Pilger v. D.M. Bowman, Inc.

• Decision Date: 03 June 2011
• Docket Number: Civil No. WDQ–10–0597.
• Citation: 833 F.Supp.2d 489,112 Fair Empl.Prac.Cas. (BNA) 939
• Parties: Charles PILGER, Plaintiff, v. D.M. BOWMAN, INC., Defendant.
• Court: U.S. District Court — District of Maryland

833 F.Supp.2d 489

112 Fair Empl.Prac.Cas. (BNA) 939

Charles PILGER, Plaintiff,

v.D.M. BOWMAN, INC., Defendant.

Civil No. WDQ–10–0597.

United States District Court,

D. Maryland,

Northern Division.

June 3, 2011.

Thomas Stratton Gill, Thomas S. Gill PC, Frederick, MD, for Plaintiff.

Stanley J. Reed, Julie A. Reddig, Lerch Early and Brewer Chtd, Bethesda, MD, for Defendant.

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Charles Pilger sued D.M. Bowman, Inc. (“Bowman”) for violations of the Age Discrimination in Employment Act (“ADEA”),¹ the Family Medical Leave Act (“FMLA”),² and Maryland law. For the following reasons, Bowman's motion for summary judgment will be granted in part, and denied in part.

I. Background ³

Bowman is a trucking company headquartered in Williamsport, Maryland. Charles Pilger Dep. 29:6–8, July 29, 2010. Id. It has nine repair facilities, including one in Williamsport, and others in Frederick, Maryland, Somerset, Pennsylvania, and Huntersville, North Carolina. Vincent Boarman Dep. 13:10–12; 16:11–18:3, August 12, 2010. Although some maintenance of Bowman trucks is performed at the repair facilities, much of the maintenance is performed by outside vendors who are coordinated through Bowman's Williamsport maintenance division. Boarman Dep. 59:20–60:14; Pilger Dep. 58:16–59:6.

In 1980, Pilger began working as a shop manager in Bowman's maintenance division, and in June 1995, he became a maintenance team administrator. Def.'s Mot. Summ. J., Ex. A at ¶¶ 13 & 16. In 2006, Vincent Boarman became Bowman's director of maintenance. Boarman Dep. 5:21–6:18. Boarman selected Maxwell Dunn to become the maintenance team leader, and in February 2007, Boarman transferred Pilger to the position of breakdown coordinator, making Dunn his direct supervisor. Id. 8:16–22, 10–14–17; Maxwell Dunn Dep. 8:5–9:18, October 21, 2010; Def.'s Mot. Summ. J., Ex. A at ¶¶ 16–18.

As the breakdown coordinator, Pilger was responsible for communicating with drivers about maintenance issues on the road, and contacting vendors to make repairs. Boarman Dep. 10:20–11:2. Pilger had authority to approve repairs up to $1,000; more expensive repairs required Dunn's approval. Id. 11:2–6. Pilger was also responsible for reviewing and entering invoices for repairs he approved. Id. 11:19–13:2; 26:14–27:3.

On May 23, 2008, Dunn completed Pilger's annual performance review, which stated that Pilger was “[v]ery knowledgeable” about equipment and good at completing repairs, worked well with vendors and others, and tried to get his job done in a timely manner. Pl.'s Opp'n, Appx. 46–53. Dunn rated all categories of Pilger's performance as “meets expectations” or “exceeds expectations.” Id. That same month, Pilger was temporarily assigned to perform manager duties at Bowman's Huntersville facility. Boarman Dep. 27:4–7. Following the Huntersville assignment, Dunn and Boarman noticed that Pilger had not entered all the facility's invoices on a timely basis. Dunn Dep. 56:7–14; Def.'s Mot. Summ. J., Ex. E. Pilger was about three months behind which, Dunn states, was worse than any other employee he supervised. Dunn Dep. 54:8–15. ⁴

On June 18, 2008, Don Meckley, Bowman's director of operations, emailed Pilger, Dunn, and Boarman about “the ‘process' for getting [Bowman] trucks serviced” in Augusta, Georgia. Pl.'s Opp'n, Ex. L. Pilger responded that trucks were “parked in a drop lot ... a few miles from our vendor C & A Repair,” and that C & A charged Bowman “$30 for [pick-up] and $30 for delivery. A safety inspection is done at that time & the trucks get an exterior wash.” Id. Dunn's response to Pilger's email was “Thanks”; Boarman did not respond. Id.

Later that summer, Pilger was assigned to temporary manager duties at Bowman's Frederick facility. Def.'s Mot. Summ. J., Ex. F. He was to stay at Frederick until a new manager was hired and trained. Id. Without permission, Pilger returned to Williamsport on August 4, 2008. Id. On August 5, 2008, Dunn emailed Pilger that:

Neither [Boarman] nor I have given you permission to be back [in Williamsport] yet. I see that [Frederick] still has over 80 work orders on their side and [they are] going to need all the help that [they] can to get them closed for the end of the period. If I were you, I would hightail it back to Frederick and help ... get them done and then come next week, we will see ... about bringing you back to Williamsport. You seem to forget that you are not the one that makes that kind of decision without consulting [Boarman] or I.

Def.'s Mot. Summ. J., Ex G.

Later that day, Pilger and Boarman met in Pilger's Williamsport office. Pilger told Boarman that he had returned to Williamsport because of a doctor's appointment and because he thought the new manager in Frederick was adequately trained. Pilger Dep. 28:21–29:5; 29:16–21. When Boarman instructed him to return to Frederick the next day, Pilger stated that he would be unable to because he had requested August 6th through August 8th off to help his wife take her mother to the doctor. Id. 31:7–20.⁵ Pilger's request for leave had never been approved, and Boarman told him he could not have those days off. Id. 31:21–32:3; 33:5–6. Pilger “reiterated to [Boarman] ... that ... being as late as it was, [he] could not find anyone to help [his] wife take her mother to the doctor's,” but Boarman said if he did not show up in Frederick on August 6, he would be suspended. Id. 33:10–34:6. Pilger missed the next three days of work and was suspended for a week. Pl.'s Opp'n, Ex. H.

Boarman wrote a disciplinary action notice, which stated that he had “instructed [Pilger] to go back to his assigned work place” and “stay [there] until informed different[ly].” Def.'s Mot. Summ. J., Ex. F. Boarman said he told Pilger that “he had no vacation approved and needed to be where he was instructed to be,” and that “just submitting vacation is not an automatic approval.” Id. Boarman gave Pilger the notice when he returned from suspension on August 18, 2008.

On that day, Dunn gave Pilger a disciplinary action notice titled “final written warning.” Def.'s Mot. Summ. J., Ex. E.⁶ In the notice, Dunn wrote that when he discovered Pilger's failure to input the Huntersville paperwork, he “told [Pilger] to get it in the system” three times, but Pilger “failed to follow instructions.” Id. The notice stated that Pilger was expected to “have all paperwork entered in the system before the end of Period 9.” Id. It also stated that he was expected to create a spreadsheet “detail[ing] how much time he spends on each break down and what else he does in a day's time.” Id. When Dunn presented Pilger with the notice, he “refused to sign [it]” because he “felt there should have been changes.” Id.⁷

On January 26, 2009, Dunn and Boarman asked to see Pilger in Dunn's office. Pilger Dep. 61:11–14. Pilger was given a termination notice written by Boarman, which stated that Pilger had received previous disciplinary notifications, and explained:

I, as Director of Maintenance, was looking into [the] driving costs in the Augusta, Ga. operation and came across a thirty dollar routine inspection charge. I called [Pilger] and ask[ed] him what this was for. [Pilger said] that drivers were not doing their pre and post trip inspections, so he had the vendor start doing this ... I asked him why he would do this when he was stopped from doing this at another location in the middle of 2008 ... On 2/29/08 I called [Pilger] on my way back from our Augusta, Ga. operation to let him know that the washing of trucks would be moved from [38] to [49] dollars a unit, to help with the movement cost. I also told [him] at this time there was still no charge for movement of equipment for services and repairs, this was for washing only ... When I was going through 2008 invoices I found we were paying for a pickup and delivery charge to and from our drop lot [in Augusta]. I asked [Pilger] when this took place and his reply was sometime around the middle of the year. Once again I asked why he didn't let me know. His response was he thought I already knew. If [Pilger] had been doing his job efficiently and correctly ... he would have notice[d] that the vendor was picking up trucks to wash at the agreed new rate and charging a pickup and delivery fee on top of this. I found forty-eight invoices ... charg[ing] us for washing, pickup, delivery and routine inspection. [Pilger] is well aware this is a mobile repair vendor and [he] should have been questioning why they were charging us for something that could have been done on the drop yard to help control our costs. These issues have cost the company over $12,000.00 ... in 2008. This is totally unacceptable out of someone with over twenty eight years of experience with our company.

Def.'s Mot. Summ. J., Ex. H; Pilger Dep. 61:19–20. When he was terminated, Pilger was 61, Boarman was 53, and Dunn was 43. Pilger Aff. 13; Boarman Dep. 6:4–6.

On March 17, 2009, Boarman and Dunn hired 26 year old Nathan Reid as the new breakdown coordinator. Thomas Gill Aff. ¶ 1. On March 4, 2010, after four warnings, and one “final written warning,” Reid was terminated for poor performance. Id. ¶¶ 2–7. On March 7, 2010, Boarman replaced Reid with 55 year old Glenn Smith. Def.'s Mot. Summ. J., Exs. M & N.⁸

On March 9, 2010, Pilger sued Bowman for age discrimination in violation of the ADEA and Maryland law, and retaliation in violation of the FMLA. ECF No. 1. Bowman moved for summary judgment on December 17, 2010. ECF No. 32.

II. Analysis

A. Standard of Review

Under Rule 56(a), summary judgment “shall [be] grant[ed] ... if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In considering the motion, “the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,...