Jarvis v. Enterprise Fleet Services and Leasing Company

Filing 202

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 03/17/2010. (km, Chambers) (c/m to Plaintiff 3/17/10 km)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DEREK JARVIS v. ENTERPRISE FLEET SERVICES AND LEASING COMPANY : : : : : Civil Action No. DKC 07-3385

MEMORANDUM OPINION Presently pending and ready for resolution in this

employment discrimination action are: (1) a motion for default judgment filed by Plaintiff Derek Jarvis (paper 94), (2)

Plaintiff's motion for judgment on the pleadings (paper 147), (3) Plaintiff's motion for reconsideration of an order awarding attorneys' fees and costs in favor of Defendant Enterprise Fleet Services and Leasing Company (paper 177), (4) Defendant's motion for summary judgment (paper 190), (5) Plaintiff's cross-motion for summary judgment (paper 192), (6) Defendant's motion for sanctions (paper 111), and (7) Defendant's motion for prefiling injunction (paper 169). The issues are fully briefed and the

court now rules pursuant to Local Rule 105.6, no hearing being deemed motions necessary. for For the reasons that follow, on the be Plaintiff's pleadings, denied;

default and

judgment, summary

judgment judgment

reconsideration,

will

Defendant's motion for summary judgment will be granted, and its motions for sanctions and prefiling injunction will be denied. I. Background A. Factual Background

The following facts are uncontroverted, unless otherwise indicated. Plaintiff Derek Jarvis, an African-American male,

was hired as a part-time driver in the "Fleet Services" division of Defendant Enterprise Leasing Company ("Enterprise") on June 27, 2000. He held the same position until he was discharged on Throughout Plaintiff's employment, Enterprise

April 19, 2007.

was a Maryland corporation engaged in the business of renting, leasing, and selling automobiles; the Fleet Services division leased and managed cars for companies that maintained corporate fleets. 1 As a Fleet Services driver, Plaintiff's duties included

delivering vehicles to customers, picking up and dropping off vehicles at service stations, driving "chase" vehicles to return other drivers to Enterprise, and having vehicles inspected. Plaintiff was initially paid at a rate of seven dollars per hour. Over the course of his employment, he received four

separate fifty-cent raises ­ on July 27, 2002, March 18, 2003, Enterprise has since undergone a corporate reorganization in which it was re-named Enterprise RAC Company of Maryland, LLC. It is now a Delaware limited liability company and a wholly-owned subsidiary of Enterprise Holdings, Inc., a Missouri corporation. Its former Fleet Services division is now known as Fleet Management. 2
1

May 24, 2004, and June 1, 2006 ­ ultimately resulting in a wage of nine dollars per hour. hired, Enterprise hired The same summer that Plaintiff was other part-time Fleet Services

three

drivers, two of whom were Caucasian and started at the same pay rate as Plaintiff. The third driver was African-American and

received an initial pay rate of seven dollars and fifty-cents per hour. As of March 2006, Fleet were Services employed

approximately

thirteen

drivers:

three

African-American, All of these

nine were Caucasian, and one was Asian-American.

drivers worked on a part-time basis and their hourly wage ranged from $7.50 to $9.25. From April 2002 until the date of his

discharge, Plaintiff was paid at either the highest or second highest rate of any other Fleet Services driver and generally was assigned the same or more number of hours per week. Throughout policies and and Plaintiff's procedures employment, prohibiting These Enterprise race policies maintained

discrimination, were updated

harassment,

retaliation.

annually and all employees were required to acknowledge their receipt of these updates in writing. When complaints arose in

the workplace, Enterprise implemented a procedure by which a supervisor would first investigate the complaint, then meet with the parties involved to discuss his or her findings and take corrective action. These steps were typically memorialized by 3

written memoranda referring to the relevant policies implicated, which both the employees and supervisor signed and dated. memoranda, written complaints were and responses, by and These other in

investigatory

documents

maintained

Enterprise

employee personnel files. Plaintiff's personnel file reflects that a large number of complaints were lodged by or against him during his tenure at Enterprise. Many of these related to petty disputes between Among these was complained that an

Plaintiff and Caucasian Fleet Services drivers. a February 2001 incident was in which Plaintiff with

driver

Erwin

DeHaven

"abusive

language"

during

argument with a vendor employee and was "belligerent" toward Plaintiff when he "tried to defuse the situation." Ex. 7 at ENT2003). and In a response, written Enterprise memorandum (Paper 190, conducted to an

investigation

issued

Plaintiff

advising of its finding that he had also "used inappropriate language towards Mr. DeHaven in front of [a vendor's] customers and employees" during the same incident. Both men were counseled and reminded (Id. at ENT2040-41). of relevant company

policies.

Several months later, Plaintiff filed a complaint

alleging that another driver, Robert Lomax, said to him during an argument, "just get in the car, boy." The ensuing investigation revealed 4 that (Id. at ENT2080-82). Plaintiff had used

inappropriate language and threatened physical harm to Mr. Lomax during that incident. 2002, Plaintiff who was Again, both men were counseled. involved said in to another "you incident people In July with are Mr.

DeHaven,

allegedly

him,

always

slow," "I don't like working around you people," and "I'm not used to working around black people." DeHaven denied making those statements. (Id. at ENT2095). Mr.

By his account, during

an argument regarding a work assignment, Plaintiff accused him of "being a racist" and "threatened to `flatten' [him] then and there." memoranda. A number of complaints were filed by Fleet Services drivers related to Plaintiff's allegedly wreckless driving and (Id. at ENT2093). Both men were issued counseling

insistence on playing offensive radio programming while other drivers were in the car. at ENT1303). (Paper 190, Ex. 7 at ENT2040-41; Ex. 8

Other drivers complained that Plaintiff engaged in

personal pursuits, such as dining and shopping, while on company time. (Paper 190, Ex. 5 at ¶¶ 15, 24; Ex. 9 at ¶ 5). In July

2001, driver Stephen Peck filed a complaint indicating that he was having difficulty working with Plaintiff due in part to Plaintiff repeatedly stating his intent to sue Enterprise and obtain a money judgment, as he had succeeded in doing against

5

other companies in the past.

(Paper 190, Ex. 7 at ENT2083-85). 2

Other drivers and outside business associates later made similar reports. Plaintiff was also involved in a number of conflicts with third-party contact. vendors On or and customers October 1, with 2002, whom he he came a into

about

filed

written

complaint stating that a mechanic at "Shady Grove Texaco," a service station with which Enterprise conducted business,

threatened "to run [him] over if [he] didn't move," and said "something else that sounded derogatory tho[ugh] [Plaintiff] In September a corporate had made

couldn't make it out exactly." 2004, a female representative to

(Id. at ENT2160). of "T. that Furr,"

customer,

complained

Enterprise

Plaintiff

suggestive comments about her appearance. the incident, Plaintiff claimed that he

When questioned about was being "unfairly

singled out" and expressed his desire to have no more contact with the customer. (Id. at ENT2199). On November 30, 2006,

Plaintiff was involved in an incident with a Maryland State Police
2

Officer

at

a

Department

of

Motor

Vehicles

("DMV")

It bears mention that during the pendency of this lawsuit Plaintiff concomitantly prosecuted four other law suits against businesses in this court alone. See Jarvis v. FedEx Office & Print Servs., Inc. (DKC-08-1694); Jarvis, et al. v. Grady Management, Inc. (PJM-09-0280); Jarvis v. Geico Insurance Co. (RWT-09-2638); and Jarvis v. Staples, Inc. (PJM-10-0244). The record references a number of other suits that are apparently pending in other courts. 6

location in Glen Burnie, Maryland.

He subsequently filed a

written complaint with the Maryland Department of Motor Vehicles claiming that the officer became "hostile and belligerent" when Plaintiff asked him why he served a "Hispanic customer" ahead of Plaintiff, adding that the "Corporal's conduct made me feel he had racist motives." Plaintiff accused an (Id. at ENT2514-15). employee of "Trick In February 2007, Trucks," another

corporate customer, of making a "homosexual comment" toward him when the employee jokingly referred to Plaintiff, who was

delivering a check, as "the check fairy." ¶ 40). Again, with respect to these

(Paper 190, Ex. 5 at complaints involving an it

outside

business and

associates, took steps

Enterprise to address

conducted the issues

investigation

identified, which included limiting Plaintiff's contact with the businesses about which he complained. Plaintiff was additionally cited by Enterprise for a number of incidents of In general April misconduct he was over the on course of his for

employment.

2001,

placed

probation

violating Enterprise's cell phone policy by charging $215.63 in personal phone calls. (Id. at ENT2078-79). In April 2002, he

was counseled for improperly expensing lunches to Enterprise. (Paper 190, Ex. 5 at ¶ 13). In October 2002, he received

counseling related to an incident in which he failed to report 7

ripping the hose from a gas pump at a service station. 190, Ex. 8 at ENT1307). supervisor, Gene Lippa,

(Paper

In November 2006, Plaintiff's direct approached Plaintiff regarding his

apparent failure to clock out immediately after completing his shift, to which Plaintiff responded by asking, "Who put you up to this?" (Paper 190, Ex. 7 at ENT2539-40). these issues, reviews Plaintiff for much received of the generally he was

Despite favorable

performance

time

employed by Enterprise. performance ratings of

From 2001 to 2005, he received overall "meets requirements" and positive

comments from his supervisors, who identified Plaintiff as a "`go to' guy when things need to get done," and cited "positive feedback from several customers" related to his work. 192, Ex. 4). about In his these reviews, Plaintiff with Mr. also Lippa, (Paper

commented whom he

positively

relationship

identified as "fair and easy to work with" and an "excellent supervisor." (Id.).

Among the earliest complaints of racially-motivated conduct made by Plaintiff occurred in October 2004 when Plaintiff

advised Mr. Lippa that his vehicle had been vandalized in the Enterprise parking lot the day before, indicating his suspicion "that maybe an employee at Enterprise, possibly one of the

drivers, singled him out because of not liking him personally or 8

due

to

racism." request,

(Paper Mr.

190, Lippa

Ex.

7

at

ENT2202). the vehicle

Upon and

Plaintiff's

inspected

reported finding only "a small paint chip that could have come from a rock hitting it." Nevertheless, he advised Plaintiff

that "if he felt that he was being targeted by someone from Enterprise, he should take this matter to our Human Resources Department." (Id.). to Plaintiff declined to do so, however. by 2005, Plaintiff had made a

According

Enterprise,

number of requests that he not be assigned to work with various drivers, customers, and business associates with whom he had conflicts. Mr. Lippa responded by modifying Plaintiff's job so that he could work alone, primarily by

responsibilities

completing assignments at local DMV locations.

Plaintiff was

also permitted to report to work at a later time than drivers in the regular rotation. the early going. This arrangement appeared to work well in

Starting in or around 2006, however, Plaintiff

registered a number of complaints regarding his work assignments at DMV locations and refused to accept any assignment at the District of Columbia DMV. At around the same time, Enterprise developed concerns

about Plaintiff's work efficiency, as supervisors observed that he often took longer than expected to complete tasks in the field. Specifically, they noted 9 that when Plaintiff was

assigned a DMV-related task in Virginia, he regularly bypassed the nearest DMV location and travelled instead to the Fair Oaks Mall DMV, in mall. Fairfax, In Virginia, June 2006, which while was located inside a

shopping

Plaintiff's

regular

supervisor, Mr. Lippa, was away on vacation, Traffic Supervisor Melanie Reynard She assumed became responsibility concerned when, for on making two driver

assignments.

consecutive

days, Plaintiff took longer than expected to complete tasks at the Fair Oaks Mall DMV. She met with Plaintiff the following

day, along with Tag and Title Supervisor Gabe Kelly, to discuss the issue. After Plaintiff provided an explanation for the

delays, Mr. Kelly and Ms. Reynard assigned him a task at a DMV location in Sterling, Virginia, specifically instructing him not to go to the Fair Oaks Mall location. adjourned, but before leaving for the After this meeting was assignment, Plaintiff

returned to Mr. Kelly's office and alleged that he was being "singled out" due to racism. threatened Company to sue and (Paper 190 at Ex. 10, ¶ 8). claiming as a he would "take When He the the

Enterprise, "own

down"

Enterprise"

result.

supervisors attempted to assure Plaintiff that their concerns were merely about efficiency, loudly, Plaintiff is became increasingly (Id.).

agitated,

stating

"this

bullshit."

Thereafter, he proceeded to the Fair Oaks Mall DMV, as he had 10

been explicitly instructed not to do. 12; Ex. 10 at ¶ 10).

(Paper 190, Ex. 9 at ¶

The following week, Plaintiff had another conflict with Ms. Reynard. She assigned him a task to complete at a DMV location

in Frederick, Maryland, but upon his return, he submitted a DMV document that appeared to have been stamped by the DMV office in Glen Burnie. Ms. Reynard suspected that Plaintiff had again

disregarded her instructions, and Plaintiff grew indignant when she confronted him. mistaken. Ms. Reynard later learned that she was

(Paper 190, Ex. 9 at ¶¶ 14-15). of Plaintiff's allegations of workplace

Because

discrimination, Human Resources Manager Megan Trimm was notified and Enterprise's procedures for investigating such claims were invoked. On June 28, 2006, Plaintiff met with Ms. Trimm, Ms.

Reynard, and Fleet Services Controller Matt Dowd to discuss the recent issues related to his conduct, as well as his

discrimination claims.

During this meeting, Plaintiff produced

a six-page letter alleging that he was being "targeted" and "harassed," and threatening "that a lawsuit would be filed if this pattern continued." (Paper 190, Ex. 7 at ENT2232-37). (Paper 190,

Plaintiff was placed on a paid two-day suspension.

11

Ex. 13, at ENT10281). 3

The following Monday, when Plaintiff was

to report back to work, he advised that he would not work that day because Mr. Lippa would again be away and he refused to be managed by Ms. Reynard and Mr. Kelly. Plaintiff to take a third day of paid leave. Enterprise permitted (Id. at ENT2265).

Thereafter, Plaintiff began submitting a long succession of letters to Enterprise alleging race discrimination, harassment, and repeatedly threatening to file a lawsuit unless Enterprise met certain demands, such as providing him with a company

vehicle and a gas card.

On July 7, 2006, Ms. Trimm met with

Plaintiff to discuss her investigation into the issues he raised during the prior meeting, as well as those raised in his

subsequent letters.

Plaintiff responded with a letter disputing

Mr. Kelly's account of their prior encounter, characterizing it as "[a]nother feeble and misguided attempt by Mr. Kelly[] to put me in a negative light." He further alleged that Ms. Reynard

had attempted to "[s]abotage" him by accusing him of going to the Glen Burnie rather than Frederick DMV location. 7, ENT2352-53). On July 11, he submitted (Id. at Ex. letter

another

contending that Ms. Trimm had subjected him to a "grueling" interview,
3

raising

new

allegations

of

harassment

by

certain

This was the action that constituted the basis of Plaintiff's initial administrative complaint. Enterprise asserts that this was neither a suspension nor an adverse employment action. 12

third-party

vendors,

and

offering

to

work

as

a

"[l]ia[i]son In a letter

between H.R. and minorities."

(Id. at ENT2394-97).

dated July 17, Plaintiff complained that his work hours had been reduced since the investigation of his complaints began and

stated a number of demands, including a fifty thousand dollar salary as compensation for "[d]iscrimination, [h]arassment and [b]ias," "a (6) figure amount[] [i]n [d]amages," a company

vehicle, and a gas card.

(Id. at ENT2407-08).

On the same date, Ms. Trimm issued a written memorandum describing the steps she took to investigate Plaintiff's

complaints, indicating that she found no evidence of harassment or discrimination. complaint (Id. at ENT2400-02). reduced work With hours, regard she to

Plaintiff's

about

cited

records reflecting that he was the only Fleet Services driver scheduled to work five days per week during that time period and that he had been assigned more hours than many other drivers. Plaintiff responded with a letter alleging that Ms. Trimm's

investigation was "biased" (id. at ENT2415-19), and followed-up with another letter reiterating his desire to work in the Human Resources letter, Department Plaintiff (id. at ENT2420-2425). that Ms. Trimm In a July 31 a

alleged

displayed

"[c]ondescending, [d]emeaning attitude," that he felt as if he had "walked [i]n on a KKK [m]eeting, [i]nstead of a meeting in 13

the

H.R.

Office,"

and

restated

his

demands

for

a

lucrative

settlement.

(Id. at ENT2436-39).

On July 24, 2006, Mr. Lippa conducted Plaintiff's annual performance review, which indicated that Plaintiff "required

improvement" in "[k]eep[ing] management informed of progress" and "[a]ccept[ing] verbal and written instructions." Plaintiff again received an overall assessment of Although "meets

requirements," this review included comments such as "[y]ou have recently shown and resistance "[y]ou to inquiries displayed regarding an your

productivity,"

recently

unwarranted

outburst in the workplace after being asked questions about your productivity." (Paper 192, Ex. 10 at ENT1086-87). Plaintiff

refused to sign the review and subsequently submitted a written response alleging that it was the product of "[d]ark [s]ources within Corporate who [w]ish[] to [d]estroy [him]." Ex. 7 at ENT2426-29). At around this time, due to Plaintiff's allegations against his immediate supervisors and Ms. Trimm, upper management (Paper 190,

personnel at Fleet Services became involved in investigating his claims. On August 4, 2006, Fleet Services Vice President Scott

Lease and Group Human Resources Manager Kristina Stuber met with Plaintiff to discuss his allegations. Stuber memorialized Plaintiff's During this meeting, Ms. and afterward sent

remarks 14

Plaintiff a memorandum assuring that she would investigate the issues he raised during the meeting. letter asserting widespread Plaintiff responded with a of racism throughout

allegations

Enterprise. dated October

(Id. at ENT2441-45). 4, 2006, Ms. Stuber

In a detailed memorandum responded to each of the

concerns raised by Plaintiff, advised him of the steps she took to investigate, and informed him that she was unable to find any evidence that he had been the victim of discrimination or

harassment.

(Id. at ENT2491-2500).

Plaintiff responded with an

eleven-page letter addressed to the Montgomery County Office of Human Rights ­ which, by this time, was investigating his first administrative complaint ­ alleging, inter alia, that Ms. Stuber told him she did not think the term "boy" was offensive and that Ms. Trimm was a "Slave-Driver" who "didn't care for [b]lack [p]eople." (Id. at ENT2516-26).

Meanwhile, Ms. Stuber's investigation into Plaintiff's most recent allegations was ongoing. Upon reviewing Plaintiff's time

records and Mr. Lippa's investigations of Plaintiff's complaints regarding third-party business associates, she again found no evidence suggesting that Plaintiff had been the victim of

discrimination.

Nevertheless, on December 6, 2006, Enterprise

sent a memorandum to more than one hundred fifty Fleet Services vendors, customers, and partners reiterating its "commitment to 15

conducting

business

professionally

and

ensuring

all

persons

equal treatment without regard to any protected characteristics, such as race, and asking that they do the same." 59; Ex. 8 at ENT2543). On writing or to about January 4, 2007, by Ms. Stuber in responded his in (Paper 190, ¶

allegations

raised

Plaintiff

initial

administrative complaint, advising him of Enterprise's position that it took appropriate steps to investigate his claims. This

memorandum further advised that because the investigation found no evidence that an employee or third-party business associate had engaged in unlawful conduct, Plaintiff would be returned to the regular driver rotation. 4 (Paper 190, Ex. 7 at ENT2544-46).

Plaintiff responded the next day with a letter claiming that Ms. Stuber's investigation was "trivial and false," asserting his intent to file a lawsuit against third-party vendors,

reiterating that he would sue Enterprise if a settlement was not reached, and stating that he was no longer willing to discuss his complaint with Enterprise and would not sign any documents Enterprise presented, as he anticipated litigation. ENT2547-49).
4

(Id. at

During a meeting with Mr. Lippa on the same day,

Enterprise asserts that it had been contemplating returning Plaintiff to the regular driver rotation for some time, as it had become increasingly difficult to find assignments that Plaintiff was willing to perform without decreasing his assigned hours. Plaintiff deems this action a demotion. 16

Plaintiff

expressed

his

objection

to

being

returned

to

the

regular driver rotation and advised that he was unwilling to report to work at the earlier starting time required for that job. letter (Id. at ENT2552). alleging that Mr. Several days later, Plaintiff sent a Lippa was "devising a scheme" to

terminate Plaintiff's employment and had "exhibited . . . racial animus" toward African-American men. On from Lippa January 12, that 2007, (Id. at ENT2553-55). received another letter by as Mr. his

Enterprise

Plaintiff and

concomitantly a at desire to

alleged

harassment working

expressed (Id.

continue

"assistant."

ENT2556-59).

Plaintiff

additionally

complained that "[m]any of the driver[]s refused to work with [him]," advised that he had "personal and professional

commitments that would make it extremely difficult" to arrive at work before 9:00 a.m., and requested that he be permitted to report to either (Id.). presenting "the Ms. Stuber Stuber or Paul McKenzie, by another dated either

supervisor. January 19, to

Ms.

responded, with the and

letter of

Plaintiff

option task

returning

regular

scheduling

assignment

rotation as other drivers," thereby receiving "at least the same number of hours per week," or continuing to work with Mr. Lippa, as he had been doing, for fewer hours per week. (Id. at 2568).

On January 19, 2007, Plaintiff responded by accusing Ms. Stuber 17

of "targeting" him, characterizing the options she presented as "pressure tactic[]s." (Id. at ENT2570-74).

On January 23, 2007, Ms. Stuber and Mr. Lippa met with Plaintiff to address his latest allegations. During this

meeting, Plaintiff "raised his hand in Mr. Lippa's face several times when Mr. Lippa tried to speak, saying he did not want to hear anything Mr. Lippa had to say." 38). (Paper 190, Ex. 5 at ¶

The following day, Ms. Stuber issued a formal reprimand to (Id. at Stuber of

Plaintiff related to his conduct toward Mr. Lippa. ENT2578-79). Plaintiff responded by accusing Ms.

racial discrimination, stating that he "no longer want[ed] to discuss these [i]ssue[]s" with her. In a memorandum dated March (Id. at ENT2581-86). 5, 2007, Ms. Stuber again

reprimanded Plaintiff, this time for disclosing to other drivers confidential pay information that he had obtained as a result of the administrative proceeding. This memorandum further stated

that several drivers had registered complaints about Plaintiff repeatedly stating his intent to "sue Enterprise and collect a large sum of money." (Paper 190, ¶ 71; Ex. 7 at ENT2597-98).

The next day, during a meeting with Mr. Lippa and Ms. Reynard, Plaintiff became agitated, used profanity, and stormed out.

(Paper 190, Ex. 5 at ¶ 42; Ex. 9 at ¶ 27).

18

On

March

13,

2007,

Ms.

Stuber

received

a

letter

from

Plaintiff asserting that the drivers who complained about him had fabricated their reports and outlining a series of incidents with drivers, which he claimed reflected racial bias. ENT2600-06; Ex. 2 at ¶ 35). (Id. at

During a meeting the following day,

Plaintiff told Ms. Stuber that an employee named "Kahn" at a service station in Tysons Corner, Virginia, had told him "to `watch his back' because the other drivers hated him and he feared for his safety." subsequently (Paper 190, Ex. 2 at ¶ 35). "Kahn," who denied Ms. Stuber those

interviewed

making

comments, but advised that Plaintiff had repeatedly told him about his plans to sue Enterprise. (Id. at ENT2631-32).

Around this time, Enterprise issued its policy manual for the 2007 calendar year, which contained an acknowledgment form that all employees were required to sign. sign the form. subsequently Plaintiff refused to Mr. Lease that he

(Paper 190, Ex. 3 at ENT2620). a memorandum informing

issued

Plaintiff

would be suspended if he did not return the executed form by a certain date. (Paper 190, Ex. 7 at ENT2616). Plaintiff

complied only after Enterprise demonstrated that he had signed the same form on a number of occasions over the course of his employment. (Paper 190, Ex. 2 at ¶ 34).

19

In

March

2007,

an

incident

occurred

in

which

Plaintiff

picked up a vehicle from a customer and delivered it to an Enterprise lot, noting in an assignment log that the customer had given him two sets of keys, but turning in only one set to Enterprise. When another employee found this vehicle idling in

the lot with the second set of keys in the ignition, Ms. Reynard questioned Plaintiff, who responded by alleging that she was attempting to "set him up." (Paper 190, Ex. 9 at ¶ 28).

Plaintiff followed-up with a March 23 letter in which he claimed that Mr. Lippa and Ms. Reynard were racists (paper 190, Ex. 7 at ENT2624-26); a March 28 letter alleging that Ms. Reynard was attempting to "sabotage" him by having another driver take the keys and start the vehicle (id. at ENT2628-30); and an April 13 letter certain stating Fleet that he was no longer because willing they to were work with

Services

drivers

"plotting

against [him]" (id. at ENT2668-69). On April 17, 2007, Ms. Stuber, Mr. Lease, Ms. Reynard, and Mr. Lippa met to discuss the findings of Ms. Stuber's latest investigation meeting, the of Plaintiff's was various made to complaints. terminate At this

decision

Plaintiff's

employment. 2007.

Plaintiff was discharged by Enterprise on April 19,

(Paper 190, Ex. 7 at ENT2679-81).

20

B.

Procedural Background

On August 15, 2006, Plaintiff filed a complaint of alleged discrimination in employment with the Montgomery County Office of Human Rights ("MCOHR"), citing as its bases racial

discrimination and retaliation. 04).

(Paper 190, Ex. 13 at ENT10003-

On July 10, 2007, MCOHR issued a determination finding no

reasonable grounds to believe that a violation of Montgomery County Code, Chapter 27, Article I, § 27-19 had occurred,

summarizing its factual findings as follows: In brief, the facts show the Complainant wanted a raise to $10.00 an hour, he wanted to work alone with limited exposure to coworkers, he wanted to choose his supervisor and his own schedule, and he wanted to be able to refuse work assignments having to deal with parties he did not like. Investigation disclosed that in settings in which someone raised a concern about the Complainant or if he was displeased with someone, he would assert discrimination. However, he has provided no evidence to support any of his allegations. (Id. at ENT10293). 5 This complaint was cross-filed with the

United States Equal Employment Opportunity Commission ("EEOC"),
5

The decision notes that Plaintiff submitted a total of seventeen "statements" to MCOHR: "Throughout these statements, [Plaintiff] asserted and re-asserted allegations against [Enterprise's] Fleet Services Division Management, [its] business partners and third party vendors, his co-workers, and finally the mediator, the [MC]OHR, and the [MC]OHR Investigator." (Paper 190, Ex. 13 at ENT10287). Plaintiff "accused the mediator [assigned by MCOHR] of being unethical, the [MC]OHR unprofessional, [and] the [MC]OHR Investigator 21

which advised Plaintiff of his right to sue on September 26, 2007. (Paper 1, Ex. 1). While Plaintiff's initial complaint was pending, he filed a second administrative complaint, this time with the Maryland

Commission on Human Rights ("Maryland Commission"), reiterating his prior claims and and alleging further including incidents his of race in

discrimination April 2007.

retaliation,

termination

(Paper 190, Ex. 14 at ENT11003).

In a written

finding dated April 23, 2008, the Maryland Commission determined there was no probable had cause to (Id. believe at that unlawful This

discrimination

occurred.

ENT11363-64). 6

complaint was also cross-filed with the EEOC, which issued a second right to sue letter on June 24, 2008. On December 19, 2007, while his (Paper 82, Ex. A). administrative

second

complaint was pending, Plaintiff, proceeding pro se, filed a complaint in this court alleging that Enterprise discriminated against against him him on the basis of race to and unlawfully complaints retaliated of racial

in

response

his

biased for not conducting the investigation into his complaint allegations in a way he suggested." (Id. at ENT10288). He additionally filed a complaint with the Maryland Bar against the MCOHR mediator. (Paper 190, Ex. 4 at 331-36). At his deposition, Plaintiff claimed that the Maryland Commission's investigation was "bogus and falsified," and acknowledged that he had recently sent the Commission a letter threatening to file a suit seeking "millions" in damages if a settlement was not offered. (Paper 190, Ex. 4 at 364). 22
6

discrimination in the workplace in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). (Paper 1). On February 13, 2009, upon obtaining

leave from the court and with Enterprise's consent as to certain claims, Plaintiff filed a third amended complaint raising claims of retaliatory discharge and harassment in violation of Title VII and Md. Code Ann. Art. 49B, § 42, retaliation under Title VII, negligent training and supervision, and defamation. 82). II. Plaintiff's Motions for Default Judgment The discovery process in this case, unfortunately, has been highly part contentious to and unnecessarily filing from of prolonged, repetitive rulings. that due in large and these has (Paper

Plaintiff's appeals to

motions Many of

interlocutory filings relate

adverse

Plaintiff's

perception

Enterprise

tampered with certain documents it produced in response to his requests for production withheld of documents critical and to that it has his

impermissibly claims.

others

prosecuting

Plaintiff now moves for entry of a default judgment as (Paper 94). have Because been

a sanction for this alleged misconduct. this motion is based on arguments

that

already

considered and rejected, it cannot prevail.

23

On March 31, 2008, Plaintiff filed a motion for sanctions alleging spoliation of documents produced by Enterprise in

connection with the prior administrative proceedings. 22).

(Paper

That motion was followed, on April 14, by a second motion

for sanctions in which Plaintiff cited additional evidence of spoliation. (Paper 30). On April 24, Plaintiff filed a motion

to compel discovery, asserting that Enterprise had failed to respond to his numerous discovery requests. (Paper 31). On the

same date, Enterprise moved for a protective order, arguing, inter alia, that Plaintiff's discovery requests were unduly

burdensome and not in compliance with Fed.R.Civ.P. 33(a)(1) and Local Rule 104(1). (Paper 32). On May 29, Plaintiff filed a Magistrate Judge Day, to

second motion to compel.

(Paper 43).

whom the case was referred for discovery and scheduling, held a hearing on all of these motions, among others, on June 5, 2008, and subsequently issued an order denying Plaintiff's motions and granting in part Enterprise's motion for protective order.

(Paper 49). On October 14, 2008, Plaintiff filed yet another motion to compel discovery, arguing that Enterprise's responses to his

discovery requests were "evasive and incomplete." 1).

(Paper 67 at

After holding a telephone conference in an unsuccessful

attempt to resolve this dispute, Judge Day issued a letter order 24

on February 17, 2009, denying Plaintiff's motion. In that order, Judge Day "praise[d] Defendant's

(Paper 84). efforts to

comply with its discovery obligations," characterizing them as "extensive and reasonable." expressed concern as to (Id. at 2). the By contrast, the court for Plaintiff's

"foundations

Motion," adding that if not for Plaintiff's pro se status, he would "quite easily be faced with a significant sanction of attorney's fees having failed in his effort to compel discovery in areas in which he is already in receipt of huge swaths of information of only marginal relevance." (Id.). Plaintiff

moved for reconsideration of this order (paper 86), but before that motion could be decided, he filed the first of six

interlocutory appeals in this case (paper 91). 7
7

The Fourth Circuit dismissed this appeal, along with three others consolidated with it, on August 4, 2009. (Paper 171). After the appellate court's mandate took effect, Judge Day denied Plaintiff's motion for reconsideration. (Paper 182). Notably, Plaintiff has alleged bias and/or judicial misconduct on the part of both the undersigned and Judge Day within this proceeding. On June 11, 2009, he filed a motion for recusal alleging "an inference of bias and prejudice against this Plaintiff" because he had another case pending before this court. (Paper 120, at 1). The court denied that motion and Plaintiff appealed. (Papers 125, 128). On June 22, 2009, Plaintiff moved for Judge Day to recuse himself. (Paper 136). That motion was also denied and Plaintiff again appealed. (Papers 159, 164). On or about February 3, 2010, this court received correspondence from Plaintiff alleging, inter alia, that Judge Day "has continuously engaged in harassment against me," and that he "appears to be engaged in a `witch hunt' . . . [and] have a personal vendetta against me." Plaintiff requests that the undersigned, as the court's chief judge, reassign 25

While his appellate challenge was pending, Plaintiff filed the instant motion seeking entry of a default judgment against Enterprise as a sanction for its alleged failure to "provide material and probative evidence." (Paper 94 at 1). Plaintiff

contends that Enterprise's failure to produce the documents that were the subject of one or more of his prior motions to compel "authorizes the court to impose `[a] judgment of [d]efault

against the disobedient party,'" under Fed.R.Civ.P. 37(c)(1). (Id. at 4). Federal Rule of Civil Procedure 37(c)(1) provides: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Rule 37(b)(2)(A)(vi), in turn, authorizes entry of a default judgment as a sanction. This is, however, "a harsh remedy to be

used only in extreme situations, and then only when a court another judge. improper. This ex parte request, however, is procedurally 26

finds willfulness, bad faith, or any fault by the non-compliant litigant." Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302

(2nd Cir. 2009). In the instant case, on at least two prior occasions, Judge Day has expressly found no fault on the part of Enterprise with respect to its responses to Plaintiff's discovery requests.

Indeed, it is Plaintiff's requests that have been determined to be "overbroad and unreasonable." documents multiple at issue of in this (Paper 84, at 5). have been the a The same subject of

motion a

rounds

briefing,

motions

hearing,

telephone The same and

conference, a motion to reconsider, and an appeal. arguments raised by Plaintiff here have been

considered

rejected before. Accordingly, denied.

The same result, therefore, will also obtain. motion for default judgment will be

Plaintiff's

III. Plaintiff's Motion for Judgment on the Pleadings Like his motion for default judgment, Plaintiff's motion for judgment on the pleadings (paper 147) is grounded in his unyielding discovery argument belief that Enterprise While and the has failed of to meet its

obligations. in this

nuances

Plaintiff's are often

rambling

repetitive

motion

difficult to discern, the gravamen is that Enterprise "[is] and [has] been hiding and concealing material and probative evidence 27

in violation of Rule 26(a), and for that simple reason judgment should be granted in favor of this Plaintiff as a matter of law [u]nder Rule 12(c)." (Id. at 2). Just as he argued in the

prior motion that he was entitled to entry of a default judgment as a sanction for this perceived misconduct, he contends here that he is "entitled to judgment on the pleadings as a sanction for the spoliation of evidence." (Id.). For many of the same

reasons as his motion for default judgment, this motion will also fail. Federal Rule of Civil Procedure 12(c) provides that

"[a]fter the pleadings are closed ­ but early enough not to delay trial ­ a party may move for judgment on the pleadings." Such motions are governed by the same standard governing motions to dismiss for failure to state a claim under Fed.R.Civ.P.

12(b)(6).

Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 A court may grant judgment on beyond doubt that the

F.3d 401, 405-06 (4th Cir. 2002). the pleadings "only if it

appears

nonmoving party cannot prove any facts that would support his or her claim for relief, after it has accepted all well-pleaded allegations in the pleading as true, and drawn all reasonable inferences in favor of the nonmoving party." 2 Moore's Federal Practice, § 16.05 (3d ed. 2001).

28

Insofar as Plaintiff seeks relief under Fed.R.Civ.P. 12(c) as a sanction he for has the alleged to spoliation cite any of evidence by

Enterprise,

failed

legal

authority

establishing that such relief is available under that rule, nor could he. In fact, the case law he does cite with respect to

this issue, e.g., Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001), addresses the imposition of sanctions for spoliation of evidence under Fed.R.Civ.P. 37(b)(2). Thus, this

motion largely seeks to relitigate the same issues raised by Plaintiff in his motion for default judgment, which itself

sought to rehash issues decided in prior discovery rulings. The motion further asserts that "[t]here are no material facts in dispute" `smoking in gun' this case and [that] that Enterprise has "cannot already

dispute

evidence

Plaintiff

provided the court in the form of exhibit(s) in the pleadings." (Paper 147, at 3). The exhibits attached to Plaintiff's third

amended complaint, however, are far from outcome determinative. They include a number of performance reviews, as well as a

notice of benefit determination in which the Maryland Department of Labor, Licensing and Regulation has been ("DLLR") to found show that any

"[i]nsufficient

evidence

presented

misconduct in connection with the work." Plaintiff's performance reviews 29 may be

(Paper 82, Ex. B). read to reflect

Enterprise's increasing dissatisfaction with the quality of his work starting in or around 2006. 2006 review was the result of According to Plaintiff, the retaliation by Enterprise

management in response to his reports of discrimination in the workplace. Moreover, An alternative view, however, is clearly plausible. the finding by DLLR that there was insufficient

evidence of Plaintiff's misconduct is a far cry from a finding that Enterprise discriminated against him on the basis of race and retaliated against him for engaging in protected conduct. "Factual findings made in state unemployment claim proceedings receive no preclusive effect in actions brought under federal statutes despite involving the same operative facts." Pettis v.

House of Ruth Md., Inc., 144 Fed.Appx. 313, 315 (4th Cir. 2005) (unpublished) (citing Ross v. Communications Satellite Corp.,

759 F.2d 355, 360 (4th Cir. 1985), abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)); Univ. of Tennessee v. Elliott, 478 U.S. 788, 794 see also (1986).

Nevertheless, as the pleadings make clear, there are factual findings by other state administrative agencies ­ i.e., the

MCOHR and Maryland Commission ­ that are clearly adverse to Plaintiff's claims.

30

In sum, Plaintiff has failed by a wide margin to meet his burden with respect to this motion. Accordingly, his motion for

judgment on the pleadings will be denied. IV. Plaintiff's Motion for Reconsideration Plaintiff has moved for reconsideration of an order issued by Judge Day on August 19, 2009 (paper 174), awarding fees and costs associated with a prior motion to compel discovery filed by Enterprise. (Paper 177). While the motion is labeled as one

for reconsideration, in substance, Plaintiff seeks this court's review of Judge Day's order, asking that it be set aside. construed, Plaintiff's motion will be denied. On October 29, 2008, in accordance with Local Rule So

104.8(a), Enterprise served upon Plaintiff a motion to compel discovery, seeking supplemental answers to interrogatories and requests for production of documents. Plaintiff did not agree

to provide the information sought in the motion, nor did he serve a memorandum in opposition within fourteen days, as

required by Local Rule 104.8(c).

(Paper 151, at 1).

In three

subsequent letters to Plaintiff, Enterprise addressed the issues raised in its motion to compel, but Plaintiff persisted in his refusal to provide additional discovery responses. Ex. 3). (Paper 95,

On April 8, 2009, Enterprise filed a document entitled Regarding Discovery 31 Conference Related to

"Certificate

Defendant's

Motion and

to

Compel for

Plaintiff's Production of

Answers

to

Interrogatories

Requests

Documents," (Paper 95).

attaching thereto its motion to compel discovery.

On the same date, Enterprise filed a separate motion to compel deposition and for sanctions, citing its repeated, unsuccessful attempts to take Plaintiff's deposition and seeking an order compelling Plaintiff to appear for deposition and an award of attorney's (Paper fees associated Plaintiff with the filing of of the motion. motions,

97).

opposed

both

these

characterizing Enterprise's attempts to procure his deposition and supplemental discovery responses as harassment. (Paper

106). At a June 19, 2009, hearing on these motions, Judge Day orally granted the motion to compel to discovery submit an responses affidavit and in

directed

counsel

for

Enterprise

support of an award of costs and fees incurred in connection with its motion. thereafter, (Papers 131, 132; Paper 151, ¶ 4). 8 submitted an affidavit Shortly an

Enterprise

requesting

award of fees and costs of $2,319.14.

(Paper 151).

Plaintiff

filed papers opposing the award on July 6, 2009.

(Paper 155).

On August 19, 2009, Judge Day issued a letter order awarding
8

The court also granted in part Enterprise's motion to compel deposition, ordering that the deposition take place on July 17, 2009. (Paper 132). That order is not at issue here. 32

attorney's

fees

to

Enterprise

in

the

amount

of

$2,112.89.

(Paper 174).

Two days later, Plaintiff filed the motion for

reconsideration and to vacate Judge Day's order, which the court now considers. (Paper 177).

Under 28 U.S.C. § 636(b)(1)(A), non-dispositive pretrial matters may be referred to a magistrate judge for hearing and determination. A district judge may modify or set aside any

portion of a magistrate judge's non-dispositive ruling "where it has been shown that the magistrate judge's order is clearly erroneous 72(a). or Under contrary the to law." Id.; see also Fed.R.Civ.P. the reviewing

clearly

erroneous

standard,

court is not to ask whether the finding is the best or only conclusion permissible based on the evidence. Nor is it to

substitute its own conclusions for that of the magistrate judge. See Tri-Star Airlines, Inc. v. Willis Careen Corp., 75 F.Supp.2d 835, 839 (W.D.Tenn. 1999). to determine whether the Rather, the court is only required magistrate judge's Id. findings are

reasonable and supported by the evidence.

"It is not the

function of objections to discovery rulings to allow wholesale relitigation of issues resolved by the magistrate judge."

Buchanan v. Consol. Stores Corp., 206 F.R.D. 123, 124 (D.Md. 2002).

33

In his motion, Plaintiff states that he "has no idea why he was sanctioned by Magistrate [J]udge Day, as Magistrate Day made inconsistent statements with respect to an award of fee[]s and sanctions against him." explains, "Magistrate (Paper 177, at 2). Day stated that "Initially," he would be

Plaintiff

sanctioned because he did not file a response to Defendant[']s Motion to Compel Interrogatories, which was not the case," but "later stated that Plaintiff would be sanctioned for `dragging defendants into court.'" conclusory fashion that (Id.). Judge Day In sum, Plaintiff argues in "abused his discretion by

making inconsistent statements in awarding sanctions and applied incorrect legal standards." (Id. at 3).

Judge Day's order makes clear, however, that he awarded attorney's fees and costs pursuant to Fed.R.Civ.P. 37(a)(5),

which provides, in relevant part, that if a motion to compel discovery is granted, absent certain mitigating factors, "the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . to pay the movant's reasonable expenses incurred in making the

motion, including attorney's fees." (emphasis added). this point,

Fed.R.Civ.P. 37(a)(5)(A)

Plaintiff has failed altogether to address it is plainly was stated amply in the order. by the

although Judge

Nevertheless,

Day's

ruling

supported

34

record and was not clearly erroneous. Enterprise supplemental information made numerous good

The record reflects that attempts Plaintiff and to obtain

faith from

discovery that was

responses clearly

regarding that when

discoverable,

Plaintiff repeatedly refused to cooperate, Enterprise was left with no other 95). of recourse than to file not but its motion to the that compel. court's he is

(Paper

Plaintiff fees and

does costs,

challenge asserts

calculation

"unemployed and indigent, and has no ability to pay sanctions," a fact of which "the Magistrate judge was well awar[e] before issuing this erroneous and biased order," and further suggests that the order was issued by Judge Day in retaliation for

Plaintiff filing a motion for his recusal.

(Paper 177, at 7).

There is no support in the record for these bare and conclusory allegations. The court discerns no error of fact or law, nor an

abuse of discretion in the magistrate judge's award of fees and costs. Accordingly, Plaintiff's motion for reconsideration will

be denied and judgment will be entered in favor of Enterprise in the amount of $2,112.89. V. Motions for Summary Judgment A. Standard of Review

It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any 35

material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly

exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate.

Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979). The moving party

bears the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of

S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972 (1993). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. Inc., 369 U.S. 654, 655 See United States v. Diebold, Gill v. Rollins Protective

(1962);

Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985).

A party who

bears the burden of proof on a particular claim must factually support each element of his or her claim. of proof concerning an essential 36 "[A] complete failure . . . necessarily

element

renders all other facts immaterial." 323.

Celotex Corp., 477 U.S. at

Thus, on those issues on which the nonmoving party will

have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a

genuine issue for trial. Corp., 477 U.S. at

See Anderson, 477 U.S. at 256; Celotex However, "[a] mere scintilla of

324.

evidence in support of the nonmovant's position will not defeat a motion for summary judgment." Detrick v. Panalpina, Inc., 108

F .3d 529, 536 (4th Cir. 1997), cert. denied, 522 U.S. 810 (1997). There must be "sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." at 249-50 (citations omitted). The inquiry involved on a summary judgment motion Anderson, 477 U.S.

"necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits." 477 U.S. at 252. Anderson,

Where the movant also bears the burden of

proof on the claims at trial, it "must do more than put the issue into genuine doubt; indeed, [it] must remove genuine doubt from the issue altogether." Hoover Color Corp. v. Bayer Corp.,

199 F.3d 160, 164 (4th Cir. 1999) (internal quotation omitted), 37

cert. denied, 530 U.S. 1204 (2000); see also Proctor v. Prince George's Hosp. Ctr., 32 F.Supp.2d 820, 822 (D.Md. 1998)

(evidentiary showing by movant "must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party") (internal quotation and italics omitted). Summary judgment will not be appropriate unless the movant's evidence supporting the motion "demonstrate[s] an absence of a genuine dispute as to every fact material to each element of the movant's claim and the non-movant's response fails to raise a genuine issue of material fact as to any one element." v. Robinson, 126 F.Supp.2d 394, 400 (D.Md. 2000) McIntyre (internal

citations omitted).

Finally, in reviewing the instant motion,

the court must remain mindful of Plaintiff's pro se status and the fact that pleadings filed by such litigants are generally held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972), reh'g

denied, 405 U.S. 948 (1972). B. Analysis

Several preliminary issues must be addressed with respect to the motion papers before the court. First, although

Plaintiff has labeled his papers as a cross-motion for summary judgment, in substance, they merely oppose Enterprise's motion

38

and cannot be construed otherwise.

Thus, Plaintiff's cross-

motion for summary judgment will be denied. It also must be noted that there is considerable disparity in the quality of the evidence submitted by the parties. Enterprise has presented voluminous records, While

deposition

excerpts, and a number of declarations of relevant witnesses in support of its claims, Plaintiff relies principally upon his own "affidavits." respects. These "affidavits" are problematic in several

Initially, they are unsworn and do not include the

language required by 28 U.S.C. § 1746 for unsworn declarations. "An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath." Farm Bureau Mut. Auto Ins. Co. v. Hammer, 83 F.Supp.

383, 386 (D.W.D.), rev'd. on other grounds, 177 F.2d 793 (4th Cir. 1949). Affidavits are admissible in summary judgment

proceedings only if "they are made under penalties of perjury," and "unsworn documents purporting to be affidavits may be

rejected."

Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985)

(citing 28 U.S.C. § 1746; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 n.16 (1970)); see also Solis v. Prince George's County, 153 F.Supp.2d 793, 798 (D.Md. 2001) ("[u]nsworn statements do not qualify as affidavits and are not considered by the Court when ruling on a motion for summary judgment"). Furthermore, 39

Plaintiff's purported affidavits largely, if not exclusively, assert conclusory allegations that are unsupported by any other evidence. Federal Rule of Civil Procedure 56(e)(1) provides, in

relevant part, that "[a] supporting or opposing affidavit must be made on personal knowledge, set out in facts that would be admissible in evidence." motion, moreover, is A party opposing a summary judgment not permitted to "rely merely on

allegations or denials in its own pleading; rather, its response must ­ by affidavits or as otherwise provided in this rule ­ set out specific facts 56(e)(2). in showing Here, of a genuine issue has not for trial." a

Fed.R.Civ.P. proper

Plaintiff his

provided

affidavit

support

opposition

papers.

See

Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989) (bald allegations of discrimination are insufficient to counter substantial evidence of legitimate, non-discriminatory reasons for adverse employment action). Consequently, he has offered

little to rebut the substantial evidence presented by Enterprise in support of its motion. 9

The remaining documents provided by Plaintiff consist largely of personnel records for various Enterprise employees, which Plaintiff has grouped together and improperly labeled as the "declarations" of these employees. He has also failed to explain the relevance of many of his exhibits and, in many cases, it is unclear how they support the proposition for which they appear to be cited. 40

9

1.

Retaliation (Counts I and III)

In the first count of his third amended complaint, labeled "Retaliatory Discharge," Plaintiff alleges that his termination "was motivated by Enterprise'[s] desire to retaliate against him for his having filed a charge of discrimination against

Enterprise, in August 2006," in violation of Title VII and Md. Code, Art. 49B. 10 (Paper 82, at 18). This count further

alleges, however, that Enterprise's "discriminatory and abusive acts against [him], including suspension without cause . . . constitute [u]nlawful retaliation." (Id. at 19). The third

count of the complaint, labeled "Retaliation," appears to be duplicative of the first. third counts as alleging The court construes the first and that Enterprise retaliated against

Plaintiff for engaging in protected conduct by terminating his employment, in August 2007, and by suspending him with pay for two days, in June 2006.

Plaintiff was granted leave, in part, to amend his complaint to add counts alleging violations of Md. Code Ann., Art. 49B, § 42. (Paper 80). While he generally cites Article 49B under two counts of his third amended complaint, omitting the relevant section, his motion papers present no analysis of his claims under this provision. Nevertheless, the analysis is substantially similar to that under Title VII. See Haas v. Lockheed Martin Corp., 396 Md. 469, 482 n.8 (2007) ("Title VII is the federal analog to Art. 49B of the Maryland Code"). 41

10

a.

Retaliatory Discharge

Enterprise contends that it is entitled to summary judgment on this claim because Plaintiff cannot establish a prima facie case of retaliatory discharge and, even if he could, he cannot establish that Enterprise's justification for terminating his employment was pretext for discrimination. In opposing,

Plaintiff appears to argue that the timing of his termination alone, approximately eight months after he filed his first

administrative complaint with the MCOHR, is sufficient to defeat Enterprise's motion. In Plaintiff discharge order must by to (Paper 192, at 47). survive a summary prima judgment facie case a on of this claim,

establish

retaliatory jury

offering

evidence

from

which

reasonable

could find that (1) he engaged in a protected activity, (2) his employer took adverse employment action against him, and (3) a causal connection existed between the protected activity and the adverse action. See Hopkins v. Baltimore Gas & Electric Co., 77

F.3d 745, 754 (4th Cir.), cert. denied, 519 U.S. 818 (1996). Once Plaintiff establishes a prima facie case, the burden shifts to Enterprise to offer for evidence the of a legitimate, action, nonsee

discriminatory

reason

adverse

employment

Williams, 871 F.2d at 457, after which the burden shifts back to Plaintiff to produce evidence that Enterprise's proffered reason 42

was a pretext for intentional discrimination, see Anderson v. G.D.C., Inc., 281 F.3d 452, 458 (4th Cir. 2002). Plaintiff has arguably made out a prima facie case of

retaliatory discharge.

The filing of his complaint with MCOHR

was clearly a protected activity; his discharge was an adverse employment action; and the "temporal proximity" between these two events may be sufficient to establish a causal nexus. Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994). See

However, "mere

knowledge on the part of an employer that an employee . . . has filed a discrimination to counter charge is not sufficient evidence of evidence of

retaliation

substantial

legitimate

reasons" for the adverse employment action. at 457. clear

Williams, 871 F.2d

Plaintiff has proffered no evidence to contradict the in the for record that his Enterprise's employment nonwere

demonstration

discriminatory legitimate.

reasons

terminating

In an April 18, 2007, memorandum advising Plaintiff of its decision to discontinue his employment, Enterprise cited

Plaintiff's unwillingness to comport himself "in a manner that is conducive to a positive, productive working relationship" as its reason for discharging him, identifying the following six areas of general concern: 1. You regularly have failed to respond in a positive or constructive manner to 43

questioning or feedback and have demonstrated ongoing insubordinate conduct toward management. . . . 2. 3. You have demonstrated an inability to get along with your co-workers. . . . You have engaged in a persistent pattern of accusing anyone who does not agree with you of racism where there are no facts to establish that race was an issue. . . . You have shown an ongoing unwillingness to follow management directives or take on the same work responsibilities as other drivers. . . . You have repeatedly bad-mouthed and disparaged Enterprise and Enterprise management to co-workers and outside vendors. . . . [and] You have lodged complaints that have no factual basis. Ex. 7 at ENT2679-81). Within these areas, the

4.

5.

6. (Paper 190,

memorandum provided a number of specific examples.

In support

of its motion for summary judgment, moreover, Enterprise has provided extensive documentation of these examples. In Khoury v. Meserve, 268 F.Supp.2d 600, 615 (D.Md. 2003), this court considered similar factual circumstances: Plaintiff's only "evidence" that Defendant's reason for terminating her was a pretext for intentional discrimination is her insistence that the reason Defendant stated was wrongi.e., that Plaintiff did not make false statements, etc. There is no evidence, however, that Defendant's reason was not the 44

real reason, i.e., that the agency did not believe that Plaintiff lied when it terminated her employment. This court's task is not to sit, in this context, as a super personnel agency. It is not enough for Plaintiff to allege pretext based on her own view of the truth; in order to rebut Defendant's non-discriminatory reason, Plaintiff's task is to proffer evidence showing that Defendant's stated reason was not the real reason for its actions. Plaintiff has proffered no such evidence and Defendant's motion for summary judgment will therefore be granted. The instant plaintiff, like the plaintiff in Khoury, has failed to proffer any that evidence his aside from his own conclusory reasons for See

allegations

former

employer's

stated

terminating his employment were pretext for discrimination.

Nichols v. Comcast Cablevision of Md., 84 F.Supp.2d 642, 651 (D.Md. 2000) ("bald allegations" are "insufficient to counter substantial evidence of legitimate, non-discriminatory reasons for adverse employment action") (citing Williams, 871 F.2d at 456). Accordingly, summary judgment as to this claim will be

granted in favor of Enterprise. b. Retaliatory Suspension

Plaintiff also asserts that Enterprise retaliated against him in response to his initial complaint of racial

discrimination by suspending him with pay for two days in June 2006. As noted, Enterprise denies that this was a suspension,

asserting that Plaintiff was merely placed on two days of paid 45

leave to allow Ms. Trimm time to investigate his allegations. Even if it was a suspension, Enterprise argues, it was not a "materially adverse" employment action sufficient to form the basis of a prima facie case of retaliation. The court agrees.

In Grice v. Baltimore County, Md., Civ. No. JFM 07-1701, 2008 WL 4849322, *7-8 (D.Md. Nov. 5, 2008), Judge Motz

considered a similar issue: Defendant argues that a suspension with pay cannot constitute an adverse employment action. The Supreme Court recently explained that the standard for showing an adverse employment action in the retaliation context is less strenuous than in the substantive discrimination context. See Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Nonetheless, the Court emphasized that the action must produce a material consequence for the employee, as opposed to "trivial harms." Id. at 68. The "plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. Several courts, including some postBurlington Northern, have held that "a suspension with pay pending a prompt investigation into allegations of wrongdoing does not constitute an adverse employment action." Solomon v. Phila. Newspapers, Inc., No. 05-05326, 2008 U.S. Dist. LEXIS 41978, at *49, 2008 WL 2221856 (E.D.Pa. May 21, 2008); see also Scott v. Metro. Health Corp., 234 Fed. Appx. 341, 349 (6th Cir. 2007) (finding that placing an employee on paid administrative leave was 46

not a materially adverse employment action for purposes of a retaliation claim); Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 891-92 (8th Cir. 2005) (concluding that a suspension with pay and benefits for eighty-nine days did not constitute an adverse action for retaliation purposes); Helmi v. Solvay Pharms., Inc., No. 5:05-CV36, 2006 U.S. Dist. LEXIS 84562, at -40, 2006 WL 3392758 (W.D.Mich. Nov. 21, 2006) (finding that a two-day suspension with pay did not constitute an adverse employment action for retaliation purposes). Grice's February 2007 paid leave was such a suspension. Grice was put on paid leave in "an effort to defuse the situation until [Grice's supervisor, Keith Dorsey, Deputy Director of Budget & Finance] had had an oppor