Bell v. Son's Quality Food et al

Filing 24

ORDER granting 12 Motion for Summary Judgment - Signed by Chief Judge Louise Wood Flanagan on 05/11/2011. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO.7:10-CV-165-FL

LISA BELL,
Plaintiff,
v.

SON'S QUALITY FOOD
and THOMAS R. PEACOCK,
Defendants.

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ORDER

This matter comes before the court upon defendants' motion for summary judgment or, in
the alternative, motion to dismiss pursuant to Rule 56 and Rule 12(b)(6) ofthe Federal Rules ofCivil
Procedure (DE # 12). Plaintiff responded in opposition, and defendants timely replied. In this
posture, the issues raised are ripe for consideration. For the reasons that follow, defendants' motion
is granted.

STATEMENT OF THE CASE
On September 7,2010, after receiving leave to proceed in forma pauperis, plaintiff filed pro

se complaint alleging wrongful termination and failure to promote due to racial discrimination, in
violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2006).
Defendants filed answer on September 29, 2010, denying liability and asserting failure to state a
claim as an affirmative defense.
On March 30, 2011, after the close of discovery, defendants filed this motion for summary
judgment or, in the alternative, motion to dismiss. Their motion was supported with affidavits and

other documentary evidence. The Clerk of Court issued a Roseboro! notice to plaintiff, and she
responded in opposition on April 25, 2011. Defendants timely replied.

STATEMENT OF THE UNDISPUTED FACTS
Defendant Son's Quality Food ("Son's Quality Food") provides contract food service
workers to the United States military. Through a subcontractor, Son's Quality Food provides food
service workers at Camp Geiger and Camp Johnson, which are a part of the Camp Lejeune Marine
Corps base in Jacksonville, North Carolina. Virginia Wilson ("Wilson"), a project manager with
Son's Quality Food and liaison to the subcontractor, is responsible for hiring, firing, and disciplining
the food service employees at the base. However, the day-to-day supervision of the employees is
provided by the subcontractor's food service managers.
Plaintiff, an African-American woman, was hired to be a mess attendant for Son's Quality
Food at Camp Geiger on March 17,2007. Plaintiffsjob required her to bus tables, serve food, clean
the mess hall, and wash dishes. As with all other food service employees employed by Son's Quality
Food at that installation, plaintiff was represented pursuant to a union contract with the Industrial,
Technical and Professional Employees Union, OPEIU Local 4837, AFL-CIO (the "Union").
While employed with Son's Quality Food, plaintiff received a number of disciplinary writeups, almost all of which were initiated by the food service supervisors employed by the
subcontractor. Wilson's affidavit, and the documents attached thereto, show that plaintiff received
twelve (12) disciplinary infractions from August 7, 2007, to June 1, 2009, for actions such as
disruptiveness, excessive tardiness and absenteeism, taking food without paying for it, and refusing
to follow instructions.

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Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975).

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In April 2009, there was an opening at Camp Geiger for temporary alternate lead mess
attendant after the incumbent was injured in an accident. The position was advertised on a bulletin
board with a sign-up sheet. Four individuals applied, although plaintiff did not. One of the
requirements for the position was that the employee have high standards of work performance.
Dorothy Bloom ("Bloom"), a Hispanic woman, was selected for the position. Bloom served as an
alternate lead mess attendant until other arrangements could be made.
Based on plaintiff s history of infractions and after speaking with food service supervisors
and the Union shop steward, Wilson terminated plaintiffs employment in June 2009 following a
final infraction that Wilson describes as plaintiff "walking off the job." Contesting her dismissal,
plaintiff tiled a grievance with the Union. The Union began an investigation on June 5, 2009, but
informed plaintiff in a letter dated June 18,2009, that it had fully investigated her grievance and was
not going to proceed further. Plaintiff then filed complaint with the Equal Employment Opportunity
Commission ("EEOC"), which also declined to proceed beyond an initial review.

DISCUSSION
A.

Standard of Review
The court will rely on the documentary evidence submitted in support of defendants'

dispositive motion, which it analyzes under the summary judgment rubric. See Fed. R. Civ. P. 12(d).
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 oflaw." Fed. R. Civ. P. 56(a);
see also Anderson v. Liberty Lobby, 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 find for the non-moving party). The party seeking summary

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judgment bears the initial burden ofdemonstrating the absence ofany genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Once the moving party has met its burden, the
nonmoving party then must affirmatively demonstrate with specific evidence that there exists a
genuine issue of material fact requiring trial. Matsushita Elec.Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574.586-87 (1986).
B.

Analysis
Under Title VII, it is unlawful for an employer to "discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race [or] color ...." 42 U.S.C. § 2000e-2(a)(1). There are two methods by which a
plaintiff may establish a claim for discrimination sufficient to avoid summary judgment:
First, [she] may present direct evidence of his superiors' discriminatory intent.
Second, [she] may attempt to satisfy the test specified in McDonnell Douglas Com.
v. Green, 411 U.S. 792, 802 (1973), which allows [her] to raise an inference of
discriminatory intent by showing that [she] was treated worse than similarly situated
employees of other races. Defendants are then entitled to respond by presenting a
legitimate, nondiscriminatory reason for their actions. The burden would finally shift
back to [plaintiff] to demonstrate that this reason was a pretext for discrimination.
Sterling v. Tenet. 416 F.3d 338, 345 (4th Cir. 2005) (internal citations omitted).
The court begins by noting that individual supervisors, including defendant Thomas R.
Peacock ("Peacock"), are not liable under Title VII. See Baird ex reI. Baird v. Rose, 192 F.3d 462,
472 (4th Cir. 1999); Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998).
Accordingly, regardless of whether plaintiff can establish direct evidence of discriminatory intent
or meet the burden-shifting test of McDonell Douglas, Peacock cannot be held liable in this action,
which is brought exclusively pursuant to Title VII. Accordingly, defendants' motion for summary
judgment must granted as to Peacock.

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Upon consideration of the undisputed evidence before it, the court concludes that summary
judgment is also appropriate with respect to Son's Quality Food. Plaintiff has put forward no direct
evidence of discrimination, and must therefore rely on the McDonnell Douglas framework. With
respect to her wrongful termination claim, that requires her to demonstrate that "( I) she is a member
of a protected class; (2) she suffered adverse employment action; (3) she was performing her job
duties at a level that met her employer's legitimate expectations at the time of the adverse
employment action; and (4) the position remained open or was filled by similarly qualified applicants
outside the protected class." Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004) (en banc). As the myriad disciplinary infractions incurred over the two-year period of her
employment amply demonstrate, plaintiff cannot demonstrate "satisfactory job performance."2
With respect to her failure to promote claim, plaintiff "must present evidence that (1) she is
a member ofa protected group; (2) she applied for the position in question; (3) she was qualified for
the position; and (4) she was rejected for the position under circumstances giving rise to an inference
of unlawful discrimination." Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 544-45 (4th Cir.
20(5) (internal quotation marks and alterations omitted). Once again, the undisputed evidence of
plaintiffs disciplinary infractions dooms any argument that she was qualified for the position of
alternate lead mess attendant, which required applicants to have high standards ofwork performance.
Even more fundamentally, however, plaintiffs claim fails where she has presented no evidence that
she applied for the position in question. Instead, plaintiff appears to want to vindicate the rights of

2 Plaintiffs infractions are also a "a legitimate, nondiscriminatory reason" for defendants' allegedly
discriminatory actions, as to which no evidence of pretext has been shown. The court also notes that the evidence
indicates that plaintiffs position was filled by another African-American woman following her termination, thereby
precluding the necessary showing at step four of the McDonnell Douglas test.

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other African-American employees who were not selected for the position, but she lacks standing
to do so. See Warth v. Seldin, 422 U.S. 490, 499 (1975) ("[A] plaintiff ... cannot rest his claim to
relief on the legal rights or interests of third parties.").
The court notes that plaintiff has expanded her Title VII claim in her response opposing
summary judgment to include allegations that defendants failed to make an appropriate religious
accommodation. These allegations do not appear in plaintiffs complaint or her EEOC charge, and
may not be used to defeat summary judgment. See Jones v. Calvert Gm., Inc., 551 F.3d 297,300
(4th Cir. 2009); Bryant v. Bell At!. Md., Inc., 288 F.3d 124,132-33 (4th Cir. 2002). The court also
notes that plaintiff has no more produced evidence supporting liability for religious discrimination
than she has for her claims of racial discrimination.
Finally, as suggested by defendants where pro se pleadings are to be liberally construed, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), the court has analyzed the undisputed
evidence before it with an eye towards a possible Title VII retaliation claim. The court concludes
that such a claim is precluded where plaintiff has not identified any protected activity or causal
connection between such activity and her termination. See Price v. Thompson, 380 F.3d 209, 212
(4th Cir. 2004). The court reads the phrases "harassment" and "defamation of character" as
allegations of injury or conduct supporting her Title VII claim, rather than independent state law
claims (for which no evidence has been produced by plaintiff).

In summary, the court holds that defendant Peacock may not be liable for any Title Vll
violations and that the undisputed evidence before the court establishes as a matter of law that
plaintiffs Title Vll claims fail on their merits as to defendant Son's Quality Foods. Accordingly,
defendants' motion for summary judgment is GRANTED.

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CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (DE # 12) is
GRANTED. The Clerk of Court is directed to issue judgment in favor of defendants and to close
this case.
SO ORDERED, this the

l.L!.'-- day of May, 2011.

G1=

J6\---.

LOUISE W. FLANAGA~
Chief United States District Court Judge

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