Opinion
Civil No. JFM-00-3467.
November 27, 2000
MEMORANDUM
Plaintiff Ronald Evans ("Evans") has brought employment discrimination claims against defendant Giant Food, Inc. ("Giant") under Title VII, 42 U.S.C. § 1981, 1985, 1986, and also for breach of contract. Evans alleges that, on the basis of his race, Giant unlawfully denied him promotions, denied him training, demoted him, and refused to hire him for certain positions. For the reasons discussed below, Giant's motion for summary judgment is granted on all counts.
I.
Evans, an African American, first began working for Giant in 1985 as a Retail Trainee in Giant's Career Development Program ("CDP"). See Evans Dep. at 36-38. The CDP is a management training program for Giant store operations with clearly established guidelines for progression through the program. See CDP Manual, Def.'s Mot. for Summ. J., Ex. 2. After receiving the specified training and successfully passing the required tests, Evans became a Certified Retail Trainee in October, 1989. See Evans Dep. at 175-76, 178-85. As such, Evans was eligible for entry into the Department Manager Training Program and, upon successful completion of that program's requirements, promotion to Department Manager. See CDP Manual, Def.'s Mot. for Summ. J., Ex. 2. Sometime between the years 1987 and 1989, Evans took and failed the computerized Department Manager test. See Evans Dep. at 233-36. Despite his performance on the computerized test, Evans remained a Certified Retail Trainee. In 1989, however, Evans was injured in an automobile accident. See id. at 53-54. Evans applied for and was awarded the temporary position of staff auditor. Evans did not actively participate in the Retail Trainee Program for the two years he worked in internal audit on restricted light duty. See id.
In 1992, Evans "voluntarily resigned" from the retail trainee program. Id. at 54-55. From 1992 until 1995, Evans worked at Giant as a part-time Cashier. See id. at 54, 138, 145. Also during this timeframe, Evans applied for various positions in Giant's internal audit, payroll, and accounting departments. See id. at 538-39. These positions are not part of the CDP. Other applicants, including some African American applicants, were selected for these positions instead of Evans. See id. at 559-60.
Evans asked to be readmitted to the Retail Trainee Program in 1995, and Giant granted Evans' request. See id. at 142, 145. Evans also requested to repeat the training that he received the first time he entered the Retail Trainee Program in the 1985. See id. at 183-87. Giant repeatedly denied Evans request on the basis that Evans had already received that training. To the extent that Evans felt the need for additional training, Giant employees offered to assist Evans if he were to come in early or stay late. Evans declined to pursue any unpaid training. See id. at 186-87, 195-96, 199, 283-84, 333-35. On three separate occasions from 1995 to 1996, Evans took and failed the store tour certification test, a required step toward becoming a Certified Retail Trainee. See id. at 321-27, 339-44, 468-69. After failing the store tour certification test for the second time, Evans was placed on 90-days probation. The probation letter listed several performance deficiencies and warned that a third store tour certification test failure would result in his removal from the Retail Trainee Program. See Probation Letter, Def.'s Mot. for Summ. J., Ex. 5. In response, Evans resigned from the Retail Trainee Program. See Resignation Ltr., Def.'s Mot. for Summ. J., Ex. 6. Soon thereafter, however, Evans rescinded his resignation and was permitted to rejoin the Retail Trainee Program. See Evans Dep. at 402-403, 466-67.
While on probation, Evans applied for the position of Store Staff Auditor. See id. at 540-41. The written job posting for the position indicated that prospective applicants were required to have a "good work history" and"no active warning notices." See Job Posting, Def.'s Mot. for Summ. J., Ex. 7. Being a Certified Retail Trainee was considered a "plus." Id. Evans was not interviewed for the position. Soon thereafter, Evans failed the store tour for a third time. See Evans Dep. at 468-69. Giant subsequently removed Evans from the Retail Trainee Program. See id. at 469-71. Since his removal from the Retail Trainee Program, Evans has worked as a part-time Cashier and has not applied for any other position within Giant. See id. at 476.
On December 5, 1996, Evans filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). In his administrative charge, Evans alleged that he was discriminated against when he was removed from the Retail Trainee Program in 1996 and when he was not hired for the position of Store Staff Auditor. See Charge, Def.'s Mot. for Summ. J., Ex. 8. Evans received his Notice of Right to Sue from the EEOC in August of 1997. See Notice, Def.'s Mot. for Summ. J., Ex. 9. Evans commenced this action in September, 1997.
II.
In Count II, Evans alleges that Giant discriminated against him because of his race in violation of Title VII. Evans includes the allegations that he made in his EEOC complaint as bases for his Title VII claim: denial of training upon re-entry into Retail Trainee Program in 1995, refusal to hire him for Store Auditor position in 1996, and demotion from Retail Trainee to part-time Cashier in 1996. See Charge, Pl.'s Opp., Ex. 20. Evans also includes as bases for his Title VII claim pre-1996 allegations that he did not include in his EEOC complaint: denial of promotion to Department Manger from 1985 to 1992, denial of promotion to Department Manager in 1995, and denial of hiring for various positions in internal audit, payroll, and accounting in 1992. See id.
The pre-1996 allegations are barred because Evans did not exhaust his administrative remedies for those allegations before filing suit. The EEOC is responsible for the administrative intake, investigation, and conciliation of charges of discrimination under Title VII. § 42 U.S.C.A. § 2000e-5(b). An aggrieved party may only bring private action under Title VII after first filing a timely administrative charge with the EEOC and exhausting the EEOC's investigation and conciliation process. See, e.g., Causey v. Balog, 929 F. Supp. 900, 907 (D.Md. 1996). In addition, the aggrieved party must file an administrative charge with the EEOC within 300 days of the alleged discriminatory act to be timely. See Leskinen v. Utz Quality Foods, Inc., 30 F. Supp.2d 530, 533 (D.Md. 1998); § 2000e-5(e). Evans filed his administrative charge with the EEOC on December 5, 1996; accordingly, it was timely for any alleged discriminatory acts contained in the charge that occurred on or after February 9, 1996. The pre-1996 allegations that Evans did not include in the administrative charge are barred by his failure to exhaust his administrative remedies within 300 days of each occurrence. The continuing violation doctrine, which may operate to save certain unexhausted, otherwise time-barred claims, is inapplicable to these facts. The continuing violation doctrine generally applies where the defendant has maintained a discriminatory policy or system over time, or where the plaintiff has suffered from a series of related discriminatory acts. See 2 Barbara Lindemann Paul Grossman, Employment Discrimination Law 1357 (3d ed. 1996). In these circumstances, discriminatory acts that occurred outside the limitations period are not barred so long as they are part of a continuing violation and some of the discriminatory acts occurred within the period. See id. The Fourth Circuit has not adopted its own definition of a continuing violation; the definitions adopted by other circuits vary. See, e.g., DeNovellis v. Shalala, 124 F.2d 298 (1st Cir. 1997) (finding continuing violation where violation is systemic or serial); Malhotra v. Cotter Co., 885 F.2d 1305 (7th Cir. 1989) (finding continuing violation when "plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory mistreatment); Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983) (finding continuing violation via three-prong test considering type of conduct, frequency of alleged acts, and degree of permanence of acts). Yet the various formulations of the continuing violation doctrine generally consider two main criteria: whether the separate incidents are sufficiently related, and whether the acts individually should have triggered the plaintiff's awareness of and duty to challenge the employer's discriminatory conduct. See id.; 2 Barbara Lindemann Paul Grossman, Employment Discrimination Law 1357-63 (3d ed. 1996).
The application of the continuing violation doctrine is most clear cut in the systemic violation context-when the employer has a formal rule or policy of disparate treatment. As Giant correctly adduces, Evans offers no credible evidence of a formal rule or policy of disparate treatment. See Def.'s Reply at 3. This does not, however, rule out the possibility of a serial violation that triggers the continuing violation doctrine.
Evans' time-barred claims are not sufficiently related to the claims in his administrative charge to survive under the continuing violation doctrine. The claims Evans included in his administrative charge are all related because they turn on whether Giant's refusal to give Evans additional training was discriminatory. The pre-1996 incidents, in contrast, are unrelated to Evans' requests for additional training in 1995. They include a variety of alleged discriminatory acts, including constructive discharge, retaliation, and denial of promotion. To the extent that the earlier acts were discriminatory, those acts should have individually alerted Evans to the discriminatory conduct and his duty to challenge it. Evans' untimely allegations cannot be saved under the continuing violation doctrine.
Notably, even if Evans had exhausted his administrative remedies in a timely manner, he fails to present a viable Title VII claim with regard to the pre-1996 allegations. Evans alleges discrimination because he was not promoted to Department Manager in the two years after he became a Certified Retail Trainee in October 1987. Evans provides no direct evidence of discrimination. Discrimination may be inferred in hiring or promotion cases where the plaintiff establishes that 1) he is a member of a protected group, 2) he applied for an open position, 3) he was qualified for the position, and 4) he was rejected under circumstances giving rise to an inference of unlawful discrimination. See Evans v. Tech. Applications and Serv., Co., 80 F.3d 954, 959-60 (4th Cir. 1996). Evans' case falters because of the third and fourth elements. Evans twice took but failed a required Department Manager test from 1987 to 1989. See Evans Dep. at 234-36. Evans does not offer evidence that indicates he was qualified for the position. Nor does Evans identify and circumstances surrounding his Department Manager bids that give rise to an inference of unlawful discrimination.
Evans became a Certified Retail Trainee in October 1987 and did not resign from the program until 1992. From 1989 to 1991, however, Evans worked as an Internal Staff Auditor after being injured in a 1989 car accident. Evans makes no claims against Giant for failure to reasonably accommodate him under the Americans with Disabilities Act (ADA).
Evans' college degree and military credentials do not bear on his qualifications for promotion to Certified Retail Trainee. Contra Pl.'s Opp. at 43.
Even assuming that Evans satisfied the prima facie requirements, he cannot prove that Giant's rebuttal was pretextual. Giant indicates that Evans was not promoted to Department Manager because he had not fulfilled the clearly established requirements for that promotion. This legitimate, nondiscriminatory reason satisfies Giant's burden to rebut any inference of discrimination had Evans established a prima facie case. See id. at 960. The ultimate burden of persuasion accordingly rests on Evans to show that Giant's stated reason is pretextual. Evans alleges that "the test is discriminatory in general [because] there's no right or wrong answer" and "[w]hites are given some material that's on that test" which blacks are not given. Evans Dep. at 234. Evans proffers no evidence that study materials were provided in a discriminatory manner, other than his own statements that lack any indicia of personal knowledge. See id. Evans argues that Giant discriminates regarding a role play video because Giant "tend[s] to misplace or lose the blacks [role play video]," whereas Giant does not lose the white applicants' role play videos. Id. The panel evaluation is also discriminatory according to Evans because the three-person panel that evaluated him was white. Id. at 236. A trier of fact could not conclude that Giant's Department Manager tests were discriminatory in general or as applied to Evans. Evans provides only his own self-serving, conclusory statements, which are not sufficient evidence to withstand summary judgement. See Dement v. Richmond, Fredericksburg Potomac R.R. Co., 845 F.2d 451, 458 (4th Cir. 1988); Jamil v. Dep't of Def., 910 F.2d 1203, 1209 (4th Cir. 1990). Evans has not carried his burden of persuasion to demonstrate that Giant's rebuttal is pretextual.
Nor does Evans establish a prima facie case for his claims regarding the denial of promotion to Department Manager in 1995 or the refusal to hire him for various auditing, accounting, and payroll positions prior to 1996. Again, Evans' case falters regarding the third and fourth elements. Evans does not demonstrate that he was qualified for the positions or that the circumstances give rise to an inference of discrimination. Evans was not qualified for the Department Manager position in 1995 because he had did not succeed in regaining his Certified Retail Trainee status after being readmitted to the program in 1995. One must first become a Certified Retail Trainee before one is qualified to become a Department Manager at Giant. See CDP Manual, Def.'s Mot. for Summ. J., Ex. 2. Regarding the various other positions for which Evans applied, Evans offers no evidence of his qualifications for the position. The additional fact that Giant hired several African American applicants for the positions Evans sought undercuts any inference of unlawful discrimination by Giant against Evans on the basis of race. See Evans Dep. at 559-60.
Again, Evans' college degree and military credentials do not bear on his qualifications for promotion to Certified Retail Trainee.
Although not alleged in his complaint, Evans argues that he was constructively discharged from the Retail Trainee Program when he resigned in 1992. Evans does not establish the necessary elements of a prima facie constructive discharge case. Specifically, he does not establish that he was qualified to remain in the Retail Trainee Program, that his performance met Giant's legitimate expectations, or that other employees who are not members of the protected class were retained under similar circumstances. See Porter v. Con-Serv, Inc., 51 F. Supp.2d 656, 659 (D.Md. 1998); Afande v. Nat'l Lutheran Home for the Aged, 868 F. Supp. 795, 801 (D.Md. 1994), Aff'd, 69 F.2d 532 (4th Cir. 1995).
Evans' allegations that were included in his timely EEOC complaint do not satisfy the requirements of a prima facie discrimination case, either. Evans timely claims are refusal to hire him for the Store Auditor position in 1996 and demotion from Retail Trainee to part-time Cashier in 1996. Denial of training, which Evans alleges in his EEOC affidavit, See Aff., Pl.'s Opp., Ex. 20, is not an ultimate employment decision, and thus it is not actionable under Title VII. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981).
Demotion and promotion decisions, on the other hand, are ultimate employment decisions actionable under Title VII. See id. Evans' claim regarding Giant's refusal to hire him for the position of Store Auditor in 1996 does not satisfy the third or fourth requirements of a prima facie case, discussed supra. Evans does not demonstrate that he was qualified for the Store Auditor position. The job posting clearly states several requirements that Evans does not meet: "retail trainee certification," "good work history," and "no active warning notices." Evans was a Retail Trainee who was not certified and was on probation for numerous reasons, including failing a test that was a prerequisite to becoming a Certified Retail Trainee. Evans does not point to any circumstances that would give rise to an inference of unlawful discrimination.
To establish a presumption of discrimination in the context of demotion, the plaintiff must demonstrate 1) that he is a member of a protected class; 2) that he was discharged or demoted; 3) that he was performing the job satisfactorily, meeting the employer's legitimate expectations; and 4) that the discharge or demotion occurred under circumstances that raise a reasonable inference of unlawful discrimination. See Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989). Evans was not meeting Giant's legitimate expectations. Evans failed the store tour twice, was placed on probation and warned that his performance deficiencies must be corrected or else he would be removed from the Retail Trainee program, and then failed the store tour a third time.
Giant was not only concerned about Evans' lack of preparation for the Store Tour Certification, but also about Evans' adherence to company policy, completion of assigned tasks, and self-motivation. See Probation Ltr., Def.'s Mot. for Summ. J., Ex. 5.
Evans disputes that he failed the store tour three times. See Pl.'s Opp. at 35-36. Even if Evans only failed it twice, my decision to grant Giant's motion for summary judgment would not change.
Evans offers no evidence to support his claim that the demotion was unlawfully discriminatory. Evans does not to show that he received dissimilar treatment from any similarly situated Caucasian employee. Evans' reliance on the circumstances surrounding Kathy Gatch's employment is misplaced. Gatch, who is Caucasian, was a Certified Retail Trainee who failed two written tests required to become a Department Manager Trainee. Unlike Gatch, Evans repeatedly failed a test (the store tour) required to become a Certified Retail Trainee. Gatch was taking a test to become a Department Manager Trainee. She had already satisfied all of the requirements to become a Certified Retail Trainee. Gatch, like any other Certified Retail Trainee, was also not required to take the store tour certification again to become a Department Manager. This fact is irrelevant to Evans' case because Evans was required to pass the store tour in order to become a Certified Retail Trainee, not a Department Manager Trainee. Gatch and Evans are not similarly situated. The circumstances surrounding Gatch's employment are irrelevant to Evans' discrimination claims. Evans does not provide statistics demonstrating that African American employees become Certified Retail Trainees at a lower rate than African American employees. The Zellner reports indicate a disparity in the rate at which African Americans are admitted to the Retail Trainee Program, but they do not address graduation rates from the Retail Trainee Program or promotions to Department Manager. See Zellner Reports, Pl.'s Mot. for Class Cert. In fact, the graduation rate for African American Retail Trainees was higher than that of Caucasian Retail Trainees for the 1994-1995 time frame. See Siskin Decl., Pl.'s Mot. for Class Cert. (The African American graduate rate was 58.7% in this time frame, whereas the Caucasian graduation rate was 53.8%.) Once again, Evans' only evidence of discrimination is his own self-serving, conclusory statements. Evans does not make a prima facie case of discrimination regarding his removal from the Retail Trainee Program, and thus cannot survive summary judgment. Summary judgment is granted in favor of Giant for all of Evans' Title VII employment discrimination claims contained in Count II.
III.
Evans' Title VII retaliation claim suffers from multiple shortcomings. First, Evans did not exhaust the administrative remedies for his retaliation claims. As required for Title VII claims, a retaliation claim must first be included in the plaintiff's administrative charge to the EEOC. Only after he is issued a Notice of Right to Sue may Evans bring suit against Giant. See 42 U.S.C. § 2000e-5 (f)(1). Because Evans did not include his retaliation claims in an administrative charge to the EEOC at all, let alone within 300 days of their occurrence, his claims are barred. See Causey v. Balog, 929 F. Supp. 900, 907 (D.Md. 1996); Leskinen v. Utz Quality Foods, Inc., 30 F. Supp.2d 530, 533 (D. Md. 1998); § 2000e-5(e).
Nealson v. Stone, which creates an exception to the administrative exhaustion requirement for retaliation claims stemming from prior EEOC charges, is inapplicable because Evans' retaliation claims stem from his informal, oral complaints, not his EEOC charge. 958 F.2d 584, 590 (4th Cir. 1992).
Even if Evans claims were not time-barred, he does not make a prima facie case of retaliation. To prove a prima facie case of retaliation, the plaintiff must show that 1) he engaged in a protected activity; 2) an adverse employment action was taken against him; and 3) there was a causal connection between the first two elements. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998); Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir. 1998). Evans provides only vague recollections of his oral complaints-he does not recall the timing, content, or other details of his complaints to Giant personnel. See, e.g., Interrog. No. 8, Def.'s Mot. for Summ. J., Ex. 10. Aside from his recurring conclusory statements, he provides no evidence that his transfers were in any way related to his alleged oral complaints. Thus, Evans cannot demonstrate a causal connection between his oral complaints and his transfers.
In light of Evans' inability to demonstrate a causal connection between his oral complaints and the transfers, I need not reach the issue of whether Evans' oral complaints constitute protected activity under Title VII. See, e.g., White v. Rice, 46 F.3d 1130 (Table), 1995 WL 20796 (4th Cir. 1995) (unpublished) (finding plaintiff's verbal complaints not protected activity under Title VII).
Summary judgment is granted in favor of Giant regarding the Title VII retaliation claims. Unlike Title VII, Section 1981 does not require a plaintiff to exhaust his administrative remedies with the EEOC before commencing a private action. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461 (1975); 42 U.S.C. § 1981. Thus, Evans' allegations that are barred on procedural grounds under Title VII are not barred for the purposes of Section 1981. As discussed above, however, all of Evans' Title VII claims would have failed even if they were not barred. "Under Title VII and . . . Section 1981, the elements of the required prima facie case are the same." Gairola v. Virginia, 753 F.2d 1281, 1285 (4th Cir. 1985). If a plaintiff's 1981 claims are based on the same allegations as his failed Title VII claims, the 1981 claims must fail, too. See id.; Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998). Summary judgment is granted in favor of Giant on the Section 1981 claims.
V.
Evans also brings claims under Section 1985 and Section 1986. 42 U.S.C. § 1985(3), 1986. Like any conspiracy statute, Section 1985 requires that "two or more persons" must have conspired together. See Carpenters Local 610 v. Scott, 463 U.S. 825, 838-39 (1983). In the employment context, the Fourth Circuit has held that the actions of a single employer and its representatives cannot constitute a conspiracy covered by Section 1985. See Stock v. Universal Foods Corp., 1994 WL 10682 at *3 (4th Cir. 1994). Because Evans alleges discrimination based on the conduct of Giant and its representatives, but no other individuals, he does not satisfy the conspiracy requirement of Section 1985. It is unnecessary to examine the other elements of a Section 1985 claim. Summary judgment is granted in favor of Giant for the Section 1985 claim.
Section 1986 provides a cause of action against a party with knowledge of a Section 1985 conspiracy. 42 U.S.C. § 1986. Because Evans' Section 1985 claim fails, his Section 1986 claim must fail as well. See Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985). Summary judgment is granted in favor of Giant for the Section 1986 claim.
VI.
Evans final claim against Giant is for breach of contract. Although it is unclear from the plaintiff's complaint and memorandum, it appears that Evans alleges that Giant 1) breached an employment contract with Evans, and 2) breached a collective bargaining agreement with Union Local 400 to which Evans is a third-party beneficiary. Evans neither identifies nor provides evidence of the employment contract that Giant allegedly breached. Without such basic evidence or allegations, summary judgment is granted in favor of Giant regarding the alleged breach of an employment contract. In regard to the alleged breach of the collective bargaining contract, Evans' state law claim is preempted by Section 301 of the Labor Management Relations Act ("LMRA"). 29 U.S.C. § 185. Section 301 of the LMRA preempts state law claims whose resolution depends on the interpretation of the collective bargaining agreement. See McCormick v. AT T Technologies, Inc., 934 F.2d 531 (4th Cir. 1991). Evans' claim turns on whether Giant's conduct violated the terms of the collective bargaining agreement, which requires interpretation of the collective bargaining agreement. Because Evans' breach of contract claim is preempted by the LMRA, summary judgment is granted in favor of Giant.
A separate order effecting the rulings made in this opinion is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum and the memoranda entered this day in Muhammad v. Giant Food, Inc., et al., it is, this 27th day of November 2000 ORDERED that defendants's motion for summary judgment is granted and judgment is entered in favor of defendants and against plaintiff.