Mandengue v. ADT Sec. Sys., Inc., Civil Action No. ELH-09-3103

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen Lipton Hollander
Docket NumberCivil Action No. ELH-09-3103
Decision Date14 March 2012


Civil Action No. ELH-09-3103


Date: March 14, 2012


Eleonore Mandengue, plaintiff, filed suit against ADT Security Systems, Inc. ("ADT"), defendant, in November 2009.1 She alleged unlawful discrimination with respect to her employment and subsequent termination from her position as a residential resale representative, or "resale rep," selling home security system service. In particular, plaintiff alleged discrimination on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. §§ 2000e et seq. (Count I); discrimination on the basis of race under 42 U.S.C. § 1981 (Count II); discrimination on the basis of sex, in violation of Title VII (Count III); discrimination on the basis of national origin, also based on Title VII (Count IV); a claim for retaliation under Title VII (Count V); and discrimination on the basis of age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. (Count VI).

By a Memorandum Opinion (ECF 12) and Order (ECF 13) entered June 4, 2010, Judge Richard D. Bennett granted ADT's motion to dismiss Counts I, III, and IV (i.e., the substantive discrimination claims under Title VII), but only "to the extent that those causes of action are based upon [plaintiff's former supervisor Leonard] Gill's misconduct," ECF 12 at 6, which

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allegedly occurred prior to Gill's resignation in December 2006. Judge Bennett ruled that plaintiff had not filed a timely charge of discrimination concerning those allegations with the Equal Employment Opportunity Commission ("EEOC"), thereby failing to fulfill a condition precedent to maintenance of a Title VII lawsuit.2

The following claims remain: plaintiff's racial discrimination claim under § 1981 (Count II);3 her retaliation claim under Title VII (Count V); an ADEA claim (Count VI); and Title VII discrimination claims, based on alleged misconduct that occurred after June 21, 2007 (Counts I, III, and IV).

The parties have filed cross-motions for summary judgment, which have been fully briefed. See ADT's motion for summary judgment (ECF 46) and supporting memorandum (ECF

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46-1) (collectively, "ADT Motion"); plaintiff's combined response in opposition and cross-motion for summary judgment (ECF 56) and her supporting memorandum (ECF 56-2) (collectively, "Mandengue Motion"); and ADT's combined reply in support of its motion and opposition to plaintiff's cross-motion ("ADT Reply") (ECF 61). No hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will grant in part and deny in part ADT's motion for summary judgment, and deny plaintiff's motion. In particular, summary judgment will be denied to both parties with respect to plaintiff's § 1981 claims under Count II, to the extent that those claims are based on the actions of Leonard Gill, plaintiff's former supervisor. ADT will be awarded summary judgment as to all other counts.

B ackground4

Ms. Mandengue is a black woman whose country of origin is Cameroon, West Africa. Mandengue Motion at 2. Born in 1958, she was 49 years of age in 2007, when her employment with ADT as a "resale rep" was terminated. Second Amended Complaint ¶¶ 162-63.

A. The Position of "Resale Rep"

The position of resale rep entails contacting homeowners who have out-of-service ADT home security systems already installed in their homes, and securing new contracts for reactivated service with those customers. See Deposition of Robert Glazier at 12 ("Glazier Dep.").5 With the exception of a modest "stipend" for automobile usage, see Ex.2 to Deposition

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of Eleonore Mandengue at 2 ("Mandengue Dep."),6 and a "training wage" paid on a "decelerating scale" during the first sixteen weeks of employment, Ex.1 to Mandengue Dep. at 1, ADT compensates resale reps strictly on the basis of sales commissions. See Ex.2 & 3 to Mandengue Dep. Sales commissions are not fully earned by a resale rep until the ADT system is fully installed and/or reactivated in the customer's home. See Ex.2 & 3 to Mandengue Dep. Consequently, although resale reps receive advances of commissions at the time a contract is completed, the advances are "charged back" if the sale is not completed. See Ex.2 & 3 to Mandengue Dep.

Because resale reps work based on commission, and often are required to meet with customers during non-traditional work hours, resale reps do not have fixed office hours. See, e.g., Mandengue Dep. at 123; Glazier Dep. at 38. However, the position of resale rep is considered a full-time position. See Mandengue Dep. at 60.

Each ADT resale rep is given an annual quota of new reactivation contracts that the resale rep is expected to procure. See id.; see also Affidavit of Robert Glazier ¶ 4 ("Glazier Aff."), Ex.C to ADT Motion (ECF 46-4). At some point during Mandengue's employment, ADT apparently changed the formal basis on which quotas were calculated from a dollar amount of sales, Ex.2 to Mandengue Dep. at 3, to a number of "Units" (i.e., newly reactivated service contracts). See Ex.3 to Mandengue Dep. at 3. However, both methods of calculating the quota

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produced the same practical result: resale reps were expected to produce approximately sixteen new contracts per month. See Ex.2 to Mandengue Dep. at 3; Ex.3 to Mandengue Dep. at 3; Glazier Aff. ¶ 4. ADT expects resale reps to "perform at 100% to quota." Ex.3 to Mandengue Dep. at 3; see also Glazier Aff. ¶ 4. ADT management ordinarily institutes "disciplinary counseling" for resale reps who "are consistently below 80% to quota." Glazier Aff. ¶ 4.

ADT makes several software tools available to resale reps for the purpose of identifying potential customers. The two most prominent of these software tools are "Telemar" and "ASAP." See, e.g., Glazier Dep. at 27-31.

The Telemar system generates appointments for resale reps with customers who have requested reactivation of their home security system (either as a result of calling ADT, or contact from an ADT telemarketer). See id. at 29. In Telemar, each customer appointment, or "lead," is assigned to a particular resale rep based on the rep's assigned geographical region and "lead rotation," which refers to the rate at which resale reps receive Telemar appointments. Id. at 28. Each rep's "lead rotation" is expressed as a ratio. For example, according to Paula Godbee, the Field Support Data Team Manager for ADT's National Sales Center, who is responsible for managing the Telemar system, a "2:1 ratio provides that a Resale Rep will receive two leads for every one lead distributed to other Resale Reps in his or her sales unit." Affidavit of Paula Godbee ¶ 6 ("Godbee Aff."), Ex.E to ADT Motion (ECF 46-6). At his deposition, plaintiff's former supervisor, Robert Glazier, provided another example, Glazier Dep. at 29:

One-to-one means Ruben—first appointment that comes through, Ruben would get one, whoever the next one is alphabetically, he would get one. And then if Veloso was next, she would get the next lead that the customer called in. And then if Bill Toppi was next, he would get the next one. So it's a—each rep gets one lead before it goes on to the next rep, and then when it comes around full circle again, that rep gets one lead.

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Each local supervisor, or "resale manager," is responsible for establishing the "lead rotation" ratio for each resale rep in the supervisor's sales unit. Godbee Aff. ¶ 6; see also Glazier Aff. ¶ 7. Resale reps ordinarily are placed on a 1:1 lead rotation initially, but a resale rep's lead rotation may be adjusted by the rep's resale manager. See Glazier Aff. ¶ 7-8; Godbee Aff. ¶ 7. Each resale manager is responsible for maintaining an overall sales quota for the sales unit he or she supervises, and has the discretion to "raise or lower a Resale Rep's lead rotation as needed to effectively manage the Resale Manager's required sales quota." Godbee Aff. ¶ 7.7 For instance, a resale manager may lower the Telemar lead rotation of a resale rep who is not achieving his or her monthly sales quota. Id. ¶ 8. A resale manager also has the capability to reassign a Telemar-generated appointment to another resale rep after it has been initially distributed to a resale rep via the lead rotation system. See Mandengue Dep. at 91.

Telemar obviously is a valuable source of leads for ADT resale reps, because a lead generated through Telemar is, by definition, a lead for a customer who has already expressed interest in having an ADT security system reactivated. However, according to Godbee, resale reps typically do not receive more than five Telemar leads each month. Id. ¶ 9. Thus, resale reps must also utilize other methods to achieve their quota of approximately sixteen sales per month. The ASAP system is another source of leads.

ASAP is a database of customers with out-of-service ADT accounts. See Glazier Dep. at 31.8 Unlike leads in Telemar, leads in ASAP are not assigned on a "lead rotation" basis. Rather, a resale manager distributes the various leads in the pool of leads for a given geographic area

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among his or her resale reps. See Glazier Dep. at 31. However, the distribution is not...

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