Summary
ordering severance upon a finding that the jury, after hearing testimony of the two plaintiffs regarding alleged work place harassment, could either consider "the evidence in the aggregate" to the prejudice of the employer, or could "confuse the evidence in some other manner when looking for discriminatory intent towards one Plaintiff alone."
Summary of this case from Thompson v. Sanderson Farms, Inc.Opinion
1:02CV00897
December 1, 2003
MEMORANDUM OPINION
This case is now before the Court on the Defendant's Motion for Summary Judgment [Doc #9] and Defendant's Motion to Sever [Doc. #8]. For the reasons set forth below, Defendant's Motion for Summary Judgment will be GRANTED in part and DENIED in part. Defendant's Motion to Sever will be GRANTED.
I.
There are two plaintiffs in the case at bar, Catherine Fountain and Victoria Watkins. Both women formerly worked for Defendant Hospitality Group Management, Inc. ("Hospitality"), and both are now bringing separate employment discrimination claims against Hospitality. The facts in the light most favorable to each plaintiff are set out in the following two sections.
A.
Plaintiff Catherine Fountain, a female over the age of forty, alleges age discrimination in violation of both N.C. Gen.Stat. § 143-422.2 and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-624. Ms. Fountain began working for Hospitality on December 11, 2000 as Sales Director for the Sleep Inn in Greensboro, a hotel scheduled to open in early 2002. Ms. Fountain learned about the job from a newspaper advertisement and responded by phone. She states that she neither submitted a written resume to Hospitality nor discussed her exact years of sales experience during subsequent interviews for the position.Ms. Fountain states that her direct supervisor, Sleep Inn's General Manager Joe Rone, made several derogatory comments about her age during her employment with Hospitality. On Ms. Fountain's first day of work, Mr. Rone informed her that he would not have hired her, and that he instead wanted a younger woman with "the right look," specifically, a bigger chest. (Dep. Fountain at 51.) He made similar comments about wanting a younger person in Ms. Fountain's job to at least one other employee (Dep. Watkins at 59), but Mr. Rone's and Ms. Fountain's offices were close together and he made many of his offensive comments to her when no other employees were present.
Hospitality maintains that Mr. Rone is actually the one who hired Ms. Fountain. (Aff. Long at 2.)
On one occasion, in the context of a discussion about how much personal wealth Ms. Fountain had accumulated over the years, Ms. Fountain explained to Mr. Rone that she had been working her whole life. When Mr. Rone still seemed surprised by her wealth, Ms. Fountain told him her age. Mr. Rone responded by asking if Hospitality knew her age when she was hired. (Dep. Fountain at 58-59.) At some point he also told Ms. Fountain that, at her age and with her wealth, she should retire. Similarly, Mr. Rone also asked Ms. Fountain why she would change jobs at her age and whether it wouldn't make more sense "to work [her] last years at the same place." (Dep. Fountain at 76.)
Ms. Fountain's memory of the statement was that Mr. Rone "told [her] at [her] age that [she] should be already retired." (Dep. Fountain at 63.) During her deposition, she also discusses a time when he said that "at the age that [she] was and the financial condition [she] was in, that [she] should quit." (Dep. Fountain 77). These may or may not involve the same conversation. Ms. Watkins remembers Mr. Rone saying, "You are too old; why don't you just go ahead and go home," and asking how Ms. Fountain could afford all of the possessions that she had. (Dep. Watkins 49-50.)
Ms. Fountain also claims that Mr. Rone made numerous statements about her being senile and too old to remember things like names. (Dep. Fountain at 81.) Some of these comments were heard by other employees. (Dep. Watkins at 49.) When Ms. Fountain missed a meeting on one occasion, Mr. Rone said that she missed it because of Alzheimer's Disease. Ms. Fountain claims that she missed the meeting because Mr. Rone never told her about it. (Dep. Fountain at 77.)
Mr. Rone was the only person at Hospitality who made comments about Ms. Fountain's age. Ms. Fountain tried to put up with Mr. Rone's conduct and deal with the matter privately, but eventually sought help. She tried to contact Cindy Long, Hospitality's Executive Director, but nobody returned her calls and Mr. Rone refused to help her contact Ms. Long. (Dep. Fountain at 83.) Mr. Rone was apparently very close friends with persons in upper-level management at Hospitality. He constantly spoke of going out partying with Cindy Long and Patty Loveless, Hospitality's Director of Human Resources. (Dep. Fountain at 60.)
During her last few weeks at work, Ms. Fountain claims that someone was entering her office at night and going through her files. At various points in time she believes that some of her files were missing altogether. When she arrived in the mornings, she sometimes found her door already open and Mr. Rone's initials on her computer's log-on screen. (Dep. Fountain at 31, 36-37.)
Hospitality fired Ms. Fountain on or about April of 2001, shortly after the Sleep Inn opened for business. At the time of her termination, Ms. Fountain was 59 years old. She claims to have performed excellent work for Hospitality, and to have never heard any complaints about her performance prior to her termination. In contrast, Hospitality alleges that it fired Ms. Fountain because she booked only five groups to the hotel in her five months of employment, and because she failed to file and document her work properly. However, Ms. Fountain claims that she made numerous bookings and business contacts, but that Hospitality continually impeded her work efforts.
Ms. Watkins stated that she helped Ms. Fountain mail over 1,000 letters to various businesses. (Dep. Watkins at 46.) Ms. Fountain claims to have added nearly one hundred people to a database of people agreeing to do future business with the hotel, and two file drawers full of potential clients. (Dep. Fountain at 2629.)
Ms. Fountain claims that she brought in adequate business and would have brought in even more business if Hospitality had allowed her to do so. For example, Mr. Rone allegedly instructed her to avoid bringing in repeat business until the home opening of the hotel proved that they were ready to handle the business. (Dep. Fountain at 21-43, 71-72.) Ms. Fountain further claims that Hospitality impeded her work by failing to provide her with necessary supplies. For example, she claims that Hospitality's failure to provide her with any business cards or promotional literature about the hotel left her at a disadvantage in trying to attract prospective customers. (Dep. Fountain at 28, 40.) Repeated requests for the proper supplies were unavailing.
Ms. Fountain also contends that there were no problems with her client files. She maintained documentation and files on potential clients under her own organizational system, one she had developed over the course of her long career in sales. She used this system because she received little, if any, training on the system of documentation that Hospitality preferred. She states that Hospitality neither complained about her system of organization nor offered to help her learn another system, and that her system was efficient. She did not receive any training on Hospitality's computer programs until one month before she was fired.
Ms. Fountain was replaced by a less experienced employee who was approximately 39 years old. Nearly three-fourths of all Greensboro Sleep Inn employees and approximately two-thirds of all of Hospitality's employees are under the age of forty. (Aff. Long at 2.)
B.
Plaintiff Victoria Watkins, a female of "mixed race" in her early thirties, alleges several violations of Title VII of the Civil Rights Act of 1964, including discriminatory discharge, retaliation, and hostile work environment. 42 U.S.C. § 2000e to 2000e-17.
In her filings, Ms. Watkins referred to herself as being of "mixed race" and certain of her co-workers as being black. The Court will adopt the terminology she chose.
Ms. Watkins worked for Hospitality for nearly two years. She began work as an Executive Housekeeper in another Hospitality hotel in February of 2000, and transferred to the Sleep Inn in Greensboro in February of 2001. In May of 2001, Hospitality promoted Ms. Watkins to Assistant General Manager, where she was in charge of staffing and overseeing both the housekeeping department and the front desk.
Mr. Rone openly ordered Ms. Watkins to hire employees from particular racial groups. For example, Mr. Rone told Ms. Watkins to hire more Hispanics in the housekeeping department because they worked better. (Dep. Watkins at 43.) He also told Ms. Watkins that they needed more white employees, but not Indians, at the front desk. (Dep. Watkins at 61.) The majority of front desk employees were black. He was very reluctant to allow Ms. Watkins to fire a white front desk employee, even though the employee was not reporting for work as scheduled.
Mr. Rone also made various inappropriate comments to Ms. Watkins during the course of her employment. For example, he said that Ms. Watkins would be a good front office manager because she "didn't look black." (Dep. Watkins at 64.) He made a similar comment, about the fact that Ms. Watkins did not really "look black," to a customer Ms. Watkins was assisting. Apparently Mr. Rone made the comment in such a way that even the customer appeared uncomfortable.
Ms. Watkins claims that she was but one of several people subjected to racially discriminatory comments and actions by her supervisor, Mr. Rone. Shortly after Ms. Watkins began working at the Sleep Inn, Hospitality fired the new Office Manager, Tonja. Ms. Watkins feels that Tonja was one of several employees that were mistreated or fired because of race. Mr. Rone made various inappropriate comments about Tonja prior to her termination, such as that she was "a little too ghetto." (Dep. Watkins at 27, 50.) When Tonja went to see Mr. Rone with concerns about another employee's poor performance, Mr. Rone told her that she "was barking up the wrong tree" and that she had "better watch herself." (Dep. Watkins at 28.)
Tonja's last name is not provided.
It is unclear from Ms. Watkins' deposition whether she personally heard these comments. For summary judgment purposes, it will be assumed that she did.
Mr. Rone also appeared to treat white and Hispanic employees differently than he treated black employees. For example, he allowed Hispanic employees to work in nonstandard uniforms, but did not allow black employees to do the same. As another example of Mr. Rone's possible favoritism, he did not support the decisions made by Ms. Watkins in the same way he supported decisions by white employees. One particular example involves Mr. Rone's failure to support Ms. Watkins' attempts to discipline a white employee, Theresa Cobler, who was not performing well. Ms. Watkins wanted to fire Ms. Cobler for her poor work performance, but Mr. Rone would not let her do so. Ms. Watkins had to involve upper-level Hospitality management to get permission to demote Ms. Cobler. Ms. Watkins maintains that Mr. Rone then went into Ms. Cobler's files and removed the disciplinary comments Ms. Watkins had made about Ms. Cobler. Further, Mr. Rone required Ms. Watkins, in addition to her other duties, to personally correct Ms. Cobler's inadequate housekeeping.
On August 15, 2001, Ms. Watkins communicated her concerns about racial discrimination to Hospitality management, namely Ms. Long and Ms. Loveless. Ms. Watkins originally requested the meeting with Ms. Long alone, but was told that Ms. Loveless came along because she had heard other complaints about Mr. Rone. Ms. Watkins told the women about offensive behavior Mr. Rone displayed to her and to her co-workers, with the understanding that the women would not tell Mr. Rone about these complaints.
She also may have discussed the age discrimination she believed that Ms. Fountain suffered.
Ms. Watkins says that she provided Ms. Long and Ms. Loveless with the names of several minority co-workers who shared her concerns, but that they never spoke with any of those people. Hospitality claims that it investigated the charges, by talking with Mr. Rone and three other employees, and found no evidence of discrimination. Hospitality gave Mr. Rone a warning not to discriminate in the future and closed the matter.
Ms. Watkins says that one of these three people was Theresa Cobler, the white employee she had consistently written up for poor work performance.
As part of Hospitality's August 2001 investigation into Mr. Rone's behavior, it conducted an audit of the Sleep Inn. The audit revealed several problems in the housekeeping and front desk departments, such as clients being checked into dirty rooms and guests staying for free. Ms. Watkins explained in her deposition that a person on night duty was eventually caught letting people into clean guest rooms at no charge without making computer entries, thus leaving the rooms labeled in the computer system as clean. Mr. Rone was supposed to be helping her with the management of the housekeeping department but was not doing so.
Ms. Watkins reports that Mr. Rone began acting even more strangely around her after her discussion with Ms. Long and Ms. Loveless, even though the women promised Ms. Watkins that they would not tell Mr. Rone about the conversation. On or about August 31, 2001, Mr. Rone called Ms. Watkins away from a client, falsely accused her of being gone from work for three hours, and then informed her that she was being demoted from Assistant General Manager to Front Office Manager. He did not provide her with a reason.
Hospitality explains that any knowledge about the charges on Mr. Rone's part probably came from the fact that the hotel was audited and that he was interviewed and warned, not from any specific details about the complaints.
Ms. Watkins contacted Ms. Long and Ms. Loveless to get an explanation for the demotion. The women provided no explanation over the phone and asked to set up a meeting in person for the next day. At the meeting on September 1, 2001, they cited the problems found during the hotel audit as the reason for Ms. Watkins' demotion. Ms. Watkins maintains that the audit was conducted on the day of the hotel's official grand opening and that she was still in training at the time. Further, the audit was conducted on a day when Ms. Watkins was not present to ensure that all the proper reports were handed over, even though Mr. Rone's audit was conducted when he was present.
Ms. Watkins felt that, as a single parent, she had no choice but to continue working at Sleep Inn. She asked to return to the Executive Housekeeper position instead of Front Office Manager so that she would not have to interact with Mr. Rone as much. However, she was told that the housekeeper position was being eliminated and that Mr. Rone would take over those duties. Ms. Watkins believes that Ms. Cobler was soon promoted to Executive Housekeeper.
Hospitality maintains that Mr. Rone, and not Ms. Cobler, was handling the Executive Housekeeper duties.
Ms. Watkins required time off from work to deal with the effects of work-induced stress on her health. She left work early on Thursday, September 6, 2001 for a scheduled doctor's appointment. On September 7, 2001, after she returned from another doctor's visit, she faxed a doctor's note to Mr. Rone. The note documented her absence through Sunday, September 9, 2001. Beginning Friday and over that weekend Ms. Watkins was taking sleep medication, pursuant to her doctor's orders. She returned to the doctor on Sunday, September 9, and the doctor recommended extending her work leave by a week. Ms. Watkins left Mr. Rone a voice mail when she returned home from the doctor, telling him about the leave and asking him to call if he had problems or questions.
During Ms. Watkins' absence, Hospitality claimed that she did not return calls or pages from Mr. Rone and Hospitality management about problems at work for which she ordinarily would be responsible. Mr. Rone was supposed to handle problems while she was out, and Ms. Watkins told him to call if he needed her. She recalls that Mr. Rone called Friday to request a doctor's note, and that he mentioned that Ms. Long had left her a message. Ms. Watkins also personally received a call from Ms. Long on Friday morning, but Ms. Long had left work for the day by the time Ms. Watkins was able to return her call. As far as Ms. Watkins knew, everyone had shown up for work as scheduled and there were no problems. She does not recall receiving any other calls or pages over the weekend.
Hospitality terminated Ms. Watkins on Tuesday, September 11, 2001, citing her recent absences and failure to return phone calls. She was replaced by a white male with less experience.
Depositions of Hospitality's management show that Ms. Watkins would still be employed but for her absences and failure to return pages over the weekend.
C.
Both Ms. Watkins and Ms. Fountain filed discrimination claims with the Equal Employment Opportunity Commission ("EEOC"). The District Director of the EEOC issued right-to-sue letters, and the plaintiffs brought suit in Guilford County Superior Court within 90 days of the EEOC's decision. Both Plaintiffs seek relief for emotional distress in addition to their state and federal discrimination claims.
Hospitality removed the action pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1331. Hospitality filed a Motion for Summary Judgment [Doc. #9] and a Motion to Sever [Doc. #8] in the event summary judgment is denied.
II.
Summary judgment is proper only when 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). The material facts are those identified by controlling law as essential elements of claims asserted by the parties. An issue is genuine as to such facts if the evidence is sufficient for a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (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." Anderson, 477 U.S. at 251-52.In evaluating a motion for summary judgment, the court must view the facts and inferences reasonably to be drawn from them in the light most favorable to the nonmoving party. See Fed.R. CIV. P. 56(e). The court may only determine the sufficiency of the evidence, not weigh conflicting evidence or resolve disputed facts. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985) (overruled on other grounds). Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).
III.
For the reasons stated below, Hospitality's Motion for Summary Judgment will be GRANTED as to Ms. Watkins' hostile work environment claims, and DENIED as to Ms. Watkins' remaining Title VII claims, and as to Ms. Fountain's ADEA claims.A.
Ms. Fountain brings claims against Hospitality under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-634. The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). In order to establish a cause of action under the ADEA, Ms. Fountain must demonstrate that she would not have been discharged had it not been for her age. See Equal Employment OPP. Comm'n v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir. 1992). Ms. Fountain at all times bears the ultimate burden of proving discrimination. See Runnebaum v. NationsBank of Md., 123 F.3d 156, 164 (4th Cir. 1997) (en banc).
The Fourth Circuit recognizes two methods of proving an ADEA violation: "(1) under ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue, or (2) under a judicially created proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and subsequently adapted for use in ADEA cases." Tuck v. Henkel Corp., 973 F.2d 371, 374-75 (4th Cir. 1992). Because Ms. Fountain has presented a genuine issue of material fact under the first method of proof, the second method need not be discussed here.
In order to survive summary judgment under ordinary principles of proof, Ms. Fountain must "produce direct evidence of a stated purpose to discriminate and/or circumstantial evidence of sufficient probative force to reflect a genuine issue of material fact." Goldberg v. B. Green Co., 836 F.2d 845, 848 (4th Cir. 1988). This evidence may consist of either "direct evidence that the employer announced, admitted, or otherwise unmistakably indicated that age was a determining factor," or of "circumstantial evidence from which the inference of age discrimination may rationally be drawn independently of any presumption."Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982).
Discriminatory or derogatory remarks may be sufficient direct evidence of discrimination. Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999). However, these remarks must not be stray comments by coworkers, there must also be evidence that the remarks "were related to the employment decision." Id. For example, the Fourth Circuit found summary judgment inappropriate where a supervisor told employees that he would like to get rid of older employees because the company needed "young blood." Tuck, 973 F.2d at 377. Even though the supervisor himself did not ultimately fire the plaintiff, he spoke negatively about the plaintiff with the ultimate decision-makers, gave the plaintiff negative written evaluations, and stood to gain financially from the plaintiff's discharge, Id.
Ms. Fountain alleges that Hospitality knowingly and intentionally discriminated against her on the basis of her age, as evidenced by numerous discriminatory comments. These statements include expressions of displeasure that Ms. Fountain was hired instead of someone younger, and of surprise at learning Ms. Fountain's exact age. Mr. Rone also allegedly inquired whether Hospitality's management knew of her age when she was hired, and later suggested that she should have just stayed in one place to work her final years. Finally, Mr. Rone suggested that Ms. Fountain should retire at her age and made comments about Ms. Fountain being senile and having Alzheimer's Disease.
This discrimination is alleged to be a violation of both the ADEA and of N.C. Gen. Stat. § 143-422.2. While these federal and state discrimination claims appear to be analyzed under the same standards, Alderman v. Inmar Enters., Inc., 201 F. Supp.2d 532, 546 (M.D.N.C. 2002), Hospitality has not raised any state law claims in its Motion for Summary Judgment. Thus, the claims will not be addressed here.
While Ms. Fountain has provided evidence that Mr. Rone made offensive comments relating to her age, she must also provide evidence from which a jury could determine that these comments were related to the decision to terminate her. A plaintiff need not establish that offensive comments were made by the ultimate employment decision-maker in order to prevail in her discrimination claim, comments by a supervisor may be sufficient.Tuck v. Henkel Corp., 973 F.2d 371, 377 (4th Cir. 1992). The relevant question is whether the person making the comments actually influenced the decision to fire the plaintiff, Id.
Ms. Fountain has provided some evidence that Mr. Rone influenced the decision to terminate her employment. Mr. Rone was Ms. Fountain's direct supervisor, and the General Manager of the hotel. Mr. Rone openly stated that he wanted someone younger in her position. Several months after Ms. Fountain was hired, the particular young woman Mr. Rone wanted was hired in her place. Further, although Mr. Rone may not have terminated Ms. Fountain's employment personally, he often associated with the women who ultimately did so.
Because Ms. Fountain has provided direct evidence of discrimination, an analysis of circumstantial evidence suggesting discriminatory intent is unnecessary. Ms. Fountain has put forth sufficient evidence to create a genuine issue of material fact as to whether Hospitality unfairly discriminated against her in violation of the ADEA. Therefore, Hospitality's Motion for Summary Judgment is DENIED.
B.
Ms. Watkins brings claims against Hospitality for racial discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). 42 U.S.C. § 2000e to 2000e-17. She alleges that she was denied support from management, demoted, and later fired based on unfair racial considerations. She further alleges that Hospitality subjected her to a hostile work environment through inappropriate racial comments by her superior, Sleep Inn's General Manager, Mr. Rone.
1.
Proving employment discrimination involves essentially the same process under Title VII as it does under the ADEA. See Dugan v. Albemarle County Sch. Bd., 293 F.3d 716 (4th Cir. 2002). In order to prove racial discrimination in violation of Title VII, a plaintiff may provide direct evidence of discrimination, or proceed under the burden-shifting proof scheme established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).As in the ADEA context, derogatory remarks are direct evidence of discrimination where they are related to the employment action.Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999). Here, Mr. Rone allegedly made several comments regarding his preference for certain races in the hiring process. He also made comments about Ms. Watkins not looking black, and hence being acceptable for certain work. Further, Mr. Rone was the General Manager of the hotel and Ms. Watkins' direct supervisor. Ms. Long and Ms. Loveless had interviewed him about the complaints Ms. Watkins had raised less than a month earlier.
Ms. Watkins has presented direct evidence of Mr. Rone's discriminatory remarks and discriminatory preferences for members of different racial groups in different jobs. None of these remarks, individually or collectively, suggest that Mr. Rone considered Ms. Watkins' race as a factor in her performance or suitability for the position of Assistant General Manager. While his statement about her not "looking black" and, therefore, being well suited as Front Office Manager reflects a discriminatory attitude about the appearance of the employee working at the front, it's import was that Ms. Watkins was well suited for the top position. There is no sufficient direct evidence that Ms. Watkins suffered an adverse employment action because of her race.
Although she has provided insufficient direct evidence of discrimination, Ms. Watkins survives summary judgment under the judicially-created burden shifting method of McDonnell Douglas. Under the McDonnell Douglas test, if the plaintiff establishes a prima facie case, she raises a presumption of discrimination. However, once the employer offers a legitimate, nondiscriminatory reason for terminating the plaintiff, the presumption of discrimination drops from the case and the plaintiff bears the burden of demonstrating that the defendant's explanation is pretextual. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima facie case, when combined with a rejection of the defendant's proffered reason for termination, may permit the trier-of-fact to infer the ultimate fact of intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
To establish a prima facie case of racial discrimination, the plaintiff must show that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she was fired in spite of her satisfactory performance; and (4) the position was filled by a similarly qualified applicant outside the protected class. Brinkley, 180 F.3d at 607. The Fourth Circuit has recognized that establishing a prima facie case for a discrimination claim is a "relatively easy test." Young v. Lehman, 748 F.2d 194, 197 (4th Cir. 1984). The four-part prima facie test is essentially a model for demonstrating that the disputed employment decision was made "under circumstances which give rise to an inference of unlawful discrimination." Id. (quoting Burdine, 450 U.S. at 253).
Ms. Watkins is a female of mixed race who was fired and replaced by a white male. Therefore, to establish a prima facie case of discrimination, she need only demonstrate that her job performance met Hospitality's legitimate expectations when she was fired. King v. Rumsfeld, 328 F.3d 145 (4th Cir. 2003).
Ms. Watkins has presented a genuine issue of material fact as to whether her performance met Hospitality's expectations. Hospitality concedes that Ms. Watkins would probably still be employed if she had come to work and/or returned calls on her final weekend of employment. Ms. Watkins has presented evidence suggesting that she sent in a doctor's note to explain her absences, that she returned all of the calls and pages she received that weekend, and that Mr. Rone was supposed to cover for her when she was out sick. Therefore, whether Ms. Watkins met Hospitality's expectations that she come to work and return calls is an issue properly decided by the fact-finder.
Not only does Ms. Watkins' failure to report to work on September 7-11, 2001 create a genuine issue of fact for her prima facie case, it also creates a genuine issue of fact as to whether Hospitality's stated reason for her termination is pretextual. For this reason, Hospitality's Motion for Summary Judgment on Ms. Watkins' discriminatory discharge claim will be DENIED.
2.
Ms. Watkins also alleges that Hospitality created a hostile work environment in violation of Title VII. To succeed on a hostile work environment claim, Ms. Watkins must establish that: (1) she experienced unwelcome harassment at work; (2) the harassment was based on her race; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. Causey v. Balog, 162 F.3d 795, 801 (1998). Title VII is violated "[w]hen the workplace is permeated with `discriminatory intimidation, ridicule, and insult'" sufficient to alter a person's working conditions. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted). However, language which merely "engenders offensive feelings" does not violate Title VII. Id. (citations omitted).
In deciding whether harassment is "sufficiently severe or pervasive to bring it within Title VII," a court must "examine the totality of the circumstances, including `[t]he frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745 (4th Cir. 1996) (citing Harris. 510 U.S. at 22). The hostile or abusive work environment is judged under both a subjective and an objective standard, whether the plaintiff found it hostile and whether a reasonable person would also find it hostile. Harris, 510 U.S. at 21.
Ms. Watkins' complaints to management, request to transfer positions, and physical illness support a finding that she personally found Mr. Rone's behavior hostile. However, Ms. Watkins' claim fails because she has not provided sufficient evidence to demonstrate an objectively hostile work environment.
During the seven months Ms. Watkins worked for Mr. Rone, she experienced several racially offensive comments. First, she was ordered to hire employees on the basis of race. Second, Mr. Rone commented, once directly in front of a customer, about how Ms. Watkins didn't really "look black." Third, Mr. Rone commented about another black employee being "a little too Ghetto," shortly before that employee was replaced. However, while reprehensible and inappropriate, isolated comments such as these are not sufficiently severe or pervasive to create a hostile work environment. Title VII was not intended to eliminate every instance of vulgarity, rudeness, or insensitivity. See Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772-73 (4th Cir. 1997) (finding four offensive but nonthreatening remarks made by supervisor over a period of two years insufficient to create a jury issue on hostile environment).
In addition to evidence of offensive comments, Ms. Watkins presented evidence that Mr. Rone gave more leniency to Hispanic employees by allowing them to wear nonstandard uniforms, while insisting on strict compliance by black employees. Further, Mr. Rone undermined Ms. Watkins' attempts to discipline and fire at least one white employee. While the latter accusation would interfere with Ms. Watkins' ability to do her job, these actions are also insufficient to establish a hostile work environment. They are neither severe, threatening, nor particularly offensive. When considering the totality of all the circumstances, the statements and conduct of Mr. Rone establish an unpleasant and offensive work environment. However, Ms. Watkins has not presented sufficient evidence to establish a hostile work environment.
Because Ms. Watkins has not presented a genuine issue of material fact as to whether Hospitality created a hostile work environment, Hospitality's Motion for Summary Judgment will be GRANTED.
C.
Ms. Watkins also brings claims for unlawful retaliation under both the ADEA and Title VII. She alleges in the Complaint that Hospitality unlawfully retaliated against her for voicing her concerns about age discrimination in Ms. Fountain's termination, and in retaliation for voicing her concerns about racial discrimination. Hospitality has not addressed either retaliation claim in its Motion for Summary Judgment, thus the claims will not be discussed here.
D.
Both Plaintiffs also seek relief for either negligent or intentional emotional distress. They claim that Hospitality knew of their need for employment and benefits but proceeded to harass, reprimand, and give extra work duties to them before terminating their employment entirely. The Plaintiffs maintain that Hospitality intended the conduct complained of to cause them emotional distress, or recklessly disregarded the likelihood of distress. Further, they allege that Hospitality was negligent in training and retaining its supervisors when it knew or should have known that their actions were injurious. Because Hospitality has not addressed these claims in its Motion for Summary Judgment, the claims will not be discussed here.IV.
Hospitality has filed a Motion to Sever the remaining claims. For the reasons stated below, the Motion to Sever will be GRANTED.
The ability of plaintiffs to join together in one lawsuit is provided by Rule 20 of the Federal Rules of Civil Procedure. Rule 20(a) provides:
All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. . . . A plaintiff . . . need not be interested in obtaining . . . all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief. . . .
In addition, Rule 20(b) provides that the court "may order separate trials or make other orders to prevent delay or prejudice." Rule 21 provides that "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just."
The decision to sever actions for trial is within the discretion of the trial court. Arnold v. E. Air Lines, Inc., 681 F.2d 186, 192 (4th Cir. 1982). A court should consider whether the risks of prejudice and possible confusion are outweighed by "the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives." Id. at 193.
The current action is brought by two plaintiffs, Ms. Fountain alleging age discrimination and Ms. Watkins alleging both age and racial discrimination. Although, as the plaintiffs point out, the tests for discrimination are similar under the ADEA and under Title VII, the fact remains that this case involves two entirely separate sets of events and two separate causes of action. The only ties uniting the claims are the supervisor who allegedly made offensive comments to both Plaintiffs, and Ms. Watkins' allegation that Hospitality retaliated against her, in part, for her complaint about Hospitality's age discrimination towards Ms. Fountain.
An analysis of the relevant discretionary factors clearly weighs in favor of severing the Plaintiffs' cases. First, the risk of prejudice and confusion resulting from a joint trial is significant. A jury hearing allegations of a series of offensive comments toward both Plaintiffs may view the evidence in the aggregate, prejudicing them against Hospitality, or they may confuse the evidence in some other manner when looking for discriminatory intent towards one Plaintiff alone.
Second, because the Plaintiffs' claims stem from separate incidents and are based on separate law, there is little risk that having separate trials will result in any inconsistent adjudications of fact or law. There will be some overlap in the witnesses called by each Plaintiff, but there will not be much, if any, overlapping factual evidence. Further, although similar issues are involved in the legal standards for discrimination under the ADEA and Title VII, the standards are not so closely related that they would mandate the same result in different factual scenarios. In other words, a finding that Hospitality discriminated against one Plaintiff and not the other would not be legally or factually inconsistent.
Finally, although Hospitality employees may have to testify in two trials and one Plaintiff may be called to testify for the other, having two separate trials is not an undue burden on either party or an inefficient use of judicial resources. On the contrary, it is in the best interests of the parties to sever the claims to ensure a fair and impartial hearing of the claims of both Plaintiffs.