Etefia v. East Baltimore Community Corp.

• Decision Date: 25 March 1998
• Docket Number: No. Civ. L-95-1948.,Civ. L-95-1948.
• Citation: 2 F.Supp.2d 751
• Parties: Ken ETEFIA, Plaintiff, v. EAST BALTIMORE COMMUNITY CORPORATION, Defendant.
• Court: U.S. District Court — District of Maryland

2 F.Supp.2d 751

Ken ETEFIA, Plaintiff, v. EAST BALTIMORE COMMUNITY CORPORATION, Defendant.

No. Civ. L-95-1948.

United States District Court, D. Maryland.

March 25, 1998.

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Godson M. Nnaka, David G. Harlow, Baltimore, MD, for Plaintiff.

Paul D. Shelton, Paula J. McGill, Piper & Marbury, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

GAUVEY, United States Magistrate Judge.

Plaintiff, a former employee of the defendant East Baltimore Community Corporation ("East Baltimore"), brought this suit asserting multiple counts of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended and the state claim of intentional infliction of emotional distress. Plaintiff claims harassment based on national origin, failure to promote due to national origin and sex, and termination due to national origin. Pending before this Court is defendant's Motion for Summary Judgment of the federal and state claims.

Factual Background¹

East Baltimore hired plaintiff as a counselor on February 3, 1991. (Paper No. 48, Ex. 2). He interviewed for the position with Dr. Nancy Lowe-Connor ("Dr.Connor"), Muriel Brothers ("Ms.Brothers"), and Annie Dutton ("Ms.Dutton"), and was hired by Dr. Connor. (Paper 48, Ex. 1 no. 54-55). Plaintiff provided counseling to drug-addicted clients, including follow-up treatment. (Paper 48, Ex. 1 no. 65). During plaintiff's three-year tenure he worked under three different supervisors: Ms. Dutton, Genevieve McDade ("Ms. McDade") and George Stewart ("Mr.Stewart"), in that order.

Plaintiff asserts that Ms. Dutton was initially enthused with his hire because he was African. (Paper 48, Ex. 1, no. 77). At some point he believed that Ms. Dutton was forging client signatures, and confronted her with his belief. (Paper 48, Ex. 1, no. 82). Plaintiff claims his relationship soured with Ms. Dutton after this confrontation and he requested a transfer to Ms. McDade on August 26, 1991. (Paper 48, Ex. 1, no. 85). After working with Ms. McDade for a short time, plaintiff asserts that Ms. McDade stated she would "memo him right out of a job." (Paper 48, Ex. 1, no. 88). As to why she may have said this on the particular occasion, no explanation is given. He also testified that Ms. Brothers said around this time that he was "in for a lot of difficult time [sic] on the job." (Paper 48, Ex. 1, no. 92-93). While the staff perceived itself as "Afro-centric," plaintiff reports that Ms. McDade nonetheless made comments such as Africans "sold us into slavery." (Paper 48, Ex. 1, no. 92-93) and "Africans get kind of cocky with clients." (Paper 48, Ex. 1, no. 126). He also states that unidentified individuals said on more than one occasion that he "wasn't black." (Paper 48, Ex. 1, no. 102-103).

Plaintiff accuses Dr. Connor, the supervisor who both hired and fired him, of making the comments "this is a female-run program, we're smart and we're going to keep it that way," "Africans come over here and want to get these jobs" and "Africans are inferior to African-Americans" during his promotional interviews, sometime in January or February of 1994. (Paper 48, Ex. 1, no. 201). Plaintiff confronted Dr. Connor about her remarks but she denied them. (Paper No. 48, Ex. 1, no. 268-69). He heard someone, from a group of people that included Ms. Dutton and Ms. McDade, make the comment "look at the African" around the time he was transferred from Ms. Dutton to Ms. McDade. (Paper 48, Ex. 1 no. 203-204). The comment "look at Kunta Kinte" allegedly came from the lunchroom when plaintiff walked by (Paper 48, Ex. 1, no. 206), and Mr. Stewart allegedly said "go home African, we don't want you here." (Paper 48, Ex. 1, no. 207). Ms. McDade or Ms. Dutton is reported to have said "go home witch doctor" towards the end of 1993. (Paper 48, Ex. 1, no. 208). He stated in his deposition that additional comments about his heritage "kept going on and on." (Paper 48, Ex. 1, no. 210).

Plaintiff believes that one unnamed billing clerk flirted with him; but otherwise admits that no one else behaved in a sexual way towards him, and that his female supervisors were "mother figures." (Paper at 48, Ex. 1, no. 120-122).

A number of memos document plaintiff's poor work performance. See, e.g., Paper 48, Exs. 3 & 6. Plaintiff submitted forms late (Paper 48, Ex. 1, no. 80-81) and allegedly mistreated at least one client by ordering her out of his office, among other things. (Paper 48, Ex. 1, no. 170-72). Plaintiff maintains there is an inconsistency between his actual job evaluations and these memos. (Paper 48, Ex. 1, no. 94). He also maintains that the quality of his work did not decline from the time he was hired until the termination meeting of April 15, 1994. (Paper 48, Ex. 1, no. 181).

Plaintiff sought promotions to supervisory positions on three occasions. (Paper 48, Ex. 1, no. 177). He asserts that the first position was filled with someone with less education, contrary to policy, although he acknowledges the promoted individual possessed more seniority. (Paper 48, Ex. 1, no. 178). He also asserts that the second position he sought initially did not require a psychology degree (which he does not possess) until he expressed on interest in the position. (Paper 48, Ex. 1, no. 148). The person who ultimately filled the position possessed a psychology degree. Finally, he asserts the third position he sought was "frozen" and never filled. (Paper 48, Ex. 1, no 179).

Plaintiff was called to a meeting with Dr. Connor, Ms. Brothers and Mr. Stewart regarding his performance on April 15, 1994. (Paper 48, Ex. 1, no. 175). Dr. Connor terminated plaintiff on April 29, 1994 (Paper 48, Ex. 1, no. 154). Plaintiff filed a discrimination charge on June 24, 1994 with both the Equal Employment Opportunity Commission and the Maryland Commission on Human Relations. (Paper 48, Ex. 5).

After his termination, plaintiff visited a mental health professional once "on advice of a doctor," (Paper 48, Ex. 1, no. 189), worried about providing for his college-age son, (Paper 48, Ex. 1 no. 192), and worked various "menial" jobs for a year until securing permanent employment. (Paper 48, Ex. 1, no. 192-93).

Argument

Defendant moves for summary judgment on all claims on several grounds. First, defendant asserts that any claims predating August 24, 1993 (which includes plaintiff's failure to promote claim) do not conform to the filing requirements of Title VII and are therefore untimely. Second, defendant argues that plaintiff cannot claim harassment because the alleged harassment plaintiff faced was neither sufficiently severe or pervasive to cause an intolerable working environment, nor was he was treated differently than other employees based on his sex or national origin. Third, as a matter of law, defendant asserts plaintiff's unlawful termination claim may not proceed because the plaintiff was terminated for documented poor work performance, an exercise of business judgment, not reviewable by this Court because he was terminated by the same person who hired him, disproving any discriminatory intent. Finally, defendant asserts that the facts do not establish the tort of intentional infliction of emotional distress under Maryland law.

Plaintiff, in his response to defendant's motion, first asserts that timeliness of claims is determined by the occurrence of the "last act" of an unlawful employment practice, and since the final act of discrimination occurred after August 23, 1993, all claims are timely. Second, plaintiff contends that the evidence of numerous derogatory remarks regarding his national origin demonstrated severe and pervasive harassment as a matter of law, and the discrimination evidenced by these remarks resulted in promotion denials and ultimate termination. Third, plaintiff asserts his case is distinguishable from cases that hold that discrimination is improbable when the person who hires plaintiff also fires plaintiff; and that the allegations of poor work performance are pretextual and that there is a genuine issue of material fact as to whether his work performance or discriminatory animus led to his termination. Finally, plaintiff claims there is sufficient evidence in the record establishing all elements of Maryland's tort of intentional infliction of emotional distress.

Standard of Review

Summary judgment is appropriate 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 judgment as a matter of law. Fed.R.Civ.P. 56(c). Thus, summary judgment is appropriate when it is clear that no genuine issue of material fact remains unresolved and an inquiry into the facts is unnecessary to clarify the application of the law. Haavistola v. Community Fire Co. of Rising Sun, 6 F.3d 211, 214 (4th Cir.1993).

The moving party has the burden of initially showing the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Then the burden shifts to the nonmoving party to "make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When a nonmoving party fails to make such showing, summary judgment is appropriate because the nonmoving party would be unable to establish an element of her claim at trial. Id.

To survive summary judgment, the nonmoving party must produce "specific facts showing that there is a genuine issue for trial," and may not rest upon the "bald assertions of his pleadings." Fed.R.Civ.P. 56(e). Summary judgment is inappropriate if a reasonable jury could find for the nonmoving party at trial, Anderson v. Liberty Lobby, 477 U.S....