EEOC v. Blockbuster Inc.
Filing
100
MOTION for Summary Judgment and Brief in Support of Summary Judgment by Blockbuster Inc. Responses due by 3/25/2010 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y1, # 26 Exhibit Y2, # 27 Exhibit Y3, # 28 Exhibit Y4, # 29 Exhibit Y5, # 30 Exhibit Y6, # 31 Exhibit Y7, # 32 Exhibit Y8, # 33 Exhibit Y9, # 34 Exhibit Y10, # 35 Exhibit Y11, # 36 Exhibit Y12)(Keiller, Chaka) Modified on 3/10/2010 (rank, Deputy Clerk).(Hard Copy rec'd 3/10/2010 rk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
)
EQUAL EMPLOYMENT OPPORTUNITY )
COMMISSION,
)
)
Plaintiff,
)
)
v.
)
)
BLOCKBUSTER, INC.,
)
)
Defendant.
)
)
Civil Action No.: 8:07-cv-02612-RWT
DEFENDANT BLOCKBUSTER INC’S MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant Blockbuster, Inc.
(“Blockbuster” or “Defendant”) hereby respectfully moves this Court for summary judgment on
the EEOC’s claims in the above-captioned action for the reasons stated in the accompanying
Memorandum in Support of Blockbuster’s Motion for Summary Judgment.
Respectfully Submitted,
/s/ Grace E. Speights
____
Morgan, Lewis and Bockius, LLP
Grace E. Speights (Bar No. 05524)
gspeights@morganlewis.com
Chaka A. Keiller (Bar No. 17748)
ckeiller@morganlewis.com
1111 Pennsylvania Ave. N.W.
Washington, D.C. 20004
Telephone: 202.739.3000
Facsimile: 202.739.3001
DB1/64410110.4
TABLE OF CONTENTS
Page
I.
INTRODUCTION ............................................................................................................. 1
II.
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE........................................... 2
A.
BLOCKBUSTER’S GAITHERSBURG FACILITY ............................................ 2
B.
THE CLASS MEMBERS’ EMPLOYMENT........................................................ 2
C.
THE SEVEN CLASS MEMBERS........................................................................ 3
D.
BLOCKBUSTER’S ANTI-HARASSMENT POLICIES...................................... 4
E.
THE CLASS MEMBERS’ RACE/NATIONAL ORIGIN
DISCRIMINATION AND HARASSMENT ALLEGATIONS............................ 5
F.
THE CLASS MEMBERS SEXUAL HARASSMENT ALLEGATIONS ............ 7
G.
BLOCKBUSTER’S INVESTIGATIONS OF SEXUAL HARASSMENT,
AND RACE/NATIONAL ORIGIN DISCRIMINATION COMPLAINTS.......... 8
1.
2.
March and April 2005 Allegations and Investigations .............................. 8
3.
May 2005 Allegations and Investigations................................................ 10
4.
Personnel Issues in June 2005.................................................................. 10
5.
III.
December 2004 Allegations....................................................................... 8
August 2005 Investigation ....................................................................... 11
ARGUMENT................................................................................................................... 12
A.
LEGAL STANDARD FOR SUMMARY JUDGMENT..................................... 12
B.
THE EEOC CANNOT DEMONSTRATE THAT THE CLASS
MEMBERS HOSTILE WORK ENVIRONMENT............................................. 13
1.
The Conduct About Which The EEOC Complains Was Not Based
On Race or National Origin ..................................................................... 13
2.
The Alleged Conduct Was Not Severe or Pervasive ............................... 16
C.
ZUBIATE AND DOLORES GONZALES COULD NOT HAVE BEEN
SUBJECT TO A HOSTILE WORK ENVIRONMENT BECAUSE THEY
WERE UNAWARE OF THE ALLEGEDLY OFFENSIVE COMMENTS....... 17
D.
PLAINTIFFS HAVE NOT ESTABLISHED AN ISSUE OF MATERIAL
FACT WITH RESPECT TO THEIR DISPARATE TREATMENT
CLAIMS .............................................................................................................. 18
1.
The Standard for Disparate Treatment Claims ........................................ 18
2.
The EEOC Cannot Establish That African-American Employees
Were Treated More Favorably Than Hispanic Employees...................... 19
-i-
TABLE OF CONTENTS
(continued)
Page
3.
4.
Ms. Ledesma and Ms. Zubiate Did Not Suffer Adverse
Employment Actions ............................................................................... 22
5.
E.
The Work Policies And Alleged Disparity The EEOC Complains
About With Respect To The Hispanic Class Members Are Not
Adverse Employment Actions ................................................................. 21
Blockbuster Had a Legitimate Non-Discriminatory Reason For
Discharging Class Members Dolores and Lolita Gonzales ..................... 23
EEOC CANNOT DEMONSTRATE THAT BLOCKBUSTER EITHER
HAS OR AS A MATTER OF POLICY TOLERATES AN ALLPERVASIVE ATMOSPHERE OF GENDER/SEXUAL HARASSMENT
IN ITS WORKPLACE ........................................................................................ 24
1.
The Sexual Harassment Allegations Were Neither Severe Nor
Pervasive .................................................................................................. 24
2.
Liability Should Not Be Imputed To Blockbuster Because The
Class Members Failed To Avail Themselves Of Blockbuster’s
Complaint Procedures.............................................................................. 26
3.
EEOC’S Constructive Discharge Claims................................................. 27
F.
G.
IV.
EEOC IS NOT ENTITLED TO RECOVER PUNITIVE DAMAGES............... 28
The EEOC CANNOT ESTABLISH THAT BLOCKBUSTER FAILED
TO MAINTAIN RECORDS................................................................................ 30
CONCLUSION................................................................................................................ 31
-ii-
TABLE OF AUTHORITIES
FEDERAL CASES
Abouzied v. Mann, No. 97-CV-7613(FB)(CLP), 2000 WL 1276635 (E.D.N.Y.
Aug. 30, .......................................................................................................................14
Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002)....................................................16
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ......................................................12
Barrett v. Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001) ..........................26
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003).............................13
Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir. 1985) .............................................27
Bryant v. Aiken Reg'l Medical Ctrs., Inc., 333 F.3d 536 (4th Cir. 2003) ..........................29
Burlington Industrial, Inc. v. Ellerth, 524 U.S. 742 (1998)...............................................21
Carter v. Ball, 33 F.3d 450 (4th Cir. 1994) .......................................................................20
Causey v. Balog, 162 F.3d 795 (4th Cir. 1998) ...........................................................13, 19
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..................................................................12
Conner v. Schrader-Bridgeport, International, Inc., 227 F.3d 179 (4th. Cir. 2000).........17
Cross v. Bally's Health & Tennis Corp., 945 F. Supp. 883 (D. Md. 1996) .......................23
See E.E.O.C. v. Autozone, Inc., No. CV-06-1767-PCT-PGR, 2008 WL 4280174
(D. Ariz. Sept. 15, 2008)..............................................................................................31
E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397 (4th Cir. 2005) ............................19
E.E.O.C. v. R & R Ventures, 244 F.3d 334 (4th Cir. 2001) ...............................................16
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) ...........................................24
Evans v. Davie Truckers, Inc., 769 F.2d 1012 (4th Cir. 1985) ..........................................22
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954 (4th Cir. 1996) ...........................12
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ..............................15, 16, 17, 21, 24
DB1/64410110.4
Felty v. Graves-Humphreys Co., 818 F.2d 1126 (4th Cir. 1987) ......................................12
Harris v. Forklift Systems, 510 U.S. 17 (1993) .....................................................16, 17, 25
Hartsell v. Duplex Products, Inc., 123 F.3d 766 (4th Cir. 1997) ......................................22
Hill v. Lockheed Martin Logistics Management, 354 F.3d 277 (4th Cir. 2004)................19
Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745 (4th Cir. 1996) .....................17, 18
Ingraham v. Giant Food, Inc., 187 F. Supp. 2d 512 (D. Md. 2002)..................................18
Jackson v. State of Maryland, 171 F. Supp. 2d 532 (D. Md. 2001) ............................17, 19
Johnson v. Shalala, 991 F.2d 126 (4th Cir. 1993) .............................................................27
Kolstad v. America Dental Association, 527 U.S. 526 (1999) ....................................28, 29
Lack v. Wal-Mart Stores, Inc., 240 F.3d 255 (4th Cir. 2001) ............................................24
Langadinos v. Appalachian Sch. of Law, No. 1:05CV00039, 2005 WL 2333460
(D. W. Va. Sept. 25, 2005) ..........................................................................................14
Lawton v. Sunoco, Inc., Civ. A. No. 01-2784, 2002 WL 1585582 (E.D. Pa. July
17, 2002) ......................................................................................................................15
Lombard v. MCI Telecomms. Corp., 13 F. Supp. 2d 621 (N.D. Ohio 1998).....................31
Moser v. Ind. Department of Correctional, 406 F.3d 895 (7th Cir. 2005) ........................18
Munday v. Waste Management, Inc., 126 F.3d 239 (4th Cir. 1997)..................................22
Nicole v. Grafton Sch., Inc., 181 F. Supp. 2d 475 (D. Md. 2002) ...............................13, 17
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) .............................16, 25
Pineda v. Phila. Media Holdings LLC, 542 F. Supp. 2d 419 (E.D. Pa. 2008) ..................15
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)................................19
Samuels v. City of Baltimore, No. RDB 09-458, 2009 U.S. Dist. LEXIS 96228
(D. Md. Oct. 15, 2009).................................................................................................12
Settle v. Baltimore County, 34 F. Supp. 2d 969 (4th Cir. 1999) ..................................21, 22
DB1/64410110.4
ii
Shealy v. Winston, 929 F.2d 1009 (4th Cir. 1991).............................................................22
Spicer v. Va. Department of Correctional, 66 F.3d 705 (4th Cir. 1995) ...........................24
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)..................................................12, 19
Stephens v. S. Atlantic Canners, Inc., 848 F.2d 484 (4th Cir. 1988) .................................28
Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001)....................................................22
White v. Federal Express Corp., 939 F.2d 157 (4th Cir. 1991).........................................18
White v. Washington Gas, Civ. No. DKC 2003-3618, 2005 U.S. Dist. LEXIS
3461 (D. Md. March 4, 2005) ......................................................................................12
Wright v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996) ...................................13
FEDERAL STATUTES
42 U.S.C. § 2000e-8(c) ......................................................................................................30
29 C.F.R. § 1602.14 .....................................................................................................30, 31
Fed. R. Civ. P. 56(c) ..........................................................................................................12
MISCELLANEOUS
1 B. Lindemann & P. Grossman, Employment Discrimination Law 349, nn. 36-37
(3ed. 1996) ...................................................................................................................16
DB1/64410110.4
iii
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
)
EQUAL EMPLOYMENT OPPORTUNITY )
COMMISSION,
)
)
Plaintiff,
)
)
v.
)
)
BLOCKBUSTER, INC.,
)
)
Defendant.
)
)
Civil Action No.: 8:07-cv-02612-RWT
DEFENDANT BLOCKBUSTER INC.’S MEMORANDUM IN
SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION
Plaintiff Equal Employment Opportunity Commission ("EEOC" or "Plaintiff"), on behalf
of 7 female and/or Hispanic workers ("class members") alleges violations of Title VII based on
claims of: (1) hostile work environment based on race, national origin; (2) race and/or national
origin disparate treatment discrimination; and (3) sexual harassment. The EEOC's claims,
however, should not withstand summary judgment. As will be set forth more fully herein, there
is insufficient record evidence to establish a claim of hostile work environment or disparate
treatment based on race or national origin. The claims of sexual harassment should also fail
because: (1) the alleged harassment was neither severe or pervasive; (2) the class members never
complained to Blockbuster and Blockbuster was therefore unable to take prompt remedial action;
(3) to the extent that the class members complained to Express Personnel, their employer,
Express failed to timely bring the alleged incidents to the attention of Blockbuster; and (4) when
Blockbuster learned of the complaints, it investigated and took prompt remedial action. Finally,
the EEOC's claim that Blockbuster failed to maintain personnel and employment records should
DB1/64410110.4
also fail because Blockbuster was not the employer of the class members and thus was not
responsible for maintaining employment and personnel records for the class members.
II.
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
A.
BLOCKBUSTER’S GAITHERSBURG FACILITY
In November 2004, Blockbuster opened a warehouse facility in Gaithersburg, Maryland
dedicated to shipping and distributing DVDs to Blockbuster customers who rented movies
through Blockbuster Online. Collen Dep. 14:20-15:2 (attached as Y1); Fitzgerald Dep. 22:2-6
(attached as Y2). In late 2004, Blockbuster used temporary workers to staff the Gaithersburg
facility. Fitzgerald Dep. 24:8-13. Blockbuster contracted with Venturi Staffing Partners
(“Venturi”) to provide clerks for the warehouse. Fitzgerald Dep. 24:14-17. Venturi
subcontracted with another staffing agency, Express Personnel (“Express”), to place individuals
to work as distribution clerks at the warehouse. Fitzgerald Dep. 24:21-25:11. Blockbuster paid
Venturi for its services in accordance with a Services Agreement between the two parties. See
Exhibit A, Partnership Services Agreement. The class members were and have never been
employees of Blockbuster. Davis Dep. 64:20-65:6 (attached as Y3); Brown Dep. 53:4-21
(attached as Y4).
B.
THE CLASS MEMBERS’ EMPLOYMENT
Between November 2004 and September 2005, each of the class members was hired by
Express, at Venturi’s direction, to work at Blockbuster’s Gaithersburg facility. Brinson Dep.
14:14-16 (attached as Y5); Despertt Dep. 17:22-18:3 (attached as Y6); D. Gonzales Dep. 30:1012 (attached as Y7); L. Gonzales Dep. 34:4-6 (attached as Y8); Fields Dep. 20:3-11 (attached as
Y 9); Ledesma Dep. 30:21-31:2 (attached as Y10); Zubiate Dep. 19:8-10 (attached as Y11).
Cynthia Brown (“Ms. Brown”), an Express employee, recruited, interviewed, and hired
individuals to work as distribution clerks at the Gaithersburg facility. Brown Dep. 34:14-19,
DB1/64410110.4
2
53:4-21. The hiring process involved Ms. Brown doing a phone interview with the prospective
worker and then an in-person interview. Brown Dep. 53:12-21; Brinson Dep. 15:8-19; D.
Gonzales Dep. 30:21-31:1; L. Gonzales Dep. 36:16-21; Ledesma Dep. 32:5-8. When Express
hired workers, Ms. Brown reviewed the application for employment and the Express handbook
with them. See Exhibit B, Express Personnel Handbook; Brown Dep. 42:6-19; Exhibit C –
Handbook Acknowledgements of L. Gonzales and D. Gonzales. Blockbuster did not participate
in the recruiting, hiring, or screening of the workers hired by Express. Brown Dep. 53:4-21.
Express provided and collected time cards from each worker, paid wages, and provided benefits
to them. See Brown Dep. 230:5-10.
Blockbuster trained each worker at the facility on the proper way to perform their duties
in the warehouse. Brown Dep. 41:3-42:1. Warehouse group leaders, who were employees of
Blockbuster, directed the daily tasks of the clerks, but were not responsible for hiring or
terminating the clerks. Collen Dep. 66:11-67:4. The distribution center manager, Lincoln
Barrett, was responsible for the daily operation of the warehouse. Collen Dep. 103:3-21.
C.
THE SEVEN CLASS MEMBERS
The EEOC brought this action on behalf of seven class members who allege sex, race
and/or national origin. The class members, and their claims, are as follows:
Name
LaQuanta Brinson
Race/National
Claim
Origin
African-American Harassment based on sex; retaliation
Michelle Despertt
African-American Harassment based on sex; retaliation
Ni’ema Fields
African-American Harassment based on sex; retaliation
Dolores Gonzales
Hispanic/Peruvian Harassment based on sex; discrimination and
harassment based on race and national origin;
retaliation
DB1/64410110.4
3
Lolita Gonzales
Elizabeth Ledesma
Lita Zubiate
D.
Hispanic/Peruvian Harassment based on sex; discrimination and
harassment based on race and national origin;
retaliation
Hispanic/Peruvian Harassment based on sex; discrimination and
harassment based on race and national origin;
retaliation
Hispanic/Peruvian Harassment based on sex; discrimination and
harassment based on race and national origin;
retaliation
BLOCKBUSTER’S ANTI-HARASSMENT POLICIES
Blockbuster is an equal opportunity employer and prohibits discrimination against
employees or applicants for employment based on race, sex, religion, national origin, age,
disability, or any other category protected by law. See Collen Dep. 17:23-18:2. Blockbuster’s
Equal Employment Opportunity Policy (“EEO Policy”) is distributed to all Blockbuster
employees at the commencement of their employment. Fitzgerald Dep. 30:7-15; Francis Dep.
88:13-18 (attached as Y12); Collen Dep. 110:11-111:2. All Blockbuster employees, including
warehouse managers and warehouse group leaders, are subject to Blockbuster’s EEO policy. See
Exhibit D, Blockbuster Harassment Policy Acknowledgements of L. Barrett, T. Johnson and K.
Tutu. In addition to Blockbuster’s EEO Policy, Blockbuster has an ethics hotline that any
worker can call to report harassing or discriminatory conduct. Fitzgerald Dep. 117:6-11.
Notices of Blockbuster’s EEO Policy and its ethics hotline were posted on bulletin boards in the
break room of the Gaithersburg facility. Fitzgerald Dep. 117:6-11.
Blockbuster employees are subject to a progressive discipline policy which is intended to
provide coaching and counseling to employees whose performance is not up to Blockbuster’s
standards. See Exhibit E, Blockbuster Progressive Discipline Policy. The progressive discipline
policy provides for an escalating series of corrective action beginning with a verbal warning. Id.
The next actions are a written warning, a final written warning, and finally termination. Id.
DB1/64410110.4
4
As employees of Express, the class members were subject to its anti-harassment policy,
which was included in its employee handbook. Brown Dep. 43:7-10; Exhibit C – Handbook
Acknowledgements of L. Gonzales and D. Gonzales. Ms. Brown distributed and reviewed the
employee handbook with each of the Express employees that were assigned to Blockbuster’s
Gaithersburg facility. Brown Dep. 43:11-20. Express’ anti-harassment policy instructed its
employees to contact their Express Staffing Consultant if they were exposed to harassing
conduct. See Exhibit B, Express Handbook pg. 3; Brown Dep. 44:18-45:3.
E.
THE CLASS MEMBERS’ RACE/NATIONAL ORIGIN
DISCRIMINATION AND HARASSMENT ALLEGATIONS
The EEOC alleges that Hispanic workers were subject to a hostile work environment and
treated differently based on their race. Complaint ¶ 20. Specifically, the EEOC alleges that
Supervisor Thomas Johnson (“Mr. Johnson”) yelled at the Hispanic class members, Lolita
Gonzales, Dolores Gonzales, Ledesma, and Zubiate, monitored their work, threatened their jobs,
and treated the African-American employees more favorably than them because of their race.
Complaint ¶ 20.
However, the testimony of the class members shows that Mr. Johnson’s actions were not
based on race. While Mr. Johnson may have frequently raised his voice with employees, the
testimony of class members reveals that his behavior was not limited to Hispanic employees. In
fact, non-Hispanic class members testified that they too were yelled at by Mr. Johnson and
Warehouse Manager Lincoln Barrett. See Fields Dep. 32:11-14, 68:5-19; Despertt Dep. 104:19107:2. Non-Hispanic class members also testified that employee monitoring was not specific to
any group of employees and occurred when employees were new or when it appeared that
specific employees were not performing adequately. See Despertt Dep. 108:3-109:7, 115:2-5;
Brinson Dep. 46:21-47:21.
DB1/64410110.4
5
None of the Hispanic class members during their depositions recounted any insults that
were specific to their race and/or national origin. Moreover, Elizabeth Ledesma testified that
LaQuanta Brinson, a class member and African-American employee, was not treated well and
was insulted. Ledesma Dep. 105:1-12. Ni’ema Fields testified that Johnson threatened to fire
her. Fields Dep. 47:10-18. Ms. Brinson also testified that Johnson allegedly threatened her.
Brinson Dep. 31:8-13. Both Ms. Fields and Ms. Brinson are African-American.
The Hispanic class members further allege that they were not allowed to sit down while
performing their tasks and that African-American workers were allowed to sit down. D.
Gonzales Dep. 41:1-3; Ledesma Dep. 45:4-13.; L. Gonzales Dep. 80:4-9; 81:1-3. However, the
deposition testimony of class members revealed that, in fact, older clerks and employees with
disabilities, such as Dolores Gonzales and Ms. Despertt, who were unable to stand for long
periods of time, were permitted to sit. Ms. Gonzales, a Hispanic employee, testified that “[t]he
Latino group, the Latinos, there were three older ones of us, we could be sitting down when we
worked, but the younger ones were not allowed to sit down.” D. Gonzales Dep. 64:2-5, 74:1819. Ms. Despertt testified that “[a]nyone who had any types of problems with their back and
couldn't stand or any physical that they weren't able to stand for a long time, we were allowed to
sit. And like I said, since I had muscle damage to my lower back, I was allowed to sit.” Despertt
Dep. 29:11-21. Ms. Despertt further testified that Dolores Gonzales and another co-worker were
also allowed to sit. Despertt Dep. 30:1-14.
Further, the class members allege that African-American workers were allowed to take
longer breaks than Hispanic workers and to violate the attendance policy. D. Gonzales Dep.
62:17-63:1; Ledesma Dep. 68:16-22; L. Gonzales Dep. 95:21-96:16. Ms. Fields testified that
lunch breaks were only 30 minutes long and that she doubts that she ever took a longer break.
DB1/64410110.4
6
Fields Dep. 69:19-22. Although Ms. Despertt testified that some African-American employees
were allowed to take longer lunch breaks, she also stated that lunch breaks were only thirty
minutes long and that employees rarely came back from lunch late. Despertt Dep. 111:10112:11.
Other allegations by the class members that they claim are indicative of race and/or
national origin discrimination include an instance where Mr. Johnson wore a shirt with a black
fist on it and discussions by Mr. Johnson that Jesus was Black. L. Gonzales Dep. 119:3-9.
F.
THE CLASS MEMBERS SEXUAL HARASSMENT ALLEGATIONS
The EEOC has also alleged that the class members were subject to sexual harassment to
the extent that the alleged harassment changed the terms and conditions of the clerks’
employment. Complaint ¶ 9-8. The class members’ sexual harassment allegations primarily
revolve around the actions of Mr. Johnson and Kofi Tutu (“Mr. Tutu”), both of whom were
former Warehouse Group Leaders at Blockbuster’s Gaithersburg facility. Complaint ¶ 9-8. The
EEOC also alleges that Mr. Johnson and Mr. Tutu sexually harassed the class members by
asking them out on dates, making sexual comments, asking about their sexuality, and asking
questions regarding personal and sexual matters. Complaint ¶ 9-8. The EEOC further alleges
that Mr. Johnson and Mr. Tutu harassed class members by leering at them, standing too closely
to them, sending certain class members home from work early, and assigning certain class
members more work. Complaint ¶ 9-8. Two class members, Ms. Despertt and Ms. Brinson,
testified that Mr. Johnson touched them inappropriately. Despertt Dep. 35:11-36:19; Brinson
Dep. 23:19-24:12.
DB1/64410110.4
7
G.
BLOCKBUSTER’S INVESTIGATIONS OF SEXUAL HARASSMENT,
AND RACE/NATIONAL ORIGIN DISCRIMINATION COMPLAINTS
1.
December 2004 Allegations
Class member Ni’ema Fields alleged that she reported sexual harassment to Cynthia
Brown and Mr. Barrett in December 2004 when Mr. Johnson leered at her, stared at her buttocks,
and made sexual comments. Fields Dep. 50:16-55:22. She also alleged that Mr. Johnson
screamed at her and threatened to fire her after she complained. Fields Dep. 32:3-5, 58:20-59:3.
Mr. Barrett verbally reprimanded Mr. Johnson about his behavior, and although Mr. Barrett
failed to notify Blockbuster’s upper management at the time, this incident was ultimately
addressed in subsequent discipline for Mr. Johnson. See Exhibit F, March 17, 2005 Corrective
Action Record of Thomas Johnson.
2.
March and April 2005 Allegations and Investigations
In February 2005, Ms. Brown heard about complaints related to the Gaithersburg facility,
but was unable to convince employees to discuss the issues with her. Brown Dep. 76:18-77:17.
Nonetheless, Ms. Brown informed June Davis of Venturi that some of the workers had
complained of sexual comments. Brown Dep. 77:18-78:4. Ms. Davis informed Blockbuster’s
Director of Regional Operations, Scott Collen, of the complaints in March 2005. See Collen
Dep. 48:1-14; Davis Dep. 56:9-17. Mr. Collen promptly conducted an investigation of the
complaints. See Collen Dep. 31:3-5; Exhibit G, March 17, 2005 E-mail to S. Collen from J.
Fitzgerald. Mr. Collen then directed Mr. Barrett to issue a written reprimand to both Mr.
Johnson and Mr. Tutu based on the accusations of sexual harassment and their demeanor toward
employees and temporary workers, in accordance with Blockbuster’s progressive discipline
policy. See Exhibit G, March 17, 2005 E-mail to S. Collen from J. Davis; Exhibit F, March 17,
2005 Corrective Action Record of Thomas Johnson. Scott Collen also issued a written
DB1/64410110.4
8
reprimand to Mr. Barrett pursuant to Blockbuster’s progressive discipline policy, based on Mr.
Barrett’s failure to properly manage and supervise group leaders. See Exhibit F, March 17, 2005
Corrective Action Record of Lincoln Barrett. As part of the reprimand, Mr. Collen directed Mr.
Barrett to more closely supervise the workers in the warehouse and warned him that failure to
meet expectations would result in further disciplinary action up to and including termination.
See Exhibit H, Corrective Action Record of Lincoln Barrett.
In April 2005, Ms. Brown performed an investigation on behalf of Express and Venturi
and spent an afternoon in Gaithersburg. See Brown Dep. 117:1-5. On that afternoon, she
interviewed Lolita Gonzales, and also spoke with alleged aggrieved clerk Say Wing regarding
her allegation of sexual harassment. See Exhibit I, April 15 E-mail from C. Brown to D. Dupuis;
Brown Dep. 117:1-8. Ms. Wing allegedly told Ms. Brown that she was harassed, but was
unwilling to confirm her allegation in writing. See Brown Dep. 79:18-80:21. Ms. Brown also
met with Lolita Gonzales and Elizabeth Ledesma. See Brown Dep. 117:1-8. Ms. Brown had
received an email from Ms. Gonzales and Ms. Ledesma regarding alleged racial and/or national
origin harassment. Ms. Brown notified June Davis, Staffing Manager for Venturi, who in turn
forwarded Ms. Brown’s e-mail to Collen. See Exhibit J, April 18, 2005 e-mail from C. Brown to
J. Davis; See Exhibit K, April 22, 2005 e-mail from J. Davis to S. Collen.
In April 2005 Mr. Barrett informed Ms. Brown of interpersonal problems between Ms.
Wing and Ms. Gonzales. See Exhibit L, April 19 E-mail from C. Brown to L. Barrett.
Specifically, Ms. Wing accused Ms. Gonzales of sabotaging another employee’s work. Id. Mr.
Barrett investigated the allegations, but was unable to form a conclusion because Ms. Wing and
Ms. Gonzales did not get along with each other. See Exhibit L, April 19 E-mail from C. Brown
to L. Barrett.
DB1/64410110.4
9
3.
May 2005 Allegations and Investigations
Based in part on Ms. Brown’s April 2005 investigation, Mr. Collen and Barry Francis,
Blockbuster’s Regional Human Resources Manager, met with Drew Lenear, owner of Express’
Timonium, Maryland franchise, and Ms. Brown regarding alleged sexual harassment and
discrimination complaints and interviewed several distribution clerks at the Gaithersburg,
Maryland facility. See Brown Dep. 127:1-128:9; Collen Dep. 77:18-20. Mr. Francis and Ms.
Brown conducted interviews regarding Lolita Gonzales’ complaints. Brown Dep. 128:10129:19. Mr. Francis also interviewed Mr. Johnson, who claimed that he did not yell at staff or
sexually harass anyone. See Exhibit M, May 15, 2005 E-mail from B. Francis to S. Collen. At
the conclusion of the investigation, Mr. Johnson and Mr. Barrett both received a final written
warning, pursuant to Blockbuster’s progressive discipline policy. See Exhibit M, May 15, 2005
E-mail from B. Francis to S. Collen; Exhibit N, May 17, 2005 Corrective Action Record of L.
Barrett; Exhibit O, May 17, 2005 Corrective Action Record of T. Johnson. Mr. Barrett was
placed on a thirty-day action plan due to poor leadership and the environment in the warehouse.
See Exhibit P, Action Plan for L. Barrett.
4.
Personnel Issues in June 2005
In late June 2005, Lincoln Barrett terminated Kofi Tutu for a number of attendance
issues. See Exhibit Q, Employee Separation form for K. Tutu. At the same time, Dolores
Gonzales missed several days of work due to an undocumented illness. See Exhibit Q, June 27,
2005 E-mail from C. Brown to. L. Barrett. Mr. Barrett had previously informed Ms. Brown that
he intended to end Dolores Gonzales’ assignment with Blockbuster because her third sick day
caused her to have three “occurrences” which, under Blockbuster’s policy, was cause to end her
assignment. See Exhibit R, June 27, 2005 E-mail from C. Brown to L. Barrett. On July 1, 2005,
Ms. Brown informed Dolores Gonzales of her termination. See Exhibit S, July 1, 2005 E-mail
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from C. Brown to L. Barrett. Ms. Brown also terminated Ms. Lolita Gonzales as a result of
ongoing issues with her poor demeanor at work. L. Gonzales Dep. 31:16-18; 42:6-13; 43:1244:9.
5.
August 2005 Investigation
In August 2005, another investigation was undertaken regarding behavior at the
Gaithersburg facility. Collen Dep. 116:6-21. At the request of Mr. Collen, Ms. Brown
conducted associate interviews on August 19, 2005 with a number of temporary workers,
including Victor Ruiz, Grisel Nunez, Alphonso Sutton, Fernando Holquin, and Emetem Nkwetta,
regarding possible inappropriate sexual behavior in the workplace and disparate treatment of
Hispanic and African workers. See Exhibit T, Client/Prospect Memo.
Less than a week after Ms. Brown’s initial interviews, Barry Francis interviewed clerks
and toured the Gaithersburg facility with Mr. Johnson. See Exhibit U, August 24, 2005 E-mail
from S. Collen to B. Francis. Mr. Francis also interviewed several distribution clerks during his
visit to the facility, including Collen Carmelo, Kevin Malloy, Alphonso Sutton, Sarah Nkwetta,
Grisel Nunez, Emetem Nkwetta, and Say Wing. Id. At that time, Mr. Francis recommended the
immediate termination of both Mr. Johnson and Mr. Barrett. Id. Mr. Johnson was ultimately
terminated because of multiple complaints of favoritism, inappropriate behavior, and
intimidation tactics. Id. Blockbuster subsequently terminated Mr. Barrett for his failure to
properly manage the Gaithersburg facility and ensure a proper work environment. See Exhibit
V, Employee Separation Form of T. Johnson; Exhibit W, Employee Separation Form of L.
Barrett.
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III.
ARGUMENT
A.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate where there is “no genuine issue of material fact” and
the moving party is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 958 (4th Cir. 1996). A genuine issue of material fact exists only “if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence presented must be viewed “in the light
most favorable to the nonmoving party.” Samuels v. City of Baltimore, No. RDB 09-458, 2009
U.S. Dist. LEXIS 96228, at *8 (D. Md. Oct. 15, 2009). However, the Fourth Circuit has
emphasized that district courts have an “affirmative obligation…to prevent ‘factually
unsupported claims’ …from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d
1126, 1128 (4th Cir. 1987) (quoting Celotex, 477 U.S. at 323-24).
To survive a motion for summary judgment on an employment discrimination claim,
plaintiff bears the ultimate burden of proving that the employer intentionally discriminated
against him or her. See, e.g. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
Blockbuster is not required to offer evidence to negate or disprove matters on which plaintiff has
the burden of proof at trial. See Celotex Corp., 477 U.S. at 323; White v. Washington Gas, Civ.
No. DKC 2003-3618, 2005 U.S. Dist. LEXIS 3461, at *14 (D. Md. March 4, 2005). The EEOC
cannot avoid summary judgment by mere conclusory statements or speculation. See White, 2005
U.S. Dist. LEXIS 3461, at *7 (“If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”). The “mere existence of a scintilla” of evidence
is insufficient to survive a motion for summary judgment. Anderson, 477 U.S. at 252. Applying
this standard, all of the EEOC’s claims must fail as a matter of law.
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B.
THE EEOC CANNOT DEMONSTRATE THAT THE CLASS MEMBERS
HOSTILE WORK ENVIRONMENT
Plaintiff’s claims of hostile work environment have no merit because the acts which the
class members consider racial or national origin harassment do not rise to the requisite level of
discrimination nor were they sufficiently severe and pervasive to change the terms and
conditions of the class members’ employment as alleged by the EEOC.
To state a prima facie claim for hostile work environment, a plaintiff must allege that: (1)
he or she experienced unwelcome harassment, (2) the harassment was based on his or her race
(or national origin), (3) the harassment was sufficiently severe and pervasive to alter conditions
of employment and create an abusive atmosphere, and (4) there is some basis for imposing
liability on the employer. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003).
1.
The Conduct About Which The EEOC Complains Was Not Based On
Race or National Origin
To satisfy the second element of a hostile work environment claim, the EEOC must
demonstrate that the harassment is based on race and/or national origin. Causey v. Balog, 162
F.3d 795, 802 (4th Cir. 1998). Specifically, the EEOC must “set forth specific evidence to show
that the incident was not merely negative or motivated by dislike . . . but that it was motivated
improperly by race.” Nicole v. Grafton Sch., Inc., 181 F. Supp. 2d 475, 483 (D. Md. 2002). The
EEOC alleges that: (1) Hispanic employees were yelled at; monitored; insulted; searched;
threatened, and intimidated; (2) Mr. Johnson made comments about getting rid of some of the
class members and getting new employees; and (3) Mr. Johnson made a statement that “Jesus is
black” and wore a t-shirt with a black power symbol. However, as noted above, the record
evidence shows that non-Hispanic clerks were subject to much of the same conduct, regardless
of race and/or national origin. See Wright v. Pizza Hut of Am., Inc., 99 F.3d 138, 142 (4th Cir.
DB1/64410110.4
13
1996) (a plaintiff must show that, but for her membership in a protected class, she would not
have been subject to harassment); Langadinos v. Appalachian Sch. of Law, No. 1:05CV00039,
2005 WL 2333460, at *9 (D. W. Va. Sept. 25, 2005) (dismissing Plaintiff’s claims where there
was no evidence that the harassing conduct was related to his race); see also Abouzied v. Mann,
No. 97-CV-7613(FB)(CLP), 2000 WL 1276635 at *5 (E.D.N.Y. Aug. 30, 2000) (finding no
prima facie case of national origin hostile work place condition where the plaintiff alleged that
his supervisor yelled at him, unfairly reprimanded him and gave him more difficult assignments
as a result of his nationality)..
There is nothing about any of these allegations that suggests that racial and/or national
origin animus was involved. To the contrary, non-Hispanic class members testified that they too
were yelled at by Mr. Johnson and Mr. Barrett. See Fields Dep. 32:11-14, 58:20-59:7, 68:5-19;
Despertt Dep. 104:19-107:2. The allegations that Hispanic class members were monitored are
also not unique to Hispanic employees. Non-Hispanic employees testified that monitoring of
employees was not specific to any racial or national origin group. Brinson Dep. 46:21-47:21.
Rather, new employees were watched to make sure that they were performing tasks correctly,
and it appeared as though under performing employees who were not doing their jobs were also
targeted. See Despertt Dep. 108:3-109:7; 115:2-5; Brinson Dep. 46:21-47:21.
The Hispanic class members’ allegations that they were insulted are also not specific to
their race. First, none of the Hispanic employees recounted during their depositions any insults
that were related specifically to their race and/or national origin. Second, the testimony of the
class members establishes that non-Hispanic employees were also “insulted.” Ms. Ledesma
testified that Ms. Brinson, a class member and African-American employee, wasn’t treated well
DB1/64410110.4
14
and was insulted. Ledesma Dep. 105:1-12. This conduct, while inappropriate, is not based on
the Hispanic employees’ race and/or national origin and is not actionable under Title VII.
Similarly, the EEOC’s allegation that Hispanic employees were threatened or intimidated
because of their race and/or national origin is also without foundation. Ms. Fields testified that
Mr. Johnson threatened to fire her. Fields Dep. 47:10-18. Ms. Brinson testified that Johnson
allegedly threatened her. Brinson Dep. 31:8-13. Both Ms. Fields and Ms. Brinson are AfricanAmerican and, therefore, Mr. Johnson’s abhorrent behavior was clearly not directed to any
specific race or national origin.
Finally, the EEOC has provided no factual support for its allegation that Mr. Johnson
allegedly made statements such as “You and your people can go on lunch,” “I’m sick of this
s**t,” “Jesus is black.” Neither the class members nor the EEOC has identified why or how
these statements relate to the race and/or national origin of the Hispanic class members. Indeed
other courts have found that such comments are not race-based. See, e.g., Pineda v. Phila.
Media Holdings LLC, 542 F. Supp. 2d 419, 428-29 (E.D. Pa. 2008) (finding comment that
plaintiff had to represent “his people” was not race-based); Lawton v. Sunoco, Inc., Civ. A. No.
01-2784, 2002 WL 1585582, at *8 (E.D. Pa. July 17, 2002) (granting summary judgment to
employer and finding that references to “you people” and “thief” were not race-based).
The other incidents of which the EEOC complains, that Mr. Johnson’s wore a t-shirt with
a “black power fist and that he was going to “get rid of these damn people”,” are insufficient to
constitute an actionable claim for harassment on the basis of race. Moreover, these allegations
are based exclusively on Ms. Gonzales’ personal feelings. L. Gonzales Dep. 119:3-9; 155:18156:5. See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (To be actionable under
Title VII, however, the conduct cannot merely generate “offensive feelings in a employee.”).
DB1/64410110.4
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The conduct of Johnson, while perhaps inappropriate, was not unique to the Hispanic
employees and is not violative of Title VII. See Faragher, 524 U.S. at 787 (‘[D]iscourtesy or
rudeness should not be confused with racial harassment’ and ... ‘a lack of racial sensitivity does
not, alone, amount to actionable harassment’”) (quoting 1 B. Lindemann & P. Grossman,
Employment Discrimination Law 349, nn. 36-37 (3ed. 1996)); see also Anderson v. G.D.C., Inc.,
281 F.3d 452, 459 (4th Cir. 2002) (noting that Title VII "is not designed to purge the workplace
of vulgarity") (internal quotation omitted); E.E.O.C. v. R & R Ventures, 244 F.3d 334, 339 (4th
Cir. 2001) ("Boorish behavior may exist apart from any propensity to discriminate."). Because
the EEOC cannot establish that the conduct of which it complains is based on race and/or
national origin, its claim that Hispanic employees were subjected to a hostile work environment
based on race and/or national origin must fail.
2.
The Alleged Conduct Was Not Severe or Pervasive
The EEOC also cannot establish that the conduct was sufficiently “severe or pervasive”
to rise to the level of an actionable hostile work environment. The Supreme Court has made
clear that the standard for judging hostility in the workplace is “demanding” in order to “ensure
that Title VII does not become a general civility code.” Faragher, 524 U.S. at 788 (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). It is only “[w]hen the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment” that liability for an employer can attach. Oncale, 523 U.S. at 78 (quoting
Harris v. Forklift Systems, 510 U.S. 17, 21 (1993)). Isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of employment.
Faragher, 524 U.S. at 788.
DB1/64410110.4
16
To determine whether harassment is severe enough to create a hostile work environment,
a court should consider (1) the frequency of the discriminatory conduct; (2) its severity; (3)
whether it is physically threatening or humiliating, or a mere offensive utterance; (4) whether it
unreasonably interferes with an employee's work performance; and (5) whether it resulted in
psychological harm. Harris, 510 U.S. at 23; Conner v. Schrader-Bridgeport, Int'l, Inc., 227 F.3d
179, 193 (4th. Cir. 2000); see also Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 n.4
(4th Cir. 1996). The severity and pervasiveness of the conduct must be measured both
objectively and subjectively. Faragher, 524 U.S. at 787. In order to meet the objective standard,
the environment must be one that a reasonable person would find hostile or abusive. Id.
Applying this standard, the class members’ allegations plainly do not rise to the level of
actionable conduct. Plaintiffs have asserted no more than a few isolated allegations over the
course of their employment for which they have provided no actual evidence. This patchwork of
isolated allegations does not establish the “frequency” or the severity needed to support a hostile
work environment claim. Stray comments and one t-shirt are not ample evidence of an
atmosphere in which racially hostile comments are severe or pervasive. Nicole, 181 F. Supp. 2d
at 484 (granting motion to dismiss Title VII hostile environment claim in part because alleged
racial slur was not sufficiently "continuous and prolonged"); Jackson v. State of Maryland, 171
F. Supp. 2d 532, 542 (D. Md. 2001) (holding that plaintiff's allegations of "loosely related
actions that she perceived to be hostile to her based on her race" are insufficient to meet the
"heavy burden" required to prove hostile environment).
C.
ZUBIATE AND DOLORES GONZALES COULD NOT HAVE BEEN
SUBJECT TO A HOSTILE WORK ENVIRONMENT BECAUSE THEY
WERE UNAWARE OF THE ALLEGEDLY OFFENSIVE COMMENTS
Both Dolores Gonzales and Ms. Zubiate have severely limited English speaking and
comprehension skills and thus could not have understood the comments that were allegedly
DB1/64410110.4
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directed toward them because of their race and/or national origin. In fact, both Ms. Zubiate and
Dolores Gonzales repeatedly testified they needed daily Spanish-to-English translations and that
they learned of alleged comments through translations by Lolita Gonzales, Dolores’ Gonzales’
daughter, and Ms. Ledesma. D. Gonzales Dep. 26:9-12, 33:8-10, 39:15-40:1, 51:19-21, 53:1316, 55:9-11, 82:6-9, 85:2-9, 94:14-95:1, 105:4-7, 106:8-12, 133:7-11, 134:1-135:8; Zubiate Dep.
23:11-14, 25:12-15, 26:10-11, 28:5-7, 39:4-13. Second-hand harassment, although relevant, is
less objectionable than harassment directed at the plaintiff. Moser v. Ind. Dep't of Corr., 406
F.3d 895, 903 (7th Cir. 2005). In White v. Fed. Express Corp., the Fourth Circuit rejected the
plaintiff's race-based hostile work environment claim where it rested on a racially offensive
exchange not directed at plaintiff. White v. Federal Express Corp., 939 F.2d 157, 161 (4th Cir.
1991); see also Hopkins, 77 F.3d at 754 (upholding summary judgment where, among other
things, most of the incidents comprising the plaintiffs’ hostile work environment claims took
place in group settings and were not directed at the plaintiff.) Thus, the statements that Dolores
Gonzales and Zubiate heard through others should not be considered when determining whether
they were subject to a hostile work environment.
D.
PLAINTIFFS HAVE NOT ESTABLISHED AN ISSUE OF MATERIAL
FACT WITH RESPECT TO THEIR DISPARATE TREATMENT CLAIMS
1.
The Standard for Disparate Treatment Claims
The EEOC has alleged that African-American employees were treated more favorably
than Hispanic class members with respect to general treatment and lunch breaks. Disparate
treatment discrimination occurs where an employer intentionally treats a member of a protected
class less favorably than others with respect to the terms and conditions of employment because
of his membership in a protected class. See Ingraham v. Giant Food, Inc., 187 F. Supp. 2d 512,
514-15 n.4 (D. Md. 2002). Under the McDonnell Douglas burden-shifting framework, a plaintiff
DB1/64410110.4
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in a Title VII case relying on indirect evidence establishes a prima facie case of discrimination
by showing the following: (1) she is a member of a protected class; (2) she suffered an adverse
employment action; (3) she was performing her job duties at a level that met her employer's
legitimate expectations at the time of the adverse employment action; and (4) the position
remained open or was filled by similarly qualified applicants outside of the protected class. See
Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004).
If a plaintiff establishes all of the elements required for a prima facie case, the burden
then shifts to the employer, who must produce a legitimate, non-discriminatory reason for its
decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Once the
employer has articulated a legitimate business reason for the decision at issue, any presumption
of discrimination disappears, and the plaintiff then must prove by a preponderance of the
evidence that the alleged reasons proffered by the employer were not its true or real reasons, but
a pretext for discrimination. Reeves, 530 U.S. at 143; St. Mary’s Honor Ctr., 509 U.S. at 515-16.
In other words, a plaintiff must prove that intentional discrimination was the real reason for the
employer’s decision, and that race “‘actually played a role in [the employer’s decision-making]
process and had a determinative influence on the outcome.’” Reeves, 530 U.S. at 141 (internal
quotation omitted); see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.
2005) (applying the McDonnell-Douglas burden shifting framework to Plaintiff EEOC).
2.
The EEOC Cannot Establish That African-American Employees
Were Treated More Favorably Than Hispanic Employees
A plaintiff’s vague claims of differing treatment are insufficient to demonstrate disparate
treatment. See Jackson, 171 F. Supp. 2d at 541 (D. Md. 2001) (citing Causey, 162 F.3d at 801
(recognizing that the plaintiff's conclusory statements of differential treatment of similarly
situated employees, without specific evidentiary support, cannot support an actionable claim for
DB1/64410110.4
19
harassment); Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir. 1994) (holding that general allegation
that a supervisor reprimanded African-American plaintiff publicly but spoke with his white coworkers in private does not establish an actionable claim of harassment without substantiation by
accounts of specific dates, times or circumstances). The EEOC alleges that (1) Hispanic class
members were not allowed to talk during work; (2) non-Hispanic employees were allowed to
take longer breaks; and (3) Hispanic class members were not allowed to sit down while working.
The class members’ allegations of being treated less favorably than African-American
employees is nothing more than vague and conclusory allegations with no record support other
than the mere allegations of Hispanic class members. Moreover, the testimony of other class
members clearly shows that they were not treated differently or more favorably.
Class member Despertt testified that none of the employees were allowed to talk during
work hours, because they “were all so busy it never was much time for chitchat.” Despertt Dep.
96:17-19. Ms. Despertt further testified that Blockbuster was very strict on the time limits to do
certain things. And “[they] weren’t allowed to talk or cohabitate or whatever it is except during
lunch.” Despertt Dep. 96:20-97:1. Ms. Despertt is not a Hispanic employee and her testimony
clearly demonstrates that the work environment was strict and that all employees were unable to
talk during work hours.
The Hispanic class members’ complaints that African-American employees were allowed
to take longer lunch breaks is inconsistent with the testimony of other class members. Ms. Fields
testified that lunch breaks were only 30 minutes long and that she doubts that she ever took a
longer break. Fields Dep. 69:19-20. Although Ms. Despertt testified that some AfricanAmericans employees were allowed to stay at lunch longer, she testified that lunch breaks were
DB1/64410110.4
20
only thirty minutes long and that it was rare that anyone came back from lunch late. Despertt
Dep. 111:10-112:11.
As to sitting down while working, at least one of the Hispanic class members testified
that she, along with other Hispanic employees, was allowed to sit down while working. Class
member Dolores Gonzales testified that “[t]he Latino group, the Latinos, there were three older
ones of us, we could be sitting down when we worked, but the younger ones were not allowed to
sit down.” D. Gonzales Dep. 64:2-5, 74:18-19. This testimony, in combination with testimony
by one of the African-American class members, makes it clear that the ability to sit down while
working had nothing to do with the race and/or national origin of employees. As Ms. Despertt
testified: “Anyone who had any types of problems with their back and couldn't stand or any
physical that they weren't able to stand for a long time, we were allowed to sit. And like I said,
since I had muscle damage to my lower back, I was allowed to sit.” Despertt Dep. 29:11-20.
Despertt further testified that class member Dolores Gonzales and another worker were allowed
to sit. Despertt Dep. 30:1-14. The class members’ allegations are nothing more than vague and
conclusory assertions and cannot stand as evidence of disparate treatment. Accordingly, the
EEOC’s claims that African-American employees were treated more favorably should be
dismissed as a matter of law.
3.
The Work Policies And Alleged Disparity The EEOC Complains
About With Respect To The Hispanic Class Members Are Not
Adverse Employment Actions
Examples of adverse tangible employment action include “discharge, demotion, or
undesirable reassignment.” Faragher, 524 U.S. at 808; Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 765 (1998). Although actions short of termination may constitute adverse employment
action within meaning of Title VII, not everything that makes an employee unhappy is an
actionable adverse action. Settle v. Baltimore County, 34 F. Supp. 2d 969, 989 (4th Cir. 1999).
DB1/64410110.4
21
The work policies and alleged disparity about which the Hispanic class members
complain – not being able to sit down while working, monitoring of their work activity, not
being able to talk while working and allegedly having shorter work breaks – are not adverse
employment actions. See Munday v. Waste Mgmt., Inc., 126 F.3d 239, 243 (4th Cir. 1997)
(noting that “[i]n no case in this circuit have we found an adverse employment action to
encompass a situation where the employer has instructed employees to ignore and spy on an
employee who engaged in a protected activity.”); Settle, 34 F. Supp 2d at 995-996 (holding that
monitoring plaintiffs and lowering their performance appraisals were not adverse employment
actions); Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001) (“[T]erms, conditions, or
benefits of a person's employment do not typically, if ever, include general immunity from the
application of basic employment polices or exemption from ... disciplinary procedures.”).
4.
Ms. Ledesma and Ms. Zubiate Did Not Suffer Adverse Employment
Actions
Class members Ledesma and Zubiate voluntarily resigned their employment and thus did
not suffer an adverse employment action. Ledesma Dep. 35:21-36:5 (testifying that she quit
because L. Gonzales and D. Gonzales were terminated); Zubiate Dep. 22:2-3 (acknowledging
that she quit her employment). Because an actionable retaliation claim requires an adverse
employment action, a cognizable claim does not exist where, as here, the plaintiff voluntarily
resigns. See Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775 (4th Cir. 1997); Shealy v.
Winston, 929 F.2d 1009, 1012-13 (4th Cir. 1991); Evans v. Davie Truckers, Inc., 769 F.2d 1012,
1014 (4th Cir. 1985). “[W]hen an employee voluntarily quits under circumstances insufficient to
amount to a constructive discharge, there has been no ‘adverse employment action.’” Hartsell,
123 F.3d at 775. Accordingly, neither Ms. Ledesma nor Ms. Zubiate suffered an adverse
employment action.
DB1/64410110.4
22
5.
Blockbuster Had a Legitimate Non-Discriminatory Reason For
Discharging Class Members Dolores and Lolita Gonzales
The EEOC claims that Dolores and Lolita Gonzales were discharged because of their
race/national origin and in retaliation for their complaints. Even if the EEOC was able to
establish a prima facie case on these claims, which it cannot, there are legitimate nondiscriminatory reasons for the discharge of the class members.
Blockbuster notified Express that it no longer required the services of Dolores Gonzales
because of her repeated and knowing violations of Blockbuster’s attendance policy. There is no
dispute that Blockbuster notified Express in June 2005 that if Ms. Gonzalez had one more
occurrence related to her attendance at work, Blockbuster would no longer need her services.
See Exhibit R; Cf. Cross v. Bally’s Health & Tennis Corp., 945 F. Supp. 883, 887 (D. Md. 1996)
(finding that plaintiff’s four absences in violation of defendant’s attendance policy constituted a
legitimate, non-discriminatory reason for his discharge). Lolita Gonzales cannot dispute that she
had interpersonal issues with other distribution clerks, including other members of the class, and
was terminated for her failure to maintain a productive working relationship with her coworkers.
See L. Gonzales Dep. 31:16-18; 42:6-13; 43:12-44:9; Exhibit L, April 19 E-mail from C. Brown
to L. Barrett. Notwithstanding the class members’ completely unsupported complaints that one
African-American employee, Takara Martin, was allowed to miss work, the EEOC has failed to
identify any other similarly situated non-Hispanic employees who: (1) repeatedly violated the
company’s attendance policy (2) failed to appear for work as scheduled, and (3) failed to notify
Blockbuster that they would be unable to appear for work, yet were not terminated. Because the
EEOC cannot demonstrate that this legitimate, non-discriminatory reason is pre-textual, its
retaliatory discharge claims must fail as a matter of law.
DB1/64410110.4
23
E.
EEOC CANNOT DEMONSTRATE THAT BLOCKBUSTER EITHER HAS
OR AS A MATTER OF POLICY TOLERATES AN ALL-PERVASIVE
ATMOSPHERE OF GENDER/SEXUAL HARASSMENT IN ITS
WORKPLACE
In order to prove a claim for sexual harassment based on hostile work environment, a
plaintiff must show that (1) the conduct to which she was subjected was unwelcome, (2) the
harassment was based on plaintiff’s sex, (3) the harassment was sufficiently severe or pervasive
to alter the conditions of her employment and create an abusive work environment, and (4) there
is some basis for imposing liability on the employer. See Lack v. Wal-Mart Stores, Inc., 240
F.3d 255, 259 (4th Cir. 2001) (citations omitted) (stating the elements to sustain a sexual
harassment claim based upon a hostile or abusive work environment); Spicer v. Va. Dep’t of
Corr., 66 F.3d 705, 710 (4th Cir. 1995) (stating that to establish a claim for sexual harassment, a
plaintiff must prove that conduct was unwelcome; it was based on sex of plaintiff; it was
sufficiently severe or pervasive to alter plaintiff's conditions of employment and to create
abusive work environment; and it was imputable on some factual basis to employer); EEOC v.
Sunbelt Rentals, Inc., 521 F.3d 306, 313-14 (4th Cir. 2008) (stating that the EEOC must establish
that the evidence viewed in its favor-would allow a reasonable jury to conclude that the
harassment was (1) unwelcome, (2) based on the plaintiffs’ gender or race, (3) sufficiently severe
or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4)
imputable to the employer). The EEOC cannot establish the elements of a hostile work
environment claim based on sex.
1.
The Sexual Harassment Allegations Were Neither Severe Nor
Pervasive
As stated above, the Supreme Court has made clear that the standard for judging hostility
in the workplace is “demanding” in order to “ensure that Title VII does not become a general
civility code.” Faragher, 524 U.S. at 788. It is only “[w]hen the workplace is permeated with
DB1/64410110.4
24
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment” that liability
for an employer can attach. Oncale, 523 U.S. at 78 (quoting Harris, 510 U.S. at 21). Here, the
EEOC cannot satisfy its burden of proving that the work environment at Blockbuster’s
Gaithersburg facility was so permeated with discriminatory acts that it changed the terms and
conditions of the class members’ employment.
Both Dolores Gonzales and Ms. Zubiate testified that no one sexually harassed or
touched them inappropriately. D. Gonzales Dep. 106:4-12; Zubiate Dep. 24:18-25:11. And, as
stated more fully in Section II.C supra, both Dolores Gonzales and Ms. Zubiate were only
subjected to comments that were translated by Lolita Gonzales and Ledesma. D. Gonzales Dep.
26:9-12, 33:8-10, 39:15-40:1, 51:19-21, 53:13-16, 55:9-11, 82:6-9, 85:2-9, 94:14-95:1, 105:4-7,
106:8-12, 133:7-11, 134:1-135:8; Zubiate Dep. 23:11-14, 25:12-15, 26:10-11, 28:5-7, 39:4-13.
Thus, Dolores Gonzales and Ms. Zubiate did not understand or experience any of the comments
that were part of the alleged hostile work environment.
Moreover, most of the class members did not work at the Gaithersburg facility long
enough to be subject to a pervasive environment of harassment, especially given the kinds of acts
that have been asserted as the basis for the pervasive environment of harassment. Ms. Zubiate
worked for only three weeks before she quit. Zubiate Dep. 21:8-13. Ms. Brinson only worked at
Blockbuster for approximately two weeks. See Exhibit X, Venturi/Express Personnel Records
re: Associates who worked at Blockbuster. Ms. Fields worked at the Gaithersburg facility for
less than a month. See Exhibit X. Michelle Ms. Despertt worked at Blockbuster’s facility for a
little over one months. See Exhibit X.
DB1/64410110.4
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Notably, Ms. Ledesma, who quit because Lolita and Dolores Gonzales were terminated,
felt comfortable enough to return to work at the Gaithersburg facility approximately two months
after quitting. See Ledesma Dep. 35:21-36:5; 38:11-17; Exhibit X, Express Personnel Records
re: Associates who worked at Blockbuster. Indeed, this is certainly not an action attributed to a
person who sincerely believes that she has been subjected to an intolerable hostile work
environment.
2.
Liability Should Not Be Imputed To Blockbuster Because The Class
Members Failed To Avail Themselves Of Blockbuster’s Complaint
Procedures
Most of the class members failed to avail themselves of Blockbuster’s anti-discrimination
policies and failed to take advantage of any preventive or corrective measures made available by
Blockbuster. Employees have a duty to report harassment so that an employer may take
remedial action. “A generalized fear of retaliation does not excuse a failure to report sexual
harassment.” Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001). Many
of the class members made their initial complaints to Ms. Brown, an employee of Express, who
is not an agent of Blockbuster. She did not bring the complaints to the attention of Blockbuster
until months later in March 2005, when she informed June Davis of the complaints, who then
alerted Blockbuster. Collen Dep. 48:1-14; Davis Dep. 56:9-17. Not one of the class members
placed a call to Blockbuster’s ethics hotline or submitted complaints to Blockbuster about the
actions of Lincoln Barrett, Thomas Johnson, and/or Kofi Tutu.
Once Blockbuster was made aware of the complaints of the class members in March
2005, Blockbuster promptly undertook investigations and issued disciplinary action under its
progressive discipline policy against the alleged harassers. See Section II.F.2, supra. After
Blockbuster management learned of complaints by some of the class members in May 2005,
Blockbuster immediately began an investigation which continued over the next several weeks,
DB1/64410110.4
26
until relevant and willing witnesses could be interviewed. See Section II.F.3, supra.
Blockbuster conducted a thorough investigation and took steps to correct the actions of Thomas
Johnson by issuing him a reprimand for his behavior. See Section II.F.3, supra. Blockbuster
also reprimanded Lincoln Barrett for his failure to properly supervise Mr. Johnson. See Section
II.F.3, supra. No problems with the work environment were reported between May 2005
and August 2005. When incidents occurred in August, Blockbuster again thoroughly
investigated and interviewed and solicited information from class members, and took appropriate
disciplinary and corrective action by terminating both Mr. Johnson and Mr. Barrett. See Section
II.F.5, supra. Based on the thorough investigations and steps taken by Blockbuster in
accordance with its progressive discipline policy, liability cannot be imputed to Blockbuster.
3.
EEOC’S Constructive Discharge Claims
The EEOC has alleged that female employees were constructively discharged because
they were subjected to a hostile work environment. A plaintiff alleging constructive discharge
must prove two elements: (1) deliberateness of the employer's action, and (2) intolerability of the
working conditions. Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985); see also
see also Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993). “Intolerability of working
conditions ... is assessed by the objective standard of whether a ‘reasonable person’ in the
employee's position would have felt compelled to resign.... An employee is protected from a
calculated effort to pressure him into resignation through the imposition of unreasonably harsh
conditions, in excess of those faced by his co-workers. She is not, however, guaranteed a
working environment free of stress.” Bristow, 770 F.2d at 1255.
None of the facts offered by EEOC rise to the level of objective intolerability sufficient to
prove an adverse employment action through constructive discharge. As explained more fully
above, Lolita and Dolores Gonzales were terminated for interpersonal conflicts with other
DB1/64410110.4
27
employees and failure to adhere to attendance standards set by Blockbuster. Ms. Brinson, Ms.
Zubiate, and Ms. Ledesma voluntarily resigned their employment. Ms. Ledesma was not
constructively discharge because she did not quit as the result of an allegedly intolerable work
environment, rather she testified that she quit because Lolita and Dolores Gonzales were
terminated. Ledesma Dep. 35:21-36:5. Ms. Zubiate claims that she quit because of the way she
was treated, because Johnson smacked a rolled up newspaper or piece of cardboard in his hands,
shouted out, and walked around “like a military officer.” Zubiate Dep. 22:10-15. Zubiate
acknowledges that she did not understand the allegedly hostile comments that were made and
that those comments had to be translated for her. Zubiate Dep. 22:2-23:4. The translation she
received stated that Johnson told the employees to “get to work.” Id. Even if Johnson allegedly
performed these acts, they do not rise to the level of objective intolerability sufficient to prove an
adverse employment action. Similarly, Ms. Brinson resigned voluntarily. See Brinson Dep.
17:2-9.
F.
EEOC IS NOT ENTITLED TO RECOVER PUNITIVE DAMAGES
Even if this Court finds that EEOC’s claims withstand summary judgment, Blockbuster is
entitled to summary judgment on the EEOC’s claims for punitive damages. Interpreting 42
U.S.C. 1981a, the Supreme Court has held that “[t]he terms ‘malice’ or ‘reckless indifference’
pertain to the employer's knowledge that it may be acting in violation of federal law, not its
awareness that it is engaging in discrimination.” Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535
(1999). Accordingly, the Court held that “an employer must at least discriminate in the face of a
perceived risk that its actions will violate federal law to be liable in punitive damages.” Id. at
536. Punitive damages are “an extraordinary remedy” and “not every lawsuit under section 1981
calls for submission of this extraordinary remedy to a jury.” Stephens v. S. Atl. Canners, Inc.,
848 F.2d 484, 489-90 (4th Cir. 1988). The Fourth Circuit has held that distributing an antiDB1/64410110.4
28
harassment policy and conducting training seminars “preclude the award of punitive damages.”
Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 549 (4th Cir. 2003).
The EEOC has not presented any evidence that Blockbuster acted with malice or reckless
indifference toward the class members. Even if the EEOC could show that the managers and
supervisory personnel at Blockbuster’s Gaithersburg facility acted in such a manner, Blockbuster
should not be subject to punitive damages because it took good faith efforts to comply with Title
VII by distributing an anti-harassment policy to employees and providing multiple avenues in
which an allegedly aggrieved employee could notify Blockbuster of her complaints. Fitzgerald
Dep. 117:6-11. An employer may not be vicariously liable for the discriminatory employment
decisions of managerial agents where these decisions are contrary to the employer's good-faith
efforts to comply with Title VII. See Kolstad, 527 U.S. at 545 (internal quotation marks and
citation omitted). Here, Blockbuster made a good faith effort to comply with Title VII in a
number of ways. Blockbuster has an anti-harassment policy in place that prohibits
discrimination against employees or applicants for employment based on race, sex, religion,
national origin, age, disability, or any other category protected by law. See Collen Dep. 17:2318:2. Blockbuster’s EEO Policy is distributed to all Blockbuster employees at the
commencement of their employment, including warehouse managers and warehouse group
leaders. See Fitzgerald Dep. 30:7-15; Francis Dep. 88:13-18; Collen Dep. 110:11-111:3. In
addition to Blockbuster’s EEO Policy, Blockbuster has an ethics hotline in place that any worker
can call to report harassing or discriminatory conduct anonymously. Fitzgerald Dep. 117:6-11.
Notices of Blockbuster’s EEO Policy and its Ethics Hotlines were posted on bulletin boards in
the break room of the Gaithersburg facility. Fitzgerald Dep. 117:6-11. The EEOC is not entitled
to the punitive damages they seek, and their claim should be dismissed as a matter of law.
DB1/64410110.4
29
G.
The EEOC CANNOT ESTABLISH THAT BLOCKBUSTER FAILED TO
MAINTAIN RECORDS
In its Amended Complaint, the EEOC alleges that Blockbuster failed to preserve records,
investigation files, and various personnel and employment records that Blockbuster should have
kept in violation of Title VII and the EEOC’s regulations. Under Title VII, employers are
required to “make and keep such records relevant to the determinations of whether unlawful
employment practices have been or are being committed.” 42 U.S.C. § 2000e-8(c). The EEOC's
record keeping regulations require that employers retain applications and other documents
related to hiring for a period of one year. 29 C.F.R. § 1602.14. Additionally, if a charge of
discrimination has been filed, an employer is required to retain all relevant personnel records
until the final disposition of the charge. Id.
Here, the class members were employed by Express Personnel, a temporary services
agency, which was operating as a subcontractor to Venturi and they were not Blockbuster
employees. Davis Dep. 64:20-65:6; Brown Dep. 53:4-21. Express interviewed and hired the
class members and kept the applications and other personnel records related to the employment
of the class members. Brown Dep. 34:14-19. Express was also responsible for EEO orientation
and investigation of discrimination complaints. Brown Dep. 43:7-20; Brown Dep. 44:18-45:3.
Accordingly, Blockbuster does not have any applications, resumes, or personnel files for that
relate to the class members. As to employment records relevant to whether an unlawful
employment action has been committed, Blockbuster provided all of the non-privileged
documentation it had about its investigations of discrimination to the EEOC during discovery.
DB1/64410110.4
30
Because Blockbuster was not the employer and had no duty to create records for the temporary
employees, the EEOC’s 709(c) claim must fail.1
IV.
CONCLUSION
For all the reasons discussed above, Blockbuster respectfully requests that this Court
grant Blockbuster’s Motion for Summary Judgment, and dismiss the EEOC’s claims in their
entirety.
Respectfully Submitted,
/s/ Grace E. Speights
Morgan, Lewis and Bockius, LLP
Grace E. Speights (Bar No. 05524)
gspeights@morganlewis.com
Chaka A. Keiller (Bar No. 17748)
ckeiller@morganlewis.com
1111 Pennsylvania Ave. N.W.
Washington, D.C. 20004
Telephone: 202.739.3000
Facsimile: 202.739.3001
1
The EEOC is not entitled to damages on its 709(c) claim. See E.E.O.C. v. Autozone, Inc., No. CV-06-1767PCT-PGR, 2008 WL 4280174, at *1 (D. Ariz. Sept. 15, 2008) (holding that EEOC is not entitled to damages
on 709(c) claim; Lombard v. MCI Telecomms. Corp., 13 F. Supp. 2d 621, 627-28 (N.D. Ohio 1998) (holding
that an employee may not sue an employer for damages as a result of the employer's failure to maintain records
as required by 29 C.F.R. § 1602.14.)
DB1/64410110.4
31
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served, via ECF, a copy of the foregoing on the 8th day of
March 2010 on the following counsel:
Debra Michele Lawrence
U.S. Equal Employment Opportunity Commission
City Crescent Building
10 South Howard St. Third Floor
Baltimore, MD 21201
1-410-209-2734
Fax: 1-410-962-4270
Jacqueline H. McNair
U.S. Equal Employment Opportunity Commission
801 Market Street, Penthouse Ste 1300
Philadelphia, PA 19107
1-215-440-2666
Fax: 1-215-440-2674
Ronald L. Phillips
U.S. Equal Employment Opportunity Commission
City Crescent Building
10 South Howard St. Third Floor
Baltimore, MD 21201
1-410-209-2737
Fax: 1-410-962-4270
Counsel for Plaintiff Equal Employment Opportunity Commission
/s/ Chaka A. Keiller
Chaka A. Keiller
DB1/64410110.4
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