Briscoe v. W.A. Chester, L.L.C.
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/5/2019. (km4s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
MICHAEL WAYNE BRISCOE,
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Plaintiff,
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v.
Case No.: GJH-17-1675
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W.A. CHESTER, LLC,
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Defendant.
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MEMORANDUM OPINION
Plaintiff Michael Wayne Brisco alleges that his employer, the electric utility company
Defendant W.A. Chester, LLC, unlawfully demoted him because of his race in violation of Title
VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. ECF No. 1. Pending before the Court
is Defendant’s Motion for Summary Judgment. ECF No. 38. No hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). For the following reasons, Defendant’s Motion for Summary Judgment
is granted.
I.
BACKGROUND1
Defendant hired Plaintiff, who is African-American, as a Journeyman Lineman on March
6, 2005. ECF No. 38-3 ¶ 5; ECF No. 38-4 at 29:8–9. A Journeyman Lineman’s job includes
connecting electricity to new homes and existing homes that storm or heavy rain have damaged
or cut of their power supply. ECF No. 1 ¶ 9.2 A Journeyman Lineman is supervised by a
Foreman. ECF No. 38-4 at 6:3–7:1.
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These facts are either undisputed or viewed in the light most favorable to the Plaintiff as the non-moving party.
Although neither party provides a proper record citation for this fact, it is undisputed.
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Defendant promoted Plaintiff to a Foreman position on March 8, 2007. ECF No. 38-3 ¶ 6.
Plaintiff served as a Foreman from 2007 until Defendant demoted him back to a Journeyman
Lineman position in February 2015. Id. ¶ 6. A Foreman is “responsible for the men” working
under him. ECF No. 38-4 at 6:3–7:1.3 Among a foreman’s responsibilities are assessing the jobs,
ensuring the safety of the crew, supervising the men on the crew, and communicating with upper
management. Id. at 8:16–9:8.
Throughout his tenure as a Foreman, Plaintiff was disciplined several times. ECF No. 383 ¶¶ 7–13. Although Plaintiff could only recall two specific instances of discipline, he does not
dispute that he received warnings on other occasions. ECF No. 38-4:11–18; ECF No. 40-1 at 7.
Among raising other issues, these warnings addressed times that Plaintiff had failed to
communicate with his supervisors and directed Plaintiff to take corrective action to keep his
supervisors informed about his crew’s status. ECF No. 38-3 ¶¶ 10–12.
After receiving several warnings, Plaintiff received another final written warning
regarding his performance as a Foreman on July 28, 2014. ECF No. 38-3 ¶ 13; ECF No. 38-3 at
17–18. That final written warning stated that Plaintiff was “not maintaining a line of
communication with his General Foreman” and that “[t]oo often the General Foreman [was]
hearing about issues after the fact.” Id. at 18. The warning also said:
As a Foreman, Mike Briscoe is considered a manager. In his role he is expected to
direct his work force to achieve the goals of W.A. Chester. You are expected to
make job assignments, not job requests. When you request an employee to
perform a task it is a point of politeness and respect. They “decline” or “refuse” it
then becomes an order. Failure to follow that request/order is deemed to be gross
insubordination. The penalty for which is termination. This applies to orders from
you to your subordinates or orders given from Emory Kelly to you.
Id.
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Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
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The warning directed Plaintiff to take corrective actions like contacting his supervisor
twice a day with updates on Plaintiff’s crew. Id. Finally, the warning explained that if Plaintiff
failed to address the issues discussed, Defendant would have to re-evaluate his supervisory
position. Id.
Plaintiff’s colleague Brian Goldberg, who is Caucasian, was temporarily upgraded from
Journeyman Lineman to Foreman in October 2013 and was formally promoted to the position of
Foreman in January 2014. ECF No. 38-3 ¶ 14. He had previously reported to Plaintiff. ECF No.
38-4:13–21. When Mr. Goldberg was formally promoted, he and Mr. Briscoe both worked as
Foremen at the Rockville yard. ECF No. 38-3 ¶ 14. Thus, the men working at Rockville yard at
times reported to Plaintiff and at times reported to Mr. Goldberg. ECF No. 40-7 at 3:6–8. The
supervision assignments varied day to day, depending on Defendant’s needs. Id.
On at least three occasions between November 2014 and January 2015, Brandon
Wakefield, the Union Steward, reported to Plaintiff and Mr. Goldberg various workplace issues,
including twice reporting issues related to an employee named Lawrence Verrett. ECF No. 38-3
¶ 18; id. at 19–22. These issues concerned safety on jobsites and Mr. Verrett’s behavior. Id. For
example, in or around December 2014, Mr. Wakefield discussed with Plaintiff and Mr. Goldberg
an incident in which Mr. Verrett threatened other members of the crew. ECF No. 38-3 at 20.
Although Plaintiff claims that, at the time Mr. Wakefield brought these issues to his attention,
both Mr. Wakefield and Mr. Verrett were working under Mr. Goldberg’s supervision, ECF No.
40-4 ¶ 18, he acknowledges that men in his crew were uncomfortable working with Mr. Verrett,
that Mr. Wakefield made him aware of his concerns, and that he received at least one written
note about the issues. ECF No. 38-4 at 14:22–18:14; 18:10–19:20; 19:12–21:4; 22:9–17. On each
occasion when Mr. Wakefield raised an issue with Plaintiff and Mr. Goldberg, Plaintiff
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responded that he would look into or take care of the issue. ECF No. 38-5 at 10:16–11:22; ECF
No. 38-3 ¶ 17.
Neither Plaintiff nor Mr. Goldberg reported any of Mr. Wakefield’s concerns up the
chain to Ed Lavelle, Defendant’s Human Resources Manager; Emory Kelley, the General
Foreman; or anyone else. ECF No. 38-3 ¶ 16; id. at 23–24; ECF No. 38-4 at 21:15–17; ECF No.
38-4 at 13:14–14:5.
Plaintiff talked to Mr. Kelley three to four times a week in the evenings; Mr. Goldberg
did not. ECF No. 38-4 24:12–25:17. Because Plaintiff took responsibility for “looking into” the
issues with Mr. Verrett, Mr. Goldberg did not report any of Mr. Wakefield’s concerns to Ed
Lavelle, Emory Kelley, or anyone else. ECF No. 38-5 at 11:4–22.
After an incident in which Mr. Verrett cursed at and was disrespectful to Mr. Goldberg,
Mr. Wakefield told Mr. Lavelle about his concerns related to Mr. Verrett’s behavior and Plaintiff
and Mr. Goldberg’s supervision styles. ECF No. 38-3 ¶ 16. Because Mr. Lavelle concluded that
Plaintiff and Mr. Goldberg had previously been made aware of issues with Mr. Verrett but had
not raised them to the attention of anyone else, including him, Emory Kelley, or Don Cherba (the
Project Manager), Mr. Lavelle (who is responsible for making discipline decisions) decided to
discipline both Plaintiff and Mr. Goldberg. Defendant disciplined Plaintiff by demoting him to a
Journeyman Lineman position and disciplined Mr. Goldberg by giving him a written warning. Id.
¶¶ 23, 26.
In making this decision, Mr. Lavelle considered that: (1) Plaintiff had received a final
written warning in July 2014 for, in part, failing to communicate with his supervisor regarding
workplace issues, and (2) in Mr. Lavelle’s view, Plaintiff appeared to be actively concealing
these workplace concerns by telling his colleagues he would address them and then failing to do
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so. ECF No. 38-3 ¶¶ 24–25. By contrast, Mr. Lavelle gave Mr. Goldberg only a written warning
because (1) Mr. Goldberg had not received any prior discipline during his time as a Foreman, (2)
Mr. Goldberg was a less experienced Foreman who was taking cues from Plaintiff, and (3) Mr.
Goldberg may have been lulled into inaction as a result of Plaintiff telling him that he would
“look into” the concerns about Mr. Verrett.. Id. ¶¶ 26–29; id. at 24; ECF No. 38-5 at 12:9–13:10.
According to Mr. Lavelle, he did not consider Plaintiff or Mr. Goldberg’s race when
deciding the appropriate discipline for their failure to inform management about Mr. Verrett’s
behavior. ECF No. 38-2 ¶¶ 26–27. Plaintiff disagrees but cites only to his Complaint to support
his view that he was demoted because of his race. ECF No. 40-1 at 7 ¶ 8. And except for the fact
that he received different discipline than Mr. Goldberg who is Caucasian, Plaintiff has
acknowledged that he has no reason to believe Mr. Lavelle or other decisionmakers working for
Defendant harbored racist motivations. ECF No. 38-4 at 37:22–38:3; see also id. at 34:2–38:3.
Further, in the ten years prior to Mr. Briscoe’s demotion, eight other supervisors were demoted
or terminated for performance reasons. ECF No. 38-3 ¶ 31. These supervisors were all
Caucasian. Id.
Eventually, Plaintiff was re-promoted to a Foreman position on June 20, 2016. ECF No.
38-3 ¶ 32. Plaintiff still works for Defendant in that role. ECF No. 38-4 at 4:7–13.
II.
STANDARD OF REVIEW
Summary judgment is proper if there are no issues of material fact and the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th
Cir. 2006). A material fact is one that “might affect the outcome of the suit under the governing
law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir.2001) (quoting Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)). A dispute of material fact is only “genuine” if
sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict
for that party. Anderson, 477 U.S. at 248–49. However, 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). The Court may rely on only facts
supported in the record, not simply assertions in the pleadings, to fulfill its “affirmative
obligation . . . to prevent ‘factually unsupported claims or defenses’ from proceeding to trial.”
Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). When ruling on a motion
for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255.
III.
DISCUSSION
Title VII makes it illegal for an employer “to discharge any individual or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race . . .” 42 U.S.C. § 2000e-2(a)(1). “A
plaintiff generally may defeat summary judgment and establish a claim for race discrimination
[under Title VII] through two avenues of proof.” Holland v. Washington Homes, Inc., 487 F. 3d
208, 213 (4th Cir. 2007). One avenue is for the plaintiff to demonstrate “through direct or
circumstantial evidence that his race was a motivating factor in the employer's adverse
employment action.” Id. (citing Hill v. Lockheed Marlin Logistics Mgmt., Inc., 354 F. 3d 277,
284 (4th Cir. 2004) (en banc)). Alternatively, the plaintiff may proceed under the familiar
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973).
Where, as here, the record contains no direct evidence of discrimination, a plaintiff’s Title VII
claims must be analyzed under the McDonnell-Douglas burden-shifting framework. Haynes v.
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Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019). The McDonnell-Douglas framework
also applies to discrimination cases arising under § 1981. Guessous v. Fairview Prop.
Investments, LLC, 828 F.3d 208, 216–17 (4th Cir. 2016) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)) (explaining that McDonnell Douglas was initially developed for
Title VII discrimination cases “but has since been held to apply in discrimination cases arising
under § 1981”).
Under McDonnell Douglas, a plaintiff alleging disparate treatment must first establish a
prima facie case of discriminatory discipline, namely that (1) he is a member of a protected
class; (2) the prohibited conduct in which he engaged was comparable in seriousness to
misconduct of employees outside the protected class; and (3) the disciplinary measure enforced
against him was more severe than those enforced against other similarly situated employees. See,
e.g., Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). If an employee meets this
burden to establish a prima facie case, the burden shifts to the employer to provide a legitimate,
nondiscriminatory reason for the adverse employment action. Hoyle v. Freightliner, LLC, 650
F.3d 321, 336 (4th Cir. 2011). If the employer meets this burden of production, summary
judgment is only appropriate if the employee cannot demonstrate that the defendant’s proffered
reason is pretextual. Id.
Here, it is undisputed that Plaintiff, as an African-American, is a member of a protected
class. Further, the prohibited conduct in which he engaged—failing to keep his supervisors
informed about workplace safety and conduct issues—is comparable in seriousness to
misconduct of an employee outside the protected class. Specifically, Mr. Goldberg, who is
Caucasian, also received reports from Mr. Wakefield, the Union Steward, about the same various
workplace issues raised with Plaintiff. ECF No. 38-3 ¶ 18; id. at 19–22. For example, around
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December 2014, Mr. Wakefield discussed with Plaintiff and Mr. Goldberg an incident in which
Mr. Verrett threatened other members of the crew. ECF No. 38-3 at 20. Neither Plaintiff nor Mr.
Goldberg reported any of Mr. Wakefield’s concerns to management or Human Resources. ECF
No. 38-3 ¶ 16; id. at 23–24; ECF No. 38-4 at 21:15–17; ECF No. 38-4 at 13:14–14:5. Although
Defendant claims that Mr. Goldberg’s conduct was not comparably serious because Plaintiff
lulled Mr. Goldberg into inaction by telling him he would take care of any issues, Plaintiff has
introduced evidence that at the time Mr. Wakefield brought these issues to his attention, he
believed both Mr. Wakefield and Mr. Verrett were working under Mr. Goldberg’s supervision.
ECF No. 40-4 ¶ 18. Ultimately, the record shows that both Plaintiff and Mr. Goldberg were
responsible for reporting on the status of their overlapping crew, ECF No. 40-7 at 3:6–8, and that
their failure to do so is comparably serious.
Finally, the disciplinary measure enforced against Plaintiff—demotion—was more severe
than the written warning received by Mr. Goldberg, a similarly situated employee. Both Plaintiff
and Mr. Goldberg were employed by Defendant as Foremen at Rockville Yard when they were
disciplined. ECF No. 38-3 ¶ 14. As such, they were responsible for the crew working under
them, ECF No. 38-4 at 6:3–7:1, including assessing the jobs, ensuring the safety of the crew,
supervising the men on the crew, and communicating with upper management, id. at 8:16–9:8.
Additionally, Plaintiff and Mr. Goldberg supervised the same men—the men at Rockville yard at
times reported to Plaintiff and at times reported to Mr. Goldberg. ECF No. 40-7 at 3:6–8 (Mr.
Goldberg explaining that he was not “in charge of one set amount of people” because the people
he supervised “varied day to day” depending on needs.). Further, both men dealt with the same
supervisors. ECF No. 38-3 ¶ 22. Although Defendant points out that Mr. Goldberg had less
experience as a Foreman and had previously worked under Plaintiff’s supervision, the Fourth
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Circuit has emphasized that a comparison between similar employees never involves identical
circumstances. Haynes, 922 F.3d at 223 (citing Cook, 988 F.2d at 511). Taken together, the
record contains sufficient evidence to support Plaintiff’s prima facie claim.
The burden thus shifts to Defendant to offer a legitimate, non-discriminatory reason for
treating Plaintiff and Mr. Goldberg differently. Defendant has met this burden of production,
explaining that it disciplined Plaintiff and Mr. Goldberg differently because Plaintiff, unlike Mr.
Goldberg, had previously received a final written warning in July 2014 for failing to
communicate with his supervisor regarding workplace issues, and in Mr. Lavelle’s view,
Plaintiff appeared to be actively concealing issues from management. ECF No. 38-3 ¶¶ 24–25. In
contrast, Mr. Goldberg had not received any prior discipline during his tenure as a Foreman, was
less experienced than Plaintiff, and relied on Plaintiff’s representation that he would resolve the
issues. Id. ¶¶ 26–29; id. at 24; ECF No. 38-5 at 12:9–13:10.
Thus, the burden shifts back to Plaintiff to show that genuine disputes of material fact
remain over whether Defendant’s non-discriminatory reasons for disciplining Plaintiff more
harshly than Mr. Goldberg are pretextual. “[T]o show pretext, a plaintiff may show that an
employer’s proffered nondiscriminatory reasons” are “inconsistent over time, false, or based on
mistakes of fact.” Haynes, 922 F.3d at 225. If the plaintiff “offers such circumstantial evidence,
the case must be decided by a trier of fact,” id., because “once the employer’s justification has
been eliminated, discrimination may well be the most likely alternative explanation, especially
since the employer is in the best position to put forth the actual reason for its decision,” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Here, however, Plaintiff has failed
to offer any evidence to support his allegation that Defendant’s proffered, legitimate business
reasons were not its actual reasons for demoting Plaintiff while only disciplining Mr. Goldberg
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with a written warning. Plaintiff does not dispute that, unlike Mr. Goldberg, he received a final
written warning regarding past communication failures and directing him to take corrective
actions like contacting his supervisor twice a day with updates on Plaintiff’s crew. ECF No. 38-3
at 18. The warning explained that if Plaintiff failed to address the issues discussed, Defendant
would have to re-evaluate his supervisory position. Id. Defendant further does not dispute that
Mr. Wakefield brought issues related to safety and Mr. Verrett’s behavior to his attention and
that he failed to communicate these issues up the chain, despite telling Mr. Goldberg that he
would look into the matters. ECF No. 38-5 at 10:16–11:22; ECF No. 38-3 ¶ 17. Although
Plaintiff argues that Defendant has improperly blamed him for Mr. Verrett and Mr. Goldberg’s
misconduct, ECF No. 40-1 at 11, he does not offer any evidence disputing or explaining why he
told Mr. Goldberg he would handle the workplace conduct issues rather than telling Mr.
Goldberg to address the concerns on his own. Additionally, Plaintiff does not dispute that he
talked to the General Foreman three to four times a week in the evenings, while Mr. Goldberg
did not, ECF No. 38-4 24:12–25:17, or that Mr. Goldberg would have turned to Plaintiff for help
because Plaintiff had more experience as a supervisor.
Moreover, Plaintiff has not offered any evidence that Defendant took race into
consideration when it disciplined Plaintiff and Mr. Goldberg. Plaintiff cites only to his
Complaint to support his view that he would not have been demoted if he were Caucasian. Yet
Plaintiff “cannot create a genuine issue of material fact through mere speculation,” Beale, 769
F.2d at 214. Instead, at this stage, the Court may rely on only facts supported in the record, not
simply assertions in the pleadings. Felty, 818 F.2d at 1128. Furthermore, the record supports the
opposite conclusion because Defendant has demonstrated that it has consistently applied its
discipline policies to employees without regard to race. ECF No. 38-3 ¶ 31.
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Because Plaintiff has offered no evidence that the legitimate business reasons given were
not the Defendant’s true reasons for its decision, a trier of fact could not return a verdict for
Plaintiff, and Defendant is entitled to summary judgment.
IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. A
separate Order shall issue.
Date: June 5, 2019
_/s/_________________________
GEORGE J. HAZEL
United States District Judge
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