his race, applies to the Title VII allegations of wage discrimination. See Brinkley-Obu, 36 F.3d at 343. Thus, the Town's argument that the prima facie requirements of an Equal Pay Act claim are applicable here is unavailing. See Tyndall v. Dynaric, Inc., 997 F. Supp. 721 (E.D. Va. 1998) (stating prima facie requirements for Equal Pay Act claim). Furthermore, with respect to the claims of lost income based on discrimination, the same prima facie test for Title VII should apply to claims of racial discrimination under 1981. See Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir. 1989) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989)).

As explained infra, Part III.B.2, the issue of whether an adverse employment action was taken against Blackman on account of his race can not be disposed at this juncture. On the specific issue of lost income, the court has given considerable thought to the arguments raised by the Town that, because Blackman allegedly could not be compared to a similarly situated white employee and because he earned the highest wage of any Town laborer in the Public Works Department, he could not bring a claim for wage discrimination under Title VII or 1981. The court finds several problems with the Town's argument. For example, the Supreme Court, in response to an argument attempting to limit a female plaintiff's Title VII wage discrimination claims based on gender to cases where a male counterpart was receiving higher pay, held: 

  • In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief--no matter how egregious the discrimination might be--unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress...Congress surely did not intend...to insulate such blatantly discriminatory practices from judicial redress under Title VII.

County of Washington v. Gunther, 452 U.S. 161, 178-79, 68 L. Ed. 2d 751, 101 S. Ct. 2242 (1981). 

If the gender terms in the above quoted remarks from the Supreme Court were replaced with terms of race, the situation would be very similar to that of Blackman. Apparently, there were no other employees whose responsibilities and skill requirements mirrored those of Blackman. Is the court to assume that this bars him from bringing discrimination charges form lost income under Title VII and 1981? Based on the interpretation of the Supreme Court in Gunther, the court declines to defeat Blackman's claim at the summary judgment stage simply because there appear to be no white employees who held the same position as Blackman. Under Gunther, this would serve to frustrate the purposes of the anti-discrimination laws. 

As for the fact that Blackman is the highest paid laborer, this would make things appear on the surface to be fair to the plaintiff. However, "Title VII's prohibition of discriminatory employment practices was intended to be broadly inclusive, proscribing "not only overt discrimination but also practices that are fair in form, but discriminatory in operation.'" Gunther, 452 U.S. at 170, (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971)). The fact that Blackman received the highest wage of a laborer appears fair in form, but the question is whether it is discriminatory in practice. To allow the wage discrimination claim to be defeated at the summary judgment stage simply because the wage is a higher wage than other laborers would be to dismiss a claim because the situation seems fair on its face. However, if Blackman's claims are meritorious, then he may establish that his wage is proportionately lower than comparable white laborers. 

Taking the aforementioned into consideration, in combination with the Magistrate's recommendation and the fact that whether a race-based adverse employment action was taken against Blackman is yet to be determined, the Town's motion for summary judgment on allegations of lost income under Title VII and 1981 must be denied. 


IV. Supplemental State Law Claims 

A. 

Count Three of the plaintiff's amended complaint alleges a state law claim of negligent supervision. The Magistrate properly found that Virginia does not recognize claims for negligent supervision. (Report and Recommendation at 14 (citing Chesapeake and Potomac Telephone Co. of Virginia v. Dowdy, 235 Va. 55, 365 S.E.2d 751 (1988).) However, the plaintiff requests, if the court agrees (which it does) that negligent supervision is not a viable claim in Virginia, that the court "ignore the label of 'negligent supervision ' and treat it as 'negligent retention.'" (Pl. Mem. in Opp. to Town's Mot. for Summ. J. at 39.) (Emphasis in original.) Negligent retention is an actionable cause of action under Virginia state law. See Southeast Apartments Management, Inc. v. Jackman, 257 Va. 256, 260, 513 S.E.2d 395 (1999) (citing Philip Morris Inc. v. Emerson, 235 Va. 380, 401, 368 S.E.2d 268 (1988); Norfolk Protestant Hosp. v. Plunkett, 162 Va. 151, 156, 173 S.E. 363 (1934)). 

There is a distinction between negligent supervision and negligent retention. Although this distinction is often overlooked, it is significant enough to determine whether a party has a cause of action in the Commonwealth of Virginia or not. The plaintiff's request to deem his Complaint amended, with no further explanation as to why such leave should be granted, is unpersuasive. The plaintiff having only plead a claim of negligent supervision, the defendants' motions for summary judgment on Count Three shall be granted, in accordance with the recommendation of the Magistrate. 

B. 

Count Four asserts a claim for intentional/negligent infliction of emotional distress. The Magistrate recommends granting the defendants' motions for summary judgment on this claim because an essential element of the claim, severe emotional distress, has not been shown by the evidence. (Report and Recommendation at 10-11.) 
First, the court notes the difference between intentional infliction of emotional distress and negligent infliction of emotional distress. "When conduct is merely negligent...and physical impact is lacking, there can be no recovery for emotional disturbance alone." Womack v. Eldridge, 215 Va. 338, 340, 210 S.E.2d 145 (1974). The requisite physical injury for a claim of negligent infliction of emotional distress must be the "natural result of fright or shock proximately caused by the defendant's negligence. In other words, there may be recovery in such a case if, but only if, there is shown a clear and unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury." Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 137-38, 523 S.E.2d 826 (2000) (internal citations and quotations omitted.) Thus, a claim for negligent infliction of emotional distress requires allegations of emotional distress and physical injury resulting therefrom. See Hughes v. Moore, 214 Va. 27, 34, 197 S.E.2d 214 (1973). The plaintiff claims that he suffered headaches as a result of the emotional distress allegedly caused by the defendants. (Pl. Mem. in Opp. to Town's Mot. for Summ. J. at 42.) In Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160 (1991), the Supreme Court of Virginia held that nervousness, sleeplessness, and other physical effects of stress were insufficient to establish physical injury. Charged with interpreting state law, the court is bound by the Supreme Court of Virginia, and finds that, under Russo, Blackman's claims of "severe headaches" would be insufficient to establish the requisite physical injury. 

When there is insufficient physical injury resulting from emotional distress, a case for intentional infliction of emotional distress can still be made if the plaintiff shows by clear and convincing evidence that "the wrongdoer's conduct is intentional or reckless; the conduct is outrageous and intolerable; the alleged wrongful conduct and emotional distress are causally connected; and, the distress is severe." Russo, 241 Va. at 26; see also Womack, 215 Va. at 342 (first recognizing this cause of action in Virginia). The burden for claims of intentional infliction of emotional distress is high, demanding severity such that "no reasonable person could be expected to endure it." Russo, 241 Va. at 27. The plaintiff has alleged all of the elements of intentional infliction of emotional distress, but fails to direct the court to any evidence in the record that would support the allegations of the severity of Blackman's distress. Although the record shows that the plaintiff received some medical attention during the time he was employed by the Town, the court is unaware of any report in the record from any of Blackman's treating physicians that would bolster his emotional distress claim. The plaintiff's assertions, with nothing more, cannot support a claim for intentional infliction of emotional distress, which must be proven by clear and convincing evidence. Accordingly, the Magistrate's recommendation with respect to Count Four shall be accepted and summary judgment for the defendants shall be granted on this count. 

V. Motion to Strike 

The plaintiff filed a motion on June 12, 2000 to exclude the Town's Response to Plaintiff's Objections to Report and Recommendation. The court construes the plaintiff's motion as a Motion to Strike the Town's Response. The plaintiff's motion is based on the time requirements of Fed. R. Civ. P. 72(b) for objecting and responding to a report and recommendation. The plaintiff contends that the defendant's response to the plaintiff's objections were not timely filed and, therefore, should be stricken. The defendant opposes the plaintiff's motion, arguing that the court has a duty to consider all relevant arguments. 

Rule 72(b) gives parties ten days to object to the report and recommendation of a Magistrate. Rule 72(b) further provides that "A party may respond to another party's objections within 10 days after being served with a copy thereof." The ten day provisions of Rule 72(b) are subject to the time calculations of Fed. R. Civ. P. 6. Thus, an additional three days are added to the ten-day period when the objections are sent by mail, and weekends and legal holidays are excluded in the computation of time (because the statutory period is less than eleven days). See Fed. R. Civ. P. 6(a),(e). The plaintiff filed his objections on May 11, 2000. The "ten-day" period, calculated to exclude three days for service by mail, weekends, and the Memorial Day holiday, made the defendants' responses to the plaintiff's objections due no later than May 31, 2000. The Town filed its responses to the plaintiff's objections on June 5, 2000, six days beyond the statutory deadline. Defendant Tewalt filed his responses to the plaintiff's objections on June 1, 2000, one day past the statutory deadline. 

The Town cites no binding authority in support of its argument that the court deny the plaintiff's motion and consider the defendant's responses. The court is well aware of its duty to perform a de novo review of the Magistrate's report and recommendation in this case and has done so. See 28 U.S.C. 636(b)(1)(C). When objections to a report and recommendation are filed, whether or not responses thereto follow, the court performs a de novo review. While it may be a benefit to a party to file responses to objections to a report and recommendation, parties must follow the statutory time limits in order to avail themselves of this potential benefit. The parties in this case were reminded by the Magistrate in his Report and Recommendation of the time constraints on filing objections and responses. (Report and Recommendation at 11.) Although the plaintiff only challenged the response of the Town, both defendants failed to comply with the statutory time limits and have provided the court with no excuse for their noncompliance. Accordingly, the court will grant the plaintiff's motion and strike the defendant's June 5, 2000 response to the plaintiff's objections. The court, in the interest of consistency and fairness, also strikes, on its own motion, Tewalt's June 1, 2000 response to the plaintiff's objections. The court has performed its de novo review of the case without the benefit of the defendants' responses. 

VI. 


For the foregoing reasons, the Magistrate's Report and Recommendation shall be accepted in its entirety. Defendant Tewalt's Motion for Summary Judgment shall be granted on all counts, and Tewalt shall be dismissed as a defendant in this action. Defendant Town's Motion for Summary Judgement shall be granted with respect to Counts Three and Four and denied with respect to Counts One, Two, and Five. The plaintiff's motion to strike the Town's responses to the plaintiff's objections to the Report and Recommendation shall be granted. Tewalt's response to the plaintiff's objections to the Report and Recommendation shall also be stricken. 
An appropriate Order shall this day enter. 


ENTERED: James H. Michael, Jr. 
Senior United States District Judge 
October 19th, 2000 
Date 
ORDER 
JUDGE JAMES H. MICHAEL, JR. 
Before the court are motions by both defendants for summary judgment. The above-captioned matter was referred to the presiding United States Magistrate Judge, B. Waugh Crigler, for a report and recommendation on the dispositive motions. See 28 U.S.C. 636(b)(1)(B). Magistrate Judge Crigler returned the Report and Recommendation on May 3, 2000 and all parties objected thereto. The court has performed a de novo review of those portions of the Report and Recommendation to which objections were made. See 28 U.S.C. 636(b)(1)(C). The parties also responded to the objections to the Report and Recommendation, and the plaintiff filed a motion on June 12, 2000 to strike the June 5, 2000 response of the Town of Front Royal as untimely. Having considered the Report and Recommendation, the entire record, all relevant memoranda and the applicable case law, and for the reasons stated in the accompanying Memorandum Opinion, it is accordingly this day 
ADJUDGED ORDERED AND DECREED 
as follows: 
(1) The May 3, 2000 Report and Recommendation of Magistrate Judge Crigler shall be, and hereby is, ACCEPTED in its entirety. 
(2) The February 17, 2000 Motion for Summary Judgment by Defendant Eugene Tewalt shall be, and hereby is, GRANTED in its entirety. 
(3) Eugene Tewalt shall be, and hereby is, DISMISSED as a defendant in the above-captioned civil action. 
(4) The February 15, 2000 Motion for Summary Judgment by the Town of Front Royal shall be, and hereby is, GRANTED as to Counts Three and Four, and DENIED as to Counts One, Two and Five. 
(5) The June 12, 2000 motion by the plaintiff to strike the Town of Front Royal's June 5, 2000 Response to the Plaintiffs Objections to the Report and Recommendation shall be, and hereby is GRANTED. 
(6) The June 5, 2000 Response of the Town of Front Royal to the Plaintiff's Objections to the Report and Recommendation shall be, and hereby is, STRICKEN. 
(7) Upon the court's own motion, the June 1, 2000 Response of Eugene Tewalt to the Plaintiff's Objections to the Report and Recommendation shall be, and hereby is, STRICKEN. 
(8) The above-captioned civil action shall be, and hereby is, REFERRED to Magistrate Judge Crigler, pursuant to the court's order dated May 10, 1999. 
The Clerk of Court hereby is directed to send a certified copy of this Order and the accompanying Memorandum Opinion to all counsel of record and to Magistrate Judge Crigler. 
ENTERED: James H. Michael, Jr. 
Senior United States District Judge 
October 19th, 2000 
Date 
DISPOSITION

May 3, 2000 Report and Recommendation of Magistrate Judge Crigler ACCEPTED in its entirety. February 17, 2000 Motion for Summary Judgment by Defendant Eugene Tewalt GRANTED in its entirety. Eugene Tewalt DISMISSED as a defendant in the above-captioned civil action. February 15, 2000 Motion for Summary Judgment by the Town of Front Royal GRANTED as to Counts Three and Four, and DENIED as to Counts One, Two and Five. June 12, 2000 motion by the plaintiff to strike the Town of Front Royal's June 5, 2000 Response to the Plaintiff's Objections to the Report and Recommendation GRANTED. June 5, 2000 Response of the Town of Front Royal to the Plaintiff's Objections to the Report and Recommendation STRICKEN. Upon the court's own motion, the June 1, 2000 Response of Eugene Tewalt to the Plaintiff's Objections to the Report and Recommendation STRICKEN. Above-captioned civil action REFERRED to Magistrate Judge Crigler, pursuant to the court's order dated May 10, 1999.

OPINION FOOTNOTES
1 Blackman has retired from his job with the Town. 
2 Congress imposed no statute of limitations for 1981 claims, so the state statute of limitations applies. See Steward v. Norfolk, Franklin and Danville Ry. Co., 486 F. Supp. 744, 747 (E.D. Va. 1980), aff'd 661 F.2d 927 (4th Cir. 1981). Thus, the applicable limitations period for Count Two is two years. See Va. Code. Ann. 8.01-243 (Michie 1950).