Colfield et al v. Safeway Inc. et al
Filing
114
MEMORANDUM. Signed by Judge William M Nickerson on 3/30/2016. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STEPHEN COLFIELD
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v.
SAFEWAY INC.
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Civil Action No. WMN-12-3544
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MEMORANDUM
Before the Court is a Motion for Summary Judgment filed by
Defendant Safeway Inc.
briefed.
ECF No. 88.
That motion is fully
Also pending is Defendant’s Motion to Strike several
of the exhibits attached to Plaintiff’s Opposition to
Defendant’s Summary Judgment Motion.
is also ripe.
ECF No. 107.
That motion
Upon review of the motions and the applicable
case law, the Court determines that no hearing is necessary,
Local Rule 105.6, and that both motions will be granted in part
and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was employed by Defendant as a food or produce
clerk from January 2004 until his employment was terminated on
or about July 16, 2012.
Plaintiff is African American and
brings this suit alleging that he was discriminated against on
the basis of his race and that he was retaliated against when he
complained about various discriminatory practices to which he
and other employees were subjected.
His claims focus on four
specific actions or categories of actions taken against him by
Defendant.
The first relates to Defendant’s refusal to assign him any
Sunday hours while he was on light duty status from September
2010 to August 2011.
Plaintiff suffered an on-the-job injury in
March of 2010 and was on injured workers’ compensation leave
from June 2010 to September 2010.
When he returned to work, he
requested and was granted light duty status.
During this time,
he was assigned to Defendant’s Ellicott City store under Store
Manager Larry Kunze,1 a Caucasian.
He contends that Kunze
permitted two white employees who were also on light duty status
to work Sundays but would not permit him to do so despite his
repeated requests for Sunday hours.
Plaintiff desired Sunday
work because it is compensated at twice that of regular time
pay.
The second category of actions taken by Defendant that
Plaintiff believes was discriminatory or retaliatory was his
assignment to undesirable tasks, like cleaning up dead mice or
filthy trash, and his being subjected to disproportional
discipline for minor work rule violations.
Plaintiff asserts
that this was the first time in his twenty years of experience
as a food or produce clerk that he was given these types of
1
Throughout his pleadings, Plaintiff refers to this individual
as “Kuntz.” This individual signed his affidavit as Kunze and
the Court will use that surname throughout.
2
undesirable tasks to perform.
As an example of disproportional
discipline, Plaintiff cites incidents where he was written up
for failing to hit a particular button on the cash register
which, after scanning the customer’s Club Card, would indicate
whether that customer was an “elite customer.”
This requirement
was part of Defendant’s “Rapport Program,” which was designed to
“promote sincere dialogue between Safeway customers and
employees.”
Kunze Aff. ¶ 10, ECF No. 88-11.
Plaintiff cites
instances where other employees committed more serious work rule
violations and did not receive any discipline.
For example,
while Defendant’s Employee Store Purchase Policy prohibits
employees from ringing up the purchases of family members, a
Caucasian cashier, Christine Haley, checked out her sister on
more than one occasion and Kunze took no disciplinary action.
Mark Robins Aff. ¶ 7, ECF No. 98-38 and Leslie Easton Aff. ¶ 11,
ECF No. 98-39.2
The third action taken against Plaintiff that he views as
discriminatory and retaliatory was his suspension on December
13, 2011, for his purchase of a “Planet of the Apes” DVD one day
before it was due to be released for sale to the public.
Plaintiff picked up the DVD from the receiving room of the store
and, not knowing it was not supposed to be sold until the next
2
These affidavits are the subject of Defendant’s Motion to
Strike but, as explained below, the Motion to Strike will be
denied as to this portion of these documents.
3
day, took it to the self-checkout.
When he experienced some
difficulty at the self-checkout register unrelated to the prerelease status of the DVD, he was assisted by the self-checkout
cashier, Tiffany Mertes, and made the purchase.
Statement, ECF No. 98-15.
Mertes
The next day, Mertes, who is
Caucasian, reported the sale to Kunze and Plaintiff was
immediately suspended.
Although Defendant acknowledges that it suffered no
negative repercussions for this pre-release sale, ECF No. 98-16,
it maintains that the purchase violated the following Employee
Purchase Policy:
“All employees, their friends and family members
shall be treated as other customers.
extended preferential treatment.”
ECF No. 88-10 at 28.
At no time are they to be
Karen Graham Aff., Exhibit E,
For this violation, Plaintiff was suspended
for three weeks, without pay.
At the conclusion of the suspension,
Plaintiff was transferred to Defendant’s Owings Mills store,
effective January 1, 2012.
The fourth and final adverse action taken by Defendant against
Plaintiff was his suspension and the termination of his employment
following an alleged incident of work place violence that occurred
on April 25, 2012.
On that date, Plaintiff went to the management
office of his store and spoke with two assistant store managers,
Angela Corprew and Charles “Mike” Deinlein.
Having heard that a
co-worker, Tia Person, was about to lodge a complaint against him
4
with Defendant’s Human Resources Department, Plaintiff requested
that Corprew call Person into the office, which she did.
Tia
Person is African American and Corprew is of mixed race.
According
to Plaintiff, soon after he and Person began their discussion, both
became agitated and Person became confrontational.
As the
situation escalated, Plaintiff tried to leave the office but Person
blocked his path causing him to bump shoulders with her as he left
the office.
Plaintiff was immediately suspended pending
investigation and an investigation was conducted by Allen Tlusty, a
Loss Prevention Investigator for Defendant.
Plaintiff’s employment
was ultimately terminated on or about July 16, 2012, based upon
this alleged violation of Defendant’s zero-tolerance Workplace
Violence Policy.
As support for his claim that these actions were taken against
him in retaliation for his opposition to Defendant’s discriminatory
practices, Plaintiff recites a history of his advocating for
himself and others.
In January of 2011, Plaintiff complained to
Human Resources Representative Karen Graham that, while Kunze would
not schedule him for Sunday shifts while on light duty status, he
was giving Sunday work to two white employees who were also on
light duty status, Tiffany Mertes and Crystal Adams.
is African American.
Karen Graham
On or about September 28, 2011, Plaintiff met
with Graham and again complained about Kunze’s refusal to schedule
him for Sundays, assigning him undesirable tasks, and severely
restricting his interactions with co-workers.
5
Plaintiff also
mentioned Kunze’s discriminatory harassment of a Jewish coworker,
Mark Robins.
While Plaintiff maintains that he presented these
complaints as complaints of discriminatory harassment, Graham did
not investigate those allegations.
He also asserts that Kunze
issued him a disciplinary write up the very next day, September 29,
2011.
Pl.’s Aff. ¶ 14, ECF No. 98-1.
On or about October 15, 2011, Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
(EEOC) asserting that he believed he was being discriminated
against on the basis of his race and retaliation.
No. 88-30.
EEOC Charge, ECF
On or about October 27, 2011, Plaintiff filed a
grievance for racial harassment against Kunze with his union,
United Food and Commercial Workers Union, Local 27 (Local 27).
Plaintiff met with Graham on or about November 22, 2011, to discuss
his grievance.
Graham states that, while she understood that
Plaintiff was asserting that Kunze was biased against him, she did
not understand that the bias was racially based.
ECF No. 88-10.
Graham Aff. ¶ 7,
The Court notes, however, that the EEOC had sent a
Notice of Charge of Discrimination to Graham on October 25, 2011,
and that Notice clearly indicated that Plaintiff was asserting a
claim of discrimination based on race as well as retaliation.
ECF
No. 98-30.
On April 4, 2012, Plaintiff sent a letter to the EEOC updating
his charge regarding his transfer to the Owings Mill store and his
belief that he was moved to this store so that the black co-manager
6
of that store, Jimmy Bennett, could fire him and, because Bennett
was black, Plaintiff would not be able to argue that his firing was
racially based.
Pl.’s Aff., Ex. A, ECF No. 98-1 at 7-9.
On April
24, 2012, Plaintiff had a fact finding meeting at the EEOC
concerning his EEOC charge which Graham and several store managers
attended.
It was the very next day that the confrontation with
Person that led to his termination occurred.
In addition to filing charges and grievances on his own
behalf, Plaintiff also assisted other employees with charges and
grievances against Defendant.
From 2006 to 2010, while Plaintiff
was assigned to Defendant’s Pikesville Store, Plaintiff served as
the shop steward for Local 27.
Although he did not maintain that
role once transferred from that store, other employees still sought
his advice and assistance.
For example, he assisted Maria Jones,
an African American produce clerk, with an EEOC charge after she
was suspended by Jimmy Bennett.
He also assisted African American
co-workers Danny Carr and Anthony Wade with their filing of EEOC
charges of racial discrimination although it is not clear that
Defendant was aware that Plaintiff was providing this assistance.
In the period immediately leading up to the termination of his
employment, Plaintiff was also assisting co-worker Rashida DanielsGordon3 with filing an EEOC charge for sexual harassment after store
3
Plaintiff refers to this co-worker as “Rashida Daniels.” The
Court will use the name by which she signed her affidavit. ECF
No. 98-37.
7
manager, Jimmy Bennett, sent her text messages pressuring her for
sex.
In the process of providing that assistance, Plaintiff
inadvertently sent copies of the text messages to Defendant’s
attorney, who forwarded the information to Graham.4
Graham then
requested that Daniels-Gordon meet with her at a secret location
away from the store.
Graham met with Daniels-Gordon at a nearby
sandwich shop and, while Graham told Daniels-Gordon that the
purpose of the meeting was to investigate her sexual harassment
complaint, Daniels-Gordon stated that Graham focused her questions
more on Plaintiff - how he knew about her complaint and if he was
helping with that complaint.
ECF No. 98-37.
Rashida Daniels-Gordon Aff. ¶¶ 6,7,
Graham ended the meeting by warning Daniels-Gordon
not to tell anyone about the meeting, especially Plaintiff.
Id. ¶
10.
Based upon this series of events, Plaintiff brought claims in
his Amended Complaint under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq. (Title VII), the
Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 (§ 1981),
and 42 U.S.C. § 1985(3) (§ 1985(3)).
The § 1985(3) claim was
asserted against Plaintiff’s union, Local 27, as well as
4
Plaintiff was attempting to find legal representation for
himself and came across Defendant’s attorneys listed on a
referral website as a firm that does employment law. He then
emailed the details of his claims to the firm and included
copies of the text messages from Bennett in that submission.
ECF No. 73-3. This inadvertent disclosure was the subject of
Plaintiff’s motion to disqualify Defendant’s counsel, ECF No.
73, which this Court denied. ECF No. 85.
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Defendant Safeway.
On November 18, 2014, this Court dismissed
the § 1985(3) claim and dismissed Local 27 as a defendant.
Thus, what remains are Plaintiff’s race discrimination and
retaliation claims under Title VII (Counts One and Two,
respectively) and his race discrimination claim under § 1981
(Count Four).
Defendant has moved for summary judgment as to all of those
remaining claims.
ECF No. 88.
Plaintiff opposed the motion, ECF
No. 98, and Defendant then filed a motion to strike a variety of
documents (or at least portions of documents) that were
submitted by Plaintiff in support of his opposition.
107.
ECF No.
Because resolution of the motion to strike will determine
the evidence that can be considered in resolving the motion for
summary judgment, the Court turns first to the motion to strike.
II. MOTION TO STRIKE
Defendant challenges the documents submitted by Plaintiff
on a variety of grounds.
Some are challenged because the
documents purportedly were not produced or the affiant was not
identified as a witness during discovery.
because the document is unsworn.
Others are challenged
Portions of some documents are
challenged because the testimony is not based on personal
knowledge, is based on hearsay, or goes beyond the scope of
knowledge of the affiant disclosed in discovery.
9
Portions of
Plaintiff’s affidavit are challenged on the ground that they are
allegedly inconsistent with Plaintiff’s deposition testimony.
Defendant’s motion to strike is governed by several
provisions of the Federal Rules of Civil Procedure.
Rule
37(c)(1) provides that “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.”
Rule 26(e)(1) provides that, when a party has responded to
interrogatories, requests for production, or requests for
admissions and later learns that its disclosure or response is
incomplete or incorrect in some material respect, the party must
supplement its previous disclosure or response.
Rule 56(c)(4)
requires that “an affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence and show that the
affiant or declarant is competent to testify on the matters
stated.”
Thus, under this Rule, statements in an affidavit or
declaration cannot be conclusory or based upon hearsay.
Evans
v. Tech. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir.
1996).
In addition, where a party has been deposed, courts do
not permit that party to avoid summary judgment by submitting an
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affidavit that contradicts the prior sworn deposition testimony.
Barwick v. Celotex Corp., 736 F.2d 946, 975 (4th Cir. 1984).
When applying these rules to a motion to strike, however,
courts use “a scalpel, not a butcher knife,” to strike only
those portions of an affidavit that do not satisfy the
requirements of Rule 56(c).
576, 593 (6th Cir. 2009).
Upshaw v. Ford Motor Co., 576 F.3d
In addition, “the papers of a party
opposing summary judgment are usually held to a less exacting
standard than those of the moving party,” Blasic v. Chugach
Support Servs., Inc., 673 F. Supp. 2d 389, 396 (D. Md. 2009),
and “doubts regarding admissibility are resolved in favor of the
party opposing summary judgment.”
United States v. Bell, 27 F.
Supp. 2d 1191, 1194 (E.D. Cal. 1998).
With these principles in mind, the Court turns to the
evidence challenged by Defendant.
A. Affidavit of Leslie Easton (ECF No. 98-39)
In its motion to strike, Defendant contended that Leslie
Easton was never disclosed as a potential witness during
discovery and that Plaintiff failed to provide her affidavit
during discovery even though it was signed on March 20, 2015,
more than two months prior to the close of discovery on May 27,
2015.
Defendant also contends that Easton’s statements are not
based on personal knowledge.
In his Opposition, Plaintiff
correctly notes that the Easton Affidavit was produced to
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Defendant as part of a supplemental production on April 6, 2015,
shortly after it was signed and more than a month and a half
before the close of discovery.
Defendant concedes in its Reply
that it did indeed receive this affidavit during discovery.
As to the content of the affidavit, Easton signed the
affidavit under the following affirmation:
I solemnly affirm under the penalties of perjury that
all the information contained in this Affidavit is
based on personal knowledge, except as to those things
stated upon information and belief and as to those
things; I believe them to be true.
Seizing on the last part of that affirmation, Defendant suggests
that, at the least, paragraph 9, in which she stated she
“believed that she was targeted for punishment and discipline”
because the father of her child was African American should be
stricken.
ECF No. 98-39 ¶ 9.
Except for her statement that she
actually “observed” Defendant’s managers targeting African
American employees for punishment and discipline while giving
white employees more favorable treatment, id. ¶ 8, the remainder
of her statements are challenged on the ground that she does not
state the way in which she came to have personal knowledge of
the facts to which she attests.
While paragraph 9 certainly must be stricken, the remainder
of the statements in her affidavit will not be.
Easton
affirmatively declares that she has personal knowledge of the
events she describes and they are all events that she readily
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could have observed in the store in which she worked.
For
example, in addition to the incidents in paragraph 8 that she
expressly states she observed, she describes in paragraph 10 one
specific occasion when a customer complained about a Caucasian
employee and Kunze took no action and another when a customer
complained about an African American employee and that employee
was reprimanded.
She states that a Caucasian employee, Tiffany
Mertes, was assigned Sunday shifts while on light duty where
Plaintiff was not.
These are all events that Easton could have
seen while working in the store in which they took place.
In moving to strike most if not all of Easton’s affidavit,
Defendant seems to suggest that, to be admissible, every
statement in the affidavit must be preceded by the phrase that
she “personally observed” the event in question.
7.
ECF No. 112 at
At this stage in the litigation, the Court finds sufficient
Plaintiff’s affirmation that all of the information in the
affidavit (except paragraph 9) was based on personal knowledge.
While Defendant certainly could have further explored the basis
of her knowledge in a deposition, Defendant elected not to do
so.5
5
A portion of one statement in Easton’s affidavit - that Kunze
“knew” of instances where a white employee, Christine Haley,
violated a store policy by ringing up her sister’s purchases and
took no action – comes the closest to falling outside of the
scope of her personal knowledge. Unless she saw Kunze watching
13
The motion to strike the Easton Affidavit will be granted
only as to paragraph 9.6
B. Affidavit of Rashida Daniels-Gordon (ECF No. 98-37)
In her Affidavit, Rashida Daniels-Gordon recounted the
details of her secret meeting with Graham, discussed above.
Like the Easton Affidavit, Defendant moves to strike the
affidavit of Daniels-Gordon on the ground that she was never
identified during discovery as a person with knowledge.
Also
like the Easton Affidavit, Defendant was incorrect about the
Daniels-Gordon Affidavit in that it was produced to Defendant on
March 23, 2015, two months prior to the close of discovery, as
an attachment to Plaintiff’s motion to disqualify counsel.
No. 73-4.
ECF
Again, like Easton, Defendant decided not to depose
Daniels-Gordon.
The Court will deny the motion to strike as to
the Daniels-Gordon Affidavit.
C. Affidavit of Patrick Feeheley (ECF No. 98-40)
While Defendant acknowledges the Patrick Feeheley was
identified during discovery as a potential witness, his
affidavit was not produced during discovery despite being signed
on April 18, 2015, well before the end of the discovery period.
the transactions, which she certainly could have, she would not
have personal knowledge of his knowledge.
6
While the Court will not strike the remaining portions of
Easton’s affidavit on the grounds raised by Defendant, those
statements are so generalized and conclusory so as to carry
little weight.
14
Defendant also complains that Feeheley’s knowledge as reflected
in his affidavit goes beyond that reflected in Plaintiff’s
answers to interrogatories.
Plaintiff’s answers to
interrogatories indicated that Feeheley had knowledge of
Plaintiff’s general character, the impact Plaintiff’s firing had
on Plaintiff’s personal and family life, as well as Plaintiff’s
union activities and discrimination complaints and grievances he
pursued on behalf of himself and others.
ECF No. 107-3 at 2, 7.
Ans. to Interrogs.,
His affidavit, however, is silent on
those topics but instead lists seven specific instances where
Caucasian employees were treated more favorably than African
American employees.
ECF No. 98-40 at ¶ 3.
As noted above, Rule 37(c)(1) provides that, where a party
fails to provide evidence during discovery, it cannot use that
evidence to defeat a summary judgment motion “unless the failure
was substantially justified or is harmless.”
In opposing the
motion to strike, Plaintiff makes no response to Defendant’s
arguments concerning the Feeheley Affidavit.
Thus, Plaintiff
has offered no justification for his failure to produce this
evidence earlier and it is certainly not harmless information.
The Court will grant Defendant’s motion to strike as to this
affidavit.
15
D. Affidavit of Tony Mack and Attached Statements (ECF No.
98-22)
Tony Mack is an employee of Defendant who worked with
Plaintiff throughout Plaintiff’s employment with Defendant.
In
his affidavit, Mack included the following representations:
(1) that Jimmy Bennett told him that he was sent
to the Owings Mills store in part to fire Plaintiff so
that Plaintiff could not claim discrimination and that
he knew about Plaintiff’s EEOC charge and that
Plaintiff was labeled a “troublemaker”, ECF No. 98-22
¶ 3;
(2) that Deinlein told him that Plaintiff was a
“problem” employee and that there was a plot to fire
him involving calling him out for minor policy
infractions until he became angry and did something
that could be considered insubordination, id. ¶ 4;
(3) that Deinlein told him that, when Tlusty
interviewed him concerning the April 25, 2012,7
incident, he “prodded and forced” Deinlein to claim
that Plaintiff pushed Deinlein and to blame Plaintiff
for the incident even though Person was the
instigator, id. ¶ 5;
(4) that after the April 25, 2015, incident,
Person told a number of other employees that Plaintiff
was not violent, did not threaten her, and did not
push Deinlein or her. Id. ¶ 6.
Mack also recounts in his affidavit three incidents where white
employees were involved in fights in the Owings Mills store but
were not terminated.
Id. ¶¶ 7-9.
Defendant challenges the Mack
Affidavit on the grounds that it goes beyond the scope of
knowledge that was indicated in answers to interrogatories, is
7
The Affidavit mistakenly identifies the date as April 25, 2015.
16
insufficiently attested to, and contains impermissible hearsay.
Defendant also challenges two unsworn statements of Mack that
are attached to his affidavit but are not authenticated by or
even mentioned in the affidavit itself.
Id. at 3, 4.
As to the first challenge, in the answers to
interrogatories, Plaintiff identified Mack as one having
knowledge that Jimmy Bennett was targeting Plaintiff for firing.
Ans. to Interrog., ECF No. 107-3 at 5.
In addition, Plaintiff
notes that one of the unsworn statements that is attached to the
Mack Affidavit, Attach. A, ECF No. 98-22 at 3, was actually
produced by Defendant in discovery.
This statement relates to a
conversation between Bennett and Graham in which Graham stated
that Plaintiff was a troublemaker who will try to cause problems
at the Owings Mill store.
The other attachment, Attach. B, id.
at 4, was produced to Defendant on April 8, 2015, as part of a
supplemental production.
In this statement, Mack represents
that Deinlein told him that Tlusty tried to get Deinlein to say
that Plaintiff pushed him to the floor in order to “have
something on” Plaintiff, even though it was not true that
Plaintiff pushed him to the floor.8
8
While the Court will find that these attachments are not
admissible, Defendant’s awareness of them undermines any
argument that it lacked notice of the anticipated scope of
Mack’s knowledge.
17
As to statements (1), (2), and (3) above, the Court finds
that Defendant was sufficiently put on notice that the general
scope of Mack’s knowledge included the content of these
statements.
As to statement (4), Mack’s assertion as to what
Person was telling other employees about the incident, that
statement would be beyond the anticipated scope of his
knowledge.
Furthermore, unless Mack actually heard Person
speaking with other employees, he would also lack personal
knowledge of what she told others.9
The Court will also strike
his statements about the three Caucasian employees that engaged
in workplace violence but were not disciplined.
This evidence
is of a different ilk than that of which Defendant had notice
through discovery.
On the sufficiency of the attestation, Defendant suggests
that Mack’s affirmation is ambiguous because he signed the
affidavit under the statement: “‘[i]n accordance with 28 U.S.C.
§ 1746, I solemnly affirm and declare under penalties of perjury
and upon personal knowledge that the foregoing is true and
correct to the best of my knowledge, information and belief.’”
9
Without citing any authority for this proposition, Plaintiff
argues that Mack’s testimony regarding Person would be used as
impeachment evidence and therefore did not need to be disclosed.
While the Federal Rules may exempt from pretrial disclosure
evidence that is “solely to be used for impeachment,” Fed. R.
Civ. P. 26(a)(3) (emphasis added), where impeachment evidence is
also responsive to a particular discovery request, it must be
disclosed. Newsome v. Penske Truck Leasing Corp., 437 F. Supp.
2d 431, 436-37 (D. Md. 2006).
18
ECF 107-1 at 9 (quoting ECF No. 98-22, emphasis added by
Defendant).
Addressing similar language, however, this Court
has found that “[t]he inclusion of the phrase ‘to the best’ does
not negate the fact that they signed the documents under penalty
of perjury, which the court can reasonably infer means the
affiants believed their statements to be true and correct and
based on personal knowledge.”
Verrier v. Sebelius, Civ. No.
CCB-09-402, 2010 WL 1222740, at *4 (D. Md. Mar. 23, 2010).
Here, it is apparent from the substance of statements (1), (2),
and (3) that Mack has personal knowledge of what was said to him
in that he is relating conversations in which he was a
participant.
As to potential hearsay issues, these three statements do
relate to out of court statements that were made to Mack.
Portions of those statements, e.g., that Plaintiff was a
“troublemaker” or a “problem,” are obviously not being offered
for the truth of the matter asserted.
Regardless, Mack is
relating statements made by individuals that were managers for
Defendant at the time those statements were made and, thus,
those statements are admissible as statements of an opposing
party.
See Fed. R. Evid. 801(d)(2)(D) (providing that a
statement is not hearsay if the statement is offered against an
opposing party and “was made by the party’s agent or employee on
19
a matter within the scope of that relationship and while it
existed”).
The Court will strike paragraphs 6 through 9 of the Mack
Affidavit.
In addition, the Court will strike the two unsworn
statements that are attached to the Mack Affidavit.
In opposing
the motion to strike, Plaintiff makes no argument for the
admissibility of these statements.
E. Affidavit of Anthony Wade (ECF No. 98-23)
Anthony Wade is an African American employee of Defendant
and at one time was the manager of the meat department at the
Owings Mill store.
He relates an incident where he discovered
that a Caucasian meat cutter was stealing meat and he reported
the theft to the store manager.
The meat cutter was suspended,
the report was investigated by Tlusty, but Tlusty later claimed
that the video evidence of the theft was missing so the
investigation was discontinued.
The individual was later
returned to work with full backpay.
While the offending meat
cutter suffered no adverse impacts, Wade stated that, after
reporting the theft, he was written up 38 times where previously
he had no write ups and he was also transferred to another
store.
Wade Affidavit ¶¶ 2-4.
He also reported a conversation
with Person where she stated that Plaintiff was not violent and
did not threaten or push her during the April 25, 2012,
incident.
Id. ¶ 5.
He also states that he witnessed several
20
incidents where “the store manager show[ed] favoritism to white
employees when they violate store policies.”
Id. ¶ 6.
Defendant challenges the Wade Affidavit on the same grounds as
the Mack Affidavit.
As to the scope of Wade’s knowledge disclosed in discovery,
Plaintiff indicated that he would testify concerning the theft
of meat by a Caucasian employee and the investigation of that
theft. Ans. to Interrog., ECF No. 107-3 at 8.
His statements in
paragraphs 2 through 4 would fall within the scope of that
declared knowledge.
The remaining statements would not and
accordingly will be stricken.
F. Affidavit of Mark Robins10 and Attached Statement (ECF
No. 98-38)
Mark Robins worked with Plaintiff when Plaintiff was
assigned to the Ellicott City store.
In his affidavit, he
relates that Kunze permitted Caucasian employee Tiffany Mertes
to work Sundays while on light duty but did not permit Plaintiff
to do the same.
He also relates an incident where he allegedly
observed Caucasian employee Christine Haley violate store rules
by ringing up her sister’s purchases and Kunze observing her
doing so, whispering to her to stop, but taking no further
10
This individual has been referred to in memoranda and exhibits
as “Mark Robin,” “Mark Robins,” “Mark Robbin,” and “Mark
Robbins.” He signed his affidavit as Mark Robins and the Court
will refer to him by that name.
21
disciplinary action.
Although not mentioned in or authenticated
by the affidavit, attached to the affidavit is an unsworn
statement of Robins that relates to those same incidents as well
as another incident where both he and Plaintiff were unfairly
written up for “not hitting the total button.”
ECF No. 98-38 at
2.
Although Defendant contended in its motion that Plaintiff
failed to produce the Robins Affidavit in discovery, it now
concedes that Plaintiff did.
ECF No. 112 at 1.
Defendant also
contends that the affidavit was not based on personal knowledge
because of the language of the attestation11 but it is clear that
Robins is relating incidents that he would or could have readily
observed in the Ellicott City store.
Defendant also makes the
somewhat spurious argument that because Robins states that Kunze
“approved and allowed Tiffany Mertes to work on Sunday’s [sic]
so she could receive overtime,” ECF No. 112 at 8 (emphasis added
by Defendant), that Robins was “claim[ing] to know the reasons
for following specific decisions that Mr. Kunze is alleged to
have made.”
Id.
As Defendant’s employee, Robins would have
known that Sunday work resulted in overtime and thus he is
simply reporting the result of Kunze’s decision, not the
motivation for that decision.
11
The Robins Affidavit was signed under the same affirmation as
the Easton Affidavit.
22
While the Court will strike the unsworn statement attached
to the Robins Affidavit, it will not strike the affidavit
itself.
G. Statement of Maria Jones (ECF No. 98-36)
In this statement, dated February 25, 2012, Jones relates a
conversation she had with Bennett in which Bennett related that
Plaintiff was transferred to the Owings Mills store to be fired.
Plaintiff states that this was a statement that Jones provided
to the EEOC during the course of its investigation of
Plaintiff’s discrimination charge.
ECF No. 111 at 9.
Plaintiff
acknowledges in his deposition that he collected this statement,
along with the statements of Mack, Robins, Wade, and Deinlein,
and then submitted them to the EEOC.
No. 112-3.
Pl.’s Dep. at 169-72, ECF
He suggests, however, that these unsworn and
unauthenticated statements are admissible because “these
statements fall under the business records exception because
they were kept in the ordinary course of business, and were not
prepared and collected in anticipation of litigation.”
ECF No.
111 at 9.
Plaintiff appears to be invoking an exception to the
hearsay rule, commonly known as the business records exception,
23
set out in Rule 803(6) of the Federal Rules of Evidence.12
These
statements, however, clearly do not fall within that exception.
They were not prepared by the EEOC, but they were solicited and
submitted by Plaintiff to the EEOC.
In addition, as Defendant
notes, they were certainly prepared in anticipation of
litigation in that their submission to the EEOC was the
prerequisite to the filing of this lawsuit.
The statements have
none of the indicia of trustworthiness on which the exception is
premised.
Accordingly, the Court will strike the Jones Statement.
12
This Rule provides an exception to the rule against hearsay
for “[a] record of an act, event, condition, opinion, or
diagnosis if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of information or
the method or circumstances of preparation indicate a lack of
trustworthiness.”
24
H. Statement of Charles Deinlein Sr. (ECF No. 98-50)
In his statement, Deinlein recounts that Bennett’s plan
from Bennett’s first day at the Owings Mills store was to get
rid of certain long term employees including Plaintiff, Maria
Jones, Tony Mack, and Don Pardoe by picking on them for minor
infractions in order to provoke anger and responses that could
then be treated as insubordination.13
This statement, dated June
2012, was also submitted by Plaintiff to the EEOC.
Defendant
challenges the admissibility of this statement on the grounds
that it was not sworn under penalty of perjury and not
authenticated.
Plaintiff makes no response regarding the lack
of authentication.
As to the lack of a sufficient oath,
Plaintiff simply states that the statement was “sworn and
subscribed by a public notary” and, like the Jones statement, is
a business record because it was submitted to the EEOC.
111 at 9.
ECF No.
Plaintiff’s business record argument fails for the
same reason it failed regarding the Jones Statement and a notary
seal does not transform the statement into an admissible
affidavit.
See DeMars v. O’Flynn, 287 F. Supp. 2d 230, 242-43 &
n.8 (W.D.N.Y. 2003) (finding letters that were notarized but not
sworn to under penalty of perjury to be inadmissible, noting
that a “notary public cannot convert an otherwise unacceptable
[statement] into an affidavit merely by using the word ‘sworn’
13
Deinlein apparently is no longer in Defendant’s employ.
25
and affixing a notary's stamp.”); Flowers v. Abex Corp., 580 F.
Supp. 1230, 1233 n.2 (N.D. Ill. 1984) (noting that “[m]erely
notarizing the signature does not transform a letter into an
affidavit”).
For these reasons, the Deinlein Statement will be stricken.
I. Affidavit of Plaintiff (ECF No. 98-1)
Defendant levels a variety of challenges to Plaintiff’s
Affidavit, asserting that portions are inconsistent with
Plaintiff’s deposition testimony and/or are not based on
personal knowledge and that the affidavit contains inadmissible
hearsay.
Defendant points to two alleged inconsistencies between
Plaintiff’s Affidavit and his deposition.
First, Defendant
asserts in its motion to strike that, in his deposition,
Plaintiff testified that his retaliation claim was based upon a
complaint he made to Graham in September of 2011, the day before
Kunze issued him a disciplinary write up.
In his Affidavit, he
repeats the statement that he complained to Graham in September
2011, Pl.’s Aff. ¶ 14, ECF No. 98-1, but adds that he also
complained to Graham in January 2011.
Id. ¶ 12.
Defendant then
takes umbrage that Plaintiff argues in his Opposition to the
Summary Judgment Motion that his retaliation claim was based
upon his January 2011 complaint.
26
Plaintiff responds that, in his deposition, he did not
claim that the September 2011 complaint was his first complaint.
In opposing the motion for summary judgment he argues that “[a]t
least starting January 2011,” ECF No. 98 at 32, he complained to
Graham about Kunze and was then retaliated against.
The Court
finds no inconsistency on this issue.
The second alleged inconsistency relates to a statement in
Plaintiff’s Affidavit that he had personal knowledge that a
white employee, Aaron Lekarz,14 pushed a shopping cart into an
assistant manager and, while suspended for that conduct, was
later reinstated with back pay.
Pl.’s Aff. ¶ 29.
In his
deposition, however, Plaintiff stated that he did not see this
incident but only heard about it later.
No. 112-3.
Pl.’s Dep. at 156, ECF
The Court will strike the portion of paragraph 29 of
Plaintiff’s Affidavit related to the incident involving Lekarz.
Defendant also challenges the affirmation in Plaintiff’s
Affidavit, which is identical to that in the Wade and Mack
Affidavits.
For the reasons stated above, the Court finds that
affirmation sufficient and with few exceptions, the statements
in the Affidavit are clearly based on personal knowledge.
Plaintiff does state that Kunze “was not pleased” that other
employees were approaching Plaintiff for assistance with
14
In his Affidavit, Plaintiff identifies this individual as
“Aaron Khazar.”
27
grievances and complaints and, in response, “severely restricted
[his] interactions with co-workers.”
Pl.’s Aff. ¶ 10.
While
Plaintiff would have personal knowledge of the severe
restrictions and might reasonably infer the reason for them, he
would not have had personal knowledge of Kunze’s displeasure.
The Court will strike Plaintiff’s statement as to Kunze’s state
of mind.
With these evidentiary issues resolved, the Court now turns
to the Motion for Summary Judgment.
III. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (citing predecessor to current Rule 56(a)).
The burden
is on the moving party to demonstrate the absence of any genuine
dispute of material fact.
144, 157 (1970).
Adickes v. S.H. Kress & Co., 398 U.S.
If sufficient evidence exists for a reasonable
jury to render a verdict in favor of the party opposing the
motion, then a genuine dispute of material fact is presented and
summary judgment should be denied.
See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
However, the “mere
existence of a scintilla of evidence in support of the [opposing
28
party's] position” is insufficient to defeat a motion for
summary judgment.
Id. at 252.
The facts themselves, and the
inferences to be drawn from the underlying facts, must be viewed
in the light most favorable to the opposing party, Scott v.
Harris, 550 U.S. 372, 378 (2007), who may not rest upon the mere
allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts
showing a genuine dispute for trial.
Fed. R. Civ. P. 56(c)(1).
As noted above, supporting and opposing affidavits are to be
made on personal knowledge, contain such facts as would be
admissible in evidence, and show affirmatively the competence of
the affiant to testify to the matters stated in the affidavit.
Fed. R. Civ. P. 56(c)(4).
B. Discussion
1. Racial Discrimination
In the absence of any direct evidence of intentional racial
discrimination, Plaintiff’s discrimination claims under Title
VII and § 1981 are analyzed under the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).
“First, the plaintiff has the burden of
proving by the preponderance of the evidence a prima facie case
of discrimination.”
248, 248 (1981).
Tex. Dept. Cmty. Aff. v. Burdine, 450 U.S.
Second, if the plaintiff establishes a prima
facie case, the burden shifts to the defendant “to articulate
29
some legitimate, nondiscriminatory reason” for the challenged
action.
McDonnell Douglas, 411 U.S. at 802.
“[T]hird, should
the defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.”
Burdine, 450
U.S. at 248.
To establish a prima facie case of discrimination,
Plaintiff must prove that: (1) he is a member of a protected
group, (2) he suffered an adverse employment action, such as
termination, (3) his job performance at the time of the adverse
action or discharge met his employer’s legitimate expectations,
and (4) the circumstances of the adverse action or discharge
raise a reasonable inference of unlawful discrimination.
See
e.g., Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th
Cir. 2002); Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995).
Here, Plaintiff as an African American is a member of a protected
class and at least some of the actions taken against him, about
which he now complains, constitute adverse employment actions.
An
adverse employment action is one that “adversely affect[s] the
terms, conditions, or benefits of the plaintiff’s employment.”
Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir.
2007).
The denial of Sunday work with the attendant double pay and
his suspension without pay for purchasing the DVD could constitute
30
adverse employment actions, and the termination of his employment
certainly would constitute an adverse employment action.
On the
other hand, the assignment of tasks that Plaintiff found
undesirable, the issuance of disciplinary write-ups, and his
transfer to another store would not.
Nye v. Roberts, 159 F. Supp.
2d 207, 213-14 (D. Md. 2001) (finding a written reprimand did not
constitute an adverse employment action because “reprimands do not
automatically affect the terms and conditions of employment” and
the reprimand did “not state that it would lead to her termination
or demotion or a decrease in pay”).
Plaintiff, in fact, at least
initially viewed his transfer to the Owings Mill store as a “good
thing” because it was closer to his home.
Pl.’s Dep. at 94.
The Court finds that there is a dispute of fact as to whether
Plaintiff’s work performance was meeting Defendant’s expectations.
Plaintiff points to the last Performance Appraisal he received
before his termination, dated March 30, 2011, which reflects a
uniformly positive evaluation: Plaintiff is “very helpful,” “works
hard,” “works well with his peers,” “knows and understands the
technical aspects of his job,” and his supervisor concluded that
Plaintiff “is a hard worker even while he is on light duty.
an asset to our team.”
ECF No. 98-3.
He is
In contrast, as evidence
that Plaintiff was not meeting expectations, Defendant points to
Plaintiff’s violation of its “Rapport Program,” Plaintiff’s oneday-too-early purchase of the Planet of the Apes DVD, and the April
25, 2012, incident in the management office.
31
As reflected in the
evidence reviewed above and as discussed more fully below, however,
there is at least some question as to whether these are truly
examples of deficient performance warranting the adverse actions
taken or were instead part of a plan to manufacture a reason to
terminate Plaintiff’s employment.
While Plaintiff might be able to establish the first three
elements of the prima facie of a race discrimination claim, the
Court finds that there is insufficient evidence from which a jury
could reasonably infer that the adverse actions were taken against
Plaintiff because of his race.
As to whether there was any racial
bias in the assignment of Sunday hours, Plaintiff focuses on two
Caucasian employees that were given Sunday shifts while on light
duty, but Defendant notes in its Motion for Summary Judgment that
an African American employee, Dinah Burns, was also assigned Sunday
hours while on light duty.
Kunze Aff. ¶ 9, ECF No. 11.
does not dispute that representation.
Plaintiff
Furthermore, Plaintiff does
not dispute that he was given Sunday hours both before and after
being placed on light duty status and that, when he returned from
workers’ compensation leave, he brought a note from his health care
provider stating that he should work no more than 40 hours a week,
ECF No. 88-31 (Verification of Treatment dated 9/13/11).
Since
Plaintiff was a full time employee scheduled for 40 hours a week,
working a Sunday shift would have placed him over that limit.
Plaintiff does posit that Defendant’s reason for denying him
Sunday work changed over time and suggests that this shifting
32
reasoning is evidence of pretext.
Opp’n at 32-33, ECF No. 98.
In
one “Statement of Position” submitted by Defendant to the EEOC, it
stated that, if the two Caucasian employees were given Sunday work
while on light duty, it was in error, ECF No. 98-10 at 3, but in
another Defendant stated that the two Caucasian employees were
given Sunday work because they had greater seniority than
Plaintiff.
ECF No. 98-9 at 2.
In the Motion for Summary Judgment,
Defendant pointed to the restrictions imposed by Plaintiff’s
doctor.
While this shifting rationale might be evidence of
pretext, it provides no evidence that the real reason was racial
discrimination, particularly in light of the undisputed fact that
another African American employee on light duty was given Sunday
shifts.
See Adams v. Trustees of Univ. of North Carolina-
Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (“[I]n demonstrating
the Defendants’ decision was pretext, [plaintiff] had to prove both
that the reason was false, and that discrimination was the real
reason.”).
Nor is there any evidence that his suspension for the purchase
of the DVD was racially motivated.
Plaintiff highlights that the
Caucasian employee that assisted him with the checkout, Tiffany
Mertes, was not disciplined.
First, it is not clear that Mertes
knew that the DVD was not yet on sale when she helped Plaintiff
with the purchase.
Mertes needed to assist Plaintiff with the
purchase in order to clear a different movie that Plaintiff decided
he did not want.
ECF No. 98-15.
When she later realized the
33
Planet of the Apes DVD was purchased prematurely, she reported the
sale to Kunze.
Under those circumstances, Defendant had no reason
to discipline Mertes.
Plaintiff also points to other Caucasian employees that
violated various store policies but were not similarly disciplined.
For example, he notes that white cashier Christine Haley was not
disciplined for ringing up a family member and that two other white
employees who violated Defendant’s Club Card policy by swiping noncustomer Club Cards were only given written warnings.
22.
Opp’n at 21-
It is not clear that these violations are as serious as
Plaintiff’s as there is no evidence that the employees received any
personal gain as a result of the violations.
Regardless, Defendant
has submitted evidence that both Caucasian and African American
employees who swiped non-customer Club Cards were treated equally,
i.e, both Caucasian and African-American employees received written
warnings for repeated violations.
Tlusty Aff. ¶¶ 3-7, ECF No. 106-
3.15
Most significantly, the Court notes that Plaintiff states that
when was he was suspended, he “protested to Mr. Kuntz (sic) that
15
In her affidavit, Leslie Easton did make broad statements that
African American employees were disciplined more severely than
white employees. ECF No. 98-39 ¶¶ 8, 10. While the Court did
not strike these statements, they are, as noted above, of such a
generalized and subjective nature that they carry little if any
weight. To defeat a motion for summary judgment, the party
opposing the motion must present evidence of specific facts from
which the finder of fact could reasonably find for him or her.
Anderson, 477 U.S. at 252; Celotex, 477 U.S. at 322–23.
34
the action was in retaliation due to [Plaintiff’s] October 2011,
EEOC charge of discrimination.”
ECF No. 98 at 6 (emphasis added).
Thus, Plaintiff himself attributed the action to retaliation, not
to racial discrimination.
While a jury might conclude that a three
week suspension for conduct that caused Defendant no harm is unduly
harsh, they could not reasonably conclude it was a result of racial
bias.
Similarly, there is no evidence upon which a jury could
reasonably conclude that the termination of Plaintiff’s employment
for the alleged violation of Defendant’s zero-tolerance Workplace
Violence Policy was racially based.
Defendant submitted evidence
of 11 non-African American employees whose employment was
terminated after an incident of workplace violence.
Tlusty Aff. ¶
22, ECF No. 88-12 (identifying employees terminated for workplace
violence); Page Aff. ¶ 5, ECF No. 88-9 (identifying the race of
those employees).
In response, Plaintiff points to six Caucasian
employees that he alleges engaged in similar acts of workplace
violence but were less severely disciplined.
ECF No. 98 at 22-23.
For each incident, Plaintiff provided the detailed “Investigation
Summary” prepared by Defendant.
ECF Nos. 98-41 to 98-46.
Reviewing those summaries, there are some superficial similarities
between those incidents and the April 25, 2012, incident involving
Plaintiff.
There are also significant dissimilarities.
at 10-11, ECF No. 106.
35
See Reply
Several of the incidents involved only a verbal exchange with
no physical contact.
In others where there was physical contact,
Graham, who investigated all of the incidents and made the
disciplinary determination, concluded that the contact was
inadvertent.
For all but one incident, there was no manager
present to observe the interaction and for several, there was no
witness whatsoever other than the accuser.
In the one instance
where an assistant manager was involved, the employee was suspended
for allegedly pushing a cart into that assistant manager.
Another
employee who was present at the time, however, stated that he never
saw the other employee push the cart into the manager.
44.
ECF No. 98-
Furthermore, several of the individuals cited by Plaintiff
were suspended pending investigation and several were transferred
to another store as the outcome of the investigation.
In contrast to these incidents, after investigating the April
25 incident, Graham concluded that Plaintiff intentionally pushed
Assistant Manager Deinlein and bumped into Person in the presence
of two managers.
Most significantly, the individual who
investigated all of these incidents, made the factual findings, and
was the primary decision-maker in Plaintiff’s termination is, as
noted above, African American.
That alone seriously undermines any
inference that Plaintiff was disciplined differently because of his
race.
See Demesme v. Montgomery County Gov’t, 63 F. Supp.2d 678,
683 (D. Md. 1999) (“The fact that the decisionmakers were of the
same protected class suggests no discriminatory motivation.”);
36
Jackson v. The School Bd. of the City of Richmond, Case No. 99-642,
2000 WL 34292578, at *7 (E.D. Va. Mar. 15, 2000) (“Proof that the
decisionmaker is a member of the same protected class as [the
plaintiff] weakens any possible inference of discrimination.”).16
In his opposition, Plaintiff makes a half-hearted argument
that Graham “was not the only decision maker and not the ultimate
decision maker.”
Opp’n at 27, ECF No. 98.
The entirety of his
argument on that point is this sentence: “Instead her decision was
coordinated with her white superiors, including Mr. Matthews, the
HR manager, labor relations manager Madert and District Director
Brian Caudle.”
Id.
As evidentiary support for that argument,
Plaintiff cites Graham’s Affidavit in which Graham stated that she
and “Tim Matthews, [her] former supervisor” determined that
Plaintiff should be issued a write up for the DVD purchase, Graham
Aff. ¶ 18, and that she “consulted with Mr. Matthews in the
decision to terminate [Plaintiff].”
Id. ¶ 30.17
Nothing in the
record, however, reflects that Graham had or voiced any
disagreement with the decision to terminate Plaintiff’s employment
or was in any way pressured to reach that conclusion.
16
In addition, the individual with whom Plaintiff had the
confrontation, Ms. Person, is also African American. Furthermore,
to the extent that Plaintiff sees this as part of Bennett’s plan to
get him fired, Bennett’s race also undermines any racial motivation
to this event.
17
Plaintiff also cites Graham’s deposition in which she recounts
that Defendant’s “Labor Relations” department overruled her
recommendation to terminate the employment of Aaron Lekarz. ECF
No. 98-17 at 71-72.
37
Plaintiff’s own arguments concerning Graham’s role further
undermine any inference that discrimination based upon race was
motivating her decisions.
Plaintiff proffers, “assuming arguendo
that Ms. Graham was the decision maker, this raise (sic) a genuine
issue of material fact as to the true reasons for the disciplinary
actions.
She was the point person defending Safeway against
Plaintiff’s October 2011 EEOC charges . . . .”
No. 98.
Opp’n at 27, ECF
He also argues that, “[e]ven if Ms. Graham was the real
decision maker, a jury should decide if . . . the articulated
reasons for the disciplinary actions were influenced and motivated
by her role and duty in protecting and defending Safeway against
Plaintiff’s EEOC discrimination claim.”
Id. at 29.
Actions taken
to protect or defend Defendant from EEOC charges implicate
retaliatory, not racially discriminatory, motives.
For all these reasons, the Court finds that no reasonable jury
could conclude that Plaintiff was disciplined and ultimately fired
because of his race.
2. Retaliation
The Court reaches a different conclusion as to Plaintiff’s
retaliation claim.
As an initial observation, although both
Plaintiff and Defendant analyzed the retaliation claim under the
McDonnell Douglas burden shifting framework, there is at least some
question as to whether that analysis was necessary.
Courts turn to
this framework when there is no direct evidence of retaliation.
Here, there is evidence that Plaintiff’s manager, Jimmy Bennett,
38
openly stated to others that Plaintiff was considered a
“troublemaker” and a “problem employee” and that Defendant
transferred Plaintiff to Bennett’s store so that Plaintiff could be
fired.
That Bennett stated that Defendant wanted Plaintiff fired
by an African American manager so that he could not make a claim of
discrimination strongly suggests that Plaintiff’s status as a
troublemaker or problem employee stems from his previous claims of
discrimination.
Tony Mack stated that, in his conversation with
Bennett, Bennett specifically tied Plaintiff’s troublemaker status
to Plaintiff’s EEOC Complaint.
Mack Aff. ¶ 3, ECF No. 98-22.
That
conclusion is also consistent with Graham’s inquiries of DanielsGordon as to whether and why Plaintiff was aware of Daniel-Gordon’s
complaint of discrimination.18
Assuming though, that analysis under the McDonnell Douglas
burden-shifting framework is necessary, the prima facie case of
retaliation under Title VII that Plaintiff must establish is that:
(1) he engaged in protected activity; (2) Defendant took adverse
employment action against him; and (3) there was a causal
connection between the protected activity engaged in by Plaintiff
and the alleged adverse action.
Holland v. Washington Homes, Inc.,
18
The Court does note, however, that the conclusion that the
plan to fire Plaintiff was in response to Plaintiff’s
discrimination claim would be undercut somewhat by evidence
submitted by Plaintiff (but struck by the Court) that Bennett
was sent to the Owings Mills store to “get rid of any long term
employees.” Deinlein Aff., ECF No. 98-50. This would imply
that Bennett was targeting employees for reasons other than the
employees’ involvement in protected activity.
39
487 F.3d 208, 218 (4th Cir. 2007).
Defendant makes no argument
that Plaintiff did not engage in protected activities.
Focusing
only on complaints made on his own behalf, Plaintiff complained to
Graham in January and September 2011 that Kunze was discriminating
against him in the assignment of Sunday shifts, Plaintiff filed a
charge with the EEOC and a grievance for racial discrimination with
his union in October 2011, and Plaintiff updated his EEOC charge
and participated in a fact finding meeting at the EEOC in April
2012.
The standard for establishing an adverse employment action in
the context of a retaliation claim “is less ‘strenuous' than the
standard in a discrimination claim,” because “[t]he adverse
employment action in a retaliation case need not affect an
employee's ‘terms or conditions of employment.’”
Madock v. McHugh,
No. ELH–10–2706, 2011 WL 3654460, at *26 (D. Md. Aug. 18, 2011)
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70
(2006)).
Rather, “a plaintiff must show that a reasonable
employee would have found the challenged action materially
adverse, which . . . means it well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.”
Id. (citations and quotation marks omitted)).
Even under that lower standard, the assignment of less desirable
tasks than Plaintiff was used to or the issuance of written
warnings would not rise to the level of adverse employment actions.
See Thorn v. Sebelius, 766 F. Supp. 2d 585, 600 (D. Md. 2011) (“not
40
every uncomfortable moment in the workplace will constitute an
adverse action.
‘An employee's decision to report discriminatory
behavior cannot immunize that employee from those petty slights and
minor annoyances that often take place at work.’”) (quoting
Burlington, 548 U.S. at 68).
The suspension without pay, and the
termination of employment, of course, would.
The Court also concludes that a jury could find a causal
connection between Plaintiff’s protected activities and the adverse
employment actions taken against him.
There is little question
that the decision makers, including Graham, were aware of
Plaintiff’s activities.
Plaintiff complained directly to Graham
about Kunze’s discriminatory treatment, Graham received the Notice
of Charge of Discrimination in October of 2011, and then received
more detailed information about the nature of Plaintiff’s EEOC
claims after Plaintiff inadvertently emailed Defendant’s attorneys
and those attorneys forwarded Plaintiff’s email to Graham.
The Court also finds that there is sufficient temporal
proximity between the protected activities and the adverse
employment actions to create an inference of causation.
See
Jenkins v. Gaylord Entm't Co., 840 F. Supp. 2d 873, 881 (D. Md.
2012) (noting that “temporal proximity between an employer's
knowledge of protected activity and an adverse employment action
suffices to establish a prima facie case of causation where the
temporal proximity is ‘very close’”).
Here, Plaintiff’s protected
activity had a somewhat continuing nature.
41
In the period leading
up to Plaintiff’s suspension over the purchase of the Planet of the
Apes DVD, Plaintiff had complained to Graham in September 2011,
filed the EEOC charge and union grievance in October 2011, and met
with Graham on or about November 22, 2011.
on December 13, 2011.
He was then suspended
His complaints of discrimination continued
through the period leading up to his suspension and ultimate
discharge for the alleged workplace violence episode.
He updated
his EEOC charge on April 4, 2012, had a meeting with the EEOC at
which Graham was present on April 24, 2012, and was then suspended
the very next day.
In early June of 2012, Defendant’s attorneys
forwarded to Graham Plaintiff’s email concerning his discrimination
claims against Defendant and Plaintiff’s employment was then
terminated on July 16, 2012.
Beyond this temporal connection,
there is the evidence that, if believed by the jury, would
establish that Plaintiff’s manager was telling others that
Defendant was setting him up to be fired for being a trouble maker.
Drawing all inferences in Plaintiff’s favor, a jury could find
that Plaintiff has established a prima facie case of retaliation.
Once a plaintiff has done so, then the burden shifts to the
defendant to show that its purportedly retaliatory action was in
fact the result of a legitimate non-retaliatory reason.
Foster v.
Univ. of Maryland-Eastern Shore, 787 F.3d 243, 250 (4th Cir. 2015).
“If the employer makes this showing, the burden shifts back to the
plaintiff to rebut the employer's evidence by demonstrating that
the employer's purported nonretaliatory reasons ‘were not its true
42
reasons, but were a pretext for discrimination.’”
Id. (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000)).
To carry this final burden, “a plaintiff must establish
both that the employer's reason was false and that retaliation
was the real reason for the challenged conduct.”
Id. at 252
(internal quotations and alternations omitted).
As to the non-retaliatory reasons for the adverse
employment actions taken against Plaintiff, Defendant cites
Plaintiff’s alleged violations of two policies: for the three
week suspension for the one-day-too-soon purchase of the DVD,
its policy that employees be treated as any other customer; and
for the April 25, 2012, suspension and July 16, 2012,
termination, its zero-tolerance Workplace Violence Policy.
The
validity of each justification, however, turns, at least in
part, on credibility determinations that are not appropriate at
this stage of the litigation.
Defendant claims that Plaintiff
took the DVD out of a box that was clearly marked “DO NOT SELL
BEFORE TUESDAY DEC. 13, 201[1].”19
(citing ECF No. 88-26).
Mot. at 12, ECF No. 88-1
If true, Defendant could have concluded
that Plaintiff knowingly violated a store policy.
Plaintiff,
however, asserts that he was not aware that the DVD was not
19
In its motion, Defendant misquoted the label as “DO NOT SELL
BEFORE TUESDAY DEC. 13, 2014.”
43
available for purchase.
Pl.’s Aff. ¶ 19.20
If the jury credits
that testimony, Plaintiff’s violation was inadvertent and a
three week suspension without pay might seem extreme.
As to the suspension and termination for the alleged act of
workplace violence, Plaintiff’s version of the events is
completely at odds with the version advanced by Defendant.
Plaintiff paints Person as the aggressor and any physical
contact with Deinlein or Person was incidental to his effort to
extricate himself from the situation.
Plaintiff as the aggressor.
Defendant paints
It is true, as Defendant argues,
that Defendant’s version is supported by the testimony of the
three other witnesses who were present.
Nevertheless, one of
those witnesses, Person, had a motivation to deflect
responsibility onto Plaintiff so that she would not be
disciplined and there is evidence that Deinlein was pressured by
Tlusty to exaggerate Plaintiff’s aggression.
No. 98-22.
Mack Aff. ¶ 5, ECF
This, coupled with declarations by Bennett that
there was a plan to so aggravate Plaintiff that he would be
provoked into doing something that would get him fired, leads
the Court to conclude that a jury could find that Defendant used
the events of April 25, 2012, simply as a pretext to fire
20
Plaintiff’s position in this regard is somewhat suspect. It
appears that Plaintiff initially stated that he picked the DVD
up off of a shelf in the store, see ECF No. 88-12 at 15, but
only later acknowledged that he took it out of a box in the
backroom. Id.
44
Plaintiff in retaliation for his troublesome complaints of
discrimination.21
IV. CONCLUSION
For the reasons stated above, both Defendant’s Motion to
Strike and Motion for Summary Judgment will be granted in part and
denied in part.
The case will proceed only as to Plaintiff’s
retaliation claim under Title VII (Count Two).
An order
consistent with this memorandum will issue.
_______________/s/________________
William M. Nickerson
Senior United States District Judge
DATED: March 30, 2016
21
The Court notes that a plaintiff can go forward with a
retaliation claim under Title VII even where his discrimination
claim is found to be without merit. See Ross v. Communications
Satellite Corp., 759 F.2d 355, 357 n.1 (4th Cir. 1985) (“An
underlying discrimination charge need not be meritorious for a
plaintiff to prevail on a claim of retaliation for opposition to
the perceived discrimination.”); Young v. Giant Food Stores,
LLC, 108 F. Supp. 3d 301, 315-16 (D. Md. 2015) (“[A] plaintiff
pursuing a Title VII retaliation claim need not show that the
activity he opposed has, in fact, contravened some aspect of
Title VII. Rather, he must simply have a reasonable belief that
Title VII has been — or is in the process of being — violated by
the activity being opposed.”).
45
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