On October 19, 2017, in John L. McKinney Jr. v. G4S Government Solutions, Inc., the Fourth Circuit affirmed the ruling of the district court, dismissing John McKinney’s hostile work environment, retaliation, and intentional infliction of emotional distress (IIED) claims against his former employer, G4S Government Solutions, Inc. (“G4S”). The Fourth Circuit concluded that Mr. McKinney failed to follow G4S’s procedure for reporting discrimination and his emotional distress lacked the necessary severity to sustain a claim.
In September 2005, G4S hired McKinney, who is Black, as a security officer at the Radford Army Ammunition Plant (RFAAP). On May 23, 2013, McKinney observed four of G4S’s white superior officers laughing in a common area near his office. One of them, Shawn Lewis—a project manager and G4S’s highest ranking supervisor at RFAAP—asked McKinney “if he knew that there was a noose hanging on a nail inside a small closed cabinet outside the security captain’s office.” After showing McKinney the noose, Lewis directed McKinney to get rid of it, over McKinney’s objection. As McKinney was walking away with the noose, another employee—who lived in a predominantly Black neighborhood—told McKinney, “I know what to do with [the noose]. I can use that around my house.” That same day, McKinney saw Lewis standing on a ladder in the supply room, holding a white sheet over another supervisor’s head to resemble a Ku Klux Klan hood.
The next day, McKinney reported the noose and hood incidents to Lieutenant Colonel Byron Penland, the highest-ranking Army officer at RFAAP but not a G4S employee. It was not until May 31, 2013, that an executive-level G4S employee learned of McKinney’s complaint, when a receptionist informed G4S’s Senior Vice President Rich Allen, who also is Black, that McKinney was upset about an incident involving a noose and a white sheet. Allen met McKinney and apologized, told McKinney that neither he nor the company tolerated such conduct, and that there would be an investigation. Allen gave McKinney his card and personal cell phone number, and told McKinney to contact him if he had any concerns. Allen returned to RFAAP on June 11, 2013, and assured McKinney that there would be no retaliation for McKinney’s report and told G4S’s other employees at RFAAP that G4S would conduct an investigation and that they were to treat McKinney with respect.
Nonetheless, after complaining, G4S allegedly began to retaliate against McKinney: he was asked if he was going to quit; his supervisors began to micromanage him; an unknown person deliberately dented his car and let the air out of its tires; and G4S began to exclude him from meetings. According to McKinney, G4S’s discrimination and retaliation caused him to suffer from symptoms including increased blood pressure, sleeplessness, nervousness, anxiety, and marital problems.
McKinney brought suit in the U.S. District Court for the Western District of Virginia alleging a hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) and IIED under Virginia common law. On G4S’s motion for summary judgment, the district court dismissed the Title VII claims based on the finding that G4S had successfully established a Faragher/Ellerth affirmative defense, and the IIED claim based on the finding that G4S’s conduct lacked the requisite severity and McKinney’s emotional distress lacked the requisite extremity. McKinney appealed the district court’s decision to the Fourth Circuit, which affirmed it in its entirety.
The Faragher/Ellerth affirmative defense allows an employer to avoid liability under Title VII upon a showing that (1) it took no tangible adverse employment against the plaintiff employee; (2) it exercised reasonable care to prevent and promptly correct the harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. The district court found that G4S had demonstrated each element.
Regarding McKinney’s IIED claim, the district court found that the emotional distress caused by McKinney’s supervisor’s actions did not rise to the level of severity required to sustain an IIED claim under Virginia law, which requires that any emotional distress be extreme and so severe that no reasonable person could be expected to endure it. The district court held that no reasonable jury could find that McKinney’s reported symptoms of elevated blood pressure, sleeplessness, nervousness, and anxiety met the high standard required to sustain the claim.
Unlike in Virginia, the New York Court of Appeals has rejected the Faragher/Ellerth affirmative defense under the New York City Human Rights Law. If your employer has discriminated against you based on your race or has retaliated against you because you reported discrimination, contact The Harman Firm, LLP.