Adams v. Giant Food, Inc., CIV.JFM-99-1244.

• Decision Date: 30 September 2002
• Docket Number: No. CIV.JFM-99-1244.,CIV.JFM-99-1244.
• Citation: 225 F.Supp.2d 600
• Parties: Linda J. ADAMS, et al., v. GIANT FOOD, INC., et al.
• Court: U.S. District Court — District of Maryland

225 F.Supp.2d 600

Linda J. ADAMS, et al., v. GIANT FOOD, INC., et al.

No. CIV.JFM-99-1244.

United States District Court, D. Maryland.

September 30, 2002.

JoAnn Patricia Myles, Largo, MD, for Plaintiffs.

Robert P. Watkins, Kumiki Gibson, Michael K. Ross, Michael P. Matthews, Mara W. Murphy, Andrew W. Rudge, Williams and Connolly LLP, Washington, DC, for Defendants.

MEMORANDUM

MOTZ, District Judge.

Plaintiffs Ronald Brown, Bernard Howard Jr., Gregory Sledge, Michael Elchin and Steven Stewart have brought suit against Giant Food, Inc. ("Giant"), Peter Manos, and Deborah Lilly alleging that they were discharged in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Specifically, Brown, Howard, and Sledge allege that they were discharged on the basis of race in violation of Title VII and section 1981. Additionally, all of the plaintiffs allege that Giant retaliated against them in violation of Title VII. The defendants have filed a motion for summary judgment on all counts and for attorneys' fees and costs. For the reasons that follow, I will grant the motion for summary judgment, however, I will deny the motion for attorneys' fees and costs.

I.

The plaintiffs are former employees of Giant who worked on the night crew at Giant's store in Crofton, Maryland. Plaintiffs Brown, Howard, and Sledge are African-American and Plaintiffs Elchin and Stewart are white. The collective bargaining agreement that covered the plaintiffs authorized two rest periods of fifteen minutes each during the first and second parts of the shift. (See Arbitrator Decision, Def. Ex. 6 at 3; see also Howard Statement, Def.Ex. 4(G).) There was an understanding between management and the night crew that they could combine their fifteen minute breaks into one 30 minute break. (See Arbitrator Decision, Def.Ex. 6 at 3.) In September 1998, George Barthel, who was then a district supervisor in the Loss Prevention Department, determined that the plaintiffs and other night shift employees were "stealing time" by overstaying their breaks and/or sleeping while on the clock. By reviewing tapes from the security cameras at the Crofton store, Barthel was able to determine that each of the plaintiffs overstayed his break on at least two occasions for approximately 40 minutes to an hour and 20 minutes. Additionally, each plaintiff signed a statement in which he admitted to overstaying his break.¹

As a result of their violations of the collective bargaining agreement and Giant's policy prohibiting stealing time, eight employees (five African-American and three white), including the plaintiffs, were suspended on approximately October 9, 1998 and then terminated on approximately October 14, 1998. (See Barthel Decl. ¶ 17-18, Def.Ex. 4; Loss Prevention Incident Report, Def.Ex. 4(J); Kapuscinski Decl ¶ 4, Def.Ex. 5.) Subsequently, the plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC").² The EEOC issued right-to-sue notices to the plaintiffs in February 1999 after determining that it was "unable to conclude that the information obtained establishes violations of the statutes." On April 30, 1999, the plaintiffs initiated this suit.³

II.

A.

The defendants argue that they are entitled to summary judgment on the claims of Plaintiffs Brown, Howard, and Sledge that they were discharged on the basis of race in violation of both Title VII and section 1981.⁴ Since there is no evidence of direct discrimination, the plaintiffs must present enough evidence to satisfy the McDonnell Douglas proof scheme. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to establish a prima facie case of discriminatory discharge, each plaintiff must establish: (1) that he is a member of a protected class; (2) that he was qualified for his job and his job performance was satisfactory; (3) that he was terminated; and (4) that other employees who are not members of the protected class were retained under similar circumstances. Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir.1995); Porter v. Nat'l Con-Serv, Inc., 51 F.Supp.2d 656, 659 (D.Md. 1998); see also Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999). If the plaintiff establishes a prima facie case, the burden shifts to the employer to advance a legitimate, nondiscriminatory reason for the adverse employment action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer successfully proffers such an explanation, the burden returns to the plaintiff to show that the proffered reason is a pretext for impermissible discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

The plaintiffs are unable to establish the fourth element of a prima facie case. The plaintiffs have offered no evidence that similarly situated non-African-American employees were retained under similar circumstances. In fact, the evidence establishes that Giant terminated both African-American and white employees, including the plaintiffs, who were caught overstaying their breaks and sleeping on the job. See, e.g., Logan v. Kautex Textron North America, 259 F.3d 635, 639 (7th Cir.2001) (finding the fourth element of a prima facie case not met by an African-American plaintiff where white employees were also terminated under the same circumstances).

The plaintiffs argue that they have established a genuine dispute of material fact because, according to them, white females were allowed to come to work late and had their time cards manipulated by managers to show that they were on time. This argument fails because the women who allegedly came to work late were not similarly situated to the plaintiffs. They did not work on the night-shift. They were supervised, unlike the night shift. There is no evidence to show that they came to work late by forty minutes to an hour and twenty minutes or that they were caught sleeping while they were on the clock. Finally, there is also no evidence that the alleged actions of these women resulted in the women working overtime hours for which they were paid extra. (See Arbitrator Decision, Def.Ex. 6 at 6, 12.) Simply put, the evidence clearly establishes that similarly situated employees who were caught overstaying their breaks and sleeping while on the job or engaging in similarly unacceptable behavior were treated the same regardless of race. Thus, the plaintiffs have failed to establish the fourth element of a prima facie case.

Even assuming the plaintiffs could establish a prima facie case of discrimination, their claims for racial discrimination still fail. Giant has offered a legitimate, nondiscriminatory reason for terminating the plaintiffs — specifically, overstaying breaks for large amounts of time and sleeping while on the job. See, e.g., Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259 (8th Cir.1996) (finding break abuse a legitimate nondiscriminatory reason for an adverse employment action). The plaintiffs argue that they have established that this reason is pretextual because other non-African-American employees were not terminated or punished for overstaying their breaks. Again, the plaintiffs point to various white female employees who were allegedly allowed to arrive to work late without suffering any adverse consequences. As discussed above, even assuming the plaintiffs' allegations are true, there is no evidence that the female employees were similarly situated to the plaintiffs and this argument, therefore, fails to establish a genuine dispute over pretext. Accordingly, I will grant summary judgment in favor of the defendants on the plaintiffs claims of racial discrimination.⁵

B.

Giant next argues that it is entitled to summary judgment on the claims of all plaintiffs that they were retaliated against in violation of Title VII. As an initial matter, I must determine whether each plaintiff exhausted his administrative remedies. "It is axiomatic that a claimant under Title VII must exhaust his administrative remedies by raising his claim before the EEOC." Sloop v. Mem'l Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir.1999). It is undisputed that Elchin and Stewart exhausted their administrative remedies. Howard and Sledge, however, did not exhaust their administrative remedies. It is at least significant, if not dispositive, that Howard did not check the box marked "Retaliation" in his EEOC charge. See, e.g., Auston v. Schubnell, 116 F.3d 251, 254 (7th Cir.1997); Thompson v. KN Energy, Inc., 177 F.Supp.2d 1238, 1254 (D.Kan. 2001).⁶ It is dispositive that Howard did not mention the word "retaliation" in his EEOC charge and did not make any allegation of retaliatory conduct. Additionally, although Sledge checked the box marked "Retaliation," there is no allegation of retaliation in his EEOC charge narrative. (See Sledge EEOC charge Def.Ex. 11.) Thus, summary judgment will be granted to Giant on the retaliation claims of Howard and Sledge. See, e.g., Perez v. MCI World Com Communications, 154 F.Supp.2d 932, 938 (N.D.Tex. 2001).

On the merits, none of the plaintiffs, including Howard and Sledge, is able to establish a prima facie case of retaliation. To prove a prima facie case of retaliation, an employee must show that: (1) he engaged in a protected activity; (2) the employer took an adverse employment action against him; and (3) a causal connection existed between the protected activity and the asserted adverse action. Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 271 (4th Cir.2001) (quoting Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir.2001)). order to establish that he engaged in protected activity, a plaintiff must show that he opposed an unlawful employment practice or participated in a Title VII investigation, proceeding, or hearing. Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir.1998). It is undisputed that the...