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holding though employer's racial slurs were not direct evidence of discriminatory intent, the employer's "conduct may still support Plaintiff's case as circumstantial evidence of discriminatory animus" by employer
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Civil Action No. AW-00-419
June 26, 2001
MEMORANDUM OPINION
This employment discrimination action stems from the discharge of Plaintiff, Stewart J. Warren, from his employment at Fort Lincoln Cemetery. In its previous Memorandum Opinion and Order, the Court dismissed Count III of Plaintiff's Complaint asserting wrongful discharge under Maryland law. Following this Court's Order dated August 18, 2000, two viable counts of Plaintiff's complaint remain: (1) Count I asserts claims for termination and failure to rehire based on his race and color under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and (2) Count II pleads a claim for termination based on his race and color in violation of the Maryland Anti-Discrimination Act, Md. Code. Ann. 49B, §§ 14-16; 42 and the Prince George's County Human Relations Act, Art. 2, Div. 12, § 2-222. Currently pending before the Court is Defendants' Joint Motion for Summary Judgment [45-1]. The motion has been fully briefed by all parties. Plaintiff concedes that Count II alleging discrimination in violation of state and local laws does not state a legally cognizable claim and should be dismissed. Thus, only Count I remains for the Court's consideration. No hearing is deemed necessary. See Local Rule 105.6. Upon consideration of the arguments made in support of, and opposition to, the Defendants' motion, the Court makes the following determinations.
Plaintiff filed a Response to Defendants' Reply Memorandum Re: Motion for Summary Judgment. Although characterized as a response, the Court construes the document to be a surreply due to its explicit reference to the Defendant's Reply memorandum. Unless otherwise ordered by the Court, surreply memoranda are not permitted to be filed. See Local Rule 105.2(a). As Plaintiff failed to seek leave of court, the surreply will not be considered by the Court.
I. FACTUAL BACKGROUND
In 1996, Patricia Britton buried her husband at Fort Lincoln Cemetery. She subsequently became dissatisfied with her husband's placement. Lorrie Johnson, a salesperson at Fort Lincoln Cemetery, informed her that her husband could be moved only to a site of greater value. In 1997, Mrs. Britton moved her husband to a lawn estate. Soon after, she met Plaintiff, Stewart Warren.
Plaintiff, an African-America male in his forties, was employed as a laborer for Fort Lincoln Cemetery. He performed extra maintenance work on the lawn estate for Mrs. Britton in exchange for a small weekly fee. According to Plaintiff, Ms. Johnson encouraged him to seek compensation for his services. Furthermore, on several occasions, at his request, Mrs. Britton gave Plaintiff money to cover varying expenses, including a dog, a lawnmower, and the repair of a vehicle.
In 1998, Mrs. Britton wanted additional work done to her husband's burial site. Plaintiff arranged to have an inscription done. Mrs. Britton also alleges that Plaintiff gave her bronze letters, ornaments, emblems, and a granite vase. These materials are normally used to enhance burial sites. In the Fall of 1998, Plaintiff and Mrs. Britton entered an agreement where the Plaintiff and his wife would care for Mrs. Britton's ailing mother in their home. In exchange for providing nursing care, Mrs. Britton agreed to sell her mother's home to the Warrens in installments of $1,000 per month over 65 months. That same year, Ms. Johnson of Fort Lincoln sold additional burial lots adjacent to the lawn estate to Mrs. Britton.
In January 1999, the Warrens withdrew from the agreement and declined to care for Mrs. Britton's mother. In February 1999, Mrs. Britton complained to Ms. Johnson and refused to make further payments on the adjacent burial lost when the Warrens repudiated the nursing arrangement. Mrs. Britton relayed her account of her associations with Plaintiff to Ms. Johnson, including the paid extra maintenance work, her gifts of money, and the cemetery materials she received from Plaintiff. Ms. Johnson reported Plaintiff to Ben Holland, the manger at Fort Lincoln Cemetery. Mr. Holland reported the complaint to Jeffery Hodes, vice-president and Regional Director of Cemetery Operations of S.E. Mid-Atlantic. In March of 1999, Mr. Hodes initiated an investigation of the accusations raised against Plaintiff. During the pendency of the investigation, Plaintiff was suspended. As part of the investigation, Mr. Hodes obtained an affidavit from Mrs. Britton asserting the enumerated allegation of impropriety. An inventory performed by Mr. Holland revealed that a granite vase and other cited materials were missing. Plaintiff had access to these materials The granite vase and cemetery materials returned to Fort Lincoln by Mrs. Britton matched the description of the missing materials, thereby corroborating Mrs. Britton's account. When confronted, Plaintiff denied the allegations of theft, but not his affiliation with Mrs. Britton. Despite Plaintiff's claims of innocence, Mr. Hodes believed Mrs. Britton's story and terminated Plaintiff on March 8, 1999. Plaintiff sought reinstatement to his former position in July 1999. Mr. Hodes refused to rehire him.
II. DISCUSSION
A. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment will be granted when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 214 (4th Cir. 1993); Etefia v. East Baltimore Comm. Corp., 2 F. Supp.2d 751, 756 (D.Md. 1998). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1). The court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence." Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419 (1991) (citations omitted). "Because of the availability of seemingly neutral rationales under which an employer can hide its discriminatory intent," at the summary judgment stage, the court "grant[s] [the] plaintiff the benefit of every favorable inference. . . ." Hodgens v. General Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998) (quoting Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996)) (alterations in original).
While the evidence of the non-movant is to be believed and all justifiable inferences drawn in his or her favor, a party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences. See Deans v. CSX Transportation, Inc., 152 F.3d 326, 330-31 (4th Cir. 1998); Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). In responding to a proper motion for summary judgment, the party opposing summary judgment must present evidence of specific facts from which the finder of fact could reasonably find for him or her. Anderson, 477 U.S. at 252; Celotex Corp., 477 U.S. at 322-23. Once the burden has shifted, the evidentiary standard under Rule 56 rises to require the nonmoving party to "set forth specific facts showing there is a genuine issue for trial" by affidavit, depositions, answers to interrogatories, admissions, or other evidence that would be admissible at trial. Fed.R.Civ.P. 56(c), (56)(e). In the absence of contradictory evidence showing a genuine dispute as to a material fact, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
B. Evidentiary Objections
1. Use of Racial Epithets by Co-Worker
Plaintiff attempts to introduce a statement of Kimberly Cochran, a former employee of Fort Lincoln, from her deposition declaring that Ben Holland, the general manager, referred to black employees around the office as "niggers" and that he used the racial slur constantly. (Cochran Dep. at 76-77.) Defendants assert that the statements are hearsay that cannot be considered on a motion for summary judgment. On a motion for summary judgment, a district court may only consider evidence that would be admissible at trial. See Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d 970, 973 (4th Cir. 1990); Keziah v. W.M. Brown Son, Inc., 888 F.2d 322, 326 (4th Cir. 1989). "Hearsay is 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'" United States v. Lis, 120 F.3d 28, 30 (4th Cir. 1997) (emphasis in original) (quoting Fed.R.Evid. 801(c))). Thus, statements offered to prove the making of the declarations are not inadmissible hearsay. See United States v. Samuel, 431 F.2d 610, 6413 (4th Cir. 1970). Here, the statements at issue are not offered to prove the truth of the matter asserted, i.e., the black employees of Fort Lincoln are "niggers." Rather, the significance of the statements lies in the fact that they were made by the manager of the office. Therefore, the statements are not inadmissible hearsay.
"Derogatory remarks may in some instances constitute direct evidence of discrimination." Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999). In the case of discriminatory termination, "to prove discriminatory animus, the derogatory remark cannot be stray or isolated and '[u]nless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be [direct] evidence of [discrimination].'" Brinkley, 180 F.3d at 608. From Ms. Cochran's account, Mr. Holland's use of racial epithets was certainly not isolated or stray as "nigger" was a constant word of his. However, Plaintiff has failed to prove some nexus between Mr. Holland's slurs and his termination for theft. There is no temporal connection. According to Ms. Cochran's account, he used the language before, during, and after Plaintiff's termination. There is no evidence that the slurs were even directed toward Plaintiff. Therefore, Mr. Holland's racial slurs do not amount to direct evidence of discriminatory intent. Nevertheless, Mr. Holland's conduct may still support Plaintiff's case as circumstantial evidence of discriminatory animus by Mr. Holland the extent of which is limited by the fact that Mr. Hodes, not Mr. Holland, was the decision-maker in Plaintiff's firing and refusal to hire.
C. Count I — Violations of Title VII
Plaintiff maintains that he was terminated and refused rehire based upon his race or color. Title VII of the Civil Rights Act of 1964 provides that an employer shall not "fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his 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). Because there is no direct evidence of discriminatory intent, the Court applies the three-step burden shifting paradigm fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973), Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 2746-47 (1993).
Under the McDonnell Douglas standard, the plaintiff first must establish a prima facie case of discrimination. In order to establish a prima facie of discriminatory discharge, Plaintiff must show that "(1) that [he] is a member of a protected class; (2) that [he] was qualified for [his] job and [his] job performance was satisfactory; (3) that, in spite of [his] qualifications and performance, [he] was fired; and (4) that the position remained open to similarly qualified applicants after [his] dismissal . . . . or that [he] was [disciplined] differently from other similarly situated employees." Karpel v. Inova Health System Services,134 F.3d 1222, 1228 (4th Cir. 1998). If the plaintiff produces sufficient evidence to support his prima facie case, the burden shifts to the employer to advance a legitimate, nondiscriminatory reason for the adverse employment action or refusal to hire. See Texas Dep't Community Affairs, 450 U.S. at 254. If the employer successfully proffers such an explanation, the burden returns to the plaintiff to show that the proffered reason is a pretext for impermissible discrimination. See St. Mary's Honor Center, 509 U.S. at 507-08. Once the plaintiff had produced sufficient evidence to refute the defendant's proffered reason, "the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up discriminatory purpose." Reeves v. Sanderson Plumbing Products Inc., 120 S.Ct. 2097, 2108 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749 (1993) ("[R]ejection of the defendant's proffered reasons will permit that trier of fact to infer the ultimate fact of intentional discrimination.").
There is no dispute that Plaintiff is a member of a protected class. Likewise, the parties do not dispute that Plaintiff suffered an adverse employment action in his discharge and that Fort Lincoln refused to subsequently rehire him. Rather, Defendants assert that Plaintiff cannot establish his prima facie case because he was not meeting the legitimate expectations of his former position. Defendants also maintain that Plaintiff's prima facie case fails because he was not only replaced by an individual within his protected class, but also no similarly situated employees outside of his class were treated more favorably than he. Lastly, Defendants argue that Plaintiff cannot rebut the legitimate nondiscriminatory reason for Plaintiff's discharge, the theft of company property, as pretextual.
1. Meeting Legitimate Expectations
Defendants assert that Plaintiff was not meeting the legitimate expectation of his job because he misappropriated company property. "[W]hen assessing whether a plaintiff has met [his] employer's legitimate expectations at the prima facie stage . . ., a court must examine plaintiff's evidence independent of the nondiscriminatory reason 'produced' by the defense as its reason for [the adverse employment action.]" Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir. 2000). The same analysis applies in the context of a claim of failure to hire. See E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (2000). "The relevant inquiry at the prima face is not whether an employee or potential employee is able to meet all the objective criteria adopted by the employer, but whether the employee has introduced some evidence that she possesses the objective qualifications necessary to perform the job sought." Id. (emphasis in original). "To hold otherwise would be tantamount to collapsing the first and second stages of the McDonell Douglas analysis and would deny a plaintiff the opportunity to demonstrate that the defendant's explanation for the adverse employment action is pretextual." Id. The evidence indicates that Plaintiff Warren satisfactorily performed the tasks incident to his position, maintaining the community mausoleum and adjacent grounds. Thus, while certainly pertinent to the articulation of a legitimate nondiscriminatory reason for Warren's termination and refusal to rehire, Defendants' allegations of theft do not defeat Plaintiff's showing that he was and could meet the qualifications necessary to perform his job as a laborer.
2. Similarly Situated Employees Subject to More Favorable Treatment
"In order to make out a prima facie case of discriminatory termination, a plaintiff must ordinarily show that the position ultimately was filled by someone not a member of the protected class." Brown v. McLcean, 159 F.3d 898, 905 (1998). There is no dispute that Plaintiff was replaced by another African-American. Therefore, his claim of discrimination rests upon establishing that similarly situated employees outside his protected class were treated more favorably. In support of his accusations of disparate treatment, Plaintiff refers to the company's treatment of Mr. Holland, the general manager of Fort Lincoln, and Amy Scott, a cashier.
Plaintiff argues that Mr. Holland, a Caucasian manager, engaged in improper conduct concerning the property of Fort Lincoln and was given the opportunity to reimburse Fort Lincoln without disciplinary action. Plaintiff maintains that he was not given the same opportunity to make amends. According to Ms. Cochran, Mr. Holland attempted to seek reimbursement on the same receipt twice. (Cochran Dep. at 73-75.) Ms. Cochran acknowledges that she never informed Mr. Hodes of the incident, but did report the incident Brian Marlowe, Chief Operating Officer of Stewart Enterprises. (Cochran Dep. at 73-75.) Mr. Holland also charged equipment rentals to the company for his personal use. After she left her employment at Fort Lincoln, Ms. Cochran reported this to Mr. Marlowe who then informed Mr. Kendrick, Director of Sales Marketing for Stewart Enterprises. Kendrick told Mr. Hodes. When confronted with the inappropriate charges by Mr. Hodes, Mr. Holland explained that, if the charges were outstanding, it was an oversight and offered to repay any improper outstanding charges. Mr. Hodes accepted this explanation and Mr. Holland's offer of repayment.
Mr. Holland is not similarly situated to Plaintiff. First, Ms. Cochran acknowledges that she never informed Mr. Hodes of the petty cash incident. Ms. Cochran also stated that Mr. Holland's attempt to resubmit the receipt was thwarted by her diligent accounting. Thus, Mr. Hodes cannot exact similar punishments on an attempted, as opposed to completed, infraction that he had no knowledge of. With respect to the situations he was aware of, Mr. Hodes confronted both Mr. Holland and Plaintiff with the complaints of misappropriation. When confronted with the allegations of impropriety, Mr. Holland provided an excuse and offered to repay the outstanding debt if necessary. Mr. Holland subsequently repaid the company for the equipment rentals. By contrast, Plaintiff denied any knowledge of the missing property. He made no attempt to provide any justification for his actions and made no offers to atone. It is axiomatic that Mr. Hodes could not accept an offer that did not exist. There is no evidence that it was Plaintiff's race, rather than his own recalcitrance, that removed the consideration of repayment. In disavowing any knowledge of the missing property, Plaintiff himself foreclosed the opportunity to account for the alleged theft.
Plaintiff also points to Amy Scott, a Caucasian employee, who was found to have stolen from the petty cash fund. In that case, Mr. Holland discovered that money was missing from the petty cash. (Holland Dep. at 43-44.) Ms. Scott, as a cashier, was one of four employees with access to the cash. After some investigation, Mr. Holland narrowed the list of suspects to only Ms. Scott and a reputable employee with a long tenure with the company. However, Mr. Holland was unable to produce evidence pinpointing which of the two was the culpable party. After two incidents of theft, Holland eventually caught Ms. Scott stealing and terminated her employment. Before Mr. Holland caught Ms. Scott stealing, he and Mr. Hodes only had a vague suspicion with no evidence supporting her guilt. By contrast, when Plaintiff was under investigation, Mr. Hodes accumulated Mrs. Britton's affidavit outlining his misconduct, an inventory revealing that the alleged cemetery materials were missing, Mrs. Britton's return of materials matching the description of the missing property, and the undisputed association between Mrs. Britton and Plaintiff. Such evidence gives rise to more than mere conjecture between two possible suspects. Furthermore, there was no other employee implicated in the matter that would exonerate Plaintiff. Therefore, Ms. Scott was not similarly situated to Plaintiff during the investigation of the two initial incidents of theft.
By contrast, Ms. Scott became similarly situated to Plaintiff when she was caught stealing. Still, the foundation of the similarly situated inquiry is that the cited co-worker outside of the plaintiff's protected class was treated more favorably than the plaintiff. Like Plaintiff, Ms. Scott was terminated when Mr. Holland obtained evidence supporting her guilt in the thefts from the petty cash fund. "[T]he comparatively minimal difference in treatment accorded the two individuals, both of whom were . . . terminated, is simply not 'adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion.'" Bahl v. Royal Indem. Co., 115 F.3d 1283, 1293 (7th Cir. 1997) (quoting O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 1310 (1996) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843 (1977))). See also Cummings v. Retzer Retzer, Inc., 646 F. Supp. 400, 409 (N.D.Miss. 1986) (African-American and Caucasian employees alike terminated for cash shortages). Accordingly, the Court finds that, as a matter of law, Plaintiff cannot establish his prima facie case of employment discrimination.
3. Absence of Pretext
Even if the Plaintiff could establish a prima facie case, his Title VII claim would nevertheless fail as the record lacks sufficient evidence to rebut the Defendants' legitimate nondiscriminatory reason for Plaintiff's discharge and the subsequent refusal to rehire. In the instant case, Plaintiff attempts to establish that Defendant's allegation of theft had no basis in fact. First, Plaintiff maintains that his denial of the theft is sufficient to cast doubt on the reasoning behind his termination and the subsequent refusal to rehire him. However, "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." Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989). Secondly, Plaintiff asserts that Malcom Hayes, a former employee of Fort Lincoln charged with overseeing the cemetery materials, gave him permission to remove the emblems from the stock room. Unfortunately, Mr. Hayes is deceased. Therefore, Plaintiff's account represents a classic hearsay problem to which there is no recognized exception. See Fed.R.Evid. 803; 804(b). Even assuming the truth of Plaintiff's protestations of innocence, the credibility of the employer's legitimate nondiscriminatory reason is measured from the information available to and perception of the decision maker at the time of the adverse employment action. See Hawkins v. Pepsico, Inc., 203 F.3d 274, 280 (4th Cir. 2000); Tinsley v. First Union Nat. Bank, 155 F.3d 435, 444 — 45 (4th Cir. 1998). There is no indication that Plaintiff ever informed Mr. Hodes that Mr. Hayes' authorized the taking and acknowledges that he did not discuss the matter with any other Fort Lincoln employee. (Warren Dep. at 133.) Based upon the evidence before him, Mr. Hodes simply found a widowed customer of the cemetery to be more credible in light of the corroborating evidence supporting her account of Plaintiff's theft. "[W]hen an employer gives a legitimate, nondiscriminatory reason for discharging the plaintiff, 'it is not [the Court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.'" Hawkins v. Pepsico, Inc., 203 F.3d 274, 279 (4th Cir. 2000). "[N]o court sits to arbitrate mere differences of opinion between employees and their supervisors." Hawkins, 203 F.3d at 281. Even drawing all justifiable inferences in favor Plaintiff, the Court finds that, as matter of law, the evidence is insufficient to support a finding of pretext.
It is unclear from the deposition testimony whether the individual's name is Hayes or Hanes. (Warren Dep. at 129, 131.)
III. CONCLUSION
For the reasons stated above, the Court will grant Defendants' Motion for Summary Judgment. In light of its ruling, the Court need not address Defendants' alternative arguments concerning whether Stewart Enterprises, Inc. is Plaintiff's employer under Title VII. An Order consistent with this Opinion will follow.
ORDER
For the reasons stated in the accompanying Memorandum Opinion dated, IT IS this day of July, 2001 by the United States District Court for the District of Maryland, hereby ORDERED:
1. That Plaintiff's Motion to Enlarge Time to Oppose Defendants' Motion for Summary Judgment to 3/22/2001 [46-1] BE, and the same hereby IS, GRANTED;
2. That Defendants' Joint Motion for Summary Judgment [45-1] BE, and the same hereby IS,
GRANTED;
3. That the above-captioned case BE, and the same hereby IS, CLOSED; and
4. That the Clerk of the Court mail copies of this order to all counsel of record.