Dzaringa v. Sears Roebuck & Co
Filing
20
MEMORANDUM OPINION (c/m to Plaintiff 10/15/13 sat). Signed by Chief Judge Deborah K. Chasanow on 10/15/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MICHEL DZARINGA
:
v.
:
Civil Action No. DKC 12-1609
:
SEARS, ROEBUCK & CO.
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination case is the motion for summary judgment filed by
Defendant Sears, Roebuck and Company (“Sears”).
(ECF No. 16).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
following
reasons,
the
motion
Local Rule 105.6.
for
summary
judgment
For the
will
be
granted.
I.
Background
Unless
construed
otherwise
in
the
noted,
light
the
most
facts
favorable
outlined
to
here
are
Plaintiff,
the
nonmoving party.
Plaintiff is a Congolese national who was an employee of
Defendant’s store in Bowie, Maryland from January 24, 2007 to
February
18,
2010.
This
case
centers
termination of Plaintiff’s employment.
around
Defendant’s
Sears
employees
are
responsible
for
submitting
time and attendance records for hours worked.
accurate
The employee is
responsible for punching in when he arrives at work and punching
out when he leaves, along with punching in and out when he takes
his lunch break.
In these circumstances, the employee merely
enters his name into the system and the program’s internal clock
records the time.
If the employee forgets to punch in or out at
the appropriate time, however, he must go to the program and
manually provide the time he arrived or departed.
If there is
an error in the employee’s time sheet, it is the employee’s
responsibility to submit a “punch correction sheet” to human
resources to correct the error.
Employees may take overtime
only if authorized by their supervisors. (ECF No. 16-2, at 1214, Plaintiff’s deposition transcript).
Plaintiff signed a form
acknowledging these rules on his first day of work.
(ECF No.
16-2, at 59).
On January 22, 2010, Plaintiff arrived at work at 8:35 am,
but did not punch in at that time.
manually
his
supervisor,
start
James
time,
he
Pressley,
When he later went to enter
entered
informed
8:05
am.
Plaintiff
Plaintiff’s
of
his
error.
The following day, Plaintiff met with Pressley and Eileen Brady,
a
human
resource
specialist
for
Plaintiff of the timekeeping error.
Sears
where
they
informed
Plaintiff did not offer to
correct his time sheet, but instead was instructed to take an
2
off-the-clock lunch break long enough to insure that he would
not incur overtime, for which he was not authorized.
(See ECF
16-2, at 45-53, Plaintiff’s deposition transcript; ECF No. 16-2,
at 65, Brady affidavit).
Plaintiff’s time sheet for this period ended up giving him
0.22 hours of overtime.
On January 25, 2010, Pressley and Brady
confronted Plaintiff with this issue.
Plaintiff’s explanation
was that he did not take a long enough break.
(Id. at 71,
Pressley’s memorandum to the record, Feb. 4, 2010).
Following
consultation with Sears’s corporate human resources department,
Pressley decided to terminate Plaintiff’s employment on February
18, 2010 because he falsified his time sheet.
(Id. at 25).
Plaintiff alleges that he received no reasons for being fired
nor any sort of documentation saying as much.1
Furthermore,
about thirty minutes after he was terminated, he called Sears’s
corporate human resources department to confirm the employment
action, whereupon he was informed that he was still listed as an
active employee.
Plaintiff
(ECF No. 18, at 2).
alleges
that
his
termination
was
done
on
the
basis of discrimination due to his national origin (Congolese)
1
Two documents in the record suggest past issues with
Plaintiff’s time and attendance. First, Plaintiff was cited for
taking 1.74 hours of unauthorized overtime on May 13, 2009.
(ECF No. 16-2, at 61).
Second, Pressley’s memorandum for the
record suggested that Plaintiff frequently would manually enter
in his arrival and departure times. (Id. at 73).
3
as evidenced by the lack of any sort of documentation to support
the
termination.
(ECF
No.
16-2,
at
22-23).
Furthermore,
Plaintiff accuses Pressley of harboring animus towards him on
account of his national origin.
As evidence, Plaintiff points
to comments Pressley made about Plaintiff’s accent, including
that Plaintiff “speak[s] the language of lions” and that he only
speaks
English
customers.
well
when
(Id. at 31).
he
is
interacting
with
female
Furthermore, Plaintiff alleges that
Pressley confronted Plaintiff and asked him who gave him his
supervisory position.
(Id. at 32).
Plaintiff also did not
appreciate Pressley’s supervision, finding Pressley’s treatment
of
him
to
be
[Plaintiff’s]
“like
value”
a
child,”
by,
for
with
example,
“no
consideration
removing
an
of
employee
Plaintiff supervised without consulting or informing Plaintiff
beforehand.
(See id. at 32-42).
Following
his
termination,
Plaintiff
applied
for
unemployment benefits but was initially denied after the state
agency, relying on information obtained from Sears, found that
he was discharged for gross misconduct and therefore ineligible
for benefits pursuant to Maryland Code, Labor and Employment §
8-1002.
Plaintiff appealed that decision to the Circuit Court
for Prince George’s County, Maryland which reversed the agency’s
decision.
The court found that Plaintiff did not intend to or
deliberately falsify his time report as required to demonstrate
4
“gross misconduct.”
(ECF No. 19-1).
Sears argued that even if
Plaintiff’s error was inadvertent, his failure to correct his
time
report
constituted
gross
misconduct,
but
the
court
disagreed, finding that “it was reasonable for the Petitioner to
believe that by taking a longer lunch break, as requested by his
employer, that he was making up for the time differential with
no need to make further correction.”
(Id. at 3).
On July 27, 2012, Plaintiff filed a pro se complaint in
this court.
(ECF No. 1).
Plaintiff contends that Defendant’s
termination of his employment violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., for employment
discrimination
on
the
basis
of
national
origin.
Following
discovery, Defendant moved for summary judgment on March 28,
2013.
(ECF No. 16).
Plaintiff filed an opposition on May 1,
2013, (ECF No. 18),2 and Defendant replied on May 20, 2013 (ECF
No. 19).
II.
Standard of Review
A motion for summary judgment will be granted only if there
exists no genuine issue as to any material fact and the moving
2
Plaintiff’s deadline to respond to Defendant’s motion was
April 15, 2013. Plaintiff acknowledges the untimeliness of his
opposition, but contends that he did not receive the letter the
Clerk’s office sent in accordance with Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975), informing him that a dispositive motion
had been filed and that he had had seventeen (17) days to
respond or risk entry of judgment against him.
Plaintiff’s
untimeliness will be excused.
5
party
is
entitled
to
judgment
as
a
matter
of
law.
See
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);
Anderson
(1986).
The moving party bears the burden of showing that there
is
no
genuine
v.
Liberty
issue
as
to
Lobby,
any
Inc.,
material
477
U.S.
fact.
242,
However,
250
no
genuine issue of material fact exists if the nonmoving party
fails to make a sufficient showing on an essential element of
his or her case as to which he or she would have the burden of
proof.
Celotex, 477 U.S. at 322–23.
Therefore, on those issues
on which the nonmoving party has the burden of proof, it is his
or her responsibility to confront the summary judgment motion
with an affidavit or other similar evidence showing that there
is a genuine issue for trial.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(c) when there is no genuine issue as to any
material
fact,
and
the
moving
party
is
plainly
judgment in its favor as a matter of law.
Liberty
Lobby,
Inc.,
the
Supreme
Court
In
entitled
to
Anderson v.
explained
that,
in
considering a motion for summary judgment, the “judge's function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial.”
477 U.S. at 249 (1986).
A dispute about a material
fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
6
Id. at 248.
Thus, “the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a
fair-minded
jury
could
return
a
party] on the evidence presented.”
verdict
for
the
[nonmoving
Id. at 252.
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”
Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting
United
States
v.
Diebold,
Inc.,
369
U.S.
654,
655
(1962)); see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d
397, 405 (4th Cir. 2005).
The mere existence of a “scintilla” of
evidence
the
in
support
of
non-moving
party's
case
is
sufficient to preclude an order granting summary judgment.
not
See
Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,
this
court
has
an
affirmative
obligation
to
prevent
factually unsupported claims and defenses from going to trial.
See
Drewitt
v.
Pratt,
999
F.2d
774,
778–79
(4th
Cir.
1993)
(quoting Felty v. Graves–Humpreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
7
III. Analysis
Plaintiff has alleged unlawful employment discrimination on
the basis of national origin.
A plaintiff may establish a claim
for intentional discrimination using two methods.
He may either
demonstrate “through direct or circumstantial evidence” that his
national
origin
“motivated
the
employer’s
adverse
employment
decision,” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d
277,
(4th
284
Cir.
2004),
or
he
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 directly on the contested employment decision.”
v.
Ohio
Cas.
Ins.
Co.,
435
F.3d
510,
520
(4th
(citation and internal quotation marks omitted).
Warch
Cir.
2006)
“Only the most
blatant remarks, [the intent of which] could be nothing other
than
to
discriminate
discrimination.”
.
.
.
constitute
Nana-Akua
Takyiwaa
direct
Shalom
evidence
v.
of
Payless
Shoesource Worldwide, Inc., 921 F.Supp.2d 470, 484 (D.Md. 2013)
(citation and internal quotation marks omitted).
8
If believed,
direct evidence “would prove the existence of a fact . . .
without any inference or presumptions.”
O’Connor v. Consol.
Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995) (citation
and internal quotation 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
that
employment was terminated based on national origin.
evidence
in
the
record
approaching
national origin was Pressley’s
that
he
was
“speaking
the
mention
of
his
The only
Plaintiff’s
alleged comment to Plaintiff
language
of
lions,”
and
that
his
English improved markedly when he was interacting with female
customers.
(ECF No. 16-2, at 31).
Even if these comments
constitute evidence of a discriminatory attitude on the part of
Pressley, they were in no way linked to Plaintiff’s termination.
Indeed, Plaintiff could not pinpoint when these statements were
allegedly
made,
contemporaneous
and
with
the
did
not
suggest
termination
that
decision,
they
nor
that
came in a context related to Plaintiff’s employment status.
Brinkley
v.
Harbour
Recreation
9
Club,
180
F.3d
598
(4th
were
they
See
Cir.
1999),
abrogated on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003) (derogatory remark uttered eighteen
months prior to termination did not constitute direct evidence
of discrimination); 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” did “not evince an intent to
discharge an older employee”); Nana-Akua, 921 F.Supp.2d at 484
(supervisor
imitating
plaintiff’s
accent
and
saying
“I
don’t
like your accent” approximately two months prior to plaintiff’s
termination
date
did
not
constitute
direct
evidence
of
discrimination as they were not in any way linked to plaintiff’s
termination);
E.E.O.C.
v.
CTI
Global
Solutions,
Inc.,
815
F.Supp.2d 897, 907 (D.Md. 2011) (“Where the derogatory statement
bears little relation to the contested employment action and is
attenuated by time, a plaintiff will likely fail to satisfy the
nexus requirement.”).
Absent
direct
circumstantially
using
McDonnell Douglas.
demonstrate
a
evidence,
prima
the
Plaintiff
pretext
must
framework
prove
his
established
case
in
Under this framework, Plaintiff must first
facie
case
of
discriminatory
discharge,
which requires Plaintiff to show that: (1) he is a member of a
protected class; (2) he suffered an adverse employment action;
(3)
he
was
performing
at
a
level
that
met
his
employer’s
legitimate expectations at the time of the adverse employment
10
action; and (4) his position remained open or was filled by a
similarly qualified applicant outside the protected class.
See
Lettieri v. Equant Inc., 478 F.3d 640, 646 (4th Cir. 2007).3
Defendant does not dispute that the first two prongs are
satisfied.
It contends that Plaintiff has failed to satisfy the
third and fourth prong, the latter of which it characterizes as
requiring
the
plaintiff
to
show
that
the
adverse
employment
action came “under circumstances giving rise to an inference of
discrimination.”
(ECF No. 16-1, at 13-14 (quoting Benahmed v.
BAE Sys. Tech. Solutions & Services, Inc., No. 12-1974-CW, 2012
WL 5426432, at *4 (D.Md. Nov. 6, 2012)).
Plaintiff
was
on
notice
of
the
policy
According to Sears,
regarding
employees’
responsibility for ensuring correct time cards and not incurring
unauthorized overtime, but failed to achieve an accurate time
sheet as evidenced by the 0.22 hours of unauthorized overtime he
accumulated for the period ending January 23, 2010.
contains
two
items
of
relevance
to
Plaintiff’s
The record
performance:
first, a document entitled “Documentation of Performance Issues”
dated May 13, 2009.
This document was completed by Alejandro
McClain and noted that Plaintiff took 1.74 hours of unauthorized
3
Alternatively, a plaintiff could argue that he was subject
to discipline stricter than that meted out to non-Congolese
employees by establishing that similarly situated employees
outside plaintiff’s class received more favorable treatment,
i.e., not being fired. See Stoyanov v. Mabus, No. DKC-07-1953,
2013 WL 1104978, at *4 (Mar. 15, 2013).
Dzaringa has made no
such claim. (See ECF No. 16-2, at 22).
11
payroll
for
week.
February
Pressley’s
that
4,
(ECF
2010
No.
16-2,
memorandum
at
the
for
61).
Second,
record
which
alludes to Plaintiff’s repeated practice of manually punching in
his times.
(Id. at 73).
Plaintiff has provided no evidence that his job performance
at Sears met Sears’s legitimate expectations at the time of the
adverse employment action, nor has he produced evidence that
Sears’s “expectations” were not legitimate.
Plaintiff contends
that in more than three years of working at Sears he never had
an issue with his conduct, (ECF No. 18, at 1-2), but Plaintiff’s
own
view
PepsiCo,
of
his
Inc.,
performance
203
F.3d
is
274,
irrelevant.
280
(4th
See
Cir.
Hawkins
2000).
It
v.
is
undisputed that he failed to follow Defendant’s policies, and
the
only
evidence
he
provides
to
demonstrate
Defendant’s
nefarious motive are some stray remarks by Pressley and the
general feeling that Pressley was not giving him the autonomy
and
respect
he
thought
his
position
deserved.
Such
is
the
“scintilla of evidence in support” that is insufficient for the
nonmoving party on a motion for summary judgment.
Anderson, 477
U.S. at 252.
Finally,
Plaintiff
places
great
weight
on
the
circuit
court’s finding that Sears did not demonstrate that Plaintiff
engaged in “gross misconduct.”
evidence
that
the
real
He contends that this serves as
reason
12
for
his
termination
was
discriminatory
animus.
Even
accepting
the
circuit
court’s
finding, it has no bearing here as the two cases are unrelated
and concerned with different matters.
The circuit court found
it reasonable to conclude that Plaintiff’s timecard errors were
inadvertent and therefore not the “willful and wanton disregard”
of his obligations necessary for a finding of gross misconduct.
The circuit court case was concerned with the egregiousness of
Plaintiff’s
conduct
and
whether
it
warranted
a
denial
of
unemployment benefits.
This case deals with whether Defendant’s
decision
Plaintiff
to
intent.
terminate
Merely
because
a
was
circuit
based
court
on
discriminatory
determines
that
employee’s mistakes were inadvertent for purposes of receiving
unemployment benefits does not mean that he was performing up to
Sears’s
legitimate
performance
expectations
and
eligible
for
discipline, up to and including termination, let alone that that
termination
was
done
because
of
Plaintiff’s
national
origin.
Plaintiff is thus unable to resist summary judgment.4
4
Because Plaintiff cannot satisfy the third prong of the
prima facie case, it is unnecessary to consider whether he
satisfied the fourth prong, or whether he had to at all.
See
Lettieri, 478 F.3d at 647-48 (where the firing and replacement
hiring decisions are made by different decisionmakers, the
plaintiff is relieved of the burden of showing that he was
replaced by someone outside his protected class).
13
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Defendant Sears will be granted.
A separate order will
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
14
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