Cavaliere v. Am. GFM Corp., ACTION NO. 2:11cv649
| Decision Date | 05 December 2012 |
| Docket Number | ACTION NO. 2:11cv649 |
| Parties | PATRICK CAVALIERE, Plaintiff, v. AMERICAN GFM CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Plaintiff filed this pro se action claiming employment discrimination. Defendant moved for summary judgment. Plaintiff was advised of his right to respond and that he "must identify all facts stated by Defendant with which [he] disagrees and must set forth [his] version of the facts by offering affidavits (written statements signed before a notary public and under oath) or by filing sworn statements (bearing a certificate that it is signed under penalty of perjury); . . . . " D.E. # 17. Plaintiff did oppose the summary judgment motion, but he offered no affidavits or sworn statements. For the reasons set forth below, the court will grant Defendant's motion for summary judgment.
Summary judgment is appropriate when "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56{a). Facts are construed in the light most favorable to the non-movant,and the court may not make credibility determinations or weigh the evidence. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Edell & Assort., P.C. v. Law Offices of Peter G. Angelos, 264 F.3d 424, 435 (4th Cir. 2001). Nonetheless, there must be Anderson, 477 U.S. at 249-50 (internal citations omitted). Conclusory statements, unsupported assertions, and "self-serving opinions without objective corroboration" are not sufficiently probative to survive summary judgment. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).
Plaintiff did not comply with applicable rules governing summary judgment motions. Under both Fed. R. Civ. P. 56(c) and this court's Local Rule 56, Plaintiff was required to identify specifically the facts proposed by the Defendant with which he disagreed and to cite evidentiary support for the disagreement. Plaintiff did not do so. Instead, he offered his own version of the alleged facts, without citing any record evidence. Plaintiff also attached some documents to his oppositions, most of which are the same documents relied upon by Defendant. Plaintiff did not file any affidavits, statements, or deposition testimony. He did include a purported "Oath" in his pleadings opposing summaryjudgment(D.E. ## 18 and 19), but the "Oaths" do not state that the statements in the pleadings were made under penalty of perjury. Thus, Plaintiff has not produced any evidence that the court may technically consider. Therefore, the court accepts as true all the facts offered by Defendant. D.E. # 16 at 7-12. Under these facts, summary judgment is clearly appropriate.
Nevertheless, in deference to Plaintiff's pro se status, the court has reviewed Plaintiff's submissions to identify any factual disagreements that would have been material if they had been presented properly. Plaintiff clearly does disagree with some of Defendant's assertions. Yet, Plaintiff does not dispute the facts that are material to the dispositive issues in this case. See Anderson, 477 U.S. at 248 (). The dispositive facts are set forth below.
Plaintiff was hired by Defendant as a temporary contract engineer in 2006 and as a permanent Design Engineer in 2007. Plaintiff's job title never changed. He was evaluated in 2008 and 2009, receiving both times a composite score of 2.5 on a scale of 1-5. Plaintiff contends he was never "written up" formally (although the court has no evidence of Defendant's policies with regard to "write-ups") and that he had received pay raises andbonuses each year. Plaintiff does not dispute, however, that the raises and bonuses were declining over the course of his employment and in every case but one1 were less than his coworkers on both an absolute and percentage of salary basis.
Plaintiff's supervisor was Brad Fair. Fair repeatedly had complained both orally and in writing about Plaintiff's job performance. Multiple documents dating from 2009 through 2010 reflect Defendant's dissatisfaction with Plaintiff's mistakes and technical expertise. In a March 2010 email, Fair specifically complained about Plaintiff's technical performance and concluded the email with the following warning, "Bottom line, you must vastly improve in this area or you will not remain at AGFM." D.E. # 16 Ex. 5 at 2. Plaintiff does not dispute that he made mistakes or missed deadlines, but he just claims they were "normal" mistakes as he was learning the job or that they were a result of understaffing and tight schedules. He presented no evidence, however, about error rates or the errors of other employees. He did not counter the specific evidence offered by Defendant about the nature of and impact of his mistakes. Fair Aff. (D.E. # 16 Ex. 6). Plaintiff does not dispute that he intentionally misrepresented his engineering expertise when applying for the job. Instead of the seventeen years of engineering experience he claimed on hisapplication, Plaintiff had only twenty-six months of engineering experience.2
On August 25, 2010, Plaintiff was involved in a workplace altercation with another employee during which Plaintiff yelled at the other employee. Immediately thereafter, Plaintiff was told to report to a meeting to discuss his unprofessional conduct. Plaintiff asked to speak with Fair before the meeting. Plaintiff then disclosed to Fair and the manager in training, Chester Chen, that he was undergoing treatment for depression. Prior to this time, Plaintiff had not disclosed any mental or physical illness to his employer or any co-worker. Defendant requested that Plaintiff be evaluated by a physician and cleared for working. Plaintiff's treatment provider opined on August 31, 2010, that Plaintiff could work without restriction. She did not state that any accommodation was needed, and Plaintiff did not subsequently request any accommodation. After the altercation incident, Plaintiff does not dispute that his depression or his treatment for depression was not discussed again. Defendant did not discipline Plaintiff in connection with the incident.
Chen began reviewing Plaintiff's work in the summer of 2010 in connection with his upcoming promotion. On October 15, 2010, Chensent Fair an email, in which he recommended that Plaintiff be discharged for unsatisfactory work performance. On October 21, 2010, Plaintiff was terminated for the articulated reasons of procrastination and lack of productivity, technical incompetency, and an unacceptable level of mistakes. Plaintiff timely filed a charge of discrimination with the EEOC, asserting that he was wrongfully terminated. He did not claim a failure to accommodate a disability or retaliation. In this litigation, Plaintiff stipulated that he was discharged for "performance issues." Final Pretrial Order at 2, 11 (D.E. # 25).
Plaintiff's Amended Complaint asserts three counts: Wrongful Termination, Failure to Accommodate, and Retaliation. The retaliation claim, Count III, was dismissed by Consent Order dated November 27, 2012. This court has jurisdiction only over claims first presented to the EEOC. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002); Davis v. N.C. Dep't of Corr., 48 F.3d 134, 138-40 (4th Cir. 1995). "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (quoting Evans, 80 F.3d at 963). Here, Plaintiff presented only a claim of wrongful termination to theEEOC. Plaintiff's EEOC Charge mentions only his termination, and Plaintiff specified that the only date of discrimination was the date of his termination, October 21, 2010. Further, Plaintiff admits he had not requested any accommodation on the basis of any disability prior to his termination. Pl.'s Dep. Tr. at 307-08 (D.E. # 22, Ex. 13 at 2-3). Accordingly, Count II, which alleges a Failure to Accommodate, is DISMISSED.
Plaintiff did present a claim of wrongful termination to the EEOC. Plaintiff contends that he was terminated because of a disability. To establish a prima facie case of wrongful termination under the ADA, "a plaintiff must show that (1) []he was a 'qualified individual with a disability'; (2) []he was discharged; (3) []he was fulfilling h[is] employer's legitimate expectations at the time of discharge; and (4) the circumstances of h[is] discharge raise a reasonable inference of unlawful discrimination." Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 n.9 (4th Cir. 2004).
Defendant contends that Plaintiff has not established the third element of a prima facie case, specifically that he was performing his job duties at a level that met the employer's legitimate expectations. Plaintiff contends his performance was adequate, but he has not introduced evidence that counters Defendant's evidence of its dissatisfaction with his performance. Specifically, Defendant introduced an affidavit by Fair thatdetails numerous problems and the negative impacts of these problems. Fair attested that Plaintiff "never came close to th[e] level of performance" expected for a senior level engineer. Fair Aff. ¶ 23 (D.E. # 16 Ex. 6). Defendant introduced documents evidencing Defendant's dissatisfaction with Plaintiff that predated the disclosure of Plaintiff's condition....
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