Shalom v. Payless Shoesource Worldwide, Inc. et al

Filing 47

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 2/5/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NANA-AKUA TAKYIWAA SHALOM
:
v.

:

Civil Action No. DKC 11-1382

:
PAYLESS SHOESOURCE WORLDWIDE,
INC., et al.

:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination action is what the court construes as
a

motion

for

reconsideration

filed

by

Plaintiff

Nana-Akua

Takyiwaa Shalom (ECF No. 45) and a partial motion for summary
judgment filed by Defendants Payless Shoesource Worldwide, Inc.,
Richard DeMicco, and Ronald Ebelein (ECF No. 43).1

The relevant

issues have been briefed and the court now rules pursuant to
Local Rule 105.6, no hearing being deemed necessary.
reasons

that

follow,

Plaintiff’s

motion

will

be

For the

denied

and

Defendants’ motion will be granted in part and denied in part.

1

Although purportedly addressing all of the claims
contained in the complaint, Defendants have not addressed
Plaintiff’s claim that she was compensated at a lower rate than
comparable white males. (See ECF No. 2 ¶¶ 31, 40). Thus, they
are not entitled to summary judgment on Plaintiff’s disparate
pay claim against Payless.

I.

Background
A.

Factual Background

Unless

otherwise

noted,

the

undisputed or uncontroverted.2

following

facts

are

either

On November 5, 2006, Plaintiff

2

Plaintiff failed to present any evidence in opposition to
Defendants’ motion for summary judgment, arguing instead that
because
of
“Defendants’
bad
faith
conduct”
and
“gross
violations” during the course of discovery, she “has been
deprived of her right to Defendants’ information which will,
most likely[,] support all of her allegations.” (ECF No. 45, at
2).
While her complaint is purportedly verified, it is not in
proper form, as it is neither sworn to – the complaint recites
only that Plaintiff “personally appeared before” a notary, not
that she swore to the truth of its allegations – nor affirmed
under penalty of perjury – Plaintiff asserts only that “the
facts herein are true and correct to the best of my knowledge
and belief.”
(ECF No. 2, at 15).
See United States v. 8
Gilcrease Lane, 587 F.Supp.2d 133, 139 (D.D.C. 2008) (“[28
U.S.C.] § 1746 states that a statement of verification [] must
be in ‘substantially’ the same form as the statement set forth
in § 1746(2),” and “there are two statements that are
essential[:] . . . (i) an assertion that the facts are true and
correct; and (ii) an averment that the first assertion is made
under penalty of perjury”). Defendants’ motion presents similar
evidentiary concerns, however, insofar as some of the exhibits
submitted in support (ECF No. 43-2) are not accompanied by an
authenticating affidavit or declaration.
Until recently, these oversights may have precluded
consideration of any of the purported evidence at this stage.
See, e.g., Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993)
(“unsworn, unauthenticated documents cannot be considered on a
motion for summary judgment.”).
The 2010 amendments to
Fed.R.Civ.P. 56(c)(2), however, “‘eliminated the unequivocal
requirement that documents submitted in support of a summary
judgment motion must be authenticated.’”
Brown v. Siemens
Healthcare Diagnostics, Inc., No. 11-0769, 2012 WL 3136457, at
*6 (D.Md. July 31, 2012) (quoting Akers v. Beal Bank, 845
F.Supp.2d 238, 243 (D.D.C. 2012)). Instead of “a clear, brightline rule (‘all documents must be authenticated’),” Rule
56(c)(2) now prescribes a “multistep process by which a
proponent may submit evidence, subject to objection by the
2

Nana-Akua

Takyiwaa

Shalom,

an

African-American

woman

born

in

Ghana, was hired by Defendant Payless Shoesource Worldwide, Inc.
(“Payless”), to work as a store associate at a Payless location
in Bowie, Maryland.
provided

an

At the time of her hiring, Plaintiff was

employee

handbook,

which

contained

the

company’s

equal employment opportunity, sexual and unlawful harassment,
and workplace violence prevention policies.
3-7).3

She

was

also

given

a

pamphlet

(ECF No. 43-2, at

advising

of

Payless’

“AlertLine,” a confidential hotline through which employees were
encouraged

to

report

any

incident

of

sexual

similar misconduct occurring in the workplace.

harassment

or

(Id. at 26-27).

Plaintiff signed an acknowledgement form indicating that she had
read

the

handbook

and

pamphlet

and

understood

that

she

was

opponent and an opportunity for the proponent to either
authenticate the document or propose a method for doing so at
trial.” Foreword Magazine, Inc. v. OverDrive, Inc., No. 10-cv1144, 2011 WL 5169384, at *2 (W.D.Mich. Oct. 31, 2011).
Importantly, “the objection [now] contemplated by the amended
Rule is not that the material ‘has not’ been submitted in
admissible form, but that it ‘cannot’ be.”
Ridgell v. Astrue,
No. DKC 10-3280, 2012 WL 707008, at *9 (D.Md. Mar. 2, 2012)
(quoting Foreword Magazine, 2011 WL 5169284, at *2).
Here, neither party has objected that the materials
contained in the record are not capable of being submitted in
admissible form.
Thus, the court will exercise its discretion
to consider these documents as being what they are purported to
be.
3

Because Defendants filed their exhibits together under a
single docket entry, page references within that entry are to
those designated by the court’s electronic case filing system.
3

“responsible for becoming familiar with [the] content” of these
documents.

(Id. at 29).

Throughout

the

course

of

her

employment,

Plaintiff

consistently received strong evaluations and earned a number of
performance-based awards.

(ECF No. 2 ¶¶ 11, 32).

In or around

February 2007 – just a few months after she was hired – she was
promoted to the position of store manager at the Bowie location.
Plaintiff’s
hiring

“essential

and

functions”

training

in

that

employees,

capacity

conducting

included

performance

evaluations, and “develop[ing] a weekly work schedule for Store
Associates based on sales forecasts and other business demands.”
(ECF No. 43-2, at 31-32).

Payless’ workweek guidelines provided

that store managers were expected to “work a five day work week
and average 45 hours per week,” and that “[i]t may be necessary
for [them] to work beyond the 45 hour per week guidelines in
cases of holidays or peak periods.”
provided
included

a

copy

Conduct.”

the

Payless’

discrimination
AlertLine

of

workplace

and

service

store

manager

and

(Id. at 3-7).

set

which

again

and

non-

prevention

policies
forth

Plaintiff was

handbook,

violence

harassment
–

(Id. at 34).

the

–

referencing

company’s

“Code

the
of

The Code of Conduct provided, inter

alia:
In an effort to maintain a productive work
environment,
the
following
acts
of
misconduct are considered serious violations
4

of
Company
policy
and
immediate
termination
disciplinary warning: . . .

may
result
in
without
prior

* Insubordinate behavior, including refusal
or failure to perform job assignments. . . .
* Threatening, coercing, disorderly conduct,
fighting, or use of foul, profane or abusive
language towards Customers, Associates or
Managers.
(Id. at 6-7).
Following her promotion, Plaintiff’s immediate supervisor
was district manager Defendant Richard DeMicco.
occasions

in

early

2009,

DeMicco

caused

embarrassed when he mimicked her accent.
27,

2009,

as

DeMicco

called

roll

at

On at least two

Plaintiff

to

feel

On or about January
a

meeting,

Plaintiff

answered “present sir,” and DeMicco “attempted to imitate [her]
accent and stated ‘why don’t you just answer ‘here’ or ‘good
morning?’”
DeMicco

(ECF No. 2 ¶ 35).

took

some

supplies

Approximately one week later, as

from

Plaintiff’s

store,

Plaintiff

“said something about him taking too many of our light bulbs,”
and DeMicco “imitated what Plaintiff said” and said, “I don’t
like your accent.”

(Id.).4

Plaintiff also had a number of uncomfortable interactions
with

Defendant

Ronald

Ebelein,

4

a

Payless

field

auditor

who

DeMicco denies having ever made “any statement or comment,
negative or otherwise, regarding Ms. Shalom’s accent.” (ECF No.
43-2, at 12; see also id. at 65).
5

visited Plaintiff’s store on a monthly basis to take inventory.
She asserts:
Ebelein constantly made sexual comments
about [her] body.
He occasionally asked if
she was wearing Victoria’s Secret underwear.
He
often
made
comments
about
male
genitalia[,] including comments about the
relationship between shoe size and penis
size.
He
often
talked
about
sexual
activities
and
various
positions
for
engaging in sex.
On one occasion he asked
Plaintiff to watch a pornographic video on
his
cell
phone[,]
which
included
an
overweight woman engaging in sex.
(Id.

at

¶

33).5

uncomfortable,”

Although

Plaintiff

this

felt

conduct

that

she

made
was

her

“extremely

“unable

to

seek

relief from DeMicco or [Payless Director of Retail Operations
Kathy Rhule] because if either one of them mentioned Plaintiff’s
discomfort
exact

or

revenge

feelings
.

.

.

of

harassment,

by

distorting

[Ebelein]
his

inventory shrinkage at [Plaintiff’s] store.”

could

reports

easily

about

the

(Id. at ¶ 34).

On or about February 18, 2009, Plaintiff was involved in an
automobile accident in which she “sustained several painful yet
unapparent injuries to . . . her neck and back.”

(Id. at ¶ 13).

At a meeting the following day, she advised DeMicco that she was

5

Ebelein submitted an affidavit in support of Defendants’
motion for summary judgment in which he did not deny that this
conduct occurred.
(ECF No. 43-2, at 14-15).
The affidavit
further recites that Ebelein did not “manage any employees or
have the authority to hire or terminate employees at [Payless].”
(Id. at 14).
6

experiencing
automobile

“severe

back

and

collision”

and

that

taking” provided no relief.
her

to

around

continue
when

working,

Kathy

neck

pain

“the

resulting

numerous

(Id. at ¶ 15).
stating

[Rhule]

that

visited

the

from

pills

the

she

was

DeMicco encouraged

“he

needed

her

[d]istrict.”

to

be

(Id.).

Plaintiff saw a physician, but was initially unable to “secure
documentation describing the treatment she received.”
14).
who

(Id. at ¶

She was later referred to a physical therapist, however,
provided

“documentation

recommend[ing]

that

she

more than 45 hours per week during her recuperation.”

not

work

(Id.; see

also ECF No. 43-2 at 50, 54).6
On or about March 10, 2009, “Plaintiff and all other Store
Managers in her Region . . . were told by Kathy Rhule . . . that
during the weeks of March 29 to April 11 they would have to work
54 hours per week” due to the Easter holiday.
see also ECF No. 43-2, at 36).

(ECF No. 2 ¶ 16;

Plaintiff “understood that there

was a requirement that during holiday periods [] managers would
need to work beyond the 45 hour per week guidelines” and she had
regularly worked increased hours during past holidays.

(ECF No.

43-2, at 95-96).

6

The record reflects that Plaintiff was referred to a
physical therapist on or about March 18, 2009 (ECF No. 43-2, at
50), and that the therapist provided a written recommendation
that she not work more than 45 hours per week on March 31 (id.
at 54).
7

On March 25, Plaintiff “was experiencing severe back and
neck

pain”

at

work

and

called

DeMicco,

leaving

a

“detailed

voice-mail message that . . . [she] was planning to work only 45
hours [that] week . . . [and] 50 hours the following week.”
(ECF No. 2 ¶ 18).
employee

On the same date, DeMicco received “a weekly

schedule”

for

Plaintiff’s

store

reflecting

that

Plaintiff “had scheduled herself to work only a 5 day/45 hour
per week schedule for the period from March 29 – April 4, which
was not in compliance with Ms. Rhule’s directive.”

(ECF No. 43-

2, at 9-10).
Plaintiff was unable to reach DeMicco until March 27, at
which

time

[a]bsence.”

DeMicco

told

her

“to

(ECF No. 2 ¶ 20).

take

2

weeks

[l]eave

of

Plaintiff voiced concern that

the leave of absence was part of a “plan to remove her from the
store so [DeMicco] could bring in another Store Manager such as
‘Kevin’ or ‘Stephanie,’” to which DeMicco replied, “I am the
District Manager and can do whatever . . . I want[.]”

(Id.).

Plaintiff told DeMicco that although she was still struggling
with back and neck pain, “she would gladly work over the 45
hours

to

which

she

was

restricted.”

7

(Id.).7

After

this

DeMicco asserts in his declaration that he “notified Ms.
Shalom that [her] schedule did not comply with Payless’
scheduling directive, [and] she never prepared a corrected one.”
(ECF No. 43-2, at 10).
Rather, “[s]he refused, stating she
would provide a doctor’s note with hours restrictions, and would
be contacting the Human Resources Department.”
(Id.).
While
8

encounter,

Plaintiff

called

Curtis

Snell,

a

human

resources

manager, and advised him of her injury, of the work restriction
recommended by her physical therapist, and that “her doctor was
unavailable” to provide documentation.

(Id. at ¶ 21).8

Plaintiff’s complaint recites that DeMicco insisted that she
take a leave of absence, there appears to be no dispute that she
did not.
8

Snell’s declaration
version of this discussion:

sets

forth

a

somewhat

On March 27, 2009, [Plaintiff] telephoned me
regarding Payless’ scheduling policy for
Store Managers.
Ms. Shalom did not raise
any
complaints
to
me
regarding
her
supervisor, Richard DeMicco, but did raise
objections to Payless’ policy requiring
managers to work six days, 54 hours per week
prior to holidays and during peak periods
(the “6/54 Policy”). Ms. Shalom informed me
that she had been involved in a motor
vehicle accident on February 18, 2009, and
been excused from work for medical reasons
from February 19 – March 2, 2009.
Ms.
Shalom told me she did not want to work the
two Sundays mandated under the 6/54 Policy,
questioned me about Payless’ need for the
policy and stated she could provide a
doctor’s note with restrictions on working
more than 45 hours per week during this
period.
.
.
.
In
response,
I
explained
the
expectations for store managers in the 6/54
Policy to Ms. Shalom, noting that Company
policy
allowed
management
to
require
additional
manager
hours
during
peak
periods, such as the Easter holiday. I gave
Ms. Shalom my fax number so that she could
send me the doctor’s note evidencing the
restrictions on the number of hours she
could work.
9

different

On March 28, Plaintiff faxed to Snell documentation from
her physical therapist “recommending that she work no more than
45 hours per week during her recuperation.”

(Id. at ¶ 22).

Snell received the fax on the same date, noting that it “did not
include

a

doctor’s

note

or

medical

excuse

stating

that

Ms.

Shalom was medically restricted from working more than 45 hours
per week from March 29 - April 11, 2009.”

(ECF No. 43-2, at

(ECF No. 43-2, at 43-44).
The complaint recites that Snell told Plaintiff “she was
highly thought of by management and that it was acceptable that
she not work the mandated 54 hours due to her medical
restriction” (ECF No. 2 ¶ 21), and that he “repeated that the
work restriction from a medical therapist was acceptable” during
a March 30 phone conversation (id. at ¶ 23).
In his
declaration, Snell denies that he ever told her “she was allowed
to work fewer hours than those mandated by Ms. Rhule under the
6/54 Policy for the period from March 29 – April 11, 2009” (ECF
No. 43-2, at 45), and, at her deposition, Plaintiff herself
testified that “[n]obody told her” that “during holidays or peak
periods [she] didn’t have to work the additional hours.”
(Id.
at 75).
Thus, there is an unexplained discrepancy between
Plaintiff’s purportedly verified complaint and her later
deposition testimony.
See Mendez v. Nationwide Prop. And Cas.
Ins. Co., --- F.Supp.2d ----, 2012 WL 4518987, at *3 (D.Md.
Sept. 28, 2012) (“[A] party cannot create a genuine issue of
fact
sufficient
to
survive
summary
judgment
simply
by
contradicting his or her own previous sworn statement (by, say,
filing a later affidavit that flatly contradicts that party’s
earlier sworn deposition) without explaining the contradiction
or attempting to resolve the disparity.”) (quoting Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)).
For
purposes of the instant motion, it is deemed established that
Plaintiff was not given permission to work the reduced schedule.
10

44).9

“After reviewing her fax, [Snell] discussed [Plaintiff’s]

failure to provide a doctor’s note with hours restrictions with
DeMicco, and it was determined that Ms. Shalom would receive
progressive discipline in the form of a Final Written Warning in
Lieu of Termination . . . for insubordination based upon her
refusal to comply with the 6/54 Policy.”

(Id. at 44; see also

id. at 5).
Regarding the events of March 31, 2009 (and thereafter,
according to Plaintiff), the parties present markedly different
accounts.

Plaintiff asserts:
On or about March 31, 20[0910], Plaintiff was
at the store in the morning when DeMicco
entered.
He went directly to the stockroom
and yelled that Plaintiff was not to come to
the stockroom. Thereafter, a customer asked
Plaintiff for a shoe that Plaintiff knew to
be in the stockroom.
She went to the
stockroom and DeMicco yelled at her that he
had
asked
her
[not
to]
come
to
the
stockroom. She explained that her intrusion
was at a customer’s request.
Later, he
announced that she would not immediately
receive a written warning for not working 54
hours but that he would “write her up” as he

9

The fax presented by Defendants consists of a police
report of the accident, patient discharge instructions, and a
prescription referring Plaintiff to physical therapy. (ECF No.
43-2, at 47-50).
According to Defendants, Plaintiff did not
produce the note from her physical therapist until the morning
of March 31. (Id. at 54).
10

The complaint references this date, among others, as
occurring in 2010 rather than 2009.
This appears to be a
typographical error; there is no real dispute that the relevant
events occurred in 2009.
11

slammed his material[s] on a nearby table.
Plaintiff again asked if he was planning to
bring Kevin and/or Stephanie in to serve as
Store Manager.
DeMicco replied that he was
the District Manager and could [do] whatever
he wanted.
After placing a telephone call
to Kevin, DeMicco pointed out that the note
from Plaintiff’s therapist indicated the
restriction
in
her
work
hours
was
“recommended”
rather
than
“needed.”[11]
Plaintiff told DeMicco she was about to call
[Rhule] concerning his rude behavior.
She
reached into her locker for her purse which
contained her cell phone. At that point he
grabbed her right hand to prevent her from
reaching her phone. He then yelled that she
was suspended and should “get out.”
. . . After DeMicco notified Plaintiff that
she was suspended[,] he demanded her keys to
the store.
In tears, Plaintiff left the
store and went to her car in the parking
lot.
DeMicco approached her car while she
was seated in it.
He was irate and banged
on the car demanding the keys.
Plaintiff
was afraid and did not open the windows.
DeMicco eventually left, [and] Plaintiff
took the keys to the store’s Assistant
Manager in the store and left.
(ECF No. 2 ¶¶ 24, 25).
According to Plaintiff, later on the same date, she placed
several phone calls to Rhule, leaving messages.
see also ECF No. 43-2, at 79).

(Id. at ¶ 26;

On April 1, Rhule returned her

call and, upon hearing Plaintiff’s report of the encounter with
DeMicco the day before, said “she hoped this was not a racial
11

As will be seen, DeMicco asserts that on the morning of
March 31 Plaintiff provided him with a recommendation from her
physical therapist that she not be required to work the 6/54
schedule. Although Plaintiff omits this detail, this appears to
be a reference to the same recommendation.
12

case,” that “DeMicco could not suspend her if she had a medical
explanation

from

her

therapist,”

DeMicco and call Plaintiff back.”

and

that

“she

would

(ECF No. 2 ¶ 27).

call

Shortly

thereafter, DeMicco called Plaintiff to advise that “they would
have a conference call the following day.”

(Id.).

On April 2, Snell called Plaintiff and “pointed out that
the

therapist’s

‘recommendation’
thought

you

medical
rather

could

get

note

than
away

a
with

provided

that

requirement,”
it.”

(Id.

it

was

adding
at

¶

a

“[y]ou

28).

At

approximately 7:06 p.m., Rhule called Plaintiff, advising that
“she did not think this was a racial case and she hoped it would
not go any further.”
during

a

telephone

(Id. at ¶ 29).
conversation

with

At around 8:00 p.m.,
DeMicco,

Plaintiff’s

employment with Payless was terminated.12
Defendants’

version

of

events

is

provided

through

the

declaration of DeMicco, portions of which are corroborated by
Snell’s declaration.

DeMicco recalls:

On March 31, 2009, I traveled to Store 1832
to meet with Ms. Shalom and to provide
verbal counseling and the Written Warning.
12

The complaint recites that this phone call took place at
8:00 a.m., rather than 8:00 p.m., but this appears to be a
typographical error in light of the conversations Plaintiff
allegedly had with Snell and Rhule earlier on the same date.
Notably, Defendants’ human resources records reflect Plaintiff’s
discharge date as April 3, 2009, i.e., the next business day
after the telephone call between DeMicco and Plaintiff.
(ECF
No. 43-2, at 18).
13

Ms. Shalom provided me with a handwritten
note, dated March 31, 2009, from her
physical therapist, which ‘recommended’ that
[she]
‘perform
and
progress
with
work
activities as tolerated,’ but which did not
contain any restriction on her hours.[13]
Although I attempted to explain that the
therapist’s recommendation was insufficient
and to deliver the Written Warning, Ms.
Shalom
became
hostile,
agitated
and
confrontational, shouting at me and throwing
her personal belongings around the backroom.
Ms. Shalom also refused to sign or accept a
copy of the Written Warning documenting her
non-compliance
with
the
scheduling
directive.
. . . I informed Ms. Shalom that I was going
next door to make a copy of the note from
her physical therapist, and then would
return it to her.
Ms. Shalom followed me
through the sales floor to the store
entrance, continuing to shout at me in front
of customers and associates, demanding the
return of her document.
I informed Ms.
Shalom that her further insubordinate and
confrontational conduct would be reviewed
with management and human resources, and
asked that she provide me with the key to
Store 1832. Ms. Shalom refused.
. . . Later on March 31, 2009, I spoke with
Mr. Snell by telephone to review Ms.
Shalom’s conduct and relevant policies, such
13

The note from the physical therapist, dated March 31,
reflects that it was faxed to DeMicco at 8:23 a.m., and recites:
Due to [Plaintiff’s] injuries following a
motor vehicle accident on 2/18/09, it is our
recommendation that she . . . progress with
work activities as tolerated.
She would
benefit from working 45 hrs./wk. vs. 54
hrs./wk. at this time, while recovering from
her injuries.
(ECF No. 43-2, at 54).
14

as Payless’ Code of Conduct. At that time,
a determination was made that Ms. Shalom’s
employment with Payless would be terminated
for cause based upon violation of the
Company’s Code of Conduct, including her
continued refusal to comply with the store
manager scheduling policy for holidays and
her insubordination and hostile attitude
toward me.
(ECF No. 43-2, at 10-11).

DeMicco denies that he ever “ma[de]

any physical contact with Ms. Shalom, or attempt[ed] to make
physical contact with her, at any time during [the] counseling
meeting on March 31, 2009.”

(Id. at 12).

The “personal counseling form,” dated March 31, states:
Communication was put forth for mandatory 6
day 54 hour work weeks for weeks 3-29 to 4-4
and 4-5 to 4-11.
[Plaintiff] stated that
she would only work 45 hours for that week.
[DeMicco]
reiterated
that
it
was
a
district/region requirement to work and
schedule the above.
[Plaintiff] blatantly
only scheduled herself for 45 hours and 2
days off for both weeks.
[Plaintiff]
disregarded
company
direction
with
her
insubordination.
As per policy . . .
[Plaintiff] must schedule and work the
direction that is given to her.
Any other
incidents viewed as insubordination will
result in immediate termination.
(Id. at 52).

In the margin just above DeMicco’s signature, a

single sentence is added: “[Plaintiff] has been terminated for
insubordination as per Curtis Snell.”

(Id.).

The form further

reflects that Plaintiff refused to sign.
On April 2, 2009 – after Plaintiff’s termination, according
to Defendants’ version of events – DeMicco received a fax from
15

the office of Dr. Jae S. Chung, which indicated on the cover
sheet:
Patient [i.e., Plaintiff] has an appointment
on April 6 for follow-up with Dr. Chung.
Dr. Chung had emergency surgery on Saturday,
March 21 [and] has been out of the office. .
. . He is returning on April 6.
Please
accept this note on behalf of our patient
until Dr. Chung fully returns.
(Id. at 56).

Attached to the cover sheet was a “disability

certificate,” signed by Dr. Chung, dated March 18, 2009, which
reflected

that

Plaintiff

was

“partially

incapacitated”

from

“3/18/09 to 4/5/09” and that she “needs to work only 45 hours
due to injury.”
After

(Id. at 57).

Plaintiff’s

termination,

Payless

promoted

Kevin

Campbell, a Caucasian male, to serve as manager of the Bowie
store.
replace

Defendants acknowledge that Mr. Campbell was assigned to
Plaintiff

as

store

manager,

but

planned prior to the events of March 31.
B.

deny

that

this

was

(Id. at 11-12, 44-45).

Procedural History

Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on or about October
28, 2009.

(ECF No. 43-2, at 59-61).

The cover sheet reflects a

charge of retaliation and discrimination in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), as amended,
42 U.S.C. §§ 2000e, et seq., on the basis of race, sex, and

16

national origin.

(Id. at 59).

As to the particulars, the

charge recites:
I.
I was subjected to unfair treatment and
negative statements were made regarding my
accent[;] management was verbally abusive[;]
and I was forced to work when injured.
My
managers would not accept my doctor’s slip
and information from my therapist.
I was
forced to work at lesser wages compared to a
male[,] but a [w]hite [f]emale was not
forced to work at lower wages than the
[w]hite male in the same store.
I was
replaced by a [w]hite [m]anager. Management
stated
there
were
too
many
[b]lack
[m]anagers.
II. In April 2009, this employer discharged
me for falsification.
III. I
believe
that
I
have
been
discriminated and retaliated against in
violation of Title VII . . . because of my
involvement in a protected activity under
the statute, with respect to my gender,
female, [n]ational [o]rigin, Ghana, race,
Black[,] and the Equal Pay Act of 1963 with
respect to wages and discharge.
(Id. at 60).

A right-to-sue letter was issued by the EEOC on

December 30, 2010, advising Plaintiff of her right to file suit
in state or federal court within ninety days.

(Id. at 61).

Plaintiff commenced this action in the Circuit Court for
Montgomery County, Maryland, on or about March 31, 2011.
complaint
VII,

42

alleges
U.S.C.

discrimination
§

1981,

and

and

the

retaliation
Maryland

Fair

under

Her
Title

Employment

Practices Act (“FEPA”), Md. Code Ann., State Gov’t § 20-606, as
well as negligent supervision and retention.
17

Payless removed to

this

court

on

May

23,

2011,

asserting

federal

question

and

diversity jurisdiction, and, shortly thereafter, answered the
complaint.

DeMicco and Ebelein consented to removal and filed

answers, and a scheduling order was issued on August 10, 2011.
The schedule was extended on three occasions.
2012,

Defendants

Plaintiff’s

filed

counsel

had

a

status

advised

report

that

he

On July 5,

indicating

would

be

that

requesting

further extension of the discovery deadline and that Defendants
opposed

that

request.

(ECF

No.

29).

On

the

same

date,

Plaintiff separately filed a motion for extension of time to
complete discovery (ECF No. 30) and a motion for sanctions (ECF
No.

31).

The

[Ebelein]

and

motion
[his

for

sanctions

counsel]

alleged

materially

that

“Defendant

interfered

with

and

impeded Plaintiff’s attorney’s deposition of Mr. [Ebelein],” as
evidenced

by

“mov[ing]

her

Plaintiff’s
chair

closer

observation
to

Mr.

of

defense

[Ebelein]”

at

counsel

one

point,

“writing something on [a] tablet . . . and then pushing that
tablet in front of [Ebelein],” and “jabbing [Ebelein]” beneath
the

table

questions.”

“during

his

(Id. at 1).

answers

to

[Plaintiff’s

counsel’s]

Plaintiff subsequently filed a motion

to suspend the schedule to permit further investigation of the
allegations
potential

raised
“[f]raud

in
on

her
the

motion

for

[c]ourt[,]

sanctions
and

concerning

efforts

she

a

may

undertake under Federal Rule of Civil Procedure 60(b), or other
18

civil

and/or

criminal

claims.”

(ECF

No.

32,

at

1).14

Plaintiff’s motions were denied during a recorded, telephonic
motions hearing held August 24, 2012.15
On August 27, 2012, Defendants filed the pending motion for
summary

judgment.

(ECF

No.

43).

In

opposing

the

motion,

Plaintiff contends that she is “unable at this time to provide
evidence and corresponding argument in further support of her
[c]omplaint . . . because her efforts to glean such evidence
were

precluded

by

Defendants’

misconduct

throughout

the

discovery period allowed in this case.”

(ECF No. 45, at 1).

More

suggestion

specifically,

aforementioned

she

conduct

reiterates
at

Ebelein’s

her

deposition

that

the

constitutes

a

“fraud on the court,” and argues that “[t]he court erred by
14

Along with her reply papers, Plaintiff filed an amended
motion that, at least with regard to the factual allegations,
was identical in all material respects to the original motion
for sanctions. (ECF No. 38).
15

During that hearing, Plaintiff’s counsel acknowledged
that, although Ebelein’s deposition took place on June 13, he
did not raise the alleged misconduct until approximately three
weeks later; that he had not reviewed the full transcript of the
deposition (rather, he had read only the few pages produced by
Defendants as attachments to their motion papers); that he could
not point to any of Ebelein’s testimony that was not full and
candid; that he initially did not believe that any objectionable
conduct had taken place; and that he did not know what he would
do differently if another deposition were ordered.
Finding no
grounds for relief, the court denied Plaintiff’s motion (and
amended motion) for sanctions and found the motion for a stay of
the schedule was moot. The court also denied Plaintiff’s motion
for an extension of time to complete discovery – which, counsel
argued, was necessary in light of power outages following a
storm – finding no good cause for further extension.
19

summarily

denying

additional
sanctions.”

time

Plaintiff’s
in

which

(Id. at 2).

motions

to

for

complete

a

stay

discovery

[and]

and

for

She further requests that Defendants’

motion for summary judgment be denied due to Defendants’ “bad
faith

conduct.”

October 1, 2012.
II.

(Id.).

Defendants

filed

reply

papers

on

(ECF No. 46).

Plaintiff’s Motion for Reconsideration
To the extent that Plaintiff alleges error by the court in

denying her motions for sanctions, for an extension of time to
complete discovery, and to stay the schedule, her opposition
papers may be construed as a motion for reconsideration.
motion

to

reconsider

an

interlocutory

Federal Rule of Civil Procedure 54(b).
“any

order

adjudicates

or

other

fewer

than

decision,
all

the

order

is

A

governed

by

That rule provides that

however
claims

designated,

or

the

that

rights

and

liabilities of fewer than all the parties . . . may be revised
at any time before the entry of a judgment adjudicating all the
claims

and

all

the

parties’

rights

and

liabilities.”

The

precise standard governing such a motion in the Fourth Circuit
is unclear.

See Fayetteville Investors v. Commercial Builders,

Inc., 936 F.2d 1462, 1472 (4th Cir. 1991).

While the standards

articulated

not

in

Rules

59(e)

and

60(b)

are

binding

in

an

analysis of Rule 54(b) motions, see Am. Canoe Ass’n v. Murphy

20

Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts frequently
look to these standards for guidance:
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations: (1) there has been
an intervening change in controlling law;
(2) there is additional evidence that was
not previously available; or (3) the prior
decision was based on clear error or would
work manifest injustice.
Akeva, L.L.C. v. Adidas America, Inc., 385 F.Supp.2d 559, 565-66
(M.D.N.C. 2005) (citations omitted); see also Beyond Sys., Inc.
v. Kraft Foods, Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2
(D.Md. Aug. 4, 2010) (applying three-part test when evaluating a
motion for reconsideration under Rule 54(b)).
Plaintiff has not addressed any of the applicable grounds
for

reconsideration,

nor

does

any

appear

to

be

applicable.

Rather, she merely cites a string of cases for the proposition
that “[i]n the presence of credible allegations of substantive
misconduct by a party and/or its attorney(s), the Fourth Circuit
has been very clear that a district court, in the exercise of
its

discretion

and

inherent

powers,

may

conduct

an

investigation, . . . order remedial steps, and, to discourage
future misconduct and bad faith actions, may impose sanctions.”

21

(ECF No. 45, at 2).

Be that as it may, Plaintiff has not

identified any “credible allegations of substantive misconduct,”
nor has she demonstrated how the court’s prior ruling was in
error.

At

base,

she

simply

rehashes

the

same

arguments

considered and rejected by the court during the prior motions
hearing.

See Sanders v. Prince George’s Public School System,

No. RWT 08cv501, 2011 WL 4443441, at *1 (D.Md. Sept. 21, 2011)
(a

motion

for

reconsideration

is

“not

the

proper

place

to

relitigate a case after the court has ruled against a party, as
mere

disagreement

with

the

court’s

rulings

will

not

support

granting such a request”).

Thus, the argument presented by

Plaintiff

in

Defendants’

judgment,

construed

opposition
as

to
a

motion

for

motion

for

summary

reconsideration,

is

unavailing.16

16

Plaintiff’s argument may also be construed as a request
pursuant to Fed.R.Civ.P. 56(d), which provides that “[i]f a
nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may . . . (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or declarations
or to take discovery; or (3) issue any other appropriate
order”).
Courts interpreting this rule have consistently held
that a nonmovant must provide “a reasonable basis to suggest
that [the requested] discovery would reveal triable issues of
fact” in order for such a request to be granted.
McWay v.
LaHood, 269 F.R.D. 35, 38 (D.D.C. 2010); see also Richard v.
Leavitt, 235 Fed.Appx 167, 167 (4th Cir. 2007) (affirming
district court’s denial of a Rule 56(d) request when the
plaintiff failed to provide a basis for believing that the
information sought actually existed); Price ex rel. Price v.
Western Resources, Inc., 232 F.3d 779, 783 (10th Cir. 2000)
(reasoning that the Rule 56(d) affidavit must “identify[] the
22

III. Defendants’ Motion for Summary Judgment
A.

Standard of Review

Summary judgment may be entered only if there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.

Fed.R.Civ.P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson,
532

F.3d

291,

297

(4th

Cir.

2008).

Summary

judgment

is

inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]

pleadings,’

but

rather

must

‘set

forth

specific

showing that there is a genuine issue for trial.’”

facts

Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).

“A mere scintilla of

probable facts not available and what steps have been taken to
obtain these facts”); Wright v. Eastman Kodak Co., 550 F.Supp.2d
371, 382 (W.D.N.Y. 2008) (“While a Rule 56[(d)] discovery
request may be granted to allow a plaintiff to ‘fill material
evidentiary gaps,’ it may not be premised solely on speculation
as to evidence which might be discovered: ‘it does not permit a
plaintiff to engage in a fishing expedition.’”
(emphasis in
original)). Plaintiff has provided no affidavit or declaration,
nor has she otherwise made any showing regarding what additional
discovery might reveal. Thus, a request for discovery or denial
of the motion for summary judgment pursuant to Rule 56(d) would
also be denied.
23

proof

.

.

.

will

not

suffice

to

prevent

summary

judgment.”

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

“If the

evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).

Liberty Lobby, 477 U.S. at

At the same time, the facts that

are presented must be construed in the light most favorable to
the party opposing the motion.

Scott v. Harris, 550 U.S. 372,

378 (2007); Emmett, 532 F.3d at 297.
B.

Sexual Harassment

While Plaintiff’s complaint is far from a model of clarity,
it appears to raise a claim of sexual harassment against one or
more defendants in violation of Title VII related to the conduct
See Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir.

of Ebelein.
1994)

(“Sexual

atmosphere

in

harassment
the

workplace

creating
gives

a
rise

hostile
to

a

or
claim

abusive
of

sex

discrimination under Title VII”) (citing Meritor Savings Bank v.
Vinson, 477 U.S. 57, 66 (1986)).17

17

Defendants contend that any

The second count of the complaint asserts a claim against
Payless for violation of § 1981 based on the allegations
contained in the first count for violations of Title VII.
To
the extent Plaintiff intended to allege sexual harassment under
§ 1981 against any defendant, such a claim is not cognizable.
See Anjelino v. New York Times Co., 200 F.3d 73, 98 (3rd Cir.
1999) (“Because the statute, on its face, is limited to issues
of racial discrimination in the making and enforcing of
contracts, courts have concluded that sex-based claims are not
cognizable under 42 U.S.C. § 1981.”); Carter v. Morris, 36 F.3d
1091, 1994 WL 532866, at *2 n. 2 (4th Cir. 1994) (Table) (“Sexual
harassment . . . is not cognizable under § 1981”).
24

claim of sexual harassment is barred due to Plaintiff’s failure
to raise it in her EEO charge.
It

is

well-established

that

“[b]efore

filing

suit

under

Title VII, a plaintiff must exhaust her administrative remedies
by bringing a charge with the EEOC.”

Smith v. First Union Nat’l

Bank, 202 F.3d 234, 247 (4th Cir. 2000).
action

stemming

discrimination
reasonably
developed

from
claims

related
by

the

EEOC

stated

to

reasonable

the

charge
in

the

original

investigation

The scope of the civil
is

confined

initial

charge,

complaint,
[of

to

that

and

“those
those
those

complaint].”

Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009)
(quotation marks omitted).

Civil suits may not present entirely

new factual bases or entirely new theories of liability not
found in the initial EEOC complaint.

Therefore, a plaintiff

fails to exhaust her claims when “h[er] administrative charges
reference

different

time

frames,

actors,

and

discriminatory

conduct than the central factual allegations in h[er] formal
suit.”

Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir.

2005).
Plaintiff’s EEO charge alleged disparate treatment based on
race, national origin, and gender.18

She specifically referenced

“unfair treatment” and “negative statements made regarding her

18

Aside from her sexual harassment claim, Plaintiff does
not allege gender discrimination before this court.
25

accent,”

“verbal

injured,”

and

compensation

abuse,”

that

(ECF

she

No.

that
was

43-2,

she

was

“forced

disparately
at

60),

sexual misconduct or harassment.

but

to

treated
made

work

in

when
of

mention

no

terms

of

Because Plaintiff failed to

raise her sexual harassment claim in the EEO charge, and that
claim is not reasonably related to the grounds she did cite, she
is barred from raising them in the instant action.

See, e.g.,

Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 962-63 (4th Cir.
1996) (finding allegations of sexual harassment in the complaint
were not “reasonably related” to EEOC charge’s allegations of
discrimination based on gender).
Even if the court were to reach the merits of this claim,
it

could

not

survive

a

motion

for

summary

judgment.

To

establish a claim for sexual harassment, a plaintiff must “prove
that the offending conduct (1) was unwelcome, (2) was based on
her sex, (3) was sufficiently severe or pervasive to alter the
conditions

of

her

employment

and

create

an

abusive

environment, and (4) was imputable to her employer.”
v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th

work

Ocheltree

Cir. 2003).

Here, because Ebelein was not Plaintiff’s supervisor, Payless
could only be liable for his misconduct if it “knew or should
have known about the harassment and failed to take effective
action to stop it.”
omitted).

Ocheltree, 335 F.3d at 334 (internal marks

Payless maintained an anti-harassment policy, as well
26

as the “AlertLine” service – which allowed employees to report
workplace misconduct anonymously – and Plaintiff was made aware
of the policy and hotline on at least two different occasions.
Moreover, as a store manager responsible for hiring, training,
and supervision of staff, she should have been very familiar
with Payless protocol in this regard.

Nevertheless, the record

reflects that she made no report of Ebelein’s conduct to anyone.
While it may be the case that she feared retaliation if she did
so,

“an

employee’s

fears

of

confrontation,

unpleasantness

or

retaliation do not alleviate the employee’s duty . . . to alert
the employer to the allegedly hostile environment.”

Thomas v.

BET Soundstage Restaurant, 104 F.Supp.2d 558, 568 (D.Md. 2000)
(quoting Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir.
1999)).

Absent any evidence that Plaintiff told anyone about

the alleged misconduct, or that anyone else witnessed it, there
is simply no basis for imputing liability to Payless.19
C.

Race and National Origin Discrimination

Plaintiff
employment

on

further
the

contends

basis

of

race

that

Payless

and/or

terminated

national

origin.

her
A

plaintiff may establish a claim for intentional discrimination

19

It is well-established, moreover, that individuals cannot
be liable under Title VII. See Lissau v. Southern Food Servs.,
Inc., 159 F.3d 177, 180 (4th Cir. 1998). Thus, Plaintiff’s Title
VII claims against Ebelein and/or DiMicco, individually, cannot
be sustained.
27

using two methods.20

She may either demonstrate “through direct

or circumstantial evidence” that her race or national origin
“motivated the employer’s adverse employment decision,” Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th
Cir. 2004), or she may “proceed under a ‘pretext’ framework” –
commonly referred to as the McDonnell Douglas approach – “under
which the employee, after establishing a prima facie case of
discrimination,

demonstrates

that

the

employer’s

proffered

permissible reason for taking an adverse employment action is
actually pretext for discrimination,” id. at 285.
Direct evidence is “evidence of conduct or statements that
both reflect directly the alleged discriminatory attitude and
that bear on the contested employment decision.”

Warch v. Ohio

Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (internal marks
omitted).

“Only the most blatant remarks, [the intent of which]

could be nothing other than to discriminate . . . constitute
direct evidence of discrimination.”
20

Signal v. Gonzales, 430

Section 1981 and FEPA claims of discrimination are
analyzed under the same framework as Title VII.
See Wise v.
Gallagher Basset Servs., Inc., 228 F.Supp.2d 671, 674 (D.Md.
2002 (FEPA); Dang v. Inn at Foggy Bottom, 85 F.Supp.2d 39, 41
(D.D.C. 2000) (§ 1981)). “Because section 1981 extends only to
claims of racial discrimination, a claim . . . based solely on
nation of origin may not be brought under this provision.”
Dang, 85 F.Supp.2d at 41 n. 1.
Racial discrimination in this
context, however, “is construed broadly to include claims of
discrimination
based
on
national
‘ancestry
or
ethnic
characteristics,’ i.e. the identifiable racial or ethnic
characteristics associated with a particular national origin,
but not to a claim based on national origin itself.” Id.
28

F.Supp.2d 528, 541 n. 5 (D.S.C. 2006) (internal bracket omitted)
(quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir.
1989)).
of

a

If believed, direct evidence “would prove the existence

fact

.

.

.

without

any

inference

or

presumptions.”

O’Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th
Cir. 1995) (internal marks omitted), rev’d on other grounds, 517
U.S. 308 (1996).

To defeat a motion for summary judgment, the

evidence must show that the employer announced, admitted, or
“otherwise

unmistakably

indicated”

that

an

impermissible

consideration was a determining factor, or that discrimination
can

properly

be

assumed

from

the

circumstances.

Cline

v.

Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982).
Plaintiff

has

presented

no

direct

evidence

employment was terminated based on her race.

that

her

In fact, the only

mention of race in the entire record comes from Kathy Rhule, who
allegedly

told

Plaintiff

after

her

report

of

the

March

31

incident with DeMicco that “she hoped this was not a racial
case.”

(ECF No. 2 ¶ 27).21

Plaintiff

asserts

that,

on

With respect to national origin,
at

least

two

occasions,

DeMicco

imitated her accent and once stated, “I don’t like your accent.”
(Id. at ¶ 35).

These comments may constitute evidence of a

discriminatory attitude on the part of DeMicco, but they were
21

Rhule
later
advised
Plaintiff,
after
further
investigation, that “she did not think this was a racial
case[.]” (ECF No. 2 ¶ 29).
29

not in any way linked to Plaintiff’s termination.

See Betof v.

Suburban Hospital, Civ. No. DKC 11-1452, 2012 WL 2564781, at *6
(D.Md.

June

29,

2012)

(“To

constitute

direct

evidence,

statements must be directly related to the employment decision
in question”) (citing Brinkley v. Harbour Recreation Club, 180
F.3d 598 (4th Cir. 1999), overruled on other grounds by Desert
Palace,

Inc.

allegedly

v.

were

Plaintiff’s

Costa,

539

made

U.S.

90

(2003)).

approximately

termination

date

and

Plaintiff’s employment status.

two

in

a

Indeed,

months

context

they

prior

to

unrelated

to

See O’Connor, 56 F.3d at 549

(statement made two days prior to the plaintiff’s termination
that

the

company

needed

to

“get

some

young

blood”

evince an intent to discharge an older employee”);

did

“not

Paris v.

ARC/Davidson County, Inc., 307 F.Supp.2d 743, 754-55 (M.D.N.C.
2004) (statement about a company “not employ[ing] enough black
people” did not constitute direct evidence because, among other
reasons, there was no indication that it was “more than just [a]
stray or isolated remark”); Candillo v. N.C. Dep’t of Corr., 199
F.Supp.2d 342, 350 (D.Md. 2002) (derogatory comments made about
Hispanics was not direct evidence where the comments occurred in
response

to

the

plaintiff’s

request

for

secretarial

support,

“not the decision whether to promote” the plaintiff).
Absent

direct

circumstantially

evidence,

using

the

Plaintiff

pretext
30

must

framework

prove

her

established

case
in

McDonnell Douglas.
demonstrate

a

Under this framework, Plaintiff must first

prima

facie

case

of

discriminatory

which requires Plaintiff to show that:

discharge,

(1) she is a member of a

protected class; (2) she suffered an adverse employment action;
(3)

she

was

performing

at

a

level

that

met

her

employer’s

legitimate expectations at the time of the adverse employment
action; and (4) her position was filled by a similarly qualified
applicant outside the protected class.

See King v. Rumsfeld,

328 F.3d 145, 149 (4th Cir. 2003).
Defendants argue that Plaintiff cannot meet the third prong
of the prima facie showing because she cannot establish that she
was meeting Payless’ legitimate expectations at the time she was
terminated.

They

assert

that

her

“insubordinate,

confrontational and hostile” behavior during the meeting with
DeMicco on March 31, “combined with her refusal to follow the
6/54 Policy, constituted a clear violation of Payless’ Code of
Conduct” and was the basis for her termination.
at 24).
the

(ECF No. 43-1,

The relevant time period for evaluating the adequacy of

employee’s

immediately

job

after

performance,

the

event

that

however,
prompted

is

clearly

termination.

not
See

Bradford v. Conbraco Indus., Inc., Civ. No. 4:08-cv-2085-RBHTER,

2010

WL

1069543,

at

*8

(D.S.C.

Feb.

12,

2010)

(“the

relevant time period to assess Plaintiff’s job performance is
from January 2007, when she began her position as calibration
31

lab clerk, to April 2007, when she was terminated from that
position”).

The

record

reflects

that

Plaintiff

consistently

received strong performance evaluations over the course of her
employment and that she earned a number of performance-based
awards.

Thus,

Plaintiff

has

established

that

her

job

performance was meeting her employer’s legitimate expectations.
See Boyd v. Presbyterian Hosp., 160 F.Supp.2d 522, 535 (S.D.N.Y.
2001) (“The second prong of a prima facie case, satisfactory job
performance, is a fairly low threshold to meet”).
Defendants further contend that Plaintiff cannot meet the
fourth

prong

of

the

prima

facie

showing

because

she

cannot

“demonstrate that other employees outside of her protected class
were treated differently” insofar as she acknowledged at her
deposition that “all [s]tore [m]anagers . . . were required to
comply with the 6/54 [p]olicy for the pre-Easter period [from]
March

29

–

April

relevant

question,

situated

employees

11,

2009.”

however,
were

(ECF
is

subject

not
to

No.

43-1,

whether
the

same

at
all

25).

The

similarly-

requirements

in

terms of work hours, but whether Plaintiff’s position was filled
by someone outside her protected classes.

There appears to be

no dispute that, upon Plaintiff’s termination, Payless installed
Kevin Campbell, a Caucasian male, as the store manager at the
Bowie location.

Accordingly, Plaintiff has established a prima

facie case of discrimination based on race and national origin.
32

The

burden,

then,

shifts

to

Defendants

reason

to

for

assert

a

legitimate,

nondiscriminatory

Plaintiff’s

termination.

Defendants have offered extensive evidence that

Plaintiff’s termination resulted from her inappropriate behavior
during the counseling meeting with DeMicco on March 31.

This

evidence reflects that DeMicco and Snell initially decided to
issue Plaintiff “a Final Written Warning in Lieu of Termination
. . . for insubordination based upon her refusal to comply with
the 6/54 Policy.”

(ECF No. 43-2, at 44; see also id. at 5).

This warning specifically advised that “[a]ny other incidents
viewed as insubordinate will result in immediate termination.”
(Id. at 52).

When DeMicco attempted to discuss the written

warning with Plaintiff, she began “shouting” at him, “throwing
her personal belongings around the backroom,” and “follow[ed]
[him] through the sales floor[,] . . . continuing to shout . . .
in front of customers and associates[.]”

(Id. at 11).

If

believed, this conduct would constitute a clear violation of
Payless’ Code of Conduct, and, by itself, could have “result[ed]
in immediate termination without prior disciplinary warning.”
(Id.

at

6).

According

to

Defendants,

it

was

only

after

Plaintiff’s outburst that DeMicco and Snell consulted and the
decision

to

discharge

was

made.

Based

on

this

evidence,

Defendants have provided a legitimate, non-discriminatory reason
for Plaintiff’s dismissal.

See Armstrong v. Index Journal Co.,
33

647 F.2d 441, 448 (4th Cir. 1981) (Title VII “was not intended to
immunize insubordinate, disruptive, or nonproductive behavior at
work.

An employer must retain power to discipline and discharge

disobedient employees”).
Plaintiff,
Defendants’

proffered

discrimination.
response

therefore,

to

bears

the

burden

justification

of

was

showing
pretext

that
for

Although she has not submitted any evidence in
Defendant’s

motion,

the

purportedly

verified

complaint provides a very different account of what transpired
on March 31.
inappropriately

According to Plaintiff, it was DeMicco who acted
when

he

“yelled

at

her”

as

she

entered

the

store’s stockroom, “slammed his material[s] on a nearby table,”
physically accosted her when she attempted to report his conduct
to Rhule, “yelled that she was suspended and should ‘get out,’”
and “banged on [her] car demanding the keys [to the store]” when
she tried to leave.

(ECF No. 2 ¶¶ 24, 25).

Plaintiff further

asserts that, in the midst of these events, she asked DeMicco if
he was planning on replacing her with Campbell, to which DeMicco
replied that he would do as he pleased and “plac[ed] a telephone
call to [Campbell].”

(Id. at ¶ 24).

Moreover, she asserts that

her employment was not terminated on March 31, as Defendants
suggest, but that DeMicco told her she was discharged during a
phone

conversation

Defendants

on

themselves

the
have

evening
provided
34

of

April

evidence

2.

Indeed,

supporting

that

discharge date.
between

March

potentially

(ECF No. 43-2, at 18).
31

and

the

significant

conversation

between

evening

of

events

Plaintiff

During the interim

April

2,

occurred,

and

Rhule,

a

number

including

during

which

of
a

Rhule

allegedly said that “she hoped this was not a racial case” (ECF
No.

2

¶

27),

and

Plaintiff’s

provision

of

a

“disability

certificate” from Dr. Chung reflecting that she was “partially
incapacitated” during the critical time period and “need[ed] to
work only 45 hours due to injury” (ECF No. 43-2, at 57).
In sum, the record reveals numerous disputes of material
fact

about

the

circumstances

of

Plaintiff’s

termination.

Accordingly, Payless’ motion for summary judgment on Plaintiff’s
discriminatory discharge claims will be denied.
D.

Retaliation

Plaintiff’s claims of retaliation under Title VII, § 1981,
and

FEPA

framework.

are

also

analyzed

under

the

McDonnell

Douglas

To establish a prima facie case, she must show that:

(1) she engaged in a protected activity, (2) her employer acted
adversely

against

her,

and

(3)

the

protected

causally connected to the adverse action.
Homes, Inc., 487 F.3d 208, 218 (4th

activity

was

See Holland v. Wash.

Cir. 2007) (Title VII);

Pulley v. KPMG Consulting, Inc., 348 F.Supp.2d 388, 396 (D.Md.
2004) (§ 1981).

Defendants argue that Plaintiff cannot show

that she engaged in a protected activity.
35

Pursuant to 42 U.S.C. § 2000e-3(a), it is unlawful for an
employer to discriminate against an employee “because [s]he has
opposed any practice made an unlawful practice by [Title VII],
or because [s]he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing

under

this

subchapter.”

Protected

activity

of

an

employee, therefore, can take the form of either opposing a
practice prohibited under Title VII (pursuant to the opposition
clause)

or

making

a

charge,

testifying,

assisting,

or

participating in an investigation, proceeding, or hearing under
Title VII (pursuant to the participation clause).
Plaintiff

asserts

that

her

termination

“constituted

retaliation against Plaintiff for inquiring about, and objecting
to, [DeMicco’s] plans unlawfully to replace her as the Store
Manager.”

(ECF No. 2 ¶ 54).

Indeed, the complaint reflects

that, on multiple occasions, Plaintiff expressed to DeMicco her
concern

that

he

manager

–

fear

a

was

planning

that

Plaintiff was terminated.

to

install

ultimately

came

Campbell

store

fruition

to

as

after

DeMicco denied ever having such a

plan (ECF No. 43-2 ¶ 11), however, and Plaintiff never expressed
her

concern

to

the

human

resources

department

(id.

at

44).

Thus, Plaintiff’s alleged protected activity consists of voicing
her

opposition

to

what

she

perceived

to

be

a

plan

discriminate against her to the would-be discriminator.
36

to

To be

entitled to protection under the opposition clause, she must
have opposed “an unlawful employment practice” under Title VII.
42

U.S.C.

§

2000e-3(a)

(emphasis

added);

see

also

Dea

v.

Washington Suburban Sanitary Comm’n, 11 Fed.Appx. 352, 357-58
(4th Cir. 2001) (“At a minimum . . . a plaintiff bringing a claim
for retaliation must have held a reasonable, good faith belief
that

the

employment

Title VII.”).

practice

[she]

opposed

was

violative

of

Plaintiff does not assert that she opposed any

practice; rather, she claims that she opposed what she perceived
to be a plan to violate Title VII in the future.
constitute

a

Accordingly,

protected

activity

Defendants

are

under

entitled

the
to

This does not

opposition

summary

clause.

judgment

on

Plaintiff’s retaliation claims.
E.
In

Negligent Supervision and Retention
the

seventh

count

of

her

complaint,

labeled

“State

Wrongful Conduct,” Plaintiff alleges negligent supervision and
retention

against

inappropriate

conduct

DeMicco on March 31.

Payless
and

based

the

on

alleged

Ebelein’s
battery

sexually

committed

by

Defendants argue that Plaintiff “has not

alleged, must less proven, the requisite elements” of her claim.
(ECF No. 46, at 9).
As

Judge

Davis

explained

in

Bryant

v.

Better

Business

Bureau of Greater Maryland, Inc., 923 F.Supp. 720, 751 (D.Md.
1996):
37

In order to prove a cause of action for
either negligent hiring, supervision or
retention, the Plaintiff must establish that
her injury was caused by the tortious
conduct of a coworker, that the employer
knew or should have known by the exercise of
diligence and reasonable care that the
coworker was capable of inflicting harm of
some type, that the employer failed to use
proper care in selecting, supervising or
retaining
that
employee,
and
that
the
employer’s breach of its duty was the
proximate cause of the Plaintiff’s injuries.
See Evans [v. Morsell, 284 Md. 160, 165
(1978)] (quoting [Norfolk and Western R.R.
Co. v. Hoover, 79 Md. 253, 262 (1894)]; see
also McCall’s Ferry Power Co. v. Price, 108
Md. 96, 69 A. 832, 834 (1908).
Here, there is no evidence in the record that Plaintiff
reported

DeMicco’s

alleged

battery

on

March

31

or

Ebelein’s

sexually inappropriate conduct to anyone associated with Payless
or that there were any witnesses to these incidents.

There is,

moreover, nothing suggesting that similar conduct on the part of
the offending co-workers had occurred in the past such that
Payless either knew or should have known of the propensity for
tortious conduct.

Thus, assuming Plaintiff suffered an injury,

she cannot show that it was proximately caused by Payless.

See

Bryant, 923 F.Supp. at 752 (“negligence is actionable only if it
is a proximate cause of damage”) (quoting Cramer [v. Housing
Opportunities
(1985)]).

Comm’n

of

Accordingly,

Montgomery
Defendants

judgment on this claim.

38

County,
are

304

Md.

entitled

to

705,

713

summary

IV.

Conclusion
For

the

reconsideration

foregoing
will

be

reasons,
denied

and

Plaintiff’s
Defendants’

motion
motion

for
for

summary judgment will be granted in part and denied in part.
separate order will follow.

_________/s/________________
DEBORAH K. CHASANOW
United States District Judge

39

A