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holding that an alleged pattern of sexual misconduct was a legitimate reason for termination
Summary of this case from Malry v. Montgomery Cnty. Bd. of Educ.Opinion
Civil Action No. CCB-08-1271.
July 8, 2009
MEMORANDUM
Now pending before the court is a motion for summary judgment filed by defendants Constellation Energy Group, Inc. ("CEG") and its affiliate, Constellation Power Source Generation, Inc. ("CPSG"), in this case brought by plaintiff Clifton Edward Trent. Mr. Trent is suing defendants for allegedly discriminating against him on the basis of his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., and on the basis of his gender, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, defendants' motion will be granted.
Defendants have also filed a motion for contempt, in which they ask this court, among other things, to dismiss plaintiff's complaint because he has violated a Stipulated Protective Order by improperly communicating with a current CPSG employee. Because summary judgment will be granted, the motion for contempt will be denied as moot.
Additionally, defendants have filed various motions to seal, pursuant to the stipulated protective order issued on February 2, 2009. No objections have been raised to these motions and they appear justified, in light of the need to protect personal information concerning certain individuals not directly involved in the lawsuit. Thus, these motions will be granted.
BACKGROUND
Mr. Trent was hired to be a welder for Baltimore Gas Electric ("BGE"), now part of CEG, in 1983. From approximately 1996 to 2006, his work as a welder was directly overseen by Stephen Centineo, a supervisor in the mechanical unit of CPSG's Steam Generator Services. Stephen Centineo was, in turn, supervised by Scott Blair, then CPSG's Steam Generator Services Manager, and Scott Blair was supervised by Peter Boute, CPSG's Vice President of Generation Services. During at least the majority of the time Mr. Trent was supervised by Mr. Centineo, he received positive performance reviews. It appears, however, that his tactfulness on the job was often observed to be in need of improvement. ( See, e.g., Pl.'s Opp. at Ex. 2, 2000 Job Proficiency Eval. at 3 (suggesting that Mr. Trent "be tactful" when communicating with others); id. at 2001 Job Proficiency Eval. at 3 (same); id. at 2002 Job Proficiency Eval. at 3 4 (same); id. at 2003 Job Proficiency Eval. at 3 ("Demonstrate tact when voicing your point of view").)In 2006, certain alleged incidents of sexual harassment either occurred or came to light that ultimately resulted in Mr. Trent's termination from CPSG. On the afternoon of October 2, 2006, at around 3:30 p.m., CPSG employee "Jane Doe," who had been at CPSG's C.P. Crane power plant for the entire morning, returned to her car in the plant's parking lot in order to drive to another CPSG location. There she discovered that her car would not start, so she went back to the plant's main building, with the intention of going to its third floor to find David Starling, the colleague with whom she had been working that morning. When she approached the elevator at the main building, she alleges that there was a man in the doorway of the elevator who appeared to be holding the door open for her. When she stepped into the elevator, she noticed that he had turned off the elevator's on-off switch, and that he turned it back on once they were both in the elevator so that it would move again. At this point, she alleges that he turned to her and said something like "I should take the elevator all the way to the top and turn it off and not let you get off . . . but then again, I don't think I could perform under that kind of pressure." (Pl.'s Opp. at Ex. 10, Doe Email 12/11/06.) As he completed his sentence, the elevator arrived at the second floor, and he allegedly gave a "creepy" smirk and stepped off the elevator. (Defs.' S.J. Mot. at Ex. 8, Doe Dep. at 28.) Ms. Doe then stepped off at the third floor and found Mr. Starling.
Although the identity of Jane Doe has been provided to the court, the parties have agreed to keep her identity confidential.
Mr. Trent had been working at the C.P. Crane power plant since September 2006. (Defs.' S.J. Mot. at Ex. 2, Trent Dep. at 15 18.)
In her deposition, she recalls him saying something to the effect of: "I saw you . . . walking through the parking lot. I figured you were coming up the elevator so I thought I'd hold it for you." (Defs.' S.J. Mot. at Ex. 8, Doe Dep. at 22.)
This paraphrasing of Mr. Trent's remarks is what is reflected in the account of the harassment that Ms. Doe emailed to Kimberley Richardson, CPSG's then Human Resources Consultant, on the morning of December 11, 2006, the day Mr. Trent was terminated. In her deposition, however, she paraphrased Mr. Trent's remarks this way: "I should just take the elevator all the way up to the top and turn it off and have my way with you. . . . but I don't think I could perform under that kind of pressure." (Defs.' S.J. Mot. at Ex. 8, Doe Dep. at 25.) Mr. Boute, Ms. Richardson, and others involved in the eventual decision to terminate Mr. Trent remember hearing approximately this version of Mr. Trent's remarks reported to them before making their termination decision. ( See Defs.' S.J. Mot. at Ex. 3, Boute Aff. ¶ 4; id. at Ex. 12, Richardson Dep. at 28; id. at Ex. 14, Melton Aff. ¶ 3; id. at Ex. 15, Mark Aff. ¶ 3.) Ms. Doe also stated in her deposition that she thinks she unintentionally omitted the "have my way with you" part of Mr. Trent's statement from the email, and that — despite the omission — she remembers this phrase being used. (Defs.' S.J. Mot. at Ex. 8, Doe Dep. at 45-47.)
When she and Mr. Starling were back in the parking lot examining her car, she told him about the incident, and he recommended she report it to Human Resources. The next morning at about 7:00 a.m., she called her supervisor at the time, Heather Lentz, to inform her of the incident. Ms. Lentz then contacted her manager, Mr. Boute, Mr. Blair, and Ms. Richardson to notify them about the incident. That same day, Ms. Doe went with Ms. Lentz to Mr. Blair's office, where she was shown a photographic personnel directory of 79 employees from Steam Generator Services. Out of all 79 photographs, of which 78 were photographs of men, "one stuck out" to Ms. Doe, and she said, "I am pretty sure this is the person but I would like a more recent photograph." (Defs.' S.J. Mot. at 8, Doe Dep. at 37.) That photograph was of Mr. Trent, a man she had never known in any other context. An internal investigation began at this point.
Ms. Richardson was tasked with overseeing the investigation into the incident. At the recommendation of her supervisor, Director of Human Resources Louis Melton, she kept the name of Ms. Doe confidential throughout the process. She first interviewed Ms. Doe, who recounted the incident to Ms. Richardson as she remembered it. When she stated that the photograph that formed the basis for identification of Mr. Trent appeared out of date, Ms. Richardson retrieved a recent photograph of him, and Ms. Doe positively identified that photograph as the man who had harassed her.
Ms. Richardson — along with Mr. Blair — subsequently interviewed Mr. Trent, who denied that the incident took place, stated that he did not recall being near the elevator at the time of the incident, gave the names of three coworkers who could vouch for his whereabouts that day, and requested the identity of Ms. Doe, a request that was declined. He also revealed that he had been accused of sexual harassment previously, in an incident involving employee Kathleen Locke. After the interview, Mr. Blair followed up by talking to Mr. Centineo, and Mr. Centineo confirmed that there had been an incident of alleged sexual harassment involving Mr. Trent and Ms. Locke approximately ten years ago that had been investigated by Human Resources. Mr. Centineo also relayed information about three other incidents that allegedly took place involving sexually derogatory or otherwise offensive remarks made by Mr. Trent toward women coworkers. These included an incident where a woman coworker complained that Mr. Trent told her "you should be on the block selling your services." (Defs.' S.J. Mot. at Ex. 7, Blair Aff. ¶ 7; see id. at Ex. 17, Blair Email 11/10/06.) Mr. Centineo also told Mr. Blair that he had "verbally counseled Mr. Trent on several occasions for his inappropriate behavior" but had not reported these incidents to management, a decision he regretted. (Defs.' S.J. Mot. at Ex. 18, Centineo Aff. ¶ 5; see id. at Ex. 7, Blair Aff. ¶ 8.)
Mr. Blair had previously interviewed Mr. Trent about the matter in an informal fashion. (Defs.' S.J. Mot. at Ex. 2, Trent Dep. at 23-24.) The combined interview with Ms. Richardson and Mr. Blair happened about a month later, according to Mr. Trent. ( Id. at 25.)
This particular assertion "put an antenna up" with Ms. Richardson and Mr. Blair, because they had not specified the time of day of the incident to Mr. Trent. (Defs.' S.J. Mot. at Ex. 12, Richardson Dep. at 39.)
None of these individuals were interviewed as part of the investigation. During discovery in this case, however, two of the individuals, John Ermer and David Waldhauser, offered sworn affidavits stating that they have no recollection of being with Mr. Trent at any point that afternoon. ( See Defs.' Reply at Ex. 24, Ermer Aff. ¶ 2; id. at Ex. 25, Waldhauser Aff. ¶ 3.) The third, Zachary Born, claims to have been with Mr. Trent continuously from approximately 3:30 p.m. to 4:30 p.m. that day. (Pl.'s Opp. at Ex. 7, Born Aff. ¶ 14.) He also claims that, during the time he was with Mr. Trent, they encountered both Mr. Ermer and Mr. Waldhauser. ( Id. ¶¶ 12-13.)
Ms. Richardson followed up by interviewing Ms. Locke, who confirmed that she had reported to her supervisor a set of incidents involving inappropriate comments Mr. Trent made to her. She claims that, on roughly a dozen occasions, Mr. Trent drove by her in his truck while she was walking outside at the plant at lunchtime, and said comments like "I like the way you walk." (Defs'. S.J. Mot. at Ex. 16, Locke Aff. ¶ 3.) For several of those occasions, she did not know the identity of the truck driver, but after one particular encounter, she observed the man coming back to the plant after lunch, and a coworker identified him as Mr. Trent. She claims that she then reported the incidents to her supervisor, and there were no further occurrences.
These findings and others were reported to Mr. Boute, Mr. Melton, and Human Resources Vice President Rick Mark. Based on the combined allegations, these men decided to terminate Mr. Trent on December 11, 2006. The stated basis for the termination, contained in the Corrective Action Plan Report signed by Messrs. Blair and Boute, was his "continued behavior for which he has been counseled on a number of occasions" involving inappropriate interpersonal behaviors, including most recently the incident with Ms. Doe. (Defs.' S.J. Mot. at Ex. 4, Corrective Action Plan Report.) It appears from their sworn affidavits that they understood this explanation to encompass at least all five of the alleged incidents of offensive behavior by Mr. Trent toward women coworkers. ( See id. at Ex. 3, Boute Aff. ¶ 14 ("I approved the termination of Mr. Trent. The basis for my approval was his repeated inappropriate comments to female employees"); id. at Ex. 7, Blair Aff. ¶¶ 4-10 (discussing how he learned of the incidents with Ms. Doe and Ms. Locke, the other three alleged incidents mentioned by Mr. Centineo, and the diversity training session incident before the termination decision was made); see also id. at Ex. 14, Melton Aff. ¶ 11; id. at Ex. 15, Mark Aff. ¶ 5.) Mr. Trent was sixty-three years old at the time of his termination. He now brings this suit.
Ten days prior to the alleged elevator incident, on September 22, 2006, Mr. Trent was a participant in a diversity training session held by CEG. The apparent goal of the session was to promote the company's diversity policy and educate the workforce about the company's harassment policy. ( See Defs.' S.J. Mot. at Ex. 7, Blair Aff. ¶ 10; id. at Ex. 15, Mark Aff. ¶ 4; id. at Ex. 19, Bugg Aff. ¶ 19; id. at Ex. 20.) At the session, also attended by Mr. Blair, Mr. Trent was disrespectful to the session leader and vocal in his objections to the need for the session itself. ( Id. at Ex. 7, Blair Aff. ¶ 10; Ex. 19, Bugg Aff. ¶ 4; see id. at Ex. 2, Trent Dep. at 50 53 (discussing his view that the session was not needed).) In his deposition, Mr. Trent admits having attended the session, having had a confrontation with the session leader during the session about his use of the term "Hillbilly" to describe a coworker, and having walked out of the session before its conclusion, after telling the session leader, "You don't know me. You don't have a clue about me. You don't know what I've done, where I've been, what I've paid, so just leave me out of it." ( Id. at Ex. 2, Trent Dep. at 49-52.)
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment:
should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.
Fed.R.Civ.Pro. 56(c). The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Mr. Trent asserts that, in terminating him for alleged sexual harassment but not terminating female employees for alleged sexual harassment, defendants engaged in gender discrimination. ( See Compl. ¶¶ 26 39-40.) Claims of gender discrimination in violation of Title VII are analyzed under the three-pronged burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff alleging Title VII discrimination must first make out a prima facie case of that discrimination. If he succeeds in carrying this initial burden, then "the burden shifts to the employer . . . `to articulate a legitimate, nondiscriminatory reason for the adverse employment action.'" Lettieri v. Equant Inc., 478 F.3d 640, 646 (4th Cir. 2007) (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc)). Once such a reason is provided, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the given reason was not the employer's true reason, but rather was a pretext for unlawful discrimination. Id. (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000)).
Where, as here, the alleged discrimination takes the form of disparate treatment with respect to discipline by being discharged, the employee makes out a prima facie case by showing that: (1) he is a member of a protected class; (2) his offending conduct was "comparable in seriousness to misconduct of employees outside the protected class"; and (3) he was subjected to "more severe discipline for [his] misconduct as compared to those employees outside the protected class." Taylor v. Virginia Union Univ., 193 F.3d 219, 234 (4th Cir. 1999) (en banc). While it is undisputed that Mr. Trent is a member of the protected class of males, he has come forward with no evidence that his alleged pattern of sexual harassment was comparable in seriousness to instances of misconduct by women employees at CEG or CPSG. Nor has he come forward with any evidence that he received more severe discipline for his alleged misconduct than women did. The only purported evidence Mr. Trent offers to support his gender discrimination claim is his own testimony that three other male employees — Messrs. Huckstep, Schaefer, and Schinner — engaged in sexual harassment and were disciplined less severely than him. (Defs.' S.J. Mot. at Ex. 2, Trent Dep. at 102-05; Pl.'s Opp. at Ex. 12, Trent Aff. ¶¶ 9-10.) Setting aside the fact that this evidence is inadmissable hearsay, see Fed.R.Evid. 802, it would not help Mr. Trent's case if true; rather, it would dispel any inference that men at CEG or CPSG routinely receive harsher discipline for sexual harassment than women. Moreover, discovery has revealed no evidence of any sexual harassment by Messrs. Schaefer and Schinner. (Defs.' Reply at Ex. 26, Richardson Aff. ¶¶ 2-3 8.) As for Mr. Huckstep, the evidence shows only one complaint of sexual harassment raised against him, a complaint for which he was verbally counseled, not terminated. ( Id. ¶¶ 2-5.) No aspect of Mr. Huckstep's case supports Mr. Trent's claim of gender-based disparate treatment in discipline. Accordingly, Mr. Trent's gender discrimination claim fails.
When Mr. Trent was asked the source of his information about Mr. Huckstep, he responded that Mr. Huckstep told him. (Defs.' S.J. Mot. at Ex. 2, Trent Dep. at 104.) When asked the source of his information about Mr. Schaefer, he replied that the source of his information was rumor. ( Id. at 107.) Likewise, with Mr. Schinner, he replied simply, "It was all over the company." ( Id. at 106.)
Mr. Trent also asserts that, in terminating him from his position and replacing him with an employee under the age of forty, defendants discriminated against him on the basis of his age. Claims of age discrimination in violation of the ADEA are analyzed under the same McDonnell Douglas burden-shifting framework as Title VII discrimination claims. Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006). To succeed on this age discrimination claim, Mr. Trent must establish that: (1) he is a member of a protected class, i.e., is over the age of forty; (2) he suffered an adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time; and (4) his position remained open or was filled by similarly qualified applicants outside the protected class. Hill, 354 F.3d at 285. In short, Mr. Trent must show that, but for his age, the adverse employment action would not have been taken. See Mitchell v. Data General Corp., 12 F.3d 1310, 1314 (4th Cir. 1993).
It is not disputed that the first two elements of the prima facie case are met here. Mr. Trent has failed to establish, however, that his position was filled by similarly qualified applicants outside the protected class. Although younger individuals were eventually hired into the Mobile Maintenance Unit as welders after Mr. Trent was terminated, none was hired to fill his position. ( See Defs.' Reply at Ex. 26, Richardson Aff. ¶¶ 12-14.) Furthermore, no welders were hired at all until five months after Mr. Trent's termination, weakening any inference that defendants terminated Mr. Trent in order to replace him with a younger welder. Cf. Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001). The defendants also contend that Mr. Trent was not meeting their legitimate job expectations at the time he was fired.
Assuming without deciding that Mr. Trent has established a prima facie case of age discrimination, the defendants have articulated a legitimate, nondiscriminatory reason for their termination of Mr. Trent, namely his apparently repeated instances of sexual harassment and other offensive conduct toward women, and Mr. Trent has failed to meet his obligation of showing that this reason was pretext for unlawful discrimination. Mr. Trent argues that defendants' failure to more thoroughly investigate the sexual harassment allegations against him — or at least to doubt the credibility of the allegations — shows that they relied on these allegations merely as pretext for discrimination. (Pl.'s Opp. at 8-11.) This argument fails for a number of reasons. First, employers are free to rely on allegations of misconduct in making termination decisions, so long as their reliance is reasonable and in good faith. See Holland v. Washington Homes, Inc., 487 F.3d 208, 216-17 (4th Cir. 2007) (upholding termination of employee where decisionmaker "honestly believed that [the employee] deserved to be discharged" for threatening another employee, "regardless of whether [the employee] did in fact issue the threats"); cf. Waters v. Churchill, 511 U.S. 661, 676 (1994) (in making employment decisions, "employers . . . often do rely on hearsay, on past similar conduct, on their personal knowledge of people's credibility, and on other factors that the judicial process ignores. Such reliance may sometimes be the most effective way for the employer to avoid future recurrences of improper and disruptive conduct.").
This reason advanced by the defendants also would apply to Mr. Trent's claim of gender discrimination, if it were determined that he established a prima facie claim.
For the first time in his opposition, Mr. Trent asserts that he was also discriminated against on the basis of his age in retaliation for not accepting a buyout from defendants in 2002. ( See Pl.'s Opp. at 7-8.) This claim was not contained in Mr. Trent's EEOC charge, and so is not properly before this court. ( See Defs.' S.J. Mot. at Ex. 6 (leaving the "retaliation" box unchecked in the EEOC charge).) See Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (limiting Title VII suits to "those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint"); Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (claims outside the scope of the EEOC charge are procedurally barred). Furthermore, Mr. Trent's buyout rejection, occurring as it did over four years prior to his termination, is too temporally distant to be considered a cause of his termination on the facts as presented. See, e.g., Causey v. Balog, 162 F.3d 795 (4th Cir. 1998) (finding a thirteen-month interval between an employee's protected activity and his termination to be too attenuated to suggest a causal link between the two, absent other evidence).
Second, in this particular case, there was no reason for defendants not to believe the allegations brought by Ms. Doe or Ms. Locke or those reported by Mr. Centineo. Neither Ms. Doe nor Ms. Locke knew the identity of Mr. Trent before they made their allegation, and so neither had independent cause to malign him. ( See Defs.' S.J. Mot. at Ex. 8, Doe Dep. at 36; id. at Ex. 16, Locke Aff. ¶ 3.) Also, neither woman has made sexual harassment allegations before or since, let alone allegations that have been shown not to be credible. ( See id. at Ex. 16, Locke Aff. ¶ 6; id. at Ex. 26, Richardson Aff. ¶ 9.) Likewise, there is nothing to suggest that Mr. Centineo, a 27-year employee of CPSG and a member of both the protected classes involved here (Pl.'s Opp. at Ex. 4; Defs.' S.J. Mot. at Ex. 11), had an incentive to malign his team member, indeed a team member whose work he appears to have liked. ( See Pl.'s Opp. at Ex. 2.) In divulging previous allegations of offensive conduct by Mr. Trent to Mr. Blair, he was putting the continued employment of one of his reliable coworkers at risk, and it is clear from the record that he did not personally benefit from this divulgence.
Finally, even if the court were to accept that the allegations against Mr. Trent were weak, it does not logically follow that defendants' reliance on those allegations was pretextual. Cf. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) ("That the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason of [discrimination] is correct."). Mr. Trent must put forward affirmative evidence that defendants' reliance on these allegations was pretextual; this he has not done.
For all of the above reasons, Mr. Trent has failed to show that defendants' articulated reason for terminating him was not their true reason, and so his claim of pretext cannot stand. See Reeves, 530 U.S. at 148 ("an employer would be entitled to judgment as a matter of law . . . if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue").
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment will be granted. A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The defendants' motion for summary judgment (docket entry no. 17) is GRANTED;
2. The defendants' motions to seal (docket entry nos. 18 23) are GRANTED;
3. The defendants' motion for contempt (docket entry no. 24) is DENIED as moot;
4. Judgment is entered in favor of the defendants; and
5. The Clerk shall CLOSE this case.