Peterson v. Northrop Grumman Systems Corporation et al

Filing 60

MEMORANDUM. Signed by Judge William M Nickerson on 11/5/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRIAN PETERSON
Plaintiff
v.
NORTHROP GRUMMAN SYSTEMS
CORPORATION

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Defendant
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Civil Action No. WMN-13-3812

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MEMORANDUM
Before the Court is Defendant’s Motion for Summary
Judgment.

ECF No. 51.

The motion is ripe. 1

Upon a review of

the pleadings and the applicable case law, the Court determines
that no hearing is necessary, Local Rule 105.6, and that
Defendant’s motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the remaining counts before the Court, Plaintiff Brian
Peterson charges Defendant Northrop Grumman Systems Corporation
with retaliation in violation of Title VII of the Civil Rights

1

Defendant’s Motion for Summary Judgment was filed on July 13,
2015. ECF No. 51. Plaintiff missed the July 30, 2015, deadline
to file a response. On August 10, 2015, Plaintiff received a
thirty day extension of time, moving the deadline to submit a
response to September 8, 2015. ECF No. 52. Plaintiff missed
the September 8, 2015, deadline and did not file a response
until September 11, 2015. ECF No. 54. Plaintiff’s Response was
incomplete, and an additional memorandum in support was filed on
September 17, 2015. ECF No. 55. Due to Plaintiff’s delay, the
Court continued the trial and granted Defendant an extension of
time to reply. ECF No. 57. Defendant timely filed a reply on
October 15, 2015. ECF No. 59.

Act of 1964 (Title VII), 42 U.S.C. §§ 2000e, et seq., and racial
discrimination in violation of 42 U.S.C. § 1981 (Section 1981). 2
ECF No. 37 at 2.

Plaintiff is an African-American male who was

employed by Defendant from 1983-1996, and again from 1998-2012.
Plaintiff worked as a Lab Inspector in the Sensors and Systems
Division of the Advanced Technical Laboratory from 2005 until
his dismissal on March 13, 2012.

The manager of his group, the

Mission Assurance H-Module, was Gary Tichnell.
From 2009 until his dismissal, Plaintiff served as a
Salaried Employees Association (SEA) 3 Union Representative for
Defendant’s employees in District 4, Group 1.

As Union

Representative, Plaintiff requested a review of overtime
assignments within his group for the first half of 2011.

The

resulting investigation showed that Donna Crum received 441
hours of overtime while the remaining ten workers in the
department received 272 hours combined.

On September 27, 2011,

Plaintiff filed a charge with the National Labor Relations Board
(NLRB) against the Union for failing to address the unequal
distribution of overtime hours.
2

Plaintiff’s charge brought under the National Labor Relations
Act, 29 U.S.C. § 158, was dropped, ECF No. 21, and his Title VII
claims related to race and sex discrimination were dismissed.
ECF No. 35. Defendant Salaried Employees Association was
dismissed from the case. ECF No. 45.
3

SEA was the exclusive bargaining representative for Defendant’s
employees in regards to the terms and conditions of their
employment.
2

In addition to complaining about overtime, Plaintiff
reported to management that Tichnell excluded him from silicon
carbide wafer training and failed to respond to his request for
education assistance.

On September 28, 2011, Plaintiff met with

Jim O’Hair, Employee Assistance Program Coordinator, to discuss
his issues with Tichnell and his NLRB charge.

O’Hair sent

Plaintiff to Kevin Wilson, Director of Equal Employment
Opportunity (EEO) and Diversity, who recommended he talk to
Amanda Henderson, Manager of Labor Relations.

After speaking

with Henderson, Plaintiff notified O’Hair that his issues were
being addressed and that he was satisfied.

Plaintiff’s NLRB

charge was subsequently withdrawn and no further action was
taken.
Action was taken after Plaintiff engaged in an altercation
with co-worker Deltuva on February 28, 2012.

Deltuva claimed he

was standing by his locker when Plaintiff confronted him,
speaking in a physically threatening manner.
11.

ECF No. 51-6 at

Deltuva complained to Tichnell about the altercation and

prepared a written statement which indicated that Plaintiff
“asked if [Deltuva] had a problem with him” and said “if you do
we can go outside” and “if I hit you, I will kill you.”

Id.

On the day of the altercation, Plaintiff was indefinitely
suspended for violating Plant Rule #5, Misconduct.
15 at 2.

ECF No. 54-

On March 13, 2012, the suspension was converted to a
3

permanent dismissal.

Id.

On June 1, 2012, Plaintiff filed a

charge for discrimination based on retaliation with the Equal
Employment Opportunity Commission (EEOC).

ECF No. 13-1.

Plaintiff received a Dismissal and Notice of Rights letter from
the EEOC on September 20, 2013.

ECF No. 1-2.

Plaintiff filed

his original complaint in this Court on December 18, 2013.
Defendant now moves for summary judgment on Plaintiff’s two
remaining claims.
II. LEGAL STANDARD
Summary judgment is appropriate “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.”
Civ. P. 56(a).

Fed. R.

This standard requires the court to “draw all

justifiable inferences in favor of the nonmoving party,
including questions of credibility and of the weight to be
accorded particular evidence.”

Masson v. New Yorker Magazine,

501 U.S. 496, 520 (1991) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).

“The mere existence of a

scintilla of evidence in support of the plaintiff's position
will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.”

Id. at 252.

disputes that are irrelevant or unnecessary will not be
counted.”

Id. at 248.

4

“Factual

III. DISCUSSION
Plaintiff has not offered direct evidence of
discrimination, therefore, in order to prevail on his Title VII
and Section 1981 claims, Plaintiff must rely on the indirect
burden-shifting framework from 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.”

Tex. Dept. Cmty. Affairs v. Burdine, 450

U.S. 248, 248 (1981).

Second, if the plaintiff establishes a

prima facie case, the burden shifts to the defendant “to
articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.”

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.

A. Title VII Retaliation Claim
Defendant seeks summary judgment on Plaintiff’s Title VII
retaliation claim on the grounds that 1) Plaintiff fails to
establish a prima facie case of retaliation and 2) Plaintiff
fails to carry his burden to prove, by a preponderance of the
evidence, that Defendant’s proffered reason for Plaintiff’s
termination was pretextual.

ECF No. 51-2.
5

1. Prima Facie Case
To establish a prima facie case of retaliation under Title
VII, a plaintiff must show (1) he engaged in protected activity;
(2) his employer took an adverse employment action against him;
and (3) a causal connection exists between the protected
activity and the adverse action.

Carter v. Ball, 33 F.3d 450,

460 (4th Cir. 1994).
Protected activities fall into two categories:
participation and opposition.

Section 704(a) limits activities

that constitute participation to (1) making a charge; (2)
testifying; (3) assisting; or (4) participating in any manner in
an investigation, proceeding, or hearing under Title VII.
U.S.C. § 2000e-3(a).

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Plaintiff’s conduct does not fall within

the scope of the participation clause because he did not file an
EEOC charge until after he was terminated nor did he assist with
any EEOC charge, investigation, proceeding, or hearing during
his employment.

Accordingly, the Court will examine whether

Plaintiff’s activities are protected by the opposition clause.
The opposition clause of Section 704(a) protects employees
who oppose “any practice made an unlawful employment practice”
through Title VII.

42 U.S.C. § 2000e–3(a).

“Title VII defines

the term ‘unlawful employment practice’ as discrimination on the
basis of any of seven prohibited criteria: race, color,
religion, sex, national origin, opposition to employment
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discrimination, and submitting or supporting a complaint about
employment discrimination.”

Univ. of Texas Sw. Med. Ctr. v.

Nassar, 133 S. Ct. 2517, 2532 (2013).
Plaintiff claims he was terminated in retaliation for
making complaints in 2011 about discriminatory treatment.

On

August 11, 2011, Plaintiff wrote an email to William Frye
regarding inequality in overtime hours, stating “[w]e have to
find a solution to this segregated problem.
discrimination case than I must be blind.”

If this is not a
ECF No. 54-12 at 73.

Plaintiff also sent an email to Janet Bart stating “we continue
to be behind on diversity representation in our management
ranks, particularly for people of color.”

ECF No. 54-6 at 3.

Plaintiff’s communications with Frye and Bart fall within the
opposition clause because Plaintiff opposed discrimination based
on race which is an unlawful employment practice under Title
VII.
In addition, in September of 2011, Plaintiff filed a
complaint with Jim O’Hair, Employee Assistance Program
Coordinator.

ECF No. 54-4 at 6.

Plaintiff alleges he

complained of discrimination based on race to O’Hair, who then
referred him to Kevin Wilson, Defendant’s Director of EEO and
Diversity, to deal with the discrimination issue.

Id.

Although

there is no direct evidence that Plaintiff complained of
discrimination based on race in these conversations, the Court
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can draw reasonable inferences from Plaintiff’s use of informal
grievance procedures, especially his referral to Wilson.
“The opposition clause has been held to encompass informal
protests, such as voicing complaints to employers or using an
employer’s grievance procedures,” Armstrong v. Index Journal,
647 F.2d 441, 448 (4th Cir. 1981), consequently, Plaintiff
engaged in protected activity under Section 704(a).

Plaintiff

suffered an adverse employment action when he was terminated
from employment, thus, the Court finds Plaintiff satisfies the
first and second prong of the prima facie framework.
Defendant claims Plaintiff’s prima facie case fails at the
third prong because he cannot establish a causal connection
between the protected activity and the adverse employment
action.

In Nassar, the Supreme Court concluded that “Title VII

retaliation claims must be proved according to traditional
principles of but-for causation”... requiring “proof that the
unlawful retaliation would not have occurred in the absence of
the alleged wrongful action or actions of the employer.”
Ct. at 2533.

133 S.

The Court agrees with Defendant that Plaintiff

fails to establish that connection.
First, Plaintiff provided the NLRB with a Confidential
Witness Affidavit, in which he stated under penalty of perjury
that “[m]y suspension on February 28, 2012 and my subsequent
termination on March 13, 2012 stem from an incident that
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involved my coworker Ed Deltuva.”

ECF No. 51-3 at 61.

Second,

in the same affidavit, Plaintiff stated “I believe the real
reason the Employer terminated me was because it was retaliating
against me for filing Charge 05-CB-065652 with the National
Labor Relations Board on or about September 27, 2011.”
63.

Id. at

There is no evidence before the Court that Plaintiff’s NLRB

charge mentioned race discrimination.

Based on Plaintiff’s own

admissions, retaliation for opposition to racial discrimination
was not the but-for cause of Plaintiff’s termination.
In addition, there is no evidence that the relevant
decision-makers, Tichnell and Henderson, were aware of
Plaintiff’s complaints of racial discrimination.

The Fourth

Circuit has stated that “[s]ince, by definition, an employer
cannot take action because of a factor of which it is unaware,
the employer’s knowledge that the plaintiff engaged in a
protected activity is absolutely necessary to establish the
third element of the prima facie case.”

Dowe v. Total Action

Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir.
1998).

Henderson definitively stated she was not “aware that

Plaintiff made a complaint of racial [] discrimination, or that
Plaintiff claimed that any allegedly unequal treatment related
to overtime, training, education assistance or otherwise was
allegedly a result of racial [] discrimination” until after
Plaintiff was terminated.

ECF No. 51-5 at 3.
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Tichnell, when

asked during deposition “[d]o you recall whether or not
[Plaintiff] was also complaining about being treated differently
because he’s a man or being treated differently because he is
African-American,” replied “[n]o, I do not.”
20.

ECF No. 51-4 at

Because the relevant decision-makers were not aware that

Plaintiff engaged in protected activities, a reasonable jury
could not conclude that a causal connection exists between a
protected activity and Plaintiff’s termination.

Accordingly,

Plaintiff fails to establish a prima facie case of retaliation
under Title VII.
2. Legitimate Nondiscriminatory Reason
Even if Plaintiff established a prima facie case of
retaliation, Defendant articulated a legitimate,
nondiscriminatory reason for terminating Plaintiff, i.e., his
violation of the Workplace Violence Prevention and Response
Policy (Workplace Violence Policy), ECF No. 59-3 at 7, and
violation of Plant Rule #5, Misconduct.

ECF No 54-15 at 2.

Violation of a company policy is a legitimate reason for
terminating an employee.

Brantley v. Nationwide Mut. Ins. Co.,

No. RDB-07-1322, 2008 U.S. Dist. LEXIS 56083, at *37 (D. Md.
July 22, 2008).
3. Pretext for Retaliation
Under McDonnell-Douglas, once the defendant presents a
legitimate, nondiscriminatory reason for termination, the burden
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shifts back to the plaintiff “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 253.

Plaintiff attempts

to cast doubt on Defendant’s proffered reason for termination by
comparing the severity of the action taken against him to the
treatment other employees received for violating Defendant’s
policies.
Plaintiff points to the deposition of co-worker Dennis
Wilderson Sr., who said another employee, John Miller, was not
terminated for engaging in conduct vaguely delineated as
fighting and quarreling.

ECF No. 55 at 7.

Defendant points out

that according to Wilderson, the altercation in which Miller was
involved likely arose before January 13, 2010, the date
Defendant adopted the zero tolerance Workplace Violence Policy.
Next, Plaintiff attempts to show pretext by comparing the
actions taken against him to actions taken by Defendant in
response to employee conduct such as computer violations, name
calling, and off-color joking.

ECF No. 54 at 23-24.

The

difference in discipline for these violations is not enough to
show pretext because the Workplace Violence Policy only applies
to “acts, or threats of violence in the workplace.”
3 at 7.

ECF No. 59-

In light of these facts and Plaintiff’s admission

during deposition that “as an employee, [he] understood that
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committing or threatening any act of violence against another
employee would result in termination,” ECF No 51-3 at 33,
Plaintiff fails to show the reason offered by Defendant for his
termination was pretext for retaliation.
B. Section 1981 Racial Discrimination Claim
Plaintiff claims Defendant discriminated against him in the
terms and conditions of employment based on his race, AfricanAmerican, in violation of Section 1981. 4

In order to establish a

prima facie case of racial discrimination under Section 1981, a
plaintiff must show “1) membership in a protected class; 2)
satisfactory job performance; 3) adverse employment action
[taken because of his race]; and 4) that similarly situated
employees outside the protected class received more favorable
treatment.”

White v. BFI Waster Serv., LLC, 375 F.3d 288, 295

(4th Cir. 2004).

Defendant concedes Plaintiff is a member of a

protected class and that his job performance was satisfactory.
Defendant challenges Plaintiff’s prima facie case as to prongs
three and four, maintaining it did not take adverse employment
actions against him on the basis of race or give more favorable
treatment to employees outside of his protected class.
An adverse employment action is a discriminatory act which
adversely affects “compensation, terms, conditions, or

4

To the extent Plaintiff’s Section 1981 claim is based on
retaliation, the analysis is the same as that under Title VII.
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privileges of employment.”

42 U.S.C. § 2000e-2(a)(1).

“Adverse

employment action” has been narrowly defined, and does not
include every decision made by an employer that arguably might
have some tangential effect upon ultimate decisions.

See Page

v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en banc) (noting
discrimination cases have focused upon ultimate employment
decisions such as hiring, granting leave, discharging,
promoting, and compensating).

Suspension and termination are

ultimate employment decisions; however, Plaintiff’s Section 1981
claim fails to the extent it is based on those decisions due to
his admission that he was not terminated on the basis of race. 5
See ECF No. 51-3 at 38 (“Q. Do you allege you were terminated
because of your race? A. I wasn’t terminated because of my
race.”).
Plaintiff’s remaining allegations concerning adverse
employment actions taken by Defendant fall into three
categories: disparate treatment in assignment of training,
education assistance, and overtime hours.

Id.

The record shows

that Plaintiff was not denied training or education assistance
but rather did not receive these employment benefits as quickly
as he would have liked.

Plaintiff claims he was discriminated

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This claim also fails for the reasons given in the Court’s
analysis of Plaintiff’s Title VII claim, namely, that Plaintiff
did not carry his burden to prove by a preponderance of the
evidence that the reason offered by Defendant for Plaintiff’s
termination was pretext for discrimination.
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against in training for silicon carbide wafer testing and the
Phoenix program.

Plaintiff admits that he was trained on

silicon carbide wafer testing by October 20, 2011.
at 24.

ECF No. 59-1

Defendant states that it began to train Plaintiff to

work with the Phoenix program by assigning him to shadow with
another individual.

ECF No. 54-13 at 13-14.

In addition, Plaintiff attended college part time through
education assistance from Defendant, acquiring 30 credits before
his termination.

ECF No. 54 at 2.

Plaintiff’s request for

education assistance in July of 2011 may have been delayed for
two weeks but ultimately yielded approval on August 17, 2011.
ECF No. 51-4 at 17.

Henderson testified that Plaintiff could

have paid to take the course upfront and then filed for
reimbursement.

ECF No. 51-5 at 3.

Delay by an employer in

training and educational advancement is no more than an
“interlocutory or mediate decision having no immediate effect
upon employment conditions,” and therefore, does not constitute
a legally cognizable adverse employment action.

Page, 645 F.2d

at 233.
Plaintiff additionally claims he was denied overtime hours
on the basis of race.

Depriving an employee of “compensation

which he otherwise would have earned” constitutes an adverse
employment action.

See Shannon v. Bellsouth Telecomm. Inc., 292

F.3d 712, 716 (11th Cir. 2002) (finding adverse employment
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action when, among other things, the plaintiff was “totally
blackballed from overtime”).

Plaintiff claims that receipt of

overtime hours was a term and condition of his employment,
pointing to company policy that “overtime shall be equitably
divided as far as practicable on a shift among employees.”

ECF

No 54-9 at 12.
Although denial of overtime can constitute an adverse
employment action, Plaintiff fails to show that similarly
situated Caucasian employees were treated more favorably.

In

2011, many overtime hours were allocated to employees with
training to work in the space program. 6

ECF No. 54-13 at 61-62.

One Caucasian employee and one African-American employee worked
in the space program and received more overtime than Plaintiff,
while numerous [at least six] Caucasian employees received less
overtime.

Plaintiff was not trained to work in the space

program, and therefore, was not similarly situated to the two
employees who worked in that program and received more overtime.
Furthermore, two of the top three overtime earning employees
were African-American, ECF No. 51-3 at 45, and Plaintiff had
more overtime than anyone with training equivalent to his own.
The evidence does not reflect employer favoritism of
employees outside Plaintiff’s protected class; no reasonable

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The parties have not described the type of training needed to
work in the space program.
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jury could conclude that Defendant treated Caucasian employees
more favorably than similarly situated African-American
employees.

The Court finds Plaintiff fails to establish a prima

facie case of racial discrimination under Section 1981.
IV. CONCLUSION
For the above-stated reasons, the Court will grant
Defendant’s Motion for Summary Judgment.

A separate order will

issue.

____________/s/___________________
William M. Nickerson
Senior United States District Judge

DATED: November 5, 2015

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