MARVIN J. GARBIS, District Judge.
The Court has before it Defendant's Motion for Summary Judgment [Document 9] and the materials submitted relating thereto. The Court has held a hearing and had the benefit of the arguments of counsel.
As discussed herein, Plaintiff Judy Harris ("Harris") was fired by her former employer, Defendant the Bank of Delmarva (the "Bank") on July 1, 2013.
On July 19, 2013, Harris filed an Intake Questionnaire with the United States Equal Employment Opportunity Commission ("EEOC") asserting that she had been discriminated against "because of my age."
By the instant Motion, the Bank seeks summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
A motion for summary judgment shall be granted if the pleadings and supporting documents "show[] that 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).
The well-established principles pertinent to summary judgment motions can be distilled to a simple statement: The Court may look at the evidence presented in regard to a motion for summary judgment through the non-movant's rose-colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law.
Thus, in order "[t]o defeat a motion for summary judgment, the party opposing the motion must present
When evaluating a motion for summary judgment, the Court must bear in mind that the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'"
Harris began working for the Bank as a teller in 2003 when she was 56 years old. Harris Dep. 6:20-7:9. In 2005, she was promoted to Customer Service Representative ("CSR").
Harris primarily worked at the Bank's East Salisbury branch.
During the relevant time, all but one of the permanent employees at the East Salisbury branch were Caucasian.
Harris and Anderson did not get along. In Harris's 2012 Performance Appraisal, East Salisbury branch manager Timothy Boston ("Boston") rated Harris 70 out of 100 points in Working Relationships, a 19-point drop from the previous year.
In Anderson's 2012 Performance Appraisal, Boston rated Anderson 70 out of 100 points in Working Relationships. Boston wrote that Anderson "[n]eeds improvement on working with Judy Harris. They often do not get along as they should. Works well with everyone else at Branch." [Document 11-8] at 2. As to Anderson's overall performance, Boston wrote that "[t]here is work that needs to be done with communication to all employees. Sometimes there are communication issues with Judy Harris that need to be worked on constantly."
Occasionally, on Saturdays, Harris would fill in at the Bank's Eastern Shore Drive branch. Harris Dep. 8:5-21. When Harris filled in at the Eastern Shore Drive branch, a branch manager was not present, so Harris as "the CSR was the highest ranking person there."
One Saturday in early 2013 — sometime between January and Marsh — Harris was filling in at the Eastern Shore Drive branch. Also present that day were Eastern Shore Drive branch employees Evelyn Moore ("Moore"), Jan Hearn ("Hearn"), and Rebecca Meade ("Meade").
On June 13, 2013, Anderson transferred from the East Salisbury branch to the Eastern Shore Drive branch "as her new permanent location." Hill Aff. ¶ 3. Moore then reported the comments Harris had made about Anderson earlier that year to the Eastern Shore Drive branch manager. Moore wrote that she did not report the comments earlier because she "did not want to cause trouble for [Anderson]." [Document 9-7] at 2. However, after Anderson transferred out of the East Salisbury branch, Moore "felt [she] should come forward and report this . . . inappropriate behavior by another [Bank] employee."
The Eastern Shore Drive branch manager informed Angela Hill ("Hill"), the Bank's Director of Human Resources, who contacted Lawrence Dernulc ("Dernulc"), the Bank's Senior Vice President for Branch Operations. Hill Dep. 29:16-30:1. Hill directed Moore, Hearn, and Meade to submit written statements describing their conversation with Harris.
Moore, Hearn, and Meade submitted statements dated June 24, 2013.
Moore wrote:
[Document 9-7] at 1-2.
Hearn wrote:
[Document 9-8] at 1.
Meade wrote:
[Document 9-9] at 1.
On July 1, 2013, Harris was called into a meeting with Hill and Dernulc. Harris Dep. 15:11-21. She was not informed of the subject matter of the meeting in advance.
Dernulc testified at his deposition that he "gave [Harris] a choice of she could resign, she could retire, or [the Bank] could say [it] terminated her." Dernulc Dep. 38:4-9. Hill and Dernulc do not recall which option Harris chose.
Harris applied for unemployment benefits with the State of Maryland, Department of Licensing and Regulation, Office of Unemployment Insurance ("DLLR"), but her request was denied based upon a finding that her use of the "`N word' constitute[d] gross misconduct." [Document 9-6] at 4;
[Document 9-6] at 3.
Harris was 66 years old at the time of her termination. [Document 11-6] at 1. However, as disused herein, Harris has presented no evidence adequate to enable a reasonable jury to find that her age had anything whatsoever to do with her being fired.
The Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621
Thus, Harris must present a
Accordingly, Harris bears the ultimate burden of proving that the Bank discriminated against her based on her age.
To present a
(4) following her termination, the position remained open or she was replaced by a substantially younger individual with comparable qualifications.
29 U.S.C. § 631(a);
Harris has failed to present a
[Document 9-6] at 3 (emphasis added).
Further, at her deposition, Harris acknowledged that use of the "N word" in the workplace is inappropriate and could result in an employee's termination, and that the Bank had a legitimate expectation that a CSR would not use such language at work:
Harris Dep. 30:21-31:2, 32:8-11, 70:18-71:1.
Harris contends that the Court, in regard to the
Of course, an employer's expectations cannot be "a `sham designed to hide the employer's discriminatory purpose.'"
The Court finds that no reasonable jury could find that Harris was meeting the Bank's legitimate expectations by virtue of her use of the "N word" to refer to a subordinate during a workplace conversation.
The Bank has articulated a legitimate non-discriminatory reason for Harris's termination — use of the "N word" in the workplace to refer to another employee.
The Bank's "burden at this stage `is one of production, not persuasion; it can involve no credibility assessment.'"
Hill testified at her deposition that she recommended that Dernulc terminate Harris because "[Harris] said [the "N word"] more than once in front of people she hardly knew, and to subordinates at that time. . . . And it's not professional.. . . [I]t's gross misconduct." Hill Dep. 37:4-14. Dernulc, the primary decision maker with ultimate authority over the decision to terminate Harris, testified that "using the `N' word. . . cannot be tolerated in the workplace." Dernulc Dep. 17:20-18:1, 26:8-13. He was concerned that Harris's use of the "N word" "violated [the Bank's] policy regarding race, gender, sex."
If Harris had presented a
"The burden to show pretext and discriminatory intent is higher on an age discrimination claim than it is on a race-based discrimination claim.
In her Response to the instant Motion, Harris presents five meritless contentions to try to support her position that the Bank's proffered reason for her termination was a pretext for age discrimination.
The assertion that there were "changed stories" is based upon statements of the Bank to the effect that Harris had resigned or retired, without expressly stating that Harris had been fired. This "sugar coating" was for the benefit of Harris and was not, in any way, a variation regarding the reason for Harris's termination.
In fact, Harris herself told prospective employers that she had retired. When asked at her deposition if she "preferred people saying that you retired as opposed to you were fired for using the N word," Harris responded "Yes." Harris Dep. 79:19-21, 80:4-7.
There is no evidence that the Bank changed its position regarding the reason for Harris's termination.
As "explained" by counsel for Harris at the hearing, his position is that the Bank, being a purportedly racist organization, would not have terminated an employee for using the "N word" to refer to an African-American and that, therefore, Harris must have fired her because of her age. There is no evidence that, rationally viewed, supports counsel's unwarranted accusation that the Bank was racist.
Harris's counsel's purported use of "statistics" is utterly baseless.
Counsel's reliance upon so-called "inconsistent stories" is completely baseless. As stated at the hearing on the instant Motion, Harris seeks to rely on purportedly "inconsistent" statements regarding George Cramer and Nancy Elliott.
As to George Cramer, Harris stated in her Response to the instant Motion:
[Document 11] at 18-19.
The two statements are not at all inconsistent. The socalled "inconsistent" story, according to Harris's counsel, is the statement from Hill at her deposition that "[George Cramer] moved to Florida." Hill Dep. 64:14-18. However, Hill clarified in her affidavit that "Mr. Cramer informed the Bank that he was resigning . . . after less than six months' employment with the Bank. He told me he was moving to Florida. I was later told. . . that he left the Bank because he was ill with Parkinson's disease." Hill Aff. ¶ 3.
Moreover, the evidence includes a record of the Bank that states "5/16/2013 ([George Cramer] resigned due to illness)." [Document 11-6] at 1. The evidence also includes a letter from Mr. Cramer that says "I am resigning from The Bank of Delmarva. .. . I can say that this bank and all of its employees . . . is one of the best group [sic] of people I have ever worked with." [Document 13-6].
As to Nancy Elliott, Harris stated in her Response:
[Document 11] at 19.
In her affidavit,
Elliott Aff. ¶ 6. The evidence also includes a letter from Ms. Elliott dated August 15, 2011, which states that "[a]fter 25 years with the bank, I have decided to retire." [Document 13-5].
The purported inconsistent story, according to Harris's counsel, is the Bank saying that Elliott retired, when Elliott stated in her affidavit that "if Hill had acted differently," she might have not retired as early. There is no inconsistency.
No reasonable jury could conclude, based on the evidence presented, that there were "inconsistent stories" in the Bank's explanations for Mr. Cramer's and Ms. Elliot's leaving their employment with the Bank.
The evidence establishes that management of the Bank was not informed about the "N word" incident until June 2013, that employees submitted statements regarding the incident on or about June 24, 2013, and that Harris was terminated on July 1, 2013. There is no basis whatsoever for a contention that there was any "delay" by the Bank that could affect the credibility of the Bank's articulated reason for firing Harris, a reason that, indeed, Harris admits existed.
The "events" referred to in Harris's Response include the alleged inconsistent statements discussed above and a meeting that Harris purportedly had at the Bank with Boston, the former manager at the East Salisbury branch, on June 28, 2014. Harris says that at this meeting, Boston told her to "watch your back." Harris Aff. ¶ 5.
The undisputed evidence establishes that Boston was no longer working for the Bank on that date and could not have had the purported meeting.
At her deposition, Harris acknowledged that she could not identify any facts, circumstances, or documents, to support her contention that was terminated because of her age:
Harris Dep. 67:3-13, 68:14-69:5.
The Court concludes that Harris has not presented evidence adequate to permit a reasonable jury to find that the Bank's decision to terminate her on July 1, 2013 for her use of the "N word" in the workplace earlier that year was a cause, let alone the "but for" cause, of her termination.
For the foregoing reasons:
1. Defendant's Motion for Summary Judgment [Document 9] is GRANTED.
2. Defendant's Motion for Sanctions [Document 10] remains under consideration.
SO ORDERED.
Am. Compl. ¶ 10.
However, Harris has not addressed any disparate treatment claim in her Response to the instant Motion, and, therefore, has abandoned it.
Harris testified at her deposition that the Amended Complaint refers to comments that three Bank tellers made about Amanda, another teller. Harris stated that those tellers complained "it seemed like [Amanda] could come in late and she wasn't being reprimanded for being late . . . [a]nd the girls were getting upset about it." Harris Dep. 75:12-17, 76:6-13. When asked if she "believe[d] that voicing this opinion about [Amanda] being late is comparable to referring to . . . an African-American, as a Nigger," Harris responded: "I don't know."
Harris also contends that there is no causal connection between her use of the "N word" at work in early 2013 and her termination in July 2013. She relies upon
Harris's argument "that her one crude remark six months earlier [could not have] anything to do with her [job] performance six months later," [Document 11] at 11, overlooks the fact that Bank management was not made aware of Harris's use of the "N word" at work until Moore informed a branch manager at the end of June 2013 and that Harris subsequently was terminated some two weeks thereafter. Hill Dep. 27:2-14.
