Opinion
1:01CV00949
February 27, 2003
MEMORANDUM OPINION
This case is now before the Court on Defendant Air Express International Corporation's Motion to Dismiss or, in the Alternative, For Summary Judgment [Doc. #27], Defendant Tyco Electronic Corporation's Motion for Summary Judgment [Doc. #29], and Sandra Spencer's Motion for an Extension of Time [Doc. #42]. For the reasons set forth below, Tyco's Motion for Summary Judgment is GRANTED, AEI's Motion to Dismiss is GRANTED, and Spencer's Motion for an Extension of Time is DENIED.
I.
The facts, in the light most favorable to the Plaintiff, Sandra Spencer ("Spencer"), are as follows. In August 1999, Spencer, an African-American female, was employed by Kelly Services, a temporary employment service, to work as a Sample Room packer at the Tyco Electronics ("Tyco") facility in Greensboro, North Carolina. As a temporary employee, Spencer was paid $7.00 per hour. On December 6, 1999, Spencer was hired by Air Express International Corporation ("AEI") as a regular employee to work in the Sample Room at the Tyco facility. During 1999 and 2000, AEI had a contract with Tyco to supply individuals to work in the Sample Room at Tyco's facility. As an AEI employee, Spencer earned $10.00 per hour.
AEI had an attendance policy which provided, "[e]xcessive absences or lateness may be grounds for disciplinary action, including dismissal, even if the causes are beyond the employee's control." (Pl. Dep. ex. 6). On June 12, 2000, Spencer received a warning regarding her tardiness and was notified that she had been tardy to work on 16 unexcused occasions between January 1, 2000 and May 30, 2000. On July 26, 2000, Spencer received another warning regarding tardiness because she had been late to work on three occasions during the month of June. At the time of the July 26 warning, Spencer was notified that continued tardiness could result in termination. After the second warning, Spencer was late to work on seven additional occasions and was eventually terminated in November 2000. The reason for her termination listed on her Employee Action Notice was "excessive tardies."
Plaintiff filed a complaint in this matter seeking legal, equitable, and declaratory relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and punitive damages for infliction of emotional distress under the common law of North Carolina. Defendant Tyco filed a motion for summary judgment. Defendant AEI filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 4(m) and 12(b)((4) for insufficient service of process.
II.
Rule 4(m) provides that where "service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court . . . . shall dismiss the action as to that defendant. . . ." Fed.R.Civ.P. 4(m). As the Fourth Circuit has recognized, "[r]ule 4(m) is not ambiguous." Harding v. Williams Property Co., No. 96-2713, 1998 WL 637414, at *5 (4th Cir. Aug. 31, 1998).
Spencer asserts that AEI has been served with process. On October 16, 2001, when Spencer originally filed the complaint in the clerk's office, two separate summons were issued, one summons was issued for AEI and another summons was issued for Tyco. These corporations have the same national service of process agent, C T Corporation System. Spencer asserts she placed the AEI summons and the Tyco summons in the same envelope and sent them to the offices of the C T Corporation in Trenton, New Jersey.
However, there is no evidence before the Court that CT Corporation System, and thus AEI, received the AEI summons for the current action. In fact, the evidence before the Court leads to the conclusion that AEI has not been served in this case. First. Spencer has submitted a copy of a return receipt which verifies that a summons was received by C T Corporation on October 24, 2001. The addressee section of the receipt lists the recipient as "Tyco Electronics Corp. do Corporation Trust Corp. Registered Agent." There is no reference to AEI on the receipt. In addition, Tony Shaw, the Vice President of Human Resources for AEI, has submitted an affidavit that AEI has never received notice from CT Corporation that AEI was served with process in this suit. [Doc. #41]. Finally, at the initial pretrial conference in this matter on March 20, 2002, Spencer was notified that AEI had not been served and was instructed by the Court that she should take steps to ensure that proper service was effected.
The evidence before the court demonstrates that AEI has not been served with process in this action. Defendant AEI's Motion to Dismiss is GRANTED, and the action is DISMISSED WITHOUT PREJUDICE.
III.
Summary judgment is proper only when, viewing the facts in the light most favorable to the non-moving party, there is no genuine issue of any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Cox v. County of Prince William, 249 F.3d 295, 299 (4th Cir. 2001). An issue is genuine if a reasonable jury, based on the evidence, could find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Cox, 249 F.3d at 299. The materiality of a fact depends on whether the existence of the fact could cause a jury to reach different outcomes. Anderson, 477 U.S. at 248; Cox, 249 F.3d at 299. Summary judgment requires a determination of the sufficiency of the evidence, not a weighing of the evidence. Anderson, 477 U.S. 242, 249 (1986). In essence, the analysis concerns "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." Id. at 251-52.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discharge an employee or discriminate in "compensation, terms, conditions, or privileges of employment" because of race. 42 U.S.C. § 2000e-2 (a). Similarly, § 1981 "affords a federal remedy against discrimination in private employment on the basis of race." Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 440-41 (4th Cir. 2000) (quoting Johnson v. Railway Express Agency. Inc., 421 U.S. 454, 460 (1975). In order to prove a claim of racial discrimination in violation of Title VII or § 1981 , a plaintiff may provide direct evidence of discrimination, such as "conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision," or, in the absence of such direct evidence, the plaintiff may proceed using circumstantial evidence under the burden-shifting proof scheme established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).Taylor v. Virginia Union University, 193 F.3d 219, 232 (4th Cir. 1999).
The required elements of a prima facie case of employment discrimination are the same under Title VII and Section 1981. Gairola v. Commonwealth of Va. Dept. of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985).
Spencer does not provide any evidence that "reflect[s] directly the alleged discriminatory attitude" and "beans] directly on the contested employment decision" with respect to Tyco. Id. Therefore, she must proceed under the McDonnell Douglas burden-shifting proof scheme. UnderMcDonnell Douglas, a plaintiff's prima facie case of discrimination creates an inference that the employment action was based on unlawful discrimination. If the plaintiff can establish a prima facie case, the employer must then give a legitimate, nondiscriminatory reason for its action in order to rebut that inference. McDonnell Douglas, 411 U.S. at 802. If the employer presents such a reason, the plaintiff can still prove discrimination by showing that the stated reason is a mere pretext for a decision motivated by discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); McDonnell Douglas, 411 U.S. at 804. However, if a plaintiff fails to establish a prima facie case of discrimination or fails to raise a genuine factual dispute concerning the employer's legitimate and non-discriminatory explanation for the alleged discriminatory act, the Defendant is entitled to summary judgment. Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995).
To establish a prima facie case of discrimination in the context of discriminatory discharge, Spencer must show: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) at the time of the adverse employment action, she was performing at a level that met the employer's legitimate job expectations; and (4) the adverse employment action occurred "under circumstances which give rise to an inference of unlawful discrimination." E.E.O.C. v. Sears Roebuck Co., 243 F.3d 846, 851 (4th Cir. 2001).
As to the first and second elements, Spencer has presented evidence that she is an African-American female, and she has also demonstrated that she suffered an adverse employment action, specifically her termination from AEI. As to the third element, however, Spencer has not shown that she was performing at a level that met the employer's legitimate job expectations and therefore, her prima facie case fails. Tyco has produced the AEI attendance policy explaining that it was important for employees to arrive at work on time. Spencer admitted in her deposition that she was aware of this policy. (Spencer Dep. at 32.) In addition, Tyco has presented Spencer's employment records documenting the numerous occasions on which Spencer was late to work. Tyco has also presented company documents verifying that on June 12, 2000 and July 26, 2000, Spencer was warned that repeated tardiness could result in termination. In her deposition, Spencer admitted that she was "very afraid" she would be terminated for tardiness. (Spencer Dep. at 31).
Even if a prima facie case of discrimination had been presented, Spencer offers no evidence to dispute Tyco's explanation of why she was terminated. Instead, Spencer provides numerous reasons for her failure to arrive at work on time, such as traffic on Interstate 40, inclement weather, or problems with a faulty entry badge. At no point, however, does Spencer dispute that she arrived at work after 7:00 a.m. on each of these occasions. Spencer's contention that tardiness due to inclement weather or traffic jams should be excused does not create a factual issue concerning the reason for her termination. In short, Spencer knew it was important that she arrive at work by 7:00 a.m., she knew that she had been tardy on numerous occasions, she had been warned twice regarding her tardiness and notified that she could be terminated for repeated tardiness, and she was tardy on seven occasions following the second warning. Spencer has not proffered evidence, admissible at trial, that would support a reasonable inference that she was meeting her employer's legitimate expectations.
Spencer filed a Motion for an Extension of Time to Reply to Tyco Electronics and Air Express International Corporations Response to Plaintiff's Opposition to Motion for Summary Judgment. The motion seeks an extension of time to reply due to Spencer's illness and hospitalization. Spencer's initial response to the motion for summary judgment does not contain evidence sufficient to defeat that motion. Spencer's current motion does not state that she needs additional time in order to provide the Court with such evidence. Without such a proffer, a further reply would be moot. The motion for additional time to reply is DENIED.
Tyco's records indicate 27 tardies. Spencer claims that her "punch in" time was changed on four occasions in which she had punched in before 7:00 a.m. but had not arrived at her work station until after 7:00 a.m. Apparently the punch in time on the card was not changed; there were simply notations added to Ms. Spencer's record to show that although she punched in before 7:00, she was not at her work station until after 7:00. (Callow Aff.). Spencer was not counted tardy on these occasions.
Rather than providing evidence that she was meeting the employer's legitimate work expectations, Spencer cites various incidents occurring during her employment that she believes are indicative of racism. Even if Spencer had made a prima facie showing, however, the incidents discussed below would not be sufficient to support a reasonable inference that Tyco's stated reasons for termination are pretext for racial discrimination. To support her claims of racial discrimination, Spencer has alleged, among other things, that (1) African American employees were required to wear steel-toed shoes while white employees were not (Spencer Dep. at 41); (2) African American employees were terminated more quickly than white employees (Spencer Dep. at 41); and (3) African American employees were denied the opportunity to be trained on computers (Spencer Dep. at 42).
In addition, Spencer asserts that white employees were allowed to be tardy or absent without discipline, while Spencer was terminated for excessive tardies. (Spencer Dep. at 41). Specifically, Spencer asserts that Lisa McDowell, a white employee, was repeatedly absent and was not disciplined. Employment records provided by Tyco demonstrate that McDowell had 22 absences and 4 unexcused tardies between her hire date of August 29, 1999 and December 14, 2000. Although the number of absences is comparable to the 27 occasions on which Spencer was tardy, only two of McDowell's absences were considered unexcused; the majority of days McDowell was absent were excused as sick days or vacation days. None of the tardies for which Spencer was terminated, on the other hand, were excused tardies.
McDowell was required to attend a counseling session regarding excessive use of sick days.
Spencer provides all of the above arguments in support of her contention that Tyco's reason for terminating her was pretextual. However, none of the evidence discussed above shows that Tyco's stated reasons for dismissing Spencer were false, or that they were not the true reason for the dismissal. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 648 (4th Cir. 2002) ("[A] valid way to prove pretext is to provide evidence that the employer's proffered reason was not the actual reason relied on, but was rather a false description of its reasoning . . . manufactured after the fact."). All Spencer has shown is that she holds a subjective belief that she was discriminated against and that she disagrees with her employer regarding whether traffic on Interstate 40 or inclement weather should constitute an excused tardy. Such evidence is insufficient to defeat a motion for summary judgment.Hawkins v. Pepsico. Inc., 203 F.3d 274 (4th Cir. 2000) (stating in context of § 1981 action that a "showing of a difference of opinion, coupled with [a plaintiff's] conclusory allegations of racism, cannot reasonably support the conclusion that [the plaintiff's] discharge was motivated by racial animus).
Ultimately, Spencer's accusations of discriminatory discharge amount to mere speculation, and "a plaintiff's own assertions of discrimination in and of themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory reasons for an adverse employment action.'"Hawkins, at 281. A party opposing a motion for summary judgment may not rest upon the pleadings but must instead provide evidence or point to evidence already on the record that would be sufficient to support a jury verdict in her favor. Anderson, 477 U.S. at 248. Even where intent and motive are crucial to determining the outcome of the cause of action, conclusory allegations and unsupported speculation are insufficient to withstand summary judgment review. See Evans v. Techs. Applications Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996). Tyco's motion for summary judgment on the Title VII claim and the § 1981 claims is GRANTED.
IV.
Spencer also filed an emotional distress claim against Tyco. It is not clear from the complaint or subsequent pleadings and memoranda whether Ms. Spencer is alleging intentional infliction of emotional distress or negligent infliction of emotional distress. Each tort will be addressed in turn.
In North Carolina, the tort of intentional infliction of emotional distress ("IIED") consists of three elements: (1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). A claim for IIED exists when a defendant's conduct far exceeds the bounds of decency and is regarded as atrocious and utterly intolerable in society. Watson v. Dixon, N.C. App. 447, 52-53, 502 S.E.2d 15, 19-20 (1998).
To establish a claim for negligent infliction of emotional distress ("NIED") in North Carolina, a plaintiff must present evidence to create a reasonable inference that (1) the defendant negligently engaged in conduct; (2) it was reasonably foreseeable that such conduct would cause the plaintiff to suffer severe emotional distress; and (3) the conduct did in fact cause the plaintiff to suffer severe emotional distress. Best v. Duke Univ., 337 N.C. 742 (1994).
Both IIED and NIED require that the plaintiff suffer from severe emotional distress. The North Carolina Court of Appeals has defined severe emotional distress as "any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so."Soderland v. Kuch, 143 N.C. App. 361, 366, 546 S.E.2d 631, 637 (2001). Based on this definition, Spencer has provided no evidence that she has suffered severe emotional distress. While Spencer testified at her deposition that she cries when she thinks about this situation, she admitted that she had not sought medical attention for emotional distress. (Spencer Dep. at 55-56). Spencer has not presented any evidence that she has a "disabling emotional or mental condition." Because Spencer has failed to present evidence upon which a reasonable jury could find that she suffered severe emotional distress, her claim for infliction of emotional distress must fail as a matter of law. Tyco's motion for summary judgment on the emotional distress claim is GRANTED.
V.
In summary, Spencer has not presented sufficient evidence to create a genuine issue of material fact as to her claims of racial discrimination or infliction of emotional distress claims. For the reasons stated above, Tyco's Motion for Summary Judgment is GRANTED, AEI's Motion to Dismiss is GRANTED, and Spencer's Motion for an Extension of Time is DENIED.
JUDGMENT
This case is now before the Court on Defendant Air Express International Corporation's Motion to Dismiss or, in the Alternative, For Summary Judgment [Doc. #27], Defendant Tyco Electronic Corporation's Motion for Summary Judgment [Doc. #29], and Sandra Spencer's Motion for an Extension of Time [Doc. #42]. For the reasons set forth below, Tyco's Motion for Summary Judgment is GRANTED, AEI's Motion to Dismiss is GRANTED, and Spencer's Motion for an Extension of Time is DENIED.