Bacchhus v. Southeastern Mechanical Services, Inc.
Filing
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MEMORANDUM OPINION. Signed by Judge Roger W Titus on 07/20/2011. (elts, Deputy Clerk) (c/m 7/21/11)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRIAN BACCHUS,
Plaintiff,
v.
SOUTHEASTERN MECHANICAL
SERVICES, INC.,
Defendant.
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Case No.: RWT 10cv1684
MEMORANDUM OPINION
Defendant Southeastern Mechanical Services, Inc. (“SMS”) moves for summary
judgment as to the entirety of Plaintiff Brian Bacchus’s (“Bacchus”) Complaint. For the reasons
set forth below, the Court will grant SMS’s motion.
FACTS
Bacchus, an African-American male, alleges that SMS discriminated against him on the
basis of his race when SMS did not select him for a vacant welder position for which he applied.
Bacchus and SMS relate two very different stories regarding the events surrounding Bacchus’s
application for the welder position. The following provides a brief background of the parties
involved and details the disputed events surrounding Bacchus’s application to be hired as a
welder by SMS.
SMS is a general and mechanical construction and maintenance contractor headquartered
in St. Petersburg, Florida. Def.’s Mot. for Summ. J., Ex. 1, Decl. of Greg Farley, at ¶ 3. SMS
provides services to companies involved in the electric, waste-to-energy, food process, biomass,
and pulp and paper industries. Id. SMS employees work throughout the country at various job
sites on an as-needed basis. Id. at ¶¶ 4-5.
In the spring of 2009, SMS contracted with the Mirant Dickerson power plant in
Dickerson, Maryland to complete a project that involved the replacement of tubes for large
capacity boilers (“Dickerson Project”). Id. at ¶ 13.
To complete the Dickerson Project, SMS
sought to hire additional pipe and tube welders. Id.
SMS required that all welding applicants take a two-part skills test to be eligible for hire.
Id. at ¶¶ 14-15. The first part of the test, known as the “heavy wall weld test” (“weld test”), was
performed by each applicant individually. Id. at ¶ 17. An applicant needed to pass this first part
of the test to be eligible for a pipe welder position; eligibility for a tube welder position required
the successful completion of both parts of the two-part test. Id.
To pass the weld test, an applicant had to successfully weld together two pieces of metal,
called coupons, within three hours. Def.’s Mot. for Summ. J., Ex. 10, Decl. of Daniel Horst, at ¶
5; Ex. 12, Myers Dep. 38:15-16. The applicant’s welded piece was then inspected by the quality
control inspector and/or the project superintendent to determine whether the applicant possessed
the requisite welding skills for the Dickerson Project. Id., Ex. 10 at ¶ 5.
In March of 2009, Theodore Grange, Bacchus’s cousin, was told by Donald Williams, Jr.,
one of SMS’s employees, that SMS was hiring for welder positions. Id., Ex. 16, Decl. of Donald
Williams, Jr., at ¶ 7. Williams also recommended Grange to Steve Brickhouse, the night shift
superintendent for the Dickerson Project. Id., Ex. 11, Decl. of Steve Brickhouse, at ¶ 4. Grange
then told Bacchus about the vacant welder positions, and on March 30, 2009, the two traveled to
the Dickerson Project job site to apply. Id., Ex. 4, Bacchus Dep. 287:20-25, 288:1-4. Bacchus
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was subsequently paid per diem for his time at the plant. Id., Ex. 8, Decl. of Russell Davidson, at
¶ 11.
At this point, the parties’ renditions of the facts diverge. Bacchus claims that he went to
the Dickerson Project site on March 30, 2009 to apply for a welder position, but an SMS
representative instructed him to return the next day to take the welding test because the person
administering the test was not available that day. Pl’s Compl. ¶ 5, ECF No. 1. Bacchus further
asserts that Andy Myers, SMS’s quality control inspector, told him that he could practice for four
hours on SMS’s welding equipment if he wished. Id. ¶ 6. Bacchus claims he did so, and then
returned the next day expecting to take the welding test. Id. ¶ 8. According to Bacchus, he filled
out the employment application and was then informed by Myers that he had failed the welding
test. Id. ¶¶ 8, 10. Myers refused to allow him to take the test and Bacchus was escorted out of
the plant. Id. ¶ 10. Bacchus further asserts that two white males were permitted to take the test
with materials that were easier to weld than the materials that he had practiced with the day
before. Id. ¶ 9. Bacchus also claims that Brickhouse, the night shift superintendent, referred to
him as a “nigger.” Id. ¶ 14.
SMS denies that these events took place and asserts that Myers gave Bacchus the welding
test on March 30th, along with Grange and four other candidates. Def.’s Mot. for Summ. J., Ex.
12, Myers Dep. 34:1-8. Before the test began, Myers gave Bacchus pieces of scrap metal with
which to set up and adjust his welding gun. Id. at 37:3-8. Myers asserts that he had to assist
Bacchus with setting up the welding gun. Id. at 47:6-25. Myers then passed out the testing
coupons and the test began at about 9:00 p.m. Id. at 43:5-8. Three hours later, when the time
allotted for the test was up, Bacchus and Grange said they thought they were “still practicing.”
Id. at 53:3-13. Myers told them that the test had started three hours ago and instructed them to
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complete the test. Id. at 53:10-13. Around 3:00 a.m., Brickhouse instructed Bacchus and
Grange to hurry up and finish their tests. Id. at 56:16-23. Grange admits he heard Brickhouse
say this, Def.’s Mot. for Summ. J., Ex. 15, Grange Dep. 88:15-17, though Bacchus claims he did
not hear these instructions, id., Ex. 4, Bacchus Dep. 126:1-25.
Bacchus continued to work on his test coupons until 6:00 a.m. Id., Ex. 12, Myers Dep.
59:1-8. At that point, Myers brought Bacchus’s test coupons to Brian Jenkins, the day shift
quality control supervisor, to perform the final visual inspection. Id., Ex. 9, Jenkins Dep. 12:2225, 13:1-9. Jenkins determined that Bacchus’s unfinished coupon demonstrated that he did not
have the requisite skills to perform the boiler welding that the Dickerson Project required. Id. at
9:20-25, 10:1-4. It is undisputed that when Bacchus finished the weld test, he had yet to
complete a single weld and had been welding for much longer than the allotted three hours.1 Id.,
Ex. 4, Bacchus Dep. 127:9-16.
Jenkins testified that he did not know Bacchus’s race when he evaluated his coupons. Id.,
Ex. 9, Jenkins Dep. 13:10-19. Bacchus has not disputed this claim and agrees that he had no
contact with Jenkins throughout his application process. Id., Ex. 4, Bacchus Dep. 128:4-24.
Contrary to the allegations in his Complaint, Bacchus admitted at his deposition that he has no
personal knowledge or other evidence that any white applicant took an easier test than he did on
March 31st.
Id. at 228:6-10, 238:5-239:23.
He also conceded that, notwithstanding the
averment in paragraph 14 of his Complaint, he did not hear any racist words spoken while at
SMS’s job site. Id. at 388:1-15.
The undisputed facts show that Bacchus twice misrepresented his welding experience.
First, on his employment application, Bacchus wrote that he had completed a two-year welding
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Bacchus claims his coupons were 80% complete, Ex. 4, Bacchus Dep. 127:9-16, and Myers believed they were 4050% complete, Ex. 5, Myers Dep. 58:24-59:10.
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certificate program at the Tulsa Welding School. See Pl.’s Application for Employment, Def.’s
Mot. for Summ. J., Ex. 23. However, Bacchus’s transcript from that school reveals that he did
not move beyond the fifth phase of the program because he twice failed “Basic Pipe Welding.”
Tulsa Welding School Transcript, Def.’s Mot. for Summ. J., Ex 19. According to an experienced
SMS welder, Bacchus could not be expected to pass the first-round weld test because the four
courses that he completed did not cover the type of welding that the Dickerson Project required.
Id., Ex. 14, Story Dep. 27:23-25, 28:1-9.
Second, in his deposition, Bacchus claimed that his last welding job was with a company
called PDI.2 Id., Ex. 4, Bacchus Dep. 7:1-25. However, employment records show that Bacchus
actually worked as an inventory supervisor. Def.’s Mot. for Summ. J., Ex. 21.
Bacchus
produced no documentation of any welding experience during discovery. Id., Ex. 22.
Bacchus filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) on June 25, 2009. Compl. ¶ 21. Based on the information collected during its own
investigation, the EEOC was unable to conclude that any Title VII violation occurred in
connection with Bacchus’s application for employment with SMS. EEOC Dismissal and Notice
of Rights, ECF No. 1, Ex. 1. Bacchus received a right to sue letter of Match 26, 2010. Id.
PROCEDURAL HISTORY
Bacchus, proceeding pro se, filed the instant Complaint against SMS on June 23, 2010
alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”).
Compl. ¶ 1, ECF No. 1. Bacchus seeks three million dollars in damages. Id. at 4. On August
10, 2010, the Court issued a Scheduling Order requiring that discovery be completed by
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Bacchus identifies his previous employer as “PDI,” but the relevant employment records indicate that the name of
the employer in question is actually “Mystic Display. See Def.’s Mot. for Summ. J., Ex. 21.
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December 23, 2010 and setting January 24, 2011 as the deadline for dispositive pretrial motions.
See Scheduling Order 1-2, ECF No. 6.
On December 27, 2010, Bacchus filed a Motion for Appointment of Counsel. ECF No.
31. The Court denied Bacchus’s motion, determining that the issues at hand were not unduly
complex and that Bacchus failed to demonstrate any exceptional circumstances that would
warrant the appointment of counsel. See Bacchus v. Se. Mech. Servs., 2011 U.S. Dist. LEXIS
11901, at *1 (D. Md. Feb. 8, 2011). The Court further noted that though Bacchus is proceeding
in forma pauperis, he had at one point been able to afford an attorney and had retained counsel
who later withdrew.3 See id. at *2. Third, Bacchus’s Complaint showed that he was able to
articulate adequately his claims and litigate them himself. See id. at **2-3.
On January 24, 2011, SMS filed a Motion for Summary Judgment.
ECF No. 33.
Bacchus opposed SMS’s motion on February 8, 2011, ECF No. 35, and SMS filed a Reply in
support of its Motion for Summary Judgment on February 23, 2011, ECF No. 41. The issues at
hand are fully briefed and no hearing is deemed necessary pursuant to Local Rule 105.6.
ANALYSIS
I. Standard of Review
Summary judgment is appropriate where there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir.
2006); Fed. R. Civ. P. 56. In deciding a summary judgment motion, the Court must ask whether
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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Bacchus’s attorney returned the balance of Bacchus’s retainer after investigating his claims. Id.
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Summary judgment is properly granted where a claim rests on mere speculation and
conjecture. Deans v. CSX Trans. Inc., 152 F.3d 326, 330 (4th Cir. 1998). “The nonmoving party
cannot create a genuine issue of material fact through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
Accordingly, “[a] party asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of materials in the record . . . or showing that
the materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
“If a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed
for the purposes of the motion” or “grant summary judgment if the motion and supporting
materials — including the facts considered undisputed — show that the movant is entitled to it.”
Fed. R. Civ. P. 56(e).
II. Discrimination under Title VII
Where a plaintiff relies upon indirect evidence to show that an adverse employment
decision was motivated by race, the three-step McDonnell Douglas framework governs.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under McDonnell Douglas, the
plaintiff must first establish by a preponderance of the evidence a prima facie case of
discrimination. See id. When this initial burden is met, the burden of production shifts to the
employer, who is required to articulate a legitimate, nondiscriminatory reason for its actions. Id.
The plaintiff must then prove that the employer’s stated reason is in fact pretext for a racially
discriminatory reason. See id. at 804. A plaintiff may do so by directly persuading the Court
that “a discriminatory reason more likely motivated the employer or indirectly by showing that
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the employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty Affairs v.
Burdine, 450 U.S. 248, 256 (1981).
To establish a prima facie case of discriminatory failure to hire, a plaintiff prove: (1) that
he is a member of a protected class; (2) that he applied for the position in question; (3) that he
was qualified for that position; and (4) that he was rejected under circumstances giving rise to an
inference of unlawful discrimination. See Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998).
Here it is undisputed that Bacchus fulfills the first two elements, as he is an African-American
male and applied for a vacant welder position. However, because Bacchus has failed to present
any evidence of elements three and four, he fails to carry his initial burden of establishing a
prima facie case.
A. Bacchus has Not Proved a Prima Facie Case of Discriminatory Failure to Hire.
The Fourth Circuit has made clear that a claim that rests on “mere speculation and
conjecture” cannot proceed beyond the summary judgment stage, Deans, 152 F.3d at 330,
because the nonmoving party cannot create a genuine issue through “the building of one
inference upon another,” Beale, 769 F.2d at 214. Accordingly, a plaintiff opposing summary
judgment must support his position with “evidence on which a reasonable jury could find for
[him].” Anderson, 477 U.S. at 252.
In this case, Bacchus does not point to any evidence that would establish the final two
elements of a prima facie discrimination case; rather, he purports to fulfill these elements
through unsubstantiated and speculative claims. This will not suffice to fulfill his initial burden,
and entitles SMS to summary judgment. See Morrall v. Gates, 370 Fed. Appx. 396, 397-98 (4th
Cir. 2010) (affirming grant of summary judgment to defendant where plaintiff failed to state
prima facie case of racial discrimination).
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1. Bacchus has not shown he was qualified for the welder position for which
he applied.
With respect to the third element of his prima facie case, Bacchus has put forth no
evidence showing that he was qualified to work as a welder for the Dickerson Project. Instead,
Bacchus merely claims he satisfies this element by stating that he “was a welder for six years
when [he] applied for [the] position.” Pl.’s Opp’n at 1, ECF No. 35. Nothing in the record
corroborates his claimed experience. In fact, discovery revealed that Bacchus misrepresented his
welding experience when he applied for a welder position with SMS. First, Bacchus’s claim on
his employment application that he is a Certified Master Welder was false, as he completed less
than half the requisite coursework for this degree. See Def.’s Mot. for Summ. J., Ex. 14, Story
Dep. 27:23-25, 28:1-9. Second, Bacchus’s purported welding experience at his previous job was
fabricated, as he actually worked as an inventory supervisor. See id., Ex. 21.
Even assuming that Bacchus did in fact have six years of welding experience when he
applied for a position with SMS, this alone would not show that he was qualified to perform the
specific welding that the Dickerson Project required. It is undisputed that the job description for
the position that Bacchus sought required that applicants “have the ability to . . . weld to ASME
code on boiler tubes, piping and structural components and the ability to perform general
maintenance on power house boilers.” SMS Job Description, Def.’s Mot. for Summ. J., Ex. 17.
Bacchus has yet to provide any evidence, and has not even asserted, that he possessed the skills
to perform this type of welding. In fact, Bacchus admitted that he had absolutely no welding
experience with boilers. See id., Ex. 4, Bacchus Dep. 25:2-7.
Additionally, it is undisputed that Bacchus worked on his test coupons from 9:00 p.m.
until 6:00 a.m. the next day and failed to complete a single weld during that time. Id., Ex. 4,
Bacchus Dep. 127:9-16; Ex. 12, Myers Dep. 59:1-8. It is also undisputed that Jenkins evaluated
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Bacchus’s work and determined that he did not have the skills that the SMS welder position
required. Id., Ex. 9, Jenkins Dep. at 9:20-25, 10:1-4. Thus, it is clear that Bacchus was not
qualified for the position for which he applied because he was unable to complete any of the
requisite welds within three hours.
For all of these reasons, Bacchus fails to establish the third element of a prima facie
case—that he was qualified for the position for which he applied. Accordingly, SMS is entitled
to summary judgment.
2. There is no evidence that Bacchus was not hired under circumstances
giving rise to an inference of discrimination.
With respect to the fourth element of the prima facie case, Bacchus has failed to show
that he was not hired under circumstances giving rise to an inference of discrimination. To carry
his burden on this element, Bacchus must present evidence of circumstances surrounding the
alleged discriminatory event that “credibly raises an inference of unlawful discrimination.”
Ennis v. Nat’l Ass’n of Bus. And Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). Bacchus
alleges that three different events give rise to an inference of unlawful discrimination: (1)
Brickhouse, the night shift superintendent, used racially derogatory language, Compl. ¶ 14; (2)
SMS employees Myers and Jenkins allowed two white males to take an easier welding test on
March 31, 2009 than Bacchus had taken on March 30, 2009, Compl. ¶ 9; and (3) Myers told
Bacchus that he could “practice” when Bacchus was in fact taking the welding test, Pl.’s Opp’n
at 7.
Bacchus’s own deposition testimony makes clear that none of these alleged events
constitutes evidence of discrimination.
First, Bacchus’s deposition demonstrates that, at the very least, he has no evidence that
these events actually occurred; in fact, his testimony indicates that these allegations were
fabricated. Def.’s Mot. for Summ. J., Ex. 4, Bacchus Dep. 228:6-10, 238:1-239:23. As for the
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white applicants allegedly given an easier test, Bacchus admitted at his deposition that he had no
personal knowledge regarding the tests that these applicants took:
Q: You agree with me that you don’t know what those two gentlemen, the two, as you
say, white gentlemen, were given to weld on, do you?
A: I don’t have a clue what they were given.
Q: . . . You never saw them [the two white applicants] take an easier weld test that day
did you?
A: No.
Id. at 228:6-10, 238:18-20. As for the alleged racial slurs, Bacchus conceded at his deposition
that he did not hear any racist language during his time at SMS’s job site. Id. at 388:1-15 (“I
never heard—I never heard no racist words whatsoever [at the SMS job site].”).
Finally, Bacchus does not make clear how being told he was practicing when he was
really being tested raises any inference of discrimination. It is undisputed that SMS employee
Jenkins examined the welds that Bacchus worked on and determined that he did not have the
skills necessary to perform the type of welding required by the Dickerson Project. See Def.’s
Mot. for Summ. J., Ex. 9, Jenkins Dep. at 9:20-25, 10:1-4. Bacchus claims in his opposition to
SMS’s Motion for Summary Judgment that his welds were not of poor quality, see Pl.’s Opp’n at
7, yet he concedes that he failed to successfully complete a single weld after working on his test
coupons for nine hours, Def.’s Mot. for Summ. J., Ex. 4, Bacchus Dep. 127:9-16. He has also
conceded that the only difference between “test” welds and his “practice” welds was his
knowledge that he was, in fact, being tested. Bacchus Dep. 242:7-23. Accordingly, Bacchus
fails to demonstrate how being told that he was practicing, when he was in fact being tested, has
any relevance to his claim of discrimination.
For all of these reasons, Bacchus fails to establish the fourth element of a prima facie
case—that he was not hired under circumstances giving rise to an inference of discrimination.
Accordingly, SMS is entitled to summary judgment on Bacchus’s Title VII claim.
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B. Even if Bacchus had proved his prima facie case, SMS proffered a legitimate,
nondiscriminatory reason for not hiring him.
Even assuming that Bacchus could prove a prima facie case of discrimination, SMS has
proffered a legitimate, nondiscriminatory reason for not hiring him. Specifically, SMS asserts
that Bacchus was not hired as a welder because he did not possess the skills necessary to perform
the type of welding that the Dickerson Project required. See Def.’s Mot. for Summ. J. 26. SMS
points to the deposition testimony of Brian Jenkins, the SMS employee who evaluated Bacchus’s
test coupons, in support. See id., Ex. 9, Jenkins Dep. at 9:20-25, 10:1-4. Jenkins testified:
“[The test coupon] was not . . . adequate enough for—to pass the test. It was just nasty
looking . . . Nothing was—none of the strings or anything were, you know—what I’m
looking for. . . [and] they [the welds] were not complete.”
Id.
Accordingly, SMS has proffered a legitimate, nondiscriminatory reason for not hiring
Bacchus.
C. Bacchus has not demonstrated that SMS’s articulated reason for not hiring him
is pretext.
Bacchus has failed to demonstrate that SMS’s articulated reason for not hiring him is
pretext for a discriminatory reason. Indeed, Bacchus concedes that he failed to complete any of
his test coupons successfully.
Def.’s Mot. for Summ. J., Ex. 4, Bacchus Dep. 127:9-16.
Furthermore, Bacchus’s deposition reveals that his previous claims that an SMS employee used
racially derogatory language and allowed white applicants to take easier tests than he took are
speculative or false. See id. at 228:6-10, 238:1-239:23. Thus, Bacchus has not demonstrated that
SMS’s stated reason is pretext, and SMS is entitled to summary judgment.
CONCLUSION
In conclusion, Bacchus failed to state a prima facie case of discriminatory failure to hire
in violation of Title VII. Furthermore, SMS has articulated a legitimate, nondiscriminatory
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reason for not hiring him.
Bacchus has failed to demonstrate that this reason is pretext.
Accordingly, the Court will grant SMS’s Motion for Summary Judgment. A separate order
follows.
Date: July 20, 2011
/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
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