SUSAN K. GAUVEY, Magistrate Judge.
Plaintiffs, Danielle King, Latasha Johnson, Marquito Purnell, and Linda Turner, four African American former employees of defendant, Eastern Shore Water, LLC. ("ESW"), filed an employment discrimination suit against ESW, J&A Bottleless Water Cooler, Inc. ("J&A"), and Joseph Aita, the president and sole owner of both companies, stating three counts: race discrimination under 42 U.S.C. § 1981 against all defendants, breach of contract against ESW, and a claim for joint and several injunctive relief against all defendants. (ECF No. 8). Presently before the Court is defendants' motion for summary judgment on the first count, for dismissal under F. Rule Civ. P. 12(b)(6) on the latter counts, and for dismissal of J&A as a defendant. (ECF No. 24). Briefing is complete. Neither party requested a hearing. None is necessary.
For the reasons set forth below, the Court (1) DENIES defendants' motion to dismiss J&A as a defendant, (2) GRANTS defendants' motion for summary judgment and for dismissal of the breach of contract claim, and (3) DENIES plaintiffs' request for injunctive relief.
The Court shall set forth the facts presented by the parties in the light most favorable to plaintiffs, the non-moving party.
Between 1996 and 2010, ESW was a small, closely held Maryland Corporation (ECF No. 24, Ex. 8, MSJ 781)
J&A is also a small, closely held Maryland corporation. (ECF No. 24, Ex. 10, MSJ 791). J&A is in the business of selling or leasing bottleless water cooler systems, primarily to commercial customers, via door-to-door sales. (ECF No. 24, Ex. 10, MSJ 789;
Throughout the relevant time period in this case, ESW consisted of four departments: telemarketing, sales, office, and service. (ECF No. 24, Ex. 40, 57). Each ESW department is described in turn.
Telemarketers called potential residential customers in an attempt to schedule appointments for sales representatives to go to their homes and conduct a free water test, while attempting to sell a Rainsoft water treatment system. (ECF No. 24, Ex. 40, 74; ECF No. 24, Ex. 35, 41-42). Telemarketers also called potential customers, scheduled appointments, re-set appointments, and dispatched appointments (
Sales representatives visited potential customers' homes during the times scheduled by telemarketers, conducted free water tests, and did the actual selling of the system. (ECF No. 24, Ex. 40, 74;
The customer service department (referred to by plaintiffs as "up front" or the "front office") (
Service technicians visited customers' homes on appointments scheduled by Turner or Tracy Layton (and later Johnson), and performed maintenance on the water treatment systems pursuant to a maintenance plan sold by the service technician. (ECF No. 24, Ex. 36, 77-78). Service technicians also installed newly purchased water treatment systems and installed system upgrades. (ECF No. 24, Ex. 35, 77, 107). In addition to an hourly rate, service technicians were paid commission for upgrades and service maintenance plan sales. (ECF No. 24, Ex. 40, 255; ECF No. 24-1, 10, ¶6). Service technicians came into the building in the morning, picked up their service calls, left around 10 a.m. to go on appointments, and did not return to the office. (ECF No. 24, Ex. 40, 121).
There was also a separate office with a single desk reserved for an employee to make service maintenance appointments only. (ECF No. 24, Ex. 35, 50). As discussed below, Turner worked in this office. (ECF No. 24, Ex. 35, 50;
Notably, and somewhat confusingly, plaintiffs refer to both the telemarketing office and the service maintenance office where Turner worked as the "back room" or "back office." (
Beginning with the 2005 enactment of the "do not call list," and continuing through 2010, ESW's sales of new water treatment systems diminished severely, causing the company to suffer significant loss of sales and profits. (ECF No. 24, Ex. 30, 112-13;
In the beginning, around the year 1999 or 2000, ESW averaged 30-35 new sales every month, bringing in about $1.8 million to $2 million in gross sales. (ECF No. 24, Ex. 40, 117). During that time, the company averaged between 360 to 400 new sales per year. (ECF No. 24, Ex. 40, 117).
As business declined, however, ESW averaged 20 or 25 new sales per month, making only $800,000 per year. (ECF NO. 24, Ex. 40, 117-18). In 2007, ESW began losing its core group of sales representatives who had been there for years. (ECF No. 24, Ex. 40, 117).
Aita tried to rebuild the business on two occasions—once in 2008 and again in 2009-2010, but these attempts failed, and ESW almost went out of business. (ECF No. 24, Ex. 40, 114-15). In his attempts to save the business, Aita contributed large sums of personal money to the business (including money from his retirement accounts and his children's college funds), mortgaged his home, and refinanced his properties. (ECF No. 24, Ex. 40, 261-62). In the summer of 2010, Aita concluded that ESW could not be saved. (ECF No. 24, Ex. 40, 115). At that time, Eric Morris was the only remaining salesperson and Latasha Johnson was the only remaining telemarketer. (ECF No. 24, Ex. 40, 116). Aita shut the telemarketing department down in December 2010 (when Morris quit), and has not hired another telemarketer since. (ECF No. 24, Ex. 40, 70, 116-17).
Latasha Johnson, an African American woman, was hired by ESW as a telemarketer in 2003. (ECF No. 24, Ex. 35, 40, 43). Johnson's duties generally included calling appointments, scheduling appointments, re-setting appointments, and dispatching appointments. (ECF No. 24, Ex. 35, 43). Initially, she worked Monday through Friday, from 4:30 p.m. to 9:00 p.m., and Saturdays from 9:00 a.m. to noon, (ECF No. 24, Ex. 35, 43-44), and made $9 per hour plus commissions. (ECF No. 24, Ex. 35, 44). In 2005, she began working full time. (ECF No. 24, Ex. 35, 43). As a full time employee, she worked Monday through Friday from 9:00 a.m. until 1:00 p.m., and then again from 4:30 p.m. to 9:00 p.m., plus Saturdays from 9:00 a.m. to noon. (ECF No. 24, Ex. 35, 66-67). She also claims she worked between 1:00 p.m. and 4:30 p.m. (ECF No. 24, Ex. 35, 67-69). At the end of 2007 or the beginning of 2008, Johnson was promoted to supervisor of the telemarketing department, and her hourly rate increased to $12.50. (ECF No. 35, 81, 89). Johnson supervised both white and African American telemarketers. (ECF No. 24, Ex. 35, 89). In 2010, Johnson's schedule changed again. She began working Mondays and Wednesdays from 9:30 a.m. to 1:30 p.m., during which time she called to make service maintenance appointments, and between 3:30 p.m. and 7:30 p.m. she made calls to schedule initial sale appointments. (ECF No. 24, Ex. 35, 69;
Marquito Purnell, also an African American female,
Danielle King, also an African American female, was hired by ESW as a telemarketer in 2003. (ECF No. 24, Ex. 38, 19). From 2003-2004 King worked part time Monday through Friday from 4:30 p.m. to 9:00 p.m., and Saturdays from 9:00 a.m. to noon. (ECF No. 24, Ex. 38, 23-24). During that time, she was paid $9 per hour, plus commission. (ECF No. 24, Ex. 38, 24, 28). King became full time in 2005, at which time her hourly rate became $10 an hour. (ECF No. 24, Ex. 38, 23, 28). In 2005, she worked from 9:00 a.m. to 1:00 p.m., and again from 4:30 p.m. to 9:00 p.m., Mondays through Fridays. (ECF No. 24, Ex. 38, 25-27). King maintains that Aita terminated her in either 2004 or 2005, (ECF No. 24, Ex. 38, 67, 73), but Johnson stated that King was rehired the very next day or the same week. (ECF No. 24, Ex. 35, 55). At some point in 2007, King came in during the evenings from 4:00 to 9:00. (ECF No. 24, Ex. 38, 25-27). King was again terminated in November 2007 for calling someone on the "do not call list." (ECF No. 24, Ex. 38, 21, 78). She came back to ESW again in November 2010, after Aita called her and asked her to return. (ECF No. 24, Ex. 38, at 22, 35;
Linda Turner, also an African American female, worked parttime at ESW from May 2, 2006 until November 4, 2007 and then again from January 21, 2008 until approximately March 1, 2009. (Ex. 26, Ex. K, 1). She worked in a separate office by herself making calls to schedule service maintenance appointments. (ECF No. 24, Ex. 37, 31). Turner worked Mondays through Thursdays from 4:00 p.m. until 8:00 p.m. or from 4:30 p.m. to 8:30 p.m. (ECF No. 24, Ex. 37, 30). She was paid $9 per hour, plus commissions, which she was paid when she scheduled a service appointment and that service was completed. (ECF No. 24, Ex. 37, 32). Turner was laid off on or about March 1, 2009. (ECF No. 24, Ex. 2, MSJ 532).
Further facts are discussed below in the context of plaintiffs' claims.
Summary judgment under Fed. R. Civ. P. 56 is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
When considering a motion for summary judgment, the court views all facts and makes all reasonable inferences in the light most favorable to the non-moving party.
The role of the Court at the summary judgment stage is not to "weigh the evidence and determine the truth of the matter," but rather to determine whether "there are any genuine factual issues that can properly be resolved only by a finder of fact because they may be resolved in favor of either party."
If the Court concludes that a reasonable jury could not return a verdict for the plaintiffs based on the evidence in the record, summary judgment is warranted.
Before discussing defendants' arguments on the merits in light of the record, the Court shall address defendants' request
Each plaintiff submitted an affidavit as an exhibit to plaintiffs' opposition to summary judgment (ECF No. 26, Ex. D;
First, defendants challenge two statements on the ground that they change or supplement plaintiffs' deposition testimony and answers to interrogatories in "significant, material and striking ways." (ECF No. 27-1, 8). The Court disagrees, and declines to strike these statements. The first statement challenged is Johnson's claim that "Mr. Aita said that he didn't want the (black) backroom employees to be able to use the internet to look at pornography or to look up information about hair extensions or hair weaves." (ECF No. 26, Ex. D, 3). As discussed above, Turner's affidavit adopted this statement by asserting personal knowledge of all statements made in Johnson's affidavit. (ECF No. 26, Ex. K, 2). The Court will address this statement in its hostile work environment and disparate terms/conditions analyses below. (
Defendants also challenge certain statements as legal conclusions beyond the scope of plaintiffs' personal knowledge. (ECF No. 29, 2). First, Johnson states that ESW and J&A were integrated enterprises. The Court agrees that this is a legal rather than factual conclusion, and (as discussed above) will strike the statement. Next, Johnson states Aita's "two payroll scheme . . . enabled [ESW] to walk away from old liabilities including pension liabilities, long-term workers' compensation liabilities, and long-terms liabilities for future medical care." (ECF No. 24, D, 6). The Court agrees that those are legal conclusions, and highly speculative and inflammatory at that, and will strike them. In any case, it is not clear what claim those allegations go to.
The Court does not find Rule 56(h) sanctions appropriate in this case. That rule provides that
Fed. R. Civ. P. 56(h)(the predecessor to 56(h) was 56(g); the renumbering in addition to several amendments occurred December 1, 2010). In a thorough review of case law under Rule 56(h) (of which very little exists), the U.S. District Court for the Northern District of West Virginia discussed the few cases in which courts have found bad faith.
Now the Court turns to defendants' arguments in support of their motions to dismiss or for summary judgment.
The complaint states that J&A and ESW operated as "integrated enterprises." (ECF No. 8, 3, ¶7).
Plaintiffs counter this argument, setting forth the factors used to determine whether two companies operate as integrated enterprises, (ECF No. 26-1, 9), and alleging that ESW and J&A met several of these criteria. (ECF No. 8, 3, ¶7). Defendants fail to explicitly address plaintiffs' integrated enterprise argument at all, other than to deem it "irrelevant" in passing, without any supporting precedent. (ECF No. 27-1, 8).
The Fourth Circuit has applied the integrated enterprise test when defining "employer" in Title VII cases.
In
61 F.Supp.2d 448, 456 (D. Md. 1999) (internal citations and quotations omitted). "The determination of whether two separate and distinct corporate entities may be regarded as a single employer under the integrated enterprise theory is thus a question of fact to be decided in light of the above factors."
To prevail on summary judgment, defendants have the burden of showing that plaintiffs' factual allegations fail to raise a material dispute of fact regarding J&A's status as plaintiffs' employer. Defendants must do so in accordance with Rule 56(c)(1),
The only arguments defendants make in support of J&A's dismissal are as follows. First, defendants state that plaintiffs (in both their complaint and their depositions) identify ESW as their employer. (ECF No. 24-1, 50-51). While in their amended complaint, plaintiffs assert that they were "former employees of the Defendant Eastern Shore Water," (ECF No. 8, ¶9), the amended complaint also clearly alleges that ESW and J&A "operated as an integrated enterprise." (ECF No. 8, ¶7). Next, and without providing a single citation to the record, defendants assert that "Turner specifically stated that she never worked for J&A[,]" that "[a]ll [p]laintiffs received W-2 forms from Eastern Shore Water[,]" and that "[u]ntil January 1, 2011, J&A did not have any employees." (ECF No. 24-1, 51). Those arguments fail to establish that no dispute of material fact exists with regard to J&A's status as plaintiffs' employer. The fact that plaintiffs consider ESW to be their employer and that J&A was never plaintiffs' official employer (on paper) does not show that J&A was not plaintiffs' employer as a matter of law for § 1981 purposes under a concept such as the integrated enterprise theory, or otherwise.
Having failed to demonstrate that there are no material disputes as to fact as to J&A's employer status, J&A is not entitled to be dismissed as a defendant in this case.
Plaintiffs allege that defendants violated 42 U.S.C. § 1981 by: maintaining a hostile work environment (ECF No. 8, 3), and employing racially disparate treatment practices. (ECF No. 8, 3-4). The alleged practices of racially disparate treatment include: disparate terms, conditions, benefits and privileges of employment (ECF No. 8, 4-5); disparate termination (ECF No. 8, 4-5); and disparate promotion (ECF No. 8, 4; ECF No. 26-1, 12).
For reasons set forth below, the Court concludes that no reasonable jury could find merit in any of these claims. Before proceeding to the merits of the claims, however, the Court will address a statute of limitations issue raised by defendants in support of their motion for summary judgment.
Defendants argue that plaintiffs' claims concerning acts that occurred prior to June 1, 2007 (four years prior to the filing of plaintiffs' initial complaint) are barred by the statute of limitations associated with 42 U.S.C. § 1981 claims. (ECF No. 24-1, 38).
In relevant part, 42 U.S.C. § 1981 provides as follows:
42 U.S.C. § 1981(a). In 1991, the statute was amended as follows to define the term "make and enforce contracts":
42 U.S.C. § 1981(b);
Plaintiffs' claims for hostile work environment, disparate treatment, and breach of contract all clearly occurred posthiring. Thus, they fall under the 1991 amendment and are subject to the four year statute of limitations. The question thus becomes: what specific June 1, 2007 conduct and claims are barred? Unfortunately, defendants do not specifically state which claims are barred (
Where no dates provided anywhere in the record or it is simply unclear whether an action occurred prior to June 1, 2007, the Court will (in viewing the facts in a light most favorable to plaintiffs) assume that the events occurred after June 1, 2007. Similarly, where evidence suggests that an event occurred sometime in 2007 but the evidence does not indicate when in 2007 it occurred, the Court will presume that the event occurred after June 1, 2007. Where evidence shows that an alleged event did occur prior to June 1, 2007, and because plaintiffs have not provided the Court with any argument on this issue at all, the Court will not include the events in its analyses below.
While is abundantly clear that the plaintiffs were unhappy about their jobs and working conditions and that Aita may not have been the most professional and easy-to-get-along-with boss, there is no evidence of a hostile work environment nor disparate treatment based on plaintiffs' race sufficient to submit these claims to a jury. The Court shall discuss the two claims in turn.
Plaintiffs allege that the following forms of harassment led to a hostile work environment: Aita's repeated racially offensive comments and behavior towards plaintiffs; Aita's repeated sexually offensive comments and behavior towards plaintiffs; and Aita's improper touching of the plaintiffs. (ECF No. 8, 3).
The elements of a prima facie hostile work environment claim are the same under § 1981 as they are under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Even assuming that the alleged harassment in the case at bar was both unwelcome and attributable to defendants, plaintiffs have failed to establish a prima facie claim of hostile work environment because (1) plaintiffs have failed to show that the alleged harassment was based on their race, and (2) viewed collectively, plaintiffs' allegations of harassment were nowhere near the level of severity or pervasiveness required to establish a hostile work environment claim. Below, within the analyses of these two prima facie elements, the Court will address the specific assertions associated with each alleged form of harassment.
To prove that Aita's alleged harassment was motivated by plaintiffs' race, plaintiffs must show that "but for" their race, they would have been treated differently.
Plaintiffs claim that, on occasions discussed below, Aita shouted at them, used profanity, behaved in an angry fashion, and/or threatened to fire them. Plaintiffs claim that Aita never acted this way towards white employees. (ECF No. 26-1, 10-11).
Purnell testified that she never wanted to confront Aita because he would get upset, and that he once slammed the door and stated "this is my business and you're going to do what the f*** I tell you to do or there's the f****** door." (ECF No. 24, Ex. 34, 189-90).
Johnson described a chaotic environment in the telemarketing department at the end of 2007 or early 2008, stating that "telemarketers" were "upset" because "[p]retty much everybody that worked there because he was—your job was pretty much threatened on a daily basis. Get these appointments or you don't have a job." (ECF No. 24, Ex. 35, 87-88).
King described a similar situation, stating that "[w]hen we wasn't making the type of money that Joe [Aita] was used to making for his installs, he had an attitude, and you knew when he had an attitude because he came right out and took it out on us. Doors would be slamming . . . . banging on the table and cussing on a continuous type of basis." (ECF No. 24, Ex. 38, 71).
King also testified that Aita once stood in the telemarketing office and "told us that he could fire all of us and hire different people in there." (ECF No. 24, Ex. 38, 70). King also stated that "[i]f [she] went to [Aita] to complain, he always stressed that: `If you don't like how I run my company, you know where the door is.'"(ECF No. 26, Ex. J, 2;
While perhaps harsh, offensive, and insulting, nothing indicates that those race-neutral comments/actions were discriminatory in any way. In
Like the comments in
Further, no evidence indicates that Aita's comments/behavior were directed solely at African Americans as opposed to telemarketers in general,
Plaintiffs allege that Aita referred to them as "you people" in an offensive manner.
King claims that, during a conference meeting, Aita said "[y]ou people are looking at me like I'm speaking f****** Chinese." (ECF No. 24, Ex.38, 70). She was not sure when that incident occurred but it was sometime after the company moved to a new building, (ECF No. 24, Ex.38, 73-74), which occurred in 2005 (ECF No. 24, Ex. 40, 31).
Plaintiffs also claim that Aita used the term "you people" in the context of criticizing President Obama. (ECF No. 26-1, 6). Turner claims that this happened on two separate occasions. (ECF No. 24, Ex. 37, 73-79; ECF No. 26, Ex. E, 5). Since President Obama was elected in the fall of 2008, these statements obviously occurred thereafter. On the first occasion, Aita said "you people are going to see how much harder things are going to get around here[,]" (ECF No. 24, Ex. 37, 77), suggesting that Obama's presidency would make small businesses suffer. Aita was standing in the hallway where he could be heard in both the telemarketing room and Turner's office, which, again, was separate from the telemarketing office. (ECF No. 24, Ex. 37, 77-78). Turner did not specify when this occurred. Turner alleges that, on the second occasion, Aita stood in the same position and said "[y]ou people is going to see how many of you is going to lose your jobs because of Obama." (ECF No. 24, Ex. 37, 78-79). Purnell (ECF No. 24, Ex. 34, 100-102; ECF No. 26, Ex. A, 4-5) and Johnson (ECF No. 24, Ex. 36, 40; ECF No. 26, Ex. F, 5) also claimed that Aita made these statements. King was not present when Aita allegedly made the comments. (ECF No. 24, Ex. 38, at 63). Purnell claims that Aita made the statements in 2009, after Obama's inauguration. (ECF No. 24, Ex. 34, 101-02).
Plaintiffs have failed to prove that Aita's use of the term "you people" was race-based in any way. The Fourth Circuit has not analyzed the significance of the term "you people[,]" when used (as here) in a facially race-neutral context. However, other Circuits, as well as other district courts within the Fourth Circuit, have. In each case, courts have held that where the term "you people" does not clearly and unambiguously refer to a minority group, it is not discriminatory.
In the case at bar, as in the cases above, the evidence is not clear as to whom Aita referred when he used the term "you people." However, it is unlikely that Aita intended the term to apply solely to African Americans, as plaintiffs testified that Crystal Murray was present for every alleged usage of the term. King testified that Murray was present during the conference meeting when Aita said "you people are looking at me like I'm speaking f****** Chinese." (ECF No. 24, Ex. 38, 71). Other telemarketers were present as well, including King, Johnson, and Alice Fontaine. (Id.). Thus, it is possible that "you people" referred to telemarketers in general, or perhaps to all employees present during the meeting. Turner testified that Murray (white telemarketer) was present during both alleged occasions on which Aita said "you people" in the context of criticizing President Obama. (ECF No. 24, Ex. 37, 77, 79). Turner claims that she, Johnson, and Purnell were also present on both occasions. (ECF No. 24, Ex. 37, 77, 79). Thus, the term "you people" in that context could have been a reference to all night-shift employees, or perhaps all Democrats or supporters of President Obama. In any event, it is no more than speculation and conjecture to say it is a race-based reference, much less racist in context.
These allegations also fail the "but for race" test. Purnell, Johnson and Turner claim that this incident was racist. (ECF No. 24, Ex. 34, 105-08; ECF No. 26, Ex. F, 6; ECF No. 24, Ex. 37, 73). However, plaintiffs have, again, failed to show that Aita's questioning was directed towards African American employees in particular. First, plaintiffs offered no admissible evidence that Aita did not question white employees about the incident. In her answers to interrogatories, Turner states that Aita "did not accuse any of the White people" of defacing the photograph. (ECF No. 26, Ex. E, 4-5). However, when asked how she knew that during her deposition, Turner said never heard Aita question white employees about the picture, and simply assumed based on Aita's personality and attitude that he did not. (ECF No. 24, Ex. 37, 71-72). Turner's assumption based on her perception of Aita's personality is not evidence on which the Court may rely. Similarly, when asked during her deposition how she knew Aita did not confront white employees about this, Purnell provided the following, unrelated answer: "because [Johnson] actually made a big deal out of this because this was really prejudice." (ECF No. 24, Ex. 34, 110). Second, plaintiffs have not shown that Aita's alleged interrogation was directed towards African Americans as opposed to night-shift employees. The damage was claimed to have occurred in the evening after the day staff went home; Aita's questioning occurred the following day. (ECF No. 24, Ex.34, 110). Purnell testified that, sometime after Aita's questioning, Johnson confronted Tracy Layton about the incident, and Layton admitted that she "[a]ssumed that someone [in the back] did it because . . . . [the photograph] wasn't scribbled on [the day before]" and the only employees there during the time in between the day before and the morning that Layton found the photo defaced were employees working at night (ECF No. 24, Ex.34, 110)—i.e., telemarketers and Turner. If true, Layton's assumption was not an unreasonable one to make—an equally, if not more, compelling reason for Aita's directing his inquiry to this particular group of employees. Third, Crystal Murray, a white person, was working as a telemarketer in 2009 when this incident allegedly occurred (ECF No. 26, Ex. 2, MSJ 530).
Purnell, Johnson and Turner claim that, during a Christmas party in either 2008 or 2009, Aita asked plaintiffs whether their hair was real or fake. (ECF No. 24, Ex. 38, 117-18; ECF No. 24, Ex. 36, 41; ECF No. 24, Ex. 37, 70). Johnson also testified that, on another occasion, Aita came up behind her, put his hands on her shoulders, and asked her whether her hair was real or fake. (ECF No. 24, Ex. 36, 41). Purnell, Johnson and Turner all claim that they never heard Aita ask white women such questions about their hair. (ECF No. 26, Ex. A, 5; ECF No. 26, Ex. F, 6; ECF No. 24, Ex. 37, 70; ECF No. 26, Ex. E, 5). King was not present at any time when Aita asked African American women about their hair. (ECF No. 24, Ex.38, 63).
In her affidavit, Johnson also claims that "Aita said that he didn't want the (black) backroom employees to be able to use the internet to look at pornography or to look up information about hair extensions or hair weaves." (ECF No. 26, Ex. D, 3)(emphasis added).
Neither of the two types of statements (Aita's inquiries as to whether their hair was real or fake and Aita's statement that he did not want backroom employees "to be able to use the internet . . . to look up information about hair extensions or hair weaves" is racial. (ECF No. 26, Ex. D, 3). In
Purnell testified that Aita called white employees by their real names but used nicknames for black employees. (ECF No. 24, Ex. 34, 145-46). Specifically, she claims that Aita called King "Red Pink, [or Blue]," called Johnson "Tash" and called Purnell "Quita." (ECF No. 24, Ex. 34, 146-47). King also recalls that Aita called her "Red" or "Blue" or "Pink" based on the color of her hair, and claims that this conduct embarrassed her. (ECF No. 24, Ex. 38, 63, 70). Turner found Aita's use of nicknames (namely, calling King "red" or "blue" and calling Johnson "Tasha") to be offensive. (ECF No. 24, Ex. 37, 88-89, 90).
The evidence does not show that Aita's use of nicknames for plaintiffs was racial. First, Purnell admits that she did not feel that use of the nickname "Quita" was racist. (ECF No. 24, Ex. 34, 147). Further, Johnson referred to herself as "Tasha" in her deposition. (ECF No. 24, Ex. 35, 58). More importantly, Purnell does not claim that no white employees were given nicknames. (ECF No. 24, Ex. 34, 148). In fact, she conceded that a white employee, Anna Bauer, was referred to as "Lizzy," which is not her real name. (ECF No. 24, Ex. 34, 148-49;
King claims that in 2007, Aita came into telemarketing room and told telemarketers that his wife would not get into bed with him unless she had showered. (ECF No. 24, Ex. 38, at 40, 42). Johnson also recalls this occurrence. (ECF No. 24, Ex. 35, 142).
Clearly this comment is not racial on its face or in its meaning. It cannot even be considered racial based on who was present for the comment. King testified that Crystal Murray, the white telemarketer, was present when Aita made the comment. (ECF No. 24, Ex. 38, 42).
This alleged comment, as well as all remaining allegations going to plaintiffs' hostile work environment (see below) involve sexual innuendo and are not relevant to a § 1981 hostile work environment claim involving racial harassment.
Johnson testified that in 2007, Aita held a meeting during which he continuously scratched his genital area, later blurting out that he had jock itch. (ECF No. 24, Ex. 35, 136). King (ECF No. 24, Ex.38, at 40, 42) and Purnell (ECF No. 26, Ex. A, 5-6) also recall the occurrence. Turner was not present. (ECF No. 24, Ex. 37, 85).
This comment was clearly not racist in any way. Again, at least one white employee, Crystal Murray was present. (ECF No. 24, Ex. 38, 42). Johnson testified that, while she believed the comment was inappropriate, and wondered what Aita was "trying to do" by making the comment, she does not claim to have had any other feelings about the incident, (ECF No. 24, Ex. 35, 139), (
There is nothing racial about this comment. In fact, Turner admitted she did not consider the comment racial harassment, but she did consider it sexual harassment. (ECF No. 24, Ex. 37, 87). Again, plaintiffs have not asserted an independent claim for sexual harassment.
In each plaintiff's answer to interrogatories, the following statement appears (verbatim): "On numerous occasions Joe Aita would come into the telephone room, walk around to the desk of almost every female there and ask them to touch his bicep muscles and his abdomen. He would flex his muscles and sometimes even take off his shirt. We considered this to be sexually aggressive, inappropriate and were confused about his offensive behavior." (ECF No. 26, Ex. A, 5;
Johnson testified that Aita used to come into the telemarketing office "flexing his muscles, walking around the phone room for everybody to touch and see how hard his abs looked or how he looked in a suit[.]" (ECF No. 24, Ex. 35, 140; ECF No. 24, Ex. 36, 11). She did not provide a timeframe for those incidents. (ECF No. 24, Ex. 35, 140). Johnson never touched Aita's abs. (ECF No. 24, Ex. 36, 11). She does not recall whether the other plaintiffs touched his abs. (ECF No. 24, Ex. 36, 13). She also testified that Aita asked Johnson and the other plaintiffs to touch his arms on several occasions,
King testified that Aita came into the telemarketing office in 2006 or 2007 and went "around the room" "pulling his shirt up and . . . asking us to touch his body parts." (ECF No. 24, Ex. 38, 40-41). She stated that King, Johnson, Purnell, Murray, and Fontaine were present. (ECF No. 24, Ex.38, 41). King did not touch Aita and does not know if others did because telemarketers were in cubicles, and she remained on the phone during the incidents. (ECF No. 24, Ex. 38, 42).
Purnell testified that Aita came into the telemarketing room one or two times between 2007 and 2009 flexing and lifting his shirt up, asking females employees to touch his bicep muscles and his abdomen. (ECF No. 24, Ex. 34, 119-128). However, Aita never approached Purnell with this behavior. (ECF No. 24, Ex. 34, 120-21). Purnell found the behavior "just hilarious," though "unprofessional [and] offensive" as well. (ECF No. 24, Ex. 34, 122). She stated that the following telemarketers were present during this behavior: Johnson, King, Fontaine, Murray, Mary, and Darla Hardy. (ECF No. 24, Ex. 34, 128, 131).
Turner was not present when Aita allegedly went into the telemarketing office and asked females to touch his arm muscles and abs, but she could overhear the conversation from her office. (ECF No. 24, Ex. 37, 82). Turner believes this occurred on two occasions at the end of 2007. (ECF No. 24, Ex. 37, 83-84). She stated that other employees told her of another occasion in 2008 when Aita took off his shirt. (ECF No. 24, Ex. 37, 84). Aita never asked Turner to touch his arms or abs. (ECF No. 24, Ex. 34, 84).
Again, this behavior in and of itself is not racial in any way. Plaintiffs may have considered the behavior inappropriate and sexually offensive, but, again, there is no independent cause of action for sexual harassment in this case. The Court acknowledges that sexually harassing behavior directed exclusively at minority employees can bolster a racial harassment claim. However, plaintiffs have not shown that Aita's alleged behavior was directed at African American women as opposed to telemarketing women, or female employees in general. In other words, plaintiffs have not shown that the conduct would not have occurred "but for" their race.
First, plaintiffs offer no evidence that Aita did not act this way towards white employees outside of the telemarketing room. Second, plaintiffs offer no evidence that Aita did not simply act this way towards all telemarketing women. In fact, King, Purnell and Johnson all testified that Crystal Murray was present for at least some of the alleged occurrences. (ECF No. 24, Ex. 38, 41;
Further, it is not clear exactly when or how often this behavior occurred, but it is clear that it occurred only very occasionally at best over an extended period of time. Purnell testified that it occurred one or two times between 2007 and 2009. (ECF No. 24, Ex. 34, 119-128). Johnson testified that this occurred around five times. (ECF No. 24, Ex. 36, 15), including in March 2010. (ECF No. 24, Ex. 36, 13). Turner believes this occurred on two occasions at the end of 2007, (ECF No. 24, Ex. 37, 83-84) and stated that other employees told her of another occasion in 2008. (ECF No. 24, Ex. 37, 84). King testified that it occurred once in either 2006 or 2007. (ECF No. 24, Ex. 38, at 40, 41).
With regard to allegedly improper touching, two plaintiffs claim that Aita put his hands on them in an inappropriate way. Purnell (ECF No. 26-1, 4). King claims that Aita would sometimes come into the telemarketing room and put his hand on King's shoulder as if to say "good job," when, for example, she had the most sales. (ECF No. 24, Ex. 38, 44). Johnson testified that during a Christmas dinner in 2010, Aita came up behind her and touched her on the middle of her upper back with one hand, getting some ointment from her recent tattoo on his hand. (ECF No. 24, Ex. 35, 141-42). She also testified that, on another occasion, Aita came up behind her, put his hands on her shoulders, and asked her whether her hair was real or fake. (ECF No. 24, Ex. 36, 41). Johnson could not recall when the latter occurred. (ECF No. 24, Ex. 36, 41). Plaintiffs have presented no evidence that this alleged conduct was based on race, and there is no independent cause of action for sexual harassment.
The remaining plaintiffs have asserted no claims of improper touching. (ECF No. 24, Ex. 34, 117; ECF No. 24, Ex. 37, 81-82).
In sum, none of the incidents that plaintiffs claim amounted to racial harassment were race-based in any way. Aita's behavior may have been crude, harsh and offensive, but civil rights statutes were not designed to protect against such behavior in the workplace. As the Supreme Court has noted, the "standards for judging hostility are sufficiently demanding to ensure that Title VII does not becomes a `general civility code.'"
The Court concludes that even if the allegations above are true, viewed both individually and collectively, they are insufficiently severe or pervasive to survive summary judgment on plaintiffs' racially hostile work environment claim.
To determine whether the alleged harassing conduct is "severe or pervasive," the Court must look "at all the circumstances," including "the 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."
Notably, "conduct that is either pervasive or severe may give rise to a hostile work environment[;] . . . even one act of harassment will suffice if it is egregious."
While the severe/pervasive standard surely prohibits an employment atmosphere that is "permeated with discriminatory intimidation, ridicule, and insult,"
(internal citations and quotations omitted).
A review of the case law shows the demanding nature of the hostile work environment standard. In the cases where courts have found evidence of a racially hostile work environment, the employers used direct racial epithets and statements that were clearly discriminatory. For instance, in
The severity and pervasiveness of the alleged harassment in the case at bar pales in comparison to the harassment in all the cases above. None of the statements are facially racial at all. (
The Court turns first to Aita's use of the term "you people." In terms of severity, even if a jury were to believe that the reference was to race, the context does not support racial animus (
As for pervasiveness, the Court notes that Aita used the term "you people" on only three isolated occasions—once during a conference meeting, and twice in the context of criticizing Obama. (ECF No. 24, Ex. 38, 70;
A reasonable jury could not consider Aita's usage of the term "you people" severe or pervasive.
The Court turns next to Aita's alleged statements regarding plaintiffs' hairstyles. In terms of severity, even if the comments about plaintiffs' hair were somehow connected to a stereotype about African American women's hair (a connection which, again, plaintiffs have not asserted and the Court does not understand), the comments do not evidence racial animosity or hatred.
Moreover, courts (both within and outside of the Fourth Circuit) have rejected far more egregious comments regarding ethnic stereotypes (physical and otherwise) on the basis of insufficient severity or pervasiveness.
Any alleged comments regarding plaintiffs' hairstyles were neither "egregious,"
As far as the frequency of Aita's comments regarding plaintiffs' hair, plaintiffs have only identified three isolated occasions—once at a Christmas party, (ECF No. 24, Ex. 38, 117-18; ECF No. 24, Ex. 36, 41; ECF No. 24, Ex. 37, 70), once to Johnson alone, (ECF No. 24, Ex. 36, 41), and once in the context of explaining why he did not want internet access in the back room. (ECF No. 26, Ex. D, 3).
The remaining alleged acts of harassment are clearly not severe or frequent, and even viewed in connection with the alleged incidents above, they will not save plaintiffs' hostile work environment claim from summary judgment. In the light most favorable to plaintiffs, Aita's shouting, use of profanity, angry behavior and threats to fire plaintiff occurred with the following frequency: whenever telemarketers were not bringing in "the type of money that [Aita] was used to," (ECF No. 24, Ex, 38, 71), whenever Aita was confronted or complained to, (ECF No. 24, Ex. 31, 189-90; ECF No. 24, Ex. 38, 67-68; ECF No. 26, Ex. Ex. J, 2) "on a daily basis" at the end of 2007 or early 2008, (ECF No. 24, Ex. 35, 87-88), and on at least one other occasion. (ECF No. 4, Ex. 38, 70). Plaintiffs did not provide evidence of how frequently Aita used nicknames for them, but the evidence indicates that he referred to both white and African American employees by nicknames on a regular basis. As far as plaintiffs' claim that Aita showed off his muscles, the plaintiffs do not demonstrate any great frequency of this behavior. Again, Purnell testified that it occurred one or two times between 2007 and 2009, (ECF No. 24, Ex. 34, 119-128), Johnson testified that this occurred around five times, (ECF No. 24, Ex. 36, 15), Turner believes it occurred on two occasions at the end of 2007, (ECF No. 24, Ex. 37, 83-84) and stated that other employees told her of another occasion in 2008, (ECF No. 24, Ex. 37, 84), and King testified that it occurred once in either 2006 or 2007. (ECF No. 24, Ex.38, at 40, 41). All remaining alleged incidents were isolated and occurred only once: the incident involving the defaced picture of President Bush, (ECF No. 24, Ex. 34, 105-08; ECF No. 26, Ex. F, 6; ECF No. 24, Ex. 37, 73); Aita's comment about his wife coming to bed, (ECF No. 24, Ex. 38, at 40, 42; ECF No. 24, Ex. 35, 142); Aita's announcement that he had "jock itch," (ECF No. 24, Ex. 35, 136; ECF No. 24, Ex.38, at 40, 42; ECF No. 26, Ex. A, 5-6); and Aita's "hairy balls" comment. (ECF No. 24, Ex. 36, 41; ECF No. 24, Ex. 38, at 41, 42; ECF No. 24, Ex. 34, 132, 134; ECF No. 24, Ex. 37, 86-87).
Overall, Aita's allegedly harassing conduct amounted to nothing more than "rude treatment" and "callous behavior."
The proof required to establish a claim for disparate treatment is the same under Title VII and § 1981.
A plaintiff alleging discrimination under § 1981 may prove his or her case in two ways. First, a plaintiff may offer direct evidence of discrimination that raises a genuine issue of material fact regarding whether an impermissible factor motivated the employer's adverse employment decision.
Plaintiffs appear to proceed under both methods of proof. Again, the
The Court agrees that plaintiffs have not presented any direct evidence of discrimination. "To survive summary judgment on the basis of direct and indirect evidence," plaintiffs "must produce evidence that clearly indicates a discriminatory attitude at the workplace and must illustrate a nexus between that negative attitude and the employment action."
Under the
Title VII (and thus § 1981) renders it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a)(1). Plaintiffs allege that defendants violated that provision by:
An inference of discrimination in cases of disparate compensation, benefits, terms, conditions or privileges of employment arises where a member of a protected class
The Court proceeds with an analysis of each alleged form of discriminatory term/condition of employment pursuant to the
Plaintiffs claim that, while "[w]hite employees worked in the front room where they could be seen by the customers[,] . . . [b]lack employees were relegated to a back room behind closed doors." (ECF No. 8, 3, ¶ 10).
Purnell testified that, in general, telemarketers were not allowed to be up front, and sales representatives were not allowed to come to the telemarketing room in the back. (ECF No. 24, Ex. 34, 73, 75, 141).
Turner claimed that on one occasion in or around 2006, the computer in her office broke and Tracy Layton told her to work on her computer in the front office. (ECF No. 24, Ex. 37, 93-95). Turner stated that when Aita saw Turner on Layton's computer he questioned her about why she was there, and asked her to move to Chris Biester's office. (ECF No. 24, Ex. 37, 93-94).
King claims that in 2007, Aita told telemarketers to keep their office door closed because sales representatives were coming into the telemarketing room and talking with the telemarketers. (ECF No. 24, Ex. 38, at 34-35). Purnell also recalls that Aita asked the telemarketers to keep their door shut to keep the sales representatives out. (ECF No. 24, Ex. 34, 141). Turner testified that in 2008 Aita placed a sign on the telemarketing door stating that the telemarketing office door must remain closed and that no one was to enter the room. (ECF No. 24, Ex. 37, 92).
Turner stated that she was not aware of any African Americans who worked in a capacity where they interacted with the public. (ECF No. 24, Ex. 37, 95).
Plaintiffs have failed to raise any inference of discrimination with regard to workplace segregation because they have not shown that similarly situated non-minorities (i.e., white telemarketers) were not subject to the same requests described above.
As far as the allegation that, in general, telemarketers were expected to stay "in the back," it is crucial to note that for much of the time relevant to these claims, Crystal Murray was a telemarketer. Again, Crystal Murray worked as a part-time telemarketer between February 20, 2001 and March 5, 2006 and from November 14, 2007 to June 6, 2010. (ECF No. 24, Ex. 2, MSJ 530). Another white telemarketer, Alyssa Mullins, was employed as a telemarketer from January 11, 2010 until February 21, 2010. (ECF No. 24, Ex. 2).
As for Turner's claim that she was not permitted to stay up front the day her computer broke, plaintiffs have not identified a single white telemarketer who was permitted to do so under similar circumstances.
In terms of Aita's request that the door remain closed, again, Turner testified explicitly that Crystal Murray was a telemarketer when Aita imposed the rule. (ECF No. 24, Ex. 37, 92).
Finally, the evidence overwhelmingly contradicts plaintiffs' suggestion that no African Americans at ESW interacted with the public. ESW employed numerous African American service technicians and sales representatives, who regularly interact with the public. For example, Karl Reddick, an African American, worked as a service technician between 1997 until 2009. (ECF No. 26, Ex. 2; ECF No. 26-1, 15). Lamont Roberts, who started work in the early 2000s as a service technician in the service department and later worked as a sales representative, was African American. (ECF No. 24, Ex. 40, 92). Anthony Hayward was an African American sales representative employed between 2003 and 2008. (ECF No. 24, Ex. 40, 96-97;
Because plaintiffs have failed completely to raise an inference of discrimination by way of maintaining a segregated workplace, the Court need not advance to subsequent phases of the
Plaintiffs claim that "while the front room for white employees had adequate heat and air conditioning, the back room, for Black employees, did not." (ECF No. 8, 3, ¶ 10). Without providing any specific dates,
Plaintiffs have failed to establish an inference of discrimination with respect to alleged temperature disparities. Once again, plaintiffs have not provided a single piece of evidence to indicate that African American night-shift employees suffered uncomfortable temperatures while white night-shift employees did not.
Turning to the second stage of the
Plaintiffs claim that two white employees in the front room had access to paper towels and toilet paper, but those who worked in the back room did not. When paper supplies in the bathroom would run out, only these two white employees were able to replace the supplies because only they had access to the cabinet where the supplies were maintained. Therefore paper supplies ran out after the two white employees had gone home, and plaintiffs were unable to have access to toilet paper or hand towels during their work day.
(ECF No. 26-1, 2) (emphasis added). Plaintiffs have not explained how frequently and during what time period this occurred. Again, this allegation fails to raise any inference of racial discrimination because white employees worked in the "back room" as well. As argued by defendants (see ECF No. 24-1, ¶50), plaintiffs have not identified a single white night-shift employee who was treated differently in this regard. In an attempt to create an issue of fact as to defendants' assertion that plaintiffs did not identify such a white employee, plaintiffs argue that the assertion is "inaccurate," citing to Purnell's deposition and the interrogatory answers of Purnell and Turner. (ECF No. 26-1, 10) ("This is inaccurate. See Deposition of Marquito Purnell, pgs. 153-155, Ex.C and her Interrogator Answer 7 at pgs. 6 and 7, Ex. A. Also see the Interrogatory Answer 7 of Linda Turner. Ex.E"). However, the evidence cited by plaintiffs fails to identify any night-shift employee who received better treatment.
Next, plaintiffs allege that
(ECF No. 8, 4, ¶ 10). Because plaintiffs' claims regarding benefits differ, the Court will analyze them separately.
Purnell claims that she did not receive paid vacation. (ECF No. 24, Ex. 34, 137). However, Purnell was a part-time employee, and only full-time employees were entitled to paid vacation. (ECF No. 24, Ex. 4; ECF No. 24, Ex. 40, 130-31). In any case, Purnell could not identify a single white, part-time employee who received paid vacation. (ECF No. 24, Ex. 34, 138; ECF No. 26, Ex. A, 6).
Purnell further alleges that she asked Aita for a 401(k)
Purnell has no claim as to health insurance. She testified that she had health insurance through her husband's plan, and "didn't care" whether she had health insurance through Eastern Shore Water. (ECF No. 24, Ex. 34, 136).
Johnson testified that, in general, she felt discriminated against because Aita did not affirmatively offer her vacation time, personal leave time or an IRA plan—she had to find out on her own whether she was eligible, and then request the benefits. (ECF No. 24, Ex. 35, 129-30). Even if true, plaintiffs have not identified any white ESW employee who received such benefits with greater ease.
Johnson testified that she felt entitled to one week of paid vacation and five personal days in 2008 because the company handbook states that full-time employees are entitled to such benefits. (ECF No. 24, Ex. 35, 111-16). Johnson testified that she did not receive those benefits in 2008. (ECF No. 24, Ex. 35, 110, 116).
Notably, Johnson concedes that she was offered the 401(k) in January 2007, at which time she signed up for it. (ECF No. 24, Ex. 35, 133, 135).
Johnson has no claim with respect to health insurance. She testified that she had other health insurance and did not need it through ESW. (ECF No. 24, Ex. 35, 129).
Turner stated that she was entitled to paid vacation even though she was a part-time employee. (ECF No. 24, Ex. 37, 121). However, she was not aware of any other part-time employees at Eastern Shore Water (let alone white part-time employees) who received paid vacation. (ECF No. 24, Ex. 37, 121-22).
Turner also testified that she felt entitled to paid holidays, but did not receive them. (ECF No. 24, Ex. 37, 122). However, she did not know of any part-time white employees that were paid for holidays. (ECF No. 24, Ex. 37, 122). Indeed, time card and payroll records show that Crystal Murray (part-time telemarketer) was not paid for holidays. (
Turner did not claim entitlement to paid sick time, and did not know of any white part-time employee who received paid sick time. (ECF No. 24, Ex. 37, 122). Turner also has no claim as to health insurance. (ECF No. 24, Ex. 37, 116). Finally, Turner never asked for a 401(k), and "it wasn't a big deal to [her] because [she] had a 401(k)" through [her other employer] . . . [a]nd [she] was only a part-time employee at Eastern Shore Water." (ECF No. 24, Ex. 37, 117).
King claims she did not receive holiday pay, health insurance, paid sick time, or paid vacation, while white employees (Jody Neal, in particular) did. (ECF No. 24, Ex. 38, 48-49). She did not offer a timeframe as to when these alleged disparities occurred.
First, evidence before the Court contradicts King's testimony that she was not paid vacation. As defendants note, records and time cards indicate that King did in fact receive pay for holidays that she did not work in 2007, including New Year's, Memorial Day, July 4
As far as health insurance, King claims that in 2005, after becoming a full time employee, she asked Aita for health insurance and Aita said he would have to check with his attorney. (ECF No. 24, Ex. 38, at 50, 52). King claims that Aita did not get back to her about health insurance, and she did not ask again. (ECF No. 24, Ex. 38, 50-52).
Similarly, plaintiffs have offered no evidence that any white employees received paid sick leave while King did not. Indeed, Turner testified that she did not know of any white part-time employee who received paid sick time. (ECF No. 24, Ex. 37, 122).
As far as paid vacation, Aita admits that up to year 2007, King did not receive paid vacation. (ECF No. 24, Ex. 40, 264). However, King was a part-time telemarketer and, as such, was not entitled to paid vacation before 2005, when she became parttime. (ECF No. 24, Ex. 4; ECF No. 24, Ex. 40, 130-31).
Next, plaintiffs claim (1) that they were paid less in commissions than white employees, (ECF No. 8, 4, ¶10), and (2) that "[d]efendants knew that certain white employees, in the front room, would steal commissions from black employees but the defendants did nothing to correct this injustice despite having been notified about it and complained to about it by the plaintiffs." (ECF No. 26-1). Because not every plaintiff makes both claims, the Court will address each plaintiff's allegations separately.
Purnell claims that all of the ESW sales representatives received more than she received in commission, (ECF No. 24, Ex. 34, 157), and that the following white people made more than she in commissions: Tracy Layton, Tracy Layton's husband, Lizzy, and another white woman "up front[,]" whose name she could not recall. (ECF No. 24, Ex. 34, 157, 164-65).
This allegation does not support any inference of racial discrimination because the white employees that Purnell identified are not telemarketers, and are thus not "similarly situated." First, a comparison to all sales representatives is meaningless because Purnell was strictly a telemarketer. Similarly, both Tracy Layton and "Lizzy," whose real name is Anna Bauer (ECF No. 24, Ex. 40, 265), worked in the front office—not in telemarketing. (ECF No. 24, Ex. 34, 167). The unidentified white woman "up front" apparently worked in the front office as well. Tracy Layton's husband, Donald Campbell, was a service technician, (ECF No. 24, Ex. 40, 105-06), so any comparison to him is equally irrelevant. Purnell could not identify a white telemarketer who was paid more in commission than she was. (ECF No. 24, Ex. 34, 163-64).
Purnell also claims that her sale commissions were stolen by Tracy Layton sometime in 2007 and again in 2009. (ECF No. 24, Ex. 34, 41-42, 55). Each time, Purnell set the appointment, and it was later re-set by Layton, who received commission for it. (ECF No. 24, Ex. 34, 43, 56). However, Purnell never informed anyone besides Johnson of her complaint. (ECF No. 24, Ex. 34, 57). In any event, Purnell has not identified a white employee who faced similar frustrations but was treated more favorably.
King does not claim that she was paid less in commission than white employees. When asked about the factual assertion in the complaint that she was paid less in commission than white persons, she stated "I'm not sure if I was paid less [commission] or not . . . there's no way that I have of knowing that" (ECF No. 24, Ex. 38, at 54).
Johnson claims that in August 2007, Tracy Layton told her that she (Layton) received between $200 and $250 per commission for selling water system upgrades to customers, depending on what the upgrade sold for. (ECF No. 24, Ex. 35, 106-09). Johnson complains that, by contrast, she was not paid commission for an upgrade when, in the midst of scheduling service appointments, she "actually got maybe like three or four people to say they were going to talk to the service guy when he got there about upgrading their system after I had a conversation with them about it." (ECF No. 24, Ex. 36, 107). First, Johnson presents no evidence that those conversations resulted in actual sales. Tracy Layton only received a commission if an upgrade was actually sold. (ECF No. 24, Ex. 40, 255). Second, it appears that Johnson has confused upgrade commissions with service maintenance commissions. Aita only paid upgrade commissions to customer service representatives and sales representatives for selling upgrades. (ECF No. 24, Ex. 40, 255-56). Tracy Layton was a customer service representative. Johnson did not sell upgrades—she scheduled service appointments. (
Next, Johnson claims that Tracy Layton was paid commission for scheduling service maintenance appointments while she (Johnson) was not. The evidence suggests otherwise. Time cards from 2008 show that Tracy Layton was paid commissions for upgrades but was not paid commissions for scheduling service maintenance appointments. (ECF No. 24, Ex. 27).
As far as stolen commissions, Johnson claims that Jody Neal was paid on one of Johnson's sales. (ECF No. 24, Ex. 36, 17). Johnson scheduled an appointment, and Neal later claimed credit for the sale because the customer was her neighbor. (ECF No. 24, Ex. 36, 17). Neal was paid on the commission, and Johnson had to show Aita her referral paperwork to prove the commission was hers. (ECF No. 24, Ex. 36, 18). Johnson was paid the commission at that point. (ECF No. 24, Ex. 36, 18). However, Johnson felt it was unfair that she had to document her claim to the commission, while Jody did not. (ECF No. 24, Ex. 36, 18). This allegation raises no inference of discrimination because plaintiffs have not offered any proof that Aita did not question Jody Neal as well. In fact, Johnson admits that she "[could not] speak on" the question of whether Aita also asked Neal to defend her claim because "[she] wasn't there." (ECF No. 24, Ex. 36, 18).
Turner does not make the claim that she was paid a lesser commission rate than white employees. She does allege that Tracy Layton stole some commissions that she (Turner) had earned. (ECF No. 26, Ex. E, 7). Starting in November 2008, Turner noticed that she was being paid less in commission for scheduling the same number of commissions. (ECF No. 24, Ex. 37, 20-21). As a result, she began writing down every service appointment she scheduled. (ECF No. 24, Ex. 37, 21). Tracy Layton periodically gave Turner a list of completed services. (ECF No. 24, Ex. 37, 22). Turner noticed that several of her scheduled services were not on the document given to her by Layton. (ECF No. 24, Ex. 37, 22). In February 2009, Turner perused company records of completed service appointments, and noticed that service some of those missing appointments had been completed. (ECF No. 24, Ex. 37, 22-23). She was not paid commission for those services. (ECF No. 24, Ex. 37, 23). Turner believes she lost between $100 and $150 in commission. (ECF No. 24, Ex. 37, 25). Turner left a note pointing out these discrepancies on Tracy Layton's desk. (ECF No. 24, Ex. 37, 23). During Turner's exit meeting, Aita approached Turner about the note she left on Layton's desk. (ECF No. 24, Ex. 37, 24-25). He said he did not believe that Layton intentionally deprived Turner of her commissions—that it was accidental. (ECF No. 24, Ex. 37, 25). The next month, Aita did pay Turner for those commissions. (ECF No. 24, Ex. 37, 25-26). Turner's allegations raise no inference of discrimination. Even if Layton did steal her commissions, Aita rectified the situation by paying them to her and explaining that he did not believe it was intentional. In any case, Turner (indeed, none of the plaintiffs) identified a white employee who faced a similar situation and was treated any better.
Plaintiffs claim that defendants paid one white employee severance pay upon termination, but not plaintiffs (ECF No. 26-1, 5, ¶C). Specifically, Turner claims that a white employee named Tiffany (who worked at PNC Bank before working at Eastern Shore Water) was given severance pay after she was fired in 2008 for watching pornography at work. (ECF No. 24, Ex. 37, 27-29). Tiffany worked up front. (ECF No. 24, Ex. 37, 29). Turner was not aware of any other employee receiving money from the company after leaving. (ECF No. 24, Ex. 35, 29). Purnell claims similarly that Aita paid $2,700 in severance pay to "the woman .. . who worked across the street at the bank" (presumably "Tiffany," although Purnell could not recall her name). (ECF No. 24, Ex. 34, 180-81). However, the official payroll records reveal that a person named "Riffany Curtis" was employed with the company and terminated on July 29, 2007 (ECF No. 24, Ex. 2, MSJ 539). However, the records do not show any severance pay in the amount of $2,700 to "Tiffany," and termination of this Tiffany was a year earlier than Turner testified to. Without evidence on the similarity of the situations of the white employee Tiffany and the plaintiffs, it would be unreasonable to draw any inference of discrimination.
Plaintiffs claim that they were denied the paid lunch breaks that were permitted to white employees (ECF No. 8, 4, ¶ 10). Specifically, Johnson felt that she was entitled to a lunch break once she became full time in 2005.
Again, a comparison between telemarketer schedules and Tracy Layton (who worked in customer service) is inapposite. Plaintiffs have not identified any white telemarketer who received a paid lunch break. In any case, Aita testified that all customer service representatives worked standard hours, 8:00 a.m. to 4:30 p.m. and did not, in fact, get paid for 30 minutes of that time. (ECF No. 24, Ex. 40, 128-30). Evidence before the Court, namely, Layton's 2008-2009 time cards, support that statement. The time cards show that Layton's typical hours were from 8:00 a.m. until 4:30 p.m., which is 8.5 hours per day, and 42.5 hours a week, but Layton was only paid for 40 hours. (ECF No. 26, Ex. 27;
Plaintiffs claim they were denied computers with internet access for discriminatory reasons. (ECF No. 26-1, 10).
Johnson testified that Aita asked telemarketers to obtain driving directions to customers' homes by asking the customers for directions. (ECF No. 24, Ex. 36, 49). However, she claims, telemarketers found that customers could not always provide adequate directions, and wanted to use computers up front, which had internet access, to access Mapquest. (ECF No. 24, Ex. 36, 49). Johnson claims Aita told telemarketers not to use other employees' computers, which were up front and also in the separate office of Chris Biester (which was across from Johnson's office when Johnson worked in the service office) (ECF No. 24, Ex. 36, 48-49, 52-53).
The other telemarketing plaintiffs make similar claims. King testified that telemarketers needed computers to access online directions via Mapquest after scheduling appointments. (ECF No. 24, Ex. 38, 66). According to King, this was the only reason telemarketers needed computer access. (ECF No. 24, Ex. 38, 66). King stated that, by contrast, sales representatives had access to computers with Mapquest. (ECF No. 24, Ex. 38, 66). She testified that Aita denied telemarketers' request to use a computer up front to get Mapquest directions. (ECF No. 24, Ex. 38, 66). Purnell also felt that telemarketers should have access to Mapquest. (ECF No. 24, Ex. 34, 143). She stated that Aita caught Johnson up front using Mapquest on a computer, and asked telemarketers not to use those computers. (ECF No. 24, Ex. 34, 143-44). As a result, Purnell purchased a smart phone, and allowed telemarketers to use it for directions. (ECF No. 24, Ex. 34, 144).
Turner has no claim in this regard. She testified that her office contained all the items necessary to perform her job, including a computer and a telephone. (ECF No. 24, Ex. 37, 31).
Further, in an affidavit submitted with plaintiffs' opposition to the motion to dismiss, Johnson claims that "Aita said that he didn't want the (black) backroom employees to be able to use the internet to look at pornography or to look up information about hair extensions or hair weaves." (ECF No. 26, Ex. D, 3).
Plaintiffs have, again, overlooked the fact that white employees, including Crystal Murray and Alyssa Mullins, worked in the telemarketing room. Thus, no discriminatory inference is raised. Even if plaintiffs had raised such an inference, defendants have satisfied the second step of the
Plaintiffs claim that "[b]lack employees were discouraged and sometimes forbidden from bringing their husbands or boyfriends to the company Christmas party or to other functions while [w]hite employees were not." (ECF No. 8, 4, ¶10). Plaintiffs make the following factual assertions in connection with that allegation.
In either 2003 or 2004, Johnson brought a guest to a company Christmas party (named Darron Burton). (ECF No. 24, Ex. 35, 165). She was not asked any questions about that guest. (ECF No. 24, Ex. 35, 164). After that year, however, Aita would put sign-up sheets on the refrigerator so that employees could sign up for the Christmas parties and indicate whether they were bringing a guest. (ECF No. 24, Ex. 35, 161). Johnson said that if she marked a guest, she had to go to Aita's office and explain who she was bringing, how old they were, and whether they would cause trouble. (ECF No. 24, Ex. 35, 162, 165). As a result, Johnson stopped bringing guests after the year she brought Burton, (ECF No. 24, Ex. 35, 163, 166), until 2010. In 2010, Johnson stated that Aita questioned Johnson about a girl she intended to bring in 2010, Tanya Wilson. (ECF No. 24, Ex. 35, 169). Aita asked how old the girl was (which Johnson interpreted as asking whether the guest was old enough to consume alcohol legally), and whether she would cause trouble. (ECF No. 24, Ex. 35, 169). Johnson brought Wilson to the party anyway. (ECF No. 24, Ex. 35, 169).
Purnell went by herself to one particular Christmas dinner because after putting her husband on the sign-up sheet, Aita questioned her about him, asking what kind of person he was and whether he had been in trouble. (ECF No. 24, Ex. 34, 195-97).
Turner testified that about one week before company events took place, there was a sheet on the refrigerator for employees to sign up and indicate whether they would be taking a guest. (ECF No. 24, Ex. 37, 130-31). Before a December 2008 Christmas party, Purnell and Johnson told Turner that when they indicated they were bringing guests, Aita would call them to his office and ask them questions including where the person worked, what kind of attitude they had, whether they did drugs or drank alcohol, or whether they were violent. (ECF No. 24, Ex. 37, 131-32, 135-36).
Plaintiffs have failed to raise an inference of discrimination because they have not shown that white employees with guests unknown to Aita were not questioned. In fact, Johnson testified otherwise by admitting that Crystal Murray stated she was not going to bring her boyfriend "because [Aita] acted like it was a problem with bringing him because she is not married to him. (ECF No. 24, Ex. 35, 168;
Even if plaintiffs had established an inference of discrimination by way of these allegations, the claim would not survive the remaining phases of the
In her answers to interrogatories, Johnson also claims that, during certain periods between 2008 and 2011, she was not paid for time that she worked at home (during weekdays and on some Saturdays). (ECF No. 26, Ex. F, 4-5). This claim appears to be part of Johnson's breach of contract claim (as the answer appears under Interrogatory No. 3, regarding Johnson's breach of contract claim), but the Court will also analyze it under her § 1981 claim as well. In an affidavit, Johnson also claims that
(ECF No. 26, Ex. D, 6-7).
Johnson claims that in 2007 employees in both the back office and the front office were writing on their time cards, but employees in the back office were "yelled at" for doing so, while employees in the front office (specifically, Jody Neal and Tracy Layton) were not. (ECF No. 24, Ex. 35, 100-06).
Plaintiffs have not raised an inference of racial discrimination. The Court agrees with defendants' argument that "[p]laintiffs do not point to any white telemarketer who was treated more favorably than African Americans in this regard." (ECF No. 24-1, 27, ¶47). Jody Neal and Tracy Layton were not telemarketers. Plaintiffs attempt to raise an issue of fact on that point by claiming that this statement is incorrect and simply referring the Court back to Johnson's testimony. (ECF No. 26-1, 10) ("See Deposition of Latasha Johnson, Vol. 1, pgs. 131-133, Ex. I"). But Johnson never identified any white telemarketer who was not treated this way with respect to time cards—in her deposition or otherwise. Notably, telemarketers in 2007 included Crystal Murray. (ECF No. 24, Ex. 2, MSJ 530).
Further, defendants have identified a non-discriminatory reason for asking telemarketers not to write on their time cards while allowing Layton and Neal to do so. Tracy Layton and Jodie Neal were not required to clock in and out while others were because "Jodie's schedule and Tracy's schedule were the same every day. They were 8 `til 4:30. So I felt like I did not need to keep a time clock on them anymore." (ECF No. 24, Ex. 40, 253). By contrast, telemarketers worked more irregular days and hours and Aita found it simpler to have them clock in and out. (ECF No. 24, Ex. 40, 253). Plaintiffs have not alleged nor presented any evidence that this reason was pretextual. No evidence suggests that it was.
Purnell claims that plaintiffs were not given company Blackberry cell phones, while employees "up front" were. (ECF No. 26, Ex. 34, 147). This allegation fails to raise any inference of discrimination. Purnell was a part-time telemarketer, and the employees "up front" worked in customer service. Purnell was not similarly situated with customer service representatives up front. As defendants note, Purnell did not identify any white telemarketer who received a blackberry phone, (see ECF No. 24-1, ¶27), let alone a part-time telemarketer. Plaintiffs attempt to create an issue of fact on that point by simply rerouting the Court back to Purnell's testimony (ECF No. 26-1, 10) ("See pg. 147 of the Deposition of Marquito Purnell. Ex.C"). But Purnell did not identify any white telemarketer in her deposition, or anywhere else.
None of plaintiffs' myriad claims of disparate terms/conditions raise any inference of racial discrimination. No reasonable jury would find otherwise. Moreover, the evidence suggests that Aita did in fact respond to plaintiffs' concerns about the workplace. For example, Aita addressed Johnson's complaint that Jody Neal stole her commissions by paying both Johnson and Neal the commission. (ECF No. 24, Ex. 40, 55-56; ECF No. 24, Ex. 36, 18). Further, the one time that Aita recalls being told that the telemarketing room was cold, he turned the heat up. (ECF No. 24, Ex. 40, 83). Similarly, Aita testified that when Jody Neal informed him of complaints regarding bathroom sanitary supplies, the products were replenished. (ECF No. 24, Ex. 40, 137). Finally, when Johnson asked Aita for a lunch break, he told her that she could come in a half hour early to take a half hour lunch, (ECF No. 24, Ex. 35, 132), as other employees did in order to take unpaid lunch breaks. (ECF No. 24, Ex. 40, 128-30; ECF No. 26, Ex. 27;
Accordingly, summary judgment is granted on plaintiffs' claims of disparate terms and conditions of employment.
Under Title VII (and thus § 1981), employers may not "discharge any individual . . . because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a)(1). To prove a prima facie case of discriminatory termination, each plaintiff must show that: (1) she is a member of a protected class, (2) she suffered an adverse employment action (discharge), (3) she was performing his job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action, and (4) her position remained open or was filled by a similarly qualified applicant outside the protected class.
Moving to the next phase of the
In her deposition, King claims that she was terminated on several occasions—once in either 2004 or 2005, (ECF No. 24, Ex. 38, 67, 73), once in November 2007, (ECF No. 24, Ex. 38, 21, 78), and, finally, in 2010. (ECF No. 24, Ex. 38, 22). However, plaintiffs only point to the first termination in their arguments opposing summary judgment. (ECF No. 26-1, 8; ECF No. 30, 2, ¶2). King's claim regarding that first termination is barred under the applicable statute of limitations because it occurred prior to June 1, 2007. (
King claims that she was fired in November 2007 for calling someone on the "do not call list." (ECF No. 24, Ex. 38, 21, 78). Plaintiffs have not alleged, much less produced evidence, that anyone (white or minority) was hired to replace King after she was terminated. Even if they had, Aita had a legitimate, nondiscriminatory reason for terminating King: she called someone on the "do not call list." (ECF No. 24, Ex. 40, 152). King herself testified on two occasions that that is why she was terminated. (ECF No. 24, Ex. 38, 21, 78). Plaintiffs have not alleged, much less produced evidence, that the reason was pretextual. In any event, King came back to work at ESW in May 2010, after Joe called her and asked her to come back. (ECF No. 24, Ex. 38, at 22, 35;
King was laid off less than a month later (on June 6, 2010) because "I guess his company wasn't doing too good." (ECF No. 24, Ex. 38, 22;
Purnell was terminated on or about March 1, 2009. (ECF No. 24, Ex. 2, MSJ 532). She claims that Aita laid her off. (ECF No. 24, Ex. 34, 178). She believes that Alyssa Mullins was hired as a telemarketer in her place. (ECF No. 24, Ex. 34, 80-83, 208). Alyssa is white. (ECF No. 24, Ex. 34, 81). Alyssa was hired as a telemarketer on January 11, 2010. Defendants argue that the significant (over ten months) time gap between Purnell's lay off and Mullins' hiring defeats a prima facie showing. However, defendants cite no law for this proposition, and the Court's independent research revealed none. Defendants do not argue that Mullins did not in fact replace Purnell. Thus, Purnell has established a prima facie case of discriminatory termination.
However, defendants have cited a legitimate business reason for terminating Purnell at that time ("the dramatic decrease in sales over time, despite desperate attempts to succeed"). (ECF No. 27-1, 14). Plaintiffs have not shown that this reason was pretextual. Indeed plaintiffs do not make any pretext argument in favor of Purnell in specific. Plaintiffs' only pretext arguments are, again, that defendant's reason for terminating all plaintiffs was based on or motivated by race. (ECF No. 8, 5, ¶¶ 15-16). This conclusory argument, as applied to Purnell, fails entirely. Several factors demonstrate that Aita's decision to terminate Purnell was not race-based. First, Purnell herself testified that after Aita laid her off, he "call[ed] [her] right back" and offered her the position, but she refused. (ECF No. 24, Ex. 34, 178). Second, the raceneutrality of Purnell's termination is bolstered by the fact that Purnell was originally hired by Aita in 2003. (ECF No. 24, Ex. 34, 31-32).
Aita laid Turner off on or about March 1, 2009. (ECF No. 24, Ex. 2, MSJ 532),
Even if Turner had established a prima facie case of disparate termination, Aita has proffered a legitimate nondiscriminatory reason for terminating her, and plaintiffs have not shown that this reason was pretextual. Aita explained that he terminated Turner in order to transfer her duties to Layton and Johnson, who could perform the same duties (scheduling service maintenance appointments) during the daytime, when Aita would not have to pay commission. (ECF No. 24, Ex. 40, 126-28). In support of their pretext argument, plaintiffs argue that the real reason Aita terminated Turner was "to conceal the fact that the Defendant and his favorite employee [Tracy Layton] had been caught by . . . Turner, by not paying her proper commissions." (ECF No. 30, 2, ¶1). Plaintiffs are likely referring to Turner's claim that Aita terminated her the day after she confronted Layton about missing commissions. (ECF No. 24, Ex. 37, 23). However, even if it is true that Aita fired Turner for the reason plaintiffs allege, that reason is unrelated to race. It may have been harsh and improper, but is was not racially discriminatory.
Johnson was terminated around January 17, 2011. (ECF No. 24, Ex. 35, 28, 89). She does not claim that any white person was hired to replace her. Thus, she has not established a prima facie case of disparate termination. Even if she had, plaintiffs have not shown that Aita's proffered reason for terminating Johnson (the ultimate restructuring of the business to survive and the fact that "[t]he business of J&A does not conduct telemarketing, and therefore, the telemarketing services of Plaintiff Johnson were no longer needed, ECF No. 27-1, 14; ECF No. 24-1, 42) was pretextual. Johnson's pretext argument is limited to the following sentence: "[t]he Defendants' proffered reason for firing plaintiff Johnson, i.e., going out of business, was a pretext for race discrimination." (ECF No. 26-1, 12). That statement is a bald conclusion on the ultimate question, not evidence that a fact-finder can assess to determine pretext. In any case, what evidence there is suggests otherwise. First, many white employees, including white telemarketers, were terminated in 2010 before Johnson. Those employees include Joseph Connell (white salesperson); William Greenhawk (white salesperson); Charles Lowe (white salesperson); George Merritt (white salesperson); Kayle Phillips (white salesperson); Johns Serion (white salesperson); Alyssa Mullins (white telemarketer); Keith Schilling (white service technician); Christine Furniss (white employee in front office); and Jody Neal (white employee in front office). (ECF No. 24, Ex. 2, MSJ 530-31; ECF No. 24-1, 24, ¶ 39; ECF No. 24, Ex. 35, 148;
Because no reasonable jury would find that any plaintiff was terminated in a discriminatory fashion, summary judgment on plaintiffs' discriminatory termination claim is warranted.
To establish a prima facie case of disparate promotion, plaintiffs must show: (i) that they are members of a protected class; (ii) that they applied for promotion; (iii) that they were qualified for the promotion; (iv) that they were denied the promotion; and (v) that the position remained open or was filled by similarly qualified applicants outside the protected class.
Plaintiffs allege that defendants "unfair[ly] refus[ed] to make employment promotions available to Latasha Johnson and Marquito Purnell." (ECF No 26-1, 12). Defendants assert that King and Turner have no claims as to promotion (ECF No. 24-1, 18, ¶21), and plaintiffs do not dispute this. (
In the light most favorable to plaintiffs, Johnson asked Aita whether she could work in the front office in November 2010, when her hours were cut from 40 hours a week to 20 hours a week. (ECF No. 24, Ex. 36, 5-6).
Purnell claims that in 2008, an employee up front was fired
Indeed, no reasonable jury could conclude that any plaintiff was denied a promotion based on her race. Summary judgment on plaintiffs' discriminatory promotion claim is thus warranted.
In sum, the Court has carefully evaluated each of the dozens of factual assertions made by plaintiffs, and concludes that none evinces racial discrimination. Accordingly, the Court GRANTS defendants' motion for summary judgment on plaintiffs' § 1981 claims.
Even accepting the facts in plaintiffs' complaint as true, the complaint fails to state a claim for breach of contract.
Employment relationships in Maryland are presumed to be at will.
Mazaroff & Horn,
(ECF No. 8, 6, ¶ 22-26) (emphasis added). Plaintiffs have not alleged any of the requirements above at all, let alone with particularity. Accordingly, plaintiffs' breach of contract claims are DISMISSED for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
Finally, while plaintiffs have styled their request for a permanent injunction as a separate count, plaintiffs are only entitled to injunctive relief if they prove an underlying claim, which they have not.
In ruling on this motion, the Court has undertaken an arduous, painstaking examination of the evidence in the record. That examination was made exceedingly more difficult by plaintiffs' general statements of fact, untethered to a date, and unadorned by informative detail, such as person and place. A party is not entitled to proceed to trial, engaging the precious time of jurors and resources of the Court, by "throwing spaghetti against the wall and hoping something will stick." A nonmoving party must show that specific, material facts exist to create a genuine triable issue. Matsushite Elec. Indus. Co v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Courts have an affirmative duty to prevent factually unsupported claims and defenses from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).
Thus, for the reasons set forth above, the Court GRANTS defendants' motion for summary judgment on plaintiffs' § 1981 claims, and GRANTS defendants' motion to dismiss plaintiffs' breach of contract claim.
