Colfield et al v. Safeway Inc. et al
Filing
124
MEMORANDUM AND ORDER denying 119 Motion of defendant for Reconsideration. Signed by Judge William M Nickerson on 8/17/2016. (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 AND ORDER
On March 30, 2016, this Court issued a Memorandum, ECF No.
114, and Order, ECF No. 115, granting in part and denying in
part Defendant Safeway Inc.’s Motion for Summary Judgment.
The
Court granted the motion as to Plaintiff Stephen Colfield’s
racial discrimination claims, but denied the motion as to his
retaliation claim.
Defendant filed a timely motion under Rule
54(b) of the Federal Rules of Civil Procedure asking the Court
to reconsider its decision regarding the retaliation claim.
No. 119.
ECF
The Court will deny that motion.
Under Rule 54(b), a district court can revise any order “at
any time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities.”
See Am.
Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th
Cir. 2003).
This Court’s March 30, 2016, Memorandum and Order
was such an interlocutory judgment.
Resolution of a motion for
reconsideration of such a judgment is “committed to the
discretion of the district court,” id. at 515, and the goal “is
to reach the correct judgment under law.”
Netscape
Communications Corp. v. ValueClick, Inc., 704 F. Supp. 2d 544,
547 (E.D. Va. 2010) (internal citations omitted).
Defendant’s motion begins with a somewhat inaccurate
characterization of this Court’s ruling on the summary judgment
motion.
Defendant declares that “[t]he Court acknowledged that
the termination of Plaintiff’s employment was for legitimate
non-discriminatory reasons because Plaintiff had engaged in
workplace violence.”
35-37).
ECF No. 119-1 at 1 (citing ECF No. 114 at
In the referenced portion of the opinion, the Court
concluded that “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 zerotolerance Workplace Violence Policy was racially based.”
No. 114 at 35 (emphasis added).
ECF
While the Court concluded that
a jury could not find that Plaintiff’s termination was racially
motivated, it did not conclude that Plaintiff was terminated for
a “legitimate” reason.
In that portion of its opinion, the Court did note that
Karen Graham, the primary decision maker in Plaintiff’s
termination, “concluded that Plaintiff intentionally pushed
Assistant Manager Deinlein and bumped into [Tia] Person . . . .”
during the April 25, 2012, incident that lead to the termination
of Plaintiff’s employment.
Id. at 36.
2
The Court also opined
that, because Graham, like Plaintiff, is African American,
“[t]hat alone seriously undermines any inference that Plaintiff
was disciplined differently because of his race.”
added).
Id. (emphasis
As the following portion of the Court’s March 30, 2016,
opinion made clear, however, the Court also found that there is
at least a dispute of fact as to whether Graham reached that
conclusion honestly or, instead, as a convenient pretext to
terminate Plaintiff in retaliation for his troublesome
complaints of discrimination made on behalf of himself and other
employees.
See id. at 38-45.
Defendant also raises several specific concerns with this
Court’s ruling on its summary judgment motion which the Court
will briefly address.
First, Defendant makes much of the fact
that Tony Mack may have confused the order in which Plaintiff
and Jimmy Bennett were transferred to Defendant’s Owings Mills
store.
ECF No. 119-1 at 5-8.
Mack stated in his affidavit that
Bennett, who is African American, told him that he was sent to
the Owings Mills store to fire Plaintiff so that Plaintiff would
not be able to claim discrimination.
1
ECF No. 98-22 ¶ 3.1
Defendant mischaracterizes Mack’s statement as attributing to
Bennett the statement that “he was transferred to Plaintiff’s
store for the sole purpose of terminating Plaintiff’s
employment.” ECF No. 123 at 12 (citing ECF No. 99-22, Mack Aff.
¶ 3). What Mack stated was that, in December 2011, Bennett “was
transferred to Owings Mills” and later disclosed to Mack that he
was “sent to the store in part to fire [Plaintiff]”). Mack Aff.
¶ 3 (emphasis added).
3
Defendant notes that Graham stated in her affidavit that
“Bennett was actually transferred to the Owings Mills Store in
November 2011 – three2 months before Plaintiff was transferred to
the store in January 2012.”
ECF No. 119-1.
In its Reply
memorandum, Defendant suggests that this timing issue “does not
square with Plaintiff’s entire theory of the case,” and that the
fact that “Bennett was actually transferred to the Owings Mills
Store months prior to Plaintiff” is “a fact that Plaintiff has,
until now, overlooked.”
ECF No. 123 at 12-13.
Plaintiff, however, has represented all along that Bennett
was already at the Owings Mills store before Plaintiff was
transferred there.
In an April 4, 2012, letter to the Equal
Employment Opportunity Commission (EEOC), Plaintiff wrote that
he had been moved to a store that had a black co-manager, Jimmy
Bennett, so that he could be fired and any claim of
discrimination would be discredited.
1.
ECF No. 98-1, Attach. A at
In his opposition to the motion for summary judgment,
Plaintiff stated that, in December 2011, when he first learned
that he was to be transferred, he “immediately recalled
information that in November 2011, an African American was
transferred to Owings Mills as an Assistant store manager.”
2
ECF
While perhaps not particularly relevant, Plaintiff was
transferred to the Owings Mills store effective January 3, 2012,
so, if Graham’s representation is correct, Bennett was
transferred at most two months before Plaintiff.
4
No. 98 at 16.
The Court, as Defendant acknowledges, recognized
that Plaintiff was asserting that he was transferred to a store
where Bennett was already an assistant manager.
See ECF No. 114
at 39 (noting that there was evidence that “Defendant
transferred Plaintiff to Bennett’s store so that Plaintiff could
be fired”) (emphasis added).
The issue is not, and has never
been, who was transferred first.
Defendant next takes issue with the Court’s citation to
Rashida Daniels-Gordon’s affidavit as evidence of a retaliatory
motive on the part of Graham.
at 12.
ECF No. 119-1 at 8-9; ECF No. 123
In her affidavit, Daniels-Gordon recounts a meeting she
had with Graham, a meeting that she was told was for the purpose
of investigating a sexual harassment complaint she had made
against Bennett.
Defendant posits that there was nothing
unusual about this interview and that “it was natural for a
Human Resources Manager to ask employees to keep their
investigations confidential” and “to not involve others in this
HR investigation.”
ECF No. 123 at 12.
Defendant questions
“[h]ow could one possibly infer a retaliatory motive” from the
exchange, and noted that the meeting occurred “after Plaintiff
had already engaged in workplace violence.”
ECF No. 119-1 at 9.
Defendant conveniently ignores what Daniels-Gordon actually
said in her affidavit.
Daniels-Gordon stated that while Graham
told her the meeting was about the sexual harassment claim,
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Graham “focused her questions on [Plaintiff].”
7.
ECF No. 98-37 ¶
Graham did not simply ask her to keep the investigation
confidential, she threatened to fire her if she told anyone
about this meeting, especially Plaintiff.
Id. ¶ 10.
Defendant
also omits mention that Graham warned Daniels-Gordon that
Plaintiff “was trying or may try to use [her] to benefit himself
in something he was trying to do,” id., a comment that borders
on a breach of the confidentiality concerns that Defendant
asserts a Human Resources Manager would naturally seek to
enforce.
As for the timing of this conversation, while it
occurred after the alleged incident of workplace violence, it
took place immediately before the decision was made to terminate
Plaintiff’s employment.
Defendant next criticizes the Court for failing to consider
comparator evidence when evaluating Plaintiff’s retaliation
claim.
As the Court explained in its previous decision, given
that there is some direct evidence of retaliation, it was at
least questionable as to whether the Court needed to engage in
the McDonnell Douglas analysis, an analysis which would have
encompassed that comparator evidence.
ECF No. 114 at 38-39.
its reply in support of the motion for reconsideration,
Defendant argues that Bennett’s alleged statement that he was
tasked to fire Plaintiff because Plaintiff was a troublemaker
was not sufficiently related to his termination to constitute
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In
direct evidence of retaliation.
ECF No. 123 at 10-11 (citing
Betof v. Suburban Hosp., Inc, Civ. No. 11-1452, 2012 WL 2564781
(D. Md. June 29, 2012)).3
In Betof, a case alleging racial discrimination, this Court
did hold that “[d]irect evidence is evidence of conduct or
statements that both reflect directly the alleged discriminatory
attitude and that bear directly on the contested employment
decision.”
2012 WL 2564781, at *6 (internal quotation omitted).
In Betof, the statements that plaintiff asserted were direct
evidence of racial discrimination, this Court found were, “in
fact, racially neutral” and were not “in any way linked to
[plaintiff’s] subsequent termination.”
Id. For those reasons,
the Court found the statements were not direct evidence of
discrimination.
In contrast, here we have a statement of one of
Defendant’s managers that Defendant wanted Plaintiff fired
because of his troublesome EEOC activity.4
3
Defendant also argues that Graham’s comments to Daniels-Gordon
are not direct evidence of retaliation. The Court agrees. The
Court mentioned Graham’s comments simply as further support for
the conclusion that Plaintiff was labeled a troublemaker because
of his EEOC complaints. See ECF No. 114 at 39.
4
Defendant argues that Bennett’s statements regarding Plaintiff
being a troublemaker and his plan to set-up Plaintiff for
termination were “not at all related” to Plaintiff’s termination
because Bennett was not involved in that termination. ECF No.
123 at 11. The Court notes that it was Bennett, who was Acting
Store Manager at the time of the April 25, 2012, incident, who
told Assistant Manager Angela Corprew to report the incident to
Allen Tlusty for investigation. ECF No. 88-12 at 32.
7
While questioning if it was necessary, the Court did
evaluate Plaintiff’s retaliation claim under the McDonnellDouglas framework.
In that evaluation, the Court did not
discuss comparators because, particularly as to Plaintiff’s
termination based upon the April 25, 2012, incident, there is a
question as to what the conduct of Plaintiff actually entailed
that would then be compared to the conduct of other employees.
The Court found, and still finds, that there are material
disputes of fact as to whether Plaintiff engaged in workplace
violence.
Defendant suggests that Plaintiff admitted that he
committed an act that violated Defendant’s Workplace Violence
Policy.
ECF No. 119-1 at 12; ECF No. 123 at 9.
Selectively
quoting from a “Statement and Grievance” written by Plaintiff
regarding the incident, Defendant states that Plaintiff admitted
“that he ‘argued’ with Ms. Person, ‘point[ed] his finger at
her,’ ‘bump[ed]’ her and ‘pushed [Mr. Deinlein’s] hands.’”
No. 119-1 at 12 (quoting ECF No. 88-19).
ECF
From this, Defendant
concludes Plaintiff committed an “egregious act of workplace
violence.”
ECF No. 119-1 at 7.
What Plaintiff recounted in his Statement and Grievance was
that, in response to Person lying and accusing Plaintiff of
talking about her, he “started pointing [his] finger at her.”
ECF No. 88-19.
She told him not to point his finger and he told
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her to stop lying.
In frustration, he started to walk out of
the office when Deinlein “grabbed me very hard on my left
shoulder and bruised it, [and] I pushed his hand off of me.”
Id.
When he started to leave the office again, Person “decided
to block me from leaving by standing in my way and refusing to
move.”
Id.
After he told her to move and she would not, “in
order to walk out I was forced to bump shoulders with her since
she wouldn’t move and continued to stand in my way knowing that
I was trying to leave.”
Id.
He concluded, “I didn’t put my
hands on her, I didn’t challenge her and didn’t curse or
threaten her, I simply attempted to leave.”
Id.
Beyond mischaracterizing Plaintiff’s “admission,”
Defendant focuses on the accounts of the incident provided by
other employees who were present.
While those other accounts
differ in the level of physical force asserted by Plaintiff,
they recount a similar course of events: raised voices, finger
pointing, Deinlein inserting himself between Plaintiff and
Person, Plaintiff pushing Deinlein’s arm away, and Plaintiff
bumping into Person as he leaves the office.
Reviewing those
accounts, Graham certainly could have honestly concluded that
Plaintiff violated Defendant’s zero tolerance workplace violence
policy.
If, however, the jury credits the testimony that (1)
Bennett was tasked to fire Plaintiff because of his EEOC
activity; (2) Allen Tlusty, the individual that investigated the
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incident, prodded and forced Deinlein to alter his account of
the incident to implicate Plaintiff; and (3) Graham, when
interviewing Daniels-Gordon, seemed more concerned with
investigating Plaintiff than Daniels-Gordon’s complaint against
Bennett, the jury could also find that, but for her desire to
find a justification to terminate a troublesome employee, Graham
would have reached a different conclusion.
The Court’s denial of Defendant’s motion for
reconsideration should not be read to imply that the Court
believes that Plaintiff will have an easy job convincing a jury
that he was retaliated against for asserting discrimination
claims on behalf of himself and others.5
Bennett, whom Plaintiff
identifies as the individual tasked with getting rid of him, did
not appear to have a central role in his suspension or
termination.
Furthermore, given that Bennett was himself
terminated by Defendant for sexual harassment, his credibility
is certainly undermined.
5
The Court concludes that Plaintiff will have an even more
difficult task convincing a jury that his suspension and
transfer for purchasing a DVD before it was released for sale
was retaliatory. The Court notes that Plaintiff’s accounts of
his conduct regarding that purchase are somewhat inconsistent.
Nevertheless, because the case will go forward on the discharge
for workplace violence claim and the suspension and transfer for
the DVD purchase provide the background and context for the
discharge claim, the Court will not enter judgment on that
portion of the retaliation claim at this time. The Court might
reach a different conclusion in ruling on a motion for judgment
after hearing the evidence at trial.
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For these reasons, and for the reasons more fully stated in
this Court’s Memorandum of March 30, 2016, IT IS this 17th day
of August, 2016, by the United States District Court for the
District of Maryland, ORDERED:
(1) That Defendant’s Motion for Reconsideration, ECF No.
119, is DENIED; and
(2) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all counsel of record.
_______________/s/________________
William M. Nickerson
Senior United States District Judge
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