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finding sufficient evidence of pretext where employee "was fired for leaving work without permission" even though he "had never received a warning or criticism on his performance"
Summary of this case from Jaudon v. Elder Health, Inc.Opinion
CIVIL NO. CCB-99-1654
June 22, 2000
MEMORANDUM
Now pending before this Court is a motion by Defendant Coin Wrap, Inc. ("Coin Wrap") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Larry Street, an African-American male, filed a complaint alleging discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1963 (Count I), and two counts of common law wrongful discharge (Counts II and III). In an Order dated July 22, 1999 the Court dismissed all claims except Street's Title VII claims for termination and denial of sick leave. After the completion of discovery, Coin Wrap moved for summary judgment. This matter has been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons that follow, the Court will grant in part and deny in part the Defendant's motion.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that:
[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). In making this determination, the evidence of the party opposing summary judgment is to be believed and all justifiable inferences drawn in her favor. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997) (citing Anderson, 477 U.S. at 255). The non-moving party may not rest upon mere allegations or denials in her pleading, however, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248; Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir. 1991). The "mere existence of a scintilla of evidence in support of the plaintiff's position" is not enough to defeat a defendant's summary judgment motion. Anderson, 477 U.S. at 252.
BACKGROUND
On June 9, 1997, Street began working at Coin Wrap as a coin machine operator. (Ans., ¶ 9; Pl. Opp'n, Ex. 9) The job of a coin machine operator is to take bags of coins and deposit the coins into wrapping machines. (Aff. of Valerie Smith, Def. Summ. J. Mot., Ex. 5 ["Smith Aff."], ¶ 4) The wrapping machines wrap the coins and the coin machine operators then place the wrapped coins into boxes. (Id. at ¶ 5).
When Street began working for Coin Wrap, a Coin Wrap employee, Glenn Mittermeier, allegedly warned Street that Coin Wrap Vice-President Sally String-Wilson was prejudiced. (Dep. of Larry Street, Def. Summ. J. Mot., Ex. 1 ["Street Dep."], p. 93) According to Street, Mittermeier said that African-Americans at Coin Wrap were not getting the same treatment as whites. (Id. at p. 94) Mittermeier also told Street to watch what he did but that, if he did his job, he would be fine. (Id. at p. 93) As a Coin Wrap employee, Street had only limited contact with String-Wilson and admits that he never heard her make any racial comments. (Id. at pp. 94-97).
After a ninety day probationary period, Coin Wrap offered its employees certain benefits, including health insurance. (Pl. Opp'n, Ex. 5, p. 5) Although Street completed this probationary period, he was never offered health insurance. (Pl. Opp'n, p. 8 Ex. 9) A white employee, Susan Gaither, was also not given health insurance despite completing the probationary period. (Pl. Opp'n, Ex. 5, pp. 8-9) Gaither, however, was terminated only a few days after completing the probationary period. (Id.) Four white employees and one African-American employee were offered health insurance after completing the probationary period. (Id. at pp. 2-8) One white employee, Thomas Jankowski, received health insurance even though he worked for Coin Wrap less than ninety days. (Id. at pp. 9-10).
Street claims that on more than one occasion he asked for sick leave but Coin Wrap denied his request. (Id. at pp. 57-59) Street felt that this was unfair because other employees, who were white, were allowed time off. (Id. at p. 57) During his deposition testimony, however, Street repeatedly stated that he did not think that Coin Wrap denied him sick leave because of his race. (Id. at pp. 57, 59, 69-71) Instead, Street testified that he believed that he was denied time off because he was the lead person and Coin Wrap needed him to work. (Id. at pp. 58, 69-70) He also testified that the holidays were a busy time and that one of the other employees who was allowed to take sick leave had more serious health problems. (Id. at pp. 69-70).
After being shown his complaint on re-direct, Street stated that he believed he was denied sick leave because of his race. (Street Dep., pp. 226-27)
Street also alleges that his supervisor, Wayne Mittermeier, treated white employees differently than African-American employees. (Street Dep., pp. 99-100) Street admits that he never heard Mittermeier make comments of a racial nature. (Id. at p. 99) But, Street claims that Mittermeier refused to communicate with him and another African-American male employee and was more willing to help white employees with their problems. (Id. at pp. 102 105; Def. Summ. J. Mot., p. 11) Although Street admitted that Mittermeier was more willing to help some of the other employees simply because they were women, Street also testified that Mittermeier frequently conversed with Gary Churby, a white male employee. (Street Dep., pp. 102 105; Pl. Opp'n, Ex. 5).
Mittermeier treated Street differently in other ways. According to Street, Mittermeier did not like the fact that Street got along with the female employees. (Street Dep., p. 106) Mittermeier allegedly changed Street's job duties so that he could not work with the female employees. (Id.) Rosemary Roe, another Coin Wrap employee, agreed that Mittermeier occasionally treated Street different from other employees. Roe stated that "Wayne would out of the blue just take apart a machine and tell Larry to put it back together." (Dep. of Rosemary Roe, Pl. Opp'n, Ex. 12 ["Roe Dep."], p. 40) Roe does not know why Mittermeier would do this and cannot say whether it had anything to do with race. (Id.).
In November 1997, Coin Wrap's General Manager, Thomas Shutt, spoke with Street about a possible promotion to Crew Chief. (Street Dep., pp. 231-32; Def. Summ. J. Mot., Ex. 4, p. 7) Coin Wrap contends that String-Wilson, Wayne Mittermeier, and Shutt all discussed this promotion and then jointly agreed to offer the promotion to Street. (Aff. of Sally String-Wilson, Def. Reply, Ex. 4 ["String-Wilson Aff."], ¶¶ 3 5).
On December 2, 1997, Wayne Mittermeier informed Street that Street had to change his production line from pennies to dimes. (Pl. Opp'n, Ex. 8, p. 5) Though Street initially refused to change the production line, he eventually agreed. (Id.) According to Coin Wrap, Street displayed a negative attitude while making the change and finally stated that he should "just go home." (Id. at pp. 5-6) Street then left without notifying Mittermeier. (Id. at p. 6).
When an employee begins or ends a shift, they are supposed to call a certain number to clock in and out. (Id.) When Street left on December 2, he called this number to clock out. (Id.) Street did not, however, call the separate number that is supposed to be used when an employee wishes to call in sick or leave work early due to illness. (Id.) Street's use of the wrong number apparently was not known by Coin Wrap management at the time Street left. A separation notice states that Street "called the Corporate Office that he was leaving. He then just walked out of the building." (Pl. Opp'n, Ex. 9) The words "that he was leaving" were subsequently crossed out and replaced with the words "and clocked out." (Id.).
A handbook that the employees were given listed the two different numbers and the numbers were also posted on a wall near the phone. (Roe Dep., pp. 25-26)
A few hours after Street left, one of the security guards approached Roe. (Roe Dep., p. 30) The security guard told Roe that she should advise Street that Street had been fired and was not allowed back on the premises. (Id.) After Roe was informed that Street had been fired, she called Street and told him the news. (Id.) Street then called String-Wilson and explained that he had left work because he was sick. (Pl. Opp'n, Ex. 8, p. 6) String-Wilson questioned Street about his negative attitude in changing the line from pennies to dimes and told Street that there was a demand for dimes that day. (Id.) Street allegedly began yelling at String-Wilson. (Id.) At that point, Coin Wrap contends that String-Wilson informed Street that he was terminated and hung up the phone. (Id.) Street, on the other hand, states that he was never involved in an argument with String-Wilson. (Pl. Opp'n, Ex. 11, p. 6).
Roe was Street's fiancee. (Street Dep., p. 108)
Prior to the December 2 incident, Street had not received any warnings or reprimands about his job performance. (Pl. Opp'n, Ex. 8, p. 7) Coin Wrap has a progressive discipline policy that was developed, in part, by String-Wilson and communicated to Wayne Mittermeier. (Id. at pp. 4-5) Coin Wrap utilized this progressive discipline system with several white employees. Tonya (Lapp) Malcolm, Rosemary Roe, Valerie Smith, Richard Wisniewski, Brenda Gaither, and Thomas Jankowski were all white employees who received warnings for absenteeism before either resigning from the company or being discharged. (Pl. Opp'n, Ex. 5) In fact, many of these employees received numerous warnings before leaving Coin Wrap. (Id.) Other white employees similarly received warnings for various violations before being terminated. (Id.) Before resigning from Coin Wrap, Damon Jackson, an African-American employee, received a written warning for getting into an argument with a co-worker and walking off the job. (Id.) Derrick Hart, a part-time African-American employee, received a written warning for lack of production before being terminated for failing to meet production standards. (Id.).
Valerie Smith was discharged for abandonment of position and attendance violations. (Def. Reply, Ex. 6)
Jackson apparently resigned from Coin Wrap without notice. (Pl. Opp'n, Ex. 5) It is unclear whether Jackson ever returned to work after receiving his warning or whether his "resignation" occurred immediately after he walked off the job.
On May 3, 1999, Plaintiff filed a complaint in the Circuit Court for Baltimore City alleging discrimination in violation of the ADEA and Title VII as well as two counts of common law wrongful discharge. That case was removed to this Court on June 11, 1999. In an Order dated July 22, 1999 the Court dismissed all claims except Street's Title VII claims for termination and denial of sick leave. After the completion of discovery, Coin Wrap moved for summary judgment.
ANALYSIS I. Street's Denial of Sick Leave Claim
In his complaint, Street alleges that he was denied sick leave because of his race. Street's own deposition testimony, however, reveals that any denial of sick leave was not based on race. During Street's deposition, defense counsel asked him numerous times whether Street believed that he was denied time off because of his race. On each occasion, Street denied that race played a factor in the denial of sick leave. Rather, Street stated that he was denied sick leave because he was the lead person and Coin Wrap needed him to work. He also said that one of the other employees who was given sick leave had more serious health problems. Street emphatically denied that Coin Wrap refused to give him sick time because of his race.
Attempting to avoid this deposition testimony, Plaintiff argues that his own subjective impression of why he was fired is unimportant and that documents reflect that white employees were given sick leave. This additional evidence does not support a claim of discrimination. Plaintiff has produced written reports for three white employees warning the employees that they may be terminated for excessive absenteeism. Some of the warnings state that documentation is needed before the employee will be allowed to miss work. Plaintiff asserts that this evidence shows that these white employees were allowed sick leave as long as they had proper documentation.
Plaintiff's argument is without merit. First, Street has not produced any evidence that the white employees would have been given leave even with proper documentation. Though the warnings show that the proper procedure for receiving sick leave is to produce appropriate documentation, this does not mean that Coin Wrap would always grant sick leave to employees who had that documentation. Moreover, Plaintiff has not produced any evidence that he had appropriate documentation for the times that he requested leave. Finally, Street has not produced any evidence that the white employees allegedly allowed sick leave were also lead persons or were as important to the operations as Street. As discussed earlier, Street himself believed that Coin Wrap denied his leave requests because he was important to operations and the company needed him to work. Accordingly, because Street has failed to show that he was denied sick leave because of his race, the Court will grant Defendant's summary judgment motion with respect to Street's Title VII claim for denial of benefits.
Plaintiff's comparison of healthcare benefits is likewise unpersuasive and does not demonstrate that Street was denied sick leave because of his race.
II. Street's Termination Claim
Street also claims that he was terminated from his employment in violation of Title VII of the Civil Rights Act of 1964. Section 703(a) of Title VII states that it shall be unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (1994). Since Street does not present direct evidence of discrimination, his claim is subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973), and its progeny.See, e.g., Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227-28 (4th Cir. 1998).The Supreme Court has recently clarified the McDonnell Douglas proof structure. See Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663 (U.S. June 12, 2000). First, the plaintiff must establish a prima facie case of discrimination. See id. at * 5. To establish his prima facie case, the employee must present evidence sufficient to prove four elements: (1) that he is a member of a protected class; (2) that he was otherwise qualified for his position; (3) that in spite of his qualifications, he was terminated from his employment; and (4) that his position remained open to, or was filled by, similarly qualified applicants after his dismissal. See id.; see also Karpel, 134 F.3d at 1227-28.
If the plaintiff can establish his prima facie case, the burden shifts to the defendant to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Reeves, 2000 WL 743663, at * 5 (quotingTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). The defendant's burden is one of production, not persuasion, and the court should not evaluate the credibility of the defendant's explanation. See Reeves, 2000 WL 743663, at * 5. Once the defendant satisfies its burden, "the McDonnell Douglas framework — with its presumptions and burdens — [disappears] and the sole remaining issue [is] discrimination vel non." Id. (internal quotations omitted).
Although discrimination vel non remains the ultimate issue, the plaintiff "must be afforded the `opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Id. at * 6 (quoting Burdine, 450 U.S. at 253). "[T]he plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Reeves, 2000 WL 743663, at * 6 (quoting Burdine, 450 U.S. at 256). The plaintiff can use evidence establishing his prima facie case, and inferences properly drawn therefrom, to support a showing that the defendant's proffered reason is not believable. See Reeves, 2000 WL 743663, at * 6.
There may be circumstances where the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, and yet no rational juror could conclude that the defendant's action was discriminatory. See id. at * 9. But, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. "[O]nce the employer's justification has been eliminated, discrimination may well be the most likely explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. Therefore, by establishing a prima facie case and putting forth sufficient evidence to refute the employer's explanation for its decision, the plaintiff may be able to sustain his burden of proving intentional discrimination. See id.
Applying this framework to the facts of this case, Street has made a sufficient showing of discrimination to avoid summary judgment. First, Street has presented evidence necessary to establish his prima facie case: 1) he is an African-American employee, 2) he was being considered for a promotion and had not received any criticism prior to the incident in question, 3) he was terminated from his position, and 4) presumably, he was subsequently replaced by another applicant. Therefore, the burden of production shifts to Coin Wrap to articulate a legitimate, nondiscriminatory reason for its action. Coin Wrap has given three such reasons. According to Coin Wrap, "Street was terminated for leaving work without authorization, failing to follow company procedures, and screaming at Vice President String-Wilson during a phone conversation shortly after leaving work." Def. Reply, p. 11.
Since Coin Wrap has offered legitimate reasons for its actions, Street retains the burden of proving that he was the victim of intentional discrimination. In satisfying this burden, however, he can attempt to show that Coin Wrap's asserted reasons are unworthy of belief. Coin Wrap argues that Street was fired for dialing the wrong number when he left work. The evidence, however, suggests that Coin Wrap was not aware of Street's mistake until after the company terminated him. The separation notice originally stated that Street called company headquarters before leaving. Moreover, Coin Wrap has not explained how Mittermeier could have known which number Street had dialed. Based on this evidence, a reasonable juror could find unbelievable Coin Wrap's asserted justification that Street failed to follow company procedures.
A reasonable juror could also disbelieve Coin Wrap's asserted reliance on the "screaming" incident. A company obviously has the right to terminate an employee for yelling at the company's Vice President. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (employer's justification that it fired employee for yelling at co-owner was a legitimate, nondiscriminatory reason for the termination). The problem with Coin Wrap's justification, however, is that Street was already terminated before the alleged yelling incident occurred. Street did not call String-Wilson until after Roe informed him that he had been terminated. Since Coin Wrap had already terminated Street before he called String-Wilson, Coin Wrap cannot now use that phone call as a justification for the termination.
Again, Street denies that this incident ever occurred.
Finally, the Court concludes that a reasonable juror could reject Coin Wrap's contention that Street was fired for leaving work without permission. By all accounts, Street was a model employee before this incident. Unlike many of the employees at Coin Wrap, Street had never received a warning or criticism on his performance. In fact, Street's promotion seemed imminent.
Despite Street's success, he was terminated after one negative incident. Hart, another African-American employee, was fired after receiving only one warning. Several white employees, on the other hand, received numerous warnings and reprimands before being terminated. Although Street's actions were different from the violations committed by the white employees, a reasonable juror could view as discriminatory Coin Wrap's inconsistent use of its progressive discipline policy. See Bell v. Conopco, Inc., 186 F.3d 1099, 1102 (8th Cir. 1999) (reasonable juror could view as evidence of discrimination employer's failure to follow progressive discipline policy); Wilds v. United States Postmaster Gen., 989 F. Supp. 178, 185-86 (D.Conn. 1997) (even though plaintiff was the only employee to fail a drug test, summary judgment inappropriate when progressive discipline policy used for other types of offenses).
Street's termination is consistent with Glenn Mittermeier's warning to Street when Street started at Coin Wrap. As long as Street did his job, he was fine. But, as soon as Street made one mistake, Coin Wrap terminated him.
Other evidence supports a finding of discrimination. Street testified that Wayne Mittermeier treated him in a manner different from the way Mittermeier treated white employees. Roe confirmed this testimony. Roe testified that Wayne Mittermeier used to take a machine apart, for no apparent reason, and then force Street to put the machine back together. While Roe was not sure why Mittermeier did this, a reasonable juror could interpret these actions as demonstrating a racial bias. See Reeves, 2000 WL 743663, at * 12 (stating that the fact that the decision maker had previously treated the plaintiff differently from other employees could indicate discrimination). Considering plaintiff's prima facie case, the fact that he has presented sufficient evidence to discredit Coin Wrap's asserted reasons, and the evidence of Wayne Mittermeier's disparate treatment of Street, the Court concludes that Street has raised a triable issue as to the reasons for his termination. Accordingly, the Court will deny Coin Wrap's motion for summary judgment with respect to Street's Title VII claim for discriminatory termination.
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. Defendant Coin Wrap's motion for summary judgment on Plaintiff Street's Title VII claim for discriminatory denial of sick leave is granted;
2. Defendant Coin Wrap's motion for summary judgment on Plaintiff Street's Title VII claim for discriminatory termination is denied; and
3. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.
Catherine C. Blake United States District Judge