Davis v. BSH Home Appliances Corporation, et al
Filing
96
ORDER granting 80 Motion for Summary Judgment. Signed by District Judge Louise Wood Flanagan on 3/1/2019. (Castania, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:15-CV-103-FL
CARL E. DAVIS,
Plaintiff,
v.
BLUE ARBOR, INC.; and TESI
SCREENING, INC.,
Defendants.
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ORDER
This matter comes before the court on defendants’ joint motion for summary judgment (DE
80). Plaintiff responded in opposition to the motion, and defendants replied. In this posture, the
issues raised are ripe for ruling. For the reasons that follow, defendants’ joint motion for summary
judgment is granted.
STATEMENT OF THE CASE
Plaintiff initiated this action on June 15, 2015, alleging defendants Blue Arbor, Inc. (“Blue
Arbor”), TESI Screening, Inc. (“TESI Screening”), and BSH Home Appliances Corporation
(“Bosch”) unlawfully retaliated against him for engaged in protected activity, in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a). Plaintiff seeks
compensatory damages, punitive damages, costs, and reasonable attorney’s fees.
Defendants Blue Arbor and TESI Screening filed their answer to plaintiff’s complaint on
July 8, 2015. On July 16, 2015, defendant Bosch filed a motion to compel arbitration, which was
denied by the court on January 14, 2016. On motion by defendant Bosch, the court granted relief
to defendant Bosch and allowed it to refile its motion to amend on February 10, 2016. Defendant
Bosch then filed an amended motion to compel arbitration and stay proceedings on February 24,
2016, which was granted by the court on May 18, 2016. The case remained stayed as to all
defendants until July 11, 2017, when the court granted defendant Bosch’s motion to confirm
arbitrator’s award and dismissed all plaintiff’s claims against defendant Bosch.
On August 14, 2017, the court entered its case management order. On February 13, 2018,
with leave of court, plaintiff filed his amended complaint against defendants Blue Arbor and TESI
Screening (hereinafter “defendants”). Defendants answered the amended complaint on March 2,
2018. Discovery in this matter concluded on August 31, 2018.
On October 30, 2018, defendants timely filed the instant joint motion for summary judgment.
Defendants argue that plaintiff cannot produce evidence that establishes a causal link between an
adverse employment action and any purported discriminatory conduct; that defendant Blue Arbor
knew of, or otherwise acquiesced in, discriminatory conduct; that defendants jointly employed
plaintiff; that plaintiff was qualified for the employment sought with defendant Bosch; that
defendants are employers subject to Title VII; or that liability for defendant Blue Arbor’s acts or
omissions could be imputed to defendant TESI Screening. Defendants also argue that they had
legitimate, non-discriminatory reasons for why plaintiff was not offered a job with defendant Bosch.
In support of defendants’ motion, defendants filed a statement of material facts (DE 82), as
well as an appendix of exhibits, including: plaintiff’s employment records from defendant Bosch
(“Personnel Action Form” (DE 83-1); “2011 Settlement Agreement” (DE 83-2); “Termination
Letter” (DE 83-3)); the affidavit of Sadie Catherine Bell (“Bell”) and supporting attachments (“Bell
Aff.” (DE 83-4); “TESI, Inc. Articles of Incorporation” (DE 83-5); “TESI, Inc. Articles of
Amendment” (DE 83-6); “TESI Services, Inc. Articles of Incorporation (DE 83-7); “TESI Staffing
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Articles of Amendment” (DE 83-8); “Davis Log Entries” (DE 83-9); “Sample Doc BSH
Availability” (DE 83-10); “Davis Blue Arbor Application” (DE 83-11); “Labor Order for Kin-Ro
Construction” (DE 83-12); “Labor Order for Drahtzug Stein” (DE 83-13); “Labor Order for
Chatsworth Products, Inc.” (DE 83-14); “2013 EEOC Charge” (DE 83-15)); and excerpts from
plaintiff’s deposition (“Davis Dep.” (DE 83-16)).
On November 20, 2018, plaintiff filed his response in opposition, arguing that defendants
are an employment agency not subject to the fifteen employee requirement of Title VII; that in any
event defendants have more than fifteen employees; defendants are so intermingled that they should
be treated as a single employer; and that several genuine issues of material fact preclude summary
judgment.
In support of plaintiff’s argument, he submits an opposing statement of material facts (DE
85), as well as an appendix of exhibits, including: plaintiff’s affidavit and excerpts from his
deposition (“Davis Aff.” (DE 88-2); “Davis Dep.” (DE 88-11)); transcripts of plaintiff’s phone
conversations with Bell and Kathy Kline (“Kline”) (“July 26, 2013 Phone Call” (DE 88-3); “August
27, 2013 Phone Call” (DE 88-4); “August 29, 2013” (DE 88-5)); portions of defendants’ responses
to requests for production (“Requests for Production” (DE 88-6)); copies of redacted labor orders
(“Labor Orders” (DE 88-7)); records from the EEOC investigation of plaintiff’s complaint (“April
29, 2014 Letter” (DE 88-8); “EEOC Investigator Notes” (DE 88-10, 88-19)); defendant Bosch’s
rehiring policy (“Rehire Policy” (DE 88-9)); excerpts from Bell’s deposition (“Bell Dep.” (DE 8812)); resources providing a corporate profile of defendants (“Blue Arbor Corp. Report” (DE 88-13);
“TESI Screening Corp. Report” (DE 88-14); “Blue Arbor Hoovers Report” (DE 88-15); “Reference
USA Blue Arbor Description” (DE 88-16); “Blue Arbor Web Pages” (DE 88-17)); plaintiff’s
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termination letter from defendant Bosch (“Termination Letter” (DE 88-18)); a chart outlining
communications between plaintiff and Bell (“Communication Chart” (DE 88-20)); and a doctor’s
letter authorizing plaintiff to work without physical limitation (“Jan. 22, 2013 Doctors’ Letter” (DE
88-22)).
Defendants replied, reasserting their argument that Bell had no knowledge of defendant
Bosch’s alleged misconduct, and therefore they could not be held liable for such conduct.
STATEMENT OF THE UNDISPUTED FACTS
The undisputed facts for purposes of the instant motion may be summarized as follows.
A.
Plaintiff’s Employment With Defendant Bosch
On August 11, 2003, defendant Bosch hired plaintiff as a setter in its fabrication department.
(Statement of Facts (DE 82, 85) ¶ 28). Plaintiff continued to work in this position until 2005, at
which point he was terminated for allegedly failing to return to work from jury duty. (Statement of
Facts (DE 82, 85) ¶ 29). Plaintiff, who believed the stated reason to be pretext, filed a charge of
discrimination with the EEOC (“2006 EEOC Charge”), alleging that his termination was a form of
racially motivated discrimination in violation of Title VII. (Statement of Facts (DE 82, 85) ¶ 30;
Davis Dep. (DE 83-16) 47:11-15). Plaintiff asserted that he was subpoenaed for two separate
criminal cases, that he was required to take personal leave time in one of the two actions because
he was a defendant, and that defendant Bosch’s Human Resource Director Chuck Dail altered his
vacation/leave request form by erasing his supervisor’s signature approving time off. (Statement
of Facts (DE 82, 85) ¶¶ 33-35; see Davis Dep. (DE 83-16) 48:20-50:18, 51:13-52:5). Ultimately,
the 2006 EEOC Charge was resolved when defendant Bosch agreed to reinstate plaintiff and provide
him with back pay for the time spent out of work. (Statement of Facts (DE 82, 85) ¶ 36; Davis Dep.
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(DE 83-16) 55:12-25). Plaintiff testified that, as part of the settlement agreement, he executed a
confidentiality agreement prohibiting him from discussing the 2006 EEOC Charge with anyone,
including defendant Blue Arbor. (See Statement of Facts (DE 82, 85); Davis Dep. (DE 83-16)
87:20-88:7)).
On December 13, 2007, plaintiff sustained a laceration to his right forearm while working
with a piece of sheet metal at defendant Bosch. (See Statement of Facts (DE 82, 85) ¶¶ 38, 41; 2011
Settlement Agreement (DE 83-2) at 1). Defendant Bosch and its insurance carrier, CNA Insurance
Company, provided plaintiff with workers’ compensation benefits. (See Statement of Facts (DE 82,
85) ¶ 39; 2011 Settlement Agreement (DE 83-2) at 7). On March 12, 2008, plaintiff was permitted
to return to light-duty, part-time, desk work with no use of the right upper extremity, which
defendant Bosch could not accommodate. (See Statement of Facts (DE 82, 85) ¶ 40; 2011
Settlement Agreement (DE 83-2) at 2; Davis Dep. (DE 83-16) 65:15-23). On September 18, 2008,
defendant Bosch advised plaintiff that he exceeded the 6 month disability leave permitted by
company policy, and as a result his employment was terminated. (Statement of Facts (DE 82, 85)
¶ 41; Termination Letter (DE 83-3, 88-18)). Plaintiff never returned to work for defendant Bosch,
but continued to receive workers’ compensation benefits until November 18, 2011, when he settled
the claim for $290,000.00. (Statement of Facts (DE 82, 85) ¶ 42; 2011 Settlement Agreement (DE
83-2) at 11).
B.
Plaintiff Applies for Work With Defendants Blue Arbor and TESI Screening
Defendants Blue Arbor and TESI Screening are North Carolina companies that collectively
provide employee placement and screening services. (See Statement of Facts (DE 82, 85) ¶¶ 1-6).
The companies have the same corporate officers, and share the same office address and telephone
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numbers in New Bern. (See Blue Arbor Corp. Report (DE 88-13) at 1-2; TESI Screening Corp.
Report (DE 88-14) at 1-2). Defendant Blue Arbor advertises that it provides screening and testing
services and that it manages TESI Screening. (See Blue Arbor Web Pages (DE 88-17) at 1-3, 6).
Defendant Blue Arbor’s New Bern office receives between 30-50 employment seeking
candidates each week. (Statement of Facts (DE 82, 85) ¶ 7; Bell Aff. (DE 83-4) ¶ 12). When an
employment candidate approaches defendant Blue Arbor, he completes an application, takes a skills
assessment, and is interviewed by a staffing specialist. (Statement of Facts (DE 82, 85) ¶ 7; Bell
Aff. (DE 83-4) ¶ 13). During the interview, each candidate advises defendant Blue Arbor as to what
types of assignments he is interested in, the hours he is available, whether he is capable of part-time
and/or full-time assignments, and whether he will accept temporary and/or temporary-to-hire
assignments. (Statement of Facts (DE 82, 85) ¶ 8; Bell Aff. (DE 83-4) ¶ 13). After preliminary
evaluations are complete, staffing specialists instruct candidates to call in weekly to inform
defendant Blue Arbor if they are available and looking for work. (Statement of Facts (DE 82, 85)
¶ 9; Bell Aff. (DE 83-4) ¶ 14).
Each week, defendant Blue Arbor cross-references the list of available candidates with the
employment assignments provided by the corporate clients. (Statement of Facts (DE 82, 85) ¶ 12;
Bell. Aff. (DE 83-4) ¶ 17). Once qualified candidates are identified, they are contacted regarding
the matching assignments. (Statement of Facts (DE 82, 85) ¶ 13; Bell Aff. (DE 83-4) ¶ 17). Once
a candidate accepts an offered assignment, he completes the requisite tax forms, completes any
necessary screening, and is given work instructions. (Statement of Facts (DE 82, 85) ¶ 14; Bell Aff.
(DE 83-4) ¶ 18). If a candidate rejects an assignment, defendant Blue Arbor tries to determine if the
candidate’s employment requirements have changed and instructs him or her to call back.
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(Statement of Facts (DE 82, 85) ¶¶ 15-17; Bell Aff. (DE 83-4) ¶ 19). Defendant Bosch routinely
looks to defendant Blue Arbor for qualified candidates to fill its open production/manufacturing
positions, and requires any candidate be willing to work both first and second shift to receive
consideration. (Statement of Facts (DE 82, 85) ¶ 23; Bell Aff. (DE 83-4) ¶¶ 23-24).
In December 2012, plaintiff submitted applications to several temporary staffing agencies,
including defendant Blue Arbor. (Statement of Facts (DE 82, 85) ¶ 43; Davis Dep. (DE 83-16) 71:67). Plaintiff indicated in his initial application to defendant Blue Arbor that he was only interested
in manufacturing or sales positions, was only available for first shift work, and would only consider
temporary-to-hire assignments. (See Statement of Facts (DE 82, 85) ¶ 45; Davis Dep. (DE 83-16)
71:14-16); Bell Aff. (DE 83-4) ¶ 26).
Plaintiff further initially advised he had a workers’ compensation injury resulting in several
physical restrictions, but that he could contact his doctor to get a release, and that he could not work
second or third shift because he was still treating for his injury and had to care for his disabled wife.
(See Statement of Facts (DE 82, 85) ¶¶ 46-47; Bell Aff. (DE 83-4) ¶¶ 26-27). Plaintiff also advised
he had previously worked for defendant Bosch but was terminated based on circumstances arising
out of his worker’s compensation claim. (Statement of Facts (DE 82, 85) ¶ 48; Davis Dep. (DE 8316) 71:11-13; Bell Aff. (DE 83-4) ¶ 26). At no point did plaintiff discuss the 2006 EEOC Charge
with Bell or anybody else working for defendants. (See Statement of Facts (DE 82, 85) ¶ 73; Davis
Dep. (DE 83-16) 87:7-88:7).
Plaintiff’s interview with defendant Blue Arbor was conducted by Bell, who at all times
relevant to the complaint was defendant Blue Arbor’s staffing supervisor and also was plaintiff’s
point of contact with defendant Blue Arbor. (See Statement of Facts (DE 82, 85) ¶¶ 25-26; Bell Aff.
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(DE 83-4) ¶ 28; Davis Dep. (DE 83-16) 77:2-15, 102:3-5). Bell advised that plaintiff’s inability to
work second shift automatically disqualified him from possible employment opportunities with
defendant Bosch, but plaintiff reiterated he was only available for first shift work. (Statement of
Facts (DE 82, 85) ¶ 49; Bell Aff. (DE 83-4) ¶ 28).
On January 24, 2013, plaintiff contacted Bell and explained that he was interested in
returning to defendant Bosch and would be willing to consider second shift work. (Statement of
Facts (DE 82, 85) ¶ 51; Bell Aff. (DE 83-4) ¶ 30). Bell discussed plaintiff’s request with defendant
Bosch’s Human Resources Officer Cynthia White (“White”), who advised that defendant Bosch was
not interested in him returning but did not state the reason behind defendant Bosch’s position at that
time. (See Statement of Facts (DE 82, 85) ¶¶ 51-53; Bell Aff (DE 83-4) ¶¶ 31). At some point
during late January or early February, John Wilson (“Wilson”), Human Resources Manager for
defendant Bosch, was also told by Lindsey Finnell (“Finnell”), a supervisor at defendant Blue Arbor,
that plaintiff was interested in working for defendant Bosch. (See EEOC Investigator Notes (DE
88-10) at 2). Wilson checked the HRIS screenshot which indicated plaintiff had been discharged
for violation of rules, which Wilson interpreted not to be for good cause. (See EEOC Investigator
Notes (DE 88-10) at 2, 3). Based on that information, Wilson instructed defendant Blue Arbor that
“we are not interested in Mr. Davis.” (See EEOC Investigator Notes (DE 88-10) at 2).
Plaintiff called in on February 4, 2013, again expressing an interest in working for defendant
Bosch; however Bell explained that defendant Bosch was not interested in him returning.
(Statement of Facts (DE 82, 85) ¶ 54; Bell Aff. (DE 83-4) ¶ 32). In March 2013, plaintiff
discontinued his weekly availability calls to defendant Blue Arbor. (Statement of Facts (DE 82, 85)
¶ 58; Davis Dep. (DE 83-16) 76:1-8; Bell Aff. (DE 83-4) ¶ 34).
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C.
Plaintiff Follows Up On Employment with Defendant Bosch
At some point after discontinuing his calls in to defendant Blue Arbor, plaintiff heard that
his former position with defendant Bosch was vacant. (See Davis Dep. (DE 83-16) 76:6-12; July
26, 2013 Phone Call (DE 88-3) at 1:18). Plaintiff approached White at defendant Bosch directly to
apply for the position, but White told plaintiff that defendant Bosch did all its hiring through
defendant Blue Arbor and he would need to apply through it. (Davis Dep. (DE 83-16) 76:6-77:1).
On July 26, 2013, plaintiff called Bell and stated “I know you had told me that Bosch had told you
that I had sued them, and I was calling to see did y’all ever get that straightened out . . . .” (July 26,
2013 Phone Call (DE 88-3) 1:19-21; Davis Aff. (DE 88-2) ¶ 23). Bell replied “[w]ell that might
have been my mistake . . . [b]ut I will check on that . . . .” (July 26, 2013 Phone Call (DE 88-3)
1:24-2:1). That same day, plaintiff called White and asked her “I want to find out, what’s this I hear
about your telling folks that I sued y’all. I never sued y’all.” (See Davis Dep. (DE 88-11) 81:5-7).
White allegedly paused for a second, then stated “[Bell] shouldn’t have told you that.” (See Davis
Dep. (DE 88-11) 81:9-10).
In August 2013, Bell contacted Wilson to ask why defendant Bosch would not hire plaintiff.
(See Bell Aff. (DE 83-4) ¶ 36; Davis Log Entries (DE 83-9) at 16; EEOC Investigator Notes (DE
88-10) at 2). Bell testifies that Wilson stated defendant Bosch was not interested in having plaintiff
return because plaintiff had been terminated for cause. (See Bell Aff. (DE 83-4) ¶¶ 36-37; Davis
Log Entries (DE 83-9) at 16). At some point in response to Bell reaching out in August 2013,
Wilson reviewed plaintiff’s archived employment data and discovered various documents relating
to plaintiff’s 2006 EEOC Charge. (EEOC Investigator Notes (DE 88-10) at 2). Bell asserts that she
took Wilson’s alleged explanation of termination for cause at face value, and understood based on
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her prior conversation with plaintiff the separation to be somehow related to the settled worker’s
compensation claim. (Bell Aff. (DE 83-4) ¶¶ 37, 39).
On or about August 21, 2013, Bell spoke with plaintiff, explaining that defendant Bosch
would not consider his candidacy for reasons disputed by the parties. (See Statement of Facts (DE
82, 85) ¶ 68; Bell Aff. (DE 83-4) ¶ 38; Davis Aff. (DE 88-2) ¶ 9). On October 23, 2013, plaintiff
filed an EEOC Charge of Discrimination, asserting defendant Bosch and Blue Arbor both retaliated
against him for filing his 2006 EEOC Charge. (See Statement of Facts (DE 82, 85) ¶ 72; 2013
EEOC Charge (DE 83-15) at 1). Bell asserts that she did not learn of plaintiff’s 2006 EEOC Charge
against defendant Bosch until she reviewed the allegations contained in the 2013 EEOC Charge.
(See Bell Aff. (DE 83-4) ¶ 43).
Additional facts pertinent to the instant motion will be discussed below.
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment “bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
Once the moving party has met its burden, the non-moving party must then “come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation omitted). Only disputes
10
between the parties over facts that might affect the outcome of the case properly preclude the entry
of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding
that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only
if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).
“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id.
at 249. In determining whether there is a genuine issue for trial, “evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in [non-movant’s] favor.” Id. at 255; see
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to
be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must
be viewed in the light most favorable to the party opposing the motion.”).
Nevertheless, “permissible inferences must still be within the range of reasonable probability,
. . . and it is the duty of the court to withdraw the case from the [factfinder] when the necessary
inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v. SherwinWilliams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter
of law is warranted where “the verdict in favor of the non-moving party would necessarily be based
on speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir.
2005). By contrast, when “the evidence as a whole is susceptible of more than one reasonable
inference, a [triable] issue is created,” and judgment as a matter of law should be denied. Id. at 48990.
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B.
Analysis
Title VII’s anti-retaliation provision makes to unlawful “to discriminate against any
individual . . . because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
“A plaintiff can survive a motion for summary judgment by presenting direct or
circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible
factor such as race motivated the employer's adverse employment decision.” Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). “Direct evidence must be ‘evidence of
conduct or statements that both reflect directly the alleged discriminatory attitude and that bear
directly on the contested employment decision.’” Warch v. Ohio Casualty Insurance Co., 435 F.3d
510, 520 (4th Cir. 2006) (internal citation omitted).
Alternatively, plaintiff may proceed under the McDonnell-Douglas burden shifting
framework. See Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216 (4th Cir. 2016);
Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). “In order to establish a
prima facie case of retaliation, a plaintiff must prove three elements: (1) that she engaged in a
protected activity; (2) that her employer took an adverse employment action against her; and (3) that
there was a causal link between the two events.” E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397,
405–06 (4th Cir. 2005). “Title VII retaliation claims require proof that the desire to retaliate was
the but-for cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 352 (2013). “The cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient evidence of
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causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very
close.’” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (internal quotations omitted);
see King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003).
If plaintiff makes a prima facie case, “[t]he burden then shifts to the employer to produce a
legitimate nondiscriminatory reason for the adverse action. If the employer does so, the plaintiff then
bears the burden of showing that the employer’s proffered reason is pretextual.” Karpel v. Inova
Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998) (citing Ross v. Communications Satellite
Corp., 729 F.2d 355, 365 (4th Cir. 1985)).
Viewing the evidence in the light most favorable to the plaintiff, plaintiff filed an EEOC
Charge in 2006, which constitutes protected activity under Title VII. See 42 U.S.C. § 2000e-3(a);
(Statement of Facts (DE 82, 85) ¶ 30; Davis Dep. (DE 83-16) 47:11-15). Plaintiff was also
subjected to an adverse employment decision: defendant Bosch refusing to rehire him.1 (See Bell
Aff. (DE 83-4) ¶¶ 30-32, 36-38). However, plaintiff fails to produce evidence from which a
reasonable trier of fact could infer that defendant Bosch, acting through defendant Blue Arbor,
refused to rehire plaintiff because of his 2006 EEOC Charge.2
Plaintiff’s case turns on certain statements Bell allegedly told plaintiff regarding why
defendant Bosch would not hire him. On July 26, 2013, plaintiff told Bell over the phone “I know
you had told me that [Bosch] had told you that I had sued them, and I was calling to see did y’all
ever get that straightened out.” (July 26, 2013 Phone Call (DE 88-3) 1:18-20; see Davis Aff. (DE
1
The court assumes without deciding that defendants Blue Arbor and TESI Screening jointly employ plaintiff
with defendant Bosch, and that defendants Blue Arbor and TESI Screening are an integrated employer.
2
For this same reason, plaintiff has failed to produce sufficient direct or indirect evidence of retaliation. See
Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005).
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88-2) ¶ 23). Bell responded “[w]ell, that might have been my mistake.” (July 26, 2013 Phone Call
(DE 88-3) 1:24-25). The court can reasonably infer from this exchange that Bell told plaintiff he
would not be hired to work with defendant Bosch because he had “sued them.” Around this time,
White also allegedly stated “[Bell] shouldn’t have told you that.” (See Davis Dep. (DE 88-11) 81:910). In August 2013, Bell allegedly told plaintiff “[w]ell, Carl, they said you sued ‘em. They were
not going to hire you back.” (Davis Dep. (DE 83-16, 88-11) 78:18-19).
If plaintiff’s claim was that he was being retaliated against for initiating a lawsuit for
discriminating in violation of Title VII, then he would meet his burden of production for showing
retaliation under Title VII. See 42 U.S.C. § 2000e-3(a). However, plaintiff did not sue anybody.
(See Davis Dep. (DE 83-16, 88-11) 78:13-25, 89:15-16). Plaintiff also testified that Bell never
mentioned the 2006 EEOC Charge to him. (See Davis. Dep. (DE 83-16) 88:8-10, 89:7-8). In an
effort to draw a causal connection to the 2006 EEOC Charge, plaintiff argues that, as used by Bell,
the term “sued them” actually meant “filed an EEOC Charge against defendant Bosch.” However,
subsequent to filing his 2006 EEOC Charge, plaintiff was injured and initiated another dispute
against defendant Bosch: plaintiff’s worker’s compensation claim before the North Carolina
Industrial Commission.3 (See 2011 Settlement Agreement (DE 83-2)). Accordingly, the court must
evaluate whether a reasonable trier of fact can infer that when Bell used the phrase “sued them,” it
was solely in reference to filing the 2006 EEOC Charge, and not in whole or in part to plaintiff’s
worker’s compensation claim and the circumstances arising thereunder. See Nassar, 570 U.S. at
352.
3
The North Carolina Industrial Commission has jurisdiction over all workers’ compensation disputes. See N.C.
Gen. Stat. § 97-91.
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Plaintiff’s employment history does not support an inference that defendant Bosch was
unwilling to rehire plaintiff because of the 2006 EEOC Charge, but does support an inference that
defendant Bosch did not want to rehire plaintiff because of the 2011 Settlement Agreement.
Defendant Bosch reinstated plaintiff and paid him backpay of $17,000 in exchange for dropping the
2006 EEOC Charge. (See Davis Dep. (DE 83-16) 55:2-25). Plaintiff’s own testimony shows that
defendant Bosch was willing to rehire plaintiff although he initiated the 2006 EEOC Charge. In
contrast, plaintiff suffered injury on December 13, 2007 while working for defendant Bosch, and
was subsequently terminated for exceeding his disability leave on September 18, 2008. (See
Statement of Facts (DE 82, 85) ¶¶ 38, 41; 2011 Settlement Agreement (DE 83-2) at 1; Termination
Letter (DE 83-3, 88-18)). In connection with plaintiff’s injury, on November 30, 2011, plaintiff and
defendant Bosch settled plaintiff’s worker’s compensation claim for $290,000.00. (See 2011
Settlement Agreement (DE 83-2)). Defendant Bosch has not hired plaintiff back since the 2011
Settlement Agreement. (See Statement of Facts (DE 82, 85) ¶ 42; Termination Letter (DE 83-3, 8818)).
Plaintiff’s disclosures to defendant Blue Arbor also provide no basis to infer a connection
between the 2006 EEOC Charge and defendant Bosch’s decision not to hire plaintiff. At no point
did plaintiff discuss the 2006 EEOC Charge with Bell or anybody else working for defendants. (See
Statement of Facts (DE 82, 85) ¶ 73; Davis Dep. (DE 83-16) 87:7-88:7). However, plaintiff did tell
Bell that he was terminated by defendant Bosch on circumstances arising out of his worker’s
compensation claim. (Statement of Facts (DE 82, 85) ¶ 48; Davis Dep. (DE 83-16) 71:11-13; Bell
Aff. (DE 83-4) ¶ 26). Therefore, plaintiff did not provide any information to defendant Blue Arbor
from which a factfinder may reasonably infer that Bell meant the 2006 EEOC Charge when she said
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“sued them.” Instead, plaintiff’s disclosures to Bell show that, if anything, Bell was referring to the
2011 Settlement Agreement, worker’s compensation claim, and dispute over disability leave.
Additionally, the evidence in the record does not show that defendant Bosch communicated
to defendant Blue Arbor that it was unwilling to hire him because of the 2006 EEOC Charge. On
January 24, 2013, plaintiff told Bell that he was interested in working for defendant Bosch again,
and he was willing to consider second shift work. (Statement of Facts (DE 82, 85) ¶ 51; Bell Aff.
(DE 83-4) ¶ 30). At this point, defendant Blue Arbor reached out to defendant Bosch to see if they
would rehire plaintiff, but defendant Bosch was not interested. (Statement of Facts (DE 82, 85) ¶
51-53; Bell Aff. (DE 83-4) ¶¶ 30-31). The parties agree that defendant Blue Arbor was not told why
defendant Bosch was not interested in rehiring plaintiff. (See Statement of Facts (DE 82, 85) ¶ 5153; Bell Aff. (DE 83-4) ¶¶ 30-31).
Internally at defendant Bosch, Wilson reviewed plaintiff’s file in January or February 2013,
which showed plaintiff had been terminated for policy violations, and on that basis instructed
defendant Blue Arbor that defendant Bosch was not interested. (See EEOC Investigator Notes (DE
88-10) at 2, 3). The stated policy violation that prompted plaintiff’s termination was exceeding the
permissible amount of leave time while receiving disability payments. (See Termination Letter (DE
83-3, 88-18)). Plaintiff presents no evidence that the policy violations alleged in the file, which are
the purported basis for refusing to rehire plaintiff, relate to his 2006 EEOC Charge. Accordingly,
the communications between defendants in January and February 2013 do not give rise to a
reasonable inference that Bell was referring to the 2006 EEOC Charge when she later stated plaintiff
had “sued” defendant Bosch, but do give rise to a reasonable inference that she was subsequently
referring to the transactions involving plaintiff’s worker’s compensation claim.
16
Turning to the events in July and August 2013, plaintiff likewise fails to produce evidence
to show Wilson or White told Bell not to hire plaintiff because of his 2006 EEOC Charge. (See July
26, 2013 Phone Call (DE 88-3) 1:18-20; Davis Aff. (DE 88-2) ¶ 23; Davis Dep. (DE 83-16, 88-11)
78:18-19). Bell asserts in her deposition that when she communicated with Wilson in August 2013
to inquire why defendant Bosch would not hire her back, Wilson stated it was because plaintiff had
been terminated for cause. (See Bell Aff. (DE 83-4) ¶¶ 36-38). This is consistent with what Wilson
later told plaintiff when he inquired as to why he could not return to work. (See August 27, 2013
Phone Call (DE 88-4) 4:16-20). As discussed above, the evidence in the record shows that
plaintiff’s termination arose from an alleged violation of defendant Bosch’s disability leave policy.
(Termination Letter (DE 83-3, 88-18).
Plaintiff does not offer evidence of the particulars of the discussion between Bell, White and
Wilson. (See Davis Dep. (DE 83-16) 89:17-90:13). Accordingly, plaintiff does not contradict Bell’s
testimony that she did not learn of the 2006 EEOC Charge against defendant Bosch until she
reviewed the allegations contained in the 2013 EEOC Charge. (Bell Aff. (DE 83-4) ¶ 43). The only
logical conclusion left for any reasonable trier of fact is that when Bell allegedly said that plaintiff
had “sued” defendant Bosch, she was referring to plaintiff’s worker’s compensation claims, which
directly related to his termination.
Plaintiff’s asserts that White and Wilson told Bell of the 2006 EEOC Charge because they
knew of the 2006 EEOC Charge. Specifically, White knew of the 2006 EEOC Charge by virtue of
working in the personnel department at the time of the incident, and Wilson knew of the 2006 EEOC
Charge because he checked plaintiff’s employee file in August 2013 after Bell reached out to him.
(See August 27, 2013 Call (DE 88-4) 4:22-23, 5:10-13; EEOC Investigator’s Notes (DE 88-10) at
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2). Even taken as true, White and Wilson’s knowledge of the 2006 EEOC Charge is insufficient to
establish the requisite causal connection between the 2006 EEOC Charge and defendant Bosch’s
refusal to rehire plaintiff in 2013.4 White allegedly became aware of plaintiff’s 2006 EEOC Charge
when the charge was filed, almost seven years before the instant dispute. Such knowledge is far too
removed in time for a reasonable trier of fact to conclude that, based on White becoming aware of
plaintiff’s 2006 EEOC Charge, she instructed Bell not to rehire plaintiff because of his 2006 EEOC
Charge. See Clark Cty. Sch. Dist., 532 U.S. 268, 273 (2001) (internal quotations omitted); see King
v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003). This is especially true where, shortly after plaintiff
filed the 2006 EEOC Charge, defendant Bosch reinstated plaintiff and awarded him back pay. (See
Davis Dep. (DE 83-16) 55:2-25).
Wilson’s knowledge also does not support plaintiff’s asserted meaning of Bell’s comments.
Wilson first learned of the 2006 EEOC Charge in August 2013. The conversations between Bell and
plaintiff show that plaintiff had already been told that he was not being rehired because he had sued
defendant Bosch in July 2013. (See July 26, 2013 Phone Call (DE 88-3) 1:17-2:3). Therefore,
Wilson only learning of the 2006 EEOC Charge in August 2013 gives rise to the adverse inference
that Bell was referring to something else when she had said that plaintiff had “sued” the company.
See Lovelace, 681 F.2d at 241. This is fatal to plaintiff’s case. See Nassar, 570 U.S. at 352.
Plaintiff also testifies that “[Bell] implied that they had discussed the reason why I was not
there” and that defendant Bosch must have told Bell about the 2006 EEOC Charge because “I did
not hear any calls back from [Bell], and she claims she offered me three jobs at the same time, that
4
White or Wilson’s alleged knowledge the 2006 EEOC Charge is also insufficient to prove intentional
retaliation at the pretext stage of the McDonnell-Douglas framework. See Walker v. Mod-U-Kraf Homes, LLC, 775
F.3d 202, 211 (4th Cir. 2014) (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)); Carter v. Ball,
33 F.3d 450, 460 (4th Cir. 1994).
18
never happened.” (See Davis Dep. (DE 83-16) 89:3-4, 90:4-6). However, plaintiff’s first statement
does not contradict Bell’s testimony that she had discussed plaintiff’s case with defendant Bosch.
(See Bell Aff. (DE 83-4) ¶¶ 36-38). Plaintiff’s second statement is equally unhelpful, because the
evidence is speculative and does not explain what Bell meant when she allegedly stated that plaintiff
“sued” defendant Bosch, which is crucial to plaintiff’s case.
Title VII generally prevents unlawful employment discrimination “because of such
individual’s race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-2(a). The antiretaliation provision in turn protects those individuals who “. . . made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). While a refusal to rehire someone based on exceeding disability leave or based
on a worker’s compensation settlement might implicate anti-retaliation provisions under other laws,
it does not implicate the anti-retaliation provision of Title VII. At best, plaintiff’s evidence
establishes he was not hired by defendants based on circumstances arising out of his termination for
exceeding his disability leave and obtaining a worker’s compensation settlement. Such evidence
fails under Title VII’s retaliation provision as a matter of law. Accordingly, the court grants
summary judgment to defendants Blue Arbor and TESI Screening.
CONCLUSION
Based on the foregoing, defendants’ joint motion for summary judgment (DE 80) is
GRANTED. Where no claims remain, the clerk is DIRECTED to close this case.
SO ORDERED, this the 1st day of March, 2019.
_______________________________
LOUISE W. FLANAGAN
United States District Judge
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