Opinion
ACTION NO. 2:20cv548
2021-12-17
Audrey HODGE, Plaintiff, v. BOSTON MARKET CORPORATION, Defendant.
Audrey Hodge, Norfolk, VA, Pro Se. Amy Michelle Pocklington, Kyle Reese Elliott, Ogletree Deakins Nash Smoak & Stewart PC, Richmond, VA, for Defendant.
Audrey Hodge, Norfolk, VA, Pro Se.
Amy Michelle Pocklington, Kyle Reese Elliott, Ogletree Deakins Nash Smoak & Stewart PC, Richmond, VA, for Defendant.
MEMORANDUM FINAL ORDER
Rebecca Beach Smith, Senior United States District Judge
Plaintiff Audrey Hodge ("Plaintiff"), appearing pro se, filed this action against her former employer, Defendant Boston Market Corporation ("Defendant"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). See Compl., ECF No. 3. This matter is before the court on Defendant's Motion for Summary Judgment. Mot. Summ. J., ECF No. 16. The court concludes that oral argument is unnecessary because the facts and legal arguments are adequately presented in the parties’ briefs. For the reasons set forth below, Defendant's Motion for Summary Judgment, ECF No. 16, is GRANTED .
I. Relevant Factual and Procedural Background
Plaintiff initiated this action against Defendant on November 3, 2020, by filing an application to proceed in forma pauperis ("IFP Application"), along with a proposed Complaint. IFP Appl., ECF No. 1; Proposed Compl., ECF No. 1-1. On November 9, 2020, the court granted Plaintiff's IFP Application and directed the Clerk to file Plaintiff's Complaint and to coordinate the service of process on Defendant. Order at 1-2, ECF No. 2.
Plaintiff's Complaint included a section titled, "Statement of [C]laim," in which Plaintiff alleged:
In or about 6/2012[,] I became employed as an Assistant Manager with the above-mentioned employer. In or about
4/2018[,] Corey Cheek[ ] became my Area Manager and I started being treated disparately. My job duties w[ere] taken away, [and] I was fo[r]ced to work every weekend[.] [P]rior to this, all managers rotated weekends. I was no longer allowed to discipline my male employees or create work schedules even though those tasks were part of my job. All the male employees received a pay increase and the female employees did not. My Area Manager took over my schedule[.] [H]e only made my schedule and no one else[’s] schedule[.] I was told that if I missed any days he put down for me to work I would be fired[.] [T]he days that I requested off that w[ere] approved by my Store Manager w[ere] denied by my Area Manager. On or about 11/6/2018[,] Tony LNU (Corporate), Doug LNU (Corporate), and Corey Cheek (Area Manager) met with me via conference call[.] Corey Cheek stated "since you have kids, I don't think you meet the qualifications to work here.["] I was suspended and never heard back from anyone. I called HR and was told they would find out what's going on and they never called back. I was not provided a reason for the suspension.
Plaintiff's Complaint mistakenly refers to Mr. Cheek as "Corey Cheeks." Compl. at 1, ECF No. 3; see Mem. Supp. Mot. Summ. J. at 2, ECF No. 17 (providing the correct spelling of Mr. Cheek's last name). The court corrects the spelling of Mr. Cheek's last name herein.
Compl. at 1-2, ECF No. 3. Based on these allegations, Plaintiff asserted a Title VII gender discrimination claim against Defendant. Id.
Plaintiff's Complaint is not verified or sworn to under the penalty of perjury. Compl. at 1-2, ECF No. 3. Thus, Plaintiff's Complaint is not admissible evidence and will not be considered in the court's analysis of Defendant's Motion for Summary Judgment. See McClellan v. Lewis, No. 3:08cv260, 2009 WL 2434141, at *2, 2009 U.S. Dist. LEXIS 68690, at *3-4 (E.D. Va. Aug. 5, 2009) (explaining that an "unsworn complaint ... is not competent summary judgment evidence"). However, the court summarizes the allegations of Plaintiff's Complaint herein to provide additional background information regarding the basis for Plaintiff's lawsuit.
On June 24, 2021, Defendant filed a Motion for Summary Judgment and provided pro se Plaintiff with a proper Roseboro Notice pursuant to Rule 7(K) of the Local Civil Rules of the United States District Court for the Eastern District of Virginia. Mot. Summ. J. at 1-3, ECF No. 16; see E.D. Va. Loc. Civ. R. 7 (K). In support of its motion, Defendant submitted: (i) a copy of Defendant's Answer to Plaintiff's Complaint, ECF No. 17-1; (ii) a declaration of John Anandraj ("Anandraj Declaration"), who was formerly employed by Defendant as an Area Manager, ECF No. 17-2, at 1-3; (iii) a job description for an Area Manager, ECF No. 17-2, at 4-6; (iv) a declaration of Corey Cheek ("Cheek Declaration"), who was formerly employed by Defendant as an Area Manager, ECF No. 17-3, at 1-5; (v) an additional copy of a job description for an Area Manager, ECF No. 17-3, at 6-8; (vi) a July 19, 2018 Written Warning issued to Plaintiff by Mr. Cheek, ECF No. 17-3, at 9; (vii) an August 6, 2018 Final Written Warning issued to Plaintiff by Mr. Cheek, ECF No. 17-3, at 10; (viii) an October 19, 2018 Final Written Warning issued to Plaintiff by Mr. Cheek, ECF No. 17-3, at 11; (ix) text messages ("Text Messages") between Plaintiff and Isis Tapia on November 3, 2018, ECF No. 17-3, at 12; (x) excerpts from Defendant's Employee Guidelines regarding "Performance Expectations," ECF No. 17-3, at 13-16; (xi) a declaration of Melody Roberts ("Roberts Declaration"), who is currently employed by Defendant as a Paralegal, ECF No. 17-4, at 1-4; (xii) a record of Plaintiff's signed "Acknowledgment of Receipt and Understanding" ("Acknowledgment") of the Employee Guidelines, ECF No. 17-4, at 5; (xiii) excerpts from Defendant's Employee Guidelines regarding Defendant's "Employee Recourse/Internal Complaint and Investigation Process" policy, ECF No. 17-4, at 6-7; (xiv) a job description for a General Manager, ECF No. 17-4, at 8-10; (xv) a job description for an Assistant General Manager, ECF No. 17-4, at 11-13; (xvi) an internal record from Defendant regarding Plaintiff's tardiness ("Tardiness Summary"), ECF No. 17-4, at 14; (xvii) an additional copy of excerpts from Defendant's Employee Guidelines regarding "Performance Expectations," ECF No. 17-4, at 15-18; and (xviii) a copy of Defendant's First Set of Interrogatories to Plaintiff, ECF No. 17-5, at 1-2.
Plaintiff filed a timely Opposition to Defendant's Motion for Summary Judgment; however, Plaintiff did not attach any supporting materials to her Opposition. Opp'n, ECF No. 19. Defendant filed a timely Reply. Reply, ECF No. 20. Defendant's Motion for Summary Judgment is ripe for adjudication.
The court notes that Plaintiff's Opposition is unsigned. Opp'n at 1-4, ECF No. 19. Even considering the unsigned submission, it does not overcome the standard and undisputed facts on summary judgment. See infra Parts II and III; note 4.
II. Statement of Undisputed Material Facts
For purposes of Defendant's Motion for Summary Judgment, the following are the undisputed material facts, which are relevant to Plaintiff's claim and are adequately supported by materials in the record:
When a party moves for summary judgment, the moving party is required to "include a specifically captioned section listing all material facts as to which the moving party contends there is no genuine issue," and to cite "the parts of the record relied on to support the listed facts as alleged to be undisputed." E.D. Va. Loc. Civ. R. 56 (B); see Fed. R. Civ. P. 56(c)(1). When responding to a summary judgment motion, the nonmoving party shall list "all material facts as to which it is contended that there exists a genuine issue necessary to be litigated," and "cit[e] the parts of the record relied on to support the facts alleged to be in dispute." E.D. Va. Loc. Civ. R. 56 (B); see Fed. R. Civ. P. 56(c)(1). If a nonmoving party "fails to properly address another party's assertion of fact as required by Rule 56(c)," the court may "consider the fact undisputed for purposes of the motion" or "grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed. R. Civ. P. 56(e).
In Defendant's Motion for Summary Judgment, Defendant lists the material facts that it contends are undisputed in this action, and cites to the record to support its contentions. Mem. Supp. Mot. Summ. J. at 4-8, ECF No. 17. Although Plaintiff filed an Opposition to Defendant's Motion for Summary Judgment in which Plaintiff disputes certain statements made by Defendant in its motion, Plaintiff did not cite to any materials in the record to show that any of the material facts asserted by Defendant are genuinely disputed. Opp'n at 1-4, ECF No. 19. Accordingly, the court may properly consider Defendant's facts as undisputed for purposes of resolving Defendant's Motion for Summary Judgment. See Fed. R. Civ. P. 56(e).
Plaintiff began working for Defendant on June 7, 2012, at Restaurant #1165 in Virginia Beach, Virginia. Roberts Decl. ¶ 9. After Plaintiff completed her training, Plaintiff became the Assistant General Manager at Restaurant #1165. Id. ¶ 10.
On April 13, 2015, Plaintiff was transferred to Restaurant #2396 in Norfolk, Virginia to work as the General Manager. Id. In 2016, Mr. Anandraj, who was already employed by Defendant as an Area Manager, assumed the responsibility of overseeing several of Defendant's restaurants in the Hampton Roads area, including Restaurant #2396. Anandraj Decl. ¶¶ 8-9. Mr. Anandraj noticed that Plaintiff "was frequently tardy" and "was not satisfactorily performing the duties of General Manager of Restaurant #2396." Id. ¶ 10. Mr. Anandraj "verbally counseled" Plaintiff regarding her performance issues "on multiple occasions." Id. On July 17, 2017, Mr. Anandraj demoted Plaintiff to Assistant General Manager and transferred Plaintiff to Restaurant #1225 in Chesapeake, Virginia. Id. ¶¶ 8, 10; see Roberts Decl. ¶ 12.
In April 2018, Mr. Anandraj offered Plaintiff a lateral transfer back to Restaurant #1165 in Virginia Beach, Virginia "to provide additional support for the new General Manager" at that location. Anandraj Decl. ¶ 12. In his declaration, Mr. Anandraj states that he and Plaintiff "agreed that the transfer to a lower volume Restaurant—and one that [Plaintiff] was familiar with—would have a positive impact on [Plaintiff's] performance." Id. Plaintiff accepted Mr. Anandraj's offer and transferred to Restaurant #1165 on April 30, 2018. Id.; see Roberts Decl. ¶ 14.
In July 2018, Mr. Anandraj "accepted a new Area Manager role and was replaced by Mr. Cheek." Anandraj Decl. ¶ 15; see Cheek Decl. ¶ 11. As Plaintiff's new Area Manager, Mr. Cheek "observed immediately that [Plaintiff] was frequently tardy for work." Cheek Decl. ¶ 13. On July 19, 2018, Mr. Cheek issued a Written Warning to Plaintiff that stated:
Defendant's "Attendance and Punctuality" policy is set forth in its Employee Guidelines, a copy of which Plaintiff received and acknowledged on July 11, 2012. Acknowledgement, ECF No. 17-4, at 5; Employee Guidelines, ECF No. 17-3, at 13. The policy states:
Regular and prompt attendance is an essential part of your overall job performance and is critical to the smooth and efficient operation of the Company. Absenteeism and tardiness are expensive, disruptive, and place an unfair burden on other employees and your supervisor. Accordingly, it is imperative that you report to work regularly, be ready to perform your assigned duties at the beginning of your scheduled shift or workday, and work your full scheduled shift or workday.
...
Even though an employee provides proper notice of his or her absence or tardiness, continued irregular attendance or excessive absenteeism or tardiness constitutes unsatisfactory performance and will subject the employee to disciplinary action, up to and including discharge.
Employee Guidelines, ECF No. 17-3, at 13.
Concern:
Despite our previous conversation in April, you continue to fail to meet expectations. Specifically:
• Failing to exhibit regular and punctual attendance consistently.
All of these behaviors are unacceptable and must stop immediately.
Expectations:
You are expected to immediately adhere to the following expectations:
• Report to work regularly, on time, and ready to perform your assigned duties at the beginning of your regularly scheduled shift.
• Successfully execute all of your duties as an [Assistant General Manager] at all times.
• Act in a respectful and professional manner at all times.
• Follow all Company policies, practices, and procedures at all times.
• Follow all expectations as expressed in the Boston Market Standards of Business Conduct and Employee Guidelines.
Consequences if behavior does not meet expectations: Repetition of this behavior, failure to meet expectations, or failure to follow any Boston Market policy,
practice or procedure ... may result in further disciplinary action up to and including the possibility of immediate separation from employment.
July 19, 2018 Written Warning at 1; see Cheek Decl. ¶¶ 13-14.
Despite the July 19, 2018 Written Warning, "[Plaintiff's] tardiness continued." Cheek Decl. ¶ 15. As a result, Mr. Cheek issued Plaintiff a Final Written Warning on August 6, 2018, that stated:
In her declaration, Ms. Roberts states that Plaintiff "was tardy a total of 38 times" between April 30, 2018 and November 23, 2018. Roberts Decl. ¶ 15, ECF No. 17-4, at 3; see Tardiness Summary, ECF No. 17-4, at 14.
Concern:
Despite our previous conversation in April and documentation in July, you continue to fail to meet expectations. Specifically:
• Failing to exhibit regular and punctual attendance consistently.
This behavior is unacceptable and must stop immediately. Aug. 6, 2018 Final Written Warning at 1; see Cheek Decl. ¶¶ 15-16; Roberts Decl. ¶ 19. In the August 6, 2018 Final Written Warning, Plaintiff was advised that "[r]epetition of this behavior, failure to meet expectations, or failure to follow any Boston Market policy, practice or procedure ... may result in further disciplinary action up to and including the possibility of immediate separation from employment." Aug. 6, 2018 Final Written Warning at 1.
In October 2018, Mr. Cheek learned that Plaintiff had been "insubordinate with her General Manager when asked to perform her job duties." Cheek Decl. ¶ 17. As a result, Mr. Cheek issued a Final Written Warning to Plaintiff on October 19, 2018, that stated:
Defendant's Employee Guidelines provide a "non-exclusive list" of unacceptable conduct, which includes: "Insubordination, including failure or refusal to promptly carry out the legitimate, work related orders or instructions of a supervisor or manager." Employee Guidelines, ECF No. 17-3, at 14.
Concern:
Despite our previous conversation in April and documentation in July, you continue to fail to meet expectations. Specifically:
• Failing to communicate, coach, lead by example and guide your employees in a helpful, courteous[,] respectful manner.
This behavior is unacceptable and not consistent with company expectations.
Oct. 19, 2018 Final Written Warning at 1; see Cheek Decl. ¶¶ 17-18; Roberts Decl. ¶ 20. Plaintiff was warned that "[r]epetition of this behavior, failure to meet expectations, or failure to follow any Boston Market policy, practice or procedure ... will result in immediate disciplinary action up to and including the possibility of immediate separation from employment." Oct. 19, 2018 Final Written Warning at 1.
On November 3, 2018, Mr. Cheek was advised by the General Manager at Restaurant #1165 "that Plaintiff manipulated her timecard" on November 3, 2018. Cheek Decl. ¶ 19. The following day, Mr. Cheek "went to Restaurant #1165 to conduct an investigation." Id. During his investigation, Mr. Cheek reviewed "punch records," the "closed circuit TV camera," and relevant "text messages sent by [Plaintiff]" to Ms. Tapia, who was Plaintiff's subordinate. Id. ¶¶ 19-22. Mr. Cheek's investigation revealed that Plaintiff texted Ms. Tapia on November 3, 2018, and instructed Ms. Tapia to "clock [Plaintiff] in to the Restaurant" "for [Plaintiff's] scheduled 8:00 a.m. shift." Id. ¶¶ 19-20. Ms. Tapia clocked Plaintiff in at 7:52 a.m.; however, Plaintiff "did not arrive at the Restaurant until approximately 9:00 a.m." Id. ¶ 19; see Text Messages at 1. Mr. Cheek concluded that Plaintiff's actions violated Defendant's employment policies regarding "falsification of company records and requesting a subordinate to undertake a knowing and willful violation of policy," both of which were "grounds for immediate termination." Cheek Decl. ¶ 22; see Roberts Decl. ¶ 18.
"[F]alsification or alteration of attendance, time or pay related records" is included in the "non-exclusive list" of unacceptable conduct set forth in Defendant's Employee Guidelines. Employee Guidelines, ECF No. 17-3, at 14.
On November 14, 2018, Mr. Cheek, Mike Daniel (Defendant's Director of Operations), and Doug Kramer (Defendant's Human Resources Manager) met with Plaintiff via a conference call. Cheek Decl. ¶ 24. During the call, Plaintiff was advised that "she was suspended until further notice." Id. On November 23, 2018, Plaintiff's employment was terminated for the following reasons:
1. Chronic and repeated tardiness, for which she was reprimanded and verbally counseled and received a Final Written Warning; 2. Insubordination; 3. Directing a subordinate to violate policy; 4. Knowing[ly] and willfully violating pay policy and directing the falsification of pay records; 5. Creating an unacceptable environment in the Restaurant th[r]ough intimidation of employees and other managers.
Id. ¶ 25; see Roberts Decl. ¶ 21.
III. Analysis
A. Summary Judgment Standard
Summary judgment is appropriate only when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine dispute "as to any material fact and that the moving party is entitled to a 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) ; see Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408, 418 (4th Cir. 2004) ; see also Fed. R. Civ. P. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party ... [and] [a] fact is material if it might affect the outcome of the suit under the governing law." Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (citations omitted). The moving party has the initial burden to show the absence of an essential element of the nonmoving party's case and to demonstrate that the moving party is entitled to judgment as a matter of law. Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 185 (4th Cir. 2004) ; McLean v. Patten Cmtys., Inc., 332 F.3d 714, 718 (4th Cir. 2003) ; see Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548.
When the moving party has met its burden to show that the evidence is insufficient to support the nonmoving party's case, the burden then shifts to the nonmoving party to present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Honor, 383 F.3d at 185 ; McLean, 332 F.3d at 718-19. Such facts must be presented in the form of exhibits and sworn affidavits. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ; see M&M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993). To successfully defeat a motion for summary judgment, the nonmoving party must rely on more than conclusory allegations, "mere speculation," the "building of one inference upon another," the "mere existence of a scintilla of evidence," or the appearance of "some metaphysical doubt" concerning a material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) ; Tao of Sys. Integration, Inc. v. Analytical Servs. & Materials, Inc., 330 F. Supp. 2d 668, 671 (E.D. Va. 2004). Rather, there must be sufficient evidence that would enable a reasonable fact-finder to return a verdict for the nonmoving party. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
Although the court is not "to weigh the evidence and determine the truth of the matter" at the summary judgment phase, the court is required to "determine whether there is a genuine issue for trial." Tolan v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ); see Jacobs, 780 F. 3d at 568-69. In determining whether there is a genuine issue for trial, "[t]he relevant inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ " Stewart v. MTR Gaming Grp., Inc., 581 F. App'x 245, 247 (4th Cir. 2014) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505 ).
B. Title VII Discrimination
In this action, Plaintiff asserts a Title VII gender discrimination claim against Defendant. Compl. at 1. Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
A plaintiff asserting a Title VII claim may proceed through two avenues of proof to avert summary judgment. Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019) ; Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) ; Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004). First, the plaintiff may present "direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor ... motivated the employer's adverse employment decision." Diamond, 416 F.3d at 318. Where, as here, there is insufficient direct or circumstantial evidence of discrimination, the plaintiff may attempt to prove her claim by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Under the McDonnell Douglas framework, the court must first determine whether the plaintiff has established a prima facie case of discrimination. If the plaintiff is able to establish a prima facie case, the burden then shifts to the defendant to proffer a legitimate, non-discriminatory reason for its adverse action. McDonnell Douglas Corp., 411 U.S. at 802-03, 93 S.Ct. 1817. If the defendant does so, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the defendant's stated reasons were not its true reasons, but were pretextual. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). "Importantly, ‘[a]lthough intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ " Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). To establish a prima facie case of discrimination under Title VII, Plaintiff must show: (i) membership in a protected class; (ii) satisfactory job performance; (iii) an adverse employment action; and (iv) more favorable treatment of someone outside the protected class with comparable qualifications. Perkins, 936 F.3d at 207 ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). In its Motion for Summary Judgment, Defendant argues that Plaintiff cannot demonstrate a prima facie case of Title VII discrimination because, among other reasons, Plaintiff cannot establish that her job performance was satisfactory or that other similarly situated employees outside of Plaintiff's protected class received more favorable treatment from Defendant. Mem. Supp. Mot. Summ. J. at 12-13, ECF No. 17. Defendant further argues that even if Plaintiff could demonstrate a prima facie case of discrimination, summary judgment would nevertheless be warranted because Defendant has provided legitimate, non-discriminatory reasons for its actions, and Plaintiff cannot demonstrate pretext. Id. at 17-19. The court will address each of these arguments in turn.
1. Plaintiff's Job Performance
As noted above, Defendant argues that Plaintiff cannot demonstrate the second required element of a prima facie case of discrimination under Title VII, i.e., satisfactory job performance. Mem. Supp. Mot. Summ. J. at 12. Defendant supports its argument with cites to declarations and copies of relevant portions of Plaintiff's employment records. For example, Defendant submitted a declaration from Mr. Anandraj, in which Mr. Anandraj states that when he served as Plaintiff's Area Manager, Plaintiff "was not satisfactorily performing the duties of General Manager of Restaurant #2396," "was frequently tardy," was "verbally counseled ... on multiple occasions," was demoted to an Assistant General Manager, and was subsequently transferred to a "lower volume Restaurant." Anandraj Decl. ¶¶ 10-12. After Plaintiff's demotion and transfer, Plaintiff's "tardiness continued," and resulted in additional "verbal counseling." Id. ¶ 14.
Defendant also submitted a declaration from Mr. Cheek, in which Mr. Cheek states that when he assumed the role of Plaintiff's Area Manager, he "observed immediately that [Plaintiff] was frequently tardy for work." Cheek Decl. ¶ 13. As a result of Plaintiff's frequent tardiness, Mr. Cheek states that he issued disciplinary warnings to Plaintiff on July 19, 2018 and August 6, 2018. Id. ¶¶ 13-16; see July 19, 2018 Written Warning at 1; Aug. 6, 2018 Final Written Warning at 1. Mr. Cheek also states that he issued a disciplinary warning to Plaintiff on October 19, 2018, based on the insubordination displayed by Plaintiff toward her General Manager "when asked to perform her job duties." Cheek Decl. ¶ 17; see Oct. 19, 2018 Final Written Warning at 1. Further, Mr. Cheek states in his declaration that on November 3, 2018, Plaintiff violated company policy by falsifying her time records and requesting that a subordinate clock in for Plaintiff although Plaintiff had not yet arrived at work. Cheek Decl. ¶¶ 19-23.
Defendant also submitted a declaration from Ms. Roberts, in which Ms. Roberts summarizes Plaintiff's performance failures discussed above, and notes that Plaintiff "was tardy a total of 38 times" between April 30, 2018 and November 23, 2018. Roberts Decl. ¶¶ 12, 15-16, 18-21.
In her Opposition, Plaintiff disagrees with the statements made in the declarations and employment records submitted by Defendant. Opp'n at 1-4. Plaintiff claims that she was "never late," was "always early," and was "always leaving late." Id. at 3. Plaintiff further claims that Defendant "cannot prove that [Plaintiff] was insubordinate, was in violation of any company policies[,] [or] manipulat[ed] ... [her] own timecard." Id. at 1. With respect to the timecard falsification issue, Plaintiff claims that she asked Ms. Tapia to "clock [her] in" because Plaintiff was travelling to Defendant's other restaurants at that time to pick up needed supplies, including cornbread and sweet potatoes. Id. at 3-4.
In her Opposition, Plaintiff refers to a few occasions when she arrived at work after her scheduled start time. However, Plaintiff claims that her tardiness was the result of traffic, vehicle troubles, and delays caused by another employee. Opp'n at 3-4, ECF No. 19.
Although it is clear that Plaintiff disagrees with Defendant's assessment of Plaintiff's job performance, the United States Court of Appeals for the Fourth Circuit has explained that "it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000) ; see Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (noting that "plaintiff's own opinions and conclusory allegations do not have sufficient ‘probative force to reflect a genuine issue of material fact’ ") (citation omitted).
Further, Plaintiff does not support her claims of satisfactory job performance with any cites to evidence in the record. Opp'n at 1-4; see Fed. R. Rule 56(c)(1) (explaining the need to support factual positions in summary judgment briefing with cites "to particular parts of materials in the record"). Thus, Plaintiff's statements regarding her job performance simply amount to "conclusory statements, without specific evidentiary support," that cannot support an actionable claim for discrimination. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998). Defendant, on the other hand, supports its statements regarding Plaintiff's performance deficiencies with declarations and other admissible evidence. See Anandraj Decl. ¶¶ 10-12, 14; Cheek Decl. ¶¶ 13-17, 19-23; Roberts Decl. ¶¶ 12, 15-16, 18-21; July 19, 2018 Written Warning at 1; Aug. 6, 2018 Final Written Warning at 1; Oct. 19, 2018 Final Written Warning at 1.
Under these circumstances, and based on the record evidence, the court finds that Plaintiff has not provided sufficient evidence that would allow a reasonable fact-finder to conclude that her job performance was satisfactory. As a result, the court further finds that Plaintiff has failed to establish a prima facie case of gender discrimination against Defendant.
2. Similarly Situated Individuals
Defendant also argues that Plaintiff cannot demonstrate the fourth required element of a prima facie case of gender discrimination under Title VII, i.e., more favorable treatment received by similarly situated individuals outside of Plaintiff's protected class. Mem. Supp. Mot. Summ. J. at 12-13; see Coleman, 626 F.3d at 190. In order to satisfy this element of a prima face case of discrimination, "a plaintiff does not need to be identical to a comparator-employee;" however, "there must be substantial similarity." Rayyan v. Va. DOT, No. 1:15cv01681, 2017 WL 123442, at *3, 2017 U.S. Dist. LEXIS 5061, at *9 (E.D. Va. Jan. 12, 2017) (citing Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010) ). "There should be similarity in all relevant aspects such as conduct, performance, and qualifications." Id. As the Fourth Circuit has explained:
"The similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful." That showing typically includes evidence that the employees
"dealt with the same supervisor, ... [were] subject to the same standards[,] and ... engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct."
Hurst v. D.C., 681 F. App'x 186, 191 (4th Cir. 2017) (internal citations omitted) (alterations in original).
In its Motion for Summary Judgment, Defendant argues:
There is a complete failure in the evidence as to this element. Plaintiff has not identified any male comparator that she alleges was treated more preferentially than she was. There is no evidence that there w[ere] any other Assistant General Managers who were similarly situated for purposes of a Title VII analysis. Moreover, there is no evidence that such individuals engaged in conduct similar to the conduct relevant to this action.
Mem. Supp. Mot. Summ. J. at 13.
In her Opposition, Plaintiff claims that other male employees were treated more favorably than Plaintiff. For example, Plaintiff claims that (i) Mr. Anandraj wanted a male Assistant Manager named "Troy" to "run the store;" (ii) Plaintiff and "all the female managers" were transferred to different stores "without even discussing the change;" (iii) Mr. Anandraj "would only talk to Troy about store business" when he visited the restaurant; (iv) Mr. Cheek used a male Shift Manager named Xavier Day "to spy on [Plaintiff] everyday;" and (v) Mr. Cheek "gave raises to all the male employees." Opp'n at 2-3.
Defendant argues that the individuals referenced in Plaintiff's Opposition are not " ‘similarly situated’ for purposes of a Title VII analysis." Reply at 6, ECF No. 20. Specifically, Defendant argues that Plaintiff has not established, "through record evidence," that a "comparator engaged in the same conduct," (i.e., "had multiple tardies, was insubordinate, manipulated time records, or received multiple warnings") "that resulted in Plaintiff's suspension and discharge." Id. at 3, 6.
Upon review, the court finds that Plaintiff does not support her claims regarding the preferential treatment of male employees with any cites to evidence in the record, as required by Federal Rule 56(c)(1). See Fed. R. Civ. P. 56(c) (1) (explaining the need to support factual positions in a summary judgment briefing with cites "to particular parts of materials in the record"); Causey, 162 F. 3d at 802 (explaining that "conclusory statements, without specific evidentiary support" cannot support an actionable claim for discrimination).
Further, even if Plaintiff had cited to evidence in the record to support her claims, the court finds that Plaintiff has not established that any male employees who received preferential treatment from Defendant may be considered proper comparators who were substantially similar to Plaintiff in terms of "conduct, performance, and qualifications." Rayyan, 2017 WL 123442, at *3, 2017 U.S. Dist. LEXIS 5061, at *9 ; see Hurst, 681 F. App'x at 191.
Under these circumstances, the court finds that, based on the record evidence, a reasonable fact-finder could not conclude that Plaintiff was treated differently than similarly situated employees outside of her protected class. For this additional reason, the court finds that Plaintiff has failed to establish a prima facie case of gender discrimination against Defendant.
3. Defendant's Legitimate, Non-Discriminatory Reasons for its Actions
Assuming, for the sake of argument, that Plaintiff could demonstrate a prima facie case of Title VII gender discrimination against Defendant, the court finds that summary judgment would nevertheless be warranted in favor of Defendant. Defendant has articulated legitimate, non-discriminatory reasons for the actions about which Plaintiff complains in this action. Defendant's stated reasons are supported by ample evidence, and Plaintiff has not provided evidence to raise a genuine issue of material fact regarding pretext. See McDonnell Douglas Corp., 411 U.S. at 802-03, 93 S.Ct. 1817 ; Anderson, 406 F.3d at 268.
For example, as detailed above, Defendant submitted sworn declarations, with supporting documentation, that indicate that Plaintiff's employment was terminated for the following performance-related reasons:
1. Chronic and repeated tardiness, for which she was reprimanded and verbally counseled and received a Final Written Warning; 2. Insubordination; 3. Directing a subordinate to violate policy; 4. Knowing[ly] and willfully violating pay policy and directing the falsification of pay records; 5. Creating an unacceptable environment in the Restaurant th[r]ough intimidation of employees and other managers.
Cheek Decl. ¶ 25; see Roberts Decl. ¶ 21. As the Fourth Circuit has explained, "[j]ob performance and relative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision." Evans, 80 F.3d at 960.
While it is clear that Plaintiff disagrees with Defendant's stated reasons for her termination and believes that she was the victim of discrimination, Plaintiff's suspicions of ill intent are insufficient to create a genuine issue of material fact regarding pretext. See Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (explaining that, with respect to pretext, the plaintiff's self-assessment is irrelevant); McNaught v. Va. Cmty. College Sys., 933 F. Supp. 2d 804, 824 (E.D. Va. 2013) (noting that a plaintiff's disagreement with a defendant's decisions was insufficient to establish pretext and escape summary judgment).
Upon review of the record in this action, the court finds that (i) Defendant has articulated a legitimate, non-discriminatory explanation for its actions; and (ii) Plaintiff has not provided sufficient evidence for a reasonable fact-finder to conclude that Defendant's explanation is pretextual.
For the reasons set forth above, the court concludes that Plaintiff has not demonstrated the existence of a genuine dispute of material fact as to her Title VII discrimination claim against Defendant. Accordingly, Defendant's Motion for Summary Judgment, ECF No. 16, is GRANTED .
IV. Conclusion
Defendant's Motion for Summary Judgment, ECF No. 16, is GRANTED , and the Clerk shall enter judgment to this effect.
Plaintiff may appeal this Memorandum Final Order by forwarding a written notice of appeal to the Clerk of the United States District Court, Norfolk Division, 600 Granby Street, Norfolk, Virginia 23510. The written notice must be received by the Clerk within thirty days from the date of entry of this Memorandum Final Order.
IT IS SO ORDERED .